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275 F.2d 238
Joseph W. HARRIS, Appellant,v.UNITED STATES of America, Appellee.
No. 16015.
United States Court of Appeals Ninth Circuit.
February 3, 1960.
Richard F. Swisher, Oakland, Cal., Nathan G. Gray, Berkeley, Cal., for appellant.
Charles K. Rice, Asst. Atty. Gen., Carolyn R. Just, Robert N. Anderson, Lee A. Jackson, Attys., Dept. of Justice, Washington, D. C., Lynn J. Gillard, U. S. Atty., Marvin D. Morgenstein, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before STEPHENS, HAMLEY and HAMLIN, Circuit Judges.
STEPHENS, Circuit Judge.
1
The taxpayer has appealed from a judgment of the District Court which held that that portion of his attorney fees in his divorce action which was chargeable to the community property issue was not deductible under Section 23(a) (2) of the 1939 Internal Revenue Code, 26 U.S.C.A. § 23(a) (2), as "* * * ordinary and necessary expenses paid * * * for the management, conservation, or maintenance of property held for the production of income."
2
The facts were largely stipulated. In the divorce suit, Harris contended that there was no community property, while his wife claimed that at least part of the property standing in Harris' name was community. Harris had real estate valued at approximately $415,000, which was almost the sole source of his income. The court found that the community interest was worth $170,000, and awarded $65,000 to the wife. The trial of the community property issue lasted five weeks; there were no negotiations for a settlement. After the trial, it was agreed that the wife's interest would be paid in cash.
3
It is undisputed that the property involved was held for the production of income. Harris contends that his attorneys were primarily engaged in preventing the breakup of his property, and that their fees are therefore deductible as ordinary and necessary expenses paid for the conservation of income property. He relies on Baer v. Commissioner of Internal Revenue, 8 Cir., 196 F.2d 646, which has been approved in this Circuit in Howard v. C. I. R., 9 Cir., 202 F.2d 28, 30.
4
"In Baer v. Commissioner, * * * the showing was of expense to the taxpayer in resisting a claim which threatened immediate destruction, to a substantial extent, of his capacity to earn income. The legal expense incurred was thought to bear a direct relationship to the management and conservation of property held for the production of income. * * * The Baer case, we think, affords a good illustration of the proper application of the statute."
5
Tressler v. C. I. R., 9 Cir., 228 F.2d 356, 361, is to the same effect:
6
"Generally, fees paid by a husband in resisting his wife's monetary demands incident to a divorce are not deductible under Section 23(a) (2) * * *. However, when the controversy between the spouses goes not to the question of liability but to the manner in which it might be met and, at the same time the wife demands a part of the husband's income-producing property, control over which affects the husband's general income-earning capacity, legal fees incurred by the husband are deductible. Baer v. Commissioner, * * *."
7
The expenses of a divorce suit are not generally deductible, aside from Section 24 of the Code,1 because defense of one's title to property is a capital expense. Shipp v. C.I.R., 9 Cir., 217 F.2d 401. See also, Lykes v. United States, 343 U.S. 118, 125-126, 72 S.Ct. 585, 96 L.Ed. 791. In this case, the attorney fees were paid to resist the wife's claim that there was community property. While some slight attention was paid to the problem of dividing the property after judgment, no evidence was presented on the value of the attorneys' service in this connection.
8
The judgment of the District Court denying a tax refund is affirmed.
Notes:
1
"§ 24 Items not deductible
"(a) General Rule. In computing net income no deduction shall in any case be allowed in respect of —
"(1) [As amended by Sec. 127(b), Revenue Act of 1942, supra] Personal, living, or family expenses, except extraordinary medical expenses deductible under section 23(x);" 26 U.S.C.A. § 24.
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835 F.2d 1052
Elsa DOERINKEL, Appellant,v.HILLSBOROUGH TWP. & Hillsborough Twp. Board of Adjustment.
No. 87-5389.
United States Court of Appeals,Third Circuit.
Submitted Pursuant toThird Circuit Rule 12(6)
Dec. 10, 1987.Decided Dec. 29, 1987.
Frank N. Yurasko, Somerville, N.J., for appellee.
Before GREENBERG and SCIRICA, Circuit Judges, and POLLAK*, District Judge.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
1
Plaintiff, Elsa Doerinkel, a citizen and resident of West Germany, brought this action in the district court against defendants, Hillsborough Township and the Hillsborough Township Board of Adjustment, following the denial of her application for a variance to build a single family dwelling on land she owns in Hillsborough Township.1 In the district court she advanced the contentions that she was entitled to damages because her property had been taken without compensation and the procedure at the variance hearing before the Board of Adjustment and the terms of the zoning ordinance itself denied her equal protection and due process of law. The defendants obtained a dismissal of the action by a motion for summary judgment.
2
The material facts are as follows. Plaintiff and her now deceased husband purchased the property which is slightly over two acres known as Block 171, Lot 97, as shown on the Hillsborough tax map in 1974. At that time the lot was conforming for single family dwellings under the zoning ordinance as the minimum lot size in the area was one acre.2 In 1980 the minimum lot size in the area was, however, increased to five acres but a house could nevertheless be built on plaintiff's lot without a variance pursuant to a grandfather clause in the zoning ordinance. Subsequently the grandfather clause was repealed and thus plaintiff's lot became nonconforming.
3
On or about December 27, 1983 plaintiff filed an application for a variance to construct a single family dwelling on the property pursuant to N.J.Stat.Ann. Sec. 40:55D-70(c) (West 1987).3 A hearing on her application was held on February 6, 1984, at which there was testimony in support of and in opposition to the application. Louise Van Patton, chair person of the Hillsborough Township Environmental Commission, who lived near the property appeared in her private capacity and opposed the variance for geological reasons. At the conclusion of the hearing plaintiff requested a postponement so she could obtain her own expert testimony to meet Van Patton's testimony but her application was refused and the variance was denied.
4
On April 9, 1984, plaintiff filed a complaint in lieu of a prerogative writ in the Superior Court of New Jersey against the Hillsborough Township Board of Adjustment alleging that the Board's denial of her variance application was arbitrary, capricious and unreasonable and was contrary to the evidence and the New Jersey Municipal Land Use Law, N.J.Stat.Ann. Sec. 40:55D-1 et seq. (West 1987). She asserted that she had established a hardship and had met her burden of proof to justify the variance under N.J.Stat.Ann. Sec. 40:55D-70 (West 1987). She also alleged that the zoning ordinance was unlawful and was "contrary to statute." Plaintiff asked that the resolution of the Board denying her the variance be declared null and void and that the Hillsborough Township zoning officer be directed to grant her a permit to construct a single family dwelling.
5
The Superior Court action was heard by a judge on the record without testimony and, on December 21, 1984, he entered an order dismissing the case. No opinion or findings accompanied the order and thus we do not know the basis for his ruling. Plaintiff did not appeal from the order of December 21, 1984.
6
Thereafter plaintiff brought this action in the district court against Hillsborough Township and the Hillsborough Township Board of Adjustment. In her first count she alleged that the action of the Board in denying her a variance amounted to a de facto taking of her property entitling her to compensation. In the second count she asserted that the Board had denied her due process and equal protection of the law by refusing to grant her a postponement to meet Van Patton's testimony at the variance hearing thus entitling her to damages. In the third count she asserted that the Board was liable for damages by reason of making a decision on the basis of certain alleged discriminatory and disparaging remarks made by Van Patton at the hearing. The fourth count of the complaint was directed at both the Board of Adjustment and the Township. In that count, plaintiff asserted that as a result of all of the proceedings the zoning ordinance as applied was invalid thus infringing her due process and equal protection rights under the Fifth and Fourteenth Amendments and the New Jersey Constitution. Once again damages were sought.
7
After filing an answer defendants moved for summary judgment. The district judge granted their motion in a written opinion dated May 19, 1987. He indicated that defendants had moved on the grounds of res judicata and collateral estoppel and, in addition, on the ground that "the claim of a taking is not ripe." The judge said that under 28 U.S.C. Sec. 1738 he was required to give the Superior Court judgment the same res judicata effect that it would be given in that court. He further indicated that if an issue of law or fact necessary for a judgment is decided in an initial case that decision may preclude relitigation of the issue by a party to the first case in a subsequent civil rights action under 42 U.S.C. Sec. 1983 even though collateral estoppel cannot be asserted against a party who did not have a full and fair opportunity to litigate the issue in the earlier case. The judge said that under N.J.R.Civ.P. 4:27-1(b) the state has codified the entire controversy doctrine by requiring that each party assert all claims that he may have against any other party insofar as required by the doctrine. He then noted that in Tancrel v. Mayor & Council of the Twp. of Bloomfield, 583 F.Supp. 1548 (D.N.J.1984), the court held that a state judgment would be given preclusive effect in a subsequent federal action to bar claims that should have been asserted in a prior New Jersey state action under state mandatory joinder rules.
8
Applying these principles, the judge held that the causes of action asserted in the first three counts of the district court complaint which were directed solely against the Board of Adjustment were barred as they could have been raised in the state court proceedings and the state courts would no longer entertain them. The fourth count, however, required a different analysis as the Township as well as the Board was named in that count and the Township had not been a party to the Superior Court action. Nevertheless, the judge reached the same result as he pointed out that in the Superior Court action plaintiff alleged that the ordinance was unlawful. While the district judge acknowledged that in the absence of the Township as a party the ordinance could not have been invalidated, under N.J.R.Civ.P. 4:28-1 plaintiff should have made the Township a defendant so complete relief could have been granted. In view of these circumstances the judge held, citing Blonder-Tongue Laboratories Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971), that the Township could defensively use collateral estoppel to bar the action concluding that: "[b]ecause the plaintiff has litigated or could have litigated the issues now raised at the state court proceedings, plaintiff should not be permitted to litigate her claims against the defendant [township] in this Court." Accordingly, the judge found that the entire action was barred by the single controversy doctrine and by principles of res judicata and collateral estoppel and, on May 18, 1987, he entered the summary judgment from which plaintiff appeals. In view of this disposition the judge did not consider the defendants' claim that the action was not ripe.
9
We agree with the district judge's disposition of the action insofar as he granted summary judgment to the Board of Adjustment and thus we will affirm the order for summary judgment on the first three counts of the complaint and on the fourth count insofar as the complaint was addressed to the Board.4 We have no doubt that plaintiff was obliged under the New Jersey single controversy doctrine to assert in the Superior Court action all of her claims for relief against the Board arising from the denial of her variance and her inability to build on the property. See Tancrel v. Mayor & Council, 583 F.Supp. at 1551. Thus, plaintiff's case against the Board was properly dismissed by the district judge.
10
We are troubled by the district judge's decision dismissing the action against the Township on his theory that the Township should have been a party to the Superior Court action. The difficulty with his approach is that we cannot ascertain from the record whether the Superior Court judge even considered the validity of the zoning ordinance. The briefs of neither party take issue with the district judge's statement that in New Jersey the municipality is a necessary party to an action to invalidate a zoning ordinance. See Cobble Close Farm v. Board of Adjustment, 10 N.J. 442, 455, 92 A.2d 4, 10-11 (1952). Thus, it is entirely possible that even if the Superior Court judge thought plaintiff was seeking to invalidate the zoning ordinance, the judge dismissed that aspect of her action for the very reason that the Township was not a party to the case. If so, he would not have considered the validity of the ordinance on the merits and in that event plaintiff could not have litigated the question of the validity of the ordinance in the underlying action.
11
Further, aside from the jurisdictional limitations on his power, it is questionable from the pleadings in the Superior Court action whether the Superior Court judge considered the validity of the zoning ordinance. While the complaint did allege that the ordinance was unlawful and contrary to statute, plaintiff did not ask the court to declare the ordinance invalid. Rather, though asking for such general relief as the court "may deem just and equitable," she asked specifically only for an order nullifying the resolution denying the variance and for a building permit to be issued for a single family dwelling. Thus, by reason of the pleadings we cannot be certain that the Superior Court judge considered the validity of the zoning ordinance. Finally on this issue we point out that the Superior Court in reviewing the denial of the variance was not obliged to consider the validity of the ordinance. Quite to the contrary, a variance application will ordinarily be made on the assumption that the ordinance is valid.
12
Overall, therefore, the Superior Court judgment was applied by the district judge to permit the Township, which was not a party to the Superior Court action, to bar plaintiff from litigating an issue, that is the claim that the zoning ordinance was invalid and deprived her of her property rights, that was not properly before the Superior Court and may, in fact, not have been considered by the Superior Court judge. This case, therefore, differs from Tancrel v. Mayor & Council as here, unlike in Tancrel, the parties are not identical in the two actions, see 583 F.Supp. at 1552, and it differs from Blonder-Tongue because we cannot be certain that the issue raised now, the validity of the zoning ordinance, was considered by the Superior Court. See 402 U.S. at 350, 91 S.Ct. at 1453. In these circumstances we are satisfied that the district court's decision barring the action against the Township because of issue preclusion was unjustified. We think that enforcement of principles of issue preclusion against a litigant is not justified when the full and fair opportunity (see Blonder-Tongue, 402 U.S. at 328, 91 S.Ct. at 1442) to that litigant to have had the issue determined in the earlier action was dependent on an entity which, in fact, was not a party having been joined in the earlier action.
13
The Township urges, citing Williamson Co. Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-200, 105 S.Ct. 3108, 3121-24, 87 L.Ed.2d 126 (1985), that even if we disagree with the reasoning of the district judge we nevertheless should affirm the dismissal of the action on the theory that it is not ripe as plaintiff may bring an inverse condemnation action against the Township in the state courts. We have concluded, however, that the validity of that defense should first be considered by the district judge.
14
In view of the aforesaid, the judgment of May 18, 1987 will be affirmed insofar as it dismissed the action as to the Board of Adjustment and will be reversed insofar as it dismissed the action against the Township. The matter will be remanded to the district court for further proceedings consistent with this opinion.
*
The Honorable Louis H. Pollak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation
1
Jurisdiction in the district court was based on 28 U.S.C. Sec. 1331 and 28 U.S.C. Sec. 1332(a)(2)
2
Defendants stipulate to that lot size solely for this appeal
3
Plaintiff pursued the variance application and the subsequent state court proceedings through an agent but as a matter of convenience we will refer to all proceedings as if directly brought by her
4
Our standard of review is plenary as we are concerned with interpretation and application of legal precepts. United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.1985), cert. denied, 474 U.S. 906, 971, 106 S.Ct. 275, 336, 88 L.Ed.2d 236, 321 (1985)
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715 So.2d 722 (1998)
Rodney OLIVER, et al., Plaintiffs-Appellees,
v.
Guy D. STE. MARIE, et al., Defendants-Appellants.
No. 97-1469.
Court of Appeal of Louisiana, Third Circuit.
July 1, 1998.
Jack Derrick Miller, Crowley, for Rodney Oliver et al.
Stephen A. Stefanski, Crowley, Kraig Thomas Strenge, Lafayette, for Guy D. Ste. Marie et al.
Frederick Douglas Gatz, Jr., Lafayette, for Illinois National Insurance Co.
Before THIBODEAUX, COOKS and AMY, JJ.
THIBODEAUX, Judge.
Guy Ste. Marie, his wife, Sharyll, and their automobile insurer, Illinois National Insurance Company, were sued for damages arising out of a three-car accident involving their minor daughter, Renee Ste. Marie. They were sued by the owners and passengers of the other two vehicles involved in the accident. Illinois National denied coverage because the policy contained a "Named Driver Exclusion Agreement," which excluded the minor, Renee, from coverage. The Ste. Maries filed a cross-claim against Illinois National demanding it provide liability coverage according to the terms of the policy, that it *723 indemnify them for their damages incurred from the accident, and that it provide for their defense against the pending action. The trial court found that Renee was 100% negligent and held that the policy exclusion required a signature by the named insured, Guy Ste. Marie. Consequently, the court found the exclusion invalid because Sharyll Ste. Marie signed her husband's name to the exclusion agreement without having authority to do so. Illinois National appealed the trial court judgment and the Ste. Maries filed an appeal seeking review of the trial court's apportionment of 100% fault against Renee Ste. Marie.
We find that the trial court was correct in finding that the exclusion agreement could only be entered into by the named insured, Guy Ste. Marie. Further, because Sharyll Ste. Marie did not have authority to sign on behalf of Guy Ste. Marie, the exclusion is invalid, and Renee Ste. Marie is covered under the terms of the policy. In addition, we find that the trial court did not err in apportioning 100% fault to Renee Ste. Marie in causing the accident because she did not have the right of way at the intersection, and there is no proof that the driver of the vehicle that collided with hers had the opportunity to react to avoid the accident.
The judgment of the trial court is affirmed.
I.
ISSUES
We must determine:
1. whether the named insured is the only person allowed to exclude persons from coverage pursuant to La.R.S. 32:900(L);
2. whether Sharyll Ste. Marie had authority to sign her husband's name to the "Named Driver Exclusion Agreement;" and,
3. whether Renee Ste. Marie was 100% at fault in causing the accident.
II.
FACTS
Renee Ste. Marie was driving her parents' pickup truck on April 22, 1995, when she became involved in a three-car collision at the intersection of U.S. Hwy. 90 and La. Hwy. 91 in rural Midland, Louisiana. Renee was traveling south on two-lane Hwy. 91 before stopping at the intersection of the two highways. Mary and Theresa Broussard were stopped directly across from her, facing north on Hwy. 91. Mary was driving a 1986 Toyota Corolla owned by Terry Lemaire. The Oliver family, consisting of Carlotta (the driver), her husband, Rodney, and their two minor children, was traveling east on Hwy. 90 in their 1985 Buick LeSabre when the accident occurred. The Olivers contend that they saw the truck resting at the stop sign, but as they came upon the intersection, Renee pulled out in front of them in an attempt to cross the highway. Mrs. Oliver stated that she attempted to go around the truck but was not able to because she saw another vehicle in the oncoming traffic. Consequently, she could not avoid colliding with the right, rear passenger side panel of the truck. The impact of the collision caused the truck to spin and hit the front end of the vehicle occupied by the Broussards, which was still at rest at the stop sign.
Renee testified that while she waited at the stop sign, she looked both ways and saw only one car traveling east on Hwy. 90. She waved to the people in the car and then proceeded across the highway. She testified at trial that she never saw the Oliver vehicle coming. Renee was ticketed for not yielding the right of way, and her parents and their insurer were sued by the Olivers, Lemaire, and the Broussards for general, medical and property damages sustained in the accident, contending that the accident was caused by Renee's negligence.
Mrs. Ste. Marie testified that she procured automobile liability insurance for the truck involved in the accident from an insurance agent, Larry Guidry, at the Estherwood Insurance Agency on May 13, 1994. On the first page of the policy application, Mrs. Ste. Marie signed her name beside "Signature of Applicant" and signed "Guy D." above her first name. On the second page of the policy application on the line above the request for "Applicant's signature," she signed her husband's name, and did the same on a separate *724 form for the rejection of uninsured motorists coverage. She also signed her husband's name on the "Named Driver Exclusion Agreement" directly above the request for "Named Insured's Signed Acceptance." The agreement named Renee and her sister, Chanda, as persons excluded from coverage. The listed reason for their exclusion was that they were not licensed at the time. Mrs. Ste. Marie testified that she signed her husband's name on these forms because she was told by the insurance agent to do so.
Illinois National denied coverage for the accident based upon the exclusion agreement. It answered the Petition for Damages filed by the plaintiffs, denying all liability with respect to the accident involving Renee. The Ste. Maries also filed an answer to the petition, alleging that the accident occurred solely and proximately from the negligence of Carlotta Oliver and Mary Ann Broussard. They also filed a cross-claim against Illinois National requesting coverage and that it provide a defense for the Ste. Maries in the pending suit. They asserted that the exclusion agreement was invalid because it was not executed by Guy Ste. Marie and, therefore, coverage applied to Renee Ste. Marie.
The trial court held that the sole cause of the accident was Renee's failure to yield the right of way and failure to keep a proper lookout. The court found that there was nothing to obstruct Renee's view of Hwy. 90 and that had she been keeping a proper lookout, she would have seen the Oliver vehicle approaching the intersection. Further, the court stated that the evidence did not support the contention that Mrs. Oliver could have avoided the accident had she immediately applied her brakes. The court noted that Theresa Broussard testified that the Oliver vehicle was so close to the intersection when Renee pulled out that the accident could not be avoided. Moreover, the court concluded that Renee's failure to yield the right of way caused a "sudden emergency." Under the sudden emergency doctrine, the trial court reasoned that "one who is suddenly confronted with an unanticipated hazard without sufficient time to weigh and consider all of the options and available courses of action, is not guilty of negligence if he fails to adopt what subsequently may appear to have been a better method of avoiding the danger."
In regards to insurance coverage, the trial court held that the Illinois National insurance policy provided coverage because the "Named Driver Exclusion Agreement" had been signed by Mrs. Ste. Marie on behalf of her husband, without there having been an agency relationship in existence at the time. The court followed Safeway v. Johnson, 28,150 (La.App. 2 Cir. 1/24/96); 666 So.2d 1300, which held that pursuant to La.R.S. 32:900(L), only a named insured may exclude a resident of the named insured's household from automobile liability coverage. Guy Ste. Marie is the only named insured listed on the policy application. The court, thereafter, awarded $3,653.80 to Rodney and Carlotta Oliver for property damage sustained to their vehicle; $4,586.62 to Terry Lemaire for the cost of repairs to his Toyota; $8,000.00 in general damages and $125.00 in medical expenses to Mary Broussard; and, $9,000,00 in general damages and $911.00 in medical expenses to Theresa Broussard. The Ste. Maries were awarded $2,300.00 in property damages and $2,705.85 in attorney fees for the defense of the lawsuit. All court costs were assessed to Illinois National as well.
Illinois National and the Ste. Maries appealed. Illinois National argues that the trial court erroneously concluded that the policy provided coverage for the accident on the basis that Mrs. Ste. Marie did not have authority to sign her husband's name to the exclusion agreement. In addition, it contends that it was error to give force to the policy when it was also signed by Mrs. Ste. Marie, in her husband's name. It argues that if the court's rationale is taken to its logical conclusion, the policy should be void in its entirety. In their single assignment of error, the Ste. Maries argue that the trial court erred in attributing 100% fault to Renee Ste. Marie.
III.
LAW AND DISCUSSION
Named Insured Exclusion Agreement
In order to address Illinois National's first contention, we must determine whether *725 the trial court correctly held that only a named insured on a policy of automobile liability insurance could exclude members of a household from coverage. Louisiana Revised Statute 32:900(L) states:
Notwithstanding the provisions of Paragraph B(2) of this Section, an insurer and an insured may by written agreement exclude from coverage any named person who is a resident of the same household as the named insured.
Illinois National argues that the statute allows any insured named in the policy to exclude coverage; therefore, Mrs. Ste. Marie should have had authority to execute the exclusion agreement on her own behalf or as agent for her husband. We, however, agree with the trial court and its reliance on the interpretation of this statute as stated in Safeway, 666 So.2d at 1301, 1302:
Requiring the written consent of each insured, would necessitate the signatures of at least every household member, even those not yet licensed to drive. Neither would the result be any more tenable if the statute were construed to allow any of these insureds to accomplish such a limitation. Even so, the named insured, who acts on behalf of all other insureds in procuring an insurance policy, should certainly be (and is) allowed to exercise this statutory option. We further conclude that the legislature, contemplating a rational construction of the statute, intended for the named insured alone to have the right and responsibility of excluding members of his household from coverage.
(Emphasis added).
We find this reasoning further buttressed by the fact that the signature line of the "Named Driver Exclusion Agreement" requests "Named Insured's Signed Acceptance." (Emphasis added).
Illinois National also argues that it is of no consequence that Mrs. Ste. Marie signed her husband's name to the exclusion agreement. It contends that she had the actual or apparent authority to do so and, therefore, the exclusion agreement is valid. "Mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal." La.Civ.Code art. 2989. The Louisiana Supreme Court stated the following regarding the authority needed to act as an agent/mandatary, and that which is needed to rely on that authority:
An agent's power or authority is composed of his actual authority, express or implied, together with the apparent authority which the principal has vested in him by his conduct. As between principal and agent the limit of the agent's authority to bind the principal is governed by the agent's actual authority. As between the principal and third persons, the limit of an agent's authority to bind the principal is governed by his apparent authority. Apparent authority is a judicially created concept of estoppel which operates in favor of a third party seeking to bind a principal for the unauthorized act of an apparent agent.
For the doctrine of apparent authority to apply, the principal must first act to manifest the alleged agent's authority to an innocent third party. Second, the third party must rely reasonably on the manifested authority of the agent. As the Courts of Appeal have correctly held, the principal will be bound for the agent's actions if the principal has given an innocent third party a reasonable belief the agent had authority to act for the principal. The burden of proving apparent authority is on the party relying on the mandate.
Boulos v. Morrison, 503 So.2d 1, 3 (La.1987) (citations omitted).
The trial court stated in regards to the authority issue:
There are no provisions in the policy that would give his [Guy Ste. Marie] spouse "named insured" status. Thus only Guy Ste. Marie or his agent would have authority to reject coverage.
Under the Safeway rationale, Mrs. Ste. Marie had authority to reject coverage of a household member by signing her husband's named [sic] to the policy only if she was empowered to act as his agent.
. . . .
Sharyll Ste. Marie testified that she did not discuss acquiring insurance coverage *726 or any matters relating to insurance coverage with her husband before signing the application. The insurance agent never asked Mrs. Ste. Marie if she had the authority to procure insurance or to sign the application for Guy Ste. Marie. There was no evidence that she had in the past signed Mr. Ste. Marie's name to an insurance policy. Guy Ste. Marie testified that he never told his wife that she should exclude anyone from coverage nor did he give her permission to sign his name. Mr. Ste. Marie was not sent a copy of the "Named Driver Exclusion Agreement," and was not aware that Mrs. Ste. Marie had signed the exclusion until after the accident. There was no evidence that Mr. Ste Marie gave Mrs. Ste. Marie actual authority to act as his agent or did anything to make the insurance agent believe that Mrs. Ste. Marie had the authority to act as his agent. The insurance agent instructed Mrs. Ste. Marie to sign her husband's name to the application and the exclusion. He evidently assumed without inquiring as to the accuracy of his assumption that Mrs. Ste. Marie had the authority to act for Mr. Ste. Marie. Considering the evidence, the Court finds that Illinois National has failed to prove that Mrs. Ste. Marie had either actual or apparent authority to act as Mr. Ste. Marie's agent. The Court therefore holds that the "Named Driver Exclusion Agreement" is invalid and that Illinois National provides coverage.
We find the trial court's findings to be reasonably supported by the record and not manifestly erroneous. Mr. and Mrs. Ste. Marie testified that no authority was conferred upon Mrs. Ste. Marie to act on her husband's behalf. The only reason Mrs. Ste. Marie signed her husband's name to the application and exclusion agreement was because the insurance agent told her to do so. In fact, it is apparent on the first page of the policy application that she began to sign her own name and then signed her husband's name above her own. Thereafter, his name appears on all of the signature lines. Illinois National failed to prove that Mr. Ste. Marie did anything to lead the insurance agent to believe that his wife had authority to act on his behalf. Therefore, Illinois National cannot rely on the theory of apparent authority to deny coverage in this case.
Further, as the trial court stated, Mr. Ste. Marie was not even aware of the exclusions until after the accident occurred. Louisiana Revised Statute 22:628 mandates:
No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance.
. . . .
Any written agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be deemed to be physically made a part of a policy or other written evidence of insurance, within the meaning of this section, whenever such written agreement makes reference to such policy or evidence of insurance and is sent to the holder of such policy or evidence of insurance by United States mail, postage prepaid, at such holder's last known address as shown on such policy or evidence of insurance or is personally delivered to such holder.
Mr. and Mrs. Ste. Marie testified that the exclusion agreement was not attached to the policy of insurance, and that a copy was not mailed to them until they asked for a copy of it, upon learning that Illinois National was denying coverage. Illinois National contends that although the actual exclusion agreement was not attached to the policy, the "Named Drivers Exclusion Acknowledgment Form" was attached to the policy, thereby notifying Mr. Ste. Marie of the exclusions because it referred him to the original application and exclusion agreement to determine persons excluded from coverage. We find this argument to be of no consequence in that we agree with the trial court's finding that no agency relationship existed which gave Mrs. Ste. Marie the authority to exclude her daughters from coverage in the first place and, further, even if there had been an agency relationship, a principal can only ratify *727 that which he knows. Mr. Ste. Marie did not know that Renee was excluded because the exclusion was never forwarded to him and was never made a part of the policy.
Illinois National argues that if the trial court's reasoning is taken to its logical course, then the entire policy should also be invalid. We disagree, as we know of no public policy reason or express prohibition against a person procuring insurance on behalf of household members. Accordingly, the trial court's factual findings and legal conclusions will not be disturbed.
Apportionment of Fault
The Ste. Maries contend that the trial court erred in apportioning 100% of the fault in the accident to Renee Ste. Marie. They argue that according to Carlotta Oliver's own testimony, she did not attempt to stop her vehicle when she saw the Ste. Marie vehicle pulling out in front of her and that when she did attempt to brake, it was too late. Therefore, in their opinion, the court should have assessed to Carlotta Oliver at least 30% of the fault in causing the accident.
The plaintiffs responded, asserting that the trial court did not err in its apportionment of fault. They submit that Renee Ste. Marie clearly violated La.R.S. 32:123(B) which requires an operator of a motor vehicle, who has stopped at an intersection, to yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely as to constitute an immediate hazard.
The trial court specifically stated that it did not find any negligence on the part of Carlotta Oliver. The court took into consideration the evidence and testimony presented and specifically took note of the testimony of Theresa Broussard, who witnessed the accident, and found that Carlotta Oliver could not have avoided the accident in view of the "sudden emergency" created by Renee Ste. Marie. It held that the sole cause of the accident was the negligence of Renee Ste. Marie in failing to yield the right of way and failing to keep a proper lookout. The trial court's finding will stand as it is reasonably supported by the record and is not manifestly erroneous. See Clement v. Frey, 95-1119, (La.1/16/96); 666 So.2d 607.
IV.
CONCLUSION
For the aforementioned reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Illinois National Insurance Company.
AFFIRMED.
AMY, J., concurs in part and dissents in part and assigns reasons.
AMY, Judge, concurring in part, dissenting in part.
I respectfully dissent from that portion of the majority opinion which affirms the lower court's determination that Mrs. Ste. Marie did not have authority to enter into a valid exclusion agreement.
In my view, Mrs. Ste. Marie had the authority to obtain the family's automobile insurance coverage. And, I conclude that, if she had that authority, she also had the authority to contract for the terms and exclusions contained in the policy, including the exclusion which is the central issue in this appeal. Although there was no explicit authority given by her husband, I cannot find, even in view of the equivocal nature of the testimony, that Mrs. Ste. Marie did not have actual authority to obtain her family's automobile insurance as well as the attendant exclusions.
As for apparent authority, I find that this too existed in the factual situation presented here. Mrs. Ste. Marie went to the Estherwood Insurance Agency to obtain coverage for her family. As she was Mr. Ste. Marie's wife, the insurance agent had no reason to suspect that she lacked authority to make the requisite decisions necessary for obtaining the policy, including the ability to waive uninsured motorist coverage and exclude her unlicensed daughters from coverage. Such decisions are typically those authorized between husband and wife. To hold otherwise, absent some indication that the action was in fact prohibited, could have absurd and inequitable results. Accordingly, and especially in view of the fact that I conclude that *728 she had authority to obtain the policy, I find that the trial court was manifestly erroneous in finding no such authority for Mrs. Ste. Marie to enter into the exclusion agreement.
As for the portion of the opinion addressing apportionment of fault, I concur.
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NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
MARINO A. WRIGHT,
Petitioner,
V.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
2011-3202
Petition for review of the Merit Systems Protection
Board in case no. AT3443110198-I-1.
ON MOTION
ORDER
Marino A. Wright moves for leave to proceed in forma
pauperis
Upon consideration thereof
IT IS ORDERED THAT2
The motion is granted
wmoH'r v. MsPB 2
FoR THE CoUR'r
AUG 1 1 2011 /S/ Jan H01~ba1y
Date J an Horba1y
C1erk
cc: Marino A. Wright
Jeanne E. Dav1dson, Esq. ga c0UR_FBlFEPPEALS F0R
521 ‘rHE FEoERA+_ clRcurr
AUG 1 1 2011
.lAN HDRBAL¥
C|.ERK
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(2007)
Patrick VAN ZANEN and Vicki Van Zanen, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
QWEST WIRELESS, L.L.C., a Delaware Corporation; Qwest Services Corporation, a Colorado corporation; and Qwest Communications International, Inc., a Delaware corporation, Defendants.
Civil Action No. 06-cv-02546-LTB-PAC.
United States District Court, D. Colorado.
April 19, 2007.
MEMORANDUM OPINION AND ORDER
BABCOCK, Chief Judge.
The defendants, Qwest Wireless, L.L.C., Qwest Services Corporation, and Qwest Communications International, Inc. (collectively, "Qwest") move to dismiss the Complaint of the plaintiffs, Patrick Van Zanen and Vicki Van Zanen, who assert claims on their own behalf and on behalf of a putative class, pursuant to Fed.R.Civ.P. 23. The motion is adequately briefed and oral argument would not materially aid its resolution. For the reasons stated below, I GRANT the motion.
I. Allegations
The Van Zanens allege substantially the following. Qwest, a provider of wireless telephone service operating in fourteen states, including Arizona and Colorado, offers to its customers the option of purchasing wireless telephone equipment insurance ("Handset Insurance"). Lock/Line, LLC, also known as Asurion Protection Services, L.L.C. ("Lock/Line"), underwrites and administers the Handset Insurance policies, which cover replacement of personal wireless equipment in the event the equipment is lost, stolen, or damaged. Monthly premiums fall within $3.95 and $4.99, at the extremes.
Qwest sells the Handset Insurance on Lock/Line's behalf and collects a commission for its efforts. It offers Handset Insurance coverage to new customers who contact it over the telephone, in one of its stores, or on the internet, and to existing customers who contact Qwest for new services and upgrades to existing services. Additionally, Qwest issues written advertisements extolling the virtues of Handset Insurance. In certain of its advertisements, Qwest characterizes the commission it retains as a "billing and administration fee paid to Qwest." Complaint ¶ 25.
All fourteen states in which Qwest vends services allegedly require all those selling insurance to obtain a license. The Zanens allege that Qwest is not licensed to sell insurance and therefore is prohibited from doing so in all fourteen states.
The Van Zanens, spouses residing in Arizona, employed Qwest wireless service when, in May, 2005, Mrs. Van Zanen called Qwest to purchase a new wireless telephone. During the call, a Qwest representative convinced Mrs. Van Zanen to purchase Handset Insurance. The representative indicated that coverage extended to phones lost or stolen. Thereafter, the Van Zanens have paid a monthly premium of $4.99, which Qwest bills, along with other services, on the Van Zanens' monthly statement. Mrs. Van Zanen had no contact with agents of Lock/Line.
Mrs. Van Zanen presently lost her wireless telephone. The Complaint states that she "tried to make a claim under the Handset Insurance," Complaint ¶ 37, but does not indicate what prevented her from doing so. Mrs. Van Zanen was allegedly advised by whom is not revealed that "the Handset Insurance indemnified her against lost wireless telephone equipment only if she actually reported the lost phone to the police as if it had been stolen." Complaint ¶ 37. It is not clear from the Complaint whether this suggestion was intended to recommend mendacity or merely the manner in which a report was to be made.
The Complaint does not contain the terms of coverage. Therefore, one cannot discern from the allegations who, if anyone, misrepresented the terms of the Handset Insurance policy. Furthermore, the Van Zanens make no claims against Lock/Line and expressly disavow any intention to cancel or relinquish their Handset Insurance coverage. Nor do they purport to assert a claim for fraud. However, they allege that Qwest concealed the true nature of the compensation it retained on sales of Handset Insurance, characterizing as an administrative fee what amounted to a sales commission. This fraud, they assert, tolled any applicable limitations periods. In addition, Qwest purportedly engages in continuing violations of the licensing provisions.
The Van Zanens assert four claims (claims 1, 2, 29, and 30) on their own behalf:violation of Arizona's insurance licensing statute, Ariz.Rev.Stat. § 20-282; violation of Arizona's statute prohibiting compensation paid to an unlicensed insurance producer, Ariz.Rev.Stat. § 20-298; declaratory and injunctive relief; and unjust enrichment and imposition of a constructive trust. Claims 3 through 28 allege violations of statutes of states other than Arizona, on behalf of the putative class.
II. Personal claims
The parties agree that Arizona law governs the claims that the Van Zanens assert on their own behalf. Qwest suggests two grounds on which to dismiss these claims. First, it argues that the insurance licensing statute creates no private cause of action. Second, it asserts that, although failure to obtain a license can serve as a defense to an action to obtain fees, it cannot serve as a basis for an action to obtain restitution of monies spent in exchange for services provided. The Van Zanens argue, alternatively, that the statute creates a private right of action or, at the least, does not negate their unjust enrichment claim. I agree with Qwest that the statute creates no private right of action. Furthermore, the Van Zanens have stated no claim for unjust enrichment.
The parties do not cite, and I have not found, any decision of the Arizona Supreme Court on the question whether the insurance licensing statutes in that state create a private cause of action against an unlicensed insurance vender. My task is to determine what decision Arizona's highest court would make if faced with the same facts and issue. Oliveros v. Mitchell, 449 F.3d 1091, 1093 (10th Cir.2006). Though the parties cite numerous cases, a handful of Arizona authorities dispose of the question.
A. No private right of action
Analysis must begin with review of the statutes Qwest is alleged to have violated. "A person shall not sell, solicit or negotiate insurance in this state for any class or classes of insurance unless the person is licensed for that line of authority in accordance with this article." Ariz.Rev.Stat. § 20-282. "A person shall not accept a commission, service fee, brokerage or other valuable consideration for selling, soliciting or negotiating insurance in this state if that person is required to be licensed under this article and is not so licensed." Ariz.Rev.Stat. § 20-298(B). Qwest concedes for the purpose of this motion, as it must under Rule 12(b)(6) I am obliged to read the allegations in the light most favorable to the Van Zanens that it has violated these provisions.
Violation of the licensing provision predicates administrative recourse.
If the director [of insurance] has cause to believe that any person is violating or about to violate § 20282, ... the director may order the person to cease and desist and, through the attorney general, may cause a complaint to be filed in the superior court in Maricopa county to enjoin and restrain the person from continuing the violation, engaging in the violation or doing any act in furtherance of the violation. ... If the director, through the attorney general, causes a complaint to be filed, the superior court in Maricopa county has jurisdiction of the proceeding and may make and enter an order or judgment awarding the preliminary or final relief as in its judgment is proper.
Ariz.Rev.Stat. § 20292. The statutes are silent on the question of private causes of action to enforce their provisions.
In determining whether a statute creates a private cause of action as remedy for its violation, Arizona courts look to the Restatement. Napier v. Bertram, 191 Ariz. 238, 954 P.2d 1389, 1391 (1998). The Restatement provides,
When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.
Restatement (Second) of Torts § 874A (1979). A comment further explains, "If the court determines that the legislative body did actually intend for civil liability to be imposed or not imposed, whether the intent is explicit or implicit, then the court should treat the situation as if it had expressly so provided." Id. at cmt. c.
Thus, Arizona courts concern themselves primarily with the purpose of the legislation, considering "the context of the statutes, the language used, the subject matter, the effects and consequences, and the spirit and purpose of the law." Napier, 954 P.2d at 1391 (quoting Bellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119, 1121 (1974)). Indeed, Arizona courts invariably find the purpose of the statute, whether express or implied, to be dispositive of the question whether the statute creates a private cause of action. Napier, 954 P.2d at 1391; Lancaster v. Arizona Bd. of Regents, 143 Ariz. 451, 694 P.2d 281, 287 (1984); Douglas v. Governing Bd. of Window Rock Consol. School Dist. No. 8, 206 Ariz. 344, 78 P.3d 1065, 1068 (2003); Bentivegna v. Powers Steel & Wire Prods., Inc., 206 Ariz. 581, 81 P.3d 1040, 1046-1047 (2003).
The Bentivegna decision is particularly instructive. In that case, the plaintiffs retained the defendant, a subcontractor who possessed an insufficient license, to erect the metal portions of a warehouse. Bentivegna, 81 P.3d at 1042. The defendant completed the work and received its contracted for compensation. Id. When defects in the edifice became apparent, the plaintiffs sued, seeking, among other remedies, restitution of the entire contract price. Id. at 1042-1043. The plaintiffs reasoned that the defendant's insufficient licensure prevented the defendant from retaining the monies paid. Id. at 1043. They noted that the licensing statute prevented contractors from maintaining any action to collect compensation for work performed without first proving that it was properly licensed to perform the work. Id. at 1043, 1045. The court rejected this argument, stating,
Our supreme court has held that the purpose of [the contractor licensing statute] is not to penalize contractors, but "to protect the public from unscrupulous, unqualified, and financially irresponsible contractors." To promote this purpose, the supreme court has allowed contractors to show that they have substantially complied with the licensing statutes before [the enforcement provision] is triggered. Thus, even unlicensed contractors are not automatically barred from bringing an action for amounts due.
Similarly, we do not believe the purpose of [the statute] is furthered by requiring contractors to automatically pay restitution simply because they are unlicensed. Contrary to the [plaintiffs'] assertions, allowing unlicensed contractors to keep sums they have been paid, while prohibiting them from suing to collect sums they have not been paid, will not undermine the protective function of the statute. If a customer is dissatisfied, he is less likely to pay the full contract price. Preventing the unlicensed contractor from suing, therefore, helps protect the public from lawsuits by unlicensed persons who perform substandard work. It also encourages those who would act as contractors to obtain a license so that they can sue to collect money from nonpaying clients. On the other hand, if an unlicensed person performs work and is paid for it, the customer then has a choice: if he is happy with the work done, he may allow the unlicensed contractor to keep the funds; if he is unhappy with the work done, he may pursue his legal remedies by suing for damages.
Id. at 1046-1047 (citations omitted).
Similarly, in Colberg v. Rellinger, 160 Ariz. 42, 770 P.2d 346 (1988), the court rejected an argument that the Arizona contractor licensing statutes created a private claim against an individual agent of a licensee. The court found "no supporting indication of legislative intent" in or concerning the statute. Colberg, 770 P.2d at 352. Therefore, it "conclude[d] that the legislature intended no private right of action against qualifying parties." Id.
In Darner Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388 (1984), the Arizona Supreme Court provided a useful summary of the purposes of the insurance licensing statutes.
A person in the business of selling insurance holds himself out to the public as being experienced and knowledgeable in this complicated and specialized field. The interest of the state that competent persons become insurance agents is demonstrated by the requirement that they be licensed by the state, ... pass an examination administered by the state, ... and meet certain qualifications,. ... An insurance agent performs a personal service for his client, in advising him about the kinds and extent of desired coverage and in choosing the appropriate insurance contract for the insured. Ordinarily, an insured will look to his insurance agent, relying, not unreasonably, on his expertise in placing his insurance problem in the agent's hands. ... When an insurance agent performs his services negligently, to the insure's (sic) injury, he should be held liable for that negligence just as would an attorney, architect, engineer, physician or any other professional who negligently performs personal services.
The principle involved here is simply that a person who holds himself out to the public as possessing special knowledge, skill or expertise must perform his activities according to the standard of his profession. If he does not, he may be held liable under ordinary tort principles of negligence for the damage he causes by his failure to adhere to the standard.
Darner Motor Sales, 682 P.2d at 402-03 (citations omitted).
In this case, there is no allegation that Qwest performed its insurance sales efforts negligently or with any other level of malfeasance. The Van Zanens do not assert that Qwest wrongly sold them Handset Insurance. Indeed, they expressly disclaim any desire or intention to cancel their Handset Insurance coverage. They do not allege that Qwest sold them insurance that they did not want or would not otherwise have purchased. Nor do they allege any dissatisfaction with the coverage, claims procedures, or other specifications of the policy. Nothing appears in the Complaint or the Van Zanens' brief to suggest that their purchase of Handset Insurance was anything other than an arms length transaction, in which they obtained a service of value to them in exchange for a fair market price. I need not decide whether the statute creates a private right of action generally. It is sufficient that it creates no right of action in this case. Perhaps one can conceive of a case that implicates the concerns expressed in Darner Motor Sales. This is not that hypothetical case.
Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 647 P.2d 1127 (1982), cert. denied, 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982), and Sellinger, supra, are not contrary. In those cases, the applicable statutes expressly contemplated personal causes of action by private parties. Sparks, 647 P.2d at 1139; Sellinger, 521 P.2d at 1122. No such formulation appears in the statutes at issue here.
The Van Zanens reason from the director's discretion under Ariz.Rev.Stat. § 20-292 to the conclusion that private causes of action must be allowed against unlicensed venders of insurance policies whom the director resolves not to prosecute. However, they point to nothing in the statutes from which I might infer that the Arizona legislature intended to mitigate the director's discretion, expressly provided for, in this or any other manner. The claims under the Arizona licensing statute must be dismissed.
B. No right to restitution
Citing State v. Arizona Pension Planning, 154 Ariz. 56, 739 P.2d 1373 (1987); Transamerica Financial Corp. v. Superior Court In and For Maricopa County, 158 Ariz. 115, 761 P.2d 1019 (1988); Hayes v. Continental Insurance Co., 178 Ariz. 264, 872 P.2d 668 (1994) and other decisions, the Van Zanens argue that the Arizona licensing statute in no way abrogated their common law claim for unjust enrichment. This argument misses the manifestly obvious point that the Van Zanens have no claim for unjust enrichment in the first place, under either Arizona or Colorado law.
Unjust enrichment in Colorado consists of three elements. The Van Zanens must allege that, (1) at their expense, (2) Qwest received a benefit (3) under circumstances that would make it unjust for Qwest not to make restitution. DCB Constr. Co. v. Central City Dev. Co., 965 P.2d 115, 119-120 (Colo.1998). Similarly, under Arizona law, the Van Zanens must allege: "(1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) the absence of justification for the enrichment and the impoverishment; and (5) the absence of a legal remedy." Trustmark Ins. Co. v. Bank One, Arizona, NA, 202 Ariz. 535, 48 P.3d 485, 491 (2002).
Leaving aside whether Qwest's collection of commissions for sales of Handset Insurance was unjust, the Van Zanens have suffered no detriment, expense, or impoverishment as a result. Instead, they obtained a valuable product for which they bargained and which they intend to keep.
The Van Zanens attempt to split a hair, arguing that, though Lock/Line might permissibly retain the premium for the Handset Insurance, Qwest should disgorge the commission it retained for selling the policy. However, as set forth above, the Van Zanens are satisfied with their purchase of the policy. They do not dispute in fact, they allege that Qwest introduced to them the Handset Insurance policy and that they would not have obtained this salutary product but for Qwest's efforts. Thus, whether or not Qwest was authorized under Arizona law to sell the policy, the Van Zanens utilized Qwest's sales and administration services. They seek to retain the benefit of those services while recovering the price paid for them. The unjust enrichment claim must be dismissed.
III. Class action claims
Because the Van Zanens fail to state any claims on their own behalf, their class action claims must be dismissed. Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1213 (10th Cir.2006).
Accordingly, Qwest's motion to dismiss [# 4] is GRANTED and the Complaint is dismissed.
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331 Mich. 303 (1951)
49 N.W.2d 305
GENERAL MOTORS CORPORATION
v.
UNEMPLOYMENT COMPENSATION COMMISSION.
Docket No. 8, Calendar No. 44,983.
Supreme Court of Michigan.
Decided October 1, 1951.
Henry M. Hogan (E.V. Gilliland, of counsel), for plaintiff.
Frank G. Millard, Attorney General, Edmund E. Shepherd, Solicitor General, and George M. Bourgon, Assistant Attorney General, for the Michigan Unemployment Compensation Commission.
Zwerdling & Zwerdling, for claimants.
NORTH, J.
The 317 defendant-claimants, whose rights to unemployment compensation are herein involved, were full-time hourly employees of the General Motors Corporation in its plants located in the Saginaw-Bay City area. The corporation's 1948 annual inventory, pursuant to posted notices, was taken during the week ending December 25th. During that week there was one day's employment for 77 of these claimants, but no employment for 240 of them. All of claimants returned to work on Monday, December 27th, when normal production and employment were *305 resumed. On December 30, 1948, payday, each claimant was paid his regular wages for 8 hours straight time as and for his Christmas "holiday pay," pursuant to sections 138 to 143, inclusive, of an agreement dated May 29, 1948, between the corporation and the UAW-CIO, as bargaining agent for claimants. Section 86 of that agreement provided for double-time payment to employees who work on Christmas days. Right to full unemployment compensation for the week of the inventory layoff is sought by 240 of the claimants, but resisted by the employer corporation. The sole question presented is:
"Did claimants earn remuneration with respect to the week ending December 25, 1948, within the meaning of section 27 (c-1) of the Michigan unemployment compensation act[*] by virtue of having received `holiday pay' pursuant to sections 138 through 143 of the agreement between General Motors Corporation and the UAW-CIO dated May 29, 1948."
The referee and the appeal board held that with respect to the week ending December 25, 1948, these claimants earned no remuneration within the meaning of the statutory provisions, notwithstanding they received "holiday pay" for December 25th, included in the pay each received December 30, 1948; such payment being in accord with the agreement of May 29, 1948, entered into between the corporation and the UAW-CIO as claimants' bargaining agent.
In accord with statutory procedure the controversy finally reached the circuit court of Ingham county, which reversed the decision of the appeal board of the Michigan unemployment compensation commission. The circuit court held that by receipt of "holiday pay" for December 25, 1948, the claimants herein did receive to that extent remuneration *306 during the week ending December 25, 1948. We quote the following from the opinion of the circuit judge:
"Was the decision of the appeal board contrary to law in holding that claimants did not earn remuneration with respect to the week ending December 25, 1948, by virtue of receiving holiday pay for December 25, 1948, pursuant to the holiday pay section of the 1948 agreement. * * *
"First, it seems to this court that the remuneration the claimants received from the Corporation was for meeting the eligibility rules under the contract, which in part at least require personal services and hence it amounts to remuneration within the * * * (statutory) definition.
"Next then we come to the query, When did the claimants earn the remuneration. While they performed the services to earn it in part by working the last scheduled work day before the holiday and the first scheduled work day after the holiday and at other times and in other ways, nevertheless by agreement they have designated that it was earned for December 25th. The parties are bound by the agreement, which is clear and unambiguous in this respect.
"In this court's opinion * * * this case is confined to and controlled by the contract we have before us, and it in effect says that the remuneration is for Christmas day."
In reaching the foregoing conclusion the circuit judge noted the following statutory provisions embodied in the unemployment compensation act, CL 1948, § 421.1 et seq. (Stat Ann 1947 Cum Supp § 17.501 et seq.):
"Sec. 27. (c-1) * * * Each eligible individual[**] shall be paid his full weekly benefit rate with respect to the week in which he has earned no remuneration or remuneration equal to less than 1/2 his primary weekly benefit rate, or shall be paid 1/2 his full weekly *307 benefit rate with respect to the week in which he has earned remuneration equal to at least 1/2 but less than his primary weekly benefit rate." CL 1948, § 421.27 (Stat Ann 1947 Cum Supp § 17.529).
"Sec. 48a. * * * An individual shall be deemed `unemployed' with respect to any week during which he performs no services and with respect to which no remuneration is payable to him, or with respect to any week of less than full-time work if the remuneration payable to him is less than his primary weekly benefit rate." CL 1948, § 421.48a (Stat Ann 1947 Cum Supp § 17.552 [1]).
"Sec. 44. `Remuneration' means all compensation paid for personal services, including commissions and bonuses and the cash value of all compensation payable in any medium other than cash." CL 1948, § 421.44 (Stat Ann 1947 Cum Supp § 17.548).
As was held by the circuit judge, the agreement of May, 1948, is a factor which must be considered in reaching decision in the instant case. In part and insofar as is pertinent to decision herein, this agreement between the corporation and certain of its employees, including claimants herein, acting through their bargaining agent, UAW-CIO, under the heading "holiday pay" provides (emphasis supplied):
"Hereafter, hourly rated employees shall be paid for * * * Christmas day holidays (and certain other holidays) providing they meet all of the following eligibility rules, unless otherwise provided herein (which eligibility as before noted is admitted as to these claimants). * * *
"Employees with the necessary seniority who have been laid off in a reduction of force, or who have gone on sick leave during the work week prior to or during the week in which the holiday falls shall receive pay for such holiday. * * *
"Employees eligible under these provisions shall receive eight hours' pay at their regular straight time *308 hourly rate (subject to certain exceptions and provisions not here material). * * *
"Employees whose work is in necessary continuous 7-day operations as covered by paragraph (87) of the national agreement shall receive holiday pay in the event the holiday falls on one of their regularly scheduled days off, and they meet the other eligibility requirements of this procedure for paid holiday time. * * *
"In applying this procedure, when any of the above-enumerated holidays fall on Sunday and the day following is observed as the holiday by the State or Federal government, it shall be paid as such holiday."
Decision herein will turn upon whether the "holiday pay" provided for in the May, 1948, agreement and received by claimants, constitutes "remuneration" earned for services with respect to the week ending December 25, 1948. The claimant-employees' contention is that, notwithstanding they received "holiday pay" for Christmas day, 1948, nonetheless during that week they (excepting the 77 who had one day's employment) earned no compensation for personal services; and that under section 27 (c-1) of the statute above quoted each of these claimants is entitled to be paid "his full weekly benefit rate" for the week ending December 25, 1948. In making this contention appellant and claimants take the position that the pay received by the claimants for the 1948 Christmas day was not earned "remuneration" or wages which accrued to the claimants during the particular week in question, and that such pay should be excluded in determining unemployment benefits due the respective claimants. If, as appellant and defendant-claimants contend, "holiday pay" received by the claimants was not "remuneration" earned with respect to the week in question, the 77 employees who worked 1 day are entitled to 1/2 the full weekly *309 benefit rate in determining their right to unemployment compensation, and the 240 claimants are entitled to the full weekly benefit rate. But on the contrary, if such "holiday pay" was "remuneration" for services of claimants with respect to said week, the 240 defendant-claimants, under section 27 (c-1), above quoted, are entitled to only 1/2 of the "full weekly benefit rate" provided in the unemployment compensation act; and the other 77 claimants who worked one day during said week and received pay therefor and also the "holiday pay" would not, under the cited section, be qualified to receive any unemployment compensation.
We are in accord with the holding of the circuit judge to the effect that "holiday pay" received by claimants under their contract pertaining to their employment must be held to be "remuneration" (part of their earnings or wages) for services rendered the employer; and that such "remuneration" was with respect to the employment of claimants during the week ending December 25, 1948.
Payment of the holiday money received by the employees under their contract is provided for under the heading "holiday pay," and uniformly designated in the agreement as "pay." Pay for what? Obviously as an "emolument" or compensation for the duties and relation the employees assumed incident to their employment. Under the circumstances of the instant case, the employees are not only required to perform actual personal services on regular work days, but they must hold themselves in readiness to report for work not only on the days of regular employment but also on holidays on notice by their employer.
And further, under the contract involved in the instant case, to be qualified for "holiday pay" the employees, if work were available, had to be ready to work both on the work day next before and the *310 work day next after the holiday. Hence, eligibility to unemployment compensation required some service "with respect to the week" of the holiday as provided in the May, 1948, contract upon which claimants rely. This conclusion is justified by the following provision of eligibility included in the contract:
"The employee must have worked the last scheduled work day prior to and the next scheduled work day after such holiday within the employee's scheduled work week."
If prior to the day next preceding the holiday an employee's death occurred, or if he were lawfully severed from his employment, obviously "holiday pay" would not be payable to him or his estate. Hence it seems quite clear that money received as "holiday pay" is an emolument received by the employee incident to his status as such during the week of the particular holiday for which pay is received.
We do not think, as appellant and claimants assert, that it is essential that actual personal services should be rendered by the employee to justify the conclusion that "holiday pay" is an emolument earned during the holiday week. As used in the contract the expression "pay" does not under all circumstances imply that the money so received by an employee is for personal services actually rendered. For example, under the heading "call-in pay" the contract provides: "Any employee called to work or permitted to come to work without having been properly notified that there will be no work, shall receive a minimum of 4 hours' pay at the regular hourly rate."
The precise issue herein presented has not previously been passed upon by this Court; but at least somewhat in the same field of the law we note the following decisions from other jurisdictions. While the issue adjudicated by the United States *311 supreme court in Social Security Board v. Nierotko, 327 US 358 (66 S Ct 637, 90 L ed 718, 162 ALR 1445), is not identical with that in the instant case, and was governed by Federal law, it definitely has to do with a related phase of the law and we deem that decision in harmony with our conclusion herein. The Federal case involved the question of whether the pay an employee would have earned during the period he was unlawfully severed by his employer from his employment, and which as "back pay" the employer was subsequently required to pay the employee, who during the period involved rendered no actual personal services, should be held to be "wages." In holding such "back pay" was in law "wages," in its opinion the United States supreme court said:
"An employee under the social security act is not specifically defined but the individual to whom the act's benefits are to be paid is one receiving `wages' for `employment' in accordance with section 210(c) and employment is service by an `employee' to an `employer.' * * *
"While the legislative history of the social security act and its amendments or the language of the enactments themselves does not specifically deal with whether or not `back pay' under the labor act is to be treated as wages under the social security act, we think it plain that an individual, who is an employee under the labor act and who receives `back pay' for a period of time during which he was wrongfully separated from his job, is entitled to have that award of back pay treated as wages under the social security act definitions which define wages as `remuneration for employment' and employment as `any service * * * performed * * * by an employee for his employer. * * * Surely the `back pay' is `remuneration.' * * *
"We think that `service' as used by Congress in this definitive phrase means not only work actually *312 done but the entire employer-employee relationship for which compensation is paid to the employee by the employer."
A footnote here appended to the court's opinion reads: "For example the social security board's regulations No. 3 in considering `wages' treats vacation allowances as wages. 26 CFR, 1940 Supp, 402.227 (b)." In the United States supreme court opinion from which we have just above quoted, the court affirmed the decision in Nierotko v. Social Security Board (CCA), 149 F2d 273, in which the circuit court of appeals said:
"Wages are not, however, always earned by the expenditure of physical or mental effort on the part of the employee. This the board recognizes when it includes within the term `wages,' vacation pay, sick and disability pay, pay while on State national guard duty, retainer fees to consultants, et cetera. * * * Instances may be multiplied where wages are paid not for current effort but in consideration of an employer's command of the employee's time, and wages are no less earned when an employee holds himself in readiness to perform, than when he actually performs."
In a concurring opinion in the United States supreme court case from which we have above quoted, Mr. Justice Frankfurter said:
"The decisions of this court leave no doubt that a man's time may, as a matter of law, be in the service of another though he be inactive. E. g., Armour & Co. v. Wantock, 323 US 126 (65 S Ct 165, 89 L ed 118). This is, practically speaking, the ordinary situation of employment in a `stand-by' capacity. United States v. Local 807, 315 US 521, 535 (62 S Ct 642, 86 L ed 1004). The basis of a back-pay order * * * is precisely that. * * * Since such compensation is in fact paid as wages, it is a plain disregard *313 of the law * * * not to include such payments among the employees' wages."
In re B.H. Gladding Co., 120 F 709, the allowance of a claim in a bankruptcy proceedings was under consideration by the court. Section 64b of the bankruptcy act gave priority to "`wages due to workmen * * * which have been earned within 3 months before the date of the commencement of (bankruptcy) proceedings.'" The court held that 2 weeks' vacation pay to an employee was wages earned during the period covered by the vacation and within the priority. The court said:
"To attempt distinctions between wages due which are earned and wages due which are not earned, by an inquiry into the amount of work done by the wage earner, would be entirely impractical. If we disallow claims for a week's vacation, we must also disallow claims for half days when stores are closed, and for days and hours when there is nothing to do. Wages are `earned,' * * * so long as a bona fide contract of hiring exists, and the clerk or servant continues in the master's employment and does all that he is required to do. * * * By continuing the relation of employer and employee during a dull season, the employer holds his working force in readiness for the active season. The relation of the employer and employed is as strictly a business relation as it is during the working season, and there is full legal consideration for the master's promise to pay wages during this period."
In arriving at our conclusion herein we have been mindful of the reasons assigned in the briefs in behalf of appellant and defendant-claimants in support of the contention that receipt of "holiday pay" by the employees did not constitute "remuneration" to the employees with respect to the week ending December 25, 1948. Among such reasons it is urged that since "holiday pay" is treated in the May, 1948, *314 agreement under a separate heading and wholly apart from the provisions in the contract headed "wages," it follows that "holiday pay" is not "wages" or "remuneration" for services. At most this is only an inference based upon the manner in which the very numerous provisions of the May, 1948, agreement are embodied therein. To the same extent and in a similar manner other provisions of the contract which are akin to compensation received by the employees are treated wholly and apart from the heading of "wages." This is true, for example, of pay received by the employees for overtime, and for pay received by them for services rendered on holidays, but it could scarcely be said that such compensation to the employee is not "wages" merely because it is not included under the heading "wages" in the contract. We are not in accord with the contention, just above noted, of appellant and claimant-employees. Instead, it seems obvious that the provisions for "holiday pay" in the agreement are under a separate heading for orderliness and clarity of the provisions of the contract, which is very much in detail and covers over 90 pages of the closely-printed pamphlet inserted in the record.
Contrary to the various arguments presented by appellant and claimant-employees, which we have carefully considered, we are of the opinion that the circuit judge arrived at the right result. The judgment entered in the circuit court is affirmed, with costs to plaintiff.
REID, C.J., and BOYLES, DETHMERS, CARR, BUSHNELL, and SHARPE, JJ., concurred.
BUTZEL, J., did not sit.
NOTES
[*] CL 1948, § 421.27 (c-1) (Stat Ann 1947 Cum Supp § 17.529 [c-1]).
[**] Eligibility of each of the 240 claimants is admitted.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO SALGADO MARTINEZ, No. 08-99009
Petitioner-Appellant,
D.C. No.
v. 2:05-cv-01561-EHC
CHARLES L. RYAN,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted March 27, 2019
San Francisco, California
Filed June 18, 2019
Before: M. MARGARET McKEOWN, WILLIAM A.
FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 MARTINEZ V. RYAN
SUMMARY *
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of a writ of
habeas corpus as to Ernesto Martinez’s claims relating to his
first-degree murder conviction and death sentence,
dismissed for lack of jurisdiction Martinez’s claim appealing
the district court’s denial of his request to consider a Fed. R.
Civ. P. 60(b) motion, declined to expand the certificate of
appealability, and denied Martinez’s motion to stay the
appeal and remand for consideration of another claim under
Brady v. Maryland.
The panel held that Rule 32.2(a) of the Arizona Rules of
Criminal Procedure, pursuant to which the Arizona post-
conviction review court imposed a procedural default as to
Martinez’s judicial bias claim, is independent of federal law
and adequate to warrant preclusion of federal review; and
that Martinez failed to demonstrate cause to overcome the
procedural default of that claim.
The panel held that because Martinez’s judicial bias
claim is based on unfounded speculation, (1) his trial counsel
did not perform deficiently by not moving for the trial
judge’s recusal, and (2) his appellate counsel was not
ineffective for failing to raise on direct appeal the claim that
trial counsel was ineffective for failing to move to disqualify
the trial judge.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MARTINEZ V. RYAN 3
The panel held that Martinez did not establish cause and
prejudice to overcome his procedural default of his claim
that the prosecution violated Brady v. Maryland by failing to
disclose impeachment evidence about a prosecution witness.
The panel dismissed for lack of jurisdiction Martinez’s
claim appealing the district court’s procedural ruling
declining to consider Martinez’s Rule 60(b) motion to alter
or amend the judgment.
The panel denied Martinez’s claims relating to the jury
instruction on pre-meditation. The panel wrote that the
instruction properly conveyed to the jury that Martinez could
not be found guilty of first-degree murder if it believed he
acted impulsively. The panel held that even if the instruction
was somehow erroneous, Martinez did not show that the
instruction so infected the entire trial that the resulting
conviction violated due process. Considering the totality of
the circumstances, the panel held that an oral hiccup by the
trial court likewise did not cause the conviction to violate
due process.
The panel held that trial counsel’s failure to retain an
independent pathologist to impeach a prosecution expert’s
testimony did not prejudice Martinez; that Martinez
therefore cannot establish under Martinez v. Ryan that his
post-conviction-review counsel was ineffective for failing to
raise the claim that trial counsel’s failure to retain a
pathologist amounted to ineffective assistance; and that, as a
result, Martinez failed to overcome the procedural default on
that claim.
Because of the overwhelming evidence introduced at
sentencing that Martinez could appreciate the wrongfulness
of his conduct, the panel concluded that Martinez did not
4 MARTINEZ V. RYAN
establish prejudice, and thus cannot overcome the procedural
default of his claim that trial counsel was ineffective by
failing to recall an expert at sentencing to rebut testimony by
another expert retained by the prosecution.
The panel held that under Eddings v. Oklahoma, the
Arizona Supreme Court applied an unconstitutional causal
nexus test in concluding that Martinez’s family history is not
entitled to weight as a mitigating factor at sentencing. The
panel determined that Martinez was not prejudiced by the
Arizona Supreme Court’s constitutional error.
The panel declined to expand the COA to include a
Brady claim that relates to evidence of premeditation.
Because Martinez cannot establish materiality, the panel
denied Martinez’s motion to stay the appeal and to remand
for the district court to consider a weekly planner belonging
to a prosecution witness.
COUNSEL
Timothy M. Gabrielson (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Tucson, Arizona; for
Petitioner-Appellant.
Julie Ann Done (argued), Assistant Attorney General; Lacey
Stover Gard, Chief Counsel; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Respondent-Appellee.
MARTINEZ V. RYAN 5
OPINION
M. SMITH, Circuit Judge:
After being pulled over for speeding in Payson, Arizona,
Ernesto Martinez fatally shot Arizona Department of Public
Safety Officer Robert Martin. A jury convicted Martinez of,
among other crimes, first-degree murder. He was sentenced
to death.
Martinez appeals the district court’s denial of his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
We affirm. We also deny Martinez’s motion to stay the
appeal and decline to remand the case for consideration of
another Brady claim.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Murder of Officer Martin
In August 1995, Martinez stole a blue Monte Carlo and
used it to drive from California to Arizona. Martinez met
with his friend, Oscar Fryer, in Globe, Arizona “shortly
before the [murder] of” Officer Martin. 1
Fryer and Martinez spoke in Martinez’s car for about
thirty minutes. Fryer asked Martinez where he had been;
Martinez responded that he had been in California. Fryer
asked Martinez if he was still on probation; Martinez
responded that he was, and that he had a warrant out for his
1
Oscar Fryer did not remember exactly when he met with Martinez.
The sentencing court stated that Martinez met with Fryer “three days
before the murder,” but nothing in the record supports that claim.
6 MARTINEZ V. RYAN
arrest. Martinez told Fryer that he had come to Arizona to
visit friends and family.
While in the car with Fryer, Martinez removed a .38
caliber handgun with black tape wrapped around the handle
from underneath his shirt and showed it to Fryer. Fryer
asked Martinez why he had the gun; Martinez responded that
it was “[f]or protection and if shit happens.”
As Martinez was showing the gun to Fryer, they spotted
a police officer in the area. Fryer asked Martinez what he
would do if he was stopped by the police. Martinez
responded that “he wasn’t going back to jail.”
Following that conversation, Martinez drove from Globe
to Payson on a stretch of State Route 87—better known as
the Beeline Highway. Several witnesses testified to having
seen Martinez and his car around Payson that morning.
Susan and Steve Ball were among those witnesses.
Martinez tailgated them on the Beeline Highway “for a long
time” before passing their car “very quickly on the left-hand
side.” Shortly after that, the Balls saw Martinez’s car pulled
over to the side of the road, with a police car stopped behind
him and a police officer standing outside the driver’s side
door. As they drove by, they said to each other that it was
“good” that the driver “got the speeding ticket.”
But shortly after the Balls saw Martinez’s car pulled
over, “the same blue car passe[d] [them] on the left-hand
side going very quickly.” The couple found it “very strange”
because “there was no time [for the driver] to have gotten a
speeding ticket.” When Martinez’s car ran a red light, the
Balls knew that “[s]omething [was] going on.”
MARTINEZ V. RYAN 7
The Balls were suspicious for good reason. After being
pulled over for speeding by Officer Martin, and after the
Balls had passed Martinez’s car, Martinez shot Officer
Martin four times with a .38 caliber handgun—the same gun
he had shown Fryer days earlier. The bullets struck Officer
Martin’s right hand, neck, back, and head. The back and
head wounds were fatal.
After shooting Officer Martin, Martinez stole Officer
Martin’s .9mm Sig Sauer service weapon and continued
driving down the Beeline Highway. The Balls wrote down
Martinez’s license plate number when they spotted his car
again. 2
Martinez was arrested in Indio, California the day after
the murder of Officer Martin. Hours after his arrest,
Martinez called Mario Hernandez, a friend. After
Hernandez passed the phone to his brother, Eric Moreno,
Martinez laughingly told Moreno that “he got busted for
blasting a jura”—a slang term in Spanish for a police officer.
II. Conviction
Martinez was charged with one count of first-degree
murder, two counts of theft, and two counts of misconduct
involving weapons. Judge Jeffrey Hotham of the Superior
Court in Maricopa County, Arizona presided over the guilt
phase of Martinez’s trial. The jury returned a verdict of
guilty on all accounts.
2
Hours after murdering Officer Martin, Martinez robbed a
convenience store in Blythe, California, and fatally shot the store clerk.
Martinez’s convictions and sentences for that robbery and murder,
however, are not before us.
8 MARTINEZ V. RYAN
III. Sentencing and Direct Appeal
Before sentencing, Martinez filed a motion for change of
judge for cause. Another judge—Judge Ronald Reinstein,
the presiding judge of the Criminal Division—heard the
motion. Martinez argued that recusal was warranted because
Judge Hotham’s bailiff was friends with Officer Martin’s
widow.
Judge Reinstein granted the motion. He stated that
Martinez had demonstrated no prejudice resulting from
Judge Hotham presiding over his case. Because “death is
different,” however, Judge Reinstein concluded that “the
better course to follow for all concerned is to assign another
judge to the sentencing.”
Judge Christopher Skelly, the sentencing judge, imposed
a sentence of death. Martinez’s convictions and sentence
were affirmed by the Arizona Supreme Court on direct
appeal.
IV. State Postconviction Review
Martinez filed a post-conviction review (PCR) petition
challenging his conviction and sentence. Judge Hotham,
who had been assigned the PCR petition, denied it. The
Arizona Supreme Court denied discretionary review.
V. Federal Habeas Corpus Proceedings
Martinez filed a federal habeas petition in the district
court. The district court denied the petition. The court also
denied Martinez’s motion to alter or amend judgment and to
expand the certificate of appealability (COA). Martinez
filed a notice of appeal.
MARTINEZ V. RYAN 9
After completion of appellate briefing, Martinez filed
several motions, requesting that we: (1) stay the appeal and
remand to the district court on three claims based on our
decision in Martinez v. Schriro, 623 F.3d 731 (9th Cir.
2010); (2) stay the appeal and remand to the district court
pursuant to Townsend v. Sain, 372 U.S. 293 (1963), and
Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010); (3) stay
the appeal and remand to the district court based on Martinez
v. Ryan, 566 U.S. 1 (2012); and (4) grant leave to supplement
his Townsend/Quezada motion.
We granted Martinez’s motion to remand pursuant to
Martinez v. Ryan. We also granted Martinez’s motion to
remand pursuant to Townsend/Quezada, construing it as “a
motion for leave to file in the district court a renewed request
for indication whether the district court would consider a
rule 60(b) motion for reconsideration of Claim 4 and for
consideration of a possible Brady-Napue claim in light of
newly discovered evidence.” Accordingly, we stayed
appellate proceedings.
On remand, the district court declined Martinez’s
invitation to entertain a Rule 60(b) motion. The court also
denied his Confrontation Clause and ineffective assistance
of counsel (IAC) claims, and denied a COA as to those
claims.
Martinez filed a motion requesting that we expand the
COA. We granted a COA as to all claims we had remanded
and ordered the parties to file replacement briefs.
On appeal, Martinez raises eight certified claims and
requests that we issue a COA for another Brady claim.
Martinez also moves to stay the appeal and remand his case
for the district court to consider another Brady claim.
10 MARTINEZ V. RYAN
JURISDICTION AND STANDARD OF REVIEW
Because Martinez filed his petition for habeas corpus
after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, we have jurisdiction over the certified claims
pursuant to 28 U.S.C. § 2253.
We review de novo a district court’s decision to deny a
habeas petition under 28 U.S.C. § 2254. Bean v. Calderon,
163 F.3d 1073, 1077 (9th Cir. 1998). Under AEDPA, we
may not grant habeas relief unless the state’s adjudication of
Martinez’s claim (1) “was contrary to . . . clearly established
Federal law, as determined by the Supreme Court,”
(2) “involved an unreasonable application of” such law, or
(3) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
“In making this determination, we look to the last
reasoned state court decision to address the claim.” White v.
Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018)). The PCR court’s
decision is the last reasoned state court decision addressing
Martinez’s judicial bias claim, his IAC claim for his
counsel’s failure to raise the judicial bias claim in state court,
and his claim that the court’s jury instructions were
erroneous.
ANALYSIS
I. Judicial Bias
Martinez’s judicial bias claim stems from the
relationship between Ron Mills, Judge Hotham’s bailiff, and
Sandy Martin, Officer Martin’s widow. When the parties
MARTINEZ V. RYAN 11
learned of that relationship before trial, Martinez asked the
court to replace Mills. The court held a hearing to consider
that motion.
At the hearing, Mills testified that he had been Judge
Hotham’s bailiff for five years. He said that he had known
Sandy Martin for over thirty years—from high school—and
kept “close contact” with her and her late husband since
then. Mills testified that he considered the Martins good
friends, but that he had not attended Officer Martin’s funeral.
Mills said that, at a pretrial hearing, he had gone up to
Sandy Martin and “asked her how she was doing and put
[his] arm around her, and . . . just expressed some
pleasantries.” Mills also testified, however, that he could
“complete [his] duties as a bailiff and not influence the jury
in any way” in Officer Martin’s case. He said he had taken
an oath “[t]o take care of the jury and not to divulge the
deliberations or the verdict.” He also testified that he would
have no contact with the victims in the view of the jury and
would “not [] in any fashion influence the jurors by way of
[his] personal feelings about a case.”
The court denied Martinez’s motion to replace Mills.
Judge Hotham reasoned that he had “the greatest confidence
in my bailiff, Mr. Mills,” that he had “specifically already
admonished him about his responsibilities,” and that he was
“confident that [Mills] is going to be able to [abide by
them].”
During the trial, the court excluded Mills from the
courtroom during a portion of an expert’s testimony. At a
recess (during which the jury was not present), Judge
Hotham explained to the parties that “due to defense
counsel’s concerns about my bailiff . . . I requested [him] not
to be present during the autopsy report of [the expert] so that
12 MARTINEZ V. RYAN
no one could ever later question that my bailiff reacted to the
gory photographs in any inappropriate manner and that that
would have some effect on the jury.”
Martinez argues that the PCR court erred in holding that
his judicial bias claim was procedurally defaulted. He
contends, in the alternative, that even if his judicial bias
claim is procedurally defaulted, he has demonstrated cause
and prejudice to overcome that default.
A. Independent and Adequate State Ground
Federal courts generally cannot review a habeas
petitioner’s claim if the “state court declined to address a
prisoner’s federal claim[] because the prisoner had failed to
meet a state procedural requirement.” Coleman v.
Thompson, 501 U.S. 722, 730 (1991). The procedural bar
on which the state court relies must be independent of federal
law and adequate to warrant preclusion of federal review.
See Harris v. Reed, 489 U.S. 255, 262 (1989).
The PCR court “explicitly impose[d] a procedural
default,” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), by
stating that Martinez “waived [his judicial bias claim] by
failing to appeal [it]” and citing Rule 32.2(a)(3) of the
Arizona Rules of Criminal Procedure. Martinez does not
dispute that Arizona’s preclusion rule is independent of
federal law. See Stewart v. Smith, 536 U.S. 856, 860 (2002)
(per curiam). Nor does he dispute that Arizona’s preclusion
rule is an adequate bar to federal review of a claim. See Ortiz
v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998), overruled on
other grounds by Martinez v. Ryan, 566 U.S. 1 (2012);
Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
Instead, Martinez argues that Rule 32.2(a) was not
adequate because the PCR court misinterpreted the scope of
MARTINEZ V. RYAN 13
the rule. He contends that “Arizona’s preclusion rules
simply do not apply where there were insufficient facts on
the record to have raised the claim on direct appeal.”
Because “Martinez’s substantive judicial bias claim
depended on facts [outside] the record,” he argues that
Rule 32.2(a) did not require him to raise that claim on direct
appeal.
We lack jurisdiction to address that contention. See
Poland, 169 F.3d 573, 584 (9th Cir. 1999) (“Federal habeas
courts lack jurisdiction . . . to review state court applications
of state procedural rules.”); accord Johnson v. Foster,
786 F.3d 501, 508 (7th Cir. 2015) ( “[A] federal habeas court
is not the proper body to adjudicate whether a state court
correctly interpreted its own procedural rules, even if they
are the basis for a procedural default.”). And even if we did
have jurisdiction, Martinez’s argument fails because he was
aware of the facts underlying his judicial bias claim before
filing his direct appeal. Martinez conceded at oral argument
that he learned of the relationship between Mills and Sandy
Martin before trial. Indeed, Martinez cited that relationship
as the reason Judge Hotham could not be “completely free
of any improper emotion or bias” when he moved for a
change of judge before sentencing—which was before he
filed his direct appeal. Martinez was present during trial
when Judge Hotham told the parties that he had asked his
bailiff to remain outside the courtroom during Dr. Keen’s
testimony. These facts belie the suggestion that Martinez
could not have raised his judicial bias claim on direct appeal.
Rule 32.2(a) is independent of federal law and adequate
to warrant preclusion of federal review. Accordingly, we
may not review Martinez’s judicial bias claim unless he
establishes cause and prejudice.
14 MARTINEZ V. RYAN
B. Cause and Prejudice
There is a narrow exception to the general rule outlined
above if the habeas petitioner can “demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice.” Coleman, 501 U.S. at 750. Martinez presents
four arguments to establish cause for why he did not raise
his judicial bias claim on direct appeal. We reject all of
them.
Martinez’s first argument is part and parcel of an
argument we have already addressed: He contends that he
can establish cause because “Judge Hotham’s ongoing
failure to comply with his ethical dut[ies] . . . constituted
facts not reasonably available with which to ask for the
judge’s recusal at trial or to raise the claim on direct appeal.”
That argument falls short because, as we explain above,
Martinez knew of, and objected to, Judge Hotham’s alleged
biased conduct before he filed his direct appeal. He cannot
now claim ignorance.
Second, Martinez relies on a non-binding case, Porter v.
Singletary, 49 F.3d 1483 (11th Cir. 1995), for the
proposition that “a judge’s [breach] of the canons governing
judicial conduct constitutes ‘cause’ to excuse a procedural
default of a judicial bias claim in state court.” Porter,
however, does not support the weight that Martinez hoists on
it. There, the clerk of court submitted a declaration over a
decade after the defendant’s trial stating that “before or
during [the] trial,” the trial judge had said that “he would
send [the defendant] to the chair.” Porter, 49 F.3d at 1487
(quoting declaration). The court held that the defendant had
established cause because he could not reasonably have been
expected to discover the judge’s statements to the clerk of
MARTINEZ V. RYAN 15
court before he filed his direct appeal. Id. at 1489. Here, by
contrast, Martinez could have discovered—and did
discover—the evidence that underlies his judicial bias claim
before he filed his direct appeal. Unlike in Porter, Martinez
has identified no evidence, such as “specific [statements]
that the judge had a fixed predisposition to sentence this
particular defendant to death if he were convicted by the
jury,” id., that demonstrate Judge Hotham’s alleged bias or
impropriety. For these reasons, Porter’s reasoning does not
support Martinez’s argument for cause.
Third, Martinez argues that the ineffective assistance of
his PCR counsel establishes cause. That argument lacks
merit, however, because ineffective assistance of PCR
counsel can constitute cause only to overcome procedurally
defaulted claims of ineffective assistance of trial counsel.
See Martinez, 566 U.S. at 9; see also Trevino v. Thaler,
569 U.S. 413, 429 (2013). We have rejected, and reject
again, the argument that ineffective assistance of PCR
counsel can establish cause to overcome procedurally
defaulted claims of judicial bias. See Pizzuto v. Ramirez,
783 F.3d 1171, 1176–77 (9th Cir. 2015) (“[O]nly the
Supreme Court could expand the application of Martinez to
other areas.”).
Martinez’s fourth and final argument leapfrogs over the
cause and prejudice analysis to reach the merits of his
judicial bias claim. He contends that Judge Hotham’s bias
constituted structural error that automatically entitles him to
habeas relief. But that argument misses the mark because
we cannot reach the merits of Martinez’s judicial bias claim
unless he demonstrates cause and prejudice to overcome the
procedural default of that claim. Because Martinez has
failed to do so, we do not address the merits of his claim.
16 MARTINEZ V. RYAN
Martinez fails to demonstrate cause to overcome the
procedural default of his judicial bias claim, so we need not
address prejudice. We affirm the district court’s denial of
Martinez’s judicial bias claim.
II. Ineffective Assistance of Counsel (Judicial Bias)
Martinez argues that the PCR court unreasonably applied
clearly established federal law when it denied his IAC claim
based on trial counsel’s failure to move to disqualify Judge
Hotham for judicial bias. He also contends that his appellate
counsel was ineffective for failing to raise the IAC claim on
direct appeal. We reject both arguments.
To prevail on an IAC claim, the defendant must show
both that counsel’s performance was deficient, and that he
suffered prejudice due to counsel’s deficiency. Strickland v.
Washington, 466 U.S. 668, 687 (1984). On federal habeas
review, “the question is not whether counsel’s actions were
reasonable[,]” but “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).
The Supreme Court has described this standard of review as
“doubly” deferential. Harrington, 562 U.S. at 105.
Martinez’s trial counsel did not perform ineffectively by
not moving for Judge Hotham’s recusal. Martinez’s claim
that Judge Hotham was biased lacks merit, and the “[f]ailure
to raise a meritless argument does not constitute ineffective
assistance.” Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir.
1985).
A judicial bias claim requires facts sufficient to create
actual impropriety or an appearance of impropriety.
Greenway v. Schriro, 653 F.3d 790, 806 (9th Cir. 2011).
Martinez does not point to anything in the record that
MARTINEZ V. RYAN 17
demonstrates actual impropriety by Judge Hotham. He
contends that Judge Hotham’s bailiff’s relationship with
Officer Martin’s widow created an appearance of
impropriety, but that argument is not supported by
precedent. When asked at oral argument for a case in which
a bailiff’s relationship to the victim’s family was found to
have created an appearance of impropriety, Martinez could
not provide an answer. The Supreme Court, for its part, has
recognized an appearance of impropriety in only a few cases
in which the judge had a direct pecuniary interest in the case,
was involved in a controversy with a litigant, or was part of
the accusatory process. See, e.g., Mayberry v. Pennsylvania,
400 U.S. 455, 465–66 (1971) (judge whom the defendant
had insulted presided over contempt proceedings); In re
Murchison, 349 U.S. 133, 137 (1955) (judge acted as both
the grand jury and the trier of the accused); Tumey v. Ohio,
273 U.S. 510, 532–34 (1927) (judge profited from every
defendant he convicted). None of those circumstances
existed here.
At bottom, Martinez’s judicial bias claim is based on
unfounded speculation. He contends that Judge Hotham’s
decision to remove his bailiff from the courtroom during an
expert witness’s testimony “was merely the first public
manifestation as to how deep his bailiff’s feelings ran and
the judge’s sympathy for his bailiff and his concern that the
bailiff’s feelings might spill over inappropriately.” But
Martinez’s fanciful theory of bias cannot “overcome [the]
presumption of honesty and integrity in those serving as
adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975).
As Judge Hotham explained to the parties during trial, he
asked Mills to remain outside the courtroom during an
expert’s testimony solely to prevent any later complaint that
Mills “reacted to the gory photographs in any inappropriate
manner.”
18 MARTINEZ V. RYAN
Because Martinez’s judicial bias claim lacks merit, his
trial counsel did not perform deficiently by not moving for
Judge Hotham’s recusal. See Boag, 769 F.2d at 1344.
Martinez’s claim that his appellate counsel deficiently
performed likewise fails, for “appellate counsel’s failure to
raise issues on direct appeal does not constitute ineffective
assistance when appeal would not have provided grounds for
reversal.” Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir.
2001). We therefore affirm the district court’s denial of
Martinez’s IAC claim.
III. Oscar Fryer Brady Claim
Before the district court, Martinez argued for the first
time that the prosecution violated Brady v. Maryland by
failing to disclose impeachment evidence about Fryer, a
witness for the prosecution. 373 U.S. 83 (1963). The district
court denied the claim because Martinez did not establish
cause and prejudice to overcome the procedural default of
his Brady claim. We agree.
Martinez argues that the prosecution violated its Brady
obligations in two ways. First, he argues that the prosecution
failed to disclose that Fryer was using drugs when he
testified at Martinez’s trial. Second, he argues that the
prosecution withheld evidence of benefits they bestowed on
Fryer in exchange for his testimony against Martinez. He
contends that the withheld evidence establishes cause and
prejudice to overcome the procedural default of his Brady
claim.
Cause and prejudice necessary to overcome the default
of a Brady claim parallel the second and third elements of a
Brady violation. See Banks v. Dretke, 540 U.S. 668, 691
(2004). Those elements are “[(2)] that evidence must have
been suppressed by the State, either willfully or
MARTINEZ V. RYAN 19
inadvertently; and [(3)] prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 282 (1999). Thus, a
petitioner establishes cause when the reason for his failure to
bring a timely Brady claim is the government’s suppression
of the relevant evidence, and establishes prejudice when the
suppressed evidence is material for Brady purposes. Banks,
540 U.S. at 691. Evidence is material “when there is a
reasonable probability that, had the evidence been disclosed,
the result of the proceeding would have been different.”
Cone v. Bell, 556 U.S. 449, 470 (2009).
A. Fryer’s Illegal Drug Use
Martinez’s first argument—that the government
improperly withheld evidence of Fryer’s drug use—relies on
his allegation that Fryer was under the influence of
methamphetamine on the day he testified against Martinez.
That allegation stems from the following facts. On
February 5, 1998, Fryer was charged with illegal drug use in
Gila County, Arizona. On February 23, 1998, Fryer pleaded
guilty to using amphetamine or methamphetamine between
August 18–20 and between November 14–17, 1997. In a
presentence report update filed on March 13, 1998, a
probation officer wrote that Fryer “stated that he ha[d] been
addicted to methamphetamine for at least the past 6 months.
He got to where he was using up to 4 grams of
methamphetamine a day.” That statement, Martinez argues,
demonstrates that Fryer was using methamphetamine on
September 9, 1997—when Fryer testified against Martinez.
We acknowledge that evidence that a witness—
especially one as critical to the prosecution’s case as was
Fryer—“was using drugs during the trial would reflect on his
competence and credibility as a witness.” Benn v. Lambert,
283 F.3d 1040, 1056 (9th Cir. 2002). But Martinez’s Brady
claim fails because he does not demonstrate that the
20 MARTINEZ V. RYAN
prosecution knew, or had a duty to know, of Fryer’s drug use
or his drug convictions before the end of Martinez’s trial.
Brady claims apply in situations that “involve[] the
discovery, after trial of information which had been known
to the prosecution but unknown to the defense.” United
States v. Agurs, 427 U.S. 97, 103 (1976) (emphasis added).
If the prosecution does not discover, or does not have a duty
to discover, certain evidence until after the trial ends, then
there can be no Brady claim against it even if exculpatory
evidence later surfaces. Several circuits have adopted this
commonsense conclusion. See, e.g., United States v.
Barroso, 719 F. App’x 936, 941 (11th Cir. 2018) (no Brady
violation when “there is no evidence the government
possessed that information prior to trial, much less
suppressed it”); United States v. Edwards, No. 97-5113,
1998 WL 172617, at *2 (10th Cir. Apr. 14, 1998) (“The
government’s obligation under Brady cannot apply to
evidence not in existence at the time of the criminal
proceeding.”); United States v. Dimas, 3 F.3d 1015, 1019 n.3
(7th Cir. 1993) (“[L]ater developments in the investigation,
if any, are irrelevant because the question is whether the
result would have changed if the prosecutors disclosed the
evidence at the time [of trial], not whether the outcome
would differ if the case were tried today.”).
We agree. Martinez’s trial ended on September 26,
1997, and Fryer was not charged with drug use until
February 5, 1998. Even assuming Maricopa County
prosecutors had a duty to discover the charges brought
against Fryer by Gila County, that duty did not arise until
after Martinez’s trial. Martinez identifies nothing else in the
record that suggests the prosecution knew of Fryer’s alleged
drug use before the end of Martinez’s trial. Because the
prosecution does not have an obligation under Brady to
MARTINEZ V. RYAN 21
disclose exculpatory evidence it discovers after trial,
Martinez fails to establish cause.
B. Benefits Bestowed on Fryer
Martinez also alleges that the prosecution “withheld
evidence concerning benefits conferred on Fryer.” He
argues that, because Fryer testified against Martinez, he was
not charged for several crimes, including making a false
report to law enforcement, a domestic violence incident, and
possessing drug paraphernalia. Martinez also argues that
Fryer’s testimony caused the prosecution not to seek several
sentencing enhancements against Fryer.
Martinez’s contentions, however, are wholly
speculative. He does not identify any evidence that shows
Fryer was not charged with crimes or that he was otherwise
treated favorably because of his testimony. Instead,
Martinez’s argument relies on the baseless theory that
“[k]eeping Fryer happy prior to Martinez’s capital
sentencing hearing was necessary to prevent any possibility
Fryer might recant his trial testimony.” We require more to
establish a Brady violation. See, e.g., Benn, 283 F.3d
at 1057–58 (evidence that the prosecution’s key witness was
released from jail during the defendant’s trial when he called
the prosecutor); Singh v. Prunty, 142 F.3d 1157, 1162 (9th
Cir. 1998) (evidence of an agreement to provide benefits to
witness).
The only evidence of an agreement that Martinez
identifies is Fryer’s 1997 plea agreement, which required
him “to cooperate with [the] [Maricopa] county attorney’s
office in the prosecution of [Martinez’s] case.” That plea
agreement, however, was disclosed to Martinez and
introduced at his trial. Indeed, Martinez cross-examined
Fryer about the plea agreement and used it to impeach his
22 MARTINEZ V. RYAN
testimony. That evidence, therefore, cannot support a Brady
violation.
Because Martinez has failed to demonstrate that the
prosecution withheld any evidence of benefits conferred on
Fryer in exchange for his testimony against Martinez, he
fails to establish cause to overcome the procedural default of
his Brady claim. Accordingly, we affirm the district court’s
denial of that claim.
IV. Rule 60(b) Motion
After the district court denied Martinez’s habeas petition
and his motion to alter or amend the judgment, but before
Martinez filed his opening brief in this court, Martinez filed
a motion styled “request for indication whether [the] district
court would consider a rule 60(b) motion.” The district court
denied that motion. After we later remanded the case,
Martinez filed a renewed request for indication of whether
the district court would consider a Rule 60(b) motion for
reconsideration. The court denied that motion, and Martinez
appeals.
We lack jurisdiction to review the district court’s denial
of Martinez’s motion. Our decision in Defenders of Wildlife
v. Bernal, 204 F.3d 920 (9th Cir. 2000), is controlling.
There, we stated:
While this appeal was pending Defenders
filed a motion under Federal Rule of Civil
Procedure 60(b) . . . . On September 23,
1998, the district court issued an order
declining to entertain or grant the Rule 60(b)
Motion. A district court order declining to
entertain or grant a Rule 60(b) Motion is a
procedural ruling and not a final
MARTINEZ V. RYAN 23
determination on the merits. Because there is
no final judgment on the merits, the
underlying issues raised by the 60(b) Motion
are not reviewable on appeal.
Bernal, 204 F.3d at 930 (citation omitted).
That is precisely what happened here. The district court
declined to consider Martinez’s Rule 60(b) motion. Because
that order was a procedural ruling, it is not reviewable on
appeal. See Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir.
1984) (“[I]f the district court’s order is construed as a denial
of Scott’s request to ‘entertain’ the motion to vacate, that
denial is interlocutory in nature and not appealable.”). As a
result, we dismiss Martinez’s claim appealing the denial of
his request to consider a Rule 60(b) motion.
V. Jury Instruction on Premeditation
Martinez contends that the court erred in instructing the
jury about what the government needed to establish to
demonstrate that Martinez committed first-degree murder.
In reading the instructions, the court stated, in relevant part:
The crime of first degree murder requires
proof of the following[:] . . . number three,
the defendant acted with premeditation.
“Premeditation” means that the defendant’s
intention or knowledge existed before the
killing long enough to permit reflection;
however, the reflection differs from the intent
or knowledge that conduct will cause death.
It may be as instantaneous as successive
thoughts in the mind, but it must be actual
reflection, and it may be actual reflection, and
it may be proved by direct or [circumstantial]
24 MARTINEZ V. RYAN
evidence. It is this period of reflection
regardless of its length which distinguishes
first degree murder from intentional or
knowing second degree murder. An act is not
done with premeditation if it is the instant
effect of a sudden quarrel or heat of passion.
Martinez contends that the instruction was flawed in two
ways. First, he argues that the instruction was erroneous
under Arizona law because it did not require the jury to find
that Martinez actually reflected before murdering Officer
Martin. Second, he argues that the court’s oral instruction
that premeditation “must be actual reflection, and it may be
actual reflection” was an “ambivalent statement [that]
permitted Martinez’s jury to find the element of
premeditation on less than proof beyond a reasonable
doubt.” We reject both arguments.
When a challenge to jury instructions comes before us in
a habeas petition, “[t]he only question . . . is ‘whether the
ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.’” Estelle v.
McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)). “[T]he instruction . . .
must be considered in the context of the instructions as a
whole and the trial record.” Id. “If the charge as a whole is
ambiguous, the question is whether there is a ‘reasonable
likelihood that the jury has applied the challenged instruction
in a way that violates the Constitution.’” Middleton v.
McNeil, 541 U.S. 433, 437 (2004) (per curiam) (quoting
Estelle, 502 U.S. at 72). A “reasonable likelihood” is lower
than “more likely than not” but higher than a mere
“possibility.” See Boyde v. California, 494 U.S. 370, 380
(1990).
MARTINEZ V. RYAN 25
Martinez relies heavily on State v. Ramirez to support his
first argument, but the facts in that case are distinct.
945 P.2d 376 (Ariz. Ct. App. 1997). There, the
premeditation instruction stated: “[T]he time for reflection
must be longer than the time required merely to form the
knowledge that conduct will cause death. It may be as
instantaneous as successive thoughts in the mind, and it may
be proven by circumstantial evidence.” Id. at 378. The court
held that the instruction erred in two ways. First, it “fail[ed]
to be clear that premeditation requires actual reflection.” Id.
Second, the instruction stated that the time for reflection can
be “‘instantaneous as successive thoughts in the mind’ but
provided no balancing language to the effect that an act
cannot be both impulsive and premeditated.” Id.
Neither of those errors was present in the jury
instructions in this case. Unlike in Ramirez, the court
specifically instructed that premeditation requires “actual
reflection.” And whereas the instruction in Ramirez did not
provide balancing language stating that an act cannot be
impulsive and premeditated, the instruction here did provide
such language: It stated that “[a]n act is not done with
premeditation if it is the instant effect of a sudden quarrel or
heat of passion.” That statement conveyed to the jury that
Martinez could not be found guilty of first-degree murder if
they believed he acted impulsively. Even if we assume that
the jury instructions were somehow erroneous, Martinez is
not entitled to relief, for he has not shown that the
premeditation instruction “so infected the entire trial that the
resulting conviction violate[d] due process.” Cupp, 414 U.S.
at 147.
Martinez’s second argument also falls short. He relies
on the fact that the court erroneously stated that the reflection
required for a finding of premeditation “may be actual
26 MARTINEZ V. RYAN
reflection” after saying that it “must be actual reflection”
when reading the instructions to the jury. Such an oral
hiccup, however, did not violate Martinez’s due process
rights. Before the court read the instructions, the bailiff
distributed copies of the jury instructions to each juror, and
the court told them that they could “read along.” The written
instructions correctly stated that the jury had to find that
Martinez reflected before murdering Officer Martin.
Considering the totality of the circumstances—the jury
possessed copies of the instructions, the court correctly read
the phrase in the instructions (before misreading it), and the
prosecution twice stated during closing arguments that
premeditation requires actual reflection—we conclude that
the court’s oral misstatement did not cause Martinez’s
conviction to violate due process. See Estelle, 502 U.S. at
72. We deny Martinez’s claim challenging the jury
instructions.
VI. Ineffective Assistance of Counsel (Failure to
Retain Pathologist)
In his federal habeas petition, Martinez argued for the
first time that his trial counsel was constitutionally deficient
by failing to retain an independent pathologist to impeach a
prosecution expert’s testimony. The district court denied his
claim because it was procedurally defaulted and Martinez
had not established prejudice to overcome the default.
At trial, Dr. Phillip Keen, the Maricopa County Chief
Medical Examiner, testified about the results of an autopsy
on Officer Martin. He told the jury that, of the shots to
Officer Martin’s hand, back, neck, and head, the shot to his
head was fired last and may have occurred when Officer
Martin was already lying on the ground.
MARTINEZ V. RYAN 27
Martinez argues that, had his counsel retained an
independent pathologist to impeach Dr. Keen’s testimony
about the sequence of shots, the prosecution’s theory of
premeditation would be undermined. Martinez concedes
that his IAC claim is procedurally defaulted, but contends
that he can overcome that procedural default under Martinez
v. Ryan.
In Martinez, the Supreme Court held that where a
petitioner fails to raise an IAC claim in state court, “a
procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial”
if (1) “state law requires prisoners to raise claims of
ineffective assistance of trial counsel ‘in an initial-review
collateral proceeding,’” and (2) “the default results from the
ineffective assistance of the prisoner’s counsel in the
collateral proceeding.” Davila v. Davis, 137 S. Ct. 2058,
2065 (2017) (quoting Martinez, 566 U.S. at 16–17). To
show that his claims are “substantial,” a petitioner must
demonstrate that they have “some merit.” Martinez,
566 U.S. at 14. The parties do not dispute that Arizona law
required Martinez to raise his IAC claim in a collateral
proceeding, so our analysis focuses on whether Martinez’s
PCR counsel was ineffective. Id. at 4. That necessarily
requires us to evaluate the strength of Martinez’s underlying
IAC claim. See Atwood v. Ryan, 870 F.3d 1033, 1060 (9th
Cir. 2017).
Martinez’s trial counsel was not ineffective because,
even if the retention of an expert would have undermined the
prosecution’s theory of premeditation, Martinez was not
prejudiced. There is not a reasonable probability that the
jury would have reached a different verdict had Martinez’s
counsel retained an independent pathologist. There was
28 MARTINEZ V. RYAN
significant evidence in the record supporting a finding that
Martinez acted with premeditation.
Fryer testified that, before the shooting, Martinez told
him he had a warrant out for his arrest. When Martinez
revealed a handgun from underneath his shirt, Fryer asked
Martinez what it was for, to which Martinez responded “for
protection and if shit happens.” When Fryer saw a police car
and asked Martinez what he would do if he was stopped by
the police, Martinez responded that “he wasn’t going back
to jail.” When he was pulled over by Officer Martin,
Martinez was driving a stolen vehicle—a fact which he did
not dispute during trial. These facts all support the
prosecution’s argument that Martinez planned to murder
Officer Martin before he shot him.
Moreover, Dr. Keen’s testimony was relatively weak
evidence of premeditation. The prosecution argued that his
testimony supported a finding that Martinez shot Officer
Martin “when he was down” as a “coup de grace.” But the
only portion of Dr. Keen’s testimony supporting that
assertion was his testimony that he believed Officer Martin’s
“head wound was last.” Dr. Keen qualified that testimony
by stating that it relied on hypothetical possibilities and
assumptions based on the evidence. The jury considered
those qualifications when assessing the reliability of Dr.
Keen’s testimony.
Martinez’s impeachment of Dr. Keen also underscores
our conclusion that Martinez did not suffer prejudice. Upon
questioning by Martinez, Dr. Keen conceded that the
opinions he expressed at trial conflicted with what he had
said during a pretrial interview, in which he stated that “the
head, hand, and neck could have been [shot] at any sequence
with the back being the last shot.” Dr. Keen also admitted
that he had previously concluded that Officer Martin was
MARTINEZ V. RYAN 29
standing when he was shot. Even without the testimony of
an opposing expert, therefore, the veracity and reliability of
Dr. Keen’s testimony was undermined.
Because of the limited value of Dr. Keen’s testimony in
the prosecution’s case for premeditation, and because of the
significant other evidence presented at trial supporting
premeditation, Martinez’s trial counsel’s failure to retain an
independent expert did not prejudice Martinez. Martinez
therefore cannot establish that his PCR counsel was
ineffective for failing to raise the IAC claim. Because
Martinez fails to overcome the procedural default of his IAC
claim, we affirm the district court’s denial of that claim.
VII. Ineffective Assistance of Counsel (Failure to
Rebut the Prosecution’s Expert During
Sentencing)
Martinez also argued, again for the first time in his
habeas petition, that his trial counsel was deficient for a
different reason: He failed to recall an expert at sentencing
to rebut testimony by another expert retained by the
prosecution. He argues that he can establish cause and
prejudice under Martinez v. Ryan to overcome the
procedural default of this claim.
At sentencing, Dr. Susan Parrish, an expert psychologist
retained by Martinez, testified that Martinez’s shooting of
Officer Martin resulted from Martinez’s post-traumatic
stress disorder (PTSD). Dr. Parrish testified that Martinez
demonstrated characteristics commonly “associated with
someone who comes from an environment where there was
a prolonged exposure to violence,” “[i]mpulsivity or failure
to plan,” “[i]rritability and aggressiveness,” and “[r]eckless
disregard for [the] safety of self and others.” Based on her
diagnosis, Dr. Parrish testified that she believed Martinez’s
30 MARTINEZ V. RYAN
actions on the day of the shooting were “really more
reactive.” She testified that Martinez “felt he had no choice”
but to shoot Officer Martin.
In rebuttal, the prosecution presented testimony by Dr.
Michael Bayless, another expert psychologist. Dr. Bayless
disagreed with Dr. Parrish’s diagnosis of PTSD. He testified
that Martinez suffered from antisocial personality disorder,
and thus “understands the rules and regulations. He just
chooses not to abide by them.” Dr. Bayless testified that
Martinez killed Officer Martin “because he didn’t want to go
back to prison.”
Martinez argues that, had his counsel recalled Dr. Parrish
to rebut Dr. Bayless’s testimony, Dr. Parrish could have
established that Martinez was unable to appreciate the
wrongfulness of his conduct or conform his conduct to the
requirements of the law. That evidence would create “a
reasonable probability the Arizona Supreme Court would
have found [a] statutory mitigating factor [pursuant to
A.R.S. § 13-703(G)(1)] and imposed a life sentence,” rather
than affirm Martinez’s death sentence.
Because of the overwhelming evidence introduced at
sentencing that Martinez could appreciate the wrongfulness
of his conduct, we conclude that Martinez does not establish
prejudice, and thus that he cannot overcome the procedural
default of his IAC claim. Even if Martinez’s trial counsel
had recalled Dr. Parrish to refute Dr. Bayless’s testimony,
the sentencing court likely would have concluded that
Martinez had not established the statutory mitigating
circumstance in § 13-703(G)(1).
When sentencing Martinez, the court recognized the
inconsistency between the testimony of Dr. Parrish and Dr.
Bayless. The court determined, however, that “[Martinez]
MARTINEZ V. RYAN 31
killed Officer Martin because he did not want to return to
prison as a result of a probation violation warrant.” The
court recounted several pieces of evidence that supported
such a finding: Martinez told Fryer that he had a warrant out
for his arrest and would not go back to prison; Martinez told
Fryer he had a gun in case something happened; Martinez
took Officer Martin’s service weapon after murdering him;
and Martinez committed another murder shortly after
murdering Officer Martin. As the court explained, “[t]hese
choices belie the notion that the homicide of Officer Martin
was the result of being in a dissociative state or a mere
impulsive reaction.”
Moreover, Dr. Parrish’s rebuttal testimony would not
necessarily have established the statutory mitigating
circumstance, and thus would not have entitled Martinez to
relief. Dr. Parrish’s testimony focused on why Martinez’s
murder of Officer Martin resulted from PTSD. But in
Arizona, “a mere character or personality disorder alone is
insufficient to constitute a mitigating circumstance.” State
v. Brewer, 826 P.2d 783, 802 (Ariz. 1992); see also State v.
Clabourne, 983 P.2d 748, 754 (Ariz. 1999) (“In every case
in which we have found the (G)(1) factor, the mental illness
was ‘not only a substantial mitigating factor . . . but a major
contributing cause of [the defendant’s] conduct that was
“sufficiently substantial” to outweigh the aggravating
factors present.’” (alterations in original) (quoting State v.
Jimenez, 799 P.2d 785, 800 (Ariz. 1990))). Accordingly, the
other evidence in the record was sufficient to support the
sentencing court’s conclusion that Martinez failed to
establish the statutory mitigating circumstance in § 13-
703(G)(1).
Because of the significant evidence introduced at
sentencing establishing that Martinez could appreciate the
32 MARTINEZ V. RYAN
wrongfulness of his conduct and conform his conduct to the
requirements of the law, Martinez was not prejudiced by his
counsel’s failure to recall an expert to rebut the prosecution’s
witness. Martinez’s PCR counsel was therefore not
ineffective for failing to raise that claim. Because Martinez
cannot overcome the procedural default of his IAC claim, we
affirm the district court’s denial of that claim.
VIII. Application of the Causal Nexus Test During
Sentencing
Martinez next argues that the Arizona State Court
applied a “causal nexus” test, in violation of Eddings v.
Oklahoma, 455 U.S. 104 (1982), under which a
circumstance is not mitigating unless causally connected to
the commission of the crime. He contends that the court’s
failure to consider his family history as a mitigating
circumstance was an unreasonable application of clearly
established federal law.
The Supreme Court has held that “a State [cannot],
consistent with the Eighth and Fourteenth Amendments,
prevent the sentencer from considering and giving effect to
evidence relevant to the defendant’s background or character
or to the circumstances of the offense that mitigate against
imposing the death penalty.” Penry v. Lynaugh, 492 U.S.
302, 318 (1989), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304 (2002); see also Eddings, 455 U.S.
at 113; Lockett v. Ohio, 438 U.S. 586, 606–08 (1978). “[I]t
is not enough simply to allow the defendant to present
mitigating evidence to the sentencer. The sentencer must
also be able to consider and give effect to that evidence in
imposing sentence.” Penry, 492 U.S. at 319.
As a result, a sentencing court may not treat mitigating
evidence of a defendant’s background or character as
MARTINEZ V. RYAN 33
“irrelevant or nonmitigating as a matter of law” just because
it lacks a causal connection to the crime. Towery v. Ryan,
673 F.3d 933, 946 (9th Cir. 2012), overruled on other
grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015)
(en banc). The sentencer may, however, consider “causal
nexus . . . as a factor in determining the weight or
significance of mitigating evidence.” Lopez v. Ryan,
630 F.3d 1198, 1204 (9th Cir. 2011), overruled on other
grounds by McKinney, 813 F.3d 798. “[T]he use of the
nexus test in this manner is not unconstitutional because
state courts are free to assess the weight to be given to
particular mitigating evidence.” Schad v. Ryan, 671 F.3d
708, 723 (9th Cir. 2011), overruled on other grounds by
McKinney, 813 F.3d 798. As the Court explained in
Eddings:
Just as the State may not by statute preclude
the sentencer from considering any
mitigating factor, neither may the sentencer
refuse to consider, as a matter of law, any
relevant mitigating evidence. . . . The
sentencer, and the Court of Criminal Appeals
on review, may determine the weight to be
given relevant mitigating evidence. But they
may not give it no weight by excluding such
evidence from their consideration.
455 U.S. at 113–15.
These principles bear on Martinez’s case. In McKinney,
we held that “[f]or a little over fifteen years [beginning in the
late 1980s], the Arizona Supreme Court routinely articulated
34 MARTINEZ V. RYAN
and insisted on [an] unconstitutional causal nexus test.”3
813 F.3d at 815. Under this test, “[a]s a matter of law, a
difficult family background or mental condition did not
qualify as a nonstatutory mitigating factor unless it had a
causal effect on the defendant’s behavior in committing the
crime at issue.” Id. at 816. The Arizona Supreme Court
“finally abandoned its unconstitutional causal nexus test for
nonstatutory mitigation” in the mid-2000s. Id. at 817.
McKinney included a string cite of cases in which the
Arizona Supreme Court had applied its unconstitutional
causal nexus test, which included Martinez’s case. Id.
at 816.
Here, the Arizona Supreme Court stated:
The trial court found that Martinez’[s] family
background qualified as a non-statutory
mitigating factor, but did not give it
substantial weight . . .
Although Dr. Parrish testified that Martinez
adopted a “survival” state of mind due to his
violent upbringing, this did not affect his
conduct on August 15, 1995. There is simply
no nexus between Martinez’[s] family history
and his actions on the Beeline Highway. His
family history, though regrettable, is not
entitled to weight as a non-statutory
mitigating factor.
3
“We did not say, however, that [the Arizona Supreme Court]
always applied it.” Greenway v. Ryan, 866 F.3d 1094, 1095 (9th Cir.
2017) (per curiam).
MARTINEZ V. RYAN 35
The court’s analysis demonstrates that it applied an
unconstitutional causal nexus test to Martinez’s family
history. Because it concluded that there was “no nexus
between Martinez’[s] family history and his actions on the
Beeline Highway,” it granted it no weight. Under Eddings,
that is erroneous. See Penry, 492 U.S. at 318.
Having concluded that AEDPA is satisfied, we review
Martinez’s claim de novo. See Frantz v. Hazey, 533 F.3d
724, 735 (9th Cir. 2008) (en banc). Martinez has established
a Constitutional violation, so our analysis focuses on
whether Martinez was prejudiced. See Poyson v. Ryan,
879 F.3d 875, 891 (9th Cir. 2018).
Martinez can establish prejudice if the court’s error “had
[a] substantial and injurious effect or influence” on the
challenged decision. See Brecht v. Abrahamson, 507 U.S.
619, 631 (1993) (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)). He is not entitled to relief,
however, unless he can establish that the error “resulted in
‘actual prejudice.’” Davis v. Ayala, 135 S. Ct. 2187, 2197
(2015) (quoting Brecht, 507 U.S. at 637); see also
McKinney, 813 F.3d at 822.
We determine that Martinez was not prejudiced by the
court’s constitutional error. Several considerations lead us
to that conclusion.
First, the Arizona Supreme Court considered Martinez’s
family history in its analysis of another mitigating factor:
impaired capacity. In that section of its opinion, the court
recounted Martinez’s “violent childhood,” which included
“Martinez and his sister, Julia, both suffer[ing] physical
abuse at the hands of their father. . . . To protect himself,
Martinez began sleeping with a knife.” The court also
recounted Dr. Parrish’s testimony that, on the day he was
36 MARTINEZ V. RYAN
stopped by Officer Martin, “Martinez probably thought, ‘I’m
not going back to prison. This man intends to put me in
prison. It’s me or him [sic].’” Accordingly, the court appears
to have considered the family history evidence Martinez
argues they should have considered—albeit in the context of
a different mitigating circumstance—and decided not to
assign that family history great weight. Such a conclusion
did not violate the Constitution. See Hedlund v. Ryan,
854 F.3d 557, 587 n.23 (9th Cir. 2017) (stating that, under
Eddings, “a court is free to assign less weight to mitigating
factors that did not influence a defendant’s conduct at the
time of the crime”); Styers v. Ryan, 811 F.3d 292, 298–99
(9th Cir. 2015) (holding that the Arizona Supreme Court did
not violate Eddings in assigning little weight to the
petitioner’s PTSD when it lacked a causal connection to the
crime).
Second, although we review the Arizona Supreme
Court’s decision, the sentencing court’s analysis is
instructive. 4 There, the court “considered family history,”
but concluded that it should “not [be] given substantial
weight.” The sentencing court reasoned that “the domestic
violence and parental drug abuse ended 7 or 8 years before
the murder when [Martinez’s] father became very religious
. . . . [Martinez’s] mother testified that the parental drug
4
The last reasoned state court decision addressing Martinez’s causal
nexus claim is the Arizona Supreme Court’s decision affirming
Martinez’s death sentence on direct appeal. See Crittenden v. Ayers,
624 F.3d 943, 950 (9th Cir. 2010). “We look to the decision of the
sentencing judge only to the degree it was adopted or substantially
incorporated by the Arizona Supreme Court.” McKinney, 813 F.3d
at 819. Because the Arizona Supreme Court reviewed Martinez’s
sentence de novo and does not appear to have adopted the sentencing
judge’s reasoning, we review only the Arizona Supreme Court’s
decision.
MARTINEZ V. RYAN 37
abuse was kept from the children and that it ended when they
moved to Globe.” This analysis illustrates how an objective
factfinder would have ruled had the Arizona Supreme Court
not committed an Eddings error. See Kayer v. Ryan,
923 F.3d 692, 724 (9th Cir. 2019). Because Martinez’s
violent family history was far removed from the murder, we
conclude that the court would have accorded it little weight
as a mitigating circumstance.
Third, this case is distinct from other cases in which we
have found prejudice. In Poyson v. Ryan, for example, the
Arizona Supreme Court “improperly disregarded evidence
concern[ing] the defendant’s traumatic childhood and
mental health issues.” 879 F.3d at 892. We found that
evidence—that the defendant had “suffered a number of
physical and developmental problems as a child,” was
“involuntarily intoxicated as a young child,” was “lured to
the home of a childhood friend and violently raped,” and had
survived the suicide of “the one true father figure” he had—
“particularly compelling.” Id. at 892–93. The evidence of
Martinez’s family history, although unfortunate, is not so
grim. Martinez does not claim to have suffered from mental
health issues and endured significantly less frequent and
severe physical abuse as a child.
Our decision in Spreitz v. Ryan is also distinct. 916 F.3d
1262 (9th Cir. 2019). There, we found prejudice when the
court disregarded “evidence regarding [the defendant’s]
history of alcohol and substance abuse—spanning nearly
half his life by the time when he committed the crime at the
age twenty-two.” Id. at 1279. Critically, we stated that the
mitigating evidence was “linked to his emotional
immaturity, another nonstatutory mitigating circumstance
recognized by the Arizona Supreme Court but described as
not ‘significant.’” Id. at 1280 (quoting State v. Spreitz,
38 MARTINEZ V. RYAN
945 P.2d 1260, 1281 (Ariz. 1997)). The court’s erroneous
application of the unconstitutional nexus standard therefore
“minimized the value of other mitigating evidence as well.”
Id. at 1281.
Not so here. As we have already noted, the court
recounted and considered Martinez’s family when
considering other mitigating factors. Martinez’s family
history bore no connection to his age, the other statutory
mitigating factor considered by the Arizona Supreme Court.
Unlike Spreitz, therefore, the Arizona Supreme Court was
not “left with a critical void in [Martinez’s] narrative”
because of its nexus rule; it considered Martinez’s family
history in other contexts and granted it little weight. Id.
at 1281.
We also note that this case involves an aggravating factor
absent from cases in which we have found Eddings error:
The murder of an on-duty peace officer. See A.R.S. § 13-
703(F)(10). That factor, as the sentencing court noted,
“carries significant weight. The unprovoked murder of a
peace officer, so the defendant can avoid his obligation
under the law, is really no less than a personal declaration of
war against a civilized society.” The substantial weight of
that aggravating factor leads us to believe that Martinez’s
family history, had it been considered a mitigating factor,
would not have affected his death sentence.
Because Martinez cannot demonstrate that the Eddings
error had a substantial and injurious effect on his sentence,
he cannot establish prejudice. Accordingly, Martinez is not
entitled to relief.
MARTINEZ V. RYAN 39
IX. Expansion of the Certificate of Appealability
Martinez asks us to issue a COA as to one Brady claim
that the district court declined to certify. We may not issue
a COA unless the applicant “make[s] a substantial showing
of the denial of a constitutional right, a demonstration that
. . . includes showing that reasonable jurists could debate
whether . . . the petition should have been resolved in a
different manner or that the issues presented were ‘adequate
to deserve encouragement to proceed further.’” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)). Because Martinez’s
Brady claim relates to evidence of premeditation, and
because we conclude that overwhelming evidence supported
the prosecution’s theory of premeditation, we decline to
issue a COA.
X. Motion to Stay Appeal and Remand for
Consideration of Brady Claim
Having concluded that Martinez is not entitled to habeas
relief, we turn to his motion to remand. Martinez argues that
remand is warranted so the district court can consider “a red
[w]eekly [p]lanner belonging to, and annotated by, Mario
Hernandez, a prosecution witness at Martinez’s . . . trial.”
He contends that the planner, which Martinez discovered
after it was introduced into evidence during his separate
murder trial in California, demonstrates “that Hernandez
learned of Martinez’s arrest for the homicide of Officer
Martin from watching television news at 2:30 a.m. on
August 17, 1995 . . . rather than from a phone call Hernandez
purportedly answered from Martinez earlier that morning.”
Martinez argues that the planner would have impeached
Hernandez’s testimony that he answered a call from
Martinez earlier that morning in which Hernandez said he
“got busted for blasting a jura.” He concedes that “there was
40 MARTINEZ V. RYAN
little question at the Arizona trial as to whether Martinez was
responsible for the officer’s death,” and argues only that the
planner would have proven a lack of premeditation.
We decline to remand because, even if the prosecution
failed to disclose the planner to Martinez, the withheld
evidence did not prejudice Martinez. As we have concluded,
overwhelming evidence supported the prosecution’s
argument that Martinez acted with premeditation.
Other considerations also support our decision to deny
Martinez’s motion to remand. Martinez argues that
introduction of the planner would have demonstrated that he
did not call Hernandez after the murder, but Martinez
introduced other evidence at trial to support that same
argument. Martinez summarized that evidence during his
closing argument: “[T]here is a problem with what
[Hernandez and Moreno] claim[] to have heard Mr. Martinez
say in a telephone call.” Martinez told the jury that, although
he allegedly called Hernandez around 1:00 a.m., “[w]e know
from several witnesses that at 1:00 o’clock Mr. Martinez is
still at the Indio County jail, and he’s in an interview room
there somewhere.” He asked the jury “if [it] makes any
sense at all that [the police] would give [] Martinez a
telephone without any supervision at all . . . . isn’t it a
reasonable inference . . . that some officer would have
overheard what was being said?” Martinez also argued that
Moreno, who testified about the call during Martinez’s trial,
had “a motive to lie” and “a motive to want to hurt []
Martinez.” Admission of the journal may have helped
Martinez further undermine the evidence of his phone call,
but it wouldn’t have added much.
That is so because the journal is weak impeachment
evidence of the testimony that Martinez called Hernandez
after Officer Martin’s murder. Even if Hernandez’s journal
MARTINEZ V. RYAN 41
entry is accurate and he learned of Martinez’s arrest on the
television news at 2:30 a.m., that doesn’t necessarily mean
Martinez didn’t call him in the early morning hours after the
murder. Perhaps Hernandez was simply mistaken about the
time of the call—indeed, during trial, Hernandez testified
that he referred to Martinez’s arrest on television while
speaking to Martinez, suggesting that he found out about
Hernandez’s arrest from television. Or perhaps the journal
entry demonstrates that Hernandez saw Martinez’s arrest on
television after speaking to Martinez by phone. In short, the
value of the journal as impeachment evidence isn’t nearly as
probative as Martinez makes it out to be.
For these reasons, Martinez cannot establish that the
planner was material evidence. We decline to remand.
CONCLUSION
We AFFIRM the district court’s denial of a writ of
habeas corpus as to Martinez’s claims relating to his first-
degree murder conviction and death sentence and DISMISS
for lack of jurisdiction Martinez’s claim that the court erred
in denying his request to consider a Rule 60(b) motion. We
DECLINE to expand the COA. We also DENY Martinez’s
motion to stay the appeal and remand for consideration of
another Brady claim.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6383
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHILLIP AUBREY IRVING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:04-cr-00078-jct)
Submitted: September 29, 2006 Decided: December 20, 2006
Before MICHAEL and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Phillip Aubrey Irving, Appellant Pro Se. Edward Albert Lustig,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Aubrey Irving seeks to appeal the district
court’s order denying his motion for specific performance in his
criminal case. In criminal cases, the defendant must file the
notice of appeal within ten days after the entry of the order being
appealed. Fed. R. App. P. 4(b)(1)(A)(i). With or without a
motion, upon a showing of excusable neglect or good cause, the
district court may grant an extension of up to thirty days to file
a notice of appeal. Fed. R. App. P. 4(b)(4); United States v.
Reyes, 759 F.2d 351, 353 (4th Cir. 1985).
The district court entered its order on December 16,
2005. The notice of appeal was filed on February 9, 2006. Because
Irving failed to file a timely notice of appeal or to obtain an
extension of the appeal period, we dismiss the appeal. We deny as
moot Irving’s motion to expedite this appeal. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
- 2 -
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J. A15026/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HILDA CID, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ERIE INSURANCE GROUP A/K/A :
ERIE INSURANCE EXCHANGE A/K/A :
ERIE INSURANCE COMPANY, :
:
Appellee : No. 3041 EDA 2015
Appeal from the Order Entered August 21, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: No. 1874 – June Term, 2015
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 20, 2016
Appellant, Hilda Cid, appeals from the Order of the Court of Common
Pleas of Philadelphia County sustaining the Preliminary Objections of
Appellee, Erie Insurance Exchange (“Erie”), to venue and transferring this
matter to Montgomery County. After careful review, we reverse.
The facts, as summarized by this Court in disposing of Appellant’s first
appeal, are as follows:
Hilda Cid, an Erie insured, sustained injuries in two automobile
collisions in May 2005 and March 2006. On November 15, 2011,
she filed a petition to appoint a third/neutral arbitrator and
compel UIM arbitration in Philadelphia County. Erie filed an
answer to the petition arguing, inter alia, that according to the
insurance policy, proper venue lay in Montgomery County, the
county of residence of the named insured at the time of the
J. A15026/16
accident.[1] On November 29, 2011, Ms. Cid inexplicably filed a
second, identical petition to compel arbitration at the same
number, together with an affidavit showing service upon Erie by
certified mail. On December 8, 2011, Erie filed preliminary
objections to this second petition challenging venue and service
of process. On January 3, 2012, the court ordered Erie to file a
copy of the insurance policy and specifically reference the venue
provision to enable the court to make a preliminary
determination. Erie complied, and on January 18, 2012, the trial
court sustained Erie’s preliminary objections to venue and
dismissed the petition without prejudice for Ms. Cid to file a
similar petition in the proper venue, Montgomery County.
Cid v. Erie Ins. Group, 63 A.3d 787, 788-89 (Pa. Super. 2013).
The trial court granted reconsideration, and ultimately again sustained
the Preliminary Objections. Appellant appealed; this Court affirmed and the
Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of
Appeal. Id., appeal denied, 77 A.3d 1258 (Pa. 2013). That matter is
pending in Montgomery County.2
On July 15, 2015, Appellant filed a Complaint in Philadelphia County
alleging breach of contract, fraud, bad faith, abuse of process, and civil
1
The Policy Endorsement pertaining to UM/UIM coverage provides, in
relevant part, that any disagreements over “the amount of damages[] shall
be settled by arbitration.” See Policy, UM/UIM Coverage Endorsement at 4.
The Policy further provides that “[u]nless the parties agree otherwise, the
arbitration will take place in the county and state of your legal domicile at
the time of the accident, and will follow the local rules of procedure and
evidence.” Id. (emphasis in original).
2
On March 22, 2012, the Montgomery County Court of Common Pleas
granted Petitions for the appointment of a third arbitrator and to compel
arbitration. See Appellee’s Supplemental Reproduced Record at 100b
(Docket Entries to Case #2011-32290). Neither party indicates whether
arbitration proceedings have ever commenced.
-2-
J. A15026/16
conspiracy stemming from Erie’s handling of her claims for benefits under
the policy for her injuries suffered in the two motor vehicle accidents. Erie
filed Preliminary Objections, again asserting improper forum based on the
same forum selection clause of the Policy pertaining to arbitration of UM/UIM
disputes. Appellant responded that venue was proper in Philadelphia County
because Erie transacts substantial business in Philadelphia County, and “the
referenced venue clause applies only to the arbitration of [UM/UIM] claims
and not to extracontractual claims such as those set forth in the present
complaint.” Appellant’s Brief at 9; Appellant’s Answer to Preliminary
Objections, filed 7/21/15, at 3.
On August 21, 2015, the trial court sustained Erie’s Preliminary
Objections and ordered that the matter be transferred to Montgomery
County. The trial court stated that all of the issues raised in the Complaint
“necessitate[] a finding of whether [Appellant] is [e]ntitled to [UM/UIM]
benefits under the Policy.” Trial Court Opinion, filed 11/13/15, at 6. On
September 21, 2015, Appellant filed a Notice of Appeal.
Appellant presents one issue for our review:
Whether the trial court erred and abused its discretion in
transferring venue of this bad faith action to Montgomery County
on the basis of the uninsured/underinsured motorist claim forum
selection clause allegedly contained within [A]ppellant’s policy of
insurance?
Appellant’s Brief at 3.
-3-
J. A15026/16
Our standard of review is well-settled. “Generally, this Court reviews a
trial court order sustaining preliminary objections based upon improper
venue for an abuse of discretion or legal error.” Autochoice Unlimited,
Inc. v. Avangard Auto Fin., Inc., 9 A.3d 1207, 1211 (Pa. Super. 2010)
(quotation and citation omitted).
Instantly, the issue involves the enforceability of a contract provision
and, thus, raises a question of law. Id. “Since the sole issue involves a
question of law, we exercise plenary review over the trial court’s decision.”
Id. (quotation and citation omitted). “When the language of the policy is
clear and unambiguous, we must give effect to that language.” Donegal
Mut. Ins. Co. v. Baumhammers, 938 A.2d 286, 290 (Pa. 2007) (quotation
and citation omitted). “However, when a provision in the policy is
ambiguous, the policy is to be construed in favor of the insured to further
the contract[’]s prime purpose of indemnification and against the insurer, as
the insurer drafts the policy and controls coverage.” Id. (quotation and
citation omitted).
Appellant first avers that “it was never proved in the trial court that
the specimen policy offered by Erie, which contained the forum selection
clause, was the policy sold to [A]ppellant. Erie therefore failed to prove that
there was even a forum selection clause at issue in this litigation.”
Appellant’s Brief at 8. Appellant failed to raise this claim before the trial
court and raises it for the first time on appeal. Therefore, this argument is
-4-
J. A15026/16
waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”).3
Appellant next avers that the forum selection clause relied upon by the
trial court is inapplicable because it applies only to claims pertaining to
UM/UIM coverage. Appellant asserts that “[n]othing in the clause extended
its application to derivative tort actions arising from Erie’s handling of UM
and UIM claims.” Appellant’s Brief at 7. For the reasons discussed below,
we agree.
The Policy Endorsement pertaining to UM/UIM coverage and arbitration
provides that the following disagreements shall be settled by arbitration:
1. whether or not anyone we protect is legally entitled to
recover damages from the owner or operator of an
uninsured motor vehicle or underinsured motor vehicle;
or
2. The amount of damages;
Policy, UM/UIM Coverage Endorsement at 4 (emphasis in original).
The venue provision states:
Unless the parties agree otherwise, the arbitration will take place
in the county and state of your legal domicile at the time of the
accident, and will follow the local rules of procedure and
evidence.
Id. (emphasis in original).
3
Appellant also failed to set out where this argument was raised or
preserved in her brief, as required by our Rules of Appellate Procedure. See
Pa.R.A.P. 2117(c) (“Statement of place of raising or preservation of issues”);
Pa.R.A.P. 2119(e) (same).
-5-
J. A15026/16
With respect to claims raising issues other than UM/UIM coverage, the
Policy Endorsement provides that “all other disagreements shall be decided
by a court of competent jurisdiction and not by arbitration[,]” including but
not limited to:
1. stacking;
2. residency;
3. statutes of limitations;
4. whether or not a claimant is a person we protect under
this endorsement;
5. the validity of coverage selections or waivers executed
pursuant to the Pennsylvania Motor Vehicle Financial
Responsibility Law;
6. our rights and duties or your rights and duties under this
policy;
7. the interpretation of defined terms, the insuring
agreement, exclusions, the limits of protection, the trust
agreement, this arbitration clause, or any other of the
policy’s terms and conditions; or
8. the degree to which either party is bound by a decision
made by an arbitration panel which a party claims is
outside the scope of the arbitration.
Id. (emphasis in original).
In sustaining Erie’s Preliminary Objections, the trial court opined that
all of the issues Appellant raised in her Complaint were dependent “on a
finding of whether she is entitled to UM/UIM benefits under the Policy.” Trial
Court Opinion, filed 11/13/15, at 6. We disagree.
In the Complaint, Appellant alleged breach of contract, bad faith,
fraud, civil conspiracy, and abuse of process, each grounded in an averment
that Erie has put up numerous roadblocks, “whether proper or not, to
prevent, delay or limit [Appellant’s] recovery for the injuries, damages and
-6-
J. A15026/16
losses that she has suffered from the injuries caused by these two
collisions.” Complaint, ¶ 10. These causes of action do not pertain to
whether Appellant “is legally entitled to recover damages from the owner or
operator of an uninsured motor vehicle or underinsured motor vehicle.”
Policy, UM/UIM Coverage Endorsement at 4. Rather, the allegations in the
Complaint essentially derive from disagreements as to the parties’ “rights
and duties … under [the] policy” and allegations of bad faith. Id. Pursuant
to the unambiguous and clear policy language to which we must give effect,
these “disagreements shall be decided by a court of competent jurisdiction
and not by arbitration[.]” Id.; see Donegal, supra. The trial court, thus,
erred in granting the preliminary objection and transferring the case to
Montgomery County on the basis of forum selection directed in the
arbitration clause of the policy.
Moreover, the trial court erred as a matter of law in concluding that
each of the claims depends on the outcome of the UM/UIM arbitration
proceeding in Montgomery County.
In her Complaint, Appellant grounded each cause of action in an
allegation that Erie has acted in bad faith. See, e.g., Complaint at ¶ 6 (Erie
“failed and refused … to fulfill their obligations to … their insured”); ¶ 7 (Erie
has “done everything in their power to delay the plaintiff’s claims, frustrate
the plaintiff’s claims, and or take actions or inactions as they attempt to limit
the plaintiff’s recovery, some proper and others that are not”); ¶ 8 (Erie has
-7-
J. A15026/16
“failed and refused to negotiate … in good faith”); ¶ 10 (Erie “[has] done or
will do almost anything, whether proper or not, to prevent, delay or limit the
plaintiff’s recovery” under the policy); ¶ 25 (the “behavior of [Erie] in
refusing to pay benefits to plaintiff[] is a blatant breach of the fiduciary
obligations owed by [Erie] to plaintiff[] and is outrageous conduct intolerable
in a civilized society.”).
This Court has held that bad faith claims are “neither related to nor
dependent on the underlying contract claim against the insurer[,]” and an
insured is “not required to wait until the merits of the contract claim [are]
decided to file suit for bad faith.” Adamski v. Allstate Ins. Co., 738 A.2d
1033, 1039 n.5 (Pa. Super. 1999) (discussing 42 Pa.C.S. § 8371, entitled
“Actions on insurance policies.”); see also March v. Paradise Mut. Ins.
Co., 646 A.2d 1254, 1256 (Pa. Super. 1994) (reiterating that bad faith
“claims under section 8371 are separate and distinct causes of action and []
the language of section 8371 does not indicate that success on the contract
claim is a prerequisite to success on the bad faith claim”).
In support of its decision to transfer this matter to Montgomery
County, the trial court relied on O’Hara v. First Liberty Ins. Corp., 984
A.2d 938 (Pa. Super. 2009). In O’Hara, this Court upheld the applicability
of a forum selection clause in an underinsured motorist insurance policy that
limited suits to courts in the county and state of the named insured’s legal
domicile at the time of the accident. That policy stated, “You must comply
-8-
J. A15026/16
with the terms of the policy before you may sue us. Suit must be brought in
a court of competent jurisdiction in the county and state of your legal
domicile at the time of the accident.” Id. at 941.
The trial court’s reliance on O’Hara is misplaced. That broader
insurance policy language extended to all lawsuits against the insurance
company First Liberty. Id. at 941. Here, the policy language is not as broad
and does not explicitly address Appellant’s derivative claims at issue.
Moreover, the instant policy language only limits arbitration to Appellant’s
legal domicile at the time of the accident. It does not speak to derivative
lawsuits. Accordingly, O’Hara is readily distinguishable on its facts.
Based on the foregoing, we conclude the trial court erred as a matter
of law in sustaining Erie’s Preliminary Objection. Accordingly, we reverse.
Order reversed. Case remanded for further proceedings consistent
with this Opinion. Jurisdiction relinquished.
PJE Ford Elliott joins the memorandum.
Judge Jenkins files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2016
-9-
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776 F.2d 1052
Adamickv.Hodel
84-1894
United States Court of Appeals,Ninth Circuit.
10/2/85
1
D.Nev.
AFFIRMED
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5 Ill. App.3d 604 (1972)
283 N.E.2d 716
BERNARD W. SPRINGMAN et al., Plaintiffs-Appellees,
v.
PACIFIC INSURANCE COMPANY OF NEW YORK, Defendant-Appellant.
No. 70-129.
Illinois Appellate Court Fifth District.
May 5, 1972.
Hoagland, Maucker, Bernard & Almeter, of Alton, (James K. Almeter, of counsel,) for appellant.
Schlafly, Godfrey & Fitzgerald, of Alton, (R. Emmett Fitzgerald, of counsel,) for appellees.
Reversed and remanded.
Mr. PRESIDING JUSTICE GEORGE J. MORAN delivered the opinion of the court:
Defendant appeals from a judgment of the Circuit Court of Madison County in favor of the plaintiffs in the amount of $1228.98.
The plaintiffs brought this action upon a homeowner's insurance policy, issued by the defendant, to recover damages for loss of unscheduled *605 personal property by theft. The policy of insurance was purchased by the plaintiffs, Bernard W. Springman and Harriett D. Springman, from the defendant, Pacific Insurance Company, for a period January 24, 1965 to January 24, 1968. The plaintiffs lived in a home in Alton, Illinois, and also owned a seasonal dwelling which was located near Shipman, Illinois. In January and again in April of 1967, the plaintiffs discovered that certain items of personal property had been taken from the seasonal dwelling.
This suit was to recover the fair market value of the stolen property. The case was heard before the court without a jury. One of the plaintiffs, Mr. Springman, testified that he and his family regularly spent almost every weekend at the seasonal dwelling from early spring through late fall, and were also these occasionally during the winter months. The briefs and record did not indicate that there was any testimony that this dwelling was occupied by the plaintiffs or others, temporarily or otherwise, at the time of the thefts.
The sole issue in this appeal is whether the policy of insurance insured against the losses by theft from the seasonal dwelling.
Theft of unscheduled personal property is provided for in Coverage C of the policy which provides coverage in two different respects: First, for property on the insured premises, and secondly, for property away from the insured premises. Although the seasonal dwelling located near Shipman had liability insurance under another portion of the policy, the only specified residence insured against theft of personal property was the Alton residence. Accordingly, for the plaintiffs to recover it must be shown that there was coverage under the terms of the policy pertaining to personal property away from the Alton insured premises. The pertinent portion of the policy provides:
"DESCRIPTION OF PROPERTY AND INTEREST COVERED
Coverage C Unscheduled Personal Property.
* * *
2. Away from premises: This policy also covers unscheduled personal property as described and limited, while elsewhere than on the premises, anywhere in the world, owned, worn or used by an Insured, or at the option of the Named Insured, owned by a guest while in a temporary residence of, and occupied by an Insured or owned by a residence employee while actually engaged in the service of an Insured and while such property is in the physical custody of such residence employee or in a residence temporarily occupied by an Insured. Property pertaining to a business is not covered.
The limit of this Company's liability for such property while away *606 from premises shall be an additional amount of insurance equal to 10% of the amount specified for Coverage C, but in no event less than $1,000.
* * *
PERILS INSURED AGAINST.
This policy insures under Section 1 against direct loss to the property covered (and additional living expense resulting from such loss or loss to the building containing the property covered) by the following perils as defined and limited herein:
* * *
Exclusions applicable to property away from described premises: This policy does not apply as respects this peril to loss away from the premises of: (a) property while in any dwelling or premises thereof, owned, rented or occupied by an Insured, except while an Insured is temporarily residing therein; * * *."
Although the plaintiffs did frequent the seasonal dwelling during the spring and summer months, there was no evidence to indicate that they were temporarily residing at the dwelling at the time of the loss. It is not necessary that an insured never absent himself from the premises in order to remain a resident thereof. Nevertheless, it is necessary that there be some showing that the insured was temporarily residing at the seasonal dwelling when the loss occurred. (Reiner v. St. Paul Fire & Marine Insurance Co., 106 Ill. App.2d 210, 245 N.E.2d 655.) Accordingly, it is our opinion that the plaintiff has failed to prove loss within the provisions of the policy.
For the foregoing reasons the judgment of the Circuit Court of Madison County is reversed and remanded with instructions to enter judgment in favor of the defendant, Pacific Insurance Company.
Reversed and remanded with directions.
EBERSPACHER and CREBS, JJ., concur.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
EPIFANIO CORTEZ,)
No. 08-02-00320-CR
)
Appellant,)
Appeal from
)
v.)
County Court at Law No. 1
)
THE STATE OF TEXAS,)
of El Paso County, Texas
)
Appellee.)
(TC# 20000C16351)
MEMORANDUM OPINION
Epifanio Cortez appeals his conviction for driving while intoxicated. A jury found Appellant
guilty, and the court assessed punishment at a fine of $2,000, probated for $500, together with
confinement in the county jail for one year, probated for two years, plus ten days in jail to be served
on weekends. We affirm.
Following his conviction, Appellant filed a notice of appeal but failed to make financial
arrangements to pay for the reporter's record. We directed the trial court to conduct a hearing to
determine whether Appellant desired to prosecute his appeal and whether he had retained counsel,
was entitled to court-appointed counsel, or wanted to continue pro se. The trial judge found that
Appellant was not entitled to court-appointed counsel or a record at county expense and that he
appeared to want to continue his appeal. Consequently, we entered an order that the appeal be
submitted on the clerk's record alone. See Tex.R.App.P. 37.3(c). Appellant has not favored us with
a brief. In the interest of justice, we have reviewed the entire record, but have found no fundamental
error. See Lott v. State, 874 S.W.2d 687 (Tex.Crim.App. 1994). Accordingly, the judgment of the
trial court is affirmed.
February 12, 2004
ANN CRAWFORD McCLURE, Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3492
PART-TIME FACULTY ASSOCIATION AT COLUMBIA COLLEGE
CHICAGO,
Plaintiff-Appellant,
v.
COLUMBIA COLLEGE CHICAGO,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-513 — John J. Tharp, Jr., Judge.
____________________
ARGUED MAY 31, 2018 — DECIDED JUNE 15, 2018
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. This case involves a labor dispute be-
tween Columbia College Chicago (“CCC” or “the College”)
and one of its employee unions, the Part-Time Faculty Asso-
ciation at Columbia College Chicago (“PFAC”), over the rep-
resentation of full-time staff members who also teach part-
time. A Regional Director (“the Director”) of the National La-
bor Relations Board (“NLRB” or “the Board”) ruled that such
2 No. 17-3492
employees were included in PFAC’s bargaining unit for the
purposes of their part-time faculty duties. An independent ar-
bitrator disagreed. After PFAC filed a federal suit to confirm
the arbitration, the district court gave precedence to the Di-
rector’s decision and vacated the award. We affirm.
I. Background
A. Factual Background
CCC operates a private university in Chicago that focuses
on the arts and media. It employs approximately 220 full-time
faculty, 1,000 part-time faculty, and 700 staff (350 full-time
and 350 part-time). PFAC represents part-time faculty for the
purposes of collective bargaining. A separate union, the
United Staff of Columbia College (“USCC”), represents both
full- and part-time staff members. 1 This case involves a dis-
pute over the collective bargaining representation of a unique
hybrid category of approximately 50 to 75 employees who
work as both full-time staff and part-time faculty, referred to
as “Full Time Staff Who Teach” (“FTST”).
The record is divided as to whether, prior to 2015, it was
informally understood that PFAC represented FTST in their
capacity as part-time faculty. On one hand, at the time of
PFAC’s original certification in 1998, it sent a written invita-
tion to all part-time faculty, including FTST, to become union
members. Following PFAC’s certification, CCC also applied
the union’s wage scale and other contractual benefits (such as
tuition remission and sick and personal leave) to both exclu-
sive part-time faculty and FTST. Additionally, PFAC’s former
1 PFAC and USCC used to share the same parent union, the Illinois
Education Association (“IEA”). However, in 2015 PFAC transferred its af-
filiation from IEA to the Service Employees International Union (“SEIU”).
No. 17-3492 3
president and lead negotiator for its first three collective bar-
gaining agreements considered FTST as part of the bargaining
unit. At the same time, the President of CCC wrote to a group
of FTST in 2014 that “[t]he College has never recognized nor
does it agree to voluntarily recognize [FTST] either as mem-
bers of the PFAC bargaining unit or as an independent un-
ion.” Moreover, CCC never placed any FTST on the “unit eli-
gibility list” that it provided to PFAC each semester, and it
did not accord FTST any seniority within the PFAC bargain-
ing unit. Finally, FTST did not pay PFAC union dues.
The recognition clause in PFAC’s collective bargaining
agreement (“CBA”) is equally equivocal. That clause states:
The Unit includes all part-time faculty members
who have completed teaching at least (1) semester at
Columbia College Chicago, excluding all other em-
ployees, full-time faculty, artists-in-residence,
and Columbia College Chicago graduate stu-
dents, part-time faculty members teaching only
continuing education, music lessons to individ-
ual students or book and paper making classes,
Columbia College Chicago full-time staff members,
teachers employed by Erickson Institute, the
YMCA or Alder [sic] Planetarium, and other in-
dividuals not appearing on the Columbia Col-
lege Chicago payroll, managers and confiden-
tial employees, guards, and supervisors as de-
fined in the [National Labor Relations Act].
(emphasis added). FTST are part-time faculty members who
have generally taught at least one semester at the College, and
thus arguably fall under the scope of the general inclusion
4 No. 17-3492
provision. However, FTST also qualify as full-time staff mem-
bers, which are expressly excluded from representation.
In February 2015, USCC petitioned the NLRB under § 9 of
the National Labor Relations Act (“NLRA”) to add FTST to its
existing bargaining unit via a self-determination election. See
29 U.S.C. § 159. The petition was originally dismissed on the
ground that FTST were already represented by PFAC. How-
ever, that dismissal was later revoked and the petition rein-
stated so that evidence on the issue could be presented. The
Director conducted a twelve-day evidentiary hearing, during
which numerous CCC employees testified about terms and
conditions of employment at the College.
PFAC intervened in the Board proceedings and claimed
that it did not represent FTST. It argued that FTST did not
share a “community of interest” with other part-time faculty
and that their inclusion in the bargaining unit would “desta-
bilize” the existing contract between PFAC and the College. It
also asserted that including FTST “would create a minority
union to compete with an already established majority un-
ion’s representation of part-time faculty.”
In August 2016, the Director issued a “Decision and Or-
der” that found FTST were included in the PFAC bargaining
unit in their capacity as part-time faculty. He ruled that FTST
qualified as “dual function” employees because they held
“two separate and independent jobs, one as full-time staff and
the other as part-time faculty.” He further decided that as
part-time faculty, FTST were “already included in the PFAC
unit … and covered by the PFAC contract.” He supported this
determination by highlighting relevant witness testimony
and pointing to the section of PFAC’s recognition clause that
states, “[t]he Unit includes all part time faculty members who
No. 17-3492 5
have completed teaching at least one (1) semester at Columbia
College Chicago.” Although he acknowledged that the recog-
nition clause also excludes “full-time staff members,” he be-
lieved the limitation applied to FTST “only in regard to their
capacity as full-time staff.” Thus, in his view, FTST were in-
cluded “within the plain language of the PFAC unit descrip-
tion.” Because their faculty job classification “[was] already
included in a unit covered by a contract,” he concluded that
contract bar principles prevented their further inclusion in
USCC. Consequently, USCC’s self-determination petition
was dismissed.
PFAC requested review of the Director’s decision by the
NLRB. See 29 C.F.R. § 102.67(c) (“Upon the filing of a re-
quest … the Board may review any action of a Regional Di-
rector.”). Before the Board issued its final decision, however,
CCC began to unilaterally assign retroactive seniority to FTST
employees under the terms of the PFAC CBA. In response,
PFAC filed a grievance against the College, arguing that
CCC’s actions violated the CBA because “[n]one of the so-
called ‘FTST’ … ha[d] paid the necessary union dues or
agency fees to accrue or maintain seniority in the [PFAC]
unit.” 2 After CCC denied the grievance, PFAC sought arbitra-
tion.
2 Under the PFAC CBA, seniority within the bargaining unit is based
upon credit hours taught. However, the CBA also requires all members to
“satisfy a financial obligation to [PFAC] as the Unit’s exclusive bargaining
representative,” and failure to pay union dues renders a member ineligi-
ble to teach. Based upon these provisions, PFAC argued that, because
FTST had never paid union dues, the College should not have unilaterally
counted their existing credit history toward seniority.
6 No. 17-3492
In its briefs to the arbitrator, PFAC acknowledged that the
Director included FTST in the PFAC bargaining unit, and
claimed that it was “not using [the] arbitration as a collateral
challenge to the [Director’s] ruling.” It further stated that it
would “comply with [the decision] and fairly represent the
FTST” as long as it remained in effect. Nevertheless, it main-
tained that the Director “was silent as to how to implement
that decision,” and “silent as to retroactivity.” In the eyes of
PFAC, the Director “claimed jurisdiction over a representa-
tion dispute, not a contract dispute over comparative, intra-
unit seniority.” It argued that, by extension, “[n]othing in the
[Director’s] Decision mandate[d] that the Employer (or the
Union) give FTST ‘back seniority.’” It advocated that, since
the Board had not yet issued a final decision, it was best “to
allow the administrative process to play out” rather than al-
low “immediate, unilateral action from the Employer.” It
sought for the College “to cease and desist such unilateral as-
signments of seniority and to make whole any [PFAC] unit
member who loses work as a result of the improper assign-
ment of seniority/credit history.” It argued that such a ruling
would “maintain[] the status quo until the administrative
process [before the Board was] ‘final.’”
The arbitrator issued an award to PFAC on January 11,
2017. His decision, however, went beyond matters of mere
seniority and addressed the underlying question of represen-
tation. He framed the “core issue presented” as one of “con-
tract law,” specifically, the proper interpretation of the recog-
nition clause in PFAC’s CBA. He emphasized that his “role
and authority” was to “determine the parties’ mutual intent
lying behind the governing contract language.” He concluded
that the recognition clause was ambiguous as to the inclusion
of FTST. He further determined that, prior to the Director’s
No. 17-3492 7
decision, the parties’ “custom and practice” excluded FTST
from the PFAC bargaining unit. As a result, he characterized
FTST as “non-members of the bargaining unit.” In his view,
“because the parties did not mutually intend to include the
FTST employees in the bargaining unit … [CCC] violated [the
CBA] when it treated those employees as if they were in the
unit.”
On February 14, 2017, the NLRB denied PFAC’s request
for review, thereby affirming the Director’s dismissal of
USCC’s petition. See 29 C.F.R. § 102.67(g) (“Denial of a request
for review shall constitute an affirmance of the regional direc-
tor’s action.”).
B. Procedural Background
On January 23, 2017, PFAC filed suit under the Federal Ar-
bitration Act (“FAA”) to confirm the arbitration award and
compel CCC to abide by its terms. 3 See 9 U.S.C. § 9. CCC re-
sponded by filing a cross-motion to vacate the arbitrator’s de-
cision, arguing that it directly conflicted with the Director’s
3 As the district court highlighted, the arbitration of disputes implicat-
ing collective bargaining agreements is also provided for under the Labor
Management Relations Act (“LMRA”), see 29 U.S.C. § 173, and “as a tech-
nical matter, ‘[i]n seeking to confirm an arbitration award created by vir-
tue of a collective bargaining agreement, recourse is to the LMRA, not the
FAA.’” Part-Time Faculty Ass’n at Columbia Coll. Chi. v. Columbia Coll. Chi.,
No. 17-cv-513, 2017 WL 5192023, at *3 n.4 (N.D. Ill. Nov. 9, 2017) (quoting
Cleveland v. Porca Co., 38 F.3d 289, 296 n.5 (7th Cir. 1994)). Regardless, with
limited exceptions not relevant here, “arbitration under the LMRA and the
FAA are generally subject to the same governing principles.” Id. (citing
Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 298 n.6 (2010); AT&T
Techs., Inc. v. Comm’ns Workers of Am., 475 U.S. 643, 650 (1986); Int’l Union
of Operating Eng’rs v. Murphy Co., 82 F.3d 185, 188–89 (7th Cir. 1996)).
8 No. 17-3492
ruling and thus infringed upon the NLRB’s primary jurisdic-
tion over representation issues. CCC further claimed that the
arbitrator exceeded his authority because the question of
FTST representation was not fairly subsumed within the
grievance submitted by PFAC.
The district court ruled in CCC’s favor on November 7,
2017. It agreed that the arbitration award contravened the Di-
rector’s ruling and found that, “where the Board decides a
representational issue, that decision necessarily takes prece-
dence over an arbitration award on the same issue.” Accord-
ing to the court, because the arbitrator “decided that issue in-
consistently with the NLRB’s resolution of that question, it
cannot stand.”
The court further found that the arbitrator exceeded his
contractual authority. It believed that PFAC’s grievance was
“cast in terms focusing on the required method for making
seniority determinations, not on determinations about who is
eligible for representation by the bargaining unit.” As a result,
“the issue in the arbitration was not whether FTST were
within the PFAC unit, but rather whether the manner in
which CCC was assigning work … was consonant with the
terms of the CBA.” Thus, it concluded that the arbitrator acted
improperly by reaching the representation issue.
Finally, the court ruled that the arbitration award contra-
vened the public policy goal of vesting primary jurisdiction
over representation issues to the NLRB. In addition, it felt that
enforcement of the award would “force CCC, like Odysseus,
between Scylla and Charybdis by requiring it to comply with
two irreconcilable orders, one requiring the college to recog-
nize FTST as members of the PFAC bargaining unit and the
other forbidding it from doing so.” This appeal followed.
No. 17-3492 9
II. Discussion
In reviewing a district court’s affirmation or vacation of an
arbitrator’s award, “[w]e accept … findings of fact that are not
clearly erroneous and review questions of law de novo.” Pros-
tyakov v. Masco Corp., 513 F.3d 716, 723 (7th Cir. 2008). Here,
the district court found the arbitrator’s award unenforceable
because: (1) it conflicted with a representational decision of
the NLRB; (2) the arbitrator exceeded his authority under the
CBA; and (3) it violated public policy. We need not address
all three issues here. “[W]e may affirm on any basis that ap-
pears in the record,” see Kidwell v. Eisenhauer, 679 F.3d 957, 965
n.1 (7th Cir. 2012), and the Board’s primary jurisdiction offers
a sufficient avenue for affirming the district court’s ruling.
The Director’s representation decision trumps the arbitra-
tion award. A series of controlling case law, beginning with
the Supreme Court’s decision in Carey v. Westinghouse Electric
Corp., 375 U.S. 261 (1964), is instructive. In Carey, the Interna-
tional Union of Electrical, Radio, and Machine Workers
(“IUE”) and the employer entered into a collective bargaining
agreement covering “production and maintenance employ-
ees” at several plants. Id. at 262. At the same time, the em-
ployer entered into a separate collective bargaining agree-
ment with another union, Federation, covering “salaried,
technical” employees. Id. IUE filed a grievance against the em-
ployer on the grounds that certain employees represented by
Federation were performing production and maintenance
work that should have been allocated to IUE workers. Id. The
employer refused to arbitrate the grievance, claiming that the
controversy presented a matter of union representation solely
for the NLRB. Id. at 262–63. In response, IUE sought to compel
arbitration in state court. Id. at 263.
10 No. 17-3492
On appeal, the Court noted that the NLRA “not only tol-
erates but actively encourages voluntary settlements of work
assignment controversies between unions.” Id. at 266 (citing
29 U.S.C. § 160(k)). Because “arbitration is one method” of set-
tling such disputes, it believed that “grievance procedures
pursued to arbitration further the policies of the Act.” Id. at
265–66. It recognized that some labor disagreements involve
not only “work assignment dispute[s],” but also questions of
representation, and that in those situations, the NLRA allows
the union or employer to petition the Board for relief. Id. at
266–67. However, it maintained that “the existence of a rem-
edy before the Board … does not bar individual employees
from seeking damages for breach of a collective bargaining
agreement in a state court.” Id. at 268. In other words, “[h]ow-
ever the dispute be considered—whether one involving work
assignment or one concerning representation—[the Court
saw] no barrier to use of the arbitration procedure.” Id. at 272.
Critically, however, the Court provided the following admon-
ition regarding the “superior authority of the Board”: “Should
the Board disagree with the arbiter, by ruling, for example, that the
employees involved in the controversy are members of one bargain-
ing unit or another, the Board’s ruling would, of course, take prece-
dence.” Id. (emphasis added).
This Circuit applied Carey’s disclaimer to an analogous
fact pattern in Smith Steel Workers v. A. O. Smith Corp., 420 F.2d
1 (7th Cir. 1969). There, the Smith Steel Workers Union (the
“Union”) represented production, maintenance, and office
employees at the employer’s Milwaukee plant. Id. at 5. An-
other union, the predecessor of the Technical Engineers Asso-
ciation (“TEA”), represented laboratory technicians and assis-
tants. Id. Eventually, the unions and employer each filed unit
clarification petitions with the NLRB over the classification of
No. 17-3492 11
certain employees in the company’s automotive laboratory.
Id. at 5–6. The Board ruled that the employees were included
in the TEA unit. Id. at 6. Despite the Board’s decision, the Un-
ion notified the company that it expected the company to rec-
ognize the Union, not TEA, as the exclusive bargaining repre-
sentative of the employees in question. Id. When the company
refused, the Union filed suit in federal court to compel arbi-
tration. Id. On appeal, we affirmed the district court’s refusal
“to compel arbitration of the unit representation issue after its
determination by the Board.” Id. at 7. Citing Carey, we stated
that “[a]rbitration provides an alternative means of resolving
disputes over the appropriate representational unit, but it
does not control the Board in subsequent proceedings.” Id.
We held that “[t]he Board’s … determination of the appropri-
ate units fully disposed of the question” and “defined the law-
ful limits of coverage of the contract which the Union sought
to have enforced.” Id. As a result, “the Board’s order deprived
the Union of any right to recognition as the representative” of
the employees at issue. Id. By extension, “[t]he court could
compel neither arbitration nor enforce any arbiter’s award in
conflict with the Board’s order.” Id.
We reached a similar result in Yellow Freight Systems, Inc.
v. Automobile Mechanics Local 701 International Association of
Machinists, 684 F.2d 526 (7th Cir. 1982). In Yellow Freight, the
employer operated four interstate trucking terminals whose
employees were represented by the International Association
of Machinists (“IAM”), as well as three “break-bulk” termi-
nals whose employees were represented by the International
Brotherhood of Teamsters. Id. at 527. When the employer later
transferred all of its break-bulk operations (and employees) to
a new terminal in Bedford Park, Illinois, IAM filed a petition
12 No. 17-3492
with the NLRB seeking a representation election at the facil-
ity. Id. at 527–28. The Board agreed and directed that an elec-
tion be held. Id. at 528. Following the Board’s order, but prior
to the election date, IAM informed the company that it in-
tended to proceed to arbitration over whether Yellow Freight
violated the parties’ collective bargaining agreement when
the company refused to apply the agreement to the Bedford
Park terminal. Id. at 529. The company sought to enjoin the
grievance proceeding, arguing that the NLRB’s election deci-
sion “superseded any possible decision by an arbitrator con-
cerning IAM’s grievance.” Id. We agreed:
[S]ince there has been a ruling by the NLRB in
this case on the issue of unit clarification, and
because we reaffirm that any ruling by the
NLRB takes precedence over any potential deci-
sion by an arbitrator on the same issue, we de-
cline to compel arbitration of a grievance the
substance of which has previously been decided
by the NLRB.
Id. at 530.
Here, the district court properly followed Carey, Smith
Steel, and Yellow Freight. The Director’s August 2016 decision
concluded that FTST were “included in the PFAC unit … and
covered by the PFAC contract.” The arbitrator’s January 11,
2017 award opines on the same issue by characterizing FTST
as “non-members of the bargaining unit.” Given the primacy
of the NLRB’s determination, the countervailing arbitration
decision cannot stand.
PFAC seeks to avoid Carey and its progeny by arguing that
the Director’s decision was based upon an interpretation of
No. 17-3492 13
the CBA rather than a pure application of labor law. PFAC
believes that, “in the realm of contract interpretation, arbitra-
tors reign supreme” and therefore the Director’s determina-
tion “is due no deference.” In this particular context, PFAC is
incorrect. For one, PFAC misconstrues the scope of the Direc-
tor’s reasoning. True, a limited portion of the Director’s Deci-
sion and Order reconciles the conflicting language in the
CBA’s recognition clause. However, this analysis constitutes
only two paragraphs in the Director’s fourteen page, single-
spaced opinion. The remaining sections discuss other, non-
contract evidence at length, including the parties’ past prac-
tices and terms and conditions of FTST employment.
Regardless, the holdings of Smith Steel and Yellow Freight
make no mention of an exception to the general primacy rule
in cases where a representational decision partially involves
matters of contract. To the contrary, those cases speak in strik-
ingly broad terms. See Smith Steel, 420 F.2d at 7 (“Arbitration
provides an alternative means of resolving disputes over the
appropriate representational unit, but it does not control the
Board in subsequent proceedings.”); Yellow Freight, 684 F.2d
at 530 (“[A]ny ruling by the NLRB takes precedence over any
potential decision by an arbitrator on the same issue.” (em-
phasis added)). PFAC’s argument accordingly fails.
At bottom, irrespective of the Director’s rationale, his de-
cision ultimately addressed USCC’s representative petition
under § 9 of the NLRA. That section “confers broad discretion
on the Board to determine appropriate bargaining units,” be-
cause “the bargaining unit determination is a representational
question reserved in the first instance to the Board.” Carpen-
ters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271, 1278 (9th
Cir. 1984); see also Int’l Union of Operating Eng’rs v. Associated
14 No. 17-3492
Gen. Contractors of Ill., 845 F.2d 704, 709 (7th Cir. 1988) (“Ques-
tions of representation, under section nine of the National La-
bor Relations Act … are matters for the National Labor Rela-
tions Board.”); NLRB v. Am. Printers & Lithographers, 820 F.2d
878, 881 (7th Cir. 1987) (“The Board carries the ultimate re-
sponsibility under the National Labor Relations Act for deter-
mining the appropriate bargaining unit.”). Conferring pri-
macy to the Board’s representational decision is therefore in
keeping with recognized principles of deference. 4
The cases cited in PFAC’s appellate brief do not alter this
conclusion. They only address the relationship between arbi-
trators and the courts, not arbitrators and the NLRB. See, e.g.,
Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509
(2001) (“Judicial review of a labor-arbitration decision pursuant
to such an agreement is very limited. Courts are not author-
ized to review the arbitrator’s decision on the merits despite
allegations that the decision rests on factual errors or misin-
terprets the parties’ agreement.” (emphasis added)); see also
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied In-
dus. & Serv. Workers Int’l Union v. TriMas Corp., 531 F.3d 531,
535–36 (7th Cir. 2008) (“We must remain mindful, however,
of the limited role we play at this stage. … If the parties have
4 Both the Supreme Court and this Circuit have held that in other con-
texts, the Board’s interpretation of a collective bargaining agreement is en-
titled to no special deference. See, e.g., Litton Fin. Printing Div. v. NLRB, 501
U.S. 190, 201–03 (1991); NLRB v. Int’l Bhd. of Elec. Workers, Local Union 16,
425 F.3d 1035, 1039 (7th Cir. 2005); NLRB v. Cook Cty. Sch. Bus, Inc., 283
F.3d 888, 892 (7th Cir. 2002); Chi. Tribune Co. v. NLRB, 974 F.2d 933, 937
(7th Cir. 1992). Those cases, however, deal with the interpretation of a col-
lective bargaining agreement in the adjudication of unfair labor practices,
not bargaining unit representation.
No. 17-3492 15
in fact agreed to arbitrate their dispute, then they have bar-
gained for the arbitrator’s interpretation of their contract-not
ours.” (first and third emphases added)). Indeed, neither case
references the Board at all. However, “‘the relationship of the
Board to the arbitration process is of a quite different order’
from ‘the relationship of courts to arbitrators when an arbitra-
tion award is under review.’” NLRB v. Horn & Hardart Co., 439
F.2d 674, 678 (2d Cir. 1971) (quoting NLRB v. Acme Indus. Co.,
385 U.S. 432, 436 (1967)). Consequently, PFAC fails to ade-
quately address the central holdings of this Court or similar
pronouncements from other circuits. See, e.g., Chauffeurs,
Teamsters & Helpers Local 776 v. NLRB, 973 F.2d 230, 233–34
(3d Cir. 1992) (“The Board has primary jurisdiction over rep-
resentational issues. … ‘[I]f an NLRB determination on the
definition of the proper bargaining unit conflicts with an ar-
bitration award, the NLRB decision will prevail.’” (quoting
Eichleay Corp. v. Int’l Ass’n of Iron Workers, 944 F.2d 1047, 1056
(3d Cir. 1991))); Cannery Warehousemen, Food Processors, Driv-
ers & Helpers for Teamsters Local Union No. 748 v. Haig Berberian,
Inc., 623 F.2d 77, 82 (9th Cir. 1980) (“[V]alid Board representa-
tion decisions take precedence over conflicting arbitration de-
cisions.”); Gen. Warehousemen & Helpers Local 767 v. Standard
Brands, Inc., 579 F.2d 1282, 1292 (5th Cir. 1978) (“[I]f the NLRB
were to rule contrary to the arbitrator, the Board’s ruling
would take precedence.”).
In short, the arbitration award in this case directly conflicts
with a representation decision of the Board. Therefore, it is
unenforceable as a matter of law.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-15-00011-CV
IN THE INTEREST OF A.V. and A.V., Children
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CI-17414
Honorable Gloria Saldaña, Judge Presiding
BEFORE CHIEF JUSTICE MARION, JUSTICE ANGELINI, AND JUSTICE PULLIAM
In accordance with this court’s opinion of this date, the order of the trial court is
AFFIRMED. It is ordered that appellee, Luis Valdivia, recover his costs of this appeal from
appellant, Maria Estrada.
SIGNED October 28, 2015.
_____________________________
Sandee Bryan Marion, Chief Justice
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688 F.2d 1275
UNITED STATES of America, Plaintiff-Appellee,v.Juan LOPEZ-GONZALES, Defendant-Appellant.
No. 81-1675.
United States Court of Appeals,Ninth Circuit.
Submitted May 28, 1982.1Decided Sept. 28, 1982.
Judy Clarke, San Diego, Cal., on brief, for defendant-appellant.
Douglas R. Schwartz, Asst. U.S. Atty., on the brief; William H. Kennedy, U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before FLETCHER, FERGUSON, and REINHARDT, Circuit Judges.
REINHARDT, Circuit Judge:
1
Appellant, Juan Lopez-Gonzales, appeals from the sentence imposed after his conviction for felony illegal entry in violation of 8 U.S.C. § 1325 (1976). The issue on appeal is whether the trial court failed to exercise its discretion by mechanically imposing the maximum sentence.
2
On August 11, 1981, a border patrol agent observed an early model, heavily laden station wagon leaving Interstate 5 near Oceanside, California. Lopez-Gonzales, the driver, was the only visible person in the vehicle. When the agent pulled out behind the station wagon in a clearly marked border patrol vehicle, the station wagon accelerated rapidly and ran a traffic light. The agent turned on his red light and siren and followed the station wagon as it sped through a residential area at 45 m.p.h., and ran another traffic light and four stop signs. Lopez-Gonzales made a left turn, appeared to lose control of the station wagon, jumped out of the moving vehicle, and left it to roll to a stop at the curb. Lopez-Gonzales and several other illegal aliens, who had been concealed in the vehicle, were apprehended.
3
At the sentencing hearing which followed Lopez-Gonzales's bench trial and conviction, the trial court permitted Lopez-Gonzales to speak personally to the court and present any mitigating circumstances before sentence was pronounced. Lopez-Gonzales argued that his prior record was insignificant and that the circumstances of his case were different from those associated with the ordinary flight and pursuit scenario involving high speed dangerous chases. He expressed remorse for fleeing from the border patrol agent and stated that he had panicked and that no one was injured by his flight. He said that all he wanted to do was return to Mexico and live quietly with his family.
4
The record does not suggest that the district judge gave any consideration to the factors presented by Lopez-Gonzales or to any other individual circumstances relating to him. Instead, the court imposed the two-year maximum sentence, stating:
5
Well, I don't know how successful we're going to be in stopping these runnings, and I made my position very clear that in these cases where the defendant attempts to run and endangers the lives of not only those he's transporting but also the people of this country, the maximum sentence will be imposed, and that is the judgment and sentence of the court, that the defendant is hereby sentenced to the custody of the Attorney General or his authorized representative for a period of two years. That's all.
6
A sentencing judge has wide discretion in determining what sentence to impose. If the sentence is within statutory limits, it is generally not subject to review on appeal. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States v. Wylie, 625 F.2d 1371, 1379 (9th Cir. 1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). However, the court's discretion must be actually exercised. Limited review is available when discretion is not exercised. Dorszynski v. United States, 418 U.S. 424, 443, 94 S.Ct. 3042, 3052, 41 L.Ed.2d 855 (1974).
7
The exercise of sound discretion requires consideration of all the circumstances of the crime; we no longer believe that every offense in a like legal category calls for an identical punishment. Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). Punishment should fit the offender and not merely the crime. Id. The sentencing judge is required to consider all mitigating and aggravating circumstances involved. Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 426, 3 L.Ed.2d 516 (1959); United States v. Vega-Mejia, 611 F.2d 751, 753 (9th Cir. 1979) (per curiam). There is a strong public interest in the imposition of a sentence based upon an accurate evaluation of the particular offender and designed to aid in his personal rehabilitation. Verdugo v. United States, 402 F.2d 599, 611 (9th Cir. 1968). Thus, appellate courts have vacated sentences reflecting a preconceived policy always to impose the maximum penalty for a certain crime. See, e.g., United States v. Clements, 634 F.2d 183, 187 (5th Cir. 1981) (no indication that judge considered any mitigating or aggravating circumstances before imposing maximum sentence for drug offense; mechanical attitude towards sentencing was prima facie established by sentencing court's prior record in similar cases); United States v. Hartford, 489 F.2d 652, 655-56 (5th Cir. 1974) (trial court's comments reflected a rigid policy of imposing maximum sentence on narcotics distributors); Woosley v. United States, 478 F.2d 139, 140, 143-45 (8th Cir. 1973) (en banc) (trial court stated that it had sentencing policy in cases of refusing induction into military, and study showed that policy was to always impose maximum sentence); United States v. Daniels, 446 F.2d 967, 971-72 (6th Cir. 1971) (judge stated that he always imposed maximum sentence on those refusing to obey orders of draft board); United States v. McCoy, 429 F.2d 739, 742-43 (D.C. Cir. 1970) (district judge announced he would sentence to life imprisonment anyone convicted by a jury of armed robbery).
8
The government argues first that the sentence was lawful because Lopez-Gonzales had the opportunity to present any mitigating circumstances at the sentencing hearing. The problem, however, is not that Lopez-Gonzales was denied the opportunity to present evidence of mitigating circumstances, but that, under the court's mechanical sentencing policy, the court failed to consider the individual factors and circumstances.
9
The government makes the following additional argument:
10
The court could have stated on the record that it had taken into consideration the mitigating factors that the defendant had ennunicated (sic), but it felt the following sentence was appropriate anyway. The Government feels that compelling the trial court to follow such a hollow ritual is not appropriate....
11
The government's argument demonstrates a disregard for both the letter and the spirit of the law. The purpose of the rule requiring the exercise of sound discretion is not to invite the district court to engage in a "hollow ritual." Nor is it to invite the district court to misstate the truth.2 The duty to weigh mitigating and aggravating circumstances imposes a judicial obligation upon the district courts. Contrary to the government's view, we are certain that, properly advised of their obligation, district judges will faithfully execute their duties and will weigh all of the individual circumstances, rather than engaging in a "hollow ritual" and then imposing mechanical sentences.
12
Because the district judge stated that he automatically imposes the maximum sentence whenever an illegal alien is apprehended after flight and pursuit, we remand for resentencing in light of Lopez-Gonzales's individual circumstances.
13
Sentence vacated; remanded for further proceedings consistent with this opinion.
1
The panel unanimously agrees that this case is appropriate for submission without argument
2
Earlier in its brief the government argued that the district court's statement regarding its mechanical sentencing policy may not have been true, but may have been designed solely to "impress" the defendant. Since the actual imposition of the maximum sentence is what would impress the defendant, if anything would, the logic underlying the government's suggestion escapes us
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945 N.E.2d 825 (2011)
BANKS
v.
STATE.
No. 49A02-1006-CR-689.
Court of Appeals of Indiana.
March 23, 2011.
ROBB, C.J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
RILEY, J., concurs.
BROWN, J., concurs.
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170 F.Supp.2d 1135 (2001)
Steven W. NYHART, Plaintiff,
v.
U.A.W. INTERNATIONAL, Defendant.
Steven W. Nyhart, Plaintiff,
v.
U.A.W. LOCAL # 31, Defendant.
Nos. CIV. 99-2251-GTV, CIV. A. 99-2252-GTV.
United States District Court, D. Kansas.
October 24, 2001.
*1136 Richmond M. Enochs, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, for plaintiff.
Bruce C. Jackson, Jr., Mark A. Kistler, Yonke, Arnold, Newbold & Regan, P.C., Kansas City, MO, for defendant.
MEMORANDUM AND ORDER
VanBEBBER, Senior District Judge.
This case is before the court on defendants' motion for summary judgment (Doc. 44). The case arises under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff alleges that defendants U.A.W. International and U.A.W. Local # 31 ("the union") discriminated and retaliated against plaintiff based on his disability in violation of the ADA. Specifically, plaintiff alleges that the union refused to file grievances on his behalf because of his disability.
The union responds that plaintiff failed to exhaust his remedies with the Equal Employment Opportunity Commission ("EEOC") in a timely manner and that plaintiff failed to exhaust his contractual and internal union remedies prior to filing suit. The union also submits that plaintiff's exclusive remedy lies in the grievance and arbitration procedures contained in the collective bargaining agreement between the union and plaintiff's employer.
For the reasons stated below, the court concludes that plaintiff properly exhausted his remedies with the EEOC. However, because the union has failed to provide the court with sufficient information, the court is unable to conclude whether plaintiff was required to exhaust his contractual and internal union remedies. The court is also unable to conclude whether plaintiff waived his right to sue the union for discrimination. Accordingly, the court denies defendants' motion for summary judgment.
I. FACTUAL BACKGROUND
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.
Plaintiff works for General Motors and is a member of the auto workers' union. General Motors is a party to a collective bargaining agreement with the union that includes a grievance procedure.
In January of 1996, plaintiff went on medical leave from work due to problems with his back. He eventually returned to work on "light duty" in November of 1996 and was denied the opportunity to work overtime between November of 1996 and January of 1997. Plaintiff also did not receive a bonus for the year 1996 and claims he was denied three weeks of pay. Plaintiff was placed on medical leave again in January of 1997 and returned to work *1137 without medical restrictions in June of 1997.
Plaintiff requested that his union committeeman, Jim Wolfe, file grievances regarding the overtime denial, the bonus, the lost pay, and some "vacation issues." Wolfe and the union refused to file the grievances. Plaintiff alleges that he tried to file the grievances between June of 1998 and August of 1998. Although the union had an internal procedure for reinstating improperly disposed of grievances, plaintiff has never filed any internal charges or appeals except a charge filed in March of 1998. The record does not indicate the content of the March 1998 charge.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984).
III. DISCUSSION
A. Timely Exhaustion of Remedies with the EEOC
The union claims that, although plaintiff filed a charge of discrimination with the EEOC regarding conduct allegedly occurring between June and August of 1998, plaintiff's case actually concerns conduct occurring between November of 1996 and June of 1997. Because plaintiff did not file an EEOC charge regarding such conduct in a timely manner, the union asks the court to dismiss plaintiff's case for failure to exhaust his administrative remedies or failure to file an EEOC charge in a timely manner.
The union's own evidence demonstrates that there is a genuine issue of material fact as to when the allegedly discriminatory conduct occurred. In this case, the relevant conduct is the union's refusal to file grievances on plaintiff's behalf, not General Motors's refusal to let plaintiff work overtime or pay him a bonus. The record indicates that General Motors made its allegedly adverse employment *1138 decisions between November of 1996 and June of 1997. However, the record also indicates that the union may have refused to process the grievances regarding General Motors's conduct as late as August of 1998 i.e., plaintiff stated in his deposition that he tried to file grievances between June and August of 1998. Plaintiff's testimony is sufficient to create a genuine issue of material fact as to when the union refused to process the grievances. The court therefore denies summary judgment for failure to exhaust administrative remedies with the EEOC in a timely manner.
B. Exhaustion of Contractual and Internal Union Remedies
The union next argues that plaintiff was required to appeal the union's refusal to file his grievances through an internal union appeal procedure. The union has provided the court with a letter incorporating an internal union appeal procedure into the collective bargaining agreement between the union and General Motors. However, the union has failed to provide the court with evidence of the appeal procedure itself. The court is unable to determine whether it is mandatory or optional. Absent such information, the court is unable to hold that plaintiff was required to appeal the refusal to file his grievances. Consequently, the court denies summary judgment on this issue.[1]
C. Grievance Procedure as Exclusive Remedy
The union's final argument is that the grievance procedure provided in the collective bargaining agreement serves as an exclusive remedy for plaintiff. In support, the union cites the following provisions in the collective bargaining agreement:
PREFACE
General Motors Corporation and the UAW recognize their respective responsibilities under federal, state, and local laws relating to fair employment practices.
The Company and the Union recognize the moral principles involved in the area of civil rights and have reaffirmed in their Collective Bargaining Agreement their commitment not to discriminate because of race, religion, color, age, sex or national origin.
. . . . .
(6a) It is the policy of General Motors and the UAW that the provisions of this Agreement be applied to all employees covered by this Agreement without discrimination based on race, color, religion, age, sex, national origin or individuals with disabilities as required by appropriate state and federal law. Any claims of violation of this policy, claims of sexual harassment *1139 or of any laws regarding discrimination or harassment on account of disability may be taken up as a grievance.
When a grievance containing a claim of violation of this paragraph is appealed to the Shop Committee the Chairperson of the Shop Committee may refer the claim to a designated member of the Civil Rights Committee of the Local Union for a factual investigation and report. Any such investigation will be conducted in accordance with the provisions of Paragraph (33). Neither the Chairperson of the Civil Rights Committee, nor the member of the committee that the Chairperson may designate to investigate such claim in the Chairperson's place, shall receive pay from the Corporation based solely upon any activity arising pursuant to this paragraph.
The grievance and arbitration procedure shall be the exclusive contractual procedure for remedying such discrimination claims.
These provisions deal with an employee's grievances against General Motors not problems an employee has with getting the union to pursue his grievances. Again, the union seems to be focusing on the wrong set of events. Plaintiff's case is not a case against General Motors for discriminatory employment practices. Rather, plaintiff's case is a case against the union for discriminatory failure to process his grievances. Presumably, issues between the union and employee are addressed in the union constitution, but the court does not have the constitution before it.
Without holding that an "exclusive remedy" provision in the union constitution would effectively waive plaintiff's right to bring an ADA claim in court, the court holds that, based on the evidence before it, there is no indication that plaintiff is precluded from suing the union for discriminatory failure to process his grievances.[2]
IT IS, THEREFORE, BY THE COURT ORDERED that defendants' motion for summary judgment (Doc. 44) is denied.
Copies of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.
NOTES
[1] Even if the court were able to determine that any internal appeal procedure was mandatory, the court still would deny summary judgment on this issue. The court finds persuasive a Seventh Circuit case that held that an employee filing a Title VII claim against his union for discriminatory handling of grievances is not required to exhaust internal union remedies. See, e.g., Donaldson v. Taylor Prods. Div. of Tecumseh Prods. Co., 620 F.2d 155, 158 (7th Cir.1980) ("[T]here is no exhaustion requirement under [Title VII or § 1981]." (citation omitted));see also Crites v. Kaiser Aluminum & Chem. Corp., No. 91-1231, 1992 WL 64873 (4th Cir. Apr.3, 1992); Cooper v. Dumas, 106 F.Supp.2d 479 (S.D.N.Y.2000) ("It appears clear from the Supreme Court's holding in Alexander [v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)], as well as the plain language of Title VII ... that a plaintiff bringing a breach of fair duty claim under Title VII is under no duty to exhaust internal procedures prior to bringing a Title VII claim."). Similarly, the court concludes that there is no duty to exhaust internal union appeal procedures prior to bringing an ADA claim.
[2] The court notes that the parties devoted most of their briefs to discussing whether an arbitration clause in a collective bargaining agreement can effectively waive an employee's statutory right to bring suit under the ADA. The court questions whether such a discussion is relevant to the case at hand. Here, it seems that the relevant "agreement" is the union constitution, not the collective bargaining agreement. However, even if the court were to accept the parties' assertion that the collective bargaining agreement is the relevant agreement, the court still would deny defendants' motion. The law in the Tenth Circuit is that employees do not have to exhaust grievance procedures in a collective bargaining agreement before suing for violation of federal anti-discrimination laws. See Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453-54 (10th Cir.1997). The union urges the court to rule contrary to this precedent based on two recent Supreme Court cases, Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) and Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). The court declines to presume that the Tenth Circuit will change its position based on these cases.
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707 N.W.2d 337 (2005)
ROSAS v. NELSON
No. 04-2084.
Court of Appeals of Iowa.
October 26, 2005.
Decision without published opinion. Affirmed.
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Alliance to End Chickens as Kaporos v New York City Police Dept. (2017 NY Slip Op 04408)
Alliance to End Chickens as Kaporos v New York City Police Dept.
2017 NY Slip Op 04408
Decided on June 6, 2017
Appellate Division, First Department
Gische, J.
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 June 6, 2017
SUPREME COURT, APPELLATE DIVISION
First Judicial Department
Richard T. Andrias,J.P.
Karla Moskowitz
Paul G. Feinman
Judith J. Gische
Ellen Gesmer, JJ.
156730/15 3256
[*1]The Alliance to End Chickens as Kaporos, et al., Plaintiffs-Appellants,
vThe New York City Police Department, et al., Defendants-Respondents, Congregation Beis Kosov Miriam Lanynski, et al., Defendants.
Plaintiff appeal from the order of the Supreme Court, New York County (Debra A. James, J.), entered September 24, 2015, which upon converting the plenary action as against the City defendants to a CPLR article 78 proceeding granted the City defendants' motion to dismiss the proceeding.
Law Office of Nora Constance Marino, Great Neck (Nora Constance Marino of counsel) for appellants.
Zachary W. Carter, Corporation Counsel, New York (Damion K. L. Stodola and Jane L. Gordon of counsel), for respondents.
GISCHE, J.
The central issue raised by this appeal is whether plaintiffs have a right, via a writ of mandamus, to compel the municipal defendants to enforce certain laws related to preserving public health and preventing animal cruelty, which they allege are violated by Orthodox Jews who perform the religious practice of Kaporos. We affirm Supreme Court's dismissal of the proceeding against the City defendants, which include the New York City Police Department (NYPD), NYPD's Commissioner and the New York City Department of Health and Mental Hygiene (DOH) (collectively City), because mandamus does not lie, where as here, plaintiffs seek to compel the enforcement of laws and regulations implicating discretionary actions (New [*2]York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005]).[FN1][FN2]
The individual plaintiffs reside, work or travel within Brooklyn neighborhoods where the non-City defendants engage in the Kaporos ritual every year before Yom Kippur. Plaintiff the Alliance to End Chickens as Kaporos, of which some individual plaintiffs are members, is associated with nonparty United Poultry Concerns, a non profit organization promoting compassionate and respectful treatment of domestic fowl. The non-City defendants are individual Orthodox Jewish rabbis, members of yeshivas or other Orthodox Jewish religious institutions, and several Orthodox Jewish religious institutions, all based in Kings County.
Kaporos is a customary Jewish ritual practiced by the non-City defendants, who are ultra Orthodox. It dates back to biblical times and occurs only once a year, the few days immediately preceding the holiday of Yom Kippur. Adherents of Kaporos believe this ritual is required by religious law and that it brings atonement and redemption. The ritual entails grasping a live chicken and swinging the bird three times overhead while saying a prayer that symbolically asks God to transfer the practitioners' sins to the birds. Upon completion of the prayer, the chicken is killed in accordance with the kosher dietary laws, by slitting the chicken's throat. Its meat is then required to be donated to the poor and others in the community. Each year thousands of chickens are sacrificed in furtherance of this ritual and the practice takes place outdoors, on public streets in Brooklyn, and in full public view.
Plaintiffs allege that the manner in which Kaporos is practiced is a health hazard and cruel to the animals. They decry the practice as "party-like" and having a "carnival" atmosphere. They contend the practice involves the erection of makeshift slaughter houses in which "[d]ead chickens, half dead chickens, chicken blood, chicken feathers chicken urine, chicken feces [and] other toxins . . . consume the public streets" (amended complaint ¶ 168). They also allege that there is blatant animal abuse and cruelty (id. at ¶ 174). It is plaintiffs' contention that Kaporos is a public nuisance to all those who, like them, pass through these locations for day to day activities, including going home, to work, or to shop. Their goal is to stop this practice. They argue that there are other, better ways for Kaporos adherents to practice their faith and express their devotion, including by using coins instead of live chickens. They denounce Kaporos as "a far cry from a solemn religious ritual." These claims are disputed by the non-City defendants, who otherwise claim that they have a constitutional right to practice Kaporos.
In seeking the remedy of mandamus against the City defendants, plaintiffs claim that this ritual violates numerous laws, rules and regulations, including Agriculture and Markets Law §§ 96-a; 96-b [requiring licensing of places where fowls are slaughtered or butchered]; Labor Law § 133(2)(o) [prohibiting employment of a minor in a slaughterhouse]; 1 NYCRR 45.4 [sanitary [*3]precautions against avian influenza when entering premises containing live poultry]; Administrative Code of City of NY § 18-112(d) [no slaughterhouse in parts of Brooklyn]; New York City Health Code (24 RCNY) § 153.09 [no blood, offensive animal matter, or dead animals to be put on city streets]; former New York City Health Code (24 RCNY) § 153.21(a) [persons contracted or undertaken to remove dead or diseased animals must do so promptly]; New York City Health Code (24 RCNY) § 161.11 [prevention of animal nuisances]; New York City Health Code (24 RCNY) § 161.19[c] [live poultry intended for sale prohibited on the same premises as a multiple dwelling]; New York City Health Code § 161.19(b) [areas of slaughter to be kept clean and free of animal nuisances]; Agriculture and Markets Law §§ 353, 371 [prohibiting animal cruelty]; Agriculture and Markets Law §§ 355 [prohibiting abandonment of animals to die in a street]; Agriculture and Markets Law § 359 [prohibiting carrying animals in a cruel manner]; former New York City Health Code (24 RCNY) § 161.03(a) [prohibition against animal blood, feces and body parts on pubic sidewalks]; and New York City Department of Sanitation Rules and Regulations §§ 16B118(6) [no offensive animal material shall be allowed to fall on a person or run into any street or public place]).
Plaintiffs claim that they are entitled to have the courts compel the City to enforce these laws. They seek to have this Court direct the City to "enforce the law, issue summonses, issue arrests, and issue violations when such situations are warranted" (amended complaint ¶184).[FN3]
Article 78 is the codification of the common-law writs, including a writ of mandamus to compel (CPLR 7801, 7803[1]). Mandamus to compel is a judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary (Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88, 96 [1981]). The availability of mandamus to compel the performance of a duty does not depend on the applicant's substantive entitlement to prevail, but on the nature of the duty sought to be commanded — i.e., mandatory, non-discretionary action (id. at 97). A ministerial act is best described as one that is mandated by some rule, law or other standard and typically involves a compulsory result (New York Civ. Liberties Union, 4 NY3d at 184). Discretionary acts, on the other hand, are not mandated and involve the exercise of reasoned judgment, which could typically produce different acceptable results (id.). Mandamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment. In other words, mandamus will lie to compel a body to perform a mandated duty, not how that duty shall be performed (Klostermann v Cuomo, 61 NY2d 525, 539-540 [1984]). It lies "only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law" (New York Civ. Liberties Union, 4 NY3d at 184).
Mandamus is generally not available to compel government officials to enforce laws and [*4]rules or regulatory schemes that plaintiffs claim are not being adequately pursued (see e.g. Jones v Beame, 45 NY2d 402, 409 [1978], citing People ex rel. Clapp v Listman, 40 Misc 372 [Sup Ct, Onondaga Special Term 1903] [mandamus does not lie to compel enforcement of Sunday "blue" laws]; Matter of Walsh v LaGuardia, 269 NY 437 [1936] [no right to compel Mayor and Police Commissioner to prohibit operators of nonfranchised bus routes]; Matter of Perazzo v Lindsay, 30 AD2d 179 [1st Dept 1968], affd 23 NY2d 764 [1968] [no right to compel enforcement of laws governing operation hours of coffee houses]; Matter of Morrison v Hynes, 82 AD3d 772 [2d Dept 2011] [cannot compel the initiation of a prosecution]; Matter of Bullion v Safir, 249 AD2d 386 [2d Dept 1998] [no mandamus to compel police to make arrests]). This reflects the long-standing public policy prohibiting the courts from instructing public officials on how to act under circumstances in which judgment and discretion are necessarily required in the fair administration of their
duties.
We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. With the exception of Agriculture and Markets Law § 371 (addressed separately below), there is nothing in the plain text of any of the laws and regulations relied upon by plaintiffs to suggest that they are mandatory. Nor is there anything in the legislative history supporting a conclusion that any of the implicated laws and regulations are mandatory. There is no express provision designating Kaporos as a prohibited act. There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to nonadherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment (Church of the Lukumi Babalu Aye, Inc. v Hialeah, 508 US 520, 531 [1993]).
Consequently, the decision whether and how to enforce these laws and regulatory provisions allegedly violated during Kaporos implicates the reasoning and discretion of the City defendants and the law enforcers. None of the laws or regulations plaintiffs rely on preclude the City defendants from deciding whether or not to enforce those laws in the context of Kaporos. Plaintiffs do not have a "clear legal right" to dictate which laws are enforced and how, or against whom. Determining which laws and regulations might be properly enforced against the non-City defendants without infringing upon their free exercise of religion involves the exercise of reasoned judgment on the part of the City defendants. The outcome cannot be dictated by the court through mandamus.
We also reject any argument that Agriculture and Markets Law § 371 may provide a basis for the court to mandate that the police either issue an appearance ticket, or summon, or arrest and bring before the court, the non-City defendants for having practiced animal cruelty.
Agriculture and Markets Law § 371 provides in pertinent part that:
"A constable or police officer must, and any agent or officer of any duly incorporated society for the prevention of cruelty to animals may issue an appearance ticket pursuant to section 150.20 of the criminal procedure law, summon or arrest, and bring before a court or magistrate having jurisdiction, any person offending against any of the provisions of article twenty-six of the agriculture and markets law" (emphasis added).
Notwithstanding the use of the word "must" in the statute,[FN4] it is still subject to the definition of animal cruelty as otherwise defined in the Agriculture and Markets Law. Agriculture and Markets Law § 350 defines "torture" or "cruelty" to include "unjustifiable physical pain, suffering or death." Thus, a determination of whether a practice in killing animals is "unjustifiable" implicates discretion and is not susceptible to a predictable, mandated outcome. For that reason, the parties' dispute concerning whether plaintiffs made complaints to law enforcement is irrelevant because enforcement of this statute is discretionary. The dissent's reasoning that a hearing should be held to determine whether the killing of these birds is "justified" proves the point. There is no ministerial determination to be made about the justification for killing chickens. Thus, the City defendants' decision of whether action is necessary, and if so, the nature of such action, is inherently discretionary. Opening up claims of this nature to discovery and possible trials would be an unjustified intrusion into the everyday affairs of the City defendants. Consequently, since the City defendants may exercise their judgment in deciding whether there has been a violation of Agriculture and Markets Law § 371, they cannot be compelled to act a certain way (see Klostermann at 540).
Matter of Jurnove v Lawrence (38 AD3d 895 [2d Dept 2007]), relied upon by plaintiffs, does not dictate a different result. The issue in Jurnove was that the police had adhered to an internal policy of referring all article 26 violations, most of which involved animal cruelty, to the local society for prevention of cruelty to animals (SPCA) (Jurnove at 896). The court held that a hearing was necessary on the issue of whether the officers had "abdicated their statutorily-imposed duty" by routinely referring the claims to the SPCA without considering them at all (id.). At bar, however, the plaintiffs are really challenging the core decision by law enforcement not to arrest or take other legal action against the non-City defendants for what plaintiffs believe are violations of law. In other words, they are seeking to drive a particular outcome. Notably, the court in Jurnove observed that "[a] subordinate body can be directed to act, but not how to act," noting further that law enforcement has "broad discretion" in allocating resources and devising enforcement strategies (id.). This statement of law is harmonious with controlling Court of Appeals precedent, reminding courts "to avoid . . . the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches" (Klostermann, 61 NY2d at 541).
Plaintiffs' own claims demonstrate that the City defendants have not been derelict in their duties. Although plaintiffs deride NYPD for, and accuse it of, aiding and abetting the non-City defendants by enclosing the Kaporos area with barriers, placing orange cones, providing generators to supply light for the area and erecting "no parking" signs, these actions contain the event and maintain order, each of which is a proper exercise of the NYPD's law enforcement obligations. As for DOH, it too has acted on plaintiffs' complaints, by sending an investigator. Notwithstanding plaintiffs' complaint that the investigator arrived after Kaporos ended, plaintiffs have no clear right to dictate when, how, or if at all, such investigation takes place.
Accordingly the order of the Supreme Court, New York County (Debra A. James, J.), entered September 24, 2015, which, upon converting the plenary action as against the City defendants to a CPLR article 78 proceeding, granted the City defendants' motion to dismiss the proceeding, should be affirmed, without costs.
All concur except Andrias, J.P. and Gesmer, J. who dissent in an [*5]Opinion by Gesmer J.
GESMER, J. (dissenting)
Because I believe that plaintiffs have stated a claim for mandamus relief sufficient to survive a motion to dismiss, I respectfully dissent.
Plaintiff Alliance to End Chickens as Kaporos (Alliance), of which some individual plaintiffs are members, advocates for the substitution of coins, or other non-animal symbols of atonement, for chickens in the religious practice of Kaporos [FN5]. In this plenary action, plaintiffs seek to enjoin the performance of the religious ritual known as Kaporos to the extent that it is practiced with live chickens. As plaintiffs point out, other Orthodox Jewish communities use coins in place of live chickens, and plaintiffs do not oppose this practice.
As we must on a motion to dismiss, I accept the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into a cognizable legal theory (CPLR 3211; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). I have also considered plaintiffs' affidavits, which may be submitted on a motion to dismiss to remedy inartful pleading of potentially meritorious claims (id. at 88).
Plaintiffs claim that, for as many as four days before Yom Kippur, truckloads of crates overcrowded with live and some dead chickens are left on the streets of Brooklyn, with as many as 16 birds per crate, stacked up to 10 crates high. In the days before the birds are slaughtered, they remain crammed into their cages, are not given food or water, are not protected from the elements or from feces and urine falling from the crates above, and sometimes fall out of the crates onto the public street. Birds are injured during the ritual, and their throats are frequently cut incorrectly, to the extent that the carotid artery is not completely severed and the birds die an unnecessarily slow and painful death. The slaughter takes place on public streets in makeshift open-air slaughterhouses, and dead and nearly dead birds, blood, excrement, used tarps and gloves, and other by-products of the slaughter are left on the street for days afterwards. This creates an unbearable stench and a health hazard both before and after the ritual. Children are present during, and sometimes assist in, the slaughter. Plaintiffs' toxicology expert states in his affidavit that these conditions create a risk of public exposure to, and spreading of, Salmonella, Campylobacter, strains of influenza, and other pathogens, toxins, and biohazards, which can cause respiratory complications, dermatitis, and infectious diseases in humans. The non-City defendants do not seek or obtain required permits, and there is no oversight and no system for cleanup. At the time the matter was argued before the motion court, the non-City defendants had purchased 50,000 live chickens for the approaching holiday. Plaintiffs have complained repeatedly about the situation and obtained no meaningful response.
Plaintiffs seek mandamus relief against the City defendants, claiming that the City defendants have failed and refused to act on their complaints, and that the police actively assist the non-City defendants by blocking off streets and allowing practitioners to use Police Department generators, barricades, traffic cones, and "no parking" signs during the event.
Plaintiffs claim that, by their actions, the non-City defendants have violated, and the City defendants have failed to enforce and/or have "aided and abetted" the non-City defendants in [*6]violating, some 17 state and local statutes, regulations, and rules regarding the keeping and slaughter of animals, public health and safety, and animal cruelty, including provisions of the Agriculture and Markets Law, the Labor Law, the New York City Health Code, the Rules and Regulations of the New York City Department of Sanitation, and the rules of the New York City Street Activity Permit Office. They further allege that defendants have unreasonably interfered with the rights of plaintiffs and the public, and have caused a public nuisance. Plaintiffs seek a permanent injunction against the non-City defendants to prevent them from erecting slaughterhouses and slaughtering chickens on public streets and sidewalks. Plaintiffs seek an order of mandamus against the City defendants, compelling them to
"uphold the law, properly issue summonses where warranted, properly issue violations where warranted, properly engage in arrests where warranted [in connection with Kaporos] . . . [and] preventing the . . . City Defendants from encouraging, assisting, and participating in . . . Kaporos . . . [and] from aiding and abetting the [non-City] Defendants to engage in illegal acts . . . and improperly blocking off specific streets and sidewalks."
By order entered September 24, 2015, the motion court converted the plenary action as against the City defendants into a proceeding pursuant to article 78 of the Civil Practice Law and Rules, and granted the City defendants' motion to dismiss it as against them. The motion court based its dismissal as against the City defendants on its finding that plaintiffs had failed to allege that any of the City defendants had ever tried to file a complaint with regard to a violation of the Agriculture and Markets Law or that the police ever refused to accept such a complaint. As discussed below, the record does not support this finding.
Section 7803 of the Civil Practice Law and Rules permits article 78 petitions in the nature of mandamus to determine "whether the body or officer failed to perform a duty enjoined upon it by law" (CPLR 7803[1]). Mandamus lies "only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law" (New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005]). "[I]f a statutory directive is mandatory, not precatory, it is within the courts' competence to ascertain whether an administrative agency has satisfied the duty that has been imposed on it by the Legislature and, if it has not, to direct that the agency proceed forthwith to do so" (Klostermann v Cuomo, 61 NY2d 525, 531 [1984]). It is the "function of mandamus to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so" (id. at 540). However, courts must not intrude into the "broad legislative and administrative policy beyond the scope of judicial correction" (Jones v Beame, 45 NY2d 402, 408 [1978]). Accordingly, "rarely, if ever, should mandamus lie to command the Commissioner of Public Safety to enforce the Sunday blue' laws or the ordinance forbidding the riding of bicycles on the sidewalk" (id. at 409). Mandamus is not available to compel a general course of conduct by an official (Matter of Walsh v LaGuardia, 269 NY 437, 442 [1936]; New York Civ. Liberties Union, 4 NY3d at 184).
The motion court dismissed the proceeding as against the City defendants on two bases, both of which I conclude are faulty.
First, it found that the duties at issue are largely discretionary and not ministerial, and thus mandamus will not lie. However, where "the legislation in question established a standard of conduct which executive officers must meet unless or until the legislative body changes it, a dispute over compliance is generally considered justiciable because the courts can compel performance of the statutory command" (Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215, 220 [1994]). "The character of the duty, and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus" (Klostermann, 61 NY2d at 540).
Here, the actions at issue are mandatory not discretionary. The DOH is required to [*7]enforce the Health Code (New York City Coalition to End Lead Poisoning v Koch, 138 Misc 2d 188, 191 [Sup Ct NY County 1987], affd 139 AD2d 404 [1st Dept 1988]). Similarly, pursuant to section 435(a) of the New York City Charter, the New York City Police Department "shall have the power and it shall be their duty" to, inter alia,
"disperse unlawful or dangerous assemblages and assemblages which obstruct the free passage of public streets, sidewalks, parks and places; . . . guard the public health, preserve order at . . . all public meetings and assemblages; subject to the provisions of law and the rules and regulations of the commissioner of traffic, regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health; remove all nuisances in the public streets, parks and places; . . . inspect and observe all places of public amusement . . . ; enforce and prevent the violation of all laws and ordinances in force in the city; and for these purposes to arrest all persons guilty of violating any law or ordinance for the suppression or punishment of crimes or offenses" (New York City Charter § 435[a]).
In addition, Agriculture and Markets Law § 371 directs that a "police officer must . . . issue an appearance ticket pursuant to section 150.20 of the criminal procedure law, summon or arrest, and bring before a court or magistrate having jurisdiction, any person offending against any of the provisions of article twenty-six of the agriculture and markets law." The mandatory nature of this provision is "a stark and surprising contrast to the permissive language found in the arrest provisions of the New York Criminal Procedure Law" (Jed L. Painter, 2016 Practice Commentaries, McKinney's Cons Laws of NY, Book 2B, Agriculture and Markets Law § 371, Cum Pocket Part at 166). The article which the police are enjoined to enforce prohibits animal cruelty, including torture, unjustifiable injury, maiming, mutilating or killing of any animal, as well as depriving an animal of "necessary sustenance, food or drink," or causing such treatment (Agriculture and Markets Law § 353). It further provides that such acts constitute a class A misdemeanor punishable by imprisonment for not more than one year, a fine of up to one thousand dollars, or both (Agriculture and Markets Law § 353; see also Penal Law §§ 60.01[3][c]; 70.15; 80.05). While the majority is correct that section 350 of the Agriculture and Markets Law defines animal cruelty as the infliction of "unjustifiable" pain, suffering or death (Agriculture and Markets Law § 350[2]), it is not at all clear that the alleged treatment of poultry in the days leading up to Kaporos, or in improper slaughter, is justifiable. None of the defendants has claimed that violating the Agriculture and Markets Law, or any of the other laws plaintiffs claim the non-City defendants have violated, is necessary to carry out the religious ritual and thus justifiable. In addition, plaintiffs have raised questions about whether the slaughtered birds are donated for human consumption as the non-City defendants claim, and, if so, whether the proper precautions are being taken to ensure consuming them is safe, each of which also bears on whether the cruelty alleged is justifiable.
Thus, while the City defendants may exercise discretion in the process of determining whether a violation has occurred and, if so, how to respond to it, they have, at a minimum, an obligation to determine whether or not a reported violation has occurred. Pursuant to section 371 of the Agriculture and Markets Law, if the police determine that they have probable cause to believe that a violation of article 26 of the Agriculture and Markets Law has occurred, they "must" issue an appearance ticket or summons or make an arrest.
Second, the motion court incorrectly found that plaintiffs had not shown that any of them had tried to file a complaint with regard to violations under the Agriculture and Markets Law. The motion court found that plaintiffs' failure to do so distinguished this case from Matter of Jurnove v Lawrence (38 AD3d 895 [2d Dept 2007]), in which the Second Department held that [*8]the petitioners had stated a mandamus cause of action where they asserted that the local police failed and refused to accept their complaints alleging violations of article 26 of the Agriculture and Markets Law.
This was error for two reasons. First, plaintiffs Rina Deych, Lisa Renz, and Steven and Vanessa Dawson submit affidavits in which they describe instances when they approached police officers personally or called the DOH, 911, and/or 311 to report animal cruelty and/or conditions posing a public health hazard, and when they participated in or observed protests concerning Kaporos in the presence of the police. In each instance described, their action led to no meaningful action by the police to address the violations of the Agriculture and Markets Law or by the DOH to respond to complaints of hazardous conditions.
Second, the City defendants do not claim that they have ever made a determination that the acts reported do not constitute violations of the statutes, regulations and rules cited by plaintiffs, including article 26 of the Agriculture and Markets Law. I disagree with the majority that plaintiffs seek to direct the City defendants how to act. The complaint seeks to compel them to issue summonses or make arrests "where warranted," and to refrain from "aiding and abetting" the non-City defendants in violating the law. I view the complaint as seeking to compel the City defendants not to abdicate their mandatory duty.
Indeed, at least one plaintiff alleges that two police officers admitted to being "horrified" by what they saw when they arrived in response to her call, and that they were unaware of their obligation to enforce the Agriculture and Markets Law before she showed them the relevant sections. Nevertheless, she was told by the officers that they had "orders from on high not to disturb practitioners" of Kaporos. Other plaintiffs allege that their complaints to the police, the DOH, and/or 311 were not addressed at all. One plaintiff claims that the DOH did not investigate the area in response to her complaint until two months after Kaporos had ended. Unsurprisingly, they found no evidence of the blood, fecal matter, used gloves and feathers she had reported being on the street. In my view, these claims are sufficient to withstand a motion to dismiss plaintiffs' mandamus claim. If, as plaintiffs allege, the City defendants have made a policy decision to take no action against Kaporos practiced with chickens on the public streets, without even an investigation, this would appear to be an abdication, rather than, as the majority states, a "proper exercise" of the City defendants' obligations. Moreover, if, as plaintiffs allege, the City defendants are assisting the non-City defendants to violate the law, their provision of supplies and assistance with street closures would not appear to be a proper exercise of discretion.[FN6]
The portion of plaintiffs' complaint that seeks to compel the City defendants to "uphold the law" seeks to compel a general course of conduct, for which mandamus relief is not available. Accordingly, I agree that that portion of the complaint should be dismissed (Walsh, 269 NY at 442; New York Civ. Liberties Union, 4 NY3d at 184). However, "to the extent that plaintiffs can establish that defendants are not satisfying nondiscretionary obligations to perform certain functions, they are entitled to orders directing defendants to discharge those duties" (Klostermann, 61 NY2d at 541; see also Matter of Jurnove, 38 AD3d 895). Since, in my view, [*9]plaintiffs have established, at a minimum, that the police have a mandatory duty under the Agriculture and Markets Law, that portion of their complaint seeking an order compelling them to "issue summonses where warranted, . . . issue violations where warranted [and] properly engage in arrests where warranted" should not be subject to dismissal on this motion. Plaintiffs' allegation that the City defendants "encourag[e], assist[], and participat[e]" in the non-City defendants' violation of the specified laws and regulations is essentially an allegation that they have abdicated their duty to the point that they actively undermine a law they are mandated to enforce. Therefore, this is also an appropriate subject of mandamus relief (see Matter of Jurnove, 38 AD3d at 896)[FN7]. Accordingly, I would vote to reverse the dismissal of plaintiffs' mandamus cause of action against the City defendants, except to the extent that plaintiffs seek to compel the City defendants to "uphold the law" as a general matter.
In reaching this conclusion, I intimate no view as to the merits of plaintiffs' claims but I would permit them to proceed with discovery and a determination on the merits.
Furthermore, I am by no means taking lightly the constitutional issues implicated by governmental involvement in religious activities. Plaintiffs' claims are all predicated on their allegations that the challenged acts take place in public places, on public streets and sidewalks, not within the confines of a religious institution or on its grounds (cf. Church of the Lukumi Babalu Aye, Inc. v Hialeah, 508 US 520 [1993] [invalidating laws which barred religious practice of animal sacrifice, even if
practiced in private]). It appears that a court could grant the relief that plaintiffs seek without infringing on religious freedom.
Order, Supreme Court, New York County (Debra A. James, J.), entered September 24, 2015, affirmed, without costs.
Opinion by Gische, J. All concur except Andrias, J.P. and Gesmer, J. who dissent in a Opinion by Gesmer, J.
Andrias, J.P., Moskowitz, Feinman, Gische, Gesmer, JJ.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 6, 2017
CLERK
Footnotes
Footnote 1:This action was originally styled as a plenary action against individual defendants and the City defendants. Supreme Court appropriately converted the relief against the City defendants into an article 78 proceeding seeking mandamus.
Footnote 2:Plaintiffs also sought a preliminary injunction against the practice of Kaporos, pending resolution of the underlying nuisance action. Supreme Court denied that relief. Although plaintiffs originally appealed from that portion of the order, they subsequently stipulated to withdraw that issue from the appeal.
Footnote 3: We do not agree with the dissent's conclusion that plaintiffs are not seeking to compel a particular action, but seek only to compel the City defendants to investigate. While the pleadings broadly claim such relief along with other relief, the facts plaintiffs allege simply belie any claim that they only seek the limited relief of an investigation. Plaintiffs concede that investigations were, in fact, made of their complaints, albeit, in their opinion, belatedly. Moreover, they admit that the City defendants were fully aware of the circumstances attendant to Kaporos, but failed to take the action they believe is necessary. It is clear that plaintiffs simply disagree with how the City defendants have acted.
Footnote 4:The "must" language pertains only to constables or the police. Consequently, by its terms it cannot support a claim for mandamus against the DOH.
Footnote 5:Because the motion court converted the claims against the City defendants into an article 78 proceeding, the City defendants are denominated respondents, and the plaintiffs are denominated petitioners in that part of this matter. For simplicity, they are referred to as defendants and plaintiffs throughout this opinion.
Footnote 6:For example, plaintiffs allege that the City defendants "aid and abet" the non-City defendants' violation of Administrative Code of the City of New York section 18-112(d), which prohibits the erection of slaughterhouses "or any other . . . calling, which may be in anywise dangerous, obnoxious or offensive to the neighboring inhabitants" along Eastern Parkway or streets intersecting Eastern Parkway.
Footnote 7:I would also find that plaintiffs have a right to the relief they seek. The City defendants rely mainly on their argument that plaintiffs have failed to show a mandatory duty, and do not focus on whether plaintiffs have a legal right to the relief they seek. Plaintiffs clearly have a right to the relief they seek in the same sense that the petitioner National Resources Defense Council had a right to seek compliance with a local law requiring the Department of Sanitation to establish a recycling program in Matter of Natural Resources Defense Council v New York City Dept. of Sanitation (83 NY2d 215 [1994]) and petitioner citizens had a right to have their complaints of animal cruelty responded to by police in Matter of Jurnove v Lawrence (38 AD3d 895).
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Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
[email protected].
THE SUPREME COURT OF THE STATE OF ALASKA
DIANA P., )
) Supreme Court No. S-15688
Appellant, )
) Superior Court Nos. 4FA-12-00096/
v. ) 97/98/99 CN
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 7045 – September 1, 2015
CHILDREN’S SERVICES, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Bethany S. Harbison,
Judge.
Appearances: J. Adam Bartlett, Anchorage, for Appellant.
Miranda L. Strong, Assistant Attorney General, Anchorage,
and Craig W. Richards, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
A mother appeals the termination of her parental rights to her four
daughters, all Indian children under the Indian Child Welfare Act (ICWA).1 She argues
that the trial court erred in finding that the Office of Children’s Services (OCS) proved
beyond a reasonable doubt that placing her children in her custody would likely put the
children at risk of serious harm. We affirm the trial court’s decision.
II. FACTS AND PROCEEDINGS
This case involves Diana and her daughters: Natalie was born in 2008;
Selah was born in 2009; Ava was born in 2010; and Drew was born in 2011.2 The
children’s father has relinquished his parental rights. OCS has been involved with this
family since 2009 because of the parents’ behavior when they drink. The children were
adjudicated children in need of aid in March 2013. Following a trial in the summer
of 2014, the trial court terminated Diana’s parental rights to the children after finding
them subject to conduct or conditions described in AS 47.10.011(6),3 (9),4 and (10).5
1
25 U.S.C. §§ 1901-1963 (2012). The Native Village of Grayling has
intervened on the children’s behalf pursuant to 25 U.S.C. § 1903(1).
2
Pseudonyms have been used to protect the privacy of the parties.
3
Alaska Statute 47.10.011(6) allows a trial court to find a child to be in need
of aid if “the child has suffered substantial physical harm, or there is a substantial risk
that the child will suffer substantial physical harm, as a result of conduct by or conditions
created by the child’s parent, guardian, or custodian or by the failure of the parent,
guardian, or custodian to supervise the child adequately.”
4
Alaska Statute 47.10.011(9) allows a trial court to find a child to be in need
of aid if conduct or conditions created by the parent have subjected the child to neglect.
5
Alaska Statute 47.10.011(10) allows a trial court to find a child to be in
need of aid if the parent’s ability to parent has been substantially impaired by the
(continued...)
-2- 7045
Diana appeals.
A. The Evidence
Diana has struggled with mental illness and substance abuse since she was
a teenager. When she was eight or nine years old and living with her father, he
committed suicide. She went to live with her mother, who was an alcoholic. Diana has
been diagnosed with and treated for bipolar disorder, and she has also been treated for
substance abuse at least ten times. Diana has shown a pattern of drinking alcohol while
pregnant, abstaining once she learns she is pregnant, and then resuming drinking after
the child is born. She admitted at trial that she drank during three of her previous
pregnancies. Ava was born with cocaine in her system, but Diana said she did not know
how it got there. She speculated that someone put something in her drink one night.
At the time of trial Diana lived with and was financially supported by her
boyfriend. She was 23 weeks pregnant with her fifth child and abstaining from
intoxicating substances. Diana was focused on healthy activities, such as fishing,
hunting, hide tanning, beading, and learning Athabascan. She testified that she had
become a totally different person over the past eight or nine months; she was much
happier, more patient, and no longer “closed off,” and did not “think [in] black and
white.” Diana testified that her boyfriend did not have a drinking problem, although he
was found to be driving under the influence in 2013 and drank with her in December
2013 when she relapsed.
Diana presented testimony from friends who described her past several
months of abstinence and the changes she had made since she moved to a new village
five months before trial. The witnesses stated that Diana had shown tremendous growth,
5
(...continued)
addictive or habitual use of an intoxicant, which has resulted in a substantial risk of harm
to the child.
-3- 7045
was leading a productive, sober life, and was trusted with people’s children. One of
Diana’s witnesses testified that she did not believe Diana had a drinking problem, but
that witness was Diana’s third-party custodian following her June 2013 driving under the
influence arrest.
The children’s paternal great-aunt, Nancy O., appears to be the children’s
final placement. Nancy has had tribal custody of the children on and off for several
years. She has observed the parents’ repeated pattern of abstinence from substance
abuse, followed by relapse. According to Nancy, “there [were] no two better people on
this earth who could take care of those kids” when they were sober. But when they were
drinking, they were not good parents. Diana became confrontational and bossy, the
children went hungry, and their home was unstable. Natalie became the caregiver of her
siblings; when she was four years old she made her younger sisters’ bottles, changed
their diapers, and dressed them. This caused Natalie to be a “worry wart,” and the stress
caused her “tummy issues” and exacerbated her eczema. The other children also have
issues: Selah has severe separation anxiety, Ava’s speech was delayed, and Drew has
“the shakes.”
Nancy testified that Diana seemed to be doing better in 2014; she
understood how her drinking affected her children, had become reliable, visited the
children several times a month, and bonded with and cared for the children. But Nancy
feared the impact a future relapse would have on the children and acknowledged that
Diana’s recent sobriety had lasted only five months out of many years of substance
abuse. Nancy said she was willing to care for the children until the day she died and
would continue to allow Diana to be in their lives if she remained sober. Nancy testified
that the children told her that they would like to stay with her if they cannot live with
their mother.
-4- 7045
OCS social worker Rosalie Rein testified about the past harm the children
suffered under the care of their parents. Before OCS took custody of the children, their
medical needs were not being met and they were exposed to danger. On one occasion
Diana left Selah with her maternal grandmother, who pulled a knife on her partner in
front of Selah. On another occasion Diana and her mother wanted to go out drinking,
but because the person they found to watch the children was unwilling, “they left the kids
there and ran away.” OCS and the Village of Grayling tried to reunify the family over
a period of several years. But the multiple placements beginning at a very young age
caused the children to lack any sense of permanency and to fear OCS would take them
away. Rein corroborated Nancy’s testimony that Selah suffered separation anxiety.
OCS offered the reports and testimony from two experts: Christy Pichette
of Pichette Counseling Services and Lisa Farrell from Hope Counseling Center. Without
objection, Pichette and Farrell testified as experts in the diagnosis and treatment of
substance abuse and substance-abuse-related disorders.
Pichette’s written report was based on two evaluations of Diana, one in
2012 and a second one in 2013. Pichette diagnosed Diana with alcohol dependence and
other substance dependence in full sustained remission. She noted that Diana self-
reported being diagnosed with bipolar disorder when she was a child, and that there was
also evidence within the assessment suggesting post-traumatic stress disorder. Pichette’s
report included collateral information provided by OCS detailing the parents’ alcohol
abuse and how it caused the children to be neglected and in danger of physical abuse:
people drank in excess and used drugs in the home; there was no food in the refrigerator;
the children were dirty and had rashes on their bottoms due to lack of cleanliness; and
at least one of the children had been exposed to domestic violence. The collateral
information in the report described several other occasions of neglect due to substance
abuse and concluded that the children were extremely vulnerable due to their young ages,
-5- 7045
inability to self-protect, and their prenatal exposure to alcohol and/or drugs. Pichette
recommended a “Level III.3 Medium Intensity Treatment Program (preferably no less
than six months and also dual diagnosis) followed by a long-term Aftercare Program”
for Diana.
Pichette testified that Diana seemed very open, honest, and willing to
engage in treatment. But Pichette recognized that someone who has had “too much
treatment” may become “therapized,” which makes it difficult to get an accurate
assessment. In Pichette’s opinion, a person cannot solve a substance abuse problem by
moving to another town; the problem continues to exist unless the substance abuser takes
the necessary relapse-prevention steps, finds support groups, and addresses the mental
health component through therapy.
Lisa Farrell’s written report, based on her early 2014 assessment of Diana,
described Diana’s substance abuse history, OCS’s involvement in her childhood, her
children’s experience of being in OCS and tribal custody, and her current lifestyle. The
report also described Diana’s pattern of sobriety during pregnancy followed by relapse
after each child’s birth. Farrell’s report did not address the children’s welfare, other than
to include essentially the same collateral information OCS had given to Pichette,
describing Diana’s history of passive-aggressive behavior, yelling, irritation, and stress
caused by having multiple children. Farrell recommended “a Long Term (6 months
to 2 years) Residential Clinically Managed High Intensity Treatment program for women
with Children.” Farrell also firmly recommended that Diana “immerse herself in a strong
parenting program, a substance abuse program, and [dialectical behavioral therapy] skills
development program,” and engage in parent and child interaction therapy.
At trial Farrell explained that she based her recommendation on Diana’s
inability to refrain from substance abuse, her emotional struggles, and the skills she
needed to learn to provide a safe environment for her children. Farrell noted that people
-6- 7045
who abstain from drinking without processing unresolved childhood trauma have a
higher risk of relapse than individuals who have processed their negative childhood
experiences. She felt that Diana lacked insight about her drinking; Diana told Farrell she
would not have time to drink if her children were in her care, but in fact her children had
been removed from her custody due to drinking. Farrell was concerned that the children
needed supervision and protection around Diana because she had a history of passive-
aggressive behavior, yelling, and a generally irritable temperament when she was
stressed. She advised that if the children were to be reunited with Diana they would have
to be reintroduced into Diana’s care one child at a time, with supervision.
B. The Trial Court’s Findings
In a thoughtful and detailed decision, the trial court found that OCS had
“proved by clear and convincing evidence that there [was] a substantial risk that the children
will suffer substantial physical harm as a result of conduct by or conditions created by
[Diana],” pursuant to AS 47.10.011(6). The court cited Diana’s behavior of leaving the
children in unsafe homes or failing to arrange for supervision, and requiring four-year-old
Natalie to care for her siblings. The court noted that when Diana drank, her children went
hungry and their medical needs were not met. The court also addressed Diana’s alcohol
abuse pattern during and after pregnancy, and another pattern of attending substance abuse
programs without completing them or completing them and then relapsing soon after. The
court found: “Because [Diana] has not received needed treatment, she is almost certain to
relapse. If she does, there is a substantial risk that the children will suffer substantial
physical harm — from lack of food, lack of supervision, or exposure to unsafe care
providers.” The trial court made the remaining required statutory findings under the child-
in-need-of-aid (CINA) Rules and ICWA.
Acknowledging that ICWA requires a finding beyond a reasonable doubt that
continued custody by the parent is likely to cause the children serious harm, the trial court
-7- 7045
applied our two-pronged approach requiring OCS to prove that (1) the parent’s conduct is
likely to harm the children, and (2) it is unlikely that the parent will change her conduct.6
Noting that OCS “typically has an expert testify about the potential harm to the child,” the
trial court commented that there was “very little case law about the subject matter of an
expert’s testimony in determining the likelihood that the child will experience harm.” The
court cited Marcia V. v. State, Office of Children’s Services7 as holding that expert testimony
is sufficient to meet ICWA’s requirements even when the expert is only qualified to provide
an opinion on the first prong and allowing OCS to prove the second prong through lay
testimony and other evidence. The trial court stated that there are no published Alaska cases
on point and instead cited two unpublished cases,8 where we upheld termination of parental
rights even though expert testimony proved only one prong of the test. Based on its analysis
of these cases, the trial court concluded that, when the basis for termination is culturally
neutral, the substantial-harm requirement may be met by a combination of lay testimony and
other evidence that the parent’s conduct is harmful to the child, as well as expert testimony
that the conduct is likely to continue.
The trial court noted that in the present case, the experts did not focus on the
harm alcoholic parents cause their children, but they did testify that if Diana received
custody of all of her children it would be harmful to her sobriety. The court observed that
the lay testimony established that Diana’s drinking was harmful to the children. And the
6
See Chloe W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 336 P.3d 1258, 1269-70 (Alaska 2014).
7
201 P.3d 496, 501-02, 504-05, 508 (Alaska 2009).
8
See Camille H. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., Mem. Op. & J. No. 1419, 2012 WL 1649167 (Alaska May 10, 2012); Stephen H.
v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., Mem. Op. & J.
No. 1400, 2011 WL 6004352 (Alaska Nov. 30, 2011).
-8- 7045
court came to what it called a “common-sense” conclusion that if the children were removed
from their bonded placement and placed in the care of a mother who, because of alcohol, is
not emotionally or physically stable enough to care for her own needs, the children would
be at substantial risk of harm. Because of Diana’s unresolved alcoholism and mental health
problems, her inability to care for herself, and her history of drinking and neglect, the trial
court found beyond a reasonable doubt that placing the children in her custody would likely
put them at substantial risk of harm.
III. STANDARD OF REVIEW
Before terminating parental rights under ICWA and the CINA statutes and rules,
the trial court must find by clear and convincing evidence that the child has been subjected
to conduct or conditions described in AS 47.10.011;9 that the parent has not remedied, or has
not remedied within a reasonable time, the conduct or conditions in the home that place the
child at substantial risk of physical or mental injury;10 and in the case of an Indian child, that
active but unsuccessful efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family.11 ICWA also requires that
the trial court find, “by evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent . . . is likely to result
in serious emotional or physical damage to the child.”12 Finally, the trial court must
9
AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
10
AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)-(ii).
11
25 U.S.C. § 1912(d) (2012); CINA Rule 18(c)(2)(B).
12
25 U.S.C. § 1912(f); see also CINA Rule 18(c)(4).
-9- 7045
determine by a preponderance of the evidence that “termination of parental rights is in the
best interests of the child.”13
The only issue Diana raises in her appeal is whether the trial court erred in
finding that OCS proved beyond a reasonable doubt that placing her children in her custody
likely would put the children at risk of serious emotional or physical harm. “[W]hether
substantial evidence supports the court’s conclusion that an Indian child is likely to be
seriously harmed if returned to his parent is a mixed question of fact and law.”14 The court’s
factual findings are reviewed under the clearly erroneous standard, and its legal conclusions
are reviewed de novo.15 “Clear error arises only when our review of the entire record leaves
us with a definite and firm conviction that the superior court has made a mistake.”16
IV. DISCUSSION
The Trial Court Did Not Err In Finding That The Evidence Presented Proved
Beyond A Reasonable Doubt That The Children Would Likely Be Seriously
Harmed If Returned To Diana.
ICWA requires that the trial court find “by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of the child by
the parent . . . is likely to result in serious emotional or physical damage to the child.”17 We
13
CINA Rule 18(c)(3); see also AS 47.10.088(c).
14
E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 989
(Alaska 2002) (citing L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946, 949-50
(Alaska 2000)) (holding that factual findings in termination proceedings are reviewed
under the clearly erroneous standard, but whether those findings comport with ICWA
requirements presents questions of law).
15
L.G., 14 P.3d at 949-50.
17
25 U.S.C. § 1912(f); see also CINA Rule 18(c)(4).
-10- 7045
have adopted a two-prong test to determine whether continued custody by the parent is likely
to cause serious harm to the child. Proof that a parent having custody is likely to cause a
child serious harm requires evidence that (1) the parent’s conduct is likely to harm the child
and (2) the parent’s conduct is unlikely to change.18 We have explained that “[s]erious harm
can be proved through the testimony of a single expert witness, by aggregating the testimony
of expert witnesses, or by aggregating the testimony of expert and lay witnesses.”19 “The
findings of a likelihood of serious emotional or physical damage are findings that must be
made by the trial judge, not the expert witness.”20 Alcohol relapses may be considered in
establishing the likelihood that a child would suffer harm.21
While ICWA requires that the evidence supporting this finding include expert
testimony, it does not clarify the scope of the expert testimony required,22 nor does it require
that the expert testimony provide the sole basis for the court’s conclusion.23 “[N]o one
individual qualified expert witness must possess all the knowledge necessary to support both
18
Chloe W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 336 P.3d 1258, 1269-70 (Alaska 2014); see also Jon S. v. State, Dep’t of Health
& Soc. Servs., Office of Children’s Servs., 212 P.3d 756, 767 (Alaska 2009) (“Proof of
the likelihood of future harm must include qualified expert testimony based upon the
particular facts and issues of the case, but the trial court may aggregate this with other
evidence as a basis for its finding.” (quoting E.A., 46 P.3d at 991) (internal quotation
marks omitted)).
19
Chloe W., 336 P.3d at 1270 (quoting L.G., 14 P.3d at 950) (internal
quotation marks omitted).
20
Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496, 508
(Alaska 2009).
21
See L.G., 14 P.3d at 950.
22
See 25 U.S.C. § 1912.
23
See E.A., 46 P.3d at 992.
-11- 7045
prongs of the question posed by the statute.”24 We have not yet established whether expert
testimony on its own must directly answer both prongs of the test.
Although it may be best practice for expert testimony to address both prongs
of the “serious emotional or physical damage to the child” test, we conclude that it is not
required when the basis for termination of parental rights is culturally neutral: so long as
qualified expert testimony directly supports one prong of the substantial harm requirement
and inferentially supports the other prong, the statutory requirements will be satisfied. It
therefore was not legal error under ICWA for the trial court to make a common-sense finding
based on lay testimony that reuniting Diana with her children would likely result in serious
emotional or physical damage to the children.
1. The first prong: conduct would likely harm the children
Diana argues that the trial court’s risk-of-harm finding contravened ICWA
because it was based on lay testimony and not expert testimony. She also contends that the
trial court should not have considered expert testimony in finding that her conduct would
likely harm the children because neither expert was qualified to testify about the children.
We conclude that the trial court had appropriate support for its finding that the
first prong of the test was satisfied. The finding that the children would likely suffer harm
if returned to Diana is inferentially supported by the experts’ opinions that Diana was unable
to cope with caring for multiple children and would likely relapse after having her fifth child.
It is also directly supported by lay testimony that substance abuse had caused her to abandon
and neglect her children in the past.
24
In re Parental Rights of T.O., 759 P.2d 1308, 1311 (Alaska 1988).
-12- 7045
We recently addressed this issue in Sadie D. v. State, Department of Health &
Social Services, Office of Children’s Services.25 There, one of the experts was qualified as
an expert in substance abuse and treatment. The other expert was a mental health clinician
and qualified as an expert in psychological assessments. Both experts testified about the
mother’s mental health and substance abuse issues, although neither spoke directly to the
harm the children would likely suffer as a result of the mother’s problems.26 However, a
number of lay witnesses testified about the negative impact the mother’s problems had on her
child’s needs.27 The psychologist’s report addressed the mother’s apparent inability to care
for her child, her “lack of psychiatric stability,” the role substance abuse played in her ability
to respond to her child, and the risk her housing situation presented to herself and her child.28
We stated: “In the aggregate, including the testimony of qualified experts, the record
supports the superior court’s predictive finding that [the child] faced a likelihood of physical
or emotional harm if he was returned to his mother’s care. The superior court did not clearly
err in making that finding.”29
Our holding in Camille H. v. State, Department of Health & Social Services,
Office of Children’s Services30 similarly supports the trial court’s finding of substantial risk
of harm even though the expert testimony did not directly address the harm alcoholic parents
cause their children. There, we relied upon the “common-sense notion” that intoxicated
25
Mem. Op. & J. No. 1516, 2014 W L 4536352, at *4 (Alaska Sept. 10, 2014).
26
Id. at *4-5.
27
Id. at *5.
28
Id.
29
Id.
30
Mem. Op. & J. No. 1419, 2012 WL 1649167, at *10 (Alaska
May 10, 2012).
-13- 7045
parents put their children at risk, particularly in light of the affected children’s special needs
and the treatment providers’ testimony that the parents’ profound alcoholism remained
unresolved.31
Neither expert in the present case expressly stated that the children would likely
be harmed if returned to Diana, nor was either expert specifically qualified to do so. But the
experts were qualified to render opinions on the second prong of the test and they did so, as
we discuss in the next section. Furthermore, support for the first prong could reasonably be
gleaned from the experts’ observations that Diana would likely relapse and not be a safe
mother.
Furthermore, the lay witnesses’ testimony clearly supported the trial court’s
finding that Diana’s conduct would likely seriously harm the children. For example, OCS
worker Rein testified that before OCS took custody of the children, their medical needs were
not met and they were exposed to danger. For several years OCS and the Village of Grayling
tried to reunify the family but were met with continued adversity caused by the parents’
alcohol and substance abuse, which diminished the children’s sense of permanency. Nancy
testified that she was concerned Diana would relapse and cause harm to the children, after
seven years of back and forth and multiple placements. Nancy also testified about Diana’s
difficulty parenting when she drank, her numerous attempts at sobriety, and the impact her
behavior had on the children, including stress, anxiety, and developmental delays. We
conclude that reasonable inferences from the expert testimony, coupled with lay witness
testimony and documentary evidence from the record, are sufficient to support the trial
court’s finding that returning the children to Diana’s care was likely to endanger them. We
therefore affirm the trial court’s serious harm finding.
31
Id. at *10-11.
-14- 7045
2. The second prong: conduct was not likely to change
Diana argues that OCS’s expert testimony was insufficient to satisfy the second
prong. We conclude that the evidence amply supports the trial court’s finding that Diana’s
conduct was not likely to change. Pichette testified that with a dual diagnosis, substance
abuse will remain an issue until the underlying mental-health issues triggering the abuse are
treated. Farrell’s opinion that Diana lacked insight into her drinking behavior also supports
a finding that her behavior will not improve in the near future.32
The lay testimony also supports the trial court’s finding that Diana will likely
relapse. Nancy stated that Diana had a long history of drinking in excess and had abstained
from drinking for only five months. Diana herself testified that she had struggled with mental
illness and alcohol and substance abuse since she was young, had been in treatment at least
ten times, and had a pattern of relapsing after each pregnancy. Because the aggregated
testimony of expert and lay witnesses supports the trial court’s finding that Diana likely will
continue to relapse until she resolves her underlying mental health issues, the trial court’s
conduct-not-likely-to-change finding is not clearly erroneous.33
32
See Jon S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 212 P.3d 756, 767 (Alaska 2009) (“Although the court must focus on risk of
future harm rather than past injury, past failures may predict future conduct.”).
33
Though Diana did not appeal the trial court’s active efforts finding, we take
the opportunity to commend the efforts OCS made in attempting, unsuccessfully, to
reunite the children with their mother. OCS and the Native Village of Grayling
alternately tried to reunify the family and protect the children during a five-year span.
They provided in-home services; substance abuse assessments; and opportunities for
treatment, including a urinalysis program and airplane travel. They also assisted with
transitions when the children were removed from their parents’ care, maintained contact
among the children when they were apart, provided assessments and evaluations for the
children, and ensured visitation with the children.
-15- 7045
3. Summary
To summarize, expert witnesses testified that Diana lacked insight into her
drinking; needed long-term residential treatment; had a history of passive-aggressive
behavior, yelling, irritation, and stress caused by multiple children; and was at high risk of
relapse. An expert testified that the children needed supervision and protection when around
Diana because of these problems. Lay witnesses testified that Diana’s drinking was harmful
to her children. Considering all of this evidence, we agree with the trial court: if the children
were removed from their bonded placement and placed in Diana’s care, they would be at
substantial risk of harm. The trial court did not err in making this finding beyond a
reasonable doubt.
V. CONCLUSION
We AFFIRM the trial court’s order terminating Diana’s parental rights.
-16- 7045
| {
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} |
327 F.2d 391
140 U.S.P.Q. 289
JOHNSON & JOHNSON, Plaintiff-Appellee,v.The KENDALL COMPANY, Defendant-Appellant.
No. 14227.
United States Court of Appeals Seventh Circuit.
Jan. 22, 1964, Rehearing Denied Feb. 28, 1964.
William E. Anderson, Chicago, Ill., Charles H. Walker, New York City, Anderson, Luedeka, Fitch, Even & Tabin, Chicago, Ill. (Harry R. Pugh, Jr., Fish, Richardson & Neave, New York City, Rowland V. Patrick, H. L. Kirkpatrick, Fish, Richardson & Neave, Boston, Mass., Thomas W. Underhill, Thacher H. Fisk, Boston, Mass., of counsel), for defendant-appellant.
Sidney Neuman, Chicago, Ill., Harold Haidt of Johnson & Johnson, New Brunswick, N.J., Thorley von Holst, James R. Dowdall, Robert L. Austin, Chicago, Ill., for plaintiff-appellee.
Before DUFFY, SCHNACKENBERG and SWYGERT, Circuit Judges.
DUFFY, Circuit Judge.
1
This is a suit charging infringement of Gross Patent No. 2,703,083, relating to an 'Adhesive Bandage.' It was issued to plaintiff on March 1, 1955 as a continuation-in-part of earlier abandoned applications of Shelley and Gross filed respectively on June 25, 1953 and September 25, 1953. The complaint charging defendant with infringement was filed the same day the patent was issued.
2
Plaintiff, Johnson & Johnson, is a major producer of adhesive products including adhesive tape and adhesive bandages. The trademark of plaintiff's adhesive bandage is 'BAND-AID.' Defendant's Bauer & Black division, manufactures similar products, and its adhesive bandages are sold under its trademark 'CURAD.'
3
At the time of submission to the District Court, each side submitted proposed findings of fact and conclusions of law. At a later period, the District Court filed its opinion,1 holding product claims 1, 2, 4, 5, 8, 9, 11 and 12 of the patent in suit were valid and infringed by defendant's adhesive bandages. The Court directed plaintiff to prepare and submit findings of fact, conclusions of law and judgment order consistent with the opinion. Plaintiff re-submitted the same proposed findings and conclusions as it had theretofore submitted with the exception that the findings last submitted had the references and headings deleted. The Court adopted these findings as submitted.
4
Adhesive bandages have been familiar household articles for thirty or more years. They consist of a piece of pressure-sensitive adhesive tape, to the central portion of which a small pad of gauze has been affixed. The adhesive consists of a backing or backing strip coated with an adhesive substance, which substance is usually referred to as the mass.
5
The surface of the gauze pad is protected prior to use by overlapping facing strips which are attached to the exposed adhesive-covered portions of the backing. These protective facing strips, which are removed prior to the use of the bandage, protect not only the gauze pad, but the adhesive surface as well. The bandages are enclosed in individual envelopes in which they are sealed and sterilized.
6
In spite of the fact that the patent in suit is entitled 'Adhesive Bandage,' it is not concerned with the material of which the backing is made, nor with the formulation of the adhesive mass. It is concerned with the nature of the facing strips which are used to protect the adhesive surfaces and the gauze pad.
7
Prior to 1950, the backing strip of adhesive bandages was usually a white woven cloth which was substantially inextensible, the same as the backing strip of the surgical tape of that day. About 1951, both plaintiff and defendant began using extensible plastic strips instead of woven fabric. The bandages made from this plastic material conformed more readily to the irregularly shaped portions of the human body. Thereafter, extensible plastic backings became conventional.
8
Prior to about 1953, the protective removable facing strips were usually made of a loosely woven fabric called crinoline, which is a starched gauze. However, crinoline has been replaced on the commercial products of both parties to this suit by thin, smooth strips of synthetic plastic material, either in the form of thin, unsupported films, or thin films laminated to paper.
9
The patent in suit is concerned with that substitute of materials for facings and with the benefits which result from the use of such facings.
10
Certain basic requirements for a material to be used for facing strips flow from the function to be performed. One self-evident requirement is that the facing material should be readily removable from the adhesive surface when the user wishes to apply the bandage. Another such requirement is that the material be inert in the sense that it should not adversely affect the adhesive mass and other portions of the bandage with which it is in contact, especially when subjected to high heat in the process of sterilization.
11
As a facing material, crinoline possessed these qualities. It was chemically inert, was readily removable from the adhesive and was not expensive. There was a drawback to crinoline, however, because its rough and open-meshed texture became embedded to some extent in the adhesive surfaces to which it was applied, with the result that the adhesive surfaces, upon removal of the crinoline, were somewhat rough. Because of this roughness, the initial contact of the adhesive mass with a portion of the body to which it was applied, involved only the high spots of the adhesive surface, and it was usually necessary to apply pressure in order to bring the full potential of the adhesive mass into play. Also, some of the crinoline's starch content sometimes transferred to the adhesive and masked portions of the adhesive surface resulting in reduction of adhesive ability of the bandage.
12
Both parties to this suit endeavored from time to time to find a more suitable facing material, and both looked for a material with continuous smooth surfaces.
13
The parties to this suit had been aware for years that the tackiness of an adhesive mass on initial contact was greatly enhanced by the use of a facing material having a surface which was smoother than crinoline.
14
The structural elements of an adhesive bandage are a) the backing, b) the adhesive layer covering the backing, c) the gauze pad or compress, and d) the facing which overlies the pad and adhesive to protect them until the bandage is used. Plaintiff claims the contribution made by Gross was to provide a bandage characterized by new and critical relationships between these structural elements.
15
The District Court found in the Gross bandage 1) the facing members have a smooth surface; 2) the facing members are in such intimate contact with the adhesive mass that they exclude air and impart to the adhesive the smooth surface characteristics of the facing members, and notwithstanding the intimacy of such contact and the conditions used to sterilize the bandage, the facing members are 3) inert with respect to the mass, and 4) releasable, that is, easily and cleanly removable from the adhesive without separating the adhesive from the backing and without impairing the smooth surface characteristics imparted to the adhesive by the facing. These relationships are described in the Gross patent as the four basic requirements or principles of the invention.
16
As an illustration that both parties knew that a smoother adhesive surface which resulted from the use of a smooth-surfaced facing material, would give greater adhesiveness upon initial contact, defendant points to an industrial tape known as 281 which defendant had sold commercially beginning in 1949. This was a double surfaced tape where both sides were coated with adhesive. It was sold in roll form, a continuous smooth-surfaced strip of polyethylene film was interposed between each convolution of the tape so that when rolled under tension each of the two adhesive surfaces of the tape were firmly pressed against the interposed polyethylene facing sheet. On the unrolling of the tape and the removal of the facing sheet, the resulting smooth adhesive surfaces were possessed of superior adhesiveness on initial contact. In the testimony this was sometimes referred to as 'quick-stick.'
17
However, there is an important difference in the requirements of a facing material to be sold in roll form and adhesive tape to be incorporated into adhesive bandages. Tape sold in the form of adhesive bandages is required by law to be sterilized. The polyethylene which defendant used in the interleaved facing sheet in its 281 tape could not be used in adhesive bandages which were destined to be steam-sterilized. This material could not withstand the high temperature at which a steam-sterilization must be conducted. Thus, synthetic plastic materials which were available prior to 1951 were not satisfactory for adhesive bandages.
18
In 1951, du Pont developed a new synthetic plastic, technically a polyester of terephthalic acid and a dihydric alcohol such as ethylene glycol, which in fiber form became well known as Dacron. The same material in film form was sold under the du Pont trademark Mylar. This material could withstand the high temperature involved in steam-sterilization. In September 1952, after much experimentation, plaintiff confirmed that Mylar promised the desired capabilities of surviving steam sterilization and with its lustrous film commended it for use in place of crinoline as a facing material.
19
In October 1952, someone in plaintiff's organization found that when he lightly laid one of the ends of an adhesive bandage which had been faced with Mylar paper laminate on a can in which adhesive bandages are usually sold, it would adhere so strongly that the can could be lifted.
20
In the spring of 1952, defendant found a Munising vinyl-coated facing survived steam-sterilization better than any previous material it had encountered. Using this material, it made a market test in the Chicago area in early March 1953. This was prior in time to the filing of the application for the patent in suit.
21
Plaintiff learned of defendant's market test. In May 1953, plaintiff came on the market with Mylar laminate facing bandages and with the knowledge that a material then available known as Kodapak IV, newly developed by Eastman Kodak Company, could also be used instead of Mylar, the latter being then in short supply. Mylar and Kodapak had in common that they were newly developed, and were capable of withstanding the high temperature involved in steam-sterilization.
22
In May 1953, when plaintiff first marketed its Mylar-faced bandage, defendant had not then decided to replace crinoline with a smoother facing material. At that time, plaintiff's sales of BAND-AIDS were about four times that of defendant's CURADS, and defendant was somewhat reluctant to abandon its product which had been well-advertised and much used in the past.
23
Thus, both parties to this suit acquired the capability of making satisfactory adhesive bandages with quick-stick capability on a commercial basis. Plaintiff did so by obtaining access to Mylar and Kodapak IV, new materials developed by others to which plaintiff made no contribution. Defendant did so first by locating the Munising vinyl-coated paper and later, by acquiring equipment permitting low temperature gas sterilization. However, each of the parties to this suit were confronted with the practical question of whether they should adopt these new methods or to let well enough alone. The new materials were more expensive. Plaintiff's ultimate decision was greatly influenced by learning of defendant's test-marketing in Chicago. go. As the president of plaintiff put it, defendant's marketing 'put the burr under our tails and caused us to move more rapidly than we might have otherwise.'
24
Plaintiff's advertisements and demonstrations made wide and effective use of the can-lifting capabilities of the new BAND-AID bandages. Defendant deemed it necessary to offer to the public a product having similar can-lifting capability. In the summer of 1953, defendant followed plaintiff on the market with its steam-sterilized CURAD bandage faced with vinyl-coated paper.
25
Plaintiff claims that all of the defendant's accused adhesive bandages infringed claims 1, 2, 11 and 12 of the Gross Patent; that defendant's vinyl-faced adhesive bandage also infringed claims 4 and 9, and that defendant's polyethylene-faced bandages also infringed claims 5 and 8. The District Court found that Gross Patent claims 1, 2, 4, 5, 8, 9, 11 and 12 were infringed by defendant's adhesive bandages.
26
The District Court placed much reliance on the district court decision in Johnson & Johnson v. C. B. Stenvall, Inc. (S.D.N.Y.), 193 F.Supp. 128. Claims of the Gross patent in suit were in issue in that case. The Court there held that claims 1, 2, 3, 9, 11 and 12 of Gross Patent No. 2,703,083 were valid and infringed.
27
Defendant points out that the trial of the Stenvall case took less than two days, and claims that much of the pertinent prior art relied on in the instant case, which consumed nineteen trial days, was not before Judge Solomon who tried the Stenvall case. An appeal was taken in the Stenvall case, but a settlement was effected. Stenvall took out a license and the appeal was dismissed.
28
We think the District Court was in error in finding that defendant copied the plaintiff's patent. The patent in suit did not issue until March 1, 1955. This was nearly two years after defendant's product had been test-marketed.
29
Plaintiff's first smooth-faced bandages with facings of Mylar laminated to paper were marketed in May 1953. This was after some of plaintiff's officers had seen a bandage which defendant had test-marketed in the Chicago area, and in which the paper facings were impregnated with a vinyl plastic which produced a smooth surface.
30
Although the Mylar and Kodapak IV laminates used by plaintiff could be steam-sterilized, defendant's vinyl-coated paper was only marginal in this respect. Later, defendant replaced its vinyl-treated paper facings with an unsupported film of polyethylene which it had long used as a facing sheet in connection with its industrial adhesive tape 281. It could do this because it had installed equipment by which bandages could be sterilized by the carboxide gas process which operated at a lower temperature than sterilization by steam.
31
Neither plaintiff nor defendant was the first to utilize gas sterilization for adhesive bandages in the United States. Neither was first to introduce adhesive bandages having smooth continuous facings. In 1950, Cress bandages appeared on the market. These bandages had facing sheets of metal foil laminated to paper similar to wrappers for chewing gum and cigarette packages. The smooth surface of the metal foil facings smoothed the surface of the adhesive portions of the bandage. Government records show shipments of Cress bandages into this country from Canada in February 1952. The testimony showed that plaintiff received some disquieting reports from their field men with reference to competition from the Cress bandages.
32
Bandages employing metal facings have all the attributes of the product of the Gross patent except that the Gross patent has the artificial limitation that the facing shall be of organic material. The Cress bandages were sterilized by the use of carboxide gas.
33
Defendant strongly urges lack of patentable invention on the basis of obviousness under Section 103. We, of course, have the right to determine whether the District Court applied the proper standard of invention. This is a matter of law reviewable by this Court. New Products Corp. v. Outboard Marine & Mfg. Co., 7 Cir., 263 F.2d 521, 525; Armour & Co. v. Wilson & Co., 7 Cir., 274 F.2d 143, 151-157.
34
The record clearly shows that the adoption of smooth-facings in adhesive bandages awaited the development of materials such as Mylar and Kodapak IV which could withstand the high temperatures of steam sterilization, and also the development of equipment and techniques using gases such as carboxide which made possible the sterilization of facing materials such as polyethylene at a lower temperature. Certain it is that Gross contributed nothing to either of these developments.
35
We think the achievement of 'instantaneous adhesion' by the use of smooth facings was well known in the art and had been put to practical use by each of the parties to this suit in various of their commercial products. There was nothing unobvious, unexpected or surprising in Gross' teachings, after the logjam had been broken by others. As was said in Ruben Condenser Co. v. Aerovox Corp., 2 Cir., 77 F.2d 266, 268, cert. den. 296 U.S. 623, 56 S.Ct. 145, 80 L.Ed. 443, '* * * if the machine or composition appears shortly after some obstacle to its creation, technical or economic, has been removed, we should scrutinize its success jealously; * * *'
36
In Weston Electrical Instrument Corp. v. Dejur-Amsco Corp., 2 Cir., 133 F.2d 778, 781, the Court considered that a portable exposure meter had been held up until the art had developed a self-generating 'photo-electric cell' with enough power to move the indicating mechanism. The Court pointed out that two persons, in an interval of two or three years, thought of the expedient that was involved in that case. The Court held the patent invalid.
37
The case of Glikin v. Smith, 5 Cir., 269 F.2d 641, is pertinent to the case at bar. In Glikin, the patent was on eye-glasses in which a hearing aid was incorporated in one of the side bows of the frame. The Court held the patent invalid, pointing out the development of transistors and other miniature components and not Smith's invention were responsible for the acceptance and commercial success of hearing-aid glasses. The Court said, 269 F.2d at 654: 'In this proceeding we see Smith as attempting to assert a patent monopoly over efficient and commercially successful hearing aid eyeglasses which owe their efficiency and success to scientific advances with which Smith had nothing to do.'
38
It is our view that plaintiff's attempt to assert a patent monopoly over adhesive bandages which owe their efficiency, as far as 'quick-stick' is concerned, to scientific advances in new facing materials and sterilizing methods with which Gross had nothing to do, is analogous to the effort of the patentee in Glikin v. Smith. We hold that the claims of the patent in suit are invalid because of lack of patentable invention.
39
Defendant strongly urges that the patent in suit is invalid because it attempts to differentiate the facings with which it is concerned from those of the prior art in terms of their ability to perform their intended function, rather than by reference to the physical structure or chemical characteristics which enable them to do so. Defendant argues that several of the 'basic requirements' of the alleged invention are defined in the claims in the terms of their ability to achieve the desired result rather than in terms of the physical or chemical structure by which that result is achieved.
40
It is well established that claim elements may not be functional at the point of alleged novelty. General Electric Co. v. Wabash Appliance Corp.,304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. We consider this question raised by the defendant to be a close one. However, we rest our decision that the patent in suit is invalid on the reasons hereinbefore stated.
41
Defendant has also insisted that the patent, properly construed, is not infringed by its adhesive bandage. It insists that by the application of the final facing material, the surface of the mass is slightly roughened rather than smoothed by the application of the facing. Defendant argues that a smooth surface is not imparted to the adhesive surface by the application of the final facing, as is called for by each of the claims in suit.
42
In view of our holding of invalidity, we do not reach the question of infringement.
43
The complaint must be dismissed.
44
Reversed.
1
Published in 215 F.Supp. 124
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Affirmed and Opinion filed July 24, 2007
Affirmed and Opinion filed July 24, 2007.
In The
Fourteenth Court of
Appeals
____________
NO. 14-06-00736-CR
____________
CHRISTOPHER VOMAKOYIMA TITA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd
District Court
Harris County, Texas
Trial Court Cause No. 1075284
O P I N I O N
Appellant, Christopher Vomakoyima Tita, was charged by
indictment with aggregated theft by a government contractor of over $200,000. See
Tex. Penal Code Ann. ' 31.03(f)(2)
(Vernon Supp. 2006). Appellant entered a plea of not guilty and the case
proceeded to trial before a jury. After considering the evidence, the jury
found appellant guilty as charged in the indictment. The jury subsequently
assessed appellant=s punishment at confinement in the state
penitentiary for 23 years and assessed a fine of $10,000. In two related
points of error, appellant contends (1) the trial court erred in overruling his
motion to dismiss the indictment which was barred by limitations, and (2) the evidence
was insufficient to show that prosecution for the offense at issue was not
barred by limitations. We affirm.
The evidence shows appellant was a pharmacist who
fraudulently submitted over $600,000 in Medicaid reimbursement claims to the
Texas Department of Health and Human Services between June 1998 and October 31,
2000. Appellant falsely alleged he had supplied expensive medications to
patients covered by Medicaid insurance. The Texas Department of Health and
Human Services paid these claims until the theft was discovered when a patient
disputed a medication on her explanation of benefits.
In his first point
of error, appellant contends the trial court should have dismissed the
indictment because it did not reflect on its face that the offense was
committed within the applicable statute of limitations. The statute of
limitations for theft by a government contractor is five years. Tex. Code Crim. Proc. Ann. art.
12.01(4)(A) (Vernon 2005). The indictment alleged, in pertinent part, that
appellant:
. . . heretofore
on or about June 28, 1998 and continuing through to October 31, 2000, did then
and there unlawfully, intentionally and knowingly, while a government
contractor, namely, a Medicaid provider, pursuant to one scheme and continuing
course of conduct, appropriate, by acquiring and otherwise exercising control
over property, namely, money, owned by Sharon Thompson, hereafter called the
Complainant, of the value of over two hundred thousand dollars with the intent
to deprive the Complainant of the property, and said property came into the
Defendant=s custody, possession and control by virtue of the
contractual relationship.
Because
of the continuing nature of an aggregated theft, the effective date of the offense
alleged here is October 31, 2000. See King v. State, 17 S.W.3d 7, 13
(Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (holding that
in the case of aggregated theft, the statute of limitations does not begin to
run until the date of the commission of the final incident of theft). Here,
the indictment was returned by the grand jury on July 3, 2006Ca date clearly
outside the five-year statute of limitations.
The State contends, however, that the statute of
limitations was tolled by a series of previous indictments.[1]
The record reflects appellant was first indicted for this offense on March 14,
2005 in cause numbers 1019874 and 1019875. He was then reindicted for this
offense in cause numbers 1028872 and 1028873 on May 31, 2005. All of these
previous indictments were returned within the statute of limitations.
Appellant does not dispute the fact that these indictments were returned within
the limitations period, but argues the State was obliged to include a tolling
allegation on the face of its current indictment.
Statutes of limitation were formerly considered
jurisdictional in nature. In other words, because the legislature had fixed a
period of limitation, there was Ano authority in
law to prosecute any citizen of Texas for [a] violation of the law after the
period of limitation [had] intervened.@ Ex parte
Hoard, 63 Tex. Crim. 519, 140 S.W. 449, 451 (1911). Thus, Aif the pleading,
on its face, [showed] that the offense charged [was] barred by limitations the
complaint, information, or indictment [was] so fundamentally defective that the
trial court [did] not have jurisdiction.@ Ex parte
Dickerson, 549 S.W.2d 202, 203 (Tex. Crim. App. 1977). Accordingly, if the
State sought to take advantage of some exception or circumstance tolling the
period of limitations, it was incumbent upon the State to both plead and prove
the exception. Cooper v. State, 527 S.W.2d 563, 565 (Tex. Crim. App.
1975). This was done in a Atolling paragraph@ on the face of
the indictment which set forth the facts or circumstances allegedly tolling the
period of limitations.
In 1993, however, the Court of Criminal Appeals radically
altered its view of limitations. The court held that in light of amendments to
Tex. Const. art. V, ' 12, Aan indictment which
charges the commission of an offense barred by limitations still confers
jurisdiction upon the trial court, such that the defendant must bring the
defect to the attention of the trial court in order to preserve any error.@ Yount v.
State, 853 S.W.2d 6, 8 (Tex. Crim. App. 1993) Rather than being
jurisdictional in nature, a Astatute of limitations is an act of grace
for the benefit of potential defendants, a voluntary surrendering by the people
of their right to prosecute.@ Proctor v. State, 967 S.W.2d 840,
843 (Tex. Crim. App. 1998). Thus, the statute of limitations is a defense
that may be waived or forfeited by the defendant=s failure to
assert it before or during trial. Id. at 844.
The Legislature
has decreed that the State need not negate the existence of a defense or
affirmative defense in its charging instrument. Tex. Penal Code Ann. '' 2.03(b) &
2.04(b) (Vernon 2003). Accordingly, there is no longer any logical
justification for the necessity of a tolling paragraph in an
indictment. However, jurisprudential inertia often perpetuates extinct
doctrines long after their logical demise. As recently as 2005, the Court of
Criminal Appeals held that some type of tolling allegation is still required on
the face of the indictment. Ex parte Smith, 178 S.W.3d 797, 803 (Tex.
Crim. App. 2005) (per curiam). Although it relaxed the specificity formerly
required in tolling allegations and held that defects in a tolling paragraph
can never rise to the level of Afundamental@ error, the court
persisted in the notion that some tolling allegation must appear on the face of
the indictment:
. . . if the State=s pleading includes a Atolling paragraph,@ Aexplanatory averments,@ or even Ainnuendo allegations,@ this suffices to show that the
charged offense is not, at least on the face of the indictment, barred by
limitations.
Of course, a tolling paragraph may neglect to include names, dates,
manner and means, and so forth. A tolling paragraph need not be alleged with
the same degree of particularity as we would expect of an allegation of the
charged offense, but any purported defects of form and substance in either the
charge or the tolling paragraph relate to notice and must be brought to the
trial court=s attention before trial or they are waived. These
specificity defects are reparable. They do not destroy a trial court=s power or
jurisdiction to proceed, and they may not be raised by means of a pretrial writ
of habeas corpus. Instead, they may and must be raised in a motion to quash or
motion to dismiss the pleading.
Id. The court,
however, did not directly address the issue presented hereCwhat consequences
flow from the State=s failure to include any type of
tolling allegation on the face of the indictment.
At least two courts of appeals have considered the
necessity of including tolling averments on the face of an indictment after Yount
and Proctor. In Burgett v. State, 865 S.W.2d 594, 600 (Tex. App.CFort Worth 1993,
pet. ref=d), the Second
Court of Appeals held that a tolling paragraph need not be included on the face
of an amended indictment. Likewise, in DeLeon v. State, No.
07-00-00189-CR, 2001 WL 246580, at *3 (Tex. App.CAmarillo Mar. 31,
2001, pet. ref=d) (not designated for publication), the Seventh Court
of Appeals held an indictment is not defective for failing to allege facts
tolling the statute of limitations. Because a tolling paragraph is no longer
necessary to convey jurisdiction to the trial court, we agree. Here, appellant
asserted his limitations defense as he was required to do. The State responded
by showing previous indictments regarding the same subject matter that toll the
statute of limitations. Appellant=s first point of
error is overruled.
In his second point of error, appellant claims the evidence
is insufficient to support his conviction because the State failed to show the
offense occurred within the period of limitations. The record reflects that
appellant filed a motion to dismiss the indictment. One ground contained in
the motion was that the prosecution was barred by limitations. At a hearing on
the motion, the State=s attorney asked the trial judge to take
judicial notice of previous indictments filed in his court that were obtained
prior to the expiration the limitations period and which served to toll the
statute of limitations. The trial judge apparently granted the request because
he subsequently denied appellant=s motion to
dismiss.
On appeal, appellant contends the evidence is insufficient
because (1) the State never introduced the prior indictments into evidence for
the jury to consider and (2) the court never included an appropriate
tolling instruction in its jury charge. However, appellant apparently never
raised the issue before the jury. Appellant has not cited, and we have not
found, any place in the record where he asserted or raised the defense of
limitations before the jury. Accordingly, the State was not put to its burden
of proof regarding the tolling of the limitations period. Cf. Hernandez v.
State, 161 S.W.3d 491, 499 (Tex. Crim. App. 2005) (declaring that State has
no burden to disprove entrapment defense until it is raised before the jury); Kearney
v. State, 181 S.W.3d 438, 444 (Tex. App.CWaco 2005, pet.
ref=d) (stating that
State has no burden of showing voluntariness of a confession until defendant
raises an issue of voluntariness). Appellant=s second point of
error is overruled.
The judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered
and Opinion filed July 24, 2007.
Panel consists of
Chief Justice Hedges and Justices Hudson and Guzman.
Publish C Tex. R. App. P. 47.2(b).
[1] AThe time during
the pendency of an indictment, information, or complaint shall not be computed
in the period of limitation.@ Tex. Code Crim. Proc. Ann. art.
12.05(b) (Vernon 2005).
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437 F.2d 561
James L. LOFTON, Plaintiff-Appellant,v.The POSTMASTER GENERAL OF the UNITED STATES OF AMERICA, thePost Office Department of the United States ofAmerica, and the United States ofAmerica, Defendants-Appellees.
No. 20512.
United States Court of Appeals, Sixth Circuit.
Jan. 21, 1971.
Robert E. Rose, Memphis, Tenn., for plaintiff-appellant.
Kemper B. Durand, Asst. U.S. Atty., Memphis, Tenn., for defendants-appellees; Thomas F. Turley, Jr., U.S. Atty., Memphis, Tenn., on brief.
Before WEICK and EDWARDS, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
PER CURIAM.
1
Appellant in this case was discharged from his duties as a postal employee on April 21, 1967. Previously he had been served with written charges detailing 71 instances of alleged violations of postal regulations in failing properly to handle mail deliveries committed to his care. It does not appear that any of these approached dishonesty or willful sabotage, but at a minimum they could have been regarded as repeated evidence of neglect of duty which did impair the postal service.
2
Lofton's answer to these administrative charges did not appear to dispute responsibility for most of them, but did argue mitigating circumstances as affecting penalty. Appellant was a veteran; had 15 years of Post Office service; and had been injured and off work for a time just before these delinquencies occurred.
3
At the administrative level, Lofton's case was handled largely by a representative of the National Alliance of Postal and Federal Employees. On appellant's behalf this representative waived an administrative hearing provided for by statute and asked for an investigation in place thereof. The investigation was conducted and the recommendation for discharge was reiterated and Lofton was discharged. Ultimately the Postmaster General signed a letter affirming the discharge but citing the mitigating circumstances and declaring appellant would be eligible for rehire.
4
Subsequently appellant filed a complaint in the United States District Court seeking an order for reinstatement. His principal grounds were that he had been denied a hearing, contrary to the federal statute involved; that he had been denied the right to call witnesses, and that he had been denied the right to be kept apprised of all important developments in the course of the administrative proceedings.
5
The case was heard before a United States District Judge in the United States District Court for the Western District of Tennessee. The District Judge granted summary judgment on all issues except two. They were whether or not the plaintiff had requested and been denied a hearing, and whether or not the plaintiff had been kept advised of decisions at each level of the administrative process, as required by statute. The District Judge took testimony on both of these issues and found the facts against appellant.
6
It should be noted that our review (and that of the District Judge) does not go to the merits of the discharge as a penalty. Our review of this record, including the administrative record which accompanies it, convinces us that the District Judge's grant of partial summary judgment was correct, and that his findings of fact pertaining to the hearing and witness issues detailed above are not clearly erroneous, and, hence, cannot be set aside on appeal.
7
The judgment of the District Court is affirmed.
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66 Ill. App.3d 760 (1978)
384 N.E.2d 137
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
RAMON CRUZ, Defendant-Appellant.
No. 77-1381.
Illinois Appellate Court First District (3rd Division).
Opinion filed November 29, 1978.
*761 Adam Bourgeois, of Chicago (Steven M. Levin and Allan A. Ackerman, of counsel), for appellant.
Bernard Carey, State's Attorney, of Chicago (Lee T. Hettinger, Joan S. Cherry, and Iris E. Sholder, Assistant State's Attorneys, of counsel), for the People.
Reversed and remanded.
Mr. PRESIDING JUSTICE JIGANTI delivered the opinion of the court:
The defendant, Ramon Cruz, was charged with the murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) of Julio Reyes. He was found guilty of the lesser included offense of voluntary manslaughter (Ill. Rev. Stat. 1975, ch. 38, par. 9-2), and not guilty of attempt murder of Officer Ronald Nally. Cruz was sentenced to the Department of Corrections for not less than two and not more than six years. The defendant contends that the court erred in failing to instruct the jury on the law of self-defense and also erred in denying the defendant's motion to dismiss the murder indictments where the grand jury transcript of proceedings shows that the only true bill returned was that of attempt murder and where the murder bill of indictment was not signed by the grand jury foreman.
Officer Ronald Nally testified that after completing his shift at 2:30 a.m. he left the district station in uniform in his own vehicle and proceeded home. Travelling on Clark Street, Officer Nally noticed four men arguing in front of the Los Latinos Tavern at the corner of Clark and Argyle. He testified that the defendant had a gun in his right hand. *762 As the officer made a U-turn, the four men proceeded to cross Argyle. Both Julio Reyes, the decedent, and Nertheline Reyes, his brother, were walking backwards, but Nertheline was directly in front of the decedent and had his hand on the defendant's chest. Eddie Echevarria was walking immediately behind the defendant. The defendant pushed Nertheline Reyes aside and shot Julio Reyes twice.
Nally was 30 feet from the men at the time of the shooting. As the defendant proceeded back to the corner, Nally left his automobile and positioned himself near its front left wheels so that the vehicle was between the defendant and himself. At that time he stated: "Police officer. Drop the gun." Nally dropped behind his vehicle with his head exposed and saw the defendant's hand jerk, but the gun did not fire. As he repeated "drop the gun," the defendant tossed the gun onto some grass. The officer directed the defendant to lie face down on the sidewalk and the defendant complied. Nally retrieved the gun. Nally also testified that there was a struggle going on between the defendant, the decedent and Nertheline Reyes at the time he saw and heard the two shots fired.
Nertheline Reyes testified that he saw Echevarria get a gun from a vacant lot next to the tavern. As Echevarria approached Julio with the gun, Nertheline grabbed Echevarria and told Echevarria to give the gun to him. Echevarria gave Nertheline the gun and stated he did not want Nertheline to use it on anybody. As Nertheline was about to throw the gun on a roof the defendant came along, grabbed him by the neck and took the gun away. At that time Julio was standing on the corner. As Nertheline saw the defendant going toward Julio, Nertheline got between them.
Nertheline further testified that the defendant fired two shots in the ground. Nertheline and the decedent were retreating north across Argyle when the defendant pushed Nertheline and shot the decedent twice.
The defendant called as a witness Sonia Rivera, the manager of the Los Latinos. She testified that the decedent and his brother arrived at the tavern about 4:30 or 5 o'clock in the afternoon. She had known the Reyes brothers for about eight years. During the evening the decedent went to the defendant's table and told the defendant to leave Sonia alone because she was the decedent's girl.
Rivera was the last person to leave the tavern that night. She saw Nertheline Reyes outside of the tavern with a gun tucked inside his pants and the handle showing. Nertheline told the defendant to come toward him and that if he wanted the gun to come and get it. The defendant said that he did not want any trouble and that all he wanted to do was to go home. Rivera turned and locked the door of the tavern and when she turned back Nertheline was pointing the gun at the defendant. The decedent was two feet away from the defendant. The defendant kept backing up and Nertheline called out to the decedent to "get on the *763 other side!" At this time Rivera came off the steps of the tavern and turned around. She saw that the defendant had hold of Nertheline's wrist and that the decedent had hold of the defendant's wrist. Nertheline had the gun and the defendant took it out of his hands and threw it. All three of the men ran for the gun. They started struggling and Rivera saw one shot go into the air and one into the ground. The defendant reached the gun first. Rivera walked across the street to her car. She heard two shots as she got into her car, but did not realize anyone had been hit by the gunfire. On cross-examination Rivera testified that Nertheline told the defendant "I'm going to kill you, I don't like you." She was asked what the defendant did to start the struggle and replied that "he put his hands on Nertheline's wrist." Both Nertheline and the decedent had a hand on the defendant when the shots went off.
Eddie Echevarria testified that immediately after leaving the tavern Netherline put the gun to the chest of the defendant. The defendant grabbed the arm of Nertheline and the victim intervened.
The defendant testified that he joined Echevarria and another person for a drink when he arrived at the bar. While there, he noticed that the Reyes brothers were angry at him. The decedent told the defendant that Sonia Rivera was his girlfriend and that the defendant should leave her alone. The defendant was surprised when he first saw the gun in the hands of Nertheline outside of the bar. Nertheline was pointing the gun at him and told the defendant that "he was going to kill me and saying obscene things." The Reyes brothers were coming toward the defendant when he started to walk backwards toward the corner. The defendant stated he was trying to make peace in telling them that he did not want to fight. He felt that they were going to try to kill him and he tried to avoid this by grabbing the hand with which Nertheline held the gun. He was able to get the gun and he threw it several feet away. When the Reyes brothers ran to retrieve it, the defendant tried to get to it before they did. The defendant got the gun again and a struggle ensued with both brothers on top of him. During the struggle the gun went off. About a second later, as the struggle continued two more shots went off and the decedent was struck. The defendant then walked across to the bar. About eight or 10 minutes later the police arrived and the officer said that he should throw the gun down. The defendant let go of the gun.
The defendant argues his tendered instruction on self-defense should have been submitted to the jury. He contends that the jury should be instructed on any defense which has some foundation in the evidence, and that this is true even if the facts on which the defense is based are inconsistent with the defendant's own testimony. The People argue that the jury was instructed correctly because no evidence of self-defense was presented at the trial.
1 In People v. Looney (1977), 46 Ill. App.3d 404, 410, 361 N.E.2d 18, 22, *764 the court noted "[a] defendant in a criminal case is entitled to have the jury instructed on any legally recognized defense theory which has some foundation in the evidence, however tenuous." (See also People v. Kalpak (1957), 10 Ill.2d 411, 140 N.E.2d 726.) Furthermore, whether the asserted defense is based upon testimony of the State's witnesses, or those of the defendant is irrelevant. People v. Gajda (1967), 87 Ill. App.2d 316, 232 N.E.2d 49; People v. Hill (1977), 53 Ill. App.3d 280, 368 N.E.2d 714.
The fact that the defendant may have denied any intention to commit the act is also irrelevant. (People v. Craven (1973), 54 Ill.2d 419, 299 N.E.2d 1.) And the courts have indicated that it is perfectly proper to charge the jury with inconsistent defenses so long as the facts and nature of the case support the feasibility of either. People v. Landry (1977), 54 Ill. App.3d 159, 368 N.E.2d 1334.
The issue here is whether there was evidence presented which would support a self-defense instruction.
The defendant testified that when he first saw Nertheline Reyes with the gun he was surprised, and that Nertheline was pointing the gun at him and saying he was going to kill the defendant. He testified that the Reyes brothers pursued him with the gun and that "I figured they were going to kill me * * *." He also testified that when he threw the gun away the Reyes brothers ran to get it and that he "understood that they had the intention of killing me. If one of them grabbed the gun they were going to kill me." Additionally, Officer Nally testified that a struggle was going on at the time he saw and heard the shots fired.
2 There was evidence from which the jury could infer that the defendant did the shooting. It also could have inferred from the circumstances surrounding the shooting and from the defendant's testimony, as set forth above, that the Reyes brothers intended to kill the defendant and that he was acting in self-defense when he did the shooting. The defendant was thus entitled to an instruction on self-defense.
The defendant also argues that the grand jury indictments should be dismissed because the only bill of indictment signed by the grand jury foreman charges the defendant with attempt murder. The murder bills of indictment do not contain the foreman's signature as required by section 111-3(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-3(b)). The defendant also complains that the murder indictments do not contain the name of Officer Nally, upon whose testimony the indictments are based, in violation of section 17 of "An Act concerning jurors." (Ill. Rev. Stat. 1975, ch. 78, par. 17.) The State responds that a true bill was returned on both the murder and attempt murder charges and that the defendant is essentially complaining of technical defects without any showing that a substantial right of his has been infringed.
*765 The only case cited by the defendant in his argument that the indictments should be dismissed is People v. Lawson (1977), 67 Ill.2d 449, 367 N.E.2d 1244. In Lawson, the Illinois Supreme Court held that preindictment delays did not amount to a due process violation where the defendants were able to show only the possibility of prejudice, and that a trial court has the inherent authority to dismiss an indictment based on a due process violation for reasons other than those set forth in the applicable statute if actual and substantial prejudice is shown. We find this case inapposite here. The defendant has not shown any prejudice resulting from the defects in the indictments.
3 In People ex rel. Merrill v. Hazard (1935), 361 Ill. 60, 196 N.E. 827, the supreme court noted that the signature of the grand jury foreman "is required only as a matter of direction to the clerk and for the information of the court; [and] that its presence or absence does not materially affect any substantial right of the defendant * * *." 361 Ill. 60, 63. We agree with this assessment, and believe that the requirement in the statute that "[a]n indictment shall be signed by the foreman of the Grand Jury * * *" is not a prerequisite to a valid indictment. See also People ex rel. Byrd v. Twomey (1972), 2 Ill. App.3d 774, 277 N.E.2d 358.
4 The absence of a list of witnesses on the face of the murder indictments, as required by section 17 of "An Act concerning jurors" (Ill. Rev. Stat. 1975, ch. 78, par. 17), was without prejudice to the defendant. The attempt murder indictment did contain Officer Nally's name as a witness. The defendant had possession of the grand jury testimony of the State's key witness, Officer Nally, prior to trial and also was given a list of witnesses which included Officer Nally's name.
5, 6 The basic due process requirement concerning the form of an indictment is that it must "apprise the defendant of the precise offense charged with sufficient specificity to enable him to prepare his defense and allow the pleading of the judgment as a bar to future prosecution arising out of the same conduct." (People v. Gilmore (1976), 63 Ill.2d 23, 28-29, 344 N.E.2d 456.) The defendant had sufficient notice of the charges against him and raises no complaint of prejudice resulting from the form of the indictments. We find nothing to justify the extreme step of dismissing these indictments.
Because the defendant was entitled to have the jury instructed on self-defense, we reverse and remand for a new trial.
Judgment reversed and remanded.
SIMON and McGILLICUDDY, JJ., concur.
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820 F.2d 1221
*Griffithsv.Moore Const.
86-1819
United States Court of Appeals,Fifth Circuit.
5/26/87
1
N.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
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966 F.2d 914
UNITED STATES of America, Plaintiff-Appellee,v.James Clayton BELL, Defendant-Appellant.
No. 91-1338.
United States Court of Appeals,Fifth Circuit.
July 2, 1992.
Jonathan Nelson, Gould, Broude & Nelson, Fort Worth, Tex. (Court-appointed), for defendant-appellant.
Frank D. Able, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
GOLDBERG, Circuit Judge:
1
Following a plea of guilty to an information charging him with misprision of a felony, James Clayton Bell appeals the denial of his pretrial motion to dismiss the indictment based on speedy trial grounds. The government contends that Bell's plea was unconditional, waiving all non-jurisdictional defects in the trial court proceedings, including his speedy trial claim. We agree with the government and therefore do not reach Bell's speedy trial claim.
I.
2
It is well settled that by entering a plea of guilty, a defendant ordinarily waives all non-jurisdictional defects in the proceedings below. United States v. Barrientos, 668 F.2d 838, 842 (5th Cir.1982); see United States v. Easton, 937 F.2d 160, 161-62 (5th Cir.1991) (failure of United States Attorney to sign indictment was a non-jurisdictional defect that the defendant waived by pleading guilty), cert. denied, --- U.S. ----, 112 S.Ct. 906, 116 L.Ed.2d 807 (1992). In the Fifth Circuit, a speedy trial violation is a non-jurisdictional defect waived by a guilty plea. See United States v. Broussard, 645 F.2d 504, 505 (5th Cir.1981) ("The entry of a knowing and voluntary guilty plea waives all non-jurisdictional defects in the proceeding. This disposes of the speedy trial claim."); accord United States v. Bohn, 956 F.2d 208, 209 (9th Cir.1992) ("A defendant's guilty plea waives all non-jurisdictional defect claims. The right to a speedy trial under the Speedy Trial Act is non-jurisdictional"); United States v. Pickett, 941 F.2d 411, 415-17 (6th Cir.1991) (same); Lebowitz v. United States, 877 F.2d 207, 209 (2d Cir.1989) (same); United States v. Andrews, 790 F.2d 803, 810 (10th Cir.1986) (same), cert. denied, 481 U.S. 1018, 107 S.Ct. 1898, 95 L.Ed.2d 505 (1987); United States v. Yunis, 723 F.2d 795, 796 (11th Cir.1984) (same). But see Acha v. United States, 910 F.2d 28, 30 (1st Cir.1990) (noting that the First Circuit has not spoken on the issue).
3
A defendant wishing to preserve a claim for appellate review while still pleading guilty can do so by entering a "conditional plea" under Rule 11(a)(2) of the Federal Rules of Criminal Procedure.1 See Pickett, 941 F.2d at 416-17 (defendant waived Speedy Trial Act claim because he did not enter a conditional plea under Rule 11(a)(2)). Such a plea must be in writing and must identify those case-dispositive pretrial issues that the defendant is preserving for appeal. Pickett, 941 F.2d at 416; United States v. Yasak, 884 F.2d 996, 999 (7th Cir.1989); United States v. Carrasco, 786 F.2d 1452, 1454 (9th Cir.1986). Failure to designate a particular pretrial issue in the written plea agreement generally forecloses appellate review of that claim. See United States v. Hausman, 894 F.2d 686, 689 (5th Cir.) ("Hausman's valid guilty plea waived his due process claim because it was not preserved in the plea agreement and did not rise to the level of a jurisdictional challenge."), cert. denied, --- U.S. ----, 111 S.Ct. 92, 112 L.Ed.2d 64 (1990).
4
The conditional plea is also contingent upon the government's consent and the court's approval. Yasak, 884 F.2d at 999; Carrasco, 786 F.2d at 1454. The government and the court are free to reject a conditional plea for any reason or no reason at all. Yasak, 884 F.2d at 999. In essence, they have absolute "veto power over entry of such a plea." United States v. Fisher, 772 F.2d 371, 374 (7th Cir.1985). A defendant thus has "no enforceable 'right' to enter a conditional plea." Id., quoted in United States v. Daniel, 866 F.2d 749, 751 (5th Cir.1989). "Neither legislative history nor case law indicates that a criminal defendant is entitled to enter a conditional plea." United States v. Davis, 900 F.2d 1524, 1527 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990). Accordingly, neither the district court nor the government has any obligation to advise the defendant of the availability of a conditional plea. Daniel, 866 F.2d at 751; United States v. Frazier, 705 F.2d 903, 908 n. 8 (7th Cir.1983).
5
Although a conditional plea must ordinarily be in writing, evidencing the government's consent and the district court's approval, variance from this formality can be excused by an appellate court. Rule 11(h), Fed.R.Crim.P. ("Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded."); United States v. Fernandez, 887 F.2d 564, 566 n. 1 (5th Cir.1989) ("The non-compliance with Rule 11(a)(2) or the failure to document compliance may thus be seen as excused by Rule 11(h)."). In Fernandez the defendant pled guilty and sought to appeal an adverse pretrial ruling. Although the government conceded that the defendant had reserved her right to appeal the issue, there was no written plea in the record identifying the issues that were preserved for appeal and nothing to indicate that the district court had approved such a plea. We nevertheless excused the absence of a court-approved written conditional plea and addressed the merits of the defendant's appeal. We observed that Rule 11(a)'s requirement of court approval is designed to insure that the pretrial issues reserved for appeal are case-dispositive and can be reviewed by the appellate court without a full trial. Fernandez, 887 F.2d at 566 n. 1. In Fernandez, as in the case at bar, the defendant sought to appeal a pretrial matter that satisfied these requirements.
6
In Yasak the Seventh Circuit also found a valid conditional plea despite the absence of a writing. Postulating that the transcript of the plea hearing amounted to "a writing of sorts," the court was satisfied that "Rule 11(a)(2)'s intent and purpose [had] been fulfilled." The transcript of the plea hearing demonstrated that the government assented to a conditional plea and the district court accepted it. Yasak, 884 F.2d at 1000.
7
These cases illustrate that an appellate court can pardon the informalities of a conditional plea so long as the record demonstrates that the spirit of Rule 11(a)(2) has been fulfilled--that the defendant expressed an intention to preserve a particular pretrial issue for appeal and that neither the government nor the district court opposed such a plea. When the record is ambiguous as to whether the plea is conditional or unconditional, however, the appellate court may question the voluntariness of the plea. See Carrasco, 786 F.2d at 1455 (vacating plea because "[t]he exchanges in the courtroom between counsel and those between counsel and the court were ambiguous," and the defendant "reasonably could have believed that her plea was conditional, based on both previous discussions with the assistant U.S. attorney and the ambiguous exchange in the courtroom"). But if the record contains no manifestation of a reservation of appellate rights, the plea is presumptively unconditional, and an appellate court may not reach the merits of the defendant's appeal.
II.
8
The transcript of the plea proceedings establishes that Bell pled guilty to an information charging him with a single count of misprision of a felony, carrying a maximum statutory penalty of 3 years incarceration, below the sentencing guideline range applicable to Bell. In exchange for that plea of guilty, the government dismissed the pending indictment, which charged Bell with possession of a firearm by a convicted felon, an offense with a maximum statutory penalty of 10 years incarceration. No other agreements between Bell and the government are apparent from the transcript of the proceedings.2
9
Before accepting the plea, the district court engaged Bell in the requisite Rule 11 colloquy, advising him of the nature of the charges, the maximum sentence that could be imposed, the right to a speedy and public trial by jury at which the government would have to prove him guilty beyond a reasonable doubt, and the right to have counsel defend him at that trial. (R.2 at 7-8) Bell stated that he understood his rights, had had ample time to discuss the matter with his attorney, understood that by pleading guilty he would be waiving his right to a trial, and that he was pleading guilty voluntarily. (R.2 at 12-13) Bell's counsel opined that the plea was voluntary. (R.2 at 13-14). The district court did not expressly advise Bell that by pleading guilty he would be waiving his right to seek appellate review of the denial of his speedy trial motion, but neither Rule 11 nor our decisional law commands the district court to offer that warning.3 The district court later sentenced Bell to 3 years incarceration.4
10
Bell's plea of guilty appears to be unconditional in all respects. The record contains no indicia of a plea conditioned on a right to appeal pretrial matters, much less one complying with the formalities of Rule 11(a)(2). Contrast Fernandez, 887 F.2d at 566 n. 1; Yasak, 884 F.2d at 1000. There is no written agreement evidencing Bell's intention to preserve for appellate review the denial of his speedy trial motion, no express acquiescence by the government, and no statement by the district judge approving a conditional plea.
11
Furthermore, it is clear that Bell profited from entering a plea of guilty. As part of the plea agreement, the government dismissed the indictment which charged him with possession of a firearm by a convicted felon, a felony that carries a maximum statutory penalty (10 years) exceeding the sentencing guideline range applicable to Bell. Had he been convicted of the firearm offense the district court would have been constrained to sentence him within the guideline range, a sentence that, even at the low end of the range, would have exceeded the 3 year sentence Bell received by pleading guilty to the misprision offense. It is plain, therefore, that Bell got the benefit of his plea bargain: he minimized his potential exposure to 3 years incarceration. See Fisher, 772 F.2d at 374 (recognizing that government generally will not consent to a conditional plea "without exacting a price"); Frazier, 705 F.2d at 908 (court was "unwilling to read into the bargain a never-stated right to appeal" because the defendant reduced his maximum exposure from five to two years imprisonment).
12
We decline to entertain Bell's suggestion that he pled guilty in the mistaken belief that he preserved his appellate rights. From all indications in the record, Bell's plea was voluntary, knowing, and intelligent, and not conditioned on the reservation of appellate rights.5 To the extent that his challenge to the plea would necessitate consideration of evidence outside of this record, a direct appeal from the conviction is not the proper avenue for raising such a claim. See United States v. Jennings, 891 F.2d 93, 96 (5th Cir.1989) (affirming the district court judgment without prejudice to the defendant's right to bring a claim under 28 U.S.C. § 2255 in which he could contend that he waived his speedy trial rights unknowingly).
III.
13
The judgment and conviction are AFFIRMED.
1
In its entirety, Rule 11(a)(2) provides:
Conditional Pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendre, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
2
The plea agreement is memorialized in the "Factual Resume" provided to Bell and his counsel and was read aloud at the plea proceedings
3
We note that the preferred practice is for the district court to advise the defendant that by pleading guilty he waives his right to appeal non-jurisdictional pretrial issues. See, e.g., Davis, 900 F.2d at 1525-26 n. 1 (district court explained to the defendant that "one of the consequences of pleading guilty was the preclusion of appellate review of suppression rulings"); Fisher, 772 F.2d at 373, 375 (district court admonished defendant that by pleading guilty, "he waived 'the right to appeal from or complain of any prior adverse rulings or actions in this case.' "); cf. Laycock v. State of New Mexico, 880 F.2d 1184, 1188 (10th Cir.1989) (plea agreement indicated that defendant was waiving appellate rights)
4
Because the maximum statutory penalty for the misprision offense (3 years) fell below the sentencing guideline range applicable to Bell, considering the relevant offense level and Bell's criminal history, the guideline sentence applicable to Bell became the statutory maximum 3 years
5
Two months before the plea proceedings, Bell filed a motion for continuance indicating that he was not waiving the speedy trial claim that had been litigated previously in the district court. Bell suggests that by virtue of that filing, he manifested his intention to enter a conditional plea. A plea of guilty operates as a waiver of all pretrial issues, however, even those that the defendant has properly preserved up to the point of the plea. Thus, that filing, in and of itself, does not confute the unconditionality of the plea
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636 F.2d 1222
Hamptonv.Hanrahan
77-1210, 77-1370, 77-1698
UNITED STATES COURT OF APPEALS Seventh Circuit
8/26/80
1
N.D.Ill.
REVERSED AND REMANDED; AFFIRMED
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Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 27, 2016
The Court of Appeals hereby passes the following order:
A16A2052. WAYNE A. DAVIS v. THE STATE.
In 2012, a jury found Wayne Anthony Davis guilty of kidnapping with bodily
injury, aggravated assault, and failure to register as a sex offender. The trial court
sentenced Davis to life imprisonment on the kidnapping charge. Davis appealed, and
we affirmed his convictions for kidnapping and aggravated assault, but reversed his
conviction for failing to register as a sex offender. See Davis v. State, 330 Ga. App.
118 (766 SE2d 566) (2014).
In February 2016, Davis filed a motion for sentence modification, which the
trial court denied. Davis filed a direct appeal from the trial court’s ruling, which we
dismissed as untimely. See Case Number A16A1365, dismissed April 21, 2016. We
noted in our dismissal order that Davis had not raised a void sentence argument. In
May 2016, Davis filed a motion in the trial court seeking to vacate a void sentence,
arguing that he was not informed that he was subject to a mandatory life sentence.
The trial court denied that motion, and Davis filed this direct appeal. We, however,
lack jurisdiction.
A direct appeal may lie from an order denying a motion to vacate or correct a
void sentence, but only if the defendant raises a colorable claim that the sentence is,
in fact, void. See Harper v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); Burg
v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). “Motions to vacate a void
sentence generally are limited to claims that – even assuming the existence and
validity of the conviction for which the sentence was imposed – the law does not
authorize that sentence, most typically because it exceeds the most severe punishment
for which the applicable penal statute provides.” von Thomas v. State, 293 Ga. 569,
572 (2) (748 SE2d 446) (2013). Thus, when a sentence is within the statutory range
of punishment, it is not void. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483)
(2004).
In his motion, Davis did not argue that his sentence fell outside the permissible
statutory range. Indeed, a life sentence is authorized for kidnapping. See Horne v.
State, 298 Ga. App. 601, 606 (3) (680 SE2d 616) (2009). Because Davis has not
raised a colorable void-sentence claim, this appeal is hereby DISMISSED for lack of
jurisdiction. See Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010).
Court of Appeals of the State of Georgia
07/27/2016
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
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73 F.3d 374
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Randall Allen RUST, Plaintiff-Appellant,v.SGT. FERRO, Defendant-Appellee.
No. 95-1307.
United States Court of Appeals, Tenth Circuit.
Jan. 3, 1996.
Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.
1
ORDER AND JUDGMENT*
ANDERSON, Judge
2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
3
Randall Allen Rust filed an action under 42 U.S.C. Sec. 1983 against Sergeant Ferro in his capacity as an Arapahoe County deputy sheriff. The district court dismissed before service pursuant to 28 U.S.C. Sec. 1915(d). Rust appeals on procedural and substantive grounds.
4
A court may dismiss an in forma pauperis case "if satisfied that the action is frivolous." 28 U.S.C. Sec. 1915(d); Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir.1991). A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). This determination may be made "sua sponte before the defendant has even been asked to file an answer." Denton v. Hernandez, 504 U.S. 25, 32 (1992). "[W]henever a plaintiff states an arguable claim for relief, dismissal for frivolousness under Sec. 1915(d) is improper, even if the legal basis underlying the claim ultimately proves incorrect." Hall, 935 F.2d at 1109 (quoting McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991)); see Abbott v. McCotter, 13 F.3d 1439, 1441 (10th Cir.1994). Liberally construing pro se pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), we review a Sec. 1915(d) dismissal for abuse of discretion. Denton, 504 U.S. at 33.
5
Rust, a Colorado state prisoner at the Arkansas Correctional Facility, filed a complaint alleging false imprisonment. He claimed that he was held four days "against his will after bond had been posted," in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Complaint at 2. On appeal, Rust contends that he was falsely imprisoned in violation of the Fourth, Fifth, and Fourteenth Amendments. The district court found Rust's complaint vague, conclusory, and inarguable and accordingly dismissed the complaint. We respectfully disagree because although the claim stated in the complaint may be deemed ambiguous and mislabeled, it is not inarguable.
6
Rust alleged that bond was set on May 3, 1994, posted on May 5, 1994, and signed by Judge Dana Murray on May 6, 1994. He claimed that he repeatedly asked Ferro about his bond status and that Ferro continually responded that no bond had been posted. He also alleged that on one occasion Ferro said, "This is my fucking jail and I'll let you go when I feel like it." Complaint at 3. Finally, Rust stated that on May 9, 1994, Judge Murray asked why Rust was still being held since the bond had been posted days before. Construing the pro se plaintiff's complaint liberally, Haines, 404 U.S. at 520, we find that Rust stated an arguable claim of unlawful detainment despite mislabeling his alleged constitutional violation as an Eighth Amendment violation, rather than a liberty interest protected by the Fourteenth Amendment.1
7
To recover on his Sec. 1983 claim against Ferro, Rust must show that Ferro acted under state law and deprived him of a right secured by the United States Constitution. West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986)). We express no opinion as to the ultimate merit of such a claim here, only noting that it is not inarguable. See, e.g., Baker v. McCollan, 443 U.S. 137, 145 (1979); Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting). Likewise, contrary to Ferro's argument on appeal, it is not inarguable, in view of the language quoted above, that Rust's complaint implicates Ferro personally, thus rendering Eleventh Amendment immunity inapplicable.
8
For the foregoing reasons, the judgment of the district court is REVERSED and REMANDED to the district court for further proceedings consistent with this order and judgment. The mandate shall issue forthwith.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470
1
The Fourteenth Amendment, rather than the Eighth Amendment, protects the rights of pretrial detainees. See, e.g., Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979); Garcia v. S.L. County, 768 F.2d 303, 307 (10th Cir.1985); Harris v. Angelina County, Tex., 31 F.3d 331, 334 (5th Cir.1994)
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70 Wis.2d 655 (1975)
235 N. W. 2d 466
KOLBECK and wife, Respondents,
v.
RURAL MUTUAL INSURANCE COMPANY, Appellant.
No. 516 (1974).
Supreme Court of Wisconsin.
Argued October 29, 1975.
Decided November 25, 1975.
*658 For the appellant there were briefs by Terwilliger, Wakeen, Piehler, Conway & Rouse, S. C., attorneys, and W. Thomas Terwilliger of counsel, all of Wausau, and oral argument by Douglas Klingberg of Wausau.
For the respondents there was a brief by Kelley, Weber & Bolte, S. C. of Wausau, and oral argument by Richard Bolte.
HANLEY, J.
The following issues are raised on this appeal:
1. Did Kolbeck comply with a policy provision regarding notice to the insurer and to law enforcement agencies of an occurrence which may give rise to a claim for theft?
2. Was it error for the trial court to consider testimony on the discovery of the calf carcass?
3. Was there sufficient proof under the policy requirements to sustain judgment for the insured?
4. Was the measure of damages proper and supported by the evidence?
Notice of theft.
The applicable policy section covering theft of livestock included the following provision:
"Upon knowledge of loss under this peril [theft] or of an occurrence which may give rise to a claim for such loss, the named insured shall give notice as soon as *659 practicable to the Company or any of its authorized agents and also report all pertinent facts to the nearest law enforcement officer as a condition precedent to making a claim under this peril. . . ."
Defendant contends that Kolbeck unreasonably delayed giving notice throughout the summer when he had knowledge of occurrences which may give rise to a claim for theft.
Where an automobile liability policy required notice in the event of an "accident, occurrence, or loss," this court noted that the obligation of notice was not limited to those instances where the insured knew that there might be an injury and a claim for damages. Resseguie v. American Mut. Liability Ins. Co. (1971), 51 Wis. 2d 92, 98, 186 N. W. 2d 236. The "occurrence" in that case was an impact between the assured's automobile and the plaintiff pedestrian. The law in Wisconsin, established in Vande Leest v. Basten (1942), 241 Wis. 509, 512, 513, 6 N. W. 2d 667, remains:
"The requirement in the policy that notice be given to [the] insurer as soon as practicable must receive a reasonable construction. It is not the duty of the insured to make a report unless he has reasonable grounds to believe that he is a participant in an accident."
The fact of an occurrence rather than belief as to its coverage under the policy is the determinative element that gives rise to the duty to report. The purpose of timely notice is to afford the insurer an opportunity to investigate possible claims against it or its insured while the witnesses are available and their memories are fresh. Buss v. Clements (1963), 18 Wis. 2d 407, 412, 118 N. W. 2d 928; Allen v. Ross (1968), 38 Wis. 2d 209, 215, 156 N. W. 2d 434.
In this policy notice is required upon knowledge of "loss under this peril" or upon knowledge of "an occurrence which may give rise to a claim." The first *660 situation clearly refers to known thefts; the latter circumstance described intends situations where theft is not yet determined as being the cause of the loss. A duty to report here would thus arise only under the latter provision, as the insurer bases its defense on the known lessened herd counts throughout the summer. No argument is made that the company did not have timely notice after the discovery of the carcass.
How much lesser than a known theft must the occurrence be before the duty to give notice arises? The insurer interprets the duty to coincide with any absence of property. Such language, however, was not in the policy. Kolbeck acknowledged a "suspicion" that some animals were not present. The occurrence had to be one that may give rise to a claim. In defining the claimable peril, the insurer excluded two situations:
"This section does not apply as respects this peril [theft] to loss . . . (e) by mysterious disappearance; or (f) by escape."
Throughout the summer the number of visible cattle was lessened, but Kolbeck had no knowledge that either a theft or an escape had occurred, although both were possible. Lacking definite proof as to whether any cattle were gone rather than in the wooded areas, and lacking any proof as to how they were gone, both of which would require a time-consuming search which he testified he could not afford to make, the situation was best characterized as a mysterious disappearance which would not give rise to a claim. The presumption arising from mysterious disappearance was not just excluded; the occurrence of such was specifically barred as a ground for a claim.
Since indications of the more usual ways in which the herd could decrease was not evident, and since the absences increasingly could not be explained by the dispersion throughout the woods, the absences were mysterious disappearances prior to the finding of evidence of *661 theft. There being a condition clearly stated as not qualifying for a claim, no duty to report existed.
The trial court found that the duty to report arose and was timely satisfied in October. We agree with the trial court's finding.
Admission of evidence.
Error is claimed for the consideration by the trial court of testimony on the discovery of the various cattle carcasses. This evidence was claimed to be barred by the following section of the policy:
"With respect to any livestock insured under this section, this peril [theft] covers certain direct losses of livestock provided that . . . (c) any physical facts relating to entry upon or exit from the described premises, in order to constitute evidence of theft hereunder, shall be reported in writing by the named insured to the Home Office of the Company at Madison, Wisconsin within 10 days of said discovery of said theft, and any physical facts not so reported shall not be considered as evidence of theft."
It is undisputed that no written formal notice was sent by Kolbeck to the home office of the Rural Mutual Insurance Company in Madison, Wisconsin. However, it is also undisputed that Kolbeck advised the local office of Rural Insurance Company of the theft within one week from the time he discovered the carcass. He was told by them that the matter would be taken care of. Thereafter, Kolbeck talked to his agent, Mr. Traeger, and was again advised that the matter would be taken care of. A claims investigator visited Kolbeck in December, apparently because Kolbeck called again; testimony established that the first agent never reported the loss further.
Kolbeck's failure to send the notice of evidence apparently stems from his lack of awareness as to the policy provision. According to Kolbeck's testimony, his policy was in the hands of a local financial institution and had *662 been misplaced by them. He asked for the policy back in the first week in October. He also asked for a copy of the policy from Rural Insurance Company and did not get any response.
The law is well established in this state that an insurance company cannot induce a claimant to suspend action or omit technical formal procedures and then hold that result against the claimant. Dishno v. Home Mut. Ins. Co. (1950), 256 Wis. 448, 41 N. W. 2d 375.
Under the facts of this case, Kolbeck's failure to file the formal notice of evidence would not constitute a defense on behalf of the insurance company because of the provisions of sec. 203.13 (3), Stats. The only exception to the application of sec. 203.13 (3) to a factual situation as established in this case is found in the following language of the statute:
". . . unless such failure to act or delay or the doing of such act in a manner different from that prescribed in the policy shall actually have substantially misled or prejudiced the insurer, . . ."
Here the insurance company had actual knowledge of the plaintiffs' loss within a short time after the discovery of the carcass on October 2, 1972. Also, the Marathon county sheriff's department was notified immediately. We fail to see wherein the defendant insurance company was prejudiced by Kolbeck's failure to file a written notice at the home office.
Mysterious disappearance.
The parties agreed that proof of theft had to be shown by clear and satisfactory evidence. Also, that mysterious disappearance was no basis for a claim.
Although the insurer maintains that even if the evidence of the carcasses was validly considered there would be no proof of theft for other than three animals, the character of that evidence clearly and satisfactorily *663 demonstrates that the premises were entered and that thievery occurred. The possibility does exist that separate thefts, some of whole animals and some of merely the meat of slain calves, did occur. Defendant insurer equates its policy language with the higher civil burden of proof, Wisconsin Jury InstructionCivil, 205, which middle burden of proof has been generally summarized by McCormick as:
"It has been persuasively suggested that [the standard of proof] could be more simply and intelligibly translated to the jury if they were instructed that they must be persuaded that the truth of the contention is `highly probable.'" McCormick, Evidence (2d ed. 1972), p. 796, sec. 340.
It is not logical to equate this burden with a requirement that physical evidence of each animal's disappearance be adduced. The breaking and entrance of a house makes it highly probable that all items of value missing were taken by the thief. Likewise, evidence of cattle theft makes it highly probable that all cattle missing from an enclosure were stolen. A disappearance cannot be considered mysterious if a logical and highly probable explanation for the disappearance exists, which explanation excludes other possibilities. An example is the disappearance of a gemstone from a ring being worn by the insured: the possibility of theft appears impossible, while a loss through a faulty setting clearly explains the absence. In this case, Orenstein v. United Services Automobile Asso. (1969), 32 App. Div. 227, 301 N. Y. Supp. 2d 208, based on the evidence of the carcasses, the trier of fact could draw a reasonable inference of theft of the missing cattle. There was no testimony indicating the possibility of an escape from the enclosed farm. There was sufficient credible evidence to support the trial court's finding that plaintiffs lost 17 calves and one cow by theft.
*664 Question of damages.
Two questions are involved in this issue. The insurer challenges the value of the animals lost as set by the trial court and disputes the manner in which a $100 deductible clause was applied.
The trial court set the value of each calf at $180 and the value of each cow at $350. In Brunette v. Slezewski (1967), 34 Wis. 2d 313, 149 N. W. 2d 578, this court established that the proper measurement of value for animals is their replacement cost, reflected in the market value at time of loss, unless they are expected to show a marked increase in the future (pelting minks, for example). The insurer refers to the cross-examination of Kolbeck's witness, who purchases beef for slaughter and who bought Kolbeck's remaining cattle. This witness testified that $150 was a reasonable average value for the calves and $300 was reasonable for the cows.
The plaintiff Kolbeck testified the remaining calves were sold in November for an average of $180 per calf. He also testified the value of the calves at the date of loss was $150.
Since the value must be determined as of the time of loss, we conclude that a proper award here would be $150 for each calf and $300 for the cow.
Concerning deductions, the policy contains the following provisions:
"9. Theft, meaning any act of stealing or attempt thereat. The sum of $50 shall be deducted from the amount of each loss by theft, except loss of livestock."
"3. Loss Deductible Clause: The loss deductible amount, if any, specified in the declarations, shall apply to all perils and all coverages afforded . . . and shall be deducted from each loss for which claim is made thereunder. Any other deductible amount applicable . . . shall be superceded by the loss deductible amount, if any, specified in the declarations."
*665 The trial court construed the $100 deductible amount listed on the declarations page to apply to each theft, and found that the evidence supported the conclusion that six thefts occurred. Kolbeck asserts that the livestock exception controls. The insurer seeks to have the deduction apply to each animal.
The policy of insurance clearly and specifically excludes the deductibility feature in cases of loss of livestock by theft. The insurer contends the $100 deductible provision contained in the declarations controls. The basis for this claim is that paragraph 3, the "Loss Deductible Clause," supercedes any other deductible amount applicable. We disagree. The key words in the "Loss Deductible Clause" are "any other deductible amount applicable." Since there is no deductible amount applicable to loss of livestock, there is no amount to be superceded by the loss deductible amount specified in the declarations. The exception for loss of livestock from the deductible feature contained in paragraph 9 of the policy controls in this case.
In accordance with the allowances on the damage issues in this opinion, the judgment is modified from the sum of $2,810 to $2,850.
By the Court.Judgment modified and, as modified, affirmed.
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1 F.Supp.2d 601 (1998)
UNITED STATES of America
v.
Kingsley ROBERTS.
Criminal Action No. 97-367.
United States District Court, E.D. Louisiana.
April 6, 1998.
*602 Claude John Kelly, III, Federal Public Defender, New Orleans, LA, for Kingsley Roberts.
Greg Gerard Guidry, Mary Jude Darrow, U.S. Attorney's Office, New Orleans, LA, for U.S.
ORDER AND REASONS
VANCE, District Judge.
Before the Court is defendant Kingsley Robert's motion to dismiss for lack of jurisdiction, pursuant to Federal Rule of Criminal *603 Procedure 12(b)(2). For the reasons set forth below, the motion is DENIED.
I. BACKGROUND
Defendant Roberts was indicted by a federal grand jury on December 11, 1997 and charged with one count of sexual abuse of a minor, 18 U.S.C. § 2243(a), and one count of abusive sexual contact with a minor, 18 U.S.C. § 2244(a). The crimes allegedly occurred on board a cruise ship, the Carnival Cruise Lines' vessel M/V CELEBRATION. Roberts is a national of St. Vincent & the Grenadines, and he was employed by the M/V CELEBRATION at the time the alleged incident took place. The victim is a United States citizen. The United States alleges that the crimes were committed "in an area within the special maritime and territorial jurisdiction of the United States" and that jurisdiction is proper under 18 U.S.C. §§ 7(1) or (8).
It is not disputed that the alleged incident occurred while the cruise ship was "in international waters approximately 63 miles off the coast of Puna Mols, Mexico." Aff. of Kelly C. Bryson, Special Agent of the Federal Bureau of Investigation, at ¶ 2 (attached to Def.'s Mem., Exh. B). The following facts are also uncontested: Carnival Corporation ("Carnival") owns the M/S CELEBRATION, and the company is incorporated under the laws of the Republic of Panama. See Carnival's Annual Report, Form 10-K for the Securities and Exchange Commission (attached to Def.'s Mem., Exh. C) (hereinafter referred to as "Annual Report"); Letter from Arnaldo Perez, Vice Pres. and General Counsel of Carnival Corp., to Kelly Priceson, Federal Bureau of Investigation, Feb. 27, 1998, at ¶¶ 1, 3 (attached to Government's Opp., Exh. A) (hereinafter referred to as "Carnival Letter"). The M/V CELEBRATION is registered in Liberia and flies a Liberian flag. Annual Report at 5; Government's Opp. at 2. Carnival's shoreside operations and its corporate headquarters are located in Miami, Florida. Annual Report at 1, 19; Carnival Letter ¶ 2. Carnival is a public company, its stock is traded on the New York Stock Exchange, and some of its shareholders are United States citizens. Annual Report at 1; Carnival Letter ¶¶ 6, 7. Further, the M/S CELEBRATION begins and ends its cruises in the United States, and the majority of its passengers are United States citizens. Carnival Letter ¶¶ 4-5. It is also undisputed that neither Panama nor Liberia has taken any steps to prosecute the defendant.
The defendant moves this Court to dismiss the indictment on the grounds that the United States does not have jurisdiction over the alleged incident. Roberts contends that jurisdiction is not proper under § 7(1) because the M/V CELEBRATION is not an American vessel. The defendant also states that jurisdiction under 18 U.S.C. § 7(8) is limited "[t]o the extent permitted by international law," and, in this case, jurisdiction is not proper under accepted principles of international law. The government argues that jurisdiction is proper because the M/V CELEBRATION is owned in part by American citizens, and international law permits this exercise of jurisdiction under the objective territorial and the passive personality theories.
II. DISCUSSION
Defendant Roberts is charged with violating 18 U.S.C. §§ 2243(a) and 2244(a). Section 2243(a) provides that whoever "in the special maritime and territorial jurisdiction of the United States ... knowingly engages in a sexual act with another person who has attained the age of 12 years but has not attained the age of 16 years ... or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both." Section 2244(a)(3) states that "[w]hoever, in the special maritime and territorial jurisdiction of the United States ... knowingly engages in or causes sexual contact with or by another person, if so to do would violate subsection (a) of section 2243 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than two years, or both."
Congressional intent determines the extraterritorial effect of penal statutes. See United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922) ("If punishment of [crimes against private individuals] is to be extended to include those committed *604 outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard."); United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994) ("To determine whether a given [penal] statute should have extraterritorial application in a specific case, courts look to congressional intent." (internal quotations and citations omitted)); United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980) (explaining that Congress may attach extraterritorial effect to its penal enactments).
In this case, Congress intended for §§ 2243 and 2244 to reach beyond the strict territorial jurisdiction of the United States because the statutes provide that the laws operate within the "special maritime and territorial jurisdiction of the United States." See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683, 691, 102 L.Ed.2d 818 (1989) ("When it desires to do so, Congress knows how to place the high seas within the jurisdiction reach of a statute."); United States v. Montford, 27 F.3d 137, 139 (5th Cir.1994) ("Several federal criminal statutes cover acts within the special maritime and admiralty jurisdiction of the United States." (citing 18 U.S.C. §§ 81 (arson), 113 (assault), and 1111 (murder))); United States v. Perez-Herrera, 610 F.2d 289, 290 (5th Cir.1980) ("Congress expressly provided that certain acts, such as murder, violate federal law when committed on board ships registered in the United States or owned by American citizens.").
The question in this case is whether the alleged crimes occurred within the special maritime and territorial jurisdiction of the United States as set forth in 18 U.S.C. §§ 7(1) and 7(8). These sections state that the special maritime and territorial jurisdiction includes:
(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.
....
(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.
18 U.S.C. §§ 7(1), (8) (emphasis added). The United States contends that jurisdiction is proper under either of these provisions.
A. 18 U.S.C. § 7(1)
There is Fifth Circuit caselaw which suggests that § 7(1) extends the special maritime and territorial jurisdiction of the United States to the "high seas," without regard to whether the vessel is in whole or in part American-owned. See Nixon v. United States, 352 F.2d 601, 602 (5th Cir.1965) (stating that record supported finding that murder and assault took place on high seas, so that case was within special maritime and territorial jurisdiction of United States). See also United States v. Tanner, 471 F.2d 128, 140 (7th Cir.1972) (noting that offenses occurred on foreign vessel and § 7(1) would require showing that offenses took place "either upon the `high seas' or upon any other body of water that is both within the United States' admiralty and maritime jurisdiction and without the jurisdiction of any particular state"); United States v. Walker, 575 F.2d 209, 213 (9th Cir.1978) (implying that special maritime and territorial jurisdiction of the United States includes acts that occurred on the high seas and outside states' boundaries). However, in United States v. McRary, 665 F.2d 674, 677 (5th Cir.1982), the Fifth Circuit stated that § 7 "necessarily restricts its reach to vessels owned in whole or in part by United States citizens." See also United States v. Ross, 439 F.2d 1355, 1357-58 (9th Cir.1971) (stating that § 7(1) requires that offense occur on high seas and that vessel is registered to the United States).
In this case, it is undisputed that the alleged offenses occurred "in international waters approximately 63 miles off the *605 coast of Puna Mols, Mexico." Aff. of Ms. Bryson ¶ 2. The "high seas" encompasses that part of the ocean which is beyond the territorial sea of any country. See United States v. Louisiana, 394 U.S. 11, 23, 89 S.Ct. 773, 781, 22 L.Ed.2d 44 (1969) ("Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation."); Kollias v. D & G Marine Maintenance, 29 F.3d 67, 69 (2d Cir.1994) ("[T]he high seas ... have been defined as those waters beyond the territorial waters of the United States, which extend three miles from the coast."). Although the United States has historically adhered to a territorial sea of three miles, international conventions permit a territorial sea of up to 12 miles. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441 n. 8, 109 S.Ct. 683, 692 n. 8, 102 L.Ed.2d 818 (1989). It is undisputed that the alleged offenses in this case occurred well outside the 12-mile limit of any nation.
However, although it is undisputed that the M/V CELEBRATION is owned by the Carnival Corporation, and that some of Carnival Corporation's shareholders are United States citizens, the M/V CELEBRATION is not an American vessel and "courts have applied [the ownership provision of 18 U.S.C. § 7(1)] only to vessels having either United States registry or no registry at all." Restatement (Third) of Foreign Relations Law § 502, Reporters' Note 4 (1987) (hereinafter "Restatement"). See, e.g., Ross, 439 F.2d at 1358 (finding that case met requirements set forth in § 7(1) because vessel was registered in United States); Nixon, 352 F.2d at 602 (noting, alternatively, that jurisdiction would have attached because offenses occurred on vessel of United States ownership and registry); United States v. Keller, 451 F.Supp. 631, 636 (D.P.R.1978) (finding jurisdiction under § 7(1) based, in part, on Florida registration and presence on board of United States flag), aff'd on other grounds, United States v. Arra, 630 F.2d 836, 840 (1st Cir.1980).
Given the apparent conflict in Fifth Circuit authority over whether § 7(1)'s special maritime jurisdiction covers prohibited acts committed on foreign flag vessels on the high seas, and the fact that the Court finds jurisdiction under 18 U.S.C. § 7(8), see discussion infra, the Court finds it unnecessary to resolve whether jurisdiction likewise lies under § 7(1).
B. 18 U.S.C. § 7(8)
The Court concludes that jurisdiction over this case is proper pursuant to 18 U.S.C. § 7(8). Section 7(8) was added to the United States' special maritime and territorial jurisdiction in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 120002, 108 Stat. 2021 (Sept. 13, 1994). The statute expressly states that the special maritime jurisdiction of the United States is extended to include "[t]o the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States." 18 U.S.C. § 7(8).
Defendant Roberts argues that international treaties and principles of international law do not permit this Court to exercise jurisdiction over this matter. First, Roberts contends that several international treaties prohibit the United States from asserting its jurisdiction because the treaties state that foreign* vessels are subject to the exclusive jurisdiction of the country whose flag they fly under.[1] Second, Roberts insists that this case does not fall under any of the recognized exceptions to the principle of the "law of the flag."
The treaties relied upon by the defendant do not prevent this Court from exercising jurisdiction over the offensive acts. Defendant has failed to show that any of the treaties are self-executing, and treaties "may act to deprive the United States, and hence its courts, of jurisdiction over property and individuals that would otherwise be subject to that jurisdiction" only if the treaties are *606 self-executing. United States v. Postal, 589 F.2d 862, 875 (5th Cir.1979). It is also well established that unless a treaty is self-executing, "that is, unless it expressly creates privately enforceable rights an individual citizen does not have standing to protest when one nation does not follow the terms of such agreement." United States v. Bent-Santana, 774 F.2d 1545, 1550 (11th Cir.1985) (citing Foster v. Neilson, 2 Pet. (27 U.S.) 253, 313-14, 7 L.Ed. 415 (1829)).[2]
In Postal, the Fifth Circuit explained that "[t]he question whether a treaty is self-executing is a matter of interpretation for the courts when the issue presents itself in litigation and, as is the case of all matters of interpretation, the courts attempt to discern the intent of the parties to the agreement so as to carry out their manifest purpose." Postal, 589 F.2d at 876. The Fifth Circuit went on to expressly find that Article VI of the Convention On the High Seas, a treaty and provision relied upon by defendant, is not self-executing and therefore not the equivalent of federal legislation. Postal, 589 F.2d at 884. The court in that case concluded that the United States, by ratifying the Convention on the High Seas, did not intend "to incorporate the restrictive language of article 6, which limits the permissible exercise of jurisdiction to those provided by treaty, into its domestic law and make it available in a criminal action as a defense to the jurisdiction of its courts." Id. at 878. Bound by Fifth Circuit authority, this Court must conclude that Article VI of the Convention on the High Seas is not self-executing. As a result, defendant Roberts may not rely upon an alleged violation of the treaty as a defense to this Court's jurisdiction.
Similarly, this Court concludes that Articles 91 and 92 of the United Nations Convention on the Law of the Sea are not self-executing.[3] These provisions, as cited by the defendant, are identical to Article VI of the Convention on the High Seas. Based on the Fifth Circuit's decision in Postal, this Court must conclude that Articles 91 and 92 are not self-executing. Thus, these provisions require implementing legislation before they may be enforced in the courts by individuals. See George K. Walker, The Interface of Criminal Jurisdiction and Actions Under the United Nations Charter With Admiralty Law, 20 Tul.Mar.L.J. 217, 225 n. 41 (1996) ("Many of the High Seas Convention and Territorial Sea Convention's provisions are copied in the 1982 [Law of the Sea] Convention; thus, the need for implementing legislation seems fairly clear." (citing Postal)).[4]
Defendant has also failed to demonstrate that the Treaty of Friendship, Commerce and Navigation between Liberia and the United States is self-executing. In any event, the language of the treaty does not specify that a vessel is subject to the exclusive jurisdiction of the country whose flag it flies under. Rather, it merely states that vessels under the flag of either the United States or Liberia shall be "deemed to be the vessels of the Party whose flag is flown." Treaty of Friendship, Commerce and Navigation, Article XV. Thus, the treaty itself does not prohibit the United States from exercising jurisdiction over the alleged offensive acts if jurisdiction is otherwise permitted under international law.
International law recognizes five theories of jurisdiction, under which a country is permitted to exercise extraterritorial criminal jurisdiction: (1) territorial jurisdiction both subjective and objective based on the location where the offense is committed or the effects of the act; (2) nationality jurisdiction, *607 based on the nationality of the offender; (3) protective jurisdiction, based on the protection of the nation's interest, security, and integrity; (4) universal jurisdiction, which amounts to physical custody of the offender;[5] and (5) passive. personality jurisdiction, based on the nationality of the victim. See United States v. Marino-Garcia, 679 F.2d 1373, 1380-82 (11th Cir.1982); United States v. Smith, 680 F.2d 255, 257-58 (1st Cir.1982); Rivard v. United States, 375 F.2d 882, 885-86 (5th Cir.1967).
In this case, the prosecution of Kingsley Roberts is a valid exercise of both passive personality jurisdiction and objective territorial jurisdiction. The principle of passive personality "asserts that a state may apply law particularly criminal law to an act committed outside its territory by a person not its national where the victim of the act was its national." Restatement § 402 cmt. g. Although courts are reluctant to embrace passive personality jurisdiction for ordinary torts or crimes, see id., international law does not prohibit Congress from incorporating this principle into its legislation.[6] Indeed, prior to the enactment of § 7(8), Congress applied the passive personality principle in the Omnibus Diplomatic Security and Antiterrorism Act of 1986, 18 U.S.C. § 2332 which makes it a crime to kill, or attempt or conspire to kill, or to cause serious bodily injury, to a national of the United States outside the territory of the United States.[7] Moreover, some courts have recently expressed approval of passive personality jurisdiction. See, e.g., United States v. Rezaq, 134 F.3d 1121, 1133 (D.C.Cir.1998) (aircraft piracy); United States v. Felix-Gutierrez, 940 F.2d 1200, 1205 (9th Cir.1991) (accessory after the fact); United States v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir.1991) (hijacking of Jordanian airliner); United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir.1984) (murder of DEA agent). In addition, Congress is moving towards accepting passive personality jurisdiction outside the realm of terrorism, as evidence by several pieces of legislation. See Watson, supra note 5, at 11-12. For example, in 1987, Congress expanded United States' special maritime jurisdiction to include crimes against America "outside the jurisdiction of any nation." 18 U.S.C. § 7(7).
This move towards accepting passive personality jurisdiction continued with the passage of § 7(8), which authorizes the United States to exercise its jurisdiction over "any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States." 18 U.S.C. § 7(8). Given the specific requirement that the vessel have a scheduled departure from or arrival in the United States, this statute expresses concern for United States nationals but limits jurisdiction to vessels that are most likely to have a connection to America. Indeed, in this case, the M/V CELEBRATION originates and terminates its voyage in the United States, and the majority of its passengers are American citizens. Further, Carnival Corporation has its corporate headquarters in this country and some of its shareholders are United States citizens. The Court must also add that the country whose flag the cruise ship flies under, Liberia, has little to no interest in the alleged offense because neither the victim nor the defendant are Liberian, the vessel does not operate in or around Liberian territory, and the vessel's owners center their corporate operations in the United States. In short, the Court finds that jurisdiction is reasonable in this case pursuant to § 7(8), and it is permitted by international law because it does not intrude upon another sovereign's interest, and it serves to protect America's nationals abroad.
The objective territorial principle also supports jurisdiction over this matter. Jurisdiction under this principle is asserted *608 over foreigners for an act committed outside the United States that produces substantial and detrimental effects within the United States. United States v. Baker, 609 F.2d 134, 138 (5th Cir.1980) ("The objective territorial principle has been asserted successfully where there was proof that defendant's actions ... produced some effect within the United States ...."); Rivard, 375 F.2d at 887 ("`Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm....'") (quoting Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 55 L.Ed. 735 (1911)).
In this case, the Court agrees with the result reached in United States v. Pizdrint, 983 F.Supp. 1110 (M.D.Fla.1997), and finds that the alleged sexual assault committed by the defendant has an effect in the United States and exercising jurisdiction would not be unreasonable. As noted above, and by the court in Pizdrint, the M/V CELEBRATION engages in substantial business in the United States and regularly operates in United States territory. The vessel originates and terminates its voyage in the United States, and the majority of its passengers are American citizens. As a result of the alleged offense, the Federal Bureau of Investigation was required to conduct an investigation and arrest the defendant. The victim will have to undergo psychiatric counseling in the United States. The Court notes once again that no other country Liberia, Panama, or Roberts' home country has shown any interest in prosecuting the defendant. Further, although the objective territorial principle does not require that the defendant has a connection to the United States, the Government states that Roberts sometimes lives in Alabama when the cruise ship is docked in the United States.
For all of the foregoing reasons, the Court finds that this case clearly falls within the jurisdictional boundaries of §§ 7(1) and 7(8). Therefore,
IT IS ORDERED that defendant's motion to dismiss is DENIED.
NOTES
[1] In his brief, Roberts cites to Article XV of the Treaty of Friendship, Commerce and Navigation between the United States and Liberia; Article 6 of the Multilateral Law of the Sea: Convention on the High Seas, to which the United States and Liberia are parties; and Articles 91 and 92 of the United Nations Convention on the Law of the Sea.
[2] In the words of one commentator, the term "self-executing" should be reserved for "international agreements that are meant, and are specific enough to be able, to establish rights and duties of individuals directly enforceable in domestic courts." Stefan A. Riesenfeld, Restatement: International Agreements, 14 Yale J. Int'l L. 455, 463 (1989).
[3] See U.N. Convention on the Law of the Sea, Dec. 10, 1982, U.N.Doc. A/CONF. 62/122, 21 I.L.M. 1261 (1982), reprinted at 1992 WL 725374.
[4] The Court also notes that the agreement signed by the United States in 1994 was submitted to the Senate for its ratification on October 7, 1994, and it is still pending Congressional approval. Even if ratified, however, this non-self-executing treaty requires enabling legislation to confer rights upon individuals that are enforceable in the courts.
[5] This principle is generally cited to cover universally prohibited activities, such as the slave trade or piracy. United States v. Marino-Garcia, 679 F.2d 1373, 1382 & n. 16 (11th Cir.1982).
[6] See Geoffrey R. Watson, The Passive Personality Principle, 28 Tex. Int'l L.J. 1, 13, 38-40 (1993) (stating that rules of customary international law do not bar passive personality jurisdiction).
[7] The Court also notes that the existence of this statute-aimed specifically at terrorism contravenes an interpretation of § 7(8) that limits its application to terrorist acts.
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08/29/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 24, 2019
STATE OF TENNESSEE v. WILLIAM ROBERT GOODWIN
Appeal from the Criminal Court for Knox County
Nos. 106968, 106969, 106970, 107087, 107310, 107311, 107775, 107776
Bobby R. McGee, Judge
___________________________________
No. E2018-01683-CCA-R3-CD
___________________________________
The Defendant-Appellant, William Robert Goodwin, appeals from the order of the Knox
County Criminal Court revoking his probation and ordering him to serve the balance of
his sentence in confinement. In this appeal, the Defendant concedes that he violated his
probation; however, he contends the trial court abused its discretion in ordering
confinement because his probation violations were minor, he had established a stable life
and work history, and he had compelling family reasons to remain on probation. Upon
our review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.
Mark E. Stephens, District Public Defender; and Jonathan Harwell, Assistant Public
Defender, for the Defendant-Appellant, William Robert Goodwin.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On March 29, 2017, the Defendant entered guilty pleas to burglary, five counts of
theft, violation of driver’s license law, attempted theft, and criminal trespass, for which
he received an effective sentence of six years. On August 9, 2017, following a
sentencing hearing, the trial court placed the Defendant on enhanced probation for four
years, which was conditioned upon the Defendant’s enrollment in a rehabilitation
residential treatment program (halfway house). The record shows that on October 4,
2017, a probation violation warrant was filed, alleging that the Defendant had tested
positive for tetrahydrocannabinol (THC) and that he was discharged from the halfway
house on October 3, 2017, for non-compliance. On October 17, 2017, the Defendant
agreed to the probation violation. On November 7, 2017, he was released from jail on his
own recognizance and accepted back into the halfway house. On December 12, 2017, an
amended probation violation warrant was issued, alleging that the Defendant
subsequently failed to notify his probation officer before changing his residence, that his
whereabouts were unknown from December 9 to December 10, 2017, that the Defendant
had been drinking alcohol on December 9, 2017, and that he was discharged a second
time from the halfway house. On March 15, 2018, the Defendant “submitted” to the
violation of probation warrant. The trial court then referred the Defendant to the
Community Alternatives to Prison Program (CAPP) and the Day Reporting Center
(DRC) for recommendations for treatment.
On May 11, 2018, the trial court conducted a probation violation hearing. At the
top of the hearing, the State explained that the Defendant had agreed to the violations of
probation in the amended warrant and that the parties were present to determine the
Defendant’s sentence. The State offered into evidence reports from CAPP and DRC,
both of which recommended that the Defendant be ordered to serve his sentence in
confinement because he was not an appropriate candidate for treatment. In support of its
position, the State explained as follows:
The State would point out that in this case [the Defendant] was on
parole when he picked up these charges that he pled guilty to. He
completed his TDOC sentence. He came out from TDOC and resolved
these cases in May 2017. His parole ended I believe in June. He applied
for Enhanced. Enhanced Probation agreed to take him [,] but they wanted
him to go through in-patient treatment at Jellinek. He went through that.
He was released to Enhanced in August. And the file reflects that his
probation-he violated his probation in October by having a positive
marijuana screen [,] and he was taken back into-he was living at the
halfway house. He was taken back into custody, given another chance.
Had to sit for a little while. He goes back to the halfway house [,] and then
he has a positive screen again, this time for alcohol in December. A
violation of probation was issued, and he did not show up for probation, did
not turn himself in. The warrant gets served on him and he came into
custody. He submitted to the VOP.
In response, defense counsel clarified that the State misunderstood the violation of
probation to which the Defendant had agreed. Defense counsel explained that the
Defendant conceded to failing to report as directed by his probation officer; however, he
-2-
denied that he was intoxicated on December 10, 2017, as stated in the amended violation
warrant. Although a staff member at the halfway house reported that the Defendant was
intoxicated, the Defendant was not given a urine test at that time to confirm his condition.
Defense counsel said that the Defendant “voluntarily and on his own submitted himself to
a drug screen company that has as a part of it an 80 hour look back for a metabolite of
ethanol. The results of those tests were all negative for all substances, including
alcohol.” Defense counsel stated that the Defendant did not immediately turn himself in
on the amended violation of probation warrant because he was “compelled to remain out
so that he could be with his child over the holidays.” Rather than a sentence of
confinement, defense counsel argued for probation because the Defendant maintained a
stable job and worked to regain parental rights of his daughter.
The Defendant’s probation officer, Natasha Davis, testified that she had
supervised the Defendant since August 2017. In October 2017, she filed a violation of
probation report because the Defendant tested positive for marijuana use. The Defendant
turned himself in on the violation of probation warrant, served time in prison, and was
released back to the halfway house in November 2017. Officer Davis testified that the
Defendant reported to her one time upon his release, and he committed another violation
of probation in December 2017. Although the Defendant did not turn himself in, he
contacted Officer Davis several times via text message before coming into custody on
February 23, 2018. Officer Davis testified that she did not believe that the Defendant
was an appropriate candidate for probation. She agreed that she was not present at the
halfway house on the day that the Defendant was discharged and that she was not aware
of which staff member reported the violation. Even though the Defendant reported to her
more than once during his supervision, Officer Davis explained that, per the Public
Safety Act, a discharge from the halfway house resulted in a violation of probation.
Another probation officer, Lisa Mooneyham, testified that she worked with
Officer Davis and that she spoke to the director of the halfway house on the night that the
Defendant was discharged in December 2017. Officer Mooneyham testified that the
director told her that the Defendant was discharged because he came in late, “appeared to
be drinking,” and was arguing with his daughter. Officer Mooneyham also testified that
the Defendant left the county without her permission in violation of his probation.
Officer Mooneyham confirmed that the director of the halfway house did not personally
observe the Defendant on the night that he was discharged. Rather, the house manager
reported the incident to the director. Officer Mooneyham also explained that the
Defendant left the county while on probation to attend a child support court date in
Chattanooga. Although the Defendant received permission from the halfway house to
leave the county, he did not get permission from Officer Mooneyham. Officer
Mooneyham had “bent over backward to work with” the Defendant, and she no longer
-3-
wanted to supervise him because “he just makes decisions without consulting us and
they’re bad decisions each time, but he makes that decision to do that.”
Portions of the report from CAPP were read into evidence by a representative,
who testified that the Defendant was not appropriate for the program. The relevant
portion of the report provided as follows:
[The Defendant] is not appropriate for placement on CAPP-on the CAPP
program. CAPP is concerned that his past criminal history demonstrated an
inability on his part to be successful in prior placements, including
probation and parole. He’s a multi county and multi state offender. He has
continued his drug use even after treatment at both Steps in 2013 and
Jellinek 2017. His criminal history also shows a past possession of
weapons with intent to go armed 1997 conviction and domestic battery
conviction resulting in a protective order against him in 2008. CAPP
believes [the Defendant] has exhausted all available treatment options.
The Defendant testified that he was a flooring installer, a drug addict, and was
under the influence of drugs when he committed the offenses. He explained that his
daughter was born fourteen days prior to his July 2015 arrest and that, upon his release
from prison, she was in state custody. He detailed his efforts to regain custody of his
daughter, and a letter from an attorney memorializing the same was admitted into
evidence. The Defendant also admitted to violating probation by using marijuana in
October 2017, for which he served approximately 30 days in jail. The Defendant then
explained the circumstances of the December 2017 discharge from the halfway house.
He said that he had gone to dinner with his older daughter that night, and, once they
returned to the halfway house, they got into an argument about personal issues. The
house manager, Jason Leach, mistakenly thought that the Defendant was intoxicated, but
the Defendant testified that he had not had anything to drink that night. The Defendant
asked the house manager to breathalyze him, but he refused. The Defendant agreed that
he was discharged from the halfway house that evening and that he stayed with his
daughter that night.
The Defendant testified that he called his probation officer the following morning
and became aware that a probation violation had been filed against him. Three days later,
on December 13, 2017, the Defendant went to a drug lab to have drug tests done. The
Defendant said the result of the 80-hour lookback test for the presence of ethyl alcohol
was negative. A copy of the test results was admitted into evidence over the State’s
objection. The test results showed that the Defendant was negative for both alcohol and
drugs. The Defendant acknowledged nevertheless that he did not turn himself in to
authorities until February 2018. He explained that his attorney was unsuccessful at
-4-
“working something out” and that he wanted to spend the holidays with his daughters.
The Defendant agreed that he had a “horrible record,” but he insisted that he was going to
“stay clean” for his daughters. On cross-examination, the State questioned the Defendant
about his children, prior charges, and the circumstances leading up to the charges filed in
the instant case. The Defendant testified that the reason he used marijuana in October
was because he found out that his “wife was pregnant by another man, and [he] had a
relapse.”
Although the trial court determined that the Defendant had indeed violated his
probation, the trial court was concerned with the lack of direct proof supporting the
Defendant’s December 10, 2017 discharge from the halfway house. Before imposing
sentence, the trial court set the matter for another hearing for the State to offer testimony
from the house manager of the halfway house. On June 22, 2018, Jason Leach, the house
manager of the halfway house at the time the Defendant was discharged, testified that on
December 10, 2017, he was on duty when he observed the Defendant’s daughter trying to
help the Defendant inside. The house manager described the Defendant’s appearance as,
“Not good. Just inebriated.” He stated that the Defendant’s daughter had to help the
Defendant through the door, that the Defendant could not stand up on his own, and that
the Defendant smelled of alcohol. The house manager told the Defendant’s daughter that
she could not be there because she was female and that the Defendant could not be there
in his condition. The Defendant’s daughter and her boyfriend then helped the Defendant
out of the house and back to her car. The house manager called the assistant director of
the halfway house and advised him of the Defendant’s circumstances. The house
manager did not administer a breathalyzer or a urine test to the Defendant because the
Defendant “couldn’t function,” and “it was obvious--very obvious that he was
intoxicated.”
At the final setting, on August 2, 2018, the parties argued their respective positions
to the trial court. The Defendant also admitted into evidence several exhibits including a
photograph of him and his three-year-old daughter, a copy of a juvenile court docket
setting for a child custody matter, a letter from a child custody official establishing her
willingness to work with the Defendant along with the termination of parental rights
procedures, copies of paychecks establishing the Defendant’s work history during the
non-reporting period; a May 24, 2018 letter from a drug recovery specialist noting that
the Defendant needed to be in a halfway house and complete treatment, and a July 3 letter
from the Steps Program noting that a bed was available and agreeing to accept the
Defendant into their program immediately.
By written order on September 13, 2018, the trial court denied the Defendant’s
request for further alternative sentencing and ordered him to serve the balance of his
sentence in confinement. It is from this order that the Defendant now appeals.
-5-
ANALYSIS
On appeal, the Defendant contends that the trial court erred in ordering
confinement because his violations were minor, he had established a stable life and was
working productively, and he gave compelling family reasons for remaining on
probation. Given the trial court’s failure to acknowledge any of the evidence put forth in
support of alternative sentencing, the Defendant argues that the trial court did not
recognize that “the determination of the proper consequence of a probation violation
embodies a separate exercise of discretion.” State v. Patsy McCoy, No. M2011-00006-
CCA-R3-CD, 2011 WL 6916227, at *3 (Tenn. Crim. App. Dec. 28, 2011) (citing State v.
Hunter, 1 S.W.3d 643, 647 (Tenn. 1999) and State v. Reams, 265 S.W.3d 423, 430
(Tenn. Crim. App. 2007)). In any event, the Defendant insists that the record supports
imposition of an alternative sentence and that the trial court’s order of confinement was
arbitrary and unreasonable. The State contends that the trial court’s order of confinement
was proper.
In resolving the question before us, we are bound by the following well-
established law. When a trial court finds by a preponderance of the evidence that the
defendant has violated the conditions of probation, the trial court may revoke the
probation and order the defendant to serve the judgment as originally entered. Tenn.
Code Ann. § 40-35-311(e)(1)(A). Moreover, once the trial court decides to revoke a
defendant’s probation, it retains discretionary authority to (1) order confinement; (2)
order the sentence into execution as initially entered; (3) return the defendant to probation
on modified conditions as necessary; or (4) extend the probationary period by up to two
years. Hunter, 1 S.W.3d at 646-47; State v. Larry Lee Robertson, No. M2012-02128-
CCA-R3-CD, 2013 WL 1136588, at *2 (Tenn. Crim. App. Mar. 19, 2013); State v.
Christopher Burress, No. E2012-00861-CCA-R3-CD, 2013 WL 1097809, at *6 (Tenn.
Crim. App. Mar. 18, 2013); see also Tenn. Code Ann. §§ 40-35-308, -310, -311 (2012).
There is no requirement that the trial court consider other sentencing options when
revoking a defendant’s probation. State v. George Vincent Ware, No. E2010-00141-
CCA-R3-CD, 2010 WL 3448057, at *3 (Tenn. Crim. App. Sept. 1, 2010). The judgment
of the trial court will not be disturbed on appeal unless it appears that there has been an
abuse of discretion so that the record contains no substantial evidence to support the
conclusion of the trial judge. State v. Leach, 914 S.W.2d 104, 106-07 (Tenn. Crim. App.
1995). A trial court abuses its discretion when it applies incorrect legal standards,
reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the
proof, or applies reasoning that causes an injustice to the complaining party. State v.
Phelps, 329 S.W.3d 436, 443 (Tenn. 2010); State v. Jordan, 325 S.W.3d 1, 38-40 (Tenn.
2010).
-6-
The Defendant is aggrieved in large part because he believes the trial court failed
to evaluate the entire set of facts presented in this case. Our review of the record,
however, shows that the trial court was not unsympathetic to the Defendant’s
circumstances as a reforming drug addict. Shortly after being placed on enhanced
probation, the Defendant violated his probation for drug use and was discharged from the
halfway house. Although he served 30 days in jail, he was given another opportunity to
serve his sentence on enhanced probation. Almost a month after he was released, the
Defendant was discharged again from the halfway house based on his alcohol use. The
Defendant was arrested, submitted to the technical violations, and a hearing was held to
determine his sentence. At the hearing, CAPP, DRC, and his supervisory probation
officer recommended that the Defendant be ordered to complete his sentence in
confinement. Rather than hastily ordering confinement based upon this and other
technical violations to which the Defendant had agreed, the trial court was concerned
with the degree of proof supporting the Defendant’s second discharge from the halfway
house and reset the matter. Between hearing dates, the trial court also encouraged the
parties to seek out recommendations from other treatment providers who were willing to
accept the Defendant. The house manager eventually testified that on the night of the
second discharge, the Defendant was so intoxicated he was unable to stand. Although the
Defendant contested this aspect of the probation violation with an independent lab test,
the testimony of the house manager was accredited by the trial court. State v. Mitchell,
810 S.W.2d 733, 735 (Tenn. Crim. App. 1991) (the trial court determines the credibility
of the witnesses in a probation revocation hearing). The trial court further determined
that the Defendant’s “argument that he deserves another placement on alternative
sentencing because of a false report that he was intoxicated [was] not supported by the
evidence.”
We recognize, as noted by the Defendant, that in its order the trial court did not
reference any of the evidence supporting the Defendant’s efforts to be a father and regain
custody of his daughter or his attempt to become a productive citizen in the community.
We further agree with the fact that, by the time of the sentencing hearing, the Defendant
had served a significant amount of jail-time relative to the type of violation that had
occurred. However, we are simply unable to conclude that the trial court’s failure to
explicitly acknowledge these factors amounts to an abuse of discretion. Ordering the
Defendant to serve his sentences in confinement was clearly one of the options available
to the trial court upon finding that a violation occurred, McCoy, 2011 WL 6916227, at
*3, and the record fully supports the trial court’s order of confinement. See State v. Juan
Manuel Coronado, II, No. E2010-01058-CCA-R3-CD, 2011 WL 704543, at *3 (Tenn.
Crim. App. Mar. 1, 2011) (cautioning that an accused, already on probation, is not
entitled to a second grant of probation or another form of alternative sentencing).
Accordingly, the Defendant is not entitled to relief.
-7-
CONCLUSION
Based upon the above authority, the judgment of the trial court is affirmed.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
-8-
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31 Cal.2d 563 (1948)
Estate of KATHERINE ALLEN SMITH, Deceased. PETER GROSS et al., Appellants,
v.
ERNEST E. JONES et al., Respondents.
L. A. No. 20031.
Supreme Court of California. In Bank.
Mar. 30, 1948.
Louis Thomsen for Appellants.
Schweitzer & Schweitzer for Respondents.
SHENK, J.
This is an appeal by contestants from a judgment admitting a will to probate.
The facts are not in dispute. The questions presented concern the legal effect of an alleged revocation of the will and the correctness of the court's ruling admitting evidence over objection of the testatrix' declarations bearing upon her revocatory intent.
On July 22, 1942, the decedent, then about 58 years of age and describing herself as a widow without descendants, executed a duly attested typewritten document consisting of two pages which she declared to be her last will and testament. By this instrument she purported to leave her entire estate to Pomona College to establish the Katherine Allen Smith Scholarship Fund, and to appoint Ernest E. Jones, treasurer of the college, as executor. She deposited the executed will with her attorney and retained in her own possession an unexecuted carbon copy. She died on January 5, 1946, without recalling the executed document from her attorney's possession *565 and without making another will. After her death there was found among her effects the unexecuted carbon copy of her will but with writing across the face of each page. Obliquely across the first page, extending through all of the typewritten portion, was the following entirely in the decedent's handwriting: "I Katherine Allen Smith do hereby revoke this will it is now nul and void (nul & void) Katherine Allen Smith July 10th 1945." Across the dispositive provisions and testimonium clause of the second page was the following entirely in the decedent's handwriting: "I Katherine Allen Smith do hereby revoke this will it hereby becomes nul and void Katherine Allen Smith July 10th 1945." These two writings will be hereinafter referred to as one writing or instrument. The decedent's estate aggregates in value about $13,000 and appears to have been her separate property by inheritance from her mother. Peter Gross, an uncle, 77 years of age, of North Hollywood, California (formerly of St. Cloud, Minnesota), and Mary Gross Schmitt, an aunt, 75 years of age, of St. Cloud, Minnesota, are the surviving next of kin and heirs at law by intestate succession.
On January 14, 1946, Virgil L. Catching, son of a living sister of the decedent's former husband Smith, and a resident of Los Angeles County, filed a petition for letters of administration as a creditor of the estate. On January 30, 1946, the public administrator of the county filed a petition for letters. Each petition indicated that the heirs of the decedent were unknown. On January 31, 1946, Peter Gross filed a petition for letters of administration alleging the kinship of himself and his sister. In each of the foregoing petitions it was stated that due search and inquiry disclosed that the decedent had not left a will.
On March 7, 1946, Ernest E. Jones, named as executor in the will of July 22, 1942, petitioned for the probate of that instrument and for the issuance to him of letters testamentary. This petition also set forth the revocatory instrument written, dated and signed by the decedent on July 10, 1945, but sought its rejection on the ground that it was not executed in accordance with statutory requirements and that at the time of its execution the decedent did not have testamentary capacity. Peter Gross and Mary Schmitt filed their objections and contest based on the asserted validity of the revocation of July 10, 1945.
A hearing was had on the contest and the answer thereto. *566 The court denied probate to the revocatory instrument, admitted to probate the will of July 22, 1942, granted the proponent's petition for letters testamentary, and denied the petition of Peter Gross for letters of administration. The contestants appealed from those portions of the judgment which embodied the foregoing orders.
The record does not show that the issue of testamentary incapacity of the decedent in July, 1945, was pressed and the court made no finding thereon. The court found and concluded that the decedent did not intend by the writing of July 10, 1945, to revoke her will. That finding was based on evidence introduced over objection of certain circumstances and declarations of the decedent. The evidence which was thus deemed to bear upon the revocatory intent and in effect to cancel the writing of July 10, 1945, consisted of the following:
In the latter part of June, 1945, Virgil L. Catching, in a conversation with the decedent about his uncle (decedent's former husband), asked if she intended to make reimbursement for moneys expended by her "in-laws" for taxes and other items for the home. The decedent stated her intent substantially as declared in her executed will. The nephew expressed a doubt that she had sufficient to do "much good along that line"; that it might be "kind of foolish," and that since there were so many of her "in-laws" who had helped her out from time to time she should make some provision for them. Another conversation was had between them when the decedent was in the hospital and six days prior to her death, wherein she stated that her attorney had all the papers pertaining to her estate with instructions as to what to do, that she wished to be buried "in the same order or building" as her parents, and that she was leaving her home to Virgil and his mother. There was testimony that on several occasions the decedent said that she had no living relatives. It appeared that the last times she heard from Peter Gross and Mary Schmitt were 40 and 25 years ago respectively. Subsequent to the revocatory writing the decedent stated to Virgil's mother that her will and other papers were in the custody of her attorney, and that she would like Virgil and her (Virgil's mother) to have her home. In December, 1945, the decedent told the mother that she had made a will giving all her property to Pomona College to endow a scholarship. About August, 1945, in a telephone conversation with her attorney the decedent was reminded that her papers were in his possession to which she replied, "Yes, I know that." It also *567 appears that for about a year prior to her death the decedent had not gone to the office of her attorney but about six months prior to her death had reported to him in a telephone conversation that she was suffering from some physical ailment.
A will may be revoked by an express written declaration of that intent executed with the same formalities required for the execution of a will. (Prob. Code, 74 (1).) The contestants urge that the formalities were here complied with, that is, that the revocation of July 10, 1945, was entirely written, dated and signed by the hand of the testatrix and that it was entitled to be admitted to probate as a valid holographic instrument. (Prob. Code, 53.)
It is conceded, as the court found, that the writing of July 10, 1945, including the date and signature, was by the hand of the decedent. It is also conceded that if she had specifically referred in that instrument to the will of July 22, 1942, as the will intended to be revoked, no question could arise as to the effectiveness of the writing as a revocation. But the proponents of the will urge that without the specific reference the holographic writing is ineffective as a revocation.
[1a] The mere writing of the revocation clause across the face of the typewritten copy of the will of July 22, 1942, did not destroy its authenticity as a valid holographic instrument. The typewritten portion of the paper had nothing to do with the holographic writing as such. The holographic instrument was self-contained and the typewriting on the sheets is therefore deemed not a part of it. (Prob. Code, 53, Estate of Oldham, 203 Cal. 618 [265 P. 183]; Estate of De Caccia, 205 Cal. 719 [273 P. 552, 61 A.L.R. 393]; Estate of Atkinson, 110 Cal.App. 499, 502 [294 P. 425]; cf. Estate of Thorn, 183 Cal. 512 [192 P. 19]; Estate of Bernard, 197 Cal. 36 [239 P. 404]; Estate of Bower, 11 Cal.2d 180 [78 P.2d 1012].)
The holographic writing was made across the copy of the typewritten will for the sole purpose of identifying the will intended to be revoked. That purpose is made certain by the use of the words "this will" in expressing the revocatory intent. [2] It has long been settled in this state that either a holographic or an attested testamentary instrument may refer to and incorporate another testamentary instrument executed with different statutory formalities or an informal or unattested document, so long as the reference is unmistakable or with the aid of extrinsic proof can be made so. (Estate of Skerrett, 67 Cal. 585 [8 P. 181]; In re Soher, 78 Cal. 477 *568 [21 P. 8]; Estate of Young, 123 Cal. 337 [55 P. 1011], where the rule was recognized but the reference held inexplicit; Estate of Plumel, 151 Cal. 77, 79-80 [90 P. 192, 121 Am.St.Rep. 100], citing cases; Simon v. Grayson, 15 Cal.2d 531 [102 P.2d 1081]; Estate of Wunderle, 30 Cal.2d 274, 281 [181 P.2d 874]; Estate of Sullivan, 94 Cal.App. 674, 678 [271 P. 753]; Estate of Atkinson, supra, 110 Cal.App. 499, 502; Estate of Miller, 128 Cal.App. 176, 181 [17 P.2d 181], citing cases; Estate of Martin, 31 Cal.App.2d 501, 505, 507 [88 P.2d 234].) [1b] The writing of the revocation across the typewritten face of the copy of the will of July 22, 1945, with the use of the words "this will," was but a substitute for a more specific reference; and since that language with the aid of the typewritten copy upon which it appears identified the will intended to be revoked, it served the purpose of a specific reference. All that is here required is that the revocatory writing should so refer to the will that its identity will be unmistakable. That the language of the writing of July 10, 1945, across the face of the copy, does unmistakably identify it can admit of no doubt. It is therefore a valid effective revocation of the will of July 22, 1942.
[3] Once it is determined that the decedent revoked her prior will by the writing of July 10, 1945, there is no room for speculation. Therefore the evidence received of extraneous occurrences and declarations claimed to bear upon the intent to revoke cannot overcome the valid express revocation. It is said in 4 Page on Wills, page 665, with citation of cases, that declarations of the testator are not admissible to show that an express revocation clause was not intended to revoke a prior will. [4] The statement relied on from Estate of Thompson, 44 Cal.App.2d 774, 776 [112 P.2d 937], that declarations of a testatrix are admissible on the issue of revocation, standing alone, is too broad. That rule is applied, as it was in that case, where it is sought to establish a lost or destroyed will; or in the case of a will executed in duplicate one executed copy of which was destroyed (Estate of Janes, 18 Cal.2d 512 [116 P.2d 438]; Managle v. Parker, 75 N.H. 139 [71 A. 637, Ann. Cas. 1912A 269, 24 L.R.A. N.S. 180]); or to explain cancellation marks on the original will not amounting to an express revocation (Estate of Olmsted, 122 Cal. 224 [54 P. 745]. See also cases collected in note, 24 L.R.A. N.S. p. 180, 79 A.L.R. 1493, 1496). The basis of the rule in such cases is that the act of the testator is ambiguous and is explainable by his declarations. It is the rule which applies *569 when the language of a purported testamentary writing is ambiguous and extraneous declarations are necessary to determine the testamentary intent. (See Estate of Pagel, 52 Cal.App.2d 38 [125 P.2d 853].) The rule here applicable is not the rule which governs in the establishment of testamentary intent by ambiguous writing or conduct. [5] Nor is there room for the application of the rule that constructions which lead to total or partial intestacy are not favored. That rule also applies only where there exists an ambiguity or uncertainty in the language of the testator. (Estate of Wierzbicky, 69 Cal.App.2d 690, 693 [159 P.2d 699].) Here there can be no inference other than that which is in accord with the unambiguous express revocation.
On this record all that was properly before the court was a duly executed express revocation of a prior will, which presented a case of intestacy and called for the issuance of letters of administration to the party entitled thereto. (Luckey v. Superior Court, 209 Cal. 360, 365 [287 P. 450].)
Those portions of the judgment admitting to probate the instrument of July 22, 1942, granting letters testamentary thereon, denying admission to probate of the holographic revocation of July 10, 1945, and denying the petition of Peter Gross for letters of administration are reversed.
Gibson, C.J., Edmonds, J., Carter, J., Traynor, J., and Spence, J., concurred.
SCHAUER, J.
I dissent. The majority opinion is essentially based on the statement that "The facts are not in dispute." But according to the record as I view it the facts are in dispute.
The crucial question in the case is whether the decedent executed the alleged revocatory instrument with intent to effect revocation of the will of July 22, 1942. Without such intent the later writing would be wholly ineffective. Since the decedent alone could have given direct evidence of her intent, and since her lips are stilled, resolution of the question must depend upon indirect or circumstantial evidence or upon rules of law as to the burden of proof. Since the due execution of the will was established the burden was upon contestants to prove the animus revocandi of the testatrix. The evidence upon this subject is in substantial conflict, at least in relation to the inferences to be drawn from the circumstances shown. An inference, of course, is evidence. (Code Civ. Proc., 1957.) *570
The evidence on the issue in question is conflicting in the following respects: An intent to revoke the will of July 22, 1942, is inferable from the very writing by decedent of the language used in the claimed revocatory document; such evidence, however, obviously is not conclusive of the intent with which it was penned. The testatrix may well have believed that the words written on the carbon copy of her will would have no effect whatsoever unless she published such later writing as her formal act. If she had ever executed a deed or contract it is not unlikely that she had been told that mere signing of the document would have no legal effect, that it would have to be delivered as well as signed to be effective; she may have thought the same rule would apply to an instrument revocatory of a formally executed will. She may have contemplated revocation but decided against it; in such contemplation she may have written the endorsement on the carbon copy of her will believing that those words would have no effect unless she secured the formally executed will from her attorney and made the endorsement on that document. This last hypothesis is one which the trial judge, in the light of all the evidence, may well have deemed most likely to be correct. Supporting such view are the following facts: The will of July 22, 1942, was formally executed and left with decedent's long-time attorney; the claimed revocatory instrument was never delivered or even exhibited to any person during decedent's lifetime; decedent's attorney had drawn the will for her; he was told nothing of an intent to revoke it; on the contrary after the date of the alleged revocatory writing he talked with decedent and according to the record stated " 'You know I have your will and papers here' and she said 'Yes, I know that' "; decedent also, subsequent to the asserted revocation date, made statements to the witness Julia O. Spencer which are definitely and substantially inconsistent with the claimed animus revocandi; likewise, the testimony of Virgil L. Catching, as to conversations with decedent both shortly before and after the claimed revocation date, shows a state of mind of the decedent inconsistent with revocation; the original will was left outstanding in the hands of decedent's attorney; the circumstances of decedent's estate and her relationship to the persons who seek to succeed thereto by overthrowing her will are shown to be such that the dispositive provisions of the will appear to be natural and reasonable; lastly, no motive for revocation is shown and no substitute will or altered testamentary plan is suggested to have been determined upon by the testatrix. *571
It is not contended that the revocatory instrument, if it ever was executed with intent to revoke the will, could itself be revoked and the will reinstated by any oral declarations of the testatrix; the proponents make no such suggestion. But it is most earnestly contended, and I think with full justification, that the evidence supports the conclusion that the testatrix merely contemplated and decided against revocation; that the asserted revocatory instrument never was executed with intent to make it effective; and that the original will never has been revoked. The trial court, having heard the evidence, specifically found "That testatrix did not intend by writing said words of July 10, 1945 to revoke or alter said Will of July 22, 1942, in whole or in part," and "That the Will of July 22, 1942, is the Last Will and Testament of Katherine Allen Smith, deceased, was considered as such by decedent at all times from the date of its execution until the date of her death, and at no time was revoked by decedent, in whole or in part."
The evidence upon which the trial court made its findings of fact, including the evidence as to the declarations of the testatrix, was competent to that end. (Estate of Thompson (1941), 44 Cal.App.2d 774, 776 [112 P.2d 937].) Under such circumstances it is our duty to affirm the judgment. (Estate of Bristol (1943), 23 Cal.2d 221, 223 [143 P.2d 689]; Cate v. Certainteed Prod. Co. (1943), 23 Cal.2d 444, 448 [144 P.2d 335]; Estate of Teel (1944), 25 Cal.2d 520, 526 [154 P.2d 384]; Fackrell v. City of San Diego (1945), 26 Cal.2d 196, 207 [157 P.2d 625, 158 A.L.R. 625]; Viner v. Untrecht (1945), 26 Cal.2d 261, 267 [158 P.2d 3]; Pewitt v. Riley (1945), 27 Cal.2d 310, 313 [163 P.2d 873]; De Young v. De Young (1946) 27 Cal.2d 521, 526 [165 P.2d 457]; Millsap v. National Funding Co. (1944), 66 Cal.App.2d 658, 665 [152 P.2d 634]; Southern Calif. Freight Lines v. State Bd. of Equalization (1945), 72 Cal.App.2d 26, 29 [163 P.2d 776]; Berry v. Chaplin (1946), 74 Cal.App.2d 652, 663 [169 P.2d 442]; Medina v. Van Camp Sea Food Co. (1946), 75 Cal.App.2d 551, 556 [171 P.2d 445]; Seidenberg v. George (1946), 76 Cal.App.2d 306, 308 [172 P.2d 891]; see also cases epitomized in dissenting opinion in Isenberg v. California Emp. Stab. Com. (1947), 30 Cal.2d 34, 46-48 [180 P.2d 11].)
The majority opinion leaps completely over the proposition that the finding of the trial court on conflicting evidence is binding on us, by its assertion, previously mentioned, that "The facts are not in dispute," and its assumption from then *572 on that the testatrix, by her equivocal act, intended to revoke her will. As also previously shown, the crucial fact question in the case is whether she intended by her act to revoke the will. Yet the majority, without discussing the sufficiency of the evidence, asserts that the facts are not in dispute, assumes the intent to revoke, and declares, "Once it is determined that the decedent revoked her prior will by the writing of July 10, 1945, there is no room for speculation. Therefore the evidence received of extraneous occurrences and declarations claimed to bear upon the intent to revoke cannot overcome the valid express revocation ... Here there can be no inference other than that which is in accord with the unambiguous express revocation."
It is apparent that this court, by the language above quoted, has made the claimed revocatory writing conclusive and exclusive evidence of the intent with which it was written, although there is no evidence whatsoever that the writer ever published the document as her act, and despite the fact that substantially all the evidence on the subject tends to show that she never intended to revoke her will. The rule made by the majority seemingly would apply equally even though it were indisputably proven that at the time decedent penned the asserted revocatory words on the copy she declared that she was merely contemplating possible future revocation of her original, executed will and that she was writing the words across the face of a carbon copy of her will merely to serve as a memorandum in the event that in the future she should decide to revoke her will, in which case she would procure the original executed will from her attorney and write the same language thereon. Under the rule laid down by the majority, the result, it seems, would also be the same, even though the decedent made the above suggested declarations of intent in writing, and notwithstanding it should also appear that her attorney advised her that the making of the memorandum on the carbon copy would be meaningless unless she later determined to, and did, endorse the revocatory language on the original will. In fact, if the majority opinion is to be followed, upon a new trial an offer to prove all of the above suggested facts would be rejected.
In my view, questions of fact on conflicting evidence should be left to resolution by trial courts. The judgment here should be affirmed. *573
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4338
PHILLIP CHEEKS, a/k/a Charles Osbin
Allen,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4339
PHILLIP CHEEKS, a/k/a Charles Osbin
Allen,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-98-529, CR-98-1177-JFA)
Submitted: September 30, 1999
Decided: October 14, 1999
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Susan Z. Hitt, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Phillip Cheeks appeals the sentence imposed on his convictions
entered on his guilty pleas to using a counterfeit access device in vio-
lation of 18 U.S.C. § 1029(a)(1) (1994), and felon in possession of a
firearm in violation of 18 U.S.C. § 922(g) (1994). On appeal, Cheeks
contends that the district court erred in departing upward from the
sentencing range obtained from the U.S. Sentencing Guidelines
(1997). Generally, we review a district court's decision to depart for
abuse of discretion. See Koon v. United States , 518 U.S. 81, 91
(1996). However, a district court's decision that an encouraged factor
is not adequately accounted for under the applicable guideline is
reviewed de novo. See id. at 95-96, 100; see also United States v.
Rybicki, 96 F.3d 754, 757-58 (4th Cir. 1996). Our review of the
record on appeal reveals that the district court properly decided to
depart as a result of Cheeks' extensive criminal history. See USSG
§ 4A1.3. Furthermore, the district court adequately stated its reasons
for departure from the bench, and did not abuse its discretion in deter-
mining the extent of its departure from the guidelines range. See
United States v. Rusher, 966 F.2d 868 (4th Cir. 1992); United States
v. Cash, 983 F.2d 558 (4th Cir. 1992).
Finding no reversible error in the district court's decision to depart
upward from the guidelines range, we affirm Cheeks' sentence. We
2
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
3
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650 S.E.2d 562 (2007)
50 Va. App. 413
Marquise Leon NELSON
v.
COMMONWEALTH of Virginia.
Record No. 0587-06-4.
Court of Appeals of Virginia, Alexandria.
September 18, 2007.
*563 Terence J. Patton (James J. Ilijevich; Office of the Public Defender, on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: FRANK and HUMPHREYS, JJ., and COLEMAN, S.J.
HUMPHREYS, Judge.
Marquise Leon Nelson ("Nelson") appeals his conviction for failure to appear, in violation of Code § 19.2-128(B). He argues the evidence was insufficient to prove that he willfully failed to appear in court and that the trial court erred in instructing the members of the jury that they could infer that a person intends the natural and probable consequences of his actions. For the following reasons, we hold that the evidence is sufficient to support his conviction, and do not address his argument regarding the jury instruction, as it is procedurally defaulted.
BACKGROUND
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the evidence established the following:
On March 17, 2004, Deputy Robert Grella ("Grella") of the Stafford County Sheriff's Department arrested Nelson for a felony offense and served him with a felony arrest warrant.[1] During the arrest Nelson produced a Georgia identification card listing his name as Marquise Leon Nelson, and his birth date as December 25, 1969.
*564 Later that day, Nelson signed a recognizance form outlining the conditions of his bond pending trial. Nelson's bond prohibited him from leaving Virginia until his case and any appeals of his case were finished. Nelson appeared for an arraignment in the Stafford County General District Court ("GDC") on March 24, 2004 and signed an order acknowledging that a failure to appear could be treated as a separate and independent criminal offense. Nelson appeared for arraignment in the Stafford County Circuit Court ("trial court") on May 13, 2004. At this appearance, the trial court advised Nelson that it was scheduling his case for a jury trial on September 9, 2004.
In mid-August of 2004, Nelson was arrested in Maryland on an outstanding warrant from the Maryland Division of Corrections. Nelson did not contact the trial court or his attorney regarding his incarceration and remained in continuous custody of Maryland authorities until October 7, 2005. Nelson did not appear for his jury trial on September 9, 2004, and his attorney had no knowledge of his whereabouts. Consequently, the trial court issued a capias for Nelson.
On October 4, 2004, a grand jury indicted Nelson for his failure to appear in court. At trial on February 23, 2006, the Commonwealth presented the above-referenced evidence regarding Nelson's recognizance and failure to appear for trial on September 9, 2004, and called John Hafer ("Hafer"), an agent of the Maryland Division of Parole and Probation, as a witness. Hafer identified himself as Nelson's supervising probation officer, related that Nelson had been arrested in Maryland and was incarcerated there on September 9, 2004, and testified that Nelson's real name was in fact Jake Phinizy Adams and his birth date was September 10, 1962.
At the conclusion of the evidence, Nelson moved to strike, arguing that the evidence was insufficient to convict him of failure to appear when the evidence proved that he was incarcerated in Maryland on his trial date. The trial court denied the motion. Before closing arguments, the Commonwealth offered a jury instruction stating that the jury could "infer that every person intends the natural and probable consequences of his acts." Nelson objected to this instruction, arguing only that it was not "a reasonable inference to think that, if any of us got into our cars and drove to Maryland, that we could not get back to Virginia in a certain period of time." The trial court overruled Nelson's objection and issued the instruction, and the jury subsequently convicted Nelson of failure to appear. Nelson now appeals.
ANALYSIS
I. Sufficiency of the Evidence
Nelson argues that the evidence was insufficient to support his conviction for failure to appear. Specifically, he argues that he was incarcerated in Maryland on the day of his trial and, therefore, "[a]s a matter of law, [he] could not willfully fail to appear." We disagree.
When considering the sufficiency of the evidence presented at trial, we "presume[ ] [a jury verdict] to be correct" and will not disturb it unless it is "`plainly wrong or without evidence to support it.'" Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (quoting Code § 8.01-680).
Code § 19.2-128(B) states that "[a]ny person [] charged with a felony offense . . . who willfully fails to appear before any court as required shall be guilty of a Class 6 felony." "`Willfully,' as used in Code § 19.2-128(B), has the customary meaning that the act must have been done `purposely, intentionally, or designedly.'" Hunter v. Commonwealth, 15 Va.App. 717, 721, 427 S.E.2d 197, 200 (1993) (en banc). "When the [Commonwealth] proves that an accused received timely notice of when and where to appear for trial and thereafter does not appear on the date or place specified, the fact finder may infer that the failure to appear was willful." Id. Furthermore, "[i]ntent is the purpose formed in a person's mind which may, and often must, be inferred from the facts and circumstances in a particular case. The state of mind of an alleged offender may be shown by his acts and conduct." Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). Thus, intent often *565 must be proved through circumstantial evidence. See id.
"When the Commonwealth relies upon circumstantial evidence, the circumstances proved must be consistent with guilt and inconsistent with innocence[,]" and "[t]he evidence as a whole must exclude every reasonable theory of innocence." Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). However, this requirement does not add to the burden of proof placed on the Commonwealth. Instead, it is "simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt." Id. Moreover, "[c]ircumstantial evidence is not viewed in isolation. `While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.'" Id. at 514, 578 S.E.2d at 786 (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991) (internal quotation marks omitted)). Thus, the issue on appeal is "whether a reasonable jury, upon consideration of all the evidence, could have rejected [a defendant's] theories in his defense and found him guilty of [the offenses charged] beyond a reasonable doubt." Id. at 513, 410 S.E.2d 662, 578 S.E.2d at 785.
We addressed a similar situation in Hunter. In Hunter, the defendant signed a bond document prohibiting him from leaving Virginia without the court's permission. 15 Va. App. at 723, 427 S.E.2d at 201. When the trial judge issued a summons for the defendant to appear at trial, the serving officer could not locate the defendant at the address he had provided to the court. Id. Approximately four months later, after missing his scheduled trial date, law enforcement officers in Ohio arrested the defendant and returned him to Virginia authorities after he waived extradition. Id. at 720, 427 S.E.2d at 199. The defendant had neither obtained court approval nor notified the court of his travels to Ohio. Id. at 723-24, 427 S.E.2d at 201. Because the defendant had left the address he had provided to the court, and, furthermore, had left Virginia in violation of the conditions of his bond, we held the evidence sufficient to support the defendant's conviction. Id. at 723-24, 427 S.E.2d at 201-02.
Nelson attempts to distinguish Hunter from the facts of this case, because unlike the defendant in Hunter, Nelson was actually incarcerated on the day of his trial. As such, Nelson argues that Riley v. Commonwealth, 13 Va.App. 494, 412 S.E.2d 724 (1992), controls the outcome of this case. In Riley, the defendant stipulated that he had not appeared for an earlier court date, but offered into evidence a document from the City of New York, Department of Corrections, stating that he was incarcerated in New York on the day of his trial. Neither the Commonwealth nor the defense introduced any other evidence relating to the defendant's failure to appear. Id. at 496, 412 S.E.2d at 725. We reversed the defendant's failure to appear conviction because "all evidence indicate[d] that [the defendant] was incapable of appearing [for his court date] due to his incarceration in New York." Id. at 499, 412 S.E.2d at 727.
Nelson's reliance on Riley is misplaced. In Riley, the only evidence introduced at the defendant's failure to appear trial was a document proving that the defendant was incarcerated in New York on the day of his original trial. Neither party introduced any evidence regarding the circumstances behind the defendant's incarceration, nor did the parties present evidence as to how the defendant came to be in New York, or any actions the defendant may have taken to avoid coming to trial.
Here, when Nelson was arrested, he presented a Georgia identification card listing his name as Marquise Leon Nelson, and his birth date as December 25, 1969. At trial, Hafer testified that Nelson's real name was Jake Phinizy Adams and that Adams' birth date was September 10, 1962. Like the defendant in Hunter, Nelson left Virginia in violation of the conditions of his bond. Although he was incarcerated on the day of his trial, the record discloses no evidence that Nelson contacted or attempted to contact his attorney or the trial court to notify them of his whereabouts.
From this evidence, the jury could infer that Nelson's failure to appear was willful. *566 As finder of fact, the jury was entitled to believe Hafer's testimony that Nelson's real name was Jake Phinizy Adams, and thus make the inference that Nelson presented a false identification card at the time of his arrest for the purpose of evading prosecution.[2] Furthermore, because Nelson violated the conditions of his bond by traveling to Maryland and made no efforts to notify Virginia authorities or his attorney of his incarceration, the jury could infer that Nelson did not intend to come to his trial on September 9, 2004. In combination, these facts are sufficient for a jury to infer that Nelson willfully failed to appear for his trial. Therefore, we hold that Nelson's failure to appear conviction is supported by sufficient evidence. Accordingly, we affirm his conviction.
II. The Jury Instruction
Nelson next argues that the trial court erred in issuing the jury instruction which reads: "every person intends the natural and probable consequences of his acts[,]" because this instruction as applied to him violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, Nelson argues that the instruction creates an unconstitutional permissive inference because there was no rational connection between the proven facts and the ultimate facts inferred. However, in objecting to the proposed instruction at trial, Nelson simply stated that "[he didn't] think [] it's a reasonable inference to think that, if any of us got in our cars and drove to Maryland, that we could not get back to Virginia in a certain period of time."
In objecting to the proffered instruction, Nelson made no mention of any constitutional defects in the instruction, nor did he object with any specificity with respect to how it was an incorrect statement of the law. Therefore, the trial court had no opportunity to consider the issue presented on appeal. Because Nelson did not object to the proposed instruction with specificity, he has waived this issue on appeal. See Rule 5A:18; see also Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ("Making one specific argument on an issue does not preserve a separate legal point on the same issue for review.").
CONCLUSION
We hold that sufficient evidence exists to support Nelson's failure to appear conviction, and we do not address his question presented regarding the constitutionality of the jury instruction. Accordingly, we affirm his conviction.
Affirmed.
NOTES
[1] Grella charged Nelson with uttering a forged note under Code § 18.2-170.
[2] This case is styled Marquise Leon Nelson v. Commonwealth as that is the name appearing on the indictment and sentencing order. Whether or not Jake Phinizy Adams is the defendant's real name is immaterial to our analysis. We note only that, based upon the evidence presented, the jury could have believed that this was his real name.
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582 F.2d 1277
U. S.v.Groff Candy Company, Inc.
No. 78-1251
United States Court of Appeals, Third Circuit
8/8/78
1
E.D.Pa.
AFFIRMED
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133 Ga. App. 80 (1974)
210 S.E.2d 32
BUCK CREEK INDUSTRIES, INC.
v.
CRUTCHFIELD & COMPANY; and vice versa.
49664, 49665.
Court of Appeals of Georgia.
Argued September 6, 1974.
Decided October 18, 1974.
McDonald, McDonald & McDonald, E. Crawford McDonald, for appellant.
Pittman, Kinney, Kemp, Pickell & Avrett, H. E. Kinney, for appellee.
DEEN, Judge.
Buck Creek Industries, Inc. filed suit in the Superior Court of Whitfield County, Georgia, for $35,529.64 based on an open account plus 7% interest from the due date. The defendant, Crutchfield and Company, answered, denying any amount due, and setting up the defense of partial failure of consideration in that the yarn which constituted the basis for the account was defective and much of it had to be used in manufacturing carpeting which had to be sold as seconds, resulting in a loss to the defendant. At the trial, the jury returned a verdict for the plaintiff for $35,529.64 (the amount sued for) "plus interest of 7% per annum, from the date of the invoices." Judgment was entered against the defendant for $35,529.64) plus interest in the sum of $4,974.14. The *81 defendant moved for a new trial. The trial judge then entered an order requiring the plaintiff to write off the interest ($4,974.14) or suffer a new trial. The plaintiff obtained a protective order allowing it to write off the interest ($4,974.14) without prejudice to its right to appeal from the trial judge's order.
1. The issue presented in the main appeal is whether an account of this type presents a liquidated or unliquidated claim.
"All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them, if payable on demand, from the time of the demand. In case of promissory notes payable on demand, the law presumes a demand instantly and gives interest from date." Code § 57-110.
It is obvious from this language that, in the absence of the defendant's plea of partial failure of consideration, the amount due was a liquidated demand, in that by agreement the sum to be paid was fixed and certain, and that interest would be payable from the due date (that is, beginning 30 days after the date of invoice.) Can a liquidated demand be converted into an unliquidated demand by one of the parties to the contract without the consent of the other? If so, an unsuccessful plea of failure of consideration or any other defense, although not sustainable, would absolve the defendant from payment of interest. This is not the intent of the law. "An unliquidated claim is one which one of the parties to the contract or transaction cannot alone render certain." Lincoln Lumber Co. v. Keeter, 167 Ga. 231, 236 (145 SE 68). Here the amount is certain; one of the parties cannot by means of an unsuccessful defense render it uncertain.
"There is an obvious distinction between interest awarded by virtue of the terms of a contract and interest awarded by way of damages for a breach of the contract, although the recovery in both cases is frequently spoken of as recovery of interest." 25 CJS 793, Damages, § 52. The "interest" sought in Firemen's Ins. Co. v. Oliver, 182 Ga. 212 (184 SE 858), is not the same as in this case. There the insurance company owed the amount of damages, which was not finally ascertainable until verdict. Here *82 the total amount was ascertained and the defendant owed interest thereon, subject to reduction if it could establish that its retention of a part of the purchase price after the due date was justifiable. It was unable to do this, as the jury found against its plea of failure of consideration.
A defendant is not entitled to set up a defense against payment, and, when it is established that the defense is invalid, still profit by being absolved from the payment of interest on money illegally retained by it. If this were true, for example, every action on a promissory note would involve a write-off of interest during litigation even though it was established that the defendant had no defense against the note. The trial judge erred in requiring that the interest be written off.
2. On the cross appeal, the defendant enumerates as error a portion of the charge wherein the judge instructed the jury that their verdict "could be for the plaintiff in a given amount."
There is no error in this instruction. As previously noted, the action was on an account. The defense was partial failure of consideration. The account was not denied. The defendant did not contend that the yarn was worthless only that it was inferior. Thus, the plaintiff was entitled to a judgment in some amount.
Judgment reversed on main appeal; affirmed on cross appeal. Eberhardt, P. J., concurs. Stolz, J., concurs specially.
STOLZ, Judge., concurring specially.
I concur in the judgment of Division 1 and with Division 2 of the opinion.
The situation presented sub judice is one in which the plaintiff presented a claim on an open account. This is generally considered a liquidated claim. See Nisbet v. *83 Lawson, 1 Ga. 275, 287; Bartee v. Andrews, 18 Ga. 407, 410; Roberts v. Prior, 20 Ga. 561, 562. Here, however, the defendant entered a plea of partial failure of consideration. At the trial of the case the jury found against the defendant's plea and returned a verdict in favor of the plaintiff in the amount sued for. Thus, the defendant's attempt to convert a liquidated claim into one that was unliquidated, failed and the defendant must pay the interest authorized by law. Had the jury rendered a verdict for the plaintiff in less than the amount sued for, it would have found in favor of the plea of partial failure of consideration; the account then would have been unliquidated and interest allowed only from date of judgment.
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377 So.2d 940 (1979)
STATE of Alabama ex rel. Charles A. GRADDICK, Attorney General,
v.
JEBSEN S. (U. K.) LTD.; Amerada Hess Corporation; and Gulf Oil Corporation.
No. 78-364.
Supreme Court of Alabama.
November 30, 1979.
*941 Charles A. Graddick, Atty. Gen. and Edwin L. Yates, Asst. Atty. Gen., for appellant.
Sidney H. Schell and George F. Wood, of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, Mobile, for Jebsen S. (U. K.) Ltd.
Rae M. Crowe and William M. Moore, of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for Amerada Hess Corp.
G. Sage Lyons and J. P. Courtney, III of Lyons, Pipes & Cook, Mobile, for Gulf Oil Corp.
MADDOX, Justice.
On May 26, 1978, the M/V ROLLNES, a vessel owned by Jebsen S. (U. K.) Ltd., collided with the Amerada Hess Terminal on the Mobile River, and severed pipelines owned by Amerada Hess and Gulf Oil, thereby causing the discharge of pollutants into state waters. The State sued Jebsen, Amerada Hess and Gulf, and claimed that the discharge constituted a violation of Code 1975, § 22-22-9(j)(6) [The Alabama Water Improvement Act]. The State demanded that the defendants pay the civil penalty provided by § 22-22-9(o).
Code 1976, § 22-22-9(j)(6) provides:
"Every person who, subsequent to November 21, 1971, wishes to begin discharging any new or increased pollution into any waters of this state shall apply to the commission in writing for a permit and must obtain such permit before discharging such pollution."
Code 1975, § 22-22-9(o) provides:
"Any person who violates any provision of this chapter, or any rule or regulation adopted by the commission, or any order which has been issued by the commission as provided for in this section or who discharges sewage, industrial wastes or other wastes into the waters of Alabama without a permit as required by this chapter shall be liable to a penalty of not less than $100.00 nor more than $10,000.00 for said violation, which may be recovered in a civil action in the circuit court. Each and every day during which such violation continues shall constitute a separate violation for purposes of this subsection. It shall be the duty of the commission and the attorney general or any district attorney to commence such actions to recover said penalties. The issuance of an order shall not be a condition precedent to the commencement of any action under this section; however, where an order has been issued, the alleged violator shall be afforded an opportunity to be heard upon said order as provided in this section before any action is commenced under this section."
The trial court granted, without comment, the defendant's motions to dismiss, which contained, among other grounds, a ground that the State's complaint failed to state a valid claim upon which relief can be granted, and that the subject statute requires an intentional discharge for the civil penalty to lie. The State appealed.
The sole issue presented by the State is whether intent to discharge pollution is a necessary element of a claim for civil penalties under the Act.
The State submits that since the purpose of the Alabama Water Improvement Act is *942 to protect and maintain the quality of state waters, all types of discharges, intentional and unintentional, must fall within the penalty provision of the Act. The State further contends that "discharge" should be defined as it is in federal statutes as "any spilling, leaking, pumping, pouring, emitting, emptying or dumping." 33 U.S.C.A. § 1321(a)(2). Under such a construction, any person who discharged without a permit would be liable and there would be no defenses to the action, except a denial that a discharge had occurred.
It is well settled that courts are to look for the legislative intent in the language of a statute; that language may be explained, but it may not be added to or detracted from. See Alabama Industrial Bank v. State, ex rel. Avinger, 286 Ala. 59, 237 So.2d 108 (1970).
"When the language is plain, it should be considered to mean exactly what it says." Id.
To adopt the construction advocated by the State would necessitate a disregard of the plain language of the statute. The statute applies to every person who "wishes to begin discharging." (Emphasis added.) One who wishes to do an act necessarily intends it. The State's complaint, alleging as it does, only that the pollutants were discharged as a result of the collision of the ship with the pipeline, necessarily fails to claim that the parties wished or intended to discharge a pollutant. The most liberal construction of the complaint would show merely that the discharge was the result of an accident.
The damages sought by the State under the Act are penal in nature. It is axiomatic that penal statutes are to be strictly construed in favor of the persons sought to be subjected to their operation. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied 265 Ala. 700, 90 So.2d 238 (1956).
The statute [Code 1975, § 22-22-9(o)], upon which the State seeks recovery, being penal in nature, was clearly enacted to deter intentional and unlawful discharges of pollution in to our state waters without a permit. Accidental discharges of pollution are covered by Code 1975, § 22-22-9(p), which provides for the recovery of damages resulting from a negligent discharge of pollutants.
The trial court properly dismissed the State's complaint for failure to state a claim.
AFFIRMED.
TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.
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69 F.3d 538
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.Keith RODGERS, Defendant-Appellant.
No. 94-2340.
United States Court of Appeals, Sixth Circuit.
Oct. 30, 1995.
Before: KRUPANSKY, MILBURN, and NELSON, Circuit Judges.
PER CURIAM.
1
On the day set for his trial in this criminal case, the defendant, Keith Rodgers, entered into a plea agreement with the government pursuant to Rule 11(e), Fed.R.Crim.P. The agreement incorporated a set of sentencing guideline worksheets which, in consonance with an explicit statement in Sec. 2B of the agreement, showed that Mr. Rodgers would be entitled to a two-level reduction in his offense level for acceptance of responsibility. Section 2A of the agreement recited that the worksheets "represent the joint position of the parties on the factors to be considered in calculating the appropriate sentence range under the sentencing guidelines...." Section 5 of the agreement, captioned "Waiver of Appeal," contained a promise by Mr. Rodgers "not to appeal the accuracy of any factor stipulated to in the attached worksheets."
2
The district court accepted the agreement. In accordance therewith Mr. Rodgers pleaded guilty to three of the five counts on which he had been indicted; the other two counts were dismissed. The parties had agreed in Sec. 2C that a sentence of imprisonment for up to 131 months could be imposed, but the court sentenced Mr. Rodgers to a total of 106 months.
3
Mr. Rodgers has appealed his sentence, contending that the district court committed clear error in calculating the guideline sentence range. He argues here--as he argued before the district court at the time of sentencing--that he qualifies for a three-level offense level reduction under U.S.S.G. Sec. 3E1.1(a) and (b), and not merely a two-level reduction under Sec. 3E1.1(a).
4
Mr. Rodgers does not deny that he entered into his plea agreement knowingly and voluntarily. It follows that "he cannot be excused from the plain meaning of [that] contract." United States v. Ashe, 47 F.3d 770, 776 (6th Cir.1995). The contract plainly commits Mr. Rodgers to the position that he should receive a reduction of two levels in his offense level, not three levels, and the contract plainly says that he will not appeal the accuracy of this or any of the other sentencing factors to which he stipulated. There were no sentencing factors on which the parties failed to reach agreement (see the second unnumbered paragraph of Sec. 2A of the agreement), and if the plain language of the plea agreement means anything, it means that Mr. Rodgers has given up his right to appeal the accuracy of the two-level reduction for acceptance of responsibility.
5
AFFIRMED.
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928 A.2d 731 (2007)
COX
v.
U.S.
No. 06-CM-711.
District of Columbia Court of Appeals.
July 16, 2007.
Decision without published opinion Affirmed.
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738 F.2d 454
Lesterv.Department of Educ.
84-719
United States Court of Appeals,Federal Circuit.
5/31/84
MSPB
Affirmed
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400 So.2d 1091 (1981)
Griffin F. PHILLIPS
v.
STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
No. 13821.
Court of Appeal of Louisiana, First Circuit.
April 13, 1981.
*1092 James A. Wood, Baton Rouge, for plaintiff-appellee Griffin F. Phillips.
John W. King, Asst. to Gen. Counsel, Louisiana Dept. of Transp. & Development, Office of Highways, Baton Rouge, for defendant-appellant State of Louisiana thru the Dept. of Transportation & Development.
Before ELLIS, COVINGTON, LOTTINGER, CHIASSON, EDWARDS, PONDER, LEAR, COLE and WATKINS, JJ.
COLE, Judge.
This is a suit for damages for personal injuries suffered by Griffin F. Phillips when the van he was driving hit a pothole in the road, went out of control and struck a tree. Defendant is the State of Louisiana, which was responsible for maintaining State Highway 64, where the accident happened. After trial on the merits, judgment was rendered in favor of plaintiff and defendant has appealed. We reverse.
Plaintiff, a deputy sheriff, was operating a van belonging to the sheriff of East Baton Rouge Parish, and was engaged in answering a call. He was driving at about 45 or 50 miles per hour when he observed a large pothole, about four and one-half feet in diameter and seven inches deep, immediately in front of him. Because there was no shoulder to his right, and traffic approaching from the other direction, he testified he had no alternative but to hit the pothole. He stated as a result of the impact the steering wheel was torn from his grasp, the van veered to the right into the ditch and struck a tree causing his injuries.
*1093 The issue presented is whether plaintiff, a deputy sheriff, has a right of action against the State of Louisiana for tort damages, or whether his exclusive remedy is for workmen's compensation.
Although the peremptory exception, raising the objection of no right of action, is not found in the record, the Department's portion of the pre-trial order raises the question of workmen's compensation as plaintiff's exclusive remedy.[1] The pre-trial order controls the issues to be presented at trial. La.Code Civ.P. art. 1551. The trial transcript does reflect the peremptory exception raising this issue was orally argued resulting in a ruling favorable to the plaintiff.
The Department has filed the peremptory exception, raising the objection of no right of action, in this court. The case had been submitted for decision October 24, 1980, and the exception was filed November 12, 1980. Ordinarily such an exception would not be heard because it was not filed prior to submission. La.Code Civ.P. art. 2163. The existence of no right of action may be noticed by the court on its own motion however, so we will deal with the issue. La.Code Civ.P. art. 927.
The Department urges the plaintiff, as a deputy sheriff, is an employee of the State, and as such his recovery is limited to workmen's compensation, citing R.S. 23:1032;[2]Foster v. Hampton, 381 So.2d 789 (La.1980) and Michaelman v. Amiss, 385 So.2d 404 (La.App. 1st Cir. 1980). These cases both involve tort suits against the State for acts of a deputy sheriff causing injury. Here, the deputy sheriff sustained the injuries and brings the action against the State for primary fault on the part of the State. In Foster and Michaelman, a deputy sheriff is held to be an employee of the State.
In prior jurisprudence dealing with the applicability of workmen's compensation to deputy sheriffs, deputy sheriffs have been found to be public officers of the State rather than employees, and, as such, not covered by workmen's compensation.[3]Richardson v. Heyd, In and For Parish of Orleans, 278 So.2d 167 (La.App. 4th Cir. 1973); Johnson v. Northern Assurance Co. of America, 193 So.2d 920 (La.App. 3d Cir. 1967); Mitchell v. James, 182 So.2d 144 (La.App. 3d Cir. 1966). We note these intermediate appellate court cases were all decided before the Supreme Court handed down Foster and Michaelman.
R.S. 23:1034 deals specifically with public employees and sets out those who are to be covered by workmen's compensation. It reads as follows:
"The provisions of this Chapter shall apply to every person in the service of the state or political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall *1094 not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services, for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein." (Part emphasized added by 1977 amendment.)
In Rodrique v. Breaux, 388 So.2d 60 (La. App. 1st Cir. 1980), a suit brought by a deputy sheriff against the sheriff and his office for workmen's compensation, after reviewing Foster and Michaelman, we held:
"The State of Louisiana, as the employer of the plaintiff, is an indispensable party to this workmen's compensation proceeding. We remand to permit plaintiff to amend his petition to name the State of Louisiana as a party defendant and thereafter for reconsideration in light of Foster and Michaelman, supra."
Further, we said:
"It now seems more appropriate to consider the classification of a deputy sheriff as an `employee' and his apparent joint employment by two or more employers. See La.R.S. 23:1031. Cf. La.R.S. 23:1034. If a deputy sheriff is no longer to be considered a `public officer' within the contemplation of Section 1034, as enunciated in prior jurisprudence, the 1977 amendment adding workmen's compensation coverage for criminal deputy sheriffs of Orleans Parish is superfluous."[4]
In Michaelman, supra, we originally held (376 So.2d 1029) the State is not the employer of a deputy sheriff, finding a contrary statement by our Supreme Court in Foster, supra, to be pure dictum. The Supreme Court granted writs in Michaelman and remanded for reconsideration in light of Foster. We then said (385 So.2d 405):
"We are convinced the Supreme Court intends that a deputy sheriff be recognized as an employee of the State regardless of the factual situation."
We now reiterate this position believing any doubt as to the status of a deputy sheriff as an employee of the State was laid to rest when the Supreme Court ordered us to reconsider Michaelman in light of Foster.
La.R.S. 23:1034 covers all state employees. The 1977 amendment specifically providing compensation for criminal deputy sheriffs for the Parish of Orleans must be construed against the background of prior court decisions declaring such persons to be public officials. We do not believe the Legislature necessarily intended, by covering Orleans deputies, to exclude all other deputies. It is more logical to believe the Legislature was mislead by the "public official" status conferred on deputies by jurisprudence, a status which we now repudiate. Logic dictates if a deputy sheriff is an "employee" of the State for purposes of respondeat superior tort liability, he is an employee for purposes of workmen's compensation provided by R.S. 23:1034. Compensation is founded in the "employer-employee" relationship. Once established, societal interests justify the flow of compensation benefits, absent a clear statutory exclusion.
R.S. 23:1034 limits plaintiff's remedy to one in workmen's compensation.[5] The tort remedy afforded generally for the particular grievance here asserted cannot be invoked by him. He is without interest to *1095 institute such a suit. The peremptory exception raising the objection of no right of action, is valid and must be maintained. See Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977).
The judgment appealed from is reversed, at plaintiff's costs.
REVERSED.
ELLIS, J., dissents and assigns written reasons.
WATKINS and CHIASSON, JJ., dissent for reasons assigned by ELLIS, J.
ELLIS, Judge, dissenting:
The state, through the Department of Transportation and Development argues, and the majority in this case has held, that plaintiff, as a deputy sheriff, is an employee of the state, and as such his recovery is limited to workmen's compensation, citing R.S. 23:1032; Foster v. Hampton, 381 So.2d 789 (La.1980) and Michaelman v. Amiss, 385 So.2d 404 (La.App. 1st Cir. 1980). These cases both involve tort suits against the state for acts of a deputy sheriff causing injury. For the purposes of respondeat superior, a deputy sheriff is held to be an employee of the state.
In cases dealing with the applicability of workmen's compensation to deputy sheriffs, they have been found to be public officers of the state rather than employees, and, as such, not covered by workmen's compensation. Johnson v. Northern Assurance Co. of America, 193 So.2d 920 (La.App. 3rd Cir. 1967); Mitchell v. James, 182 So.2d 144 (La.App. 3rd Cir. 1966).
R.S. 23:1034 deals specifically with public employees and sets out those who are to be covered by workmen's compensation. It reads as follows:
"The provisions of this Chapter shall apply to every person in the service of the state or political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services, for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein."
In Rodrigue v. Breaux, 388 So.2d 60 (La. App. 1st Cir. 1980), this court declared deputy sheriffs of all parishes to be covered by workmen's compensation, and that the legislation to the contrary is "superfluous." The court is not at liberty to ignore acts of the legislature, Article 13, Civil Code, nor to correct supposed errors which cause no ambiguity. Rada v. Administrator, Div. of Emp. Sec., State, D. of L., 319 So.2d 460 (La.App. 4th Cir. 1975), writ denied. In my opinion, these rules of statutory interpretation, including the legal maxim that the inclusion of the one operates the exclusion of all others, mandate the reversal of Rodrigue v. Breaux, supra, insofar as it holds that all deputy sheriffs are covered by workmen's compensation under R.S. 23:1034.
I therefore dissent.
NOTES
[1] We surmise the pleading was filed in the companion suit which was consolidated with this one for purposes of trial. Consolidation for trial purposes does not obviate the necessity to file such pleadings in the separate records, even though they are captioned with the title of both actions. The companion suit was dismissed and no appeal was taken.
[2] The relevant provision is R.S. 23:1034, specifically dealing with public employees.
[3] In disagreement with this result is Malone & Johnson, Louisiana Workers' Compensation Law and Practice, Section 98, (2d ed. 1980). The writers outline a rational basis upon which a deputy should be classified as an "employee," as distinguished from a "public official." They reason the exclusion of deputies from compensation tends to defeat the broad purpose of the Act, and caution: "The decisions with respect to deputy sheriffs... should be examined with care."
[4] Cf. Carmouche v. Oubre and the State of Louisiana, 394 So.2d 805 (La.App. 4th Cir. 1981), Docket Number 11,590, rendered February 5, 1981, as regards the joint employment concept. Carmouche involves an alleged tort by a deputy sheriff, holding in part that under Foster, the deputy sheriff is not an employee of the sheriff. See also, La.R.S. 33:2218.8.
[5] A collateral issue, whether or not the State of Louisiana possesses a dual capacity permitting a person employed in one of its departments to sue the State in tort because of legal fault emanating from a separate department, was treated by us in Wright v. Moore, 380 So.2d 172 (La.App. 1st Cir. 1979). See also, Developments in the Law, 1979-1980Workers' Compensation, 47 La.L.Rev. 557, 575-578 (1981).
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61 Ill. App.2d 183 (1965)
209 N.E.2d 350
Floyd Brosam and Orean Brosam, d/b/a Brosam Brothers, a Partnership, Plaintiffs-Appellees, Cross-Appellants,
v.
Employer's Mutual Casualty Company, Defendant-Appellant, Cross-Appellee.
Gen. No. 10,615.
Illinois Appellate Court Fourth District.
July 20, 1965.
Rehearing denied August 16, 1965.
*184 *185 William E. Larrabee, of Craig & Craig, of Mattoon, for appellants.
Thomas J. Logue, of Mattoon, for appellee.
TRAPP, J.
The Circuit Court of Coles County, Illinois, in a suit for reformation of a public liability insurance policy, brought by Floyd Brosam and Orean Brosam, partners, against Employer's Mutual Casualty Company, entered a decree the effect of which was to reform the insurance policy to extend the liability coverage for property damage to horses in the care, custody and control of the insured partners for breeding purposes. The Circuit Court also entered judgment in favor of the plaintiff partners and against the defendant insurance company in the amount of $2,525.60, being the amount of a judgment that had been rendered against the partners for damages for the death of a stallion resulting from alleged negligence of the partners while *186 the stallion was in their care, custody, and control for breeding purposes. The Circuit Court denied a claim of the plaintiff for $1,000 legal expenses in defending the negligence suit and a claim of $500 for alleged vexatious delay provided by Ill Rev Stats 1963, chap 73, sec 767.
Both parties appeal from the decree and judgments of the Circuit Court.
The written insurance policy was delivered to the plaintiff after the incident which gives rise to this action. Such policy, which defendant claims is controlling of the issues in this case, contained exclusion of liability for damage to property rented to the insured, or in the care, custody or control of the insured.
Defendant, in seeking to reverse the decree of reformation of the policy and the money judgment contends (1) that the judgment creditor in the negligence suit against the partners is the sole real party in interest and is a necessary party to the suit, (2) that the statute of frauds presents a defense to the action, (3) that parol evidence is inadmissible to vary the terms of the written insurance policy as delivered, (4) that the plaintiffs accepted the terms of the written insurance policy as delivered, (5) that the evidence upon which reform of the insurance policy was based consisted of declarations of an insurance solicitor whose authority was not established by the evidence and certain letters and correspondence which were not properly authenticated.
[1] The defendant's motion to dismiss the Fourth Amended Complaint is based upon section 48 of chapter 110, Ill Rev Stats, 1963, and alleges that the complaint shows on its face that plaintiffs have no interest in the cause of action and that only the judgment creditor has any interest in the cause of action. The trial court properly denied the motion. The cases *187 cited, Holowaty for Use of Cherka v. Prudential Ins. Co. of America, 282 Ill. App. 584 at 588; Hays v. Country Mut. Ins. Co., 28 Ill.2d 601, 192 NE2d 855, illustrate the fact that a garnishment proceeding is sometimes a proper remedy for a person who may be entitle to the proceeds of another's insurance. The question here presented is not discussed in either of those cases. At common law in Illinois, it was well established that if a proper party brought suit he need name no use party or real party in interest and that naming such party was surplusage. Lee v. Pennington, 7 Ill. App. 247 on 252; Schiff v. Supreme Lodge Order of Mut. Protection, 64 Ill. App. 341 on 343; Brownell Improvement Co. v. Critchfield for Use of Mexican Asphalt Paving Co., 96 Ill. App. 84 on 90; Continental Cas. Co. v. Maxwell, 127 Ill. App. 19 on 23; Cuna v. Supreme Tribe of Ben Hur, 157 Ill. App. 138 on 144; Smith v. Vandalia R. Co., 188 Ill. App. 426 on 429; People v. Egan, 239 Ill. App. 61 on 67; Grove v. Board of Sup'rs of Platt County, 246 Ill. App. 241 on 246; Stefanich v. Richard, 314 Ill. App. 183 on 186, 41 NE2d 104; Chadsey v. Lewis, 1 Gilm 6 Ill. 153, 159; Atkins v. Moore for Use of Cool, 82 Ill. 240, 241; Schott v. Youree, 142 Ill. 233, 241, 31 NE 591; Tedrick v. Wells, 152 Ill. 214 on 217, 38 NE 625; Knight v. Griffey, 161 Ill. 85, 87, 43 NE 727.
Illinois does not have a "real party in interest statute." Smith-Hurd, Ill Ann Stats, chap 110, sec 22, "Historical and Practice Notes," second paragraph; also "Law Review Commentaries" quoting William L. Eagleton, June 1936, 3 Univ of Chicago Law Review 597, 603 as follows: "The Illinois Civil Practice Act is almost unique in omitting the `real party in interest' provision." Section 1000 of the Insurance Code, Ill Rev Stats, 1959, chap 73, par 1000, attempts by regulation of the policies of casualty companies to provide for direct suit in case of insolvency of the insured.
*188 [2] Even where a right of subrogation may exist, the person having an interest in the suit (here the contract of insurance) may bring the suit in his own name. Osgood v. Chicago & N.W. Ry. Co., 253 Ill. App. 465 on 466; Ebel v. Collins, 47 Ill. App.2d 327, 198 NE2d 552 on 555.
Additionally, the facts stated in the motion to dismiss are not correct. It does not appear on the face of the complaint that the judgment creditor is the only one having any interest in the insurance. The complaint very clearly alleges that the defense of the suit by the now judgment creditor was tendered to the insurance company, that the defense was refused and the plaintiff was damaged thereby to the extent of $1,000 costs of defending the suit. The complaint also prays damages of $500 for vexatious delay in payment under section 767 of chapter 73, Ill Rev Stats, 1963.
If there is a provision in the liability policy of the defendant allowing direct suit by the judgment creditor, the fact does not appear in the motion to dismiss or anywhere in the record, so far as we are advised. In its brief defendant says that its obligation under Coverage C of the policy is "to pay on behalf of the named insured all sums which the insured shall become legally obligated to pay."
This point could well have been raised by a motion to make judgment creditor a party. This was not done. A motion to dismiss the suit was filed and was properly denied.
[3, 4] The proceeding to reform the insurance policy was properly the burden of the insured and not the burden of the judgment creditor. This is an equity proceeding. In our opinion the judgment creditor would have been a proper party. The defendant should have a right to require that payment of the judgment in favor of Neal Strole against the plaintiffs would be a satisfaction of so much of the judgment in this *189 case as is based upon the earlier judgment. Balch v. English, 247 Ill. App. 429 on 435. See also London & Lancashire Indemnity Co. of America v. Tindall, 377 Ill. 308 on 315, 36 NE2d 334.
Not having sought to bring the judgment creditor in by motion to add him as a party, the defendant may still, if a difficulty arises, require the satisfaction of all claims arising out of the transaction with one payment.
[5] The defendant contends that the suit is a suit to charge the defendant with the debt, default or miscarriage of another and that the Statute of Frauds, chap 59, sec 1, Ill Rev Stats, 1959, requires the promise in reference thereto to be in writing. If the Circuit Court was correct in the decree reforming the policy then there would be a writing to charge the defendant with the insured's debt, default or miscarriage.
[6] The defendant urges that parol evidence is inadmissible to vary the terms of the written contract which it contends is the policy of insurance delivered September 1, 1960. There is no doubt that parol evidence is admissible to show the real agreement between parties when a mistake has been made in the written contract and the evidence is for the purpose of making the contract conform to the original intent of the parties. Mahon v. State Farm Mut. Automobile Ins. Co., 36 Ill. App.2d 368 on 376, et seq., 184 NE2d 718, and cases therein cited.
[7, 8] While admitting that in case of mutual mistake a policy may be reformed on the basis of parol evidence, the defendant argues that the evidence must be clear and convincing and cites Hyman-Michaels Co. v. Massachusetts Bonding & Ins. Co., 9 Ill. App.2d 13 at 26-27, 132 NE2d 347; Pearce v. Osterman, 343 Ill. 175 at 176, 175 NE 416; Richer v. Catholic Order of Foresters, 344 Ill. App. 200 at 203, 100 NE2d 807; Harley v. Magnolia Petroleum Co., 378 Ill. 19, 37 NE2d 760, and other *190 authority. The principles cited are correct but they are, in the authorities cited, applied to various fact situations which are not closely analogous to the situation here presented.
Defendant also contends that plaintiffs accepted the policy and that their failure to read the same presents no excuse for failure to know the terms and cites Richer v. Catholic Order of Foresters, 344 Ill. App. 200 at 203, 100 NE2d 807; Spence v. Washington Nat. Ins. Co., 320 Ill. App. 149 at 155, 50 NE2d 128; Rozgis v. Missouri State Life Ins. Co., 271 Ill. App. 155 at 157. Plaintiffs' answer that failure to read a policy is not a bar to reformation citing Mahon v. State Farm Mut. Automobile Ins. Co., 36 Ill. App.2d 368 at 379, 184 NE2d 718, and other authority. All cases depend on the particular facts and here the unique fact situation is that there was no written binder and the accident occurred almost three weeks prior to the delivery of the written policy. Additionally, as will be noted, the insured, the agent and the agent's superior all thought that coverage existed after the loss and after the issuance of the written policy. Under the evidence in this case it could equally well be said that the agent didn't read the policy as that the insured did not.
[9] Proceeding to the merits, it should be observed that it is not the function of the Appellate Court to pass upon the legal questions involved in an abstract sense, but rather to determine whether the decree of the Circuit Court is contrary to law or contrary to the manifest weight of the evidence.
[10] The Circuit Court found that the evidence clearly and convincingly proved that the written policy of insurance, delivered after the claim arose, did not reflect the actual agreement of the parties and that in order to reflect the actual agreement of the parties, the liability coverage would have to be extended to cover horses in the care, custody and control of the insured *191 for breeding purposes. Unless this decree is contrary to law or contrary to the manifest weight of the evidence, it is the duty of this court to affirm it. Stoltz v. National Indemnity Co. of Omaha, Neb., 345 Ill. App. 495, 501-502, 104 NE2d 320; Hyman-Michaels Co. v. Massachusetts Bonding & Ins. Co., 9 Ill. App.2d 13 at 21, 132 NE2d 347; Illinois Law and Practice, Vol 2, Appeal and Error, sec 779, pp 729-30.
The defendant asserts that the written policy containing the exclusion coverage as to property rented to the assured or in the care, custody or control of the insured is the contract involved. The defendant presented no evidence except the written insurance policy. The defendant reasons that since the only testimony as to representations made to plaintiffs concerned representations of a "soliciting agent" and an unidentified company engineer and the authority of these persons was not shown, no competent evidence exists of representations by anyone representing the company of authority to vary the written terms of the contract. Defendant cites provisions 17 and 22 of the written policy to the effect that the policy embodies all agreements between the insured and the company.
In answer to plaintiffs' contention that the loss occurred during the period of a preliminary binder, defendant cites authority to the effect that the binder is subject to all the terms and conditions of the usual form of policy subsequently to be issued. Defendant further argues that plaintiffs accepted the policy as delivered and they are therefore bound by the policy terms even though the policy may be different from the one sought.
[11-13] Commencing with the written policy as the assumed contract, the defendant argues that there is no evidence that any authorized agent of the defendant made any representations to the plaintiffs. Defendant contends that the burden is upon the person who asserts *192 the agency to prove it and to show the authority of the agent and cites Dean v. Ketter, 328 Ill. App. 206 at 210, 65 NE2d 572; Kuhn v. Pulaski County Mill & Elevator Co., 188 Ill. App. 279, and 1 Illinois Law and Practice, Agency, sec 15, page 676. Defendant further contends that the fact of agency and the authority cannot be proved by what the agent said or did, but only by some word or act of the principal. As Authority, defendant cites Sacks v. Helene Curtis Industries, Inc., 340 Ill. App. 76, at 86, 91 NE2d 127; Merchants Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41 at 48-49, 79 NE 38; Sommerio v. Prudential Ins. Co. of America, 289 Ill. App. 520 at 523-24, 7 NE2d 631; Dodson v. Loaleen Mut. Benefit Ass'n, 247 Ill. App. 283 at 286; and Patton v. Young, 233 Ill. App. 515 at 518. Finally, defendant argues in reference to the question of agency that the most that might be inferred from the evidence is that Darrell Eaton was empowered to place orders for insurance with the defendant. Defendant then says that a soliciting agent has no power to waive or enlarge the terms, conditions and exclusions of a policy of insurance and cites Spence v. Washington Nat. Ins. Co., 320 Ill. App. 149, 50 NE2d 128; Rozgis v. Missouri State Life Ins. Co., 271 Ill. App. 155 at 157; Sommerio v. Prudential Ins. Co. of America, 289 Ill. App. 520 at 523-4, 527, 7 NE2d 631; Niedringhaus v. Aetna Ins. Co., 235 Ill. App. 335 at 336-337; Queen Ins. Co. v. John Spry Lumber Co., 138 Ill. App. 620 at 624; Pardon v. Wasvary, 249 Ill. App. 327; and 1957 U of I Law Forum, 522.
The general legal principles for which these cases are cited are supported by the authorities cited. It is necessary, however, to examine the evidence in the record to determine the extent of the application of those principles to the case the trial court was called upon to decide.
*193 The evidence clearly shows that Darrell Eaton was an agent of the defendant insurance company. He is designated "authorized representative" in the policy which the defendant asserts is the whole contract. There is no evidence to establish that Darrell Eaton was only a "soliciting agent" as assumed by defendant's counsel. Neither is there any evidence that the sole authority of Darrell Eaton was to "place orders for insurance with defendant" as contended in defendant's brief. Even an authority to countersign policies as an "authorized representative" exceeds the stated authority to place orders with defendant. Nor do the decided cases actually limit the authority of a soliciting agent, if that limitation were established, to placing orders with the defendant company.
An agency to sell insurance and to countersign insurance policies of necessity carries with it many implied routine powers which could be expected in the normal course of business. The minimum that would be expected of a soliciting agent would be an authority to explain the lines of insurance sold by the company, to take applications, to quote premium rates and to advise of the general method of the company in doing business.
Plaintiffs were in the contracting business as their main business, and conducted some farming operations as a sideline. Plaintiff Floyd Brosam testified without contradiction that in the latter part of May or early June, 1960, at the Coles County Fair, in the presence of another witness, Clarence Pfifer, and Darrell Eaton, the agent, he, Floyd Brosam had a conversation with Darrell Eaton about the fact that Brosam was conducting a horse breeding operation and was using other people's horses. Plaintiff testified that he asked the agent, Darrell Eaton, if he could get insurance coverage on breeding activities of such nature. He testified *194 that Eaton said he could get a blanket policy to cover the contracting operations and the farm operations and it would be cheaper than getting a separate policy, and, he said further that he would get an engineer down to go over it. He testified that about June 27, 1960, at the Bevers home, Darrell Eaton said they could get a policy that would cover him with any horse they had in their custody or control. Plaintiff testified that Eaton said he was covered and that the engineer would come down and talk about combining our other policy with breeding horses. He testified that the engineer came down and also advised them that they were covered for horses in their care, custody and control. This testimony is uncontradicted.
It can hardly be doubted that a sales agent would know who was an authorized engineer for the insurance company. It certainly is placing too great a burden on the insured to establish the name of the engineer and the extent of this authority. It would also be a normal assumption that an agent of a company authorized to sign policies would know the person in the company he might write for confirmation of coverage. Plaintiff's Exhibit 9 is an interoffice memo dated July 5, 1960, on Employer's Mutual Casualty Company Letterhead from Duane A. Borski, Chicago, to Darrell G. Eaton regarding the Orean and Floyd Brosam liability application stating, "coverage may be considered bound as requested in your memo of June 27, 1960 subject to favorable engineering inspection."
Apparently, the memo of June 27, 1960, from Darrell Eaton to Duane A. Borski was lost sometime between its receipt in the Chicago office of the company and the time of the trial. There is evidence, however, from which the trial court might have drawn reasonable inferences as to what it contained. Plaintiff's Exhibit 10 is an interoffice memo on Employer's Mutual Casualty Company letterhead, dated August 10, 1960, *195 slightly more than a month after the original memo, from Darrell G. Eaton to Duane Borski on the subject of "Brosam Bros. Liab. Comp." as follows:
"Sunday 8-7-60 Floyd had a fellow's stud horse out to his place, to get his mare bread, she was not ready and kicked the stud and broke his leg. They have taken him to animal hospital, but don't know for sure yet, the outcome, whether he'll have to be killed or leg can be fixed. He was a valuable animal. Is not this covered under this policy. Please advise, thanks Darrell."
Plaintiff's Exhibit 11 is an interoffice memo on Employer's Mutual Casualty Company letterhead dated August 17, 1960, from Duane A. Borski to Darrell G. Eaton which refers to subject, "Brosam Bros. A N d 30464 Neal Strole," and says:
"The type of situation outlined in your memo of August 8, 1960 would be covered under the farm liability policy or any other general liability policy written to cover farm operations. Payment of such a claim, of course, would depend entirely upon proof of our insured's negligence. In looking through our files, however, we are unable to find any record of such a policy in his name."
Plaintiff's Exhibit 12 is an interoffice memo on Employer's Mutual Casualty Company letterhead dated August 18, 1960, from Darrell G. Eaton to Duane Borski on the subject, "Brosam Bros. Comp. Gen. Liab.," which states:
"I had letter from you 5 July 60 where you say coverage be considered bound subject to favorable engineering inspection. Please check. It says Orean and Floyd Brosam."
*196 There is a logical inference that an additional exchange of information took place between the letter from Darrell Eaton to Duane Borski on August 10, 1960, and the reply from Duane Borski to Darrell Eaton on August 17, 1960, because the latter letter refers to Neal Strole, the owner of the stud whose name was not mentioned in the Eaton letter.
From the foregoing, the trial court could properly infer that the agent, Darrell Eaton, knew the person in the company with whom to confirm coverage, that coverage had been confirmed, that both Darrell Eaton and Duane Borski believed it covered the specific situation referred to in the testimony of Floyd Brosam as to his original request for coverage from Darrell Eaton. Even more could be inferred from Duane Borski's letter of August 17, 1960, and that is that the normal farm liability policy of Employer's Mutual Casualty Company covered the specific type of situation here involved.
Until the letter of September 2, 1960, from the claim supervisor, the insured, the agent and the agent's apparent superior all believed the specific situation requested by the insured was covered.
The policy issued September 1, 1960, covering both the carpentry operation and farm, bears number 4192015 and it is stated to be a rewrite of 4236721. The engineering report dated August 24, 1960, refers to policies 4236721 and 4200864. Neither the memo of June 27, 1960, from Darrell G. Eaton to Duane Borski, nor any policy bearing number 4200864 was introduced in evidence or in any way accounted for. On August 17, 1960, Duane Borski's office couldn't locate any coverage at all.
Plaintiffs state that the exhibits above referred to came to plaintiffs from defendant's attorney as a result of a motion to produce. This is not controverted.
*197 We believe it to be a fair inference for the trial court that an agent writing to a company office for confirmation of coverage would know that he was writing to someone in authority in respect to the inquiry.
There are times when one having the facts within his possession is bound to come forward with evidence to avoid the effects of a prima facie case.
There is certainly ample evidence that all the persons representing the company who would normally handle the transaction of assuring temporary coverage believed that the specific situation was covered. The weight of the evidence is that the issued policy was the mistake, and not that the understanding between the parties who would normally handle the situation was a mistake.
Neither is there any evidence to contradict Mr. Borski's assertion that all farm liability policies would cover this situation. The written engineering report indicated that D. Rundquist, engineer, thought the situation was covered.
[14] We hold that there was evidence from which the trial court could probably find that the defendant insurance company, through its authorized agents, held out to the plaintiffs that they were insured in reference to the specific situation in which the loss occurred, that there is no evidence whatsoever that such coverage was not normal or could not have been written or was not covered by the premium paid. The Circuit Court was justified, from the evidence, in finding that the policy as written did not express the intent of the parties and should be reformed as provided in the decree.
The plaintiffs give notice of cross-appeal from the judgment of the Circuit Court denying plaintiff's claim for $1,000 attorney's fees in defending the suit by Neal *198 Strole, and in denying assessment of $500 damages for vexatious delay.
[15] There is no evidence in this record of the actual cost of defending the law suit of Neal Strole. It is stated that plaintiffs agreed to pay $1,000 attorney's fees. The minimum requirement where the fees have not been paid would be proof of the reasonable charges for such defense. The trial court had nothing before it on which to base a finding of damages.
As to the claim of vexatious delay, the first three complaints were dismissed upon apparently proper grounds. Upon the record, we believe that there has been no showing of vexatious delay.
The decree of the Circuit Court reforming the insurance policy and the judgment of the court in favor of the plaintiffs against the defendant in the amount of $2,525.60, and the judgment of the court denying plaintiffs' claim for $1,000 attorney's fees and $500 for vexatious delay under sec 767, ch 73, Ill Rev Stats, 1963, are all affirmed.
Affirmed.
SMITH, P.J. and CRAVEN, J., concur.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2358
___________________________
Paul Burcham; Patty Burcham
lllllllllllllllllllll Plaintiffs - Appellants
v.
Weyerhaeuser NR Company
lllllllllllllllllllll Defendant - Appellee
Bituminous Insurance Company; Mike Alexander Logging
lllllllllllllllllllllIntervenor Plaintiffs
____________
Appeal from United States District Court
for the Western District of Arkansas - Texarkana
____________
Submitted: February 7, 2014
Filed: March 25, 2014
[Unpublished]
____________
Before LOKEN, BYE, and COLLOTON, Circuit Judges.
____________
PER CURIAM.
Paul and Patty Burcham (the Burchams) appeal the district court’s1 adverse
grant of summary judgment in their diversity negligence action which arose from
injuries Paul Burcham sustained while using a chainsaw to remove timber. Upon de
novo review of the record2 and the district court’s application of state law, see Day
v. Case Credit Corp., 427 F.3d 1148, 1152 (8th Cir. 2005), we affirm. Specifically,
we find that even assuming that the record established genuine issues of material fact
on whether Weyerhaeuser NR Company (WNR) undertook to provide a safe work
environment, a jury would be unable to conclude that there was negligence on WNR’s
part. See Stoltze v. Ark. Valley Elect. Coop. Corp., 127 S.W. 3d 466, 469-70 (Ark.
2003) (one exception to general rule that employer is not responsible for injuries
sustained by independent contractor’s employees is when employer undertakes to
perform certain duties and negligently fails to perform them or performs them
negligently); see also Wagner v. Gen. Motors Corp., 258 S.W.3d 749, 753-54 (Ark.
2007) (essential elements of negligence claim); Bess v. Herrin, 831 S.W. 2d 907, 908
(Ark. 1992) (negligence cannot be presumed from mere happening of accident). The
judgment of the district court is affirmed.
______________________________
1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.
2
We find no merit to the Burchams’ contentions that the district court did not
construe the record in a light most favorable to them, see McKenney v. Harrison, 635
F.3d 354, 358 (8th Cir. 2011), or improperly made credibility determinations, see
Coker v. Ark. State Police, 734 F.3d 838, 843 (8th Cir. 2013).
-2-
| {
"pile_set_name": "FreeLaw"
} |
331 F.Supp. 1227 (1971)
Donald BEISHIR, Plaintiff,
v.
Harold R. SWENSON et al., Defendants.
Nos. 1465, 1496, 1541.
United States District Court, W. D. Missouri, C. D.
June 28, 1971.
*1228 Willard B. Bunch, William B. Morgan, Gerald R. Walsh, of The Legal Aid and Defender Society of Greater Kansas City, Mo., for plaintiff.
Gene E. Voigts, First Asst. Atty. Gen. of Missouri, Kenneth M. Romines, Asst. *1229 Atty. Gen. of Missouri, Howard L. McFadden, General Counsel, Department of Corrections, State of Missouri, Jefferson City, Mo., for defendants.
FINDINGS AND OPINION
ELMO B. HUNTER, District Judge.
Plaintiff, Donald Beishir, a state convict confined in the Missouri State Penitentiary, seeks damages and injunctive relief pursuant to 42 U.S.C. § 1983, to redress the alleged deprivation, under color of state law, of rights secured to him by the eighth and fourteenth amendments to the Constitution. In addition to monetary damages, plaintiff Beishir seeks injunctive and declaratory relief under 28 U.S.C. § 2201 and § 2202. Federal jurisdiction is invoked under 28 U.S.C. § 1343.
Plaintiff alleges four grounds for relief. First, plaintiff alleges that the administrative procedure under which he was placed in maximum security, with a resulting loss of good time, constituted action taken under color of state law which allegedly deprived him of liberty and property without due process of law. As a second ground for relief, he alleges that his eighth amendment right to be free from cruel and unusual punishment was violated as a result of the prison administration's use of a fire hose and mace to quell a disturbance in June of 1969. Third, Beishir alleges his eighth amendment rights have been violated through indefinite and extended confinement in maximum security. Fourth, plaintiff alleges he has been subjected to confinement in maximum security disproportionate to the offenses he is alleged to have committed.
The Court appointed Willard Bunch, of the Legal Aid and Defender Society of Greater Kansas City, who was later joined by William Morgan and Gerald R. Walsh of the same office, to represent this plaintiff and eight other inmates in similar civil rights actions pending in this Court. Pursuant to Rule 42(a), F.R. Civ.P., and with the consent of all parties, plaintiff's case was consolidated for trial with the actions brought by Raymond Milentz, Eddie Umfress, Ronald Westberg, Billy Joe Tyler, Frank Boedeker, Frank Howard, Daniel Wilwording, and Ronald Berry. During the weeks of March 28, 1971, and April 4, 1971, the consolidated trial involving both legal and equitable issues, again with the consent of all parties, was tried to the Court sitting without a jury as provided for in Rule 39(b), F.R.Civ.P.
The trial commenced with evidence on the issues raised by plaintiff's second ground for relief dealing with a hosing and macing incident of June 29, 1969, and proceeded with evidence to support the equitable relief sought in what has been referred to as plaintiff's first, third and fourth ground for relief.
At all relevant times defendants were employees of the Missouri State Penitentiary. Defendant Swenson was then and is now the Warden and the highest administrative officer of the penitentiary. Defendant Wyrick was in June and July of 1969, an assistant to the Warden and a captain of the guard force of the penitentiary. Defendants Smith, Vestal, Steele, Troyer, Hill, Stewart and Borghardt were then and are now members of the guard force commanded by defendant Wyrick.
Donald Beishir commenced serving a life sentence in June of 1958, at the penitentiary after his conviction for first degree robbery. In April, 1967, Beishir was convicted of second degree murder and sentenced to life imprisonment.[1] The instant action is based on the events which occurred in the institution during the latter part of June, 1969.
From all the testimony and evidence in this case the Court finds the following *1230 to be the credible facts: On June 26, 1969, Beishir celled with Daniel Wilwording in C Unit South. C Unit South is one of the two main wings of the maximum security unit. Maximum security contains two tiers of cells on each of its two wings. The two tiers on the east side are called B Unit while the two on the west side are called C Unit. Both B and C units contain north and south sides. Immediately above the maximum security area which contained about 110 inmates, approximately 400 general population inmates were housed.
Beginning in early June, 1969, the conditions in the institution were charged and tense, bordering on riot. Fred T. Wilkinson, Director of the Department of Corrections for the State of Missouri and a professional penologist with some 33 years experience, characterized 1969 as a troublesome year for prisons in the State of Missouri. Tension was evident in the penitentiary in June, 1969, as a result of the placement of a portion of the population in maximum security. This placement was the result of an effort by the prison administration to break up gangs and rackets which had been running rampant in the institution. As a result of the segregation of many of the leaders, strong-arm tactics and assaults decreased enormously. Chronic agitators, however, sought to disrupt the institution in hope of reestablishing the rackets, loan sharking, drug trafficking and general preying upon the population.
Warden Swenson also viewed 1969 as a "year of tensions." There had been a riot, tensions of a racial nature and three murders during the year. Tensions increased following a two day sit-down strike waged by some of the inmates. Disturbances in maximum security became more frequent and finally culminated in the June, 1969, incident.
There is no dispute concerning the basic events of June 25-28, 1969. On June 25, 1969, what was described by the inmates as a "protest" began. The protest originated in C Unit South and took the form of burning newspapers, towels, mattresses, sweatshirts and other combustible items. The smoke was so thick it was difficult for inmates to breathe and various inmates' eyes burned. The extent of the fires was best characterized by inmate Berry who conceded a line of fires extended from cells 17 to 31. In addition to the burning, the inmates participated in a noise disturbance and engaged in cell flooding. This flooding was so severe that the walkways in front of the cells contained water and contaminated other cells.
On June 26, 1969, inmate dormitory workers with mops and janitorial supplies entered C Unit South to clean the area. The disturbance continued through the evening of the 26th until 4:45 a. m. On the evening of the 26th Warden Swenson received a report of additional disturbances and directed that the fires be put out and water shut off whenever flooding occurred. As a result of the flooding it became necessary to shut the water off and control toilet flushing from the valve located in the service tunnel.[2]
Upon arriving for work on the morning of the 27th, Warden Swenson called a meeting for 7:45 a. m. to discuss what action should be taken to quell the disturbances and restore order in maximum security. Messrs. Wilkinson, Casey, White, Wyrick, Steele, Schulte and Kester attended the meeting. As a result of the meeting it was decided that if another disturbance of severe proportions occurred, the leaders would be removed from their cells and placed in seclusion cells located in B Unit.[3] At approximately 11:45 a. m. another major disturbance *1231 occurred which, in the opinion of the administration, threatened to disrupt the order of the entire institution, particularly the inmates in general population. Upon receiving a call from Capt. Wyrick, Warden Swenson directed that the plan agreed upon earlier that morning be implemented. Carl White, Associate Warden of Custody, commanded the Emergency Squad[4] which undertook to move, without the use of force, selected individuals from C Unit South to seclusion cells located on the B Unit side. As a part of this move plaintiff Beishir was ordered out of his cell, directed to strip and was searched for concealed weapons. After the search and return of his shorts, Beishir was handcuffed with plastic restrainers and transferred to a seclusion cell.
Each seclusion cell is an enclosure approximately six feet wide, nine feet in length and twelve feet high. The cells are fronted by bars with a vestibule area, approximately three to four feet long and six feet wide, located between the barred front and the walkway. A wooden door, with a four inch ledge beneath it, opens from the vestibule to the outside walk. Windows on the front wall of the vestibule open onto the walkway in such a fashion as to block passage. Each seclusion cell contains a sink, toilet and built-in sleeping unit. In addition, cell 17 contained one sleeping mat and a portion of another as well as the personal belongings of inmate Foster who occupied the cell prior to June 27, 1969. As in C Unit South, the toilets and sinks could be controlled and shut off from the outside.
Plaintiff Donald Beishir, with the plastic restraints remaining on his hands,[5] was placed in cell 18 with inmates Westberg, Umfress, Wilwording, Baker, Medley, Goodman and Edmonds, at approximately 1:00 p. m. on June 27, 1969. As a result of the crowded conditions plaintiff was unable to lie down when others occupied the limited space available.[6] Although security prohibited the distribution of normal meal utensils, plaintiff received two sack lunches per day, which is the normal procedure in "lockup conduct problems".
After Beishir was placed in his seclusion cell and until the evening of June 29, 1969, there was intermittent shouting by various men in the maximum security seclusion cell area. The noise disturbance continued the 27th after the move and was made by "every conceivable manner." These disturbances continued June 28, 29, and spread to those inmates remaining in the regular maximum security area. The continuous boisterous conduct indicated to Warden Swenson that the inmates should not be released to their regular cells.
On June 29, 1969, at 7:30 p. m. Warden Swenson was informed that two seclusion cells, numbered 17 and 18 were completely out of control with flooding, screaming and noise making. Warden Swenson directed a few members of the E-Squad be called in to quell the disturbance. On his way from his home to the institution, Warden Swenson could hear the noise coming from the maximum security section of the building. On Swenson's arrival at the prison, a conference was held with the members of the *1232 E-Squad present and the previously developed plan of action was discussed and explained. In restating the plan to those present at the conference, Swenson specified the first step would be to "talk and counsel" the inmates in an attempt to reason with them and thereby quell the disturbance. If this was not successful and the riotous conduct continued a fire hose with limited water pressure would be directed into cells where rioting was occurring. If this action failed it would be necessary to resort to the next level of force, the use of chemical mace.
Associate Warden Wyrick and Lt. Steele drew mace from the rotunda.[7] Officers Stewart and Borghardt drew batons. Upon the arrival of the mentioned E-Squad members in maximum security, Warden Swenson directed that the cell windows which extended into the corridor be closed and he then attempted to quiet the occupants by talking with them. Rather than improving the situation, the noise increased to the point that Swenson could not be heard. It was at this point that Swenson was spat upon, and a gallon of water thrown on him by Beishir.
When it became apparent that the "talk and counsel" method would not establish order, Warden Swenson signaled Capt. Wyrick to proceed with the fire hose. As Capt. Wyrick and Officer Hill unrolled the hose the inmates in cell 17 grabbed sleeping mats and held them up to the bars. Officers Borghardt and Stewart used their batons to push or punch down the mats so that the water could be directed into the cell. There is no credible evidence that the batons were used for any other purpose or that anyone was injured through their use.
After cell 17 was very briefly "hosed", Capt. Wyrick and Officer Hill moved to cell 18 where the hosing operation was repeated. It became apparent that the hosing operation which involved the use of minimal force was totally ineffective and that it was necessary to advance to the use of mace.
Only Officers Wyrick and Steele had been issued Mark IV Chemical Mace. These two officers directed one second bursts of this mace into cells 17 and 18 to the extent they believed necessary to quell the disturbance and establish order.
Plaintiff Beishir testified the mace caused him to gasp and choke as he retreated from the front of the cell to the back with his face towards the rear wall. Thereafter, the wooden doors on cells 17, 18, and 20 were closed and the windows opened as the defendants left the area. On June 30, 1969, guard officers opened the doors to cells 17, 18, and 20, and brought Beishir before the Adjustment Board.
Sumner M. Kalman, a doctor of medicine and professor of pharmacology at Stanford University Medical School, was called to testify to the effects of chemical mace. He testified that upon contact with the human body, the active ingredient, chloracetophenone, may produce intense pain and a rash and reddening of the skin. Jack L. Pinkus, a chemist called by defendants, testified that the ingredients of Mark IV Chemical Mace when applied to the skin do cause pain and that the principal ingredient is an irritant.
Fred T. Wilkinson testified both as an expert and as one who had some personal knowledge of at least a portion of the events. He was present at the staff meetings and participated in the formulation of policy and procedures that were to be used to restore order to the institution in the event of continuing rioting or disorder. The plan, as formulated with his assistance, contemplated first, that the inmates be orally requested to return to orderly conduct and to observe the institution's regulations; secondly, that if the request was not heeded the inmates were to be ordered to comply; and third, if they failed the squad members *1233 and prison personnel were to use only that degree of force necessary to restore order, starting with the least force, hosing; to be followed by the use of mace if the hosing was ineffective. He testified the only other available alternative would have involved the use of greater force such as the use of sickening gas, clubs or firearms which definitely were not a part of the plan to restore order to the institution.
Mr. Wilkinson categorized the talking to the inmates, followed by the hosing, and when that proved ineffective the guarded use of the mace, as being strictly a defensive measure made necessary by the emergency situation and not corporal punishment. He gave it as his expert opinion that both the plan and the actions taken under the plan were well within good prison practice. He also stated that the closing of the cell doors after the hosing and macing was likewise an acceptable practice to assist in cutting down on the spread of the noise and disorder to other portions of the penal institution. He indicated it would have been ineffective to close the doors prior to the hosing and macing as the closing of them at that point would not have stopped the disruption nor sufficiently have cut down on the noise level then taking place.
Maurice Sigler, Director of the Department of Corrections for the State of Nebraska, with 32 years experience in the penal field, agreed with Mr. Wilkinson that the standards developed in the riot plan conformed to good prison practice. He also testified that good prison administration dictated that the riot or disturbance leaders be identified as soon as possible and placed together so as to consolidate them and not let them have a wide range to spread or further incite disorder.
Mr. Noah Aldrich, Warden of the Federal Penitentiary at Louisburg, Pennsylvania, with experience in prison administration for 30 years, testified in response to a hypothetical question reciting the substance of the events of June 29, 1969, that the action taken by Warden Swenson and his staff complied with acceptable prison practice. Mr. George Beto, Director of the Texas Department of Corrections since 1962, who currently supervises 14 institutions, testified that in his expert opinion the use of a fire hose followed by mace in a riotous type situation such as described in the instant case was within accepted prison practice. It is his belief that mace creates docility which is salutary in prison administration.
The legal principles applicable are not in serious dispute. The cruel and unusual punishment clause of the eighth amendment is applicable to the states through the due process clause of the fourteenth amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L. Ed.2d 758 (1962). The Civil Rights Act, 42 U.S.C. § 1983, creates a cause of action for deprivations, by persons acting under color of state law, of rights secured by the Constitution and federal laws. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). And it is clear that persons confined in state penal institutions may invoke the protection afforded by 42 U.S.C. § 1983. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). The right to be free from cruel and unusual punishment is one of the rights that a state prisoner may, in a proper case, enforce under § 1983. Talley v. Stephens, 247 F.Supp. 683 (E.D.Ark.1965); United States ex rel. Hancock v. Pate, 223 F.Supp. 202 (N. D.Ill.1963); Courtney v. Bishop, 409 F. 2d 1185 (8th Cir. 1969).
The maintenance of discipline in prison is an executive function with which the judicial branch ordinarily will not interfere. It is the rule that while matters of state prison discipline are not ordinarily subject to examination in the federal courts, the rule is otherwise if the treatment of the prisoners is of such a nature that their federal constitutional or statutory rights are violated. See: Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970); Howard v. Swenson, 426 F. 2d 277 (8th Cir. 1970); Haines v. Kerner, *1234 427 F.2d 71 (7th Cir. 1970); Holt v. Sarver, 442 F.2d 304 (8th Cir., 1971). That federal jurisdiction is founded on a deprivation is apparent from an examination of the statute:
"Every person who, under color of any statute, or ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983 (emphasis added).
It is well established that the placement of an inmate in maximum security confinement does not per se constitute cruel and unusual punishment. Courtney v. Bishop, 409 F.2d 1185, 1187 (8th Cir. 1969); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). A review of the cases, however, demonstrates that just what constitutes cruel and unusual punishment in the constitutional sense is difficult to specifically define.
In Hancock v. Avery, 301 F.Supp. 786 (M.D.Tenn.1969) the Court, in its attempt to supply a definition, recognized that the concept of cruel and unusual punishment has wide application and is capable of acquiring new meaning to conform to enlightened concepts of criminal justice. Citing: Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). It is possible to identify three general approaches to defining this concept. The first approach is to ask whether under all the circumstances the punishment in question is "of such character * * * as to shock general conscience or to be intolerable in fundamental fairness." Lee v. Tahash, 352 F.2d 970, 972 (8th Cir. 1965). Such a judgment is to be made in light of "developing concepts of decency". Weems v. United States, supra, 217 U.S. at page 378, 30 S.Ct. 544; Jordan v. Fitzharris, 257 F.Supp. 674, 679 (N.D.Cal.1966). Secondly, a punishment may be cruel and unusual if it is greatly disproportionate to the offenses for which it is imposed. Weems v. United States, supra; Robinson v. California, supra, 370 U.S. at page 676, 82 S.Ct. 1417. Finally, a punishment may be cruel and unusual when, although applied in pursuit of a legitimate penal aim, it goes beyond what is necessary to achieve that aim; that is, when a punishment is unnecessarily cruel in view of the purpose for which it is used. Weems v. United States, supra, 217 U.S. at page 370, 30 S.Ct. 544; see: Wright v. McMann, 387 F.2d 519 (2nd Cir. 1967). These principles and standards, articulated in Jackson, supra, were reiterated and summarized in Sharp v. Sigler, 408 F.2d 966 (8th Cir. 1969) and made applicable to all cases involving alleged violations of federally protected constitutional rights.
For the purposes of this opinion, the issues concerning Beishir's second ground for relief, will be considered first. The issues raised in the second stage of the trial: i. e. plaintiff's first, third and fourth grounds for equitable relief, will be treated last with such pertinent additional findings of fact as needed.
CLAIM OF CRUEL AND UNUSUAL PUNISHMENT THROUGH PUNITIVE CONFINEMENT, HOSING AND MACING IN JUNE 1969
Plaintiff Beishir seeks to recover both compensatory and punitive damages from defendant Swenson for his confinement from June 27-29, 1969, in a maximum security seclusion cell. In addition, plaintiff seeks compensatory and punitive damages from defendants Swenson, Wyrick, Steele, Hill, Stewart and Borghardt, growing out of the hosing and macing incident of June 29, 1969. However, it is the finding and judgment of the Court that plaintiff Beishir has failed to sustain his burden of proof of persuading the Court by a preponderance of the credible evidence that he was deprived of a right, privilege or immunity *1235 secured by the "Constitution and Laws".
An application of the announced standards clearly indicates plaintiff was not subjected to cruel and unusual punishment. This conclusion is reached irrespective of which of the prior discussed tests is applied. Certainly the placement of plaintiff in a seclusion cell and exposure to chemical mace, after all lesser methods to regain control failed, does not constitute punishment of such character as to shock the conscience or be intolerable to fundamental fairness. Nor is this a case where a prisoner has been subjected to physical and mental abuse or corporal punishment disproportionate to the offense for which it was imposed. Likewise, it cannot be said that the defendants, in pursuit of a legitimate penal purpose, namely, to prevent spread of inmate rebellion and to restore order, used force beyond what was necessary to achieve that vital purpose.
In the light of these tests there is no evidence to indicate the defendants' action was arbitrary, capricious or unreasonable. Confronted with riotous conduct likely to cause repercussions throughout the institution and after three days of flooding, burning and destruction of property, Warden Swenson and his staff identified the agitators and formulated a plan to segregate them from the other inmates. The agitators were searched and removed without the use of force and placed in seclusion cells with adequate clothing. The nutritional and hygienic needs of the inmates were satisfied during their confinement in the seclusion cells. It is not unreasonable, in a constitutional sense, to cause several persons to share the same cell for a short period of time in an emergency situation while attempting to make arrangements for additional space.
Neither can it be said to be unreasonable to resort to the judicious use of mace to regain control and establish order after lesser means have failed. When the use of a fire hose failed to restore order it was no abuse of discretion or constitutional deprivation to advance to the next most severe nonlethal remedy. Hence, it is the Court's finding that there is no merit to plaintiff's contention made as a part of his second ground for relief.
FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING PLAINTIFF'S FIRST, THIRD, AND FOURTH GROUNDS FOR EQUITABLE RELIEF
Having in mind the equitable issues raised in plaintiff Beishir's first, third, and fourth grounds for relief, the Court from all the evidence finds these additional facts:
At the Missouri State Penitentiary, there is an Adjustment Board which is composed of three officers or employees of the Penitentiary which hears cases involving inmate conduct violations. If an inmate commits an act which is in violation of a prison regulation, an inmate violation report is prepared by the reporting officer, and thereupon the offending inmate is interviewed by another officer and is advised of the nature of his alleged conduct violation. The interviewing officer obtains any statement the inmate may wish to make. If the offense is substantial in the judgment of the interviewing officer, the matter is brought before an Adjustment Board. The inmate appears before the Adjustment Board and has an opportunity to make any statement that he desires and the Adjustment Board renders its decision. The Adjustment Board may confine an inmate to a punitive segregation unit for not more than ten days, pursuant to Missouri statute.[8] The Adjustment Board may not commit an inmate to maximum security. The decisions of the Adjustment Board are reviewed by the Associate Warden and then by the Warden.
The question as to whether an inmate at the Missouri State Penitentiary shall be assigned to maximum security is determined *1236 by the Classification Committee. This committee is composed of one of the associate wardens, either of custody or treatment, and three other individuals, none of whom are the investigating officer nor the observing officer. The Classification Committee reviews the inmate's file and his alleged conduct violation and determines if there is a violation, and whether it is necessary in its judgment to recommend that the inmate be assigned to maximum security for his conduct violation. The decision and recommendation of the Classification Committee is in turn reviewed by the Warden, who is the one authorized to order the commitment to maximum security. If an assignment is made to maximum security, a review date of not more than six months from the date of the decision is set, and within that time plaintiff's status in maximum security is reviewed. If an inmate has been maintained in the maximum security unit for twelve months, the Warden of the Missouri State Penitentiary reviews the file and the inmate personally appears before the Warden to discuss his status.
Within the confines of the Missouri State Penitentiary for Men at Jefferson City, Missouri, there are several forms of inmate status:
(a) An honor dormitory status in which inmates who are to be shortly released are housed in an honor dormitory.
(b) General population status. This is the main population status and it has two sub-sections, (1) minimum security segregation, and (2) maximum security segregation. Among the privileges provided those in general population status are the following: clothingand a change of clothing twice a week; shave and shower each day; a change of sheets weekly; allowances of certain items of personal furniture; access to a library and the daily delivery of magazines, newspapers and other reading materials; daily yard privileges and recreational privileges; and the opportunity to attend movies weekly. Also, inmates in general population status are allowed to go to a common mess hall and to associate with one another in the yards and cells; may be assigned to work assignments within the division of prison industries and are paid a salary for such work; are allowed to spend $25 a month at the commissary and purchase any item sold there; are allowed to earn three-fourths time under the Missouri statute[9] and institutional merit time of 15 days a month for a good conduct record.10 Additionally, inmates in general population status may attend academic classes, may take correspondence courses, and are allowed to purchase a television, radio and a fan for their cell.
Minimum security segregation is for inmates in violation of certain institutional rules. In such a status the inmate is denied the rights and privileges of general population status for a period no longer than ten days.
Special treatment unit status is an intermediate unit between those inmates in maximum security and the general population. The privileges allowed the inmates in this status include: the opportunity to go to a special mess hall maintained in the special treatment dormitory; the right to earn five days merit time a month; the availability of correspondence courses; the same privileges as to outside visitors as those inmates in general population; the same mail privileges as general population; the same privileges regarding canteen expenditures as general population; and the same privileges in regard to the purchase of personal radios.
There is also at the Missouri State Penitentiary for Men at Jefferson City, Missouri, as in all penitentiaries, a maximum security status. Of necessity, privileges *1237 granted to the inmates on maximum security status are not the same as those granted other inmates. Their privileges include: the provision of clothes and a change of clothes twice a week; showers and shaves twice a week; a visit by the penitentiary doctor once a week; a daily visit by an orderly; admission to the hospital as necessary; and tobacco, lighter and lighter fluid provided by the State. They are permitted daily delivery of magazines, newspapers and other reading materials, and have access to a rotating library of 400 to 600 books from which they may choose two books a week and may exchange these two books as read with other inmates in the maximum security unit. Educational courses may be received while in maximum security; the mail privileges are the same as those of general population, visiting privileges are the same while assigned to maximum security as in general population, and the visiting privileges are the same even while assigned to the seclusion cells. Inmates in maximum security are given counselling sessions with inmate lawyers at their request. Inmates so confined may be given haircuts at their own request. An exercise yard is provided to be used by the inmates twice a week for a total of approximately an hour. Inmates confined in maximum security may purchase one half the amount of commissary items from the penitentiary canteen as those in general population. Inmates so confined are provided three meals a day and these are the same meals that are provided in general population. These meals are served to the inmates in their cells from a steam cart. Inmates assigned to maximum security may receive the same number of packages from their families as those in general population.
Plaintiff Beishir has on several occasions been confined in the maximum security detention unit of the Missouri State Penitentiary for Men at Jefferson City, Missouri. The reasons for those confinements and the periodic reviews he received, while not a part of the claim he makes before this Court in equity, are to some extent relevant to one or more of the issues: On May 22, 1969, plaintiff was placed in the maximum security unit pending action by the Classification Committee on the report of two inmates that Beishir had threatened to assault them in connection with a loan racket. On May 29, 1969, the issue of his confinement was considered by the Classification Committee. The committee on that occasion was composed of Mr. Schulte, Lt. Whitworth, Rev. H. M. Larsen, Mr. Delbert Smith, Mr. Vestal and Mr. T. P. Lock. A pass was sent to Beishir so that he might appear before the committee. He refused the pass. The committee, based upon the information before it in the form of investigation reports, voted to place Beishir on maximum security status for the purpose of control and discipline and set a review date of November 29, 1969. On May 29, 1969, written notice was given to Beishir that the Classification Committee had decided to place him on maximum security status, and the written notice stated the reason.
On November 25, 1969, the question of Beishir's assignment to maximum security was reviewed by the Classification Committee. The committee on this occasion was composed of Capt. Troyer, Capt. Steele, Mr. Cloval Vestal and Mr. T. P. Lock. Plaintiff Beishir personally appeared before the Classification Committee on this occasion and, based upon the information before it the committee decided to retain Beishir in maximum security and a review date of April 25, 1970, was established for reexamination of plaintiff's case. Immediate written notice was given to plaintiff that the Classification Committee had voted to retain him on maximum security status and he was advised of the reasons and of the April, 1970 review date.
On April 28, 1970, plaintiff Beishir's assignment to maximum security was again reviewed by the Classification Committee. On that occasion, the committee was composed of Associate Warden Wyrick, Capt. Tucker, Lt. Williams, Mr. Delbert Smith and Mr. T. P. Lock. *1238 Plaintiff Beishir personally appeared before the committee. On April 28, 1970, written notice was given to him that "After carefully reviewing your file and talking with you, it was voted by the Classification Committee that you remain on your present status." Plaintiff was also informed his case would be reviewed in October, 1970.
On October 27, 1970, plaintiff Beishir's assignment to maximum security was again reviewed by the Classification Committee. The committee on this occasion was composed of Mr. Wyrick, Capt. Tucker, Mr. Cloval Vestal, Mr. Delbert Smith and Mr. T. P. Lock. Plaintiff Beishir personally appeared before the committee on this occasion, and, after a review of the report before the committee, it was the decision of the committee that plaintiff be retained on maximum security status and a review date of April 27, 1971, was established. On October 27, 1970, written notice was given to plaintiff that it was the decision of the Classification Committee that he should be retained in maximum security for the purpose of control and advised him that his case would be reviewed in April of 1971.
CONTENTION CONCERNING LACK OF DUE PROCESS
Plaintiff Beishir alleges that the administrative procedure under which he was placed in maximum security, with a resulting loss of good time, allegedly deprived him of liberty and property without due process of law. The 8th Circuit Court of Appeals in Burns v. Swenson, 430 F.2d 771, at page 779, stated:
"The Constitution does not require that every inmate must in every instance be given a formal hearing prior to segregation in maximum security. This course of procedure, although desirable, is not always practical. The exigencies of unusual or emergency situations dictate that an inmate be unilaterally segregated first, with a hearing provided later."
The procedures followed by the Department of Corrections and Missouri State Penitentiary for Men at Jefferson City, Missouri, promulgated under the administration of Director Fred T. Wilkinson and Warden Harold R. Swenson in non-exigent circumstances were considered in Burns v. Swenson, 430 F.2d 771, 780 (8th Cir. 1970); and as applied in the particular case, were found to be fair and clearly above any present legally defined minimally acceptable criteria for due process. See also the recent decision in Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971).
It is not necessary to restate the circumstances of Beishir's original confinement in maximum security and the reasons therefor. The described official reviews of his conduct and the proceedings before the Classification Committee and Adjustment Board amply satisfy the requirements of due process as presently defined. On each occasion Beishir was notified and given the opportunity to appear personally before the Classification Committee. He was made aware of the charges being made against him, had the opportunity to speak on his behalf and present his position to an impartial group of high-ranking administrative personnel. On each occasion he was given written notice of the committee's decision, their reasons and a future date for review. The procedure itself, and as applied to him was fundamentally fair, and was sufficient under all the attendant circumstances to accord him constitutional due process. See, for example, McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).
CONTENTION CONCERNING INDEFINITE CONFINEMENT IN MAXIMUM SECURITY
Plaintiff Beishir alleges his eighth amendment rights have been violated through indefinite and extended confinement in maximum security. Indefinite confinement in maximum security is not per se violative of the eighth amendment. Rather, such confinement must be examined in light of the principles articulated in Lee, Weems, Jordan, *1239 Robinson and Jackson, supra. In Sostre v. McGinnis, supra, the Court examined the situation of incarceration in segregated cells for an indefinite period and stated, loc. cit. at page 192:
"In several states, however, incarceration in segregated cells seems to be for an indefinite period, as it is in New York. [Mo.Rev.Stat. § 216.405 (sic 216.455), cited in Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970); statutes cited American Law Institute, Model Penal Code § 306.7.6 n. 13 (Tent. Draft No. 12, 1960)]. The federal practice appears to be that prisoners shall be retained in solitary `for as long as necessary to achieve the purposes intended,' sometimes `indefinitely.' * * * Such analogous practices22 do not compel us to the conclusion that the Eighth Amendment forbids indefinite confinement under the conditions endured by Sostre * * *."
"22 The Supreme Court has struck down a choice of punishment only when the penalty was authorized in almost no other civilized jurisdiction. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), or conflicted with moral precepts `universally held,' Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). See also Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968), (Use of strap permitted in only two states, outlawed in several)." 442 F.2d p. 192.
The retention of Beishir for an unlimited period of time with a periodic review of his classification by the Classification Committee in accordance with the mentioned regulations of the institution does not constitute cruel and unusual punishment. Considered in their entirety, the conditions of Beishir's confinement are reasonably related to the security requirements of the institution. Beishir's prison classification is a function of the executive branch of government. The wide discretion with which state prison officials are vested in the administration of the prison, as noted in Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967), will not be interfered with absent an infringement upon a constitutional right. See also, Sharp, Jackson, Burns, Howard, Haines, supra. Such an infringement is not present in Beishir's case. See also, Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971).
CONTENTION CONCERNING DISPROPORTIONATE PUNISHMENT
Beishir's final claim for equitable relief is premised on the standards announced in Weems and Robinson, supra, alleging that his continued confinement in maximum security and the imposition of sanctions for rule infractions, constitutes double punishment. It is plaintiff's unsupported position that such "double" punishment is cruel and unusual because it is allegedly greatly disproportionate to the offenses for which it is imposed. See Robinson v. California, supra, 370 U.S. at page 676, 82 S.Ct. 1417, for the Court's statement of this test. Beishir's classification file establishes adequate reason for his maximum security status. All of his reports indicate that he has evidenced no inclination toward rehabilitation. To impose sanctions on Beishir of the same nature as those administered to general population inmates, for continued rule infractions, does not constitute cruel and unusual punishment under the "punishment greatly disproportionate" test. Under the circumstances of Beishir's case there is no deprivation of a constitutional right and no grounds for judicial intervention into the prison's internal discipline. See: Sharp, Jackson, Courtney, Howard, supra, and Burns v. Swenson, 430 F.2d 771, pp. 775-776, 780 (8th Cir. 1970).
In conclusion, after application of the above mentioned and judicially approved standards to the particular circumstances of Beishir's case, the undersigned Court finds that plaintiff Beishir has not suffered any deprivation of a right, privilege or immunity secured by the Constitution and law of the United States.
*1240 Accordingly, it is hereby
Ordered and adjudged that plaintiff Beishir's claims for money damages are without merit and that he is not entitled to recover anything from the defendants on the issues raised by his second ground for relief, and
It is further ordered and adjudged that plaintiff Beishir's claims for equitable relief are without merit and are hereby denied. Defendants are entitled to and are granted judgment on all issues.
NOTES
[1] During his most recent confinement in the Missouri State Penitentiary, plaintiff Beishir has accumulated twenty-eight written conduct violations. These include refusal to work, threatening violence to an officer, passing dope, eight separate violations for possession of contraband, creating a disturbance in the visiting room and eight separate incidences of creating a general noise disturbance.
[2] The cells in this area are back to back with a service tunnel running behind each cell on the tier.
[3] Personnel working in the area compiled a list of the inmates who refused to settle down after repeated warnings. Warden Swenson presented this list to those present at the meeting, thus disclosing the identity of the inmates subject to removal.
[4] The Emergency Squad (E-Squad) consists of a number of guard personnel formed to deal with emergency conditions. The members receive additional training through bi-weekly sessions. Part of the program consists of training in the use of mace.
[5] The restraints in question were described by Beishir as made out of plastic, approximately 1/8 in. wide and approximately ½ inch thick. This apparatus was 20 inches long and had a locking device on each end. Beishir experienced little difficulty in effecting a removal by rubbing the device on the concrete edge of the toilet.
[6] At this time maximum security, with a capacity of 105, housed 110 inmates. Director Fred Wilkinson negotiated with other institutions and on July 3, 1969, 11 inmates were moved to Moberly, Mo., thus allowing the return of Beishir to regular maximum security.
[7] The guards are not permitted to carry mace in the institution. As a matter of policy mace must be withdrawn on proper authorization.
[8] See: Vernon's Annotated Missouri Statutes, Section 216.455.
See: Vernon's Annotated Missouri Statutes, Section 216.355.
[9] Provided for in the Inmate Informational Pamphlet, Rules and Procedures, Revised January, 1970, Promulgated under V.A.M.S. § 216.405.
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544 U.S. 923
CHAMBERLAIN GROUP, INC.v.SKYLINK TECHNOLOGIES, INC.
No. 04-997.
Supreme Court of United States.
March 21, 2005.
1
C. A. Fed. Cir. Certiorari denied. Reported below: 381 F. 3d 1178.
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138 A.2d 430 (1958)
In re CHARIZIO.
No. 1849.
Supreme Court of Vermont. Washington.
January 7, 1958.
*431 Austin B. Noble and William E. Mikell, Burlington, for plaintiff.
Frederick M. Reed, Atty. Gen., for defendant.
*432 Before CLEARY, ADAMS and HOLDEN, JJ., and SHANGRAW and DIVOLL, Superior Judges.
CLEARY, Justice.
This is a writ of habeas corpus, directed to the Warden of the State Prison, by which the petitioner seeks to test the legality of his confinement in that institution. The following facts are not in dispute.
On August 28, 1931, the petitioner was convicted of second degree murder, was sentenced to life imprisonment in the State Prison and committed there. On December 20, 1949, the petitioner was granted a conditional pardon by Governor Ernest W. Gibson. The conditions of the pardon which are material here were that the petitioner "shall commit no crime punishable under the laws of this State; shall not associate with persons of evil character; shall lead an orderly and industrious life; shall work and reside at all times where the State Probation Officer directs; and shall report your residence and occupation to the State Probation Officer, Montpelier, Vermont, between the first and fifth days of each month. This Pardon shall be in force only after you, by writing, signed by your hand, shall have agreed to keep and perform the conditions upon which it is granted, and only so long as you shall keep and perform them. Upon the consideration of the Governor for the time being (whose judgment shall be conclusive as to the fact) that you have violated and failed to perform the foregoing conditions this pardon shall become void, and you shall be apprehended and forthwith returned to your former condition of custody to serve the remainder of the term of your imprisonment, upon a warrant issued for that purpose by the Governor." Prior to his release from the State Prison, the petitioner signed an agreement stating that he accepted the pardon, subject to the conditions therein named, and agreeing to keep and perform and abide by all the said conditions. Shortly after December 22, 1949, the petitioner was permitted to go to Connecticut under a parole supervision compact then in existence between the State of Vermont and Connecticut. While there he was imprisoned in the Connecticut State Prison. Upon his release in June 1956, he was apprehended and returned to the Vermont State Prison where he has since been confined upon an executive warrant signed by Governor Lee E. Emerson which stated it was issued upon investigation and inquiry and consideration thereof, in the judgment of the Governor that Charizio had violated and failed to perfrom the conditions of the conditional pardon granted him by Governor Gibson.
The petitioner's first claim is that the revocation of his conditional pardon was void because the Governor's warrant, although containing a formal allegation of breach of conditions, did not specify a particular condition adjudged by the Governor to have been broken by the petitioner, citing In re Paquette, 112 Vt. 441, 27 A.2d 129. The Paquette case does not support the petitioner's contention. Our law does not require that the Governor's warrant specify any particular condition adjudged by the Governor to have been broken by the petitioner. V.S. 47, § 8045.
The petitioner also argues that he has a constitutional right to be informed of the specific condition which, in the Governor's judgment, he has broken. He claims the failure to specify amounts to a deprivation of the remedy of habeas corpus and is a violation of section 33 of Chapter II of the Constitution of Vermont, and also of the Fourteenth Amendment to the Constitution of the United States. The terms of the pardon which the petitioner accepted and to which he agreed gave him no right to notice of a specific violation of any of its conditions. The fact that the present writ of habeas corpus was issued in response to his petition *433 and the fact that the merits of his petition are now being decided refutes his contention that he is deprived of the remedy of habeas corpus and, therefore, that there was a violation of his constitutional rights.
The petitioner claims his present detention is unlawful because the Governor could not revoke his pardon for a breach of the condition that he "commit no crime punishable under the laws of this State" for the reason that he was not present in this State and could not have violated its laws. That the petitioner commit no crime punishable under the laws of this State was only one of the conditions of his pardon. The pardon stated it would become void if "Upon the consideration of the Governor for the time being (whose judgment shall be conclusive as to the fact) that you have violated and failed to perform the foregoing conditions." The warrant on which the petitioner was returned to custody states that it was issued by the then Governor upon investigation and inquiry and upon consideration thereof, in the judgment of the Governor that Charizio had violated and failed to perform the conditions of his pardon. This was even more than required by the terms of the pardon. Why or how the Governor arrived at his judgment does not appear and our law does not require it. We are bound to presume that Governor Emerson acted regularly and in the proper exercise of his authority in revoking the pardon. State ex rel. Billado v. Control Com'rs, 114 Vt. 350, 356, 45 A.2d 430; Town of Manchester v. Town of Townshend, 110 Vt. 136, 143, 2 A.2d 207; Ryan v. Orient Ins. Co., 96 Vt. 291, 307, 119 A. 423; Lycoming Ins. Co. v. Wright, 60 Vt. 515, 521, 12 A. 103. The petition does not deny the breach of the pardon conditions, except the one that the petitioner "commit no crime punishable under the laws of this State." He makes no claim that he had fulfilled the conditions of his pardon at the time it was revoked. The petition should have claimed either fulfillment of all the terms of the pardon or a denial of a breach of all the conditions of the pardon.
The petitioner contends that because of the right of review granted by the Paquette case, 112 Vt. 441, 27 A.2d 129, this Court must (1) determine the meaning and scope of the conditions of the pardon, and (2) determine whether or not the Governor had sufficient evidence on the basis of which he could find a breach of one or more of the stated conditions. The Paquette case does not support the petitioner's contentions. Under the statute, V.S. 47, § 8045, and under the terms of the pardon accepted by the petitioner, the Governor was the sole and exclusive judge as to whether the conditions of the pardon had been violated. Upon the present petition this Court has no authority to determine whether the Governor had sufficient evidence upon which to base his judgment. Neither have we the authority to determine the meaning and scope of the conditions of the pardon, regardless of what they were, after the Governor has determined they have been violated.
Finally, the petitioner claims his imprisonment is illegal and contrary to due process of law because he was deprived of his liberty without being given a hearing upon the revocation of his pardon. He cites the Fourteenth Amendment to the Constitution of the United States and Article 10 of Chapter I of the Constitution of Vermont. He relies on Fleenor v. Hammond, 6 Cir., 116 F.2d 982, 132 A.L.R. 1241, and People v. Moore, 62 Mich. 496, 29 N.W. 80. These cases were considered in Matter of Paquette, 112 Vt. 441, 444, 27 A.2d 129, where this Court said Fleenor v. Hammond and People v. Moore are opposed to the great weight of authority and refused to follow them. By his acceptance of the pardon the petitioner voluntarily submitted himself to the conditions stated in it and was bound by them. He was also bound by the provisions of the statute under which the executive clemency was extended to him. The terms of the pardon and of the *434 statute in pursuance of which it was granted gave the petitioner no right to notice and hearing as a condition precedent to his arrest and recommitment. In this there was no violation of his constitutional rights. Matter of Paquette, 112 Vt. 441, 444, 27 A.2d 129. The petitioner characterizes the Paquette case as dictum. In that case the petitioner raised the issue of the lack of a hearing and asserted the violation of his constitutional rights, so the Court's opinion was not dictum.
The rights of the petitioner depended on the conditions of his pardon. A pardon may be made subject to any conditions, provided they are not unlawful, unreasonable, immoral, or impossible of performance; and when accepted by the prisoner especially when agreed to in writing as they were herethe conditions become binding upon him. In re Gordon, 105 Vt. 277, 279, 165 A. 905; State v. Barnett, 110 Vt. 221, 228, 235, 3 A.2d 521. The petitioner has failed to show that he is entitled to the relief he seeks. Judgment that the petitioner is not illegally restrained of his liberty and that he be remanded to the custody of the Warden of the State Prison. Petition dismissed.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
C.J., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-4379
[April 18, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael James Orlando, Judge; L.T. Case No. 16003031
DLA.
Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
The factors a juvenile court judge can consider in rendering a
disposition are challenged in this appeal. In his appeal from an
adjudication and commitment to the Department of Juvenile Justice
(“DJJ”), the juvenile argues the trial court erred in: (1) permitting a
forensic crime lab analyst to testify at the adjudicatory hearing; (2)
admitting the analyst’s report; and (3) considering the juvenile’s
subsequent arrests, without adjudication, during the disposition hearing.
We affirm on the evidentiary issues, but reverse the disposition and
remand the case for a new disposition without consideration of the charges
for which there has been no adjudication.
The State charged the juvenile with possession of marijuana under
twenty grams, a first degree misdemeanor. The court denied a motion to
suppress, and the matter proceeded to an adjudicatory hearing.
When the State sought to introduce testimony from a forensic crime lab
analyst, defense counsel objected and requested a Richardson hearing. It
argued the State improperly noticed the lab analyst as a BSO Chemist on
the witness list, and failed to produce the lab results until the morning of
the hearing. As a result, defense counsel asked the court to exclude the
lab analyst’s testimony and lab report.
The State responded that the BSO chemist was listed as a witness
because there is no way of knowing which chemist is actually going to test
the substance when discovery is filed. It also claimed the juvenile was not
prejudiced because he was on notice he would be receiving lab reports.
And, the State could not have provided the report sooner because BSO has
a lab policy to not test drugs until shortly before trial.
Defense counsel replied the juvenile was prejudiced because one of his
defense theories was that there was no marijuana in the cigarette taken
by police. Defense counsel also argued the State’s practice of waiting until
the last minute to test evidence prejudices all defense attorneys.
The trial court then ruled:
Okay. So, under the circumstances as presented, by
definition because of the way this county operates, I don’t find
that it’s a willful act on behalf of the State although I
sympathize with how the process works. I don’t believe that
the extreme sanction of the exclusion of the evidence nor the
prohibition of this witness testifying is warranted under the
circumstances presented.
If you feel that you need a recess for a few minutes I’ll
certainly entertain that. But to exclude it or prevent this
witness from testifying, that will be denied; nor did I find any
willful act -- any act that rises to the level of a willful act or an
intentional act. Okay. So, noted for the record.
The report was admitted over defense objection. The trial court found
the juvenile guilty. The trial court held the disposition hearing the
following day.
The DJJ prepared a predisposition report (“PDR”), which recommended
commitment to a non-secure residential facility. The PDR revealed the
juvenile had two open cases. One involved the burglary of an unoccupied
dwelling and grand theft. The other case involved robbery, aggravated
assault, and petit theft. The PDR also indicated the juvenile was currently
being held in secure detention for a separate incident involving an alleged
first degree arson and burglary of a dwelling with over $1,000 in damage.
2
The juvenile was arrested on December 22, 2015, for the burglary charge,
on July 2, 2016, in the present case, and subsequently arrested in the
robbery case.
Defense counsel argued there was no way to “unring the bell” of
negative impressions that arose from the mention of these unfiled cases
and the cases in the PDR. Defense counsel argued that without these
cases, the juvenile would have been a likely candidate for probation.
The trial court stated it was allowed to consider disposed cases,
uncharged crimes, and other matters contained in the PDR. The court
then adjudicated the juvenile and committed him to a non-secure
residential facility. From the finding of guilt and the disposition, the
juvenile now appeals.
We affirm the trial court’s decision on the discovery violation without
further comment. We write to discuss the trial court’s consideration of the
juvenile’s pending charges in rendering the disposition.
The juvenile argues the trial court improperly took into account the
juvenile’s arrests without adjudication. The State responds the court was
allowed to consider the juvenile’s criminal history without limitation in
rendering the disposition.
We have de novo review of whether the trial court violated the juvenile’s
due process rights by considering arrests without conviction during
sentencing. Norvil v. State, 191 So. 3d 406, 408 (Fla. 2016).
The Florida Supreme Court has set a bright line rule: “a trial court may
not consider a subsequent arrest without conviction during sentencing for
the primary offense.” Id. at 410. We applied Norvil to a juvenile disposition
in A.R.M. v. State, 198 So. 3d 1132, 1133 (Fla. 4th DCA 2016).
Here, the State argues Norvil should not apply to juveniles and cites to
Barnes v. State, 227 So. 3d 216 (Fla. 5th DCA 2017). There, the Fifth
District held:
Barnes is correct that, under the Criminal Punishment Code,
a trial court may not consider a subsequent arrest without
conviction during sentencing for the primary offense . . . . But
Barnes’s reliance on Norvil is misplaced. Barnes is a juvenile
offender and subject to the new statutes enacted for
sentencing juveniles convicted as adults. These statutes allow
the trial court to consider the juvenile offender’s “youth and
3
its attendant characteristics,” including the juvenile’s
immaturity, lack of judgment, and possibility of rehabilitation
in determining whether to impose a life sentence. §
921.1401(2), Fla. Stat. (2014).
Id. at 218 (citations omitted).
Here, at the beginning of the disposition hearing, defense counsel
requested a postponement to resolve all of the juvenile’s cases in a “global
resolution.” The trial court announced it was going to treat each case
separately and individually, stating that if those cases are filed “we can
certainly cross that bridge if and when we get to it.”
The trial court later asked if either party intended to argue that the PDR
was not legally correct. Defense counsel responded it was unfortunate the
PDR mentioned two cases that are still pending because those cases have
a negative impact on the impression of the juvenile. The juvenile’s father
then testified it was in his son’s best interest to be confined in a facility
because his problems had been “building up and getting worse and worse.”
The State agreed with the PDR and requested the juvenile be committed
to a non-secure residential program. Defense counsel requested a
deviation from the PDR, to restore the juvenile to probation.
THE COURT: [Defense counsel], for better or worse, the
juvenile court is a creature of the legislature and whether or
not I agree with you, the statute allows for the Department to
consider not only cases that are disposed of, they’re - - they
can consider uncharged crimes, gang affiliations, and the list
kind of goes on within 985.
I don’t really see any legal basis under these circumstances
to either aggravate or go below the recommended disposition
that the [DJJ] has given to us to consider. So, now that
everyone has had an opportunity to be heard, the Court at
this time is prepared to move forward and will follow the
recommended disposition for [the juvenile], which is that he
be committed -- he’d be adjudicated guilty of the offense; that
he be committed to a non-secure residential facility.
The State argues the trial court was referring to section 985.433,
Florida Statutes (2016), which provides that the trial court shall consider
the DJJ’s recommendations when determining whether to commit a
juvenile, which may include a PDR. The State claims the court is allowed
4
to view the juvenile’s criminal history “without limitation.”
Section 985.433(6)(f) provides the trial court may evaluate “[t]he record
and previous criminal history of the child, including without limitations”
prior adjudications of delinquency, and prior commitments to institutions.
The State argues Norvil should not apply because a juvenile does not have
the full panoply of procedural rights to which an adult accused of a crime
is entitled. P.W.G. v. State, 702 So. 2d 488, 490 (Fla. 1997).
But, the Florida Supreme Court has held “a trial court may not consider
a subsequent arrest without conviction during sentencing for the primary
offense.” Norvil, 191 So. 3d at 410. And we applied Norvil to juveniles.
A.R.M., 198 So. 3d 1132. We are therefore bound to follow our precedent.
We therefore reverse and remand the case for a new disposition without
consideration of charges that have not been adjudicated.
Reversed and remanded.
GERBER, C.J., MAY and DAMOORGIAN, JJ., concur.
MAY, J. (specially concurring).
I join the majority because we are bound to reverse based on Norvil v.
State, 191 So. 3d 406 (Fla. 2016), and A.R.M. v. State, 198 So. 3d 1132
(Fla. 4th DCA 2016). But, I question whether Norvil should be applied to
juvenile delinquency dispositions.
The entire statutory scheme for juvenile delinquency is far different
than Florida’s Criminal Punishment Code, from title to substance.
Delinquency has rehabilitation as its goal while the adult system seeks
punishment. And, chapter 985 has sufficient safeguards to insure the
juvenile’s rights are as protected as the need to fashion a disposition to
rehabilitate the juvenile.
As the State rightfully suggests, the DJJ is statutorily required to
include the child’s criminal history within its PDR. § 985.433. In fact,
section 985.433(6)(f)1. requires the court to consider the juvenile’s
“[p]revious contacts with the department, the former Department of Health
and Rehabilitative Services, the Department of Children and Families, the
Department of Corrections, other law enforcement agencies, and
courts.” (Emphasis added).
The reason for that consideration is to curb further delinquent behavior
5
and rehabilitate the juvenile. Here, the trial court did exactly what section
985 requires. It reviewed the totality of the circumstances, including the
juvenile’s father’s testimony, and followed the DJJ’s recommendation of
commitment. It did not depart from that recommendation.
Were we not bound by Norvil and A.R.M., I would affirm.
* * *
Not final until disposition of timely filed motion for rehearing.
6
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Fourth Court of Appeals
San Antonio, Texas
June 20, 2014
No. 04-14-00365-CV
IN THE INTEREST OF J.T., et al,
From the 218th Judicial District Court, Wilson County, Texas
Trial Court No. 12-10-0594-CVW
Honorable Thomas F. Lee, Judge Presiding
CORRECTED ORDER
The Appellant’s Motion to Extend Time to File Brief is GRANTED. The appellant’s
brief is due on July 9, 2014.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 26th day of June, 2014.
___________________________________
Keith E. Hottle
Clerk of Court
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607 P.2d 816 (1980)
William ANDREWS, Plaintiff and Appellant,
v.
Lawrence MORRIS, Warden of the Utah State Prison, Defendant and Respondent.
No. 16168.
Supreme Court of Utah.
February 13, 1980.
*818 John T. Caine, Richard W. Giauque of Berman & Giauque, Salt Lake City, Timothy K. Ford, Seattle, Wash., for plaintiff and appellant.
Robert B. Hansen, Atty. Gen., Earl F. Dorius, Robert R. Wallace, Asst. Attys. Gen., Salt Lake City, for defendant and respondent.
HALL, Justice:
Appellant, William Andrews (hereinafter "Andrews"), appeals from the order of the Third Judicial District Court which dismissed his petition for postconviction relief.[1] Said petition challenged his commitment under a sentence of death by shooting for murder in the first degree[2] as being in violation of the Constitution of the United States. (Andrews asserts no violation of the Constitution of Utah although it affords similar, if not more extensive protections).
Andrews and a co-defendant, Dale S. Pierre, were convicted of a triple murder and robbery perpetrated on April 22, 1974, at the Hi-Fi shop in Ogden, Utah. The subsequent verdict of the jury[3] that they be sentenced to death was rendered and the court thereafter sentenced them to death by shooting.[4] Their unsuccessful appeals to this Court[5] resulted in the affirmance of their conviction and sentence and rehearings were subsequently denied. Their petitions for certiorari to the United States Supreme Court were also unsuccessful and have since been denied. Each defendant now seeks habeas corpus relief. See companion case, Pierre v. Morris, Utah, 607 P.2d 812, also filed this date.
In his petition for habeas corpus, Andrews urges two general contentions: (1) that the jury was predisposed to convict because of racial tensions which deprived him of a trial by a fair and impartial jury, and (2) that the death sentence violates the Constitution. Specifically, in support of the latter contention he urges:
A. That Utah's sentencing statutes[6] permit an arbitrary and discretionary imposition of the death penalty in violation of the constitutional principles enunciated in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
B. That the pattern of imposition of the death penalty in Utah and the United States reflects that the sentence of death is imposed so rarely and arbitrarily and discriminatorily as to violate constitutional principles, and again cites Furman v. Georgia.
C. That the imposition of the death penalty upon Andrews, he not having personally taken life or intended to take life, is unconstitutionally cruel and disproportionate to the crimes.
D. That execution of the sentence of death by shooting or hanging inflicts pain inconsistent with evolving standards of decency and is "cruel" and "unusual."
In his argument to the court below, Andrews delineated the issue presented as whether or not new, significant developments of fact or law have occurred since the taking of the direct appeal which have created issues that should now be litigated and which would not have been litigated in prior proceedings. He conceded that the racial issue, the issue as to the constitutionality of the sentencing statutes, and the issue as to whether the death penalty *819 should be imposed upon one not having personally taken life or intended to take life, were substantially raised and addressed on the direct appeal.
Andrews conceded further that a collateral attack by way of habeas corpus may not be utilized as a substitute for, or a duplication of a direct appeal.[7] Nevertheless, he contends that there are certain constitutional rights yet to be adjudicated, and which have not been deliberately waived.[8]
In support of his request for an evidentiary hearing, Andrews urged the applicability of certain cases which he termed "new," among which were: Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); and Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).
The trial court recited that it had reviewed this Court's rulings on Andrews' and Pierre's direct appeals and remarked that "nearly every issue that could possibly be raised in a capital case except the ... question of whether or not the death sentence is being imposed in a fair manner," had been raised and ruled upon.[9] The court also observed:
One thing that disturbs me is the fact that, regardless of our feeling about capital punishment, it seems that what you are urging is that in any situation where an individual is convicted and sentenced to death I guess we should wait over a few years period and see whether or not there are others that are so convicted and sentenced and then if it is not being imposed on an equal pattern then the man should have a stay and should have a new trial or something. I'm not sure I buy that theory but I'm willing to give it some consideration. I'm not sure that I have a right to even voice an opinion about it. The question is whether or not there is a new issue that should be considered and the only one that I can see is the one involving prosecutorial discretion as it affects the imposition of the death penalty so I'll consider it... .
The court thereafter made the following findings and conclusions, and based thereon, dismissed the petition:
1. No developments of fact or law material to the determination of the legality and constitutionality of the conviction and sentence of the Petitioner herein *820 have occurred since the filing of Petitioner's direct appeal to the Utah Supreme Court and that Court's decision on that appeal.
2. All the issues regarding the constitutionality of the processes for death sentencing under Utah law, the constitutionality of the death sentences in Petitioner's case, and the effect of any alleged prejudicial publicity or influences on Petitioner's trial which are raised or could have been raised by this Petition are the same issues that Petitioner raised in his direct appeal to the Utah Supreme Court.
3. Petitioner's claim that Utah's death penalty law is being applied arbitrarily and discriminatorily fails to state a claim on which relief could be granted or on which a hearing need be held. Moreover, petitioner could and should have raised such issue on direct appeal.
4. Constitutional issues identical to those raised and decided on direct appeal cannot be raised again in collateral proceedings.
5. Constitutional challenges to the pattern of application of a criminal statute or the excessiveness of a criminal sentence which were not but could have been raised on direct appeal cannot be raised through collateral proceedings.
Andrews' assertions of error consist principally of the trial court's failure to afford an evidentiary hearing and its failure to apply new case law which he asserts provides a basis for habeas corpus relief. However, a further underlying issue emerges, and that is, whether or not the waiver doctrine heretofore followed in Utah remains viable, or whether it has been diminished by said Rule 65B(i).[10]
This Court has traditionally applied a restrictive waiver doctrine, similar to the common law doctrine of the federal courts prior to Fay v. Noia,[11] and has consistently held that a collateral attack by way of habeas corpus may not be utilized as a substitute for, or a duplication of, a direct appeal. Further, issues not raised on direct appeal, but that could have been raised, are barred.[12]
In Brown v. Turner,[13] the proper scope and limitations upon the use of habeas corpus after conviction were summarized as:
... It [habeas corpus] is not a substitute for and cannot properly be treated as a regular appellate review [citation omitted]. It is an extraordinary remedy which is properly invocable only when the court had no jurisdiction over the person or the offense, or where the requirements of law have been so disregarded that the party is substantially and effectively denied due process of law, or where some such fact is shown that it would be unconscionable not to re-examine the conviction. [Citing Bryant v. Turner, supra, footnote 7.]
Utah law[14] appears to be entirely consistent with the evolving federal law since Fay v. Noia. In Stone v. Powell,[15] the Court held that a state prisoner who asserted that his trial had been prejudiced by the admission of evidence procured in an illegal search and seizure should be denied federal habeas relief unless he could show that he had been denied a full and fair opportunity to litigate that claim in the state court.[16]
The case of Wainwright v. Sykes[17] expressly limited Fay v. Noia. Wainwright addressed a factual matter having to do with the failure of defense counsel to make a contemporaneous objection to the admission *821 of inculpatory statements in violation of Miranda rights. Under Florida law, said failure to object constituted a waiver of the right to raise the issue again through postconviction proceedings. The court reversed the circuit court and held that the procedural default constituted a waiver that would extend to the federal system. Thus it is seen that Wainwright establishes a "cause and prejudice" test of waiver narrower than the "knowing and intelligent" standard of Fay v. Noia, and places the burden of persuasion upon the petitioner.
The obvious focus of Wainwright was on the need for finality of convictions, a worthy endeavor, long recognized and focused upon by this Court.
The portion of Rule 65B(i) which pertains to prior adjudication of issues reads as follows:
(2) ...
The complaint shall further state that the legality or constitutionality of his commitment or confinement has not already been adjudged in a prior habeas corpus or other similar proceeding; and if the complainant shall have instituted prior similar proceedings in any court, state or federal, within the State of Utah, he shall so state in his complaint, . . and shall set forth the reasons for the denail of relief in such other court. In such case, if it is apparent to the court in which the proceeding under this Rule is instituted that the legality or constitutionality of his confinement has already been adjudged in such prior proceedings, the court shall forthwith dismiss such complaint, giving written notice thereof by mail to the complaint, and no further proceedings shall be had on such complaint. [Emphasis added.]
We deem the foregoing provisions to be consistent with the doctrine of waiver as heretofore followed in Utah and that they have in no way diminished said doctrine. We also deem the continued application of the doctrine as a fair means of assuring finality of appeals without any sacrifice of constitutional rights.
We turn now to the question as to the propriety of the trial court's order of dismissal without an evidentiary hearing.
We note initially that the petition for relief is drawn in conclusional language and is lacking in factual data to support its allegations, contrary to the mandate of said Rule 65B(i), which reads in pertinent part as follows:
(2) The complaint [petition] ... shall set forth in plain and concise terms the factual data constituting each and every manner in which the complainant claims that any constitutional rights were violated. The complaint shall have attached thereto affidavits, copies of records, or other evidence supporting such allegations... .
In fact, the petition seeks "adequate" time for briefing, discovery, and preparation for hearing thereon, yet the hearing on the motion to dismiss the petition proceeded without objection or request for continuance.
The case of Spinkellink v. Wainwright[18] stands for the proposition that where it affirmatively appears from the petition that a petitioner is not entitled to the writ, an evidentiary hearing is unnecessary. Hence, if the petition raises legal questions only, an evidentiary hearing to fully develop the underlying facts would be pointless, and is not required.
In the instant case, the hearing on the motion to dismiss was held on November 30, 1978, some twelve months after the November 25, 1977, affirmance of the conviction and sentence on direct appeal. We deem that to be adequate time to assemble all pertinent data for postconviction proceedings. Andrews clearly had the burden of showing why relief should be granted, including why the issues raised could not have been raised on appeal. In this regard his petition was deficient and thus failed to state a claim.
Notwithstanding the foregoing determination, we now proceed to address the *822 specific points of error raised by the appeal. Andrews first contends that the trial court erred in failing to determine which of his constitutional claims were new, whether any of them had been waived, and which of them were based on new facts or law not available at the time of his direct appeal. In light of our discussion of this matter in the preceding paragraphs, and in further light of the findings and conclusions of the trial court hereinabove recited, we deem this contention to be without merit.
Andrews' second assertion of error is that the trial court applied the doctrine of res adjudicate without finding facts and without the entire record before it. In so doing, he fails to recognize the unique nature of post-conviction proceedings. Although the proceedings are civil, they are not governed by the general rules of civil procedure, but specifically by said Rule 65B(i) which mandates that the complainant (petitioner) shall set forth the factual data in support of his claims in plain and concise terms, shall state whether or not the legality or constitutionality of his commitment or confinement has been previously adjudged, and if he shall have instituted prior proceedings for relief, the reasons for the denial thereof. In such case, if it is apparent to the court that the matter has already been adjudged in such prior proceedings, it shall forthwith dismiss the complaint.
In light of the foregoing provisions of the Rule, and in light of the long-established doctrine of waiver, the trial court was clearly and simply called upon to determine whether the issues raised in the petition were or could have been raised on appeal. It was not necessary to look beyond the pleadings and the documents of record in order to determine the legal sufficiency of the petition and our review thereof causes us to conclude that the court did not err in dismissing the petition.
Andrews' third and fourth assertions of error pertain to the alleged failure of the trial court to consider new constitutional decisions and apply them retroactively to this case; hence they are considered together. Assuming, but without deciding, that new constitutional case law has retroactive application to collateral attacks on convictions as well as direct appeals therefrom, we survey the cases relied upon.
Andrews makes three basic contentions as to the unconstitutionality of the death penalty statutes: (1) that the sentencing portion of the trial is deficient in that (a) no notice is given as to the grounds (aggravating circumstances) upon which the death penalty is sought; (b) the State is not required to expressly plead or prove the grounds supporting the death penalty; (c) no factual findings of grounds relied upon by the jury are required; and (d) appellate review is not adequate because of the absence of factual findings; (2) the death penalty may not be imposed because he was not specifically found to have taken life or intended to take life; and (3) that the method of execution constitutes cruel and unusual punishment.
It is to be noted that U.C.A., 1953, 76-5-202 specifically sets forth eight aggravating circumstances, one or more of which must be alleged, proved, and found by the fact finder. Hence, one charged with a capital felony is put on notice and is made aware of what the State must prove and thus able to prepare his defense.
Andrews relies upon Gardner v. Florida and Presnell v. Georgia, supra, on the issue of notice. However, each of those cases are distinguishable on their facts.
Gardner involved a sentence of death based upon a confidential presentence report that was not disclosed to the defendant. The United States Supreme Court reversed and stated the following:
... [i]t is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed. Without full disclosure of the basis for the death sentence, the Florida capital-sentencing procedure would be subject to the defects which resulted in the holding of unconstitutionality in Furman v. Georgia. [Emphasis added.]
*823 Andrews was not sentenced on the basis of any undisclosed or secret information and he was on adequate notice of the grounds upon which the sentencing authority would rely.
The Utah procedure, as followed in the instant case, provided a complete record on appeal that disclosed all of the considerations which motivated the death sentence and hence, is totally consistent with the holding in Gardner.
In Presnell, the Georgia statutes required a finding of bodily injury in order to support the capital offense of murder committed while engaged in the commission of a kidnapping. Although the jury did not make a finding of bodily injury, the Georgia Supreme Court affirmed, stating that evidence of bodily injury was apparent from the record. The United States Supreme Court reversed for the reason that the defendant had no notice whatsoever of the grounds upon which the state was relying to prove the requisite aggravating circumstances.
Presnell is inapposite to the instant case since Andrews was at all times on notice of the aggravating circumstances provided for in U.C.A., 1953, 76-5-202, supra. Unlike in Presnell, the "fundamental principles of procedural fairness" were adhered to herein. The jury had already found at least one aggravating circumstance in the guilt phase of the trial. Consequently, there was not a denial of an opportunity to rebut the State's case during the sentencing phase of the trial. There appears to be no support for Andrews' contention that he had no notice of the grounds upon which the death penalty would be based. This is particularly so in light of the especially heinous nature of the murders.
In Gardner, it was stated that so long as the record reveals the evidentiary basis for the imposition of the death penalty so as to insure that the appellate court may conduct a comprehensive review of the proceedings and insure that the penalty was not imposed arbitrarily or capriciously, the concerns of Furman v. Georgia, supra, are met. Hence, written findings of aggravating circumstances are not required.
The record in this case reveals the evidence supporting the aggravating circumstances charged and discloses that the evidence in mitigation of the offense was virtually nonexistent.[19]
Andrews cites Woodson v. North Carolina and Roberts v. Louisiana, supra, as authority for his contention that written factual findings are required at the sentencing phase of trial. However, neither of said cases stands for that specific proposition.
Woodson holds that "the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." No implication arises therefrom that the "consideration" referred to be reduced to written findings.
The Utah statutes[20] clearly afford such "consideration" inasmuch as they specifically mandate a hearing "as to any matter the court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty." In addition, the statutes specify the aggravating and mitigating circumstances which shall be included.
In Roberts, the Court was again faced with the issue as to the constitutionality of a mandatory death sentence.[21] The murder victim was a police officer performing his regular duties. The Court observed that although such fact may be regarded as an aggravating circumstance:
*824 ... [i]t is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer... As we emphasized repeatedly in Roberts [Stanislaus] and its companion cases decided last Term, it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. Because the Louisiana statute does not allow for consideration of particularized mitigating factors, it is unconstitutional. [Citing its decision in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), holding the Texas sentencing procedure to be constitutionally adequate since it permitted mitigating circumstances to be considered by the jury.]
Again, just as in Woodson, no requirement of written findings is imposed and it is clear that the Utah statutes adequately meet the standards established by authority of the cases cited.
Andrews next cites Lockett v. Ohio, supra, wherein it was stated that "[i]t violates the Eighth Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim."
In Lockett, the defendant was sentenced to death as a consequence of her participation as the "wheelman" in a robbery which resulted in a murder.
The facts in Lockett are to be contrasted with those of the instant case wherein Andrews was an active participant in acts of torture which preceded the final acts of murder.[22] Also, the central focus of Lockett was on the failure of the Ohio statute to permit an adequate consideration of mitigating circumstances. In any event, the instant case does not impose a "purely vicarious theory of liability" as characterized by Justice Marshall in Lockett.
We deem Lockett to be inapplicable for two reasons: (1) Andrews' acts of participation were significantly different than Lockett's and (2) the Utah sentencing procedure allows for full consideration of mitigating circumstances whereas Ohio's did not.
Andrews cites no authority in support of his contention that the imposition of the death penalty by shooting or hanging is "cruel" and "unusual." He does cite Coker v. Georgia, supra, which struck down the death penalty for rape as being "barbaric" and "excessive" for such offense. However, the holding in Coker is not to be strained to cover the means of imposing the death penalty in an appropriate case.[23]
The Utah Legislature has seen fit to provide the death penalty as a proportionate sentence for capital felonies and it is not the prerogative of this Court to determine otherwise. That conclusion was aptly stated in Gregg v. Georgia[24] as follows:
Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. "[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." [Citing Furman v. Georgia, supra.]
*825 Andrews' final assertion of error challenges the dismissal of his claim that the death sentence was imposed arbitrarily and as the result of racial discrimination. He contends that his allegations went not only to prosecutorial discretion but to the whole system (as in Furman v. Georgia, supra), and consequently he was entitled to an evidentiary hearing. This contention is somewhat novel, however, a similar contention was advanced in Spinkellink v. Wainwright, supra, wherein it was alleged that the Florida statute was being applied arbitrarily, capriciously, excessively, and disproportionately in violation of the eighth and fourteenth amendments, and that the statute was being administered impermissibly and discriminatorily by prosecutors in the plea bargaining process against defendants convicted of murdering whites as opposed to blacks, and against males and poor persons.
If this latter interpretation is the correct reading of Proffitt, serious problems arise. First, every criminal defendant sentenced to death under Section 921.141 could through federal habeas corpus proceedings attack the statute as applied by alleging that more convicted murderers, equally or more deserving to die, had been spared, and thus that the death penalty was being applied arbitrarily and capriciously, as evidenced by his own case. The federal courts then would be compelled continuously to question every substantive decision of the Florida criminal justice system with regard to the imposition of the death penalty. The intrusion would not be limited to the Florida Supreme Court. It would be necessary also, in order to review properly the Florida Supreme Court's decision to review the determinations of the trial courts. And in order to review properly those determinations, a careful examination of every trial record would be in order.
A thorough review would necessitate looking behind the decisions of jurors and prosecutors, as well. Additionally, unsuccessful litigants could, before their sentences were carried out, challenge their sentences again and again as each later-convicted murderer was given life imprisonment, because the circumstances of each additional defendant so sentenced would become additional factors to be considered. The process would be never-ending and the benchmark for comparison would be chronically undefined. Further, there is no reason to believe that the federal judiciary can render better justice. As the Florida Supreme Court itself so candidly admits, see Provence v. State, supra, Fla., 337 So.2d 783 at 787, reasonable persons can differ over the fate of every criminal defendant in every death penalty case. If the federal courts retried again and again the aggravating and mitigating circumstances in each of these cases, we may at times reach results different from those reached in the Florida state courts, but our conclusions would be no more, nor no less, accurate. Such is the human condition... .
The Supreme Court in Proffitt or in Furman, Gregg, Jurek, Woodson, or Roberts, could not have intended these results... . [Emphasis added.]
We adopt the foregoing rationale and coupled with what has been said heretofore, conclude that the trial court's dismissal was proper.
The order of dismissal is affirmed.
CROCKETT, C.J., concurs.
WILKINS, J., concurs in result.
STEWART, Justice (concurring in result):
I am able to concur only in the result in this case because I hold a different view of the appropriate role and function of the writ of habeas corpus in our criminal justice system. That view, however, does not in this case compel me to a result different on the merits from that reached in the plurality decision.
Nevertheless, I think it appropriate to set forth my view on one crucial point raised by appellant Andrews. Andrews argues that United States Supreme Court decisions decided subsequent to our affirmance of the *826 sentence of execution require the issuance of a writ of habeas corpus.
Andrews contends, inter alia, that the intervening opinion of the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), requires the issuance of a writ and the setting aside of the sentence of execution. Andrews states that it has never been alleged or proved that he personally took a life or intended to take a life, and he argues that Lockett stands for the proposition that capital punishment in such circumstances is unconstitutionally cruel and disproportionate to the crime and that the sentence of death must therefore be set aside. It is true that the evidence in this case does not sustain a finding that Andrews himself actually took a life. However, the holding of Lockett does not in fact sustain the major premise of appellant's argument. Justice White's opinion, which represents only his views, is to the effect that one must, in order to be subject to the death penalty, have personally intended that a murder be committed even though he himself did not take a life.
I agree with the proposition stated by Justice White that "it violates the Eighth Amendment [to the United States Constitution] to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim." 438 U.S. at 624, 98 S.Ct. at 2983. I also believe that Article I, § 9 of the Utah Constitution, which prohibits cruel and unusual punishment, imposes the same requirement; and so does the Utah criminal code, see § 76-5-202, U.C.A. (1953), as amended.
Human experience is simply rife with instances, especially with young people, where group activities evolve into unlawful conduct and one or more persons go beyond the intention of other members of the group and commit an act which cannot and should not be attributed to every person in the group.
Capital punishment simply should not be imposed on the basis of a constructive intent or mens rea. This does not mean that a person could not be subjected to capital punishment for engaging in a criminal conspiracy to intentionally take the life of another or for aiding or abetting such an endeavor, as long as the jury is instructed that a person not directly responsible for the actual killing must have had the purpose and intention that another be killed and the evidence supports that proposition. Indeed, it should be noted that murder in the first degree is defined by § 76-5-202 as a criminal homicide in which "the actor intentionally or knowingly causes the death of another... ." In short, an imputed mens rea is insufficient under the Utah statute, and in my view under the Utah and the United States Constitutions, to support capital punishment.
In the instant case, however, the trial judge instructed the jury with great care that the death penalty could be imposed only if the jury found that each defendant personally intended that one or more of the victims be killed. In my view the evidence in this case amply supports the implied jury finding that the appellant did in fact harbor such an intention.
MAUGHAN, Justice (dissenting):
With the rigid adherence to the restrictive waiver doctrine, in a habeas corpus action involving the death penalty, I cannot concur. The need for finality of convictions is an insufficient reason when the convictions involve the death penalty in the first two cases tried under the new statute. The unbridled reliance on the infallibility of this court in assessing the constitutional issues involved in the prior appeals of Pierre and Andrews is not consistent with the broad role this court must play in performing its institutional function. As pointed out by the United States Supreme Court, since there is a qualitative difference in the sentence of death, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment, in a specific case.[1] Under the *827 circumstances the claims of the petitioners should be reviewed in these proceedings with a consciousness of the qualitative difference of the sentences imposed.
In response to petitioners initial appeals regarding the validity of the death penalty statutes in Utah, this court relied on decisions rendered by the United States Supreme Court issued in 1976. Subsequent decisions have further added to the mosaic, from which emerges the pattern of basic constitutional doctrine. The Utah statutory plan for imposition of the death penalty does not conform with the minimal requirements of the United States Supreme Court. My concurring and dissenting opinion in State v. Brown, Utah, No. 15481, February 1980, sets forth in detail my reasons for this conclusion.
NOTES
[1] Sought pursuant to the provisions of Rule 65B(i), Rules of Civil Procedure.
[2] U.C.A., 1953, 76-5-202, designating said offense as a capital felony.
[3] Bifurcated trial with a separate sentencing proceeding provided for by U.C.A., 1953, 76-3-207.
[4] See U.C.A., 1953, 77-36-16, providing for infliction of death by hanging, or by shooting, at the defendant's election.
[5] State v. Andrews, Utah, 574 P.2d 709 (1977) and State v. Pierre, Utah, 572 P.2d 1338 (1977).
[6] U.C.A., 1953, 76-3-206 and 207 (enacted July, 1973).
[7] Bennett v. Smith, Utah, 547 P.2d 696 (1976); Maguire v. Smith, Utah, 547 P.2d 697 (1976); Brown v. Turner, 21 Utah 2d 96, 440 P.2d 968 (1968); and Bryant v. Turner, 19 Utah 2d 284, 431 P.2d 121 (1967).
[8] Relying upon Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) which set forth the "deliberate by-pass" doctrine which placed upon the state the burden of persuasion that there had been a deliberate by-pass of a constitutional right.
[9] The issues addressed by this Court in Pierre included the following:
(1) Constitutionality of the death penalty statutes viewed in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
(2) Constitutionality of the lack of automatic appellate review.
(3) Whether the death penalty serves a compelling state interest.
(4) Constitutional standard of proof in penalty phase of bifurcated trial.
(5) Prejudicial effect of pre-trial publicity.
(6) Prejudicial effect of hearsay testimony.
(7) Whether sentence of death was disproportionate and excessive in relation to offenses committed.
Although re-hearing was denied, a supplemental opinion addressed the issue of actual prejudice in connection with the napkin incident. See State v. Andrews, Utah, 576 P.2d 857 (1978).
Andrews adopted the basic constitutional arguments advanced in Pierre, and the issue as to the failure to sequester the jury was raised and addressed. Although not raised by Andrews, the Court also addressed: (1) the constitutionality of the death penalty statute; (2) the standard of proof applicable in the penalty phase of the trial; and (3) whether the death sentence was disproportionate and excessive in relation to the offenses committed.
[10] Supra, footnote 1.
[11] Supra, footnote 8.
[12] Supra, footnote 7.
[13] Id.
[14] Supra, footnote 6.
[15] 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
[16] In accord: Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).
[17] 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
[18] 578 F.2d 582 (5th Cir.1978), cert. denied 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).
[19] Supra, footnote 5.
[20] Supra, footnote 6.
[21] The Court had previously determined that such a sentence could not be imposed. See Stanislaus Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
[22] As to the participation of Andrews in the events leading up to the murders see facts set forth in State v. Pierre, supra, footnote 5.
[23] Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879).
[24] 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
[1] Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).
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277 Wis.2d 96 (2004)
2004 WI 151
690 N.W.2d 13
IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Paul M. KASPROWICZ, Attorney at Law:
OFFICE OF LAWYER REGULATION, Complainant,
v.
Paul M. KASPROWICZ, Respondent.
No. 03-2844-D.
Supreme Court of Wisconsin.
Decided December 21, 2004.
*98 ¶ 1. PER CURIAM.
We review the referee's report and recommendation that Attorney Paul M. Kasprowicz *99 be publicly reprimanded for having committed 16 counts of professional misconduct involving six separate client matters as alleged in the complaint filed by the Office of Lawyer Regulation (OLR) in this court on October 23, 2003.[1] Noting that Kasprowicz had admitted to most of the misconduct counts in his answer or at the public hearing, the referee concluded that his misconduct had been proven by clear and convincing evidence. The primary dispute before the referee concerned the appropriate sanction to be recommended for Kasprowicz' multiple counts of misconduct: The OLR sought a 60-day suspension of Kasprowicz' license to practice law, while Kasprowicz urged the referee to recommend a public reprimand. The referee appointed in this matter, Attorney Kim M. Peterson, agreed with Kasprowicz and has recommended to this court that Kasprowicz receive a public reprimand for his professional misconduct.
¶ 2. Neither the OLR nor Kasprowicz have appealed from the referee's report and recommendation; thus, this court's review proceeds pursuant to SCR 22.17(2).[2] We conclude the referee's findings of fact are supported by clear and convincing evidence in the *100 record and accordingly, we adopt those findings as well as the referee's conclusions of law that Kasprowicz committed all 16 counts of misconduct as alleged in the OLR complaint. We also accept the referee's recommendation and publicly reprimand Attorney Kasprowicz for his misconduct.
¶ 3. We also direct that Attorney Kasprowicz pay the OLR the costs accrued in this disciplinary proceeding, now totaling $5760.16.
¶ 4. Respondent, Attorney Paul Kasprowicz, was admitted to practice law in this state in 1986 and has practiced as a sole practitioner in Waukesha county. He has never before been the subject of a disciplinary proceeding. Because there has been no appeal and there is no dispute over the facts, the allegations of the OLR complaint and the referee's findings will be only briefly discussed.
COUNTS 1 THROUGH 6CLIENT K.M.
¶ 5. K.M. retained Kasprowicz on December 14, 1998, to help in the probate of her mother's estate. Kasprowicz and K.M. agreed that his fee would be based on a percentage of the estate.
¶ 6. On January 8, 1999, Kasprowicz filed an application for informal probate and K.M. was appointed personal representative. Subsequently, on July 13, 1999, the register in probate filed a "Notice of Overdue Inventory" because the inventory of the estate had not been filed within six months of the appointment of the personal representative as required by Wis. Stat. § 858.01.[3]
*101 ¶ 7. On August 4, 1999, Kasprowicz filed the inventory listing property valued at $417,835.22 as subject to administration. The inventory, however, improperly included an IRA and life insurance policy that were held by the decedent's living trust, a document Kasprowicz had drafted for the decedent in 1992. The beneficiary form on the decedent's IRA designated her trust, not her estate, as beneficiary.
¶ 8. The inventory also incorrectly listed the decedent as having a one-half ownership in real estate in Monroe county, when in fact, she had only a one-quarter ownership in that property.
¶ 9. The value of the property Kasprowicz had erroneously included in the decedent's estate exceeded $275,000.
¶ 10. After the inventory, Kasprowicz filed no additional documents in the estate and failed to close the estate within 18 months. When orders to show cause were subsequently issued in October 2000 regarding his failure to close the estate, Kasprowicz appeared and asked that the file be transferred to another attorney, Attorney George Love. Kasprowicz stated at the order to show cause hearing that he would pay all of Attorney Love's fees incurred in closing the estate.
¶ 11. That order to show cause hearing had been requested by K.M. because Kasprowicz had been unresponsive to her questions about settling the estate. Kasprowicz had moved his office without informing K.M. of the new location and her numerous attempts to discuss the status of her mother's estate with Kasprowicz had been unsuccessful. Ultimately, Kasprowicz left a voicemail message for K.M. stating that he was taking a leave of absence from his law practice.
*102 ¶ 12. After taking over the estate as successor counsel, Attorney Love asked Kasprowicz several times to turn over his file on the estate; Kasprowicz finally did so over four months later.
¶ 13. During the time he handled the estate, Kasprowicz failed to file a fiduciary income tax return for the estate and the trust. That failure resulted in the assessment of $4100 in interest and penalties.
¶ 14. After K.M. filed a grievance with the OLR about Kasprowicz' conduct, the OLR began its investigation; Kasprowicz, however, failed to timely respond to the OLR's investigative efforts.
¶ 15. Ultimately, however, Kasprowicz paid over $11,000 which included all of Attorney Love's fees, a return to the client of one-half of Kasprowicz' fees, and all of the penalties and interest imposed by the IRS as the result of the late filing of the estate's tax returns.
¶ 16. This course of conduct, as alleged in the OLR complaint and which the referee found had been proven by clear and convincing evidence, led to the following six counts of misconduct against Kasprowicz:
Count 1. By improperly including an IRA and life insurance policy in the estate's inventory, Kasprowicz failed to represent a client with the legal knowledge, skills, thoroughness, and preparation reasonably necessary for, the representation, in violation of SCR 20:1.1.[4]
Count 2. By failing to file the estate's inventory within six months as required by Wis. Stat. *103 § 858.01, by failing to close the estate within 18 months, as required by Wis. Stat. § 863.35, without filing a request for an extension of time to close the estate, and by failing to file fiduciary income tax returns for the estate and trust, which resulted in approximately $4100 in interest and penalties, Kasprowicz failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.[5]
Count 3. By failing to respond to K.M.'s attempts to contact him regarding the status of the estate, Kasprowicz failed to promptly comply with a client's numerous requests for information, in violation of SCR 20:1.4(a).[6]
Count 4. By failing to turn K.M.'s file over to her new counsel for approximately four and one-half months after a request was made for the file, Kasprowicz failed to take steps to the extent reasonably practicable to protect a client's interest, in violation of SCR 20:1.16(d).[7]
Count 5. By charging K.M. a percentage of the estate's value for his representation in the matter, *104 Kasprowicz violated a statute [Wis. Stat. § 851.40(2)(e)] and supreme court decision [In re Disciplinary Proceedings Against Sylvan, 202 Wis. 2d 123, 549 N.W.2d 249 (1996)] regulating the conduct of lawyers, in violation of SCR 20:8.4(f).[8]
Count 6. By failing to timely respond to OLR staff's investigative letters and by failing to provide relevant information during the course of an investigation, Kasprowicz failed to timely disclose all facts and circumstances pertaining to the grievance and failed to timely answer questions or furnish documents, in violation of SCR 22.03(2),[9] constituting misconduct, pursuant to SCR 20:8.4(f).
COUNT SEVENCLIENT R.K.
¶ 17. In October 1999 R.K. retained Kasprowicz to handle the probate of R.K.'s mother's estate. In October 2001 R.K. filed a grievance with the OLR *105 asserting that despite multiple orders to show cause issued by the probate court, the estate had not been closed.
¶ 18. The OLR staff mailed a copy of that grievance to Kasprowicz and informed him that pursuant to SCR 22.03(2), he was required to provide a written response disclosing all facts and circumstances pertaining to the alleged misconduct on or before November 15, 2001. Kasprowicz failed to respond to that letter.
¶ 19. Kasprowicz also failed to respond to a second investigative letter sent by the OLR staff by certified mail on November 28, 2001. Likewise, although Kasprowicz had signed a return receipt for a third letter from the OLR on December 14, 2001, he did not respond to that letter either.
¶ 20. Subsequently, on January 28, 2002, the OLR filed a motion in this court pursuant to SCR 22.03(4)[10]*106 requesting that Kasprowicz be ordered to show cause why his license should not be suspended for his willful failure to cooperate with the OLR in its investigation of this grievance. After Kasprowicz had been served with a copy of that motion, he finally on January 30, 2002, submitted an initial response to the R.K. grievance; as a result, the OLR withdrew its request for a suspension of Kasprowicz' license for his failure to cooperate.
¶ 21. On June 18, 2002, OLR staff sent a letter to Kasprowicz requesting a supplemental response to some additional investigative questions. He was asked to submit his response by July 1, 2002. Again, Kasprowicz failed to respond, and he likewise failed to respond to a second letter sent to him by OLR staff by certified mail. On July 15, 2002, a third OLR investigative letter, which requested a response by July 23, 2002, was personally served on Kasprowicz. On that date, Kasprowicz finally hand-delivered a response to the OLR and met with OLR staff. At that meeting, OLR staff requested additional information by August 19, 2002, and Kasprowicz was sent a letter from the OLR on July 24, 2002, confirming that request. Kasprowicz, however, again failed to respond and supply the additional information by the specified date.
¶ 22. Another letter from the OLR personally served on Kasprowicz on August 21, 2002, requested a response from him by August 30, 2002; Kasprowicz faxed his response to OLR staff on August 31, 2002.
¶ 23. On September 5, 2002, OLR staff sent Kasprowicz another letter requesting additional information by October 4, 2002; again, Kasprowicz did not respond or supply the requested information.
*107 ¶ 24. This course of conduct, as alleged in the OLR complaint and which the referee found had been proven by clear and convincing evidence, led to the following count of misconduct against Kasprowicz:
Count 7. By failing to respond to OLR staff's letters of October 23, 2001, November 28, 2001, and December 14, 2001, until after the OLR filed an order to show cause on January 28, 2002, requesting the temporary suspension of Kasprowicz' license to practice law, and by failing to respond staff's letters of June 18, 2002, and July 2, 2002, until after being personally served with a third request, and by failing to respond to staff's letters of July 24, 2002, until after being personally served with a second request, Kasprowicz failed to timely provide relevant information during the course of the investigation, in violation of SCR 22.03(2) and SCR 22.03(6),[11] constituting misconduct, pursuant to SCR 20:8.4(f).
COUNTS 8 THROUGH 10CLIENT S.M.
¶ 25. Kasprowicz prepared tax returns for S.M. for the years 1994 through 1997, and again for the year 1999. In February 2001 the Wisconsin Department of Revenue (DOR) placed a lien on S.M.'s personal residence for back taxes. S.M. contacted Kasprowicz regarding *108 the tax lien and signed a power of attorney allowing Kasprowicz to deal directly with the DOR regarding S.M.'s taxes.
¶ 26. During the next eight months, S.M. tried to contact Kasprowicz several times to discuss the status of the matter. Kasprowicz failed to respond except to send S.M. a copy of the letter Kasprowicz had mailed to the DOR on June 20, 2001. During the eight months that Kasprowicz represented S.M. regarding the DOR tax lien, Kasprowicz was unable to resolve the matter.
¶ 27. S.M. subsequently filed a grievance with the OLR on October 18, 2001, noting that the tax lien was still attached to his home and Kasprowicz had not responded to his attempts to contact him. Also, in October 2001, S.M. hired an accountant to deal with the tax lien. The accountant cleared up that matter within a month; the accountant later stated that ". . . it was no problem to make a few calls and sort out the matter with the DOR auditor."
¶ 28. On December 14, 2001, OLR staff wrote to Kasprowicz requesting a response to S.M.'s grievance by January 8, 2002; Kasprowicz failed to respond.
¶ 29. On January 11, 2002, OLR staff sent additional correspondence to Kasprowicz requesting a response to S.M.'s grievance by January 22, 2002. By letter dated January 23, 2002, Kasprowicz requested an extension of time to respond to S.M.'s grievance and informed the OLR that he had retained an attorney to represent him in the OLR investigation. The request for an extension was granted.
¶ 30. On March 29, April 8, and April 30, 2002, the OLR received copies of letters the attorney sent to Kasprowicz stating that the attorney needed to talk with Kasprowicz as soon as possible regarding S.M.'s grievance and telling Kasprowicz to contact the attorney *109 to schedule a conference to discuss the matter. The final letter from the attorney informed Kasprowicz that he was withdrawing from representing Kasprowicz in the grievance matter.
¶ 31. By letter dated May 7, 2002, OLR staff requested Kasprowicz to respond to S.M.'s grievance no later than May 15, 2002. After being personally served with that letter, Kasprowicz contacted OLR staff and promised to provide a response; again he failed to do so.
¶ 32. On July 23, 2002, Kasprowicz appeared at the OLR office in Milwaukee and stated that he would respond to S.M.'s grievance by August 2, 2002, a date OLR staff later confirmed by letter. Kasprowicz, however, failed to respond as promised. He finally responded on August 30, 2002, after he had been personally served with another follow up letter from OLR staff.
¶ 33. This course of conduct, as asserted in the OLR complaint and which the referee found had been proven by clear and convincing evidence, led to the following three counts of misconduct against Kasprowicz:
Count 8. By failing to diligently and promptly pursue removal of the tax lien on his client's home, and by sending only one letter to the Wisconsin Department of Revenue in the matter during an eight-month time span, Kasprowicz failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
Count 9. By failing to return telephone calls and respond to other attempts of his client to contact him about the matter, Kasprowicz failed to keep a client reasonably informed about the status of *110 a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4.[12]
Count 10. By failing to respond to multiple OLR staff investigative letters relating to the S.M. grievance, Kasprowicz failed to timely fully and fairly disclose all facts and circumstances pertaining to alleged misconduct, in violation of SCR 22.03(2), constituting misconduct, pursuant to SCR 20:8.4(f).
COUNTS 11 AND 12CLIENT N.G.
¶ 34. Kasprowicz represented N.G. in her divorce action and obtained a judgment of divorce on her behalf on February 20, 2002. As the attorney for the moving party, Kasprowicz was to draft and submit proposed findings of fact, conclusions of law, and the judgment within 30 days of the final divorce hearing pursuant to Wis. Stat. § 767.37(1).
¶ 35. Because this proposed draft had not been filed by Kasprowicz, an order to show cause hearing was held on May 24, 2002. Kasprowicz informed the court that he had drafted the paperwork and forwarded it to opposing counsel; opposing counsel finally received the proposed drafts on May 28, 2002. On that same day, the court approved the drafts as to form and returned them to Kasprowicz; Kasprowicz, however, did not file the documents with the court until July 2002.
*111 ¶ 36. On June 26, 2002, N.G. filed a grievance about Kasprowicz' conduct with the OLR. The OLR sent Kasprowicz a letter on August 22, 2002, requesting a response to N.G.'s allegations. Kasprowicz submitted a two-paragraph response and a copy of his final bill to N.G.
¶ 37. On September 19, 2002, the OLR requested additional specific information from Kasprowicz relating to N.G.'s grievance, but Kasprowicz failed to respond.
¶ 38. On October 11, 2002, the OLR sent another request to Kasprowicz by certified mail which Kasprowicz signed for; however, he again did not respond.
¶ 39. On December 9, 2002, Kasprowicz was personally served with a request for information regarding the N.G. grievance and finally submitted his written response to the OLR on December 16, 2002.
¶ 40. This course of conduct, as alleged in the OLR complaint and which the referee found to have been proven by clear and convincing evidence, led to the following counts of misconduct against Kasprowicz:
Count 11. By failing to provide opposing counsel with proposed final paperwork until three months after the final divorce hearing, and by failing to file the paperwork until five months after the final divorce hearing, in violation of Wis. Stat. § 767.37(1), Kasprowicz failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
Count 12. By failing to timely respond to OLR staff's investigative letters regarding N.G.'s grievance, Kasprowicz failed to provide relevant information during the course of an investigation, in violation of SCR 22.03(6), constituting misconduct, pursuant to SCR 20:8.4(f).
*112 COUNTS 13 AND 14CLIENT R.S.
¶ 41. In early 1999 R.S. retained Kasprowicz to represent her in a divorce action. R.S. was granted a divorce on February 15, 2000, but a Qualified Domestic Relation Order (QDRO) was necessary to divide R.S.'s ex-husband's retirement account. After the final hearing, Kasprowicz told R.S. that it would be necessary to hire a third party to prepare the QDRO. R.S. thought Kasprowicz would hire someone to prepare it, but Kasprowicz did nothing and failed to advise R.S. that he was not arranging for someone to prepare the QDRO.
¶ 42. Subsequently, when R.S. attempted to contact Kasprowicz about the QDRO, Kasprowicz failed to respond to her calls. Later, R.S. hired other counsel to prepare the QDRO which was then submitted to the trial court and signed by the court in March of 2003.
¶ 43. After R.S. filed a grievance against Kasprowicz, the OLR sent Kasprowicz a request on October 2, 2002, that he submit a full and complete response to the grievance; Kasprowicz did not reply.
¶ 44. On October 30, 2002, the OLR sent another request to Kasprowicz, this one by certified mail. Although Kasprowicz signed for that letter, he did not respond.
¶ 45. Then, on December 9, 2002, Kasprowicz was personally served with the OLR's request that he respond to the grievance; he finally did so submitting a written response to the OLR on December 23, 2002.
¶ 46. This course of conduct, as alleged in the OLR's complaint and which the referee found to have been proven by clear and convincing evidence, led to the following two counts of misconduct against Kasprowicz:
*113 Count 13. By failing to follow up on the status of the QDRO, and by failing to ensure the completion of the division of the marital estate, Kasprowicz failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
Count 14. By failing to timely fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct, Kasprowicz failed to timely fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct, in violation of SCR 20:03(2), constituting misconduct, pursuant to SCR 20:8.4(f).
COUNTS 15 AND 16CLIENT D.H-V
¶ 47. In May 2001 D.H-V. retained Kasprowicz to represent her in a child support matter. After Kasprowicz filed a post-divorce petition on her behalf, the circuit court issued an order to show cause and scheduled a hearing for July 13, 2001. That hearing, however, had to be postponed to November 27, 2001, because of a failure to obtain an affidavit of service with respect to D.H-V.'s ex-husband.
¶ 48. At that rescheduled November 27, 2001, hearing, D.H-V. appeared with Kasprowicz; D.H-V.'s husband, however, did not appear. The circuit court entered a default judgment in favor of D.H-V. ordering an increase in the amount of child support D.H-V. would receive; those increased payments were to be retroactive to July 13, 2001. Kasprowicz was directed to determine the arrearages owed by D.H-V.'s former husband and to incorporate that amount into the court order Kasprowicz was to draft. Kasprowicz did not speak with D.H-V. after the November 27, 2001, hearing.
*114 ¶ 49. Sometime after that hearing, however, Kasprowicz received a proposed stipulation from the attorney representing D.H-V.'s former husband. The terms of that stipulation differed from the circuit court's November 27, 2001, order that Kasprowicz was to draft. The proposed stipulation provided for an increase in child support but made it effective November 29, 2001, instead of retroactively to July 13, 2001.
¶ 50. In addition, a wage assignment for the monthly child support had become effective on January 31, 2002, but the stipulation proposed by D.H-V.'s former husband calculating the arrearages for December 2001 and January 2002 provided that "all other arrearages, and interest accruing therefrom, are hereby waived . . . ."
¶ 51. The proposed stipulation also provided that her former husband, rather than D.H-V., would be entitled to claim their son as an exemption on tax returns for 2002 and all successive years.
¶ 52. Kasprowicz did not send a copy of the proposed stipulation to D.H-V.; instead, he called her and left a voicemail describing the terms of the stipulation and stating that if she did not respond, he would sign it. Kasprowicz never received a response from D.H-V. D.H-V. claimed she never received the voicemail. In any event, Kasprowicz signed the stipulation on behalf of D.H-V. D.H-V. first learned of the stipulation and the subsequent order signed by the court in January 2003 when her former husband called and told her that he, not she, was entitled to claim their son as a tax exemption pursuant to the stipulation.
¶ 53. After D.H-V. filed a grievance with the OLR, OLR staff sent Kasprowicz letters on June 6, June 26, and July 18, 2003, requesting information and copies of all correspondence in D.H-V.'s files; Kasprowicz did not *115 provide the requested information. On August 6, 2003, in a telephone conference with OLR staff, Kasprowicz explained he had not submitted the copies of the correspondence in D.H-V.'s file because there were none. Kasprowicz informed the OLR of this lack of documentation more than two months after the OLR had requested the information.
¶ 54. This course of conduct, as alleged in the OLR complaint and which the referee found to have had been proven by clear and convincing evidence, led to the following two counts of misconduct against Kasprowicz:
Count 15. By signing a stipulation without consulting with D.H-V. about its terms and explaining to her how it was different from the previous court order, Kasprowicz failed to abide by a client's decision concerning the objectives of representation and failed to consult with the client as to the means by which they are to be pursued, in violation of SCR 20:1.2(a).[13]
Count 16. By failing to notify D.H-V. of the stipulation and resultant court order, and by failing to send her copies of those documents, Kasprowicz failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).
*116 ¶ 55. After listing her findings of fact and conclusions of law, Referee Peterson discussed the sanction she would recommend for Kasprowicz' misconduct. Balancing the mitigating and aggravating factors, the referee concluded that a public reprimand was the appropriate sanction in this situation. She explained that in the first place, the misconduct, while serious, was not malicious or intentionally deceptive; moreover, at least two of the counts were based on Kasprowicz' apparent misunderstanding of the law. Although the misconduct, occurring over approximately a two-year period, involved at least five clients (and one count of failing to cooperate in the investigation of a grievance filed by a sixth client), the referee concluded that Kasprowicz' primary problem was in failing to act and then avoiding his clients when questioned about that failure.
¶ 56. Disclaiming any attempt to minimize Kasprowicz' failures, the referee additionally pointed out that his conduct was not intended toand did notprovide him with any monetary gain or benefit. According to the referee, Kasprowicz' avoidance behavior was not the result of any attempt on his part to harm his clients; rather, his behavior was a result of the medical and emotional problems he was experiencing during the two-year period.
¶ 57. Moreover, the referee noted that the harm caused by Kasprowicz' misconduct was generally minor in nature; the only monetary damage suffered involved K.M. when interest and penalties were imposed due to Kasprowicz' failure to file the fiduciary income tax return for the estate and the trust involved in that matter. In any event, the referee further observed that all monetary damages resulting from Kasprowicz' conduct *117 had been voluntarily repaid by him, including his payment of successor counsel fees in the K.M. matter.
¶ 58. Because the referee found that Kasprowicz was sincerely remorseful and obviously embarrassed about the situation, the referee determined that a public reprimand would be an appropriate sanction to remind Kasprowicz of the seriousness of his conduct.
¶ 59. Although the OLR had argued that Kasprowicz' misconduct was intentional, the referee pointed to the analysis of the psychologist who had been hired to evaluate Kasprowicz' ability to practice law and based on that analysis, the referee determined that Kasprowicz had not acted intentionally in a way that was meant to harm his clients; he had not deceived or lied to them, nor had he taken money that was not his. The referee characterized Kasprowicz' conduct as a "failure to act." She said that while that failure to act was frustrating, it did not result in significant harm to his clients.
¶ 60. Furthermore, the referee concluded that there were significant mitigating factors, specifically Kasprowicz' medical condition during the time period in question. The referee wrote:
. . . the testimony indicates that around the year 2000, respondent's health began deteriorating. He gained weight, became lethargic, tired, and was unable to concentrate or focus on work. Respondent himself testified that he had trouble sleeping and concentrating. When he realized that he was having difficulties with the OLR, and several clients, rather than address the situation, [he] avoided the problems, failing to respond to either his clients or the OLR until the last possible moment. Respondent indicated he felt somewhat hopeless, and due to his illness, felt unable to address the problems.
*118 After seeing several doctors and undergoing numerous tests, respondent was finally diagnosed with hyperinsulinism, with a degree of depression as well. As both respondent and his wife testified, as part of his treatment, respondent started a new eating regimen designed to improve his condition. After a few months, respondent's health improved. His energy returned, he became more focused, lost his weight, and, as friends and family indicated, was back to his "old self." He has not had any problems with clients, the OLR or family since his diagnosis and treatment. Respondent appears to have cooperated in these proceedings; he presented himself well throughout the course of this proceeding.
I find the unanimous testimony of respondent, his wife, and close friend, demonstrates that respondent's conduct in avoiding his clients, avoiding the inquiries of the office of lawyer regulation and failing to act in various respects, are a direct result of his illness. In other words, had respondent been healthy, I do not believe he would have acted the way he did in these matters, and this belief is bolstered by the fact that he has not had problems since his treatment began.
¶ 61. After review, we conclude, consistent with prior similar cases such as In re Disciplinary Proceedings Against Theobald, 2004 WI 59, 271 Wis. 2d 690, 679 N.W.2d 804, that a public reprimand is an appropriate sanction for Kasprowicz' misconduct as established in this disciplinary proceeding. We agree with the referee's analysis and observations. We find that the seriousness of Attorney Kasprowicz' misconduct warrants this public reprimand and we direct that Attorney Kasprowicz pay the costs of this disciplinary proceeding now totaling $5760.16.
¶ 62. IT IS ORDERED that Paul M. Kasprowicz is publicly reprimanded for professional misconduct.
*119 ¶ 63. IT IS FURTHER ORDERED that within 60 days of the date of this order Paul M. Kasprowicz pay to the Office of Lawyer Regulation all the costs of this proceeding provided that if such costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Paul M. Kasprowicz to practice law in Wisconsin shall be suspended until further order of this court.
NOTES
[1] The OLR complaint alleged 16 separate counts of misconduct pertaining to six separate matters but one of the client matters did not allege any misconduct related to that client; rather, the charge focused on Kasprowicz' failure to provide a timely response to OLR's request for information.
[2] SCR 22.17(2) provides:
(2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter.
[3] All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.
[4] SCR 20:1.1 provides: "Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
[5] SCR 20:1.3 provides: "Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client."
[6] SCR 20:1.4(a) provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
[7] SCR 20:1.16(d) provides:
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
[8] SCR 20:8.4(f) provides: "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."
[9] SCR 22.03(2) provides:
(2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.
[10] SCR 22.03(4) provides:
(4) If the respondent fails to respond to the request for written response to an allegation of misconduct or fails to cooperate in other respects in an investigation, the director, or a special investigator acting under SCR 22.25, may file a motion with the supreme court requesting that the court order the respondent to show cause why his or her license to practice law should not be suspended for willful failure to respond or cooperate with the investigation. All papers, files, transcripts, communications, and proceedings on the motion shall be confidential and shall remain confidential until the supreme court has issued an order to show cause. The license of an attorney suspended for willful failure to respond or cooperate with an investigation may be reinstated by the supreme court upon a showing of cooperation with the investigation and compliance with the terms of suspension. The director or the special investigator shall file a response in support of or in opposition to the reinstatement within 20 days after the filing of an attorney's request for reinstatement. Upon a showing of good cause, the supreme court may extend the time for filing a response.
[11] SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."
[12] SCR 20:1.4 provides: "Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
[13] SCR 20:1.2(a) provides:
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall inform a client of all offers of settlement and abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case or any proceeding that could result in deprivation of liberty, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
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243 Md. 688 (1966)
221 A.2d 83
BREWSTER
v.
WARDEN OF THE MARYLAND PENITENTIARY
[App. No. 139, September Term, 1965.]
Court of Appeals of Maryland.
Decided July 5, 1966.
Before HAMMOND, HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.
PER CURIAM:
Application denied for the reasons stated by Judge Harold E. Naughton in his opinion in the lower court.
The applicant, Randolph Brewster, claimed in one of his contentions that his confession was illegally elicited and could not be used against him at his trial, because he was "denied the assistance of counsel in violation of the Sixth Amendment to the Constitution." The applicant was convicted on October 17, 1949, fourteen years before the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1963). We have held that the exclusionary rule in Escobedo should not be applied retroactively. Hyde v. State, 240 Md. 661, 215 A.2d 145 (1965). We are happy to note that very recently the Supreme Court reached the same conclusion as we did in Hyde and denied Escobedo retroactive effect. Johnson v. State, 34 U.S.L. Week 4592 (U.S. June 20, 1966).
Application denied.
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849 P.2d 1113 (1993)
Jess Albert UNDERWOOD and Donsetta Underwood, husband and wife, Appellees,
v.
The STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Appellant.
No. 77232.[1]
Court of Appeals of Oklahoma, Division No. 3.
March 9, 1993.
Morris R. Bell, Becky D. McDown, Oklahoma City, for appellant.
Leonard M. Logan, IV, Vinita, for appellees.
Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.
*1114 MEMORANDUM OPINION
HANSEN, Chief Judge:
Appellant (Department) seeks review of a judgment for Appellees (Landowners) in this action for injury to real property. It further seeks review of the trial court's order assessing attorney fees. We affirm.
Landowners filed their petition on July 1, 1988. They claimed Department, as part of a road improvement project in 1983, replaced a culvert which had been draining their land with another culvert, creating an impediment to the flow of water from their property. Landowners further claim the impeded flow in turn subjected:
... [Landowners'] land to almost continual flooding, and which has so substantially interfered with [Landowners'] use and enjoyment of their property as to constitute a taking by [Department] without just compensation and without resort to eminent domain.[2]
The petition states that Landowners were bringing "special proceedings" pursuant to the provisions of 66 O.S. 1991 § 53[3], "23 O.S.A. § 12" (sic)[4], and O.S. 1981 *1115 Const. art. 2, § 24.[5] Landowners asked the trial court to appoint commissioners "for the purpose of determining the value of [Landowners'] property taken and/or damaged".
Department filed a special appearance and motion to dismiss. Department argued Landowners' action was really one in tort, there having been no "taking" of Landowners' property, and that the tort action was barred because Landowners had not filed their claim under the Governmental Tort Claims Act[6] within the prescribed one year.
In response, Landowners asserted they were alleging no wrong cognizable under the Tort Claims Act; that their action was one for "just compensation" under the Oklahoma Constitution and that whether there was a taking in the constitutional sense was a matter to be determined by the trier of fact.
The trial court denied Department's motion to dismiss. The court then appointed commissioners to view and assess the injury Landowners "have sustained by the alleged appropriation of their lands by [Department] for purposes of a flowage easement thereon". The commissioners' report assessed damages at $61,000.00.
Notice of the commissioners' report was given to both parties. The notice advised the parties a legal challenge to the report must be made by written exceptions within thirty days of the date of the report, and that a demand for jury trial must be made within sixty days of the report. The record reflects both parties demanded jury trial, but neither filed exceptions to the commissioners' report.
The matter was tried before a jury. The jury returned a verdict in favor of Landowners[7] in the amount of $64,000.00. The trial court entered judgment in that amount, noting the damages were "occasioned through taking on November 15, 1983 of a flowage easement over and across" Landowners' property. The court specifically reserved the issues of fees and costs.
Department filed its petition in error from the trial court's judgment on the jury verdict. Subsequently, the trial court signed and filed an order assessing fees and costs against Department. The court awarded attorney fees, including an incentive or bonus fee, expert engineering and appraisal fees, court and legal costs, and both prejudgment and postjudgment interest.
As a threshold issue, we must resolve Landowners' motion to dismiss Department's appeal, which was first raised in the response to petition in error, and was reiterated in the Appellees' answer brief. Landowners argue Department has no right to appeal until after it fulfills the prior right of Landowners to immediate receipt of the compensation awarded, citing State ex rel. Southwestern Natural Gas Co. v. Brewer, 184 Okla. 129, 87 P.2d 954 (1938) and Oklahoma Turnpike Authority v. Byrum, 206 Okla. 541, 244 P.2d 1145 (1952).
Landowners made the same argument in moving to dismiss Department's appeal in Appeal Number 77,423, a companion case to the matter now before us and decided this same date. The circumstances there were substantially the same as those here.
In the companion appeal, the Supreme Court denied Landowners motion to dismiss with prejudice to its reargument, finding "the payment of the judgment is not a jurisdictional prerequisite for an appeal". We find the Supreme Court's determination there, while not the law of the case here, effectively precludes our further consideration of Landowners' motion.
*1116 We consider together Department's argument on appeal that Landowners' action is actually one in tort, not inverse condemnation, and its contention that the statute of limitations has run in either case. We find no merit in this argument.
Inverse condemnation actions are authorized under Section 24, Article II of the Oklahoma Constitution, which states, in part:
Private property shall not be taken or damaged for public use without just compensation... .[8]
Our Supreme Court, in discussing the evolution of just compensation clauses of earlier constitutions, protecting only against taking of private property, stated:
... we think that the inclusion in our Constitution of the prohibition against the taking or damaging of private property for public use was due to the opinion of its makers that the consequential damage resulting from public improvements on other land should be compensated. (emphasis added)
State Highway Commission v. Smith, 146 Okla. 243, 293 P. 1002 (1930).
In Smith, the Highway Commission argued that a landowner could not resort to condemnation proceedings to ascertain damages caused by construction of a highway on the land of another. The Court there held the test of liability in condemnation was whether private property had been damaged for the public use, without regard to the means by which the injury was effected. Smith, at 1004.
We find Smith early on contemplated circumstances as we have before us. More recently, the Supreme Court found that consequential flooding brought about by construction of an adjacent highway, if serious enough to constitute substantial interference with use and enjoyment of the property, may be a taking in the constitutional sense. State ex rel. Department of Transportation v. Hoebel, 594 P.2d 1213 (Okla. 1979). Whether such a taking is present is a question for the trier of fact. Hoebel, at 1215.
In its trial brief in support of its motion to dismiss, Department's contentions that tort procedures were somehow applicable were little more than mere assertions, unsupported by even a perfunctory reading of the applicable law. We are not inclined to consider those contentions further here, particularly Department's theory that it is legally precluded from "taking" property unless it finds a necessity for the taking. The question of necessity was never raised below.
Finding the trial court's application of inverse condemnation procedures to be proper, we turn to the question of the statute of limitations. We find no definitive ruling of our Supreme Court as to the applicable limitation period under the facts before us. Upon examination of the analogous authorities, we conclude application of the fifteen year prescriptive period[9] to be most appropriate.
Landowners rely primarily on the Supreme Court's holding in Oklahoma City v. Wells, 185 Okla. 369, 91 P.2d 1077 (1939), in which it adopted the view that in an inverse condemnation action a landowner's:
... right of recovery is founded upon and grows out of his title to the land, and until such title is lost by adverse possession he should have the right to maintain an action to recover that which represents the property itself.
Wells is instructive, but may be distinguished on its facts. There the city had clearly taken and occupied the land as a city park. Title was in issue, but not whether there had been a taking. In the present case, the question of taking is most critical.
Department, in turn, relies primarily upon City of Oklahoma City v. Daly, 316 P.2d 129 (Okla. 1957). In Daly, the Supreme Court found the three year limitation *1117 period found at 12 O.S. 1951 § 95(2) applicable to an action under Section 24, Article II of the Oklahoma Constitution. Again, the facts may be distinguished because the Daly court considered only consequential damage to private buildings caused by construction of a city sewer, not a taking as is alleged here.
We find if the trier of fact determines there is a taking, even if the taking is the unintended, consequential result of a public improvement, the action is one properly in inverse condemnation and the applicable limitation period is fifteen years. To hold otherwise would be to allow the taking entity to effectively gain title, or at least some property interest, short of the prescriptive period.
If the trier of fact determines there has been no taking, the limitation period is the three year period found applicable in City of Oklahoma City v. Daly, 316 P.2d at 132.
The parties stipulated only to the date of taking, if any. Whether there has been a taking is the central point of the controversy between the parties. The trial court may not decide whether this action is barred by the statute of limitation until the issue of taking is resolved by the trier of facts under the prescribed condemnation procedures.
The trier of fact in this case did determine there was a taking of an interest in Landowners' property. We will not disturb the findings of the jury if supported by any competent evidence. City of McAlester v. Delciello, 412 P.2d 623 (Okla. 1966). There being competent evidence of record to support the finding of a taking, the trial court's determination that the fifteen year limitation period was applicable was correct.
As its third appellate proposition, Department alleges the failure of the trial court to bifurcate the proceedings denied Department due process, more particularly, the opportunity to be fully heard on the issue of just compensation.
Department argues that because it took the position there was no taking, it could not, consistent with its position, present evidence regarding the value of the property allegedly taken. Department also argues neither party could properly appraise the purported property interest until the jury has found a taking, and determined its extent.
While bifurcation might be the better procedure under some circumstances, that is a matter within the discretion of the trial court.[10]Faulkenberry v. Kansas City Southern Railway Company, 661 P.2d 510, cert. denied 464 U.S. 850, 104 S.Ct. 159, 78 L.Ed.2d 146 (Okla. 1983). We will not disturb the trial court's exercise of that discretion unless we find clear abuse. Faulkenberry, at 513.
We find the trial court had no duty to separate trial of the issues of taking and value. Department was not denied due process by both issues being tried together. Department does not direct us to any express legal authority requiring bifurcation of inverse condemnation actions, nor are we aware of such authority.
It might have been more convenient for Department to have presented its evidence on value after the taking had been determined and defined by the trier of fact, but it was not precluded from presenting evidence on value here. Department had ample time, knew the property interest being claimed, and could have presented its evidence alternatively, with the jury being instructed that Department was not conceding the taking issue by its evidence on value. There was no abuse of the trial court's discretion.
Department complains that prejudicial and irrelevant evidence of a flood in 1986 was presented to the jury. Department argues 1986 was too remote in time from the date of stipulated taking in 1983, and that the evidence showed the major amount of flooding was caused by opening of flood gates after an extraordinary rainfall. *1118 Related to the latter question, Department also claims error in the trial court's failure to give a requested instruction on Acts of God.
We find evidence of the 1986 flood relevant to the critical issue of continual substantial interference with Landowners' use of their property. Landowners concede that this 1986 flood may not have been caused by Department, but do contend that the depth of upstream water on Landowners' property was increased because the smaller culverts were unable to accommodate the volume of water.
Department does not specify how the trial court's failure to give the Act of God instruction prejudiced its material rights. We find the instructions given, when considered as a whole, fairly submit the issues. McAlester Urban Renewal Authority v. Lorince, 519 P.2d 1346, 1350 (Okla. 1974).
The jury was informed, inter alia, that Landowners had the burden of proving Department's construction "directly caused and resulted in a substantial interference". It is unlikely the jurors misunderstood their legal charge and responsibilities.
Department's contention that it was prejudiced because the date of taking was not determined until "halfway through trial" is, at best, disingenuous. Landowners' petition clearly states the injury to their property is the direct and proximate result of Department's construction in 1983. Further, in answer to Department's discovery interrogatory On what date or dates did the alleged taking occur? Landowners stated, "In 1983. .". Department's contention is without merit.
As its final allegation of trial court error, Department contends the attorney fees and costs were unreasonable, and the incentive or bonus fee awarded Landowners' counsel was prohibited by law. However, in its petition in error, Department specified no issues and errors relating to the trial court's order on costs and fees.
Failure to raise an issue in the petition in error is fatal to its consideration on appeal. Kirschstein v. Haynes, 788 P.2d 941, (Okla. 1990). Department's mere mentioning of the fees and costs ruling in the petition in error is not sufficient. To preserve a claim of error on appeal, the alleged error must be stated with specificity. Kirschstein, at 954; Rule 1.16(A), Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991, Ch. 15, App. 2.
The judgment of the trial court and its order granting fees and costs are AFFIRMED.
Landowners' request for appeal-related attorney fees is granted. McAlester Urban Renewal Authority v. Lorince, 519 P.2d at 1352. This matter is REMANDED to the trial court for the sole purpose of holding an evidentiary hearing to determine a reasonable fee for appeal-related attorney services.
BAILEY, P.J., and HUNTER, J., concur.
NOTES
[1] This action was made a companion case to Appeals 77,423 and 78,755. Appeal 78,755 was consolidated with Appeals 78,756 and 78,757. Each was initiated as a separate landowners' action, but all arise from essentially the same alleged circumstances.
[2] While not expressly mentioned in the Petition, the type of action Landowners' allegations describe is most commonly known as an inverse condemnation. The action is sometimes referred to as reverse condemnation or condemnation in reverse.
[3] This section was amended effective May 8, 1991, prior to the filing date of Landowners' petition. Sections 53 et seq. generally provide procedures for condemnation proceedings in the exercise of the right of eminent domain.
[4] This is apparently meant to cite 27 O.S. 1981 § 12, which authorizes reimbursement of expenses under certain circumstances in inverse condemnation proceedings.
[5] This section provides, inter alia, that "private property shall not be taken or damaged for public use without just compensation".
[6] 51 O.S.Supp. 1985 §§ 151 et seq.
[7] Judgment was entered in favor of Jess Albert Underwood only, as plaintiff and surviving joint tenant of co-plaintiff, Donsetta Underwood, who died during the pendency of this action.
[8] The right of eminent domain is an attribute of sovereignty, and the constitutional and statutory provisions are merely limitations upon the exercise of that right. Arthur v. Board of Commissioners of Choctaw County, 43 Okla. 174, 141 P. 1 (1914).
[9] 12 O.S. 1981 § 93(4).
[10] At least one Oklahoma trial court has chosen to bifurcate an inverse condemnation action, trying the issue of taking as the first phase. See, Oxley v. City of Tulsa, 794 P.2d 742 (Okla. 1989).
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108 S.W.3d 780 (2003)
STATE of Missouri, Respondent,
v.
Tonda L. SELLMEYER, Appellant.
No. WD 61493.
Missouri Court of Appeals, Western District.
June 30, 2003.
Julie F. Fox, Prosecuting Attorney, Keytesville, MO, for respondent.
Richard L. Scheibe and Thomas Marshall, Moberly, MO, for Appellant.
Before HOWARD, P.J., and LOWENSTEIN and HARDWICK, JJ.
VICTOR C. HOWARD, Presiding Judge.
Tonda L. Sellmeyer appeals from her conviction of making a false affidavit, *781 § 575.050.[1] Sellmeyer's sole point on appeal is that the trial court erred in overruling her motion to acquit at the end of the State's case and motion to acquit at the end of all evidence in that there was no evidence that she acted with the intent to mislead Debra Perry because the evidence at trial clearly shows that Sellmeyer told Perry that she had signed check # 799 and lost check # 798 prior to signing the affidavit of forgery.
We reverse.
Facts
On January 10, 2002, Tonda L. Sellmeyer signed an affidavit of forgery which was witnessed by bank employee Debra Perry, wherein she claimed that two of her checks, # 798 and # 799, had been forged. Earlier that day, Sellmeyer had called her bank and told them that check # 798 was lost and that she had been forced to write check # 799. Sellmeyer told the person she talked to that she wanted to put a stop payment on the checks. Sellmeyer went to the bank in person and talked to employee Debra Perry. Sellmeyer reported that she had signed check # 799, but had been forced to do so at knifepoint. Perry then presented Sellmeyer with an affidavit of forgery, which Sellmeyer signed. On the same date, Sellmeyer also signed a stop payment request, which requested that the bank stop payment on the same two checks listed in the affidavit of forgery. There is no explanation in the record as to why both documents were completed. There is also no explanation of what happened to check # 798. Sellmeyer testified that in signing the documents, she believed she was effecting the stop payment she desired, although she did not really understand the forms and was merely signing what she was given.
Sellmeyer was charged with making a false affidavit, § 575.050. The information claimed that Sellmeyer had completed an affidavit wherein she swore that she had not signed checks #798 and #799, that Sellmeyer's claim in the affidavit was false, and that she had made this false claim for the purpose of misleading Debra R. Perry.
Following a bench trial, on May 28, 2002, Sellmeyer was convicted of making a false affidavit. She received a fifteen-day suspended sentence and one year of probation. This appeal follows.
Standard of Review
In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, appellate review is limited to a determination of whether there is sufficient evidence from which a court might have found the defendant guilty beyond a reasonable doubt. State v. Rehberg, 919 S.W.2d 543, 552 (Mo.App. W.D. 1995). We view the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the State and disregard all evidence and inferences to the contrary. State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995). We do not determine the credibility of witnesses; rather, we defer to the trial court's superior position from which to determine the witnesses' credibility. State v. McIntyre, 63 S.W.3d 312, 315 (Mo.App. W.D.2001).
Argument
Sellmeyer's sole point on appeal is that the trial court erred in overruling her motion to acquit at the end of the State's case and motion to acquit at the end of all evidence in that there was no evidence that she acted with the intent to mislead Debra Perry because the evidence at trial clearly *782 shows that Sellmeyer told Perry that she had signed check # 799 and lost check # 798 prior to signing the affidavit of forgery.
Section 575.050 provides that "[a] person commits the crime of making a false affidavit if, with purpose to mislead any person, he, in any affidavit, swears falsely to a fact which is material to the purpose for which said affidavit is made." The State must prove the following four elements in order to convict a defendant of the crime of making a false affidavit: 1) the defendant swore to a fact in an affidavit; 2) the defendant swore falsely to the fact; 3) the fact to which the defendant falsely swore was material to the purpose for which the affidavit was made; and 4) the defendant swore falsely with the purpose to mislead. "In order to convict a defendant of a criminal offense, the State is required, as a matter of due process, to prove beyond a reasonable doubt each and every element of the offense." State v. White, 92 S.W.3d 183, 192 (Mo.App. W.D. 2002).
Sellmeyer concedes that she made an affidavit, that she swore to certain facts therein, and that she swore to them falsely. However, she contends the State failed to prove that she had the purpose to mislead when she falsely swore. Specifically, she contends the evidence did not prove beyond a reasonable doubt that she attempted to mislead Debra Perry as to whether Sellmeyer was the one who signed check # 799.
Sellmeyer testified that her purpose in filling out the affidavit of forgery and the stop payment form was to stop payment on checks # 798 and # 799. She testified that she told Debra Perry, prior to signing the affidavit of forgery, that she had been forced to write check # 799 and that she "wanted them to understand that I'm not saying my name was not on the check ... because my signature was on the check." Sellmeyer further testified that she didn't "understand a lot of these forms and things at the bank, so I just signed what I assumed I was supposed to be signing."
Debra Perry testified on direct examination that when Sellmeyer came to the bank, Sellmeyer told Perry that "she had written the check but she was under knifepoint at the time." On cross-examination, Perry specifically testified that Sellmeyer had told her before she signed the affidavit of forgery that she wrote the check under knifepoint.
We find that the State has failed to show, either through direct or circumstantial evidence, that Sellmeyer signed the affidavit of forgery with the purpose of misleading Debra Perry. The evidence presented at trial clearly indicates that Sellmeyer told Perry, prior to signing the affidavit, that she had, in fact, signed check # 799 herself. There was no evidence to the contrary presented. Because the State has failed to prove that Sellmeyer had the purpose of misleading Debra Perry when she swore falsely in the affidavit, her conviction must be reversed. The point is granted.
The judgment of the trial court is reversed, and the case is remanded with directions to vacate Sellmeyer's conviction and sentence.
LOWENSTEIN and HARDWICK, JJ., concur.
NOTES
[1] All statutory references are to RSMo 2000.
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36 S.W.3d 281 (2001)
343 Ark. 392
Anita June CHAMBERLIN
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
No. 99-191.
Supreme Court of Arkansas.
January 25, 2001.
*282 Duncan & Rainwater, P.A., by Neil Chamberlin and J. Stephen Holt, Little Rock, for appellant.
Laser, Wilson, Bufford & Watts, P.A., by Kevin Staten and Brian A. Brown, Little Rock, for appellee.
W.H. "DUB" ARNOLD, Chief Justice.
Appellant, Anita June Chamberlin, urges us to overrule precedent, particularly our holding in Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), that upheld an insurance policy's underinsured-motorist-coverage exclusion as not violative of state public policy or the uninsured-motorist statute where the owned-but-not-insured exclusion was clear and unambiguous. We granted appellant's motion to certify the appeal to this court, and our jurisdiction is authorized pursuant to Ark. R. Sup.Ct. 1-2(d) and 1-2(b)(2), (4), (5), and (6) (2000). Specifically, Chamberlin asks that we (1) disregard unambiguous anti-stacking clauses in three motor-vehicle insurance policies sold to her husband by appellee State Farm Automobile Insurance Company, and (2) permit her to "stack" the underinsured coverage under those policies for which three separate underinsured premiums were paid.
Background
The facts are undisputed. Chamberlin was injured in a two-car head-on collision. At the time of the accident, appellant was a passenger in her husband's car, a 1988 Chrysler New Yorker insured by appellee. Appellant and her husband sued the driver at fault for negligence. Ultimately, the matter was settled because the driver's insurance company paid the insured's liability-coverage limits. Chamberlin then sought reimbursement from State Farm. Mr. Chamberlin had purchased three separate insurance policies from State Farm for three vehicles owned by the Chamberlin's at the time of the accident. Each policy included underinsured-motorist coverage. However, each policy contained an anti-stacking clause stating:
THERE IS NO COVERAGE:
1. For Bodily Injury to an Insured:
a: While occupying a motor vehicle owned by you, your spouse or any relative if it is not insured for this coverage under this policy; or
b. Through being struck by a motor vehicle owned by you, your spouse or any relative.
(Emphasis added.)
State Farm paid Chamberlin the limits of underinsured coverage under the policy issued on the 1988 Chrysler but denied her claims for payment under the remaining policies on the two cars insured by State Farm but not occupied at the time of the accident. State Farm refused to pay on the owned-but-not-insured cars because it claimed that the policy exclusion clearly prohibited stacking. Notably, appellant concedes on appeal that the exclusionary language in the policy is unambiguous.
Chamberlin filed suit in the Pulaski County Circuit Court seeking to be made whole, in part, to the extent that State Farm would be required to pay her the limits of underinsured coverage under the other two policies. State Farm moved for summary judgment. In light of Arkansas case law holding that an insurance carrier may prohibit the stacking of medical-payment coverages under multiple insurance policies, consistent with the language of *283 the no-fault act, and the fact that State Farm's exclusion was clear and unambiguous, the trial court granted appellee's motion for summary judgment. The instant appeal ensued.
Appellant argues that the trial court's order granting summary judgment should be reversed because our holding in Ross v. United Servs. Auto Ass'n., 320 Ark. 604, 899 S.W.2d 53 (1995), may be extended to permit stacking of underinsured-motorist coverage in the case at bar. Appellant also asks us to overturn our decision in Clampit, which would otherwise prohibit stacking. After considering appellant's arguments and the applicable controlling authority, we decline to reverse the trial court.
I. Standard of review
Appellant's sole point on appeal challenges the trial court's order granting State Farm summary judgment. In reviewing summary-judgment cases, we need only decide if the trial court's grant of summary judgment was appropriate based on whether the evidence presented by the moving party, State Farm, left a material question of fact unanswered. Notably, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. However, the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with 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. Ark.R.Civ.P. 56 (2000); Robert D. Holloway, Inc. v. Pine Ridge Add'n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).
Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). If a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Collyard v. American Home Assur. Co., 271 Ark. 228, 230, 607 S.W.2d 666, 668 (1980). Here, the parties agree that there are no disputed facts. Accordingly, our review must focus on the trial court's application of the law to those undisputed facts.
II. Stacking of underinsured-motorist coverage
Turning our attention to the applicable law, we first acknowledge appellant's concession that she cannot recover underinsured-motorist coverage from State Farm on the two owned-but-not-insured vehicles under our current case law. Significantly, we considered the precise issue raised here in Clampit v. State Farm Mutual Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992). Of course, in Clampit, we rejected the same arguments now advanced by appellant. Nevertheless, appellant disagrees with the trial court's reliance on our case law and urges us to abandon our position in Clampit.
Appellant also invites us to extend our holding in Ross, a recent case where we allowed stacking of underinsured coverages. However, we permitted the stacking under specific facts unique to Ross. In Ross, coverage was imposed by operation of law because the insurance company failed to comply with a legislative mandate requiring that underinsured-motorist coverage be offered and, if declined, rejected in writing. Ross, 320 Ark. at 609-10, 899 S.W.2d at 56 (quoting 3 Alan Widiss, Uninsured and Underinsured Motorist Insurance § 32.7 (2d 1992)). Unlike the instant case, the insurance-policy language at issue in Ross prohibited the stacking of *284 policies but not the stacking of cars within a single policy. Ross, 320 Ark. at 610, 899 S.W.2d at 56. Ross is distinguishable. Accordingly, we decline to extend its holding to the facts presented in this appeal.
In any event, Chamberlin contends that our holding in Clampit reflects a minority-jurisdiction position. In response, State Farm insists that our case law is controlling precedent and that the instant facts, including an unambiguous insurance-policy exclusion, do not warrant a break from such precedent. We agree. Under the doctrine of stare decisis, we are bound to follow prior case law. The policy of stare decisis is designed to lend predictability and stability to the law. State of Arkansas Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 343, 954 S.W.2d 907, 909 (1997) (citing Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds)). It is well-settled that "[p]recedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable." Mitchell, 330 Ark. at 343, 954 S.W.2d at 909 (quoting Parish, 244 Ark. at 1252, 429 S.W.2d 45). Our test is whether adherence to the rule would result in "great injury or injustice." Mitchell, 330 Ark. at 343, 954 S.W.2d at 909 (quoting Independence Fed. Bank v. Paine Webber, 302 Ark. 324, 331, 789 S.W.2d 725, 730 (1990)). We find that the case at bar does not warrant a break from precedent.
Moreover, contrary to appellant's assertion, Arkansas public policy does not favor stacking. In Clampit, we explained the public-policy rationale supporting our decision. For example, if an insurer is required to insure against a risk of an undesignated but owned vehicle, it is required to insure against risks that it is unaware of and unable to charge a premium for. Clampit, 309 Ark. at 109, 828 S.W.2d at 594-95. Of course, if more coverage is desired, an insured remains free to supplement coverage in an existing policy by paying additional premiums calculated to insure against the increasing covered risks.
Given that the rights at issue are governed by statute and not common law, we also heed legislative intent. Compare Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) (explaining that the field of common law is not primarily the legislature's province but the court's and that the court is free to amend the common law and not bound to adhere to outmoded holdings pending legislative action). Although aware of our judicial decisions, including Clampit, the legislature has not amended the governing statutes to permit stacking. In fact, as appellee notes, the General Assembly's silence over "a long period gives rise to an arguable inference of acquiescence or passive approval" to the court's construction of the statute. Chapman v. Alexander, 307 Ark. 87, 90, 817 S.W.2d 425, 427 (1991).
Appellant's reliance on authority from other jurisdictions is equally unpersuasive. Not only is the cited case law not controlling on this court but, in many cases, it is clearly distinguishable. Other states' decisions turned upon specific language in the state's statute authorizing stacking or an expressed legislative intent favoring stacking. In any event, we addressed the issue of foreign authority directly in Clampit and commented that "sheer numbers of decisions of other jurisdictions one way or the other on any given question are of course not controlling on this Court." Clampit, 309 Ark. at 111, 828 S.W.2d at 595-96.
Here, State Farm priced its premiums based on single-car coverage, and appellant's policy was limited by an accepted, clear exclusion. Consequently, State Farm asserts that its unambiguous policy should not be construed to provide coverage for a plainly-excluded risk, for which no premium was paid. See, e.g., Baskette v. Union Life Ins. Co., 9 Ark.App. 34, 652 S.W.2d 635 (1983). Indeed, we have held that parties are free to contract on terms, *285 and so long as the policy language is clear and not violative of the state law, we shall enforce the agreement as written. See Pardon v. Southern Farm Bureau Casualty Ins. Co., 315 Ark. 537, 868 S.W.2d 468 (1994).
In Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998), we discussed a simple rule for analyzing almost any stacking problem: "Read the Statute and Read the Policy!" Youngman, 334 Ark. at 79, 971 S.W.2d at 251 (citing State Farm Mut. Auto. Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995)) (quoting Douglass and Telegadis, Stacking of Uninsured and Underinsured Motor Vehicle Coverages, 24 U. RICH. L.REV. 87 (Fall 1989)). Applying the same principle here, we cannot say that the trial court erred by concluding that State Farm's unambiguous owned-but-not-insured exclusion was valid.
Based upon the controlling authority of Clampit, the inapplicability of Ross, and the absence of any legislative intent enabling stacking, there are no grounds justifying reversal of the trial court's grant of summary judgment. Further, we conclude that the instant facts do not yield a result so patently wrong and so manifestly unjust that a departure from our precedent is unavoidable. Viewing the evidence in the light most favorable to Chamberlin, resolving any doubts against State Farm, and acknowledging that there remain no genuine issues of material fact, we hold that the trial court did not err in finding that appellee was entitled to a judgment as a matter of law.
Affirmed.
GLAZE and IMBER, JJ., not participating.
Special Justices KEITH WOOD and G. WILLIAM LAVENDER, join.
CORBIN, THORNTON, and HANNAH, JJ., dissent.
RAY THORNTON, Justice, dissenting.
This case presents us with an opportunity to extend our decision in Ross v. United Servs. Auto Ass'n., 320 Ark. 604, 899 S.W.2d 53 (1995), where we held that underinsured motorist coverage could be stacked to allow full recovery of injuries sustained by a policy holder in circumstances where the insurance company failed to comply with a legislative mandate requiring that such coverage be offered. The majority declined to extend Ross, supra, and I respectfully dissent.
In 1992, the court decided Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), by a 4-3 majority, holding that public policy does not require that uninsured motorist coverage must be paid by an insurance company even when another policy provides such coverage. After we decided Ross, supra, extending underinsured coverage to an insured when the insurance company failed to comply with applicable statutes, we revisited the issue once again in Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998), and decided that the anti-stacking provisions of the insurance policy were enforceable. Justice Corbin noted in a strong and well-reasoned dissent:
[W]hen an insured purchases such coverage, he or she pays an added premium for such coverage. According to this court's decisions enforcing other-insurance clauses, however, he or she may be entitled to recover under such added coverage only in certain circumstances. In other words, the added premium is consistently being paid, but the coverage is less than consistently being provided. Should the insurers continue to benefit from receiving premium payments from their respective clients, only to deny payment of coverage to the clients where another insurer has already paid? It seems to me that, while we have gone out of our way to avoid giving a windfall to the insured, we have inadvertently provided a windfall to the insurers, by *286 allowing them to benefit from the payment of additional premiums for uninsured-motorist coverage. Such windfall was never intended by the Uninsured Motorist Act (citation omitted).
Id. Justice Corbin also wrote that "the overwhelming majority of states now embrace the notion that an injured insured should be entitled to collect on multiple uninsured-motorist policies in order to fully compensate or indemnify the insured." Id. (citing Alan I Widiss, Uninsured and Underinsured Motorist Insurance § 13.6 (1990)).
I agree with Justice Corbin's dissent in Youngman, supra, on the issue of stacking as a matter of public policy and quote further from that dissent:
[A]nti-stacking (or other-insurance) clauses pertaining to underinsured-motorist coverage deny Arkansas policyholders their reasonable expectations of full compensation, and that such clauses accordingly violate public policy. I further believed that such clauses pertaining to uninsured-motorist coverage are equally violative of public policy, as they, too, deny policyholders their expectations of being fully compensated in the event they are injured by the actions of an uninsured motorist. I do not believe, however, that recovery under more than one policy should actually enrich or benefit an insured beyond his or her injuries.
Id. (emphasis added).
In 12A George J. Couch, Cyclopedia of Insurance Law § 45:628 (2d rev. ed. 1981 & Supp.1997), the author writes, "the injured party may draw in order to compensate him for his actual loss where a single policy is not sufficient to make him whole." Id. In this case, appellant requests that she be made whole. Even the majority in Clampit, supra, concedes that the "[underinsured-motorist] coverage is designed to provide compensation to the extent of the injury, subject to the policy limit." Id. Stacking would enable appellant in this case to receive compensation for almost the entire extent of her injury.
In Youngman, supra, the majority recognizes that thirty-six states have allowed stacking of insurance coverage policies that have been actually purchased and paid by the insured. I believe it is time we joined the majority view and respectfully dissent. However, by the majority's decision today to allow prohibitions against stacking to be enforced, those adversely affected by the anti-stacking rule must look to the legislature for guidance on the underlying issue of public policy. Otherwise principles of stare decisis will preclude us from examining this issue again.
I respectfully dissent, and I am authorized to state that Justice CORBIN and Justice HANNAH join in this dissent.
CORBIN and HANNAH, JJ., join.
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722 So.2d 288 (1998)
Torrence Nemiah DORSEY, Appellant,
v.
STATE of Florida, Appellee.
No. 98-1099
District Court of Appeal of Florida, Fifth District.
December 31, 1998.
Suzanne J. Taylor, Cocoa, for Appellant.
*289 Robert A. Butterworth, Attorney General, Tallahassee, and Maximillian J. Changus, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
This appeal challenges appellant's sentence for aggravated child abuse where the verdict form failed to specify that he had violated subsection (1)(a) of section 827.03, Florida Statutes (1995). The state concedes that this conviction should have been assigned a Level 4 severity ranking rather than a Level 8 severity ranking. See Newberry v. State, 677 So.2d 884 (Fla. 5th DCA 1996).
REVERSED AND REMANDED FOR RESENTENCING.
COBB, GOSHORN and HARRIS, JJ., concur.
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8 Cal.App.2d 404 (1935)
THE PEOPLE, Respondent,
v.
CARL VON BADENTHAL, Appellant.
Crim. No. 2733.
California Court of Appeals. Second Appellate District, Division Two.
July 17, 1935.
Gold & Needleman for Appellant.
U.S. Webb, Attorney-General, Frank Richards, Deputy Attorney-General, Buron Fitts, District Attorney, and Jere J. Sullivan and S. Ernest Roll, Deputies District Attorney, for Respondent.
Fricke, J., pro tem.
Appellant was convicted of obtaining the sum of $1200 by grand theft from John H. Schleifer. In April, 1934, the complainant was introduced by a mutual acquaintance to appellant as "Baron Von Badenthal" of Austria, the fatherland of complainant. Appellant stated to Schleifer that his family owned a large estate in Austria; *407 that his mother had died leaving fifteen million crowns in which he had a one-third interest; that he owned a 107-carat diamond which was in a bank vault in Paris and also owned a valuable oil painting in Syria; that he was in this country on business and was attempting to sell a scenario, which he had written, to a motion picture studio in Los Angeles; that his allowance from the estate was $300 a month, but that he had overdrawn to the extent of a thousand dollars and would not get any further allowance until August, and that his then present finances consisted of only twenty cents. Similar representations were made in subsequent conversations, in which, also, appellant displayed or claimed an acquaintanceship with various persons in Austria known to Schleifer. Sympathizing with the "Baron", the complainant took him to live with him in his home, where for a number of months appellant enjoyed the hospitality of complainant even to the extent of using his automobile and borrowing over six hundred dollars from his host.
About the middle of May appellant informed complainant that he had sold his motion picture scenario and that the contract had been signed, but that before he could receive the $15,000 purchase price it was necessary for him to secure a verification from the Vienna Playhouse that he had not sold them the screen rights to the picture. Later appellant stated to Schleifer that the best thing would be for him to go in person to Vienna, and requested complainant to advance him the necessary finances for the trip. In compliance with the request complainant, relying upon his representations and statements, loaned appellant $1200 for that purpose. On July 4th the "Baron" left Los Angeles on the ostensible trip to Europe. After arriving in New York he requested and received further financial advances from the complainant. While in New York appellant wrote a letter, dating it as having been written in Vienna, sent it to a friend in that city and had her mail it to complainant, and also, using the stationery of a transatlantic steamship, wrote a letter to Schleifer saying that he was on the boat. In fact, the "Baron" never left the United States, and when, some time later, complainant discovered this he had appellant arrested and returned to this jurisdiction.
After his arrival in Los Angeles appellant, in the city jail, admitted to complainant that he had lied to him, that his *408 true name was Karl Wellinger and that he was not a baron, and that he had not sold his scenario. On the witness stand, also, appellant admitted that he was not a baron, that he had not sold the scenario and had not gone to Europe. Witnesses from the motion picture studio established that appellant had not sold the scenario, and complainant's testimony as to the representations of appellant concerning his wealth, nobility and the selling of the scenario was corroborated by the testimony of Mrs. Schleifer. Other witnesses testified that appellant had stated to them that he had sold the scenario.
While denied in many respects by appellant, there is ample evidence of the facts herein recited. [1] The evidence is sufficient to sustain the conviction. The money was obtained by the false pretense that the scenario had been sold, and the judgment could also be sustained on the theory of larceny by trick and device, the money having been advanced to be used for the particular purpose of the European trip which appellant never intended to take, and the money was used by appellant, in accordance with his intent at the time he received it, for other purposes. Appellant himself admitted that he never intended to use the money to go to Europe. The fact that the money was turned over as a loan does not affect this rule. (People v. Rae, 66 Cal. 423 [6 P. 1, 56 Am. Rep. 102]; In re Clark, 34 Cal.App. 440 [167 P. 1143].)
Appellant claims error because the trial court failed to discharge the jury and declare a mistrial when the jury declared its inability to agree, and because an alternate juror was substituted for one of the original twelve jurors after the jury had been deliberating for some time without arriving at a verdict.
[2] After being instructed the jury, having heard some seven or eight days of testimony, retired to deliberate at 2:40 P. M. on March 19, 1935. At 3:50 P. M. on March 20th the jury was brought into court and, being asked by the judge, the foreman stated that the jury had not agreed upon a verdict, that numerically they stood 10 to 2 and that up to fifteen minutes prior thereto the votes, since their first ballot, had been 9 to 3. On further inquiry the foreman expressed the opinion that an agreement was practically impossible. Further questioned, the foreman said that the jury was disagreed *409 as to both the law and the facts, and that it would help the jury if they were given a further interpretation of the subject of intent, and one of the jurors expressed a belief that "by clarifying the intent a little more" the jury might be able to agree. The record shows that when the court asked the jury whether further deliberation would be productive of an agreement, "voices in unison", the number not being disclosed, answered, "I don't think so." The trial judge then commented upon the fact that the jury had not requested to be discharged and stated that he would discuss the question of intent and the law applicable, to which the foreman responded that the question was "responsibility instead of intent". Counsel for both sides stipulated that the court might instruct the jury orally. The court then properly instructed the jury on the law applicable to the subject of intent and also commented on the doctrine of reasonable doubt and the presumption of innocence.
At 4:52 P. M. of the same day the jury again returned into court, apparently to have some testimony read, and were informed by the judge that the shorthand reporter was not then available, that the jurors would have to rely upon their memory of the testimony concerning which they had made inquiry and requested that they deliberate further. The foreman then volunteered the information that the jury still stood 10 to 2, that two of the jurors' minds were closed and that one of them had authorized him to state that her mind was made up and closed to further discussion but that she did not refuse to further discuss the evidence or the law. The court then directly inquired of the jurors whether any one of them was unwilling or refused further to discuss the evidence. To this there was no response. The court again requested that if any juror would not further discuss the evidence or would not change his opinion regardless of what argument might ensue, such juror should advise the court, and if any juror had that idea the court would not want to impose further confinement upon the other jurors. No juror responded to this. The foreman, however, made a statement that one of the jurors had said her mind was made up, and the subject was closed. The judge then stated he would ask the jury to retire for a short while at least, and directed the bailiff to take the jury to supper and that they resume their deliberations the following day. *410
We find nothing in the matters related above which warrants any conclusion other than that the court, not satisfied that a verdict could not be agreed upon, requested the jury to further discuss the evidence and endeavor to arrive at a verdict. In this there was no impropriety. (See People v. Baker, 94 Cal.App. 687, 690 [271 P. 777], and cases cited.)
[3] There was no error in the fact that the court by inquiry ascertained how the jurors were numerically divided. (See discussion in People v. Talkington, ante, p. 75 [47 PaCal.2d 368].) Such information by itself is proper as a means of assisting the court in its determination as to whether there is a reasonable probability of the jury agreeing upon a verdict and the advisability of sending them out for further deliberation. An examination of the California cases seeming to hold otherwise (see People v. Talkington, supra, and cases there considered) discloses that the errors there involved lay in the fact that the inquiry as to how the jury stood was coupled with statements by the trial court which were themselves prejudicial error.
[4] While appellant had been on the witness stand one of the jurors, Rhoda Gould, obtained permission to ask him a question, and, that being answered, obtained permission to ask another; but, instead of asking the question, put her hands to her face and burst into hysterical crying, whereupon the court took a recess and the juror was attended by one of the other lady jurors. On the evening of March 20th the juror, Rhoda Gould, became ill at the dinner table and it required two persons to assist her to the elevator, at which point she was obliged to sit down and then fainted. The hotel house physician was called and attended her. After the jury had returned to the juryroom the following morning the judge caused them to be brought into court, and in the presence of appellant and counsel stated that the illness of one of the jurors had been reported to him and that the doctor who had attended her was present. Placed upon the witness stand, the physician testified that he had found the juror suffering from a heart attack induced by acute indigestion, and very highly nervous and hysterical. The physician further testified that in his opinion it would be in the best interests of the juror not to continue on the jury; that undue excitement and discussion might prove injurious to her; that her illness was such that she ought not to and was unable to *411 perform the duty of a juror and that the condition of her heart was serious and might prove fatal. The court thereupon declared its finding that the juror was unable to perform her duty by reason of illness, ordered that she be discharged and that the alternate juror duly chosen and sworn at the beginning of the trial should take her place as a member of the jury. The jury then retired for further deliberation. This procedure was authorized by section 1089 of the Penal Code, which provides that "If at any time, whether before or after the final submission of the case to the jury, a juror die or become ill, so as to be unable to perform his duty ..., the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box and be subject to the same rules and regulations as though he had been selected as one of the original jurors."
[5] Appellant claims it was error for the court to deny defendant's counsel's motion to have another doctor brought in to examine the juror before she was discharged. No such motion was made. Counsel did, during the course of the medical testimony, state, "I would like to have another doctor called in this case," but that statement was not a motion. A motion is an application made to the court for an order (People v. Ah Sam, 41 Cal. 645; Code Civ. Proc., sec. 1003); and the language used, especially when read with the context, was not such as would indicate that an order was desired, and hence no ruling was made. There was no error here.
[6] Appellant also asserts that "Miss Gould then desired to make a statement and also ask a question in open court and was refused to do this by the court." Counsel has ignored the record, which shows merely that during the course of the examination of the physician the juror interrupted with the single remark, "May I ask a question?" to which the court replied, "No, I think not, Miss Gould." Nothing further on this subject appears in the record. We have no means of knowing what the question was, and no further effort was made by the juror or counsel to pursue the matter further. The trial judge was most courteous during the entire proceeding and no reason appears why the juror could not have made a statement prior to her discharge had she so desired. Appellant was then as familiar with the incident as now, and had he desired he could have called the juror and another physician as witnesses, and, we assume, would have done so *412 had the circumstance then indicated that there was any occasion for such testimony. Before an appellate court will consider suggested error it must appear that counsel exercised due diligence to avoid and correct error in the trial court. Appellant suggests that the juror during the proceedings last above referred to was "evidently in good health and able to continue", but quite significantly omits in this connection any reference to the record, because, perhaps, the record fails to support such statement.
The evidence of the bailiff and other jurors as to the seizure by the juror with illness and her condition at the hotel, and the testimony of the hotel house physician, presented to the trial court a condition clearly calling for the discharge of the juror and the substitution of the alternate, and the court's action was eminently proper.
[7] On the afternoon of the same day appellant's counsel requested the court to vacate its order discharging the juror who had been ill and to reinstate her as a member of the jury. While the denial of this motion is assigned as error, appellant offers no authority which would warrant the court in granting such a motion. The motion seems to have been based on the theory that the juror was able to resume her duties, but no proof of that fact was offered. Furthermore, the then existing jury, with the alternate included, was the lawful jury deliberating upon the verdict, and the discharged juror had, since her discharge, left the courtroom and had undoubtedly come in contact and, as shown by the record, had conversations with other persons in which the cause on trial was mentioned if not discussed. The court properly denied the motion.
[8] The matter of the substitution of an alternate juror was again raised on the motion for new trial, supported by affidavits of the juror and a physician who had examined her shortly after her discharge, to the effect that the juror at the time of her discharge was capable of continuing her duties as a juror. Even if we assume that these affidavits established that the discharged juror was physically and mentally capable of continuing as a member of the jury, this would not show that the court erred in its decision at the time the juror was discharged. The action of the court must be tested in the light of the evidence before it at the time of the decision. At that time the court was warranted in concluding that the *413 juror was to ill to proceed. The fact, if true, that after the substitution of the alternate juror had been ordered evidence was discovered contrary to that upon which the decision was based does not render the ruling erroneous. [9] The affidavits on motion for a new trial were, however, contradicted by the evidence of the bailiff in charge of the jury and one of the jurors, and in this conflict of evidence the decision of the trial court on motion for a new trial was final, especially since in certain respects the affidavits submitted by appellant contained statements which it would appear from the record were, to the knowledge of the trial judge, contrary to the facts. The motion for a new trial was properly denied.
[10] Appellant's contention that the substitution of the alternate juror placed him twice in jeopardy is without merit.
The judgment and order are affirmed.
Crail, J., concurred.
Stephens, P. J.,
Dissenting.
I dissent. I am not convinced that the substitution of an alternate juror for a regular juror after the jury has had the case under submission and has considered it sufficiently to have submitted the individual opinions of its members to a vote upon the question of guilt is a trial by one jury within the meaning of the term, historically speaking, or as it is used in our Constitution.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 15, 1935.
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36 Cal.2d 67 (1950)
RALPH M. DAVENPORT, as Administrator, etc., et al., Appellants,
v.
THE DAVENPORT FOUNDATION (a Corporation) et al., Respondents.
Supreme Court of California.
Sept. 19, 1950.
R. R. Colby and Joseph D. Taylor for Appellants.
Allard, Brownsberger, Shelton & O'Connor, Joseph A. Allard, Jr., L. A. Shelton, Brady & Nossaman and Walter L. Nossaman for Respondents.
TRAYNOR, J.
On May 23, 1939, Levi M. Davenport, then 78 years of age, conveyed certain property to La Verne College, a corporation, as trustee. The trustee was given only ministerial duties. The management of the trust, to be known as the "Davenport Foundation" was committed to a board of directors of five named persons who were to constitute the board of trustees of the Foundation. The trust provided:
"Reserves"
"Before distribution is made of any of the net income reserves shall be set aside as follows to wit:"
"(1) 25% of the gross income for taxes, supervision and upkeep."
"(2) 12% of the gross income for replacements and betterments."
"Distribution of Income"
"All the net income available for distribution shall be paid in monthly installments, as follows:"
"(1) To the Trustor, Levi M. Davenport, the sum of Four Hundred Dollars ($400.00) per month, for and during the term of his natural life."
"(2) To La Verne College, a corporation, the sum of Three Hundred Dollars ($300.00) per month for the purpose of establishing a department of Philosophy and Religion, which department shall be established at the beginning of the school year 1939-1940."
"(3) To make suitable and proper provisions for the support and maintenance of J. R. Davenport, my brother, as his needs may require, not to exceed however, One Hundred Dollars ($100.00) per month, all of which shall be at the sole discretion of the Board of Trustees. In the event that any of my children should come to want, the Board of Trustees shall use a portion of the income to care for them in so far as their needs may require, all of which shall be solely within the discretion of the Board of Trustees. *70"
"(4) To American Bible Society, with its principal office at Bible House, New York City, the sum of Three Hundred Dollars ($300.00), per annum, payable annually at the discretion of the Board."
"(5) To the payment of annuities in such amounts as may be agreed upon between the Board of Trustees and the annuitants, who may add to this Trust."
"(6) All of the rest and residue of undistributed income shall be used by the Board of Trustees for such purposes consistent with the purposes of this trust as may be determined in the sole discretion of said Board of Trustees."
The trust then specified in detail the type of religious education that should be provided at La Verne College and the manner in which successors to the board of trustees should be selected. The trustees had to subscribe to certain enumerated religious beliefs, and the Elders Body of the Church of the Brethren was given power over their selection and removal. The declaration of trust conferred usual administrative powers on the board of trustees and also provided:
"Others may add to this Foundation, provided the additional income shall be used in maintaining the Doctrines and Principles of our church, as herein set forth, provided however, that the donor may reserve a portion of such income for himself or herself, or for relatives during his, her, or their lifetime. ..."
"In the event that any provision or provisions of this instrument are or are adjudged to be for any reason unenforceable the remainder hereof, disregarding such provisions, shall subsist and be carried into effect."
"This trust may not be revoked nor, except as otherwise herein provided may any of the corpus of the trust estate be withdrawn."
The Davenport Foundation was incorporated in 1940, and title to the property held by La Verne College that had been conveyed to it by the trustor was deeded to the Davenport Foundation.
Levi M. Davenport died January 6, 1947, and this action was then commenced by the administrator of his estate and his heirs to have the trust declared invalid and the property distributed to them. The complaint also stated a cause of action to have an alleged trust in a bank account declared invalid. This cause of action raises distinct issues and will be treated separately.
Plaintiffs attack the validity of the trust, first on the ground *71 that its provisions suspend the power of alienation of the trust corpus in perpetuity and that its purposes are not wholly charitable, and secondly on the ground that the declaration of trust was not intended to be operative during the lifetime of the trustor and is therefore void as an attempted testamentary disposition. Defendants contend, however, that the noncharitable provisions are operative only for a period measured by lives in being, that the declaration of trust is nontestamentary in character, and that in any event plaintiffs' cause of action is barred by the statute of limitations. At the close of plaintiffs' case the trial court granted a nonsuit as to the causes of action attacking the validity of the declaration of trust establishing the Davenport Foundation. It is necessary to determine, therefore, whether there is evidence in the record that would support findings in plaintiffs' favor on the question of the validity of the trust, and if so whether their action is barred by the statute of limitations.
The declaration of trust provided that Davenport should receive $400 per month and the use of his home rent free during his lifetime. The board of trustees were given power to consult with Davenport and absolved of any responsibility for loss resulting from following his requests, recommendations or advice. Plaintiffs do not contend that the reservations of these interests in the trustor would render the trust invalid as an attempted testamentary disposition (see, Tennant v. John Tennant Memorial Home, 167 Cal. 570, 576, 578-579 [140 P. 242]; Restatement, Trusts, 361). They contend, however, that there is evidence in the record that would support a finding that the trustor did not intend the declaration of trust to be operative at all during his lifetime. They rely on the facts that the trustees appointed Davenport manager of the Foundation and allowed him to deal with the property in the same manner after the declaration of trust was executed as he had before. These facts, they contend, will support an inference that it was understood between Davenport and the trustees that the trust was not to become operative during his lifetime. They rely on the rule that parol evidence is admissible to prove that a document was not intended to take effect until the happening of a condition precedent. (See, P. A. Smith Co. v. Muller, 201 Cal. 219, 222 [256 P. 411].)
[1] Plaintiffs' contention overlooks the fact, however, that *72 the declaration of trust constituted a tripartite agreement among Davenport, the board of trustees, and La Verne College. There is no evidence that La Verne College understood that the declaration of trust was not intended to be presently operative. It was a party to the declaration of trust and operated under its terms. It received the payments provided for it and used the money according to the directions set forth in the declaration of trust. Under these circumstances, any secret intent of Davenport and the trustees that the declaration of trust should not be presently operative would be immaterial. (Brant v. California Dairies, Inc., 4 Cal.2d 128, 133-134 [48 P.2d 13]; Watson v. Peyton, 10 Cal.2d 156, 158 [73 P.2d 906].) Accordingly, plaintiffs' contention that the trust is invalid because it was not intended to be operative during the trustor's lifetime cannot be sustained.
The parties agree that an irrevocable trust, although partially charitable, is invalid to the extent that under its terms the trustees may apply the income or corpus to noncharitable purposes after the lapse of the statutory period of lives in being or 25 years from its creation. (Civ. Code, 715, 716; Estate of Sutro, 155 Cal. 727, 734-736 [102 P. 920]; see, Restatement, Trusts, 398.) The only express statements of the purposes of the Davenport trust are found in the six paragraphs dealing with the distribution of income. The first of these, $400 per month to the trustor for life, presents no problem since the payments terminate on the trustor's death. The second and fourth are concededly charitable and hence valid, although the payments may continue beyond the statutory period. The parties' conflicting contentions with respect to the correct interpretation of the other paragraphs may be briefly summarized.
The third paragraph provides for payments to the children of the trustor. If the word "children" includes children who might be born after the creation of the trust, this paragraph would permit distribution of income for noncharitable purposes for longer than the statutory period. Defendants contend, however, that in view of the advanced age of the trustor the word "children" may properly be interpreted as referring only to then living children. (See, Restatement, Property, 243, illus. 4.)
The fifth paragraph provides for the payment of annuities to persons who may add to the trust. Plaintiffs contend that under this paragraph the trustees could use income from the original trust corpus to pay annuitants who later contributed *73 to the trust but who were not yet in being at the time of its creation. Defendants, on the other hand, contend that paragraph five is governed by the later provision providing that "Others may add to this Foundation, provided the additional income shall be used in maintaining the Doctrines and Principles of our church, as herein set forth, provided however, that the donor may reserve a portion of such income for himself or herself, or for relatives during his, her, or their lifetime." As so limited, they contend paragraph five only provides for the later creation of separate trusts whose noncharitable purposes will terminate within lives in being at the time of their creation.
Paragraph six provides that "All of the rest and residue of undistributed income shall be used by the Board of Trustees for such purposes consistent with the purposes of this trust as may be determined in the sole discretion of said Board of Trustees." Plaintiffs contend that under this paragraph income could be used for any purpose consistent with the purposes of the foregoing five paragraphs. They contend that payments to descendants or other relatives of the trustor born after the creation of the trust would be for a purpose consistent with payments to himself or his brother or his children. Thus under their interpretation the trustees would have power under paragraph six to devote income to noncharitable purposes for longer than the statutory period. Defendants, on the other hand, contend that when the instrument is read as a whole it is clear that the words "purposes consistent with the purposes of this trust" can properly be construed as meaning only purposes consistent with the religious purposes of the trust. They rely on the extensive provisions dealing with the type of religious education to be provided at La Verne and the religious qualifications required of the trustees. They also point out that income from the property of others who add to the trust must be used to "maintain the Doctrines and Principles of our church."
[2a] It would serve no purpose, however, to attempt to resolve these conflicting contentions from an examination of the declaration of trust standing by itself. The record contains relevant extrinsic evidence bearing on the question of interpretation that would support findings in favor of plaintiffs on at least some of their contentions. [3] The trust was administered by the trustees with the assistance of the trustor for eight years before his death. The practical construction *74 they placed upon the document is entitled to great weight in its interpretation. (Woodbine v. Van Horn, 29 Cal.2d 95, 104 [173 P.2d 17].) [2b] The most cogent evidence that a primary purpose of the trustor was to provide for descendants of his, whether or not they were living at the time the declaration of trust was executed, is the fact that an agreement was executed by the trustor and trustees whereby one of the trustor's grandchildren was to receive $100 per month for life after the death of her mother. Given full weight the execution of this agreement would sustain a finding that under paragraph six the trustees had power to devote income to noncharitable purposes after the statutory period had run. Granting a motion for nonsuit was therefore erroneous unless the severability clause may be given effect to eliminate the invalid powers or the statute of limitations bars plaintiffs' action. We have concluded that the severability clause may not be given such broad effect and that the statute of limitations does not bar the action.
[4] The trust provision that "In the event that any provision or provisions of this instrument are or are adjudged to be for any reason unenforceable the remainder hereof, disregarding such provisions, shall subsist and be carried into effect" states essentially the same rule as that laid down in Probate Code, section 101. That section provides that "Where [the testator's] intention cannot have effect to its full extent, it must have effect as far as possible." Under its terms the rule has been established that " 'valid trusts should not be disregarded because in the instrument creating them one particular invalid trust is declared, unless the latter is so inseparably blended with the others that it cannot be eliminated without destroying the main intent of the trustor, or working manifest injustice to the other beneficiaries.' " (Estate of Micheletti, 24 Cal.2d 904, 909 [151 P.2d 833].) It is assumed for the purposes of applying this rule in reviewing the judgment of nonsuit that under paragraph six the trustor intended the trustees to have discretion to apply the remainder of the income for the benefit of relatives of his, whether in being or not at the time of the creation of the trust, or for charitable purposes. The choice is stated to be in the sole discretion of the trustees. Under these circumstances the valid and invalid powers under paragraph six are inseparably blended and the whole paragraph must fail. (Estate of Sutro, 155 Cal. 727, 734-735 [102 P. 920]; Estate of Kline, 138 Cal.App. 514, 520 [32 P.2d 677]; Estate of *75 Vance, 118 Cal.App. 163, 164-165 [4 P.2d 977].) Since the nonsuit must therefore be reversed, no purpose would be served by attempting to determine at this time in the absence of findings based upon all the evidence the extent to which other provisions of the trust may be severable from the invalid provisions, if any. (See, Restatement, Trusts, 398.)
[5] To the extent that the express trust may be found to have failed because of an invalid restraint on alienation, La Verne College and its successor trustee, the Davenport Foundation, will have held the legal title to the property on a resulting trust for the trustor and his heirs. (See, Bainbridge v. Stoner, 16 Cal.2d 423, 428 [106 P.2d 423].) Defendants do not dispute the rules that ordinarily the trustee of a resulting trust is considered a voluntary trustee and that the statute of limitations does not begin to run in favor of a voluntary trustee until he repudiates the trust. (See, Berniker v. Berniker, 30 Cal.2d 439, 447-448 [182 P.2d 557].) They contend, however, that in this case the trustees were involuntary resulting trustees because they intended to hold under the express trust rather than under the resulting trust. They thus seek to distinguish the purchase money resulting trust cases where the trustee not only voluntarily holds in trust but intends to hold for the resulting beneficiary. It is generally held, however, that it is immaterial whether the trustee intends to hold for the resulting beneficiary or for the intended beneficiary of the invalid express trust. With respect to the statute of limitations, he is treated as a voluntary trustee so long as he does not repudiate the trust. (See, 3 Scott on Trusts, 409, pp. 2173-2174; 1 Nossaman, Trust Administration and Taxation, 117, pp. 111-113, and cases cited.) Any other rule would allow a trustor to evade prohibitions against restraint of alienation and perpetuities by establishing an invalid trust and merely refraining from attacking it until the statute of limitations had run.
Defendants contend, however, that the cases of Page v. Page, 143 Cal. 602 [77 P. 452], and Mackenzie v. Los Angeles Trust etc. Bk., 39 Cal.App. 247 [178 P. 557], establish the rule in California that in the case of a resulting trust arising because of the failure of an express trust, as distinct from the case of a purchase money resulting trust, no repudiation is necessary to start the statute of limitations running in favor of the trustee. The basis of the decision in the Page case is not entirely clear, and the statement relied upon in the *76 Mackenzie case is dictum. Neither of these cases has been followed by later decisions of the California courts that have consistently classified resulting trusts of both types as voluntary trusts for the purposes of the statute of limitations. (Steiner v. Amsel, 18 Cal.2d 48, 54-55 [112 P.2d 635]; Bainbridge v. Stoner, 16 Cal.2d 423, 428-429 [106 P.2d 423]; see, Ruddick v. Albertson, 154 Cal. 640, 643 [98 P. 1045].) Thus to the extent that they are inconsistent with the generally prevailing rule, the Page and Mackenzie cases must be deemed to have been overruled. Since defendants never repudiated the trust, plaintiffs' action is not barred by the statute of limitations.
[6] On the basis of facts pleaded in their answer defendants finally contend that plaintiffs are estopped by laches from bringing this action. They contend that La Verne College has seriously changed its position in reliance on the validity of the trust. This defense may not properly be considered in reviewing the judgment of nonsuit, and in any event it would be obviated if on retrial it were determined that the provisions for the benefit of the college are severable from the remainder of the trust.
Shortly before his death Davenport decided that he should make some provision for ten or twelve nephews and nieces. He considered the possibility of adding $10,000 to the Foundation and giving the trustees discretionary power to provide up to $1,000 for each nephew or niece if he or she should have special need for it. Instead, however, on November 23, 1946, he went to his bank with defendant Steinour, treasurer of the Foundation, to make arrangements with the bank to hold an account he had in such a way that Steinour could dispose of it after his death for the benefit of the nieces and nephews and the Foundation. An officer of the bank told Davenport that the bank could take no responsibility and suggested that Davenport open a joint account with a person whom he trusted to carry out his wishes. Davenport then transferred the money in his account into a joint account in his and Steinour's names. After he and Steinour left the bank, Davenport executed the following document:
"11-23-46"
"I am directing the Davenport Foundation Inc. to set apart funds sufficient to hold $1000.00 in the interest of the following: [List of 12 relatives of Davenport.]"
"This $1000.00 for each shall be set apart from funds *77 derived from a personal bank account now in the Security-First National Bank at 230 Ea. Colorado St. Pasadena, Calif."
"The purpose is to have this, $1000.00 to be a part of Foundation except that if any of these above named persons are in special need, he or she shall appeal for a portion to the $1000. to their interest, and the Foundation may allot to such person for their need from this personal fund."
"Signed L. M. Davenport."
The trial court did not grant a nonsuit on the cause of action by which plaintiffs sought to secure title to the joint bank account, but at the close of the trial made findings in defendants' favor. The court found that in opening the joint account and executing the directive Davenport created a trust of which Steinour was trustee. The beneficiaries were the named relatives during their lifetimes and thereafter the Davenport Foundation. The purpose of the trust was to provide funds for the named relatives if they should be in need and to add to the assets of the Foundation. The Foundation, however, filed a disclaimer of any interest in the fund.
[7] Plaintiffs contend that no trust was created because Davenport did not intend a trust to arise until after his death; that he merely appointed Steinour his agent to carry out his wishes after his death. They rely on the use of the future tense in the directive to show that no trust was created at the time of its execution. There was substantial evidence, however, to support an inference that by opening the joint account Davenport effectively created the trust. He had expressed his wish that the Foundation should immediately become the trustee. Opening the joint account was a substitute scheme adopted because of uncertainty over the tax consequences of giving the money directly to the Foundation. The use of the future tense in the directive is not inconsistent with the present creation of a trust of which Steinour was trustee. Steinour wished to have directions in writing as to what his duties should be. The directive indicated that the Foundation should become the trustee when the bank account was transferred to it. It does not compel the conclusion that no trust was to arise until that transfer was made. Accordingly, the trial court was justified in concluding that a trust arose when the joint bank account was opened.
[8] Plaintiffs also contend, however, that the remainder interest in the Foundation is void because the declaration of trust setting up the Foundation is invalid for the reasons *78 discussed above. They contend that because the remainder interest is void the whole trust in the bank account must fail and that the invalidity cannot be cured by the disclaimer of its interest by the Foundation. It is clear, however, that the interests created in the life beneficiaries are severable from the remainder. Thus even if the Foundation trust should be found to be wholly or partially invalid it would not affect the validity of the life interests. The life interests and the remainder are not inseparably blended. The invalid interest may be eliminated without destroying the main intent of the trustor or working injustice to other beneficiaries. Accordingly, under the rule set forth in Estate of Micheletti, 24 Cal.2d 904, 909 [151 P.2d 833], the trust in the bank account must be sustained to the extent it provides for the named beneficiaries.
Since defendant Davenport Foundation filed a disclaimer of any interest in the fund, the judgment should be modified to award the remainder interest in the joint bank account to the heirs at law of Levi M. Davenport. As so modified that part of the judgment adjudicating the disposition of the joint bank account is affirmed. In all other respects the judgment is reversed.
Gibson, C.J., Shenk, J., Edmonds, J., Carter, J., and Spence, J., concurred. Schauer, J., concurred in the judgment.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 22, 2007
No. 06-13793 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00048-CR-001-WLS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 22, 2007)
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
PER CURIAM:
A Middle District of Georgia jury found Cedric Williams guilty of attempted
escape (while confined in a local jail at the direction of the U.S. Marshal), in
violation of 18 U.S.C. § 751(a), and the district court sentenced him to prison for a
term of 60 months consecutive to his prior federal sentence. He now appeals his
conviction, contending that the prosecutor used all six of its peremptory challenges
to remove blacks from the jury pool contrary to the Supreme Court’s teaching in
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Although he acknowledges that the prosecutor proffered legitimate, non-
discriminatory reasons for striking jurors #15, #16, and #23 from the venire,
Williams asserts that these reasons failed to pass Batson muster. He contends that
the prosecutor’s use of peremptory challenges on jurors #15 and #23 because of
their youth was not a sufficiently substantial non-discriminatory reason. As to
juror #16, he argues that the stated non-discriminatory reason was itself
discriminatory because it was based on the juror’s religion. He did not raise this
point in the district court; instead, he presents it initially to us on appeal.
We review the district court’s resolution of a Batson challenge with great
deference. United States v. Allen-Brown, 243 F.3d 1293, 1296 (11th Cir. 2001).
“A district court's finding as to why a juror is excused is an issue of fact, and as
such, it will not be disturbed on appeal ‘unless it is clearly erroneous or appears to
have been guided by improper principles of law.’” Id. at 1297. The failure to make
2
a timely Batson objection results in a waiver of the claim. United States v.
Cashwell, 950 F.2d 699, 704 (11th Cir. 1992). Where the defendant makes a
timely Batson challenge to the striking of a particular juror—resulting in the
prosecution’s assertion of a non-discriminatory reason for strike – but, as here,
asserts on appeal a new reason why the challenge was unlawful, we review the
issue for plain error.
“The Batson three-step procedure for evaluating an objection to a
peremptory challenge is as follows: (1) the objector must make a prima facie
showing that the peremptory challenge is exercised on the basis of race; (2) the
burden then shifts to the challenger to articulate a race-neutral explanation for
striking the jurors in question; and (3) the trial court must determine whether the
objector has carried its burden of proving purposeful discrimination.” Allen-
Brown, 243 F.3d at 1297. Where, as here, the district court ruled on the ultimate
issue of discriminatory intent, the question of whether the prima facie showing was
made is moot. United States v. Houston, 456 F.3d 1328, 1336 (11th Cir. 2006).
Batson is violated even if only one peremptory strike resulted from discriminatory
intent. Cochran v. Herring, 43 F.3d 1404, 1412 (11th Cir. 1995).
The district court did not clearly err in finding that the prosecutor’s race-
neutral explanations for striking juror #15, #16, and #23 were legitimate and non-
3
discriminatory. The prosecutor proffered during jury selection that he had struck
juror #15 because of her youth and lack of worldly experience. It “is not
unreasonable to believe the prosecutor remained worried that a young person with
few ties to the community might be less willing than an older, more permanent
resident” to find Williams guilty. See Rice v. Collins, ___ U.S. ___, 126 S.Ct. 969,
975, 163 L.Ed.2d 824 (2006). The district court did not clearly err in determining
that this was a legitimate, non-discriminatory reason for striking #15 from the jury.
The primary reason the prosecutor proffered for having struck juror #23 was
that, during voir dire, he gave oral answers that contradicted his written answers on
his juror questionnaire, and then suggested that his juror questionnaire had been
forged in some manner. The district court did not clearly err in determining that
this was a legitimate, non-discriminatory reason to strike #23.
The prosecutor’s proffered race-neutral reason for striking juror #16 was that
she had expressed ambivalence about her ability to come to deliver a verdict
against a defendant. While this ambivalence arose out of #16’s religious beliefs,
Williams did not contend that the prosecutor’s reason was itself discriminatory.
The district court’s determination that this was a legitimate, non-discriminatory
reason to strike #16 cannot have been plain error because there is no controlling
case holding that a Batson violation occurs where a juror is struck because her
4
religious beliefs present difficulties in reaching a judgment in a case. See United
States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999).
We find no basis for reversing Williams’s conviction. It is accordingly
AFFIRMED.
5
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543 U.S. 1176
MCMILLIANv.UNITED STATES.
No. 04-8294.
Supreme Court of United States.
February 22, 2005.
1
C. A. 11th Cir. Certiorari denied. Reported below: 124 Fed. Appx. 642.
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891 N.E.2d 51 (2008)
DARNELL
v.
DARNELL.
Supreme Court of Indiana.
June 12, 2008.
Transfer denied. All Justices concur.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0364p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
HARRY MITTS,
-
Petitioner-Appellant,
-
-
No. 05-4420
v.
,
>
-
-
MARGARET BAGLEY, Warden,
-
Respondent-Appellee.
N
Filed: December 1, 2010
Before: MERRITT, MARTIN, and SILER, Circuit Judges.
_________________
ORDER
_________________
The court having received a petition for rehearing en banc, and the petition
having been circulated not only to the original panel members but also to all other active*
judges of this court, and less than a majority of the judges having favored the suggestion,
the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the
issues raised in the petition were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.
*
Judge Cook recused herself from participation in this ruling.
1
No. 05-4420 Mitts v. Bagley Page 2
SUTTON, Circuit Judge, with whom KETHLEDGE, Circuit Judge, joins,
concurring. This en banc petition illustrates a tension that occasionally arises on the
courts of appeals between two objectives: (1) deciding cases correctly and
(2) delegating to panels of three the authority to decide cases on behalf of the full court.
1. With all respect to the panel majority, this case was not decided correctly. At
issue was the validity of the following Ohio jury instruction given at the penalty phase
of a capital case:
[Y]ou must determine beyond a reasonable doubt whether the
aggravating circumstances, which the defendant, Harry D. Mitts, Jr., was
found guilty of committing in the separate counts, are sufficient to
outweigh the mitigating factors you find are present in this case.
When all 12 members of the jury find by proof beyond a reasonable
doubt that the aggravating circumstances in each separate count with
which Harry D. Mitts, Jr., has been found guilty of committing outweigh
the mitigating factors, if any, then you must return such finding to the
Court.
I instruct you as a matter of law that if you make such a finding, then you
must recommend to the Court that the sentence of death be imposed on
the defendant Harry D. Mitts, Jr.
...
On the other hand, [if] after considering all the relevant evidence raised
at trial, the evidence and testimony received at this hearing and the
arguments of counsel, you find that the state of Ohio failed to prove
beyond a reasonable doubt that the aggravating circumstances with
which the defendant Harry D. Mitts, Jr., was found guilty of committing
outweigh the mitigating factors, you will then proceed to determine
which of two possible life imprisonment sentences to recommend to the
Court.
Beck v. Alabama, 447 U.S. 625 (1980), does not invalidate this instruction. Beck
faulted Alabama for declining to give the jury a lesser-included option at the guilt phase
of a capital trial—for “not permitt[ing]” a jury “to consider a verdict of guilt of a lesser
included non-capital offense,” even “when the evidence would have supported such a
verdict.” Id. at 627. By “fail[ing] to give the jury the ‘third option’ of convicting on a
lesser included offense,” id. at 637, and leaving the jury only with “the choice of either
No. 05-4420 Mitts v. Bagley Page 3
convicting the defendant of the capital crime, in which case it is required to impose the
death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged
participation in the crime,” id. at 628–29, Alabama violated due process because it
“enhance[d] the risk of an unwarranted conviction,” id. at 637–38, and “interject[ed]
irrelevant considerations” into the guilt determination, id. at 642.
No such problem arises at the penalty phase of a capital trial. If an Ohio jury
convicts a defendant of a capital offense, the jury instructions, as one might expect, give
the jury two general options: life or death. This approach leaves no risk of an
“unwarranted conviction,” 447 U.S. at 638 (emphasis added), or any risk that the jury
will take into account considerations that are “irrelevant” to guilt, such as letting the
jury’s view of whether death or life is appropriate factor into its guilt or innocence
determination, id. at 640, 642. By the penalty stage in the case, no such concerns exist.
I thus agree with Judge Siler that Beck does not apply. Mitts v. Bagley, 620 F.3d 650,
664 (6th Cir. 2010) (Siler, J., concurring in part and dissenting in part).
Don’t take our word for it, however. Read Beck, which distinguished other
decisions on this ground. Explaining the difference between the Alabama statute and the
Georgia-post-Furman statute upheld in Gregg v. Georgia, 428 U.S. 153 (1976), Beck
says: “Under a statute like Georgia’s, where guilt is determined separately from
punishment, there is little risk that the jury will use its power to decide guilt to make a
de facto punishment decision.” 447 U.S. at 641 n.17 (emphasis added).
Even if we focus only on the penalty phase of the trial, Mitts complains that the
instructions “require the jury as a first step, before considering mercy, to make a
decision” about whether to recommend a death sentence. Mitts, 620 F.3d at 657. That
is not a fair reading of the instructions, however, which ask two questions: whether to
recommend a death sentence because the aggravating factors outweigh the mitigating
factors or whether, “[o]n the other hand,” to recommend one of two types of jail
sentences because the aggravating factors do not outweigh the mitigating factors. Even
if this were not the case, it would not help Mitts. Kansas v. Marsh allowed a State,
unlike Ohio, to require a jury to return a death sentence if the jury found the mitigating
No. 05-4420 Mitts v. Bagley Page 4
factors did not outweigh the aggravating factors. 548 U.S. 163, 171 (2008) (“So long
as the sentencer is not precluded from considering relevant mitigating evidence, a capital
sentencing statute cannot be said to impermissibly, much less automatically, impose
death.”).
One cannot sidestep these conclusions with labels, by calling the Ohio instruction
an “acquittal-first” jury instruction, Mitts Opposition to Rehearing En Banc at 2, or by
stamping “mandatory death penalty instruction” on the Ohio instruction, Mitts, 620 F.3d
at 655. That is wordsmanship. As the terms of the instruction show, it was not an
“acquittal-first” instruction. The jury received the instruction at the penalty phase of the
case, only after it had an opportunity to acquit the defendant and only after it chose not
to do so under a different set of instructions. Nor was it a “mandatory death penalty
instruction.” A penalty-phase instruction that presents two options to the jury—either
that the aggravating factors outweigh the mitigating factors (warranting a death-penalty
recommendation) or, “on the other hand,” that the mitigating factors outweigh the
aggravating factors (warranting a life sentence or less)—no more mandates death than
it mandates life.
A proper reading of Beck, however, is not Mitts’ only problem. This habeas
petition was filed after the Antiterrorism and Effective Death Penalty Act became law.
Pub. L. No. 104-132, 110 Stat. 1214 (1996). Both parties, as well as all four Article III
judges who have reviewed this case, agree that the AEDPA standard of review applies,
a requirement that lengthens and steepens Mitts’ climb. It is difficult enough to say that
Beck, a case about guilt-phase jury instructions and lesser-included offenses, applies to
a penalty-phase jury instruction that has nothing to do with lesser-included offenses and
convictions. But for Mitts to say that this instruction was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court,” 28 U.S.C. § 2254(d)(1), gives a bad name to the inventive mind. At
a minimum, it is reasonable to conclude that Beck does not apply to a penalty-phase jury
instruction, where the possibility of an “unwarranted conviction,” 447 U.S. at 638, does
not exist.
No. 05-4420 Mitts v. Bagley Page 5
One final straw: a 2010 decision of the Supreme Court upholds this instruction
in the face of the same argument. At issue in Smith v. Spisak, 130 S. Ct. 676 (2010), was
the following jury instruction, which in all relevant particulars mirrors the Mitts jury
instruction:
[Y]ou, the trial jury, must consider all of the relevant evidence raised at
trial, the evidence and testimony received in this hearing and the
arguments of counsel. From this you must determine whether, beyond
a reasonable doubt, the aggravating circumstances, which [Spisak] has
been found guilty of committing in the separate counts are sufficient to
outweigh the mitigating factors present in this case.
If all twelve members of the jury find by proof beyond a reasonable
doubt that the aggravating circumstance in each separate count outweighs
the mitigating factors, then you must return that finding to the Court.
.....
On the other hand, if after considering all of the relevant evidence raised
at trial, the evidence and the testimony received at this hearing and the
arguments of counsel, you find that the State failed to prove beyond a
reasonable doubt that the aggravating circumstances which [Spisak] has
been found guilty of committing in the separate counts outweigh the
mitigating factors, you will then proceed to determine which of two
possible life imprisonment sentences to recommend to the Court.
Spisak first challenged this instruction on the ground that it “required the jury to
consider in mitigation only those factors that the jury unanimously found to be
mitigating,” allegedly in violation of Mills v. Maryland, 486 U.S. 367 (1988). Spisak,
130 S. Ct. at 680. Because the instructions “focused only on the overall balancing
question,” not on whether “the jury must determine the existence of each individual
mitigating factor unanimously,” the Court held that these instructions did not “clearly”
violate Mills. Id. at 684.
The Court then rejected the Sixth Circuit’s invalidation of the jury instruction on
an alternative ground, the same ground presented here. Speaking for eight Justices,
Justice Breyer said:
We add that the Court of Appeals found the jury instructions
unconstitutional for an additional reason, that the instructions “require[d]
the jury to unanimously reject a death sentence before considering other
No. 05-4420 Mitts v. Bagley Page 6
sentencing alternatives.” 465 F.3d at 709 (citing Maples v. Coyle, 171
F.3d 408, 416-17 (CA6 1999)). We have not, however, previously held
jury instructions unconstitutional for this reason. Mills says nothing
about the matter. Neither the parties nor the courts below referred to
Beck v. Alabama, 447 U.S. 625 (1980), or identified any other precedent
from this Court setting forth this rule. Cf. Jones v. United States, 527
U.S. 373, 379-384 (1999) (rejecting an arguably analogous claim). But
see post, at 688–93 (Stevens, J., concurring in judgment). Whatever the
legal merits of the rule or the underlying verdict forms in this case were
we to consider them on direct appeal, the jury instructions at Spisak’s
trial were not contrary to “clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1).
130 S. Ct. at 684.
At least three relevant points emerge from this feature of Spisak, all problematic
for Mitts. One, Spisak considered the ground on which the panel relied here. Just as
Spisak considered whether it is improper for an instruction to “require[] the jury to
unanimously reject a death sentence before considering other sentencing alternatives,”
130 S. Ct. at 684, the Mitts panel considered whether it is improper for an instruction to
say that the jury “must . . . address[] first” a death sentence “before consideration is
given to life imprisonment,” 620 F.3d at 652. Two, Spisak found no support for the
argument. “We have not,” the Court held, “previously held jury instructions
unconstitutional for this reason.” 130 S. Ct. at 684. Three, invoking AEDPA, Spisak
concluded: “Whatever the legal merits of the rule or the underlying verdict forms in this
case were we to consider them on direct appeal, the jury instructions at Spisak’s trial
were not contrary to ‘clearly established Federal law.’” Id.
That Justice Stevens concurred separately in the judgment, concluding that this
jury instruction violates Beck but finding the error harmless, undermines rather than aids
Mitts’ argument. As the above quotation and its citation to Justice Stevens’ concurrence
establishes, the eight-member majority in Spisak found no support for Justice Stevens’
reading of the Beck rule (“We have not, however, previously held jury instructions
unconstitutional for this reason.”), and held that this reading did not provide a basis for
relief (“Whatever the legal merits of the rule . . . were we consider them on direct appeal,
No. 05-4420 Mitts v. Bagley Page 7
the jury instructions at Spisak’s trial were not contrary to ‘clearly established Federal
law.’”).
What was true for Spisak is true for Mitts. Same instructions, same argument,
same conclusion: No clearly established due process violation occurred. To see it
otherwise is to believe that Spisak himself retains the right to obtain relief under this
same argument. Yet I doubt that anyone thinks that is true.
2. All of this shows why I disagree with the panel majority’s assessment of the
merits of Mitts’ argument. What to do about it is another matter. While the Federal
Rules of Appellate Procedure provide one option—en banc rehearing—it is not a
preferred one. En banc rehearing is “not favored and ordinarily will not be ordered.”
Fed. R. App. P. 35(a). “The decision to grant en banc consideration is unquestionably
among the most serious non-merits determinations an appellate court can make, because
it may have the effect of vacating a panel opinion that is the product of a substantial
expenditure of time and effort by three judges and numerous counsel. Such a
determination should be made only in the most compelling circumstances.” Bartlett ex
rel. Neuman v. Bowen, 824 F.2d 1240, 1243–44 (D.C. Cir. 1987) (Edwards, J.,
concurring in the denial of rehearing en banc).
Most of the traditional grounds for full court review are not “compelling” here.
There is no circuit split. No other circuit to my knowledge (or for that matter to the
parties’ knowledge) has invoked this ground for relief or otherwise disagreed with it.
This is not an important federal question, at least under Appellate Rule 35(a), since the
Ohio courts stopped giving this instruction in 1996. See Ohio v. Brooks, 661 N.E.2d
1030 (1996). Although the State says that pending death-penalty habeas petitions
presenting this issue remain, it has not told us the number of them, presumably because
the schedule for seeking rehearing en banc leaves insufficient time to figure this kind of
thing out. There is no intra-circuit conflict. In Goff v. Bagley, 601 F.3d 445 (6th Cir.
2010), it is true, the panel treated the capital inmate’s Beck challenge as forfeited, id. at
459–60, and the Mitts panel chose to address the challenge under circumstances similar
to Goff. But that intra-circuit inconsistency goes not to the merits of the Beck argument
No. 05-4420 Mitts v. Bagley Page 8
but to a question that frequently calls for case-specific judgments that differ in degree
but not in kind and that rarely warrant en banc review by themselves. Nor is this a case
in which a large number of judges on the court have come to doubt the validity of our
own precedent.
That leaves one other possibility—that disagreement with the panel’s decision
on the merits warrants en banc review. In the run-of-the-mine case that ground rarely
suffices, else many cases a year would be decided in panels of 16, a rarely satisfying,
often unproductive, always inefficient process. No one thinks a vote against rehearing
en banc is an endorsement of a panel decision, as other judges have said and as my
explanation in this case confirms. “By declining to rehear a case, we do not sit in
judgment on the panel; we do not sanction the result it reached . . . [w]e decide merely
that . . . review by the full court is not justified.” Bartlett, 824 F.2d at 1244 (Edwards,
J., concurring in the denial of rehearing en banc).
If the goal is to produce consistent and principled circuit law, moreover, it is fair
to wonder whether a process that requires a majority of circuit judges to sit in judgment
of two or three colleagues does more to help than to deter that objective, particularly
when the central ground for review is mere disagreement on the merits. The judges of
a circuit not only share the same title, pay and terms of office, but they also agree to
follow the same judicial oath, making them all equally susceptible to error and making
it odd to think of the delegation of decisionmaking authority to panels of three as nothing
more than an audition. Saving en banc review for “the rarest of circumstances,”
particularly when the leading ground for review is disagreement on the merits, thus
“reflects a sound, collegial attitude,” one worth following here. Air Line Pilots Ass’n
Int’l v. E. Air Lines, Inc., 863 F.2d 891, 925 (D.C. Cir. 1988) (R.B. Ginsburg, J.,
concurring in the denial of rehearing en banc). Skepticism about the value of merits-
based en banc review reflects one other thing: We are not the only Article III judges
concerned with deciding cases correctly. Sometimes there is nothing wrong with letting
the United States Supreme Court decide whether a decision is correct and, if not,
whether it is worthy of correction.
No. 05-4420 Mitts v. Bagley Page 9
For these reasons, I concur in the denial of rehearing en banc.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
___________________________________
Clerk
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J-A05031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
F.P.M., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
F.P.M., III AND H.O.M.,
Appellee No. 2529 EDA 2015
Appeal from the Order Entered July 15, 2015
In the Court of Common Pleas of Bucks County
Civil Division at No(s): A06-13-61732-C-35
BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED April 21, 2016
Appellant, F.P.M. (“Paternal Grandfather”), the paternal grandfather of
M.M. (born March of 2009) (“Child”), appeals from the order entered on July
15, 2015, denying his petition for partial custody. Paternal Grandfather
argues the trial court erred in denying his petition for partial custody and
failing to find that partial custody was in the best interest of Child. We
vacate the order and remand for further proceedings.
In its opinion, the trial court has adequately set forth the relevant
factual and procedural history underlying the instant matter, and we adopt it
for purposes of this appeal. See Trial Court Pa.R.A.P. 1925(a) Opinion,
10/19/15, at 1-3.
In custody cases,
*Former Justice specially assigned to the Superior Court.
J-A05031-16
our scope is of the broadest type and our standard is abuse of
discretion. We must accept findings of the trial court that are
supported by competent evidence of record, as our role does not
include making independent factual determinations. In addition,
with regard to issues of credibility and weight of the evidence,
we must defer to the presiding trial judge who viewed and
assessed the witnesses first-hand. However, we are not bound
by the trial court’s deductions or inferences from its factual
findings. Ultimately, the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of
record. We may reject the conclusions of the trial court only if
they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted).
Additionally,
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (citation omitted).
Section 5328(c)(1) of the Child Custody Act requires a court to
consider the following factors in considering custody complaints filed by
grandparents and great-grandparents:
(i) the amount of personal contact between the child and the
party prior to the filing of the action;
(ii) whether the award interferes with any parent-child
relationship; and
(iii) whether the award is in the best interest of the child.
-2-
J-A05031-16
23 Pa.C.S. § 5328(c)(1)(i)-(iii). Section 5328(a) provides a non-exhaustive
list of factors that trial courts must consider when making a “best interests
of the child” analysis for a custody determination. See 23 Pa.C.S. §
5328(a)(1)-(16). Specifically, Section 5328(a) provides as follows:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or
member of the party's household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(3) The parental duties performed by each party on behalf of the
child.
(4) The need for stability and continuity in the child's education,
family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child's emotional needs.
-3-
J-A05031-16
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A
party's effort to protect a child from abuse by another party is
not evidence of unwillingness or inability to cooperate with that
party.
(14) The history of drug or alcohol abuse of a party or member
of a party's household.
(15) The mental and physical condition of a party or member of
a party's household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a) (bold in original).
In deciding Paternal Grandfather’s petition for partial custody, the trial
court was required to conduct a thorough analysis of the best interests of
Child. “All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.” J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis omitted).
Our review of the record confirms that the trial court did not address
the factors set forth in Section 5328(a). Rather, the trial court primarily
focused on the hostilities between the parties, as well as the fact that,
because Father is a fit parent, it is within Father’s right as a parent to decide
the manner in which Paternal Grandfather may visit Child. However, as this
Court has recently held:
-4-
J-A05031-16
“[I]n the recent past, grandparents have assumed
increased roles in their grandchildren's lives and our cumulative
experience demonstrates the many potential benefits of strong
inter-generational ties.” Hiller v. Fausey, 588 Pa. 342, 360,
904 A.2d 875, 886 (2006), cert. denied, 549 U.S. 1304, 127
S.Ct. 1876, 167 L.Ed.2d 363 (2007). Thus:
While acknowledging the general benefits of these
relationships, we cannot conclude that such a benefit
always accrues in cases where grandparents force
their way into grandchildren's lives through the
courts, contrary to the decision of a fit parent. In
contrast, however, we refuse to close our minds
to the possibility that in some instances a court
may overturn even the decision of a fit parent
to exclude a grandparent from a grandchild's
life[.]
Id. at 360, 904 A.2d at 886–87 (internal footnote omitted)
(emphasis added).
Additionally, in the context of custody proceedings,
“[h]ostilities between the [parties] are relevant only insofar as
they constitute a threat to the child or affect the child's welfare.”
Nancy E.M. v. Kenneth D.M., 316 Pa.Super. 351, 462 A.2d
1386, 1388 (1983) [(per curiam)].
K.T. v. L.S., 118 A.3d 1136, 1160-61 (Pa.Super. 2015) (citation omitted)
(emphasis in original).
Based on the aforementioned, we conclude the trial court did not
adequately explain the application of the Section 5328(a) factors to the
specific facts and circumstances of the instant case. Thus, we are
constrained to vacate the trial court’s order, and remand for application of
the Section 5328(a) best interest factors and further proceedings, if
necessary.
Order vacated. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
-5-
J-A05031-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
-6-
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IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
DENNIS WAY, ) 2 CA-CV 2002-0131
) DEPARTMENT B
Plaintiff/Appellant/Cross-Appellee, )
) OPINION
v. )
)
STATE OF ARIZONA, a body politic; )
ARIZONA DEPARTMENT OF )
TRANSPORTATION, an agency of the )
STATE OF ARIZONA, )
)
Defendants/Appellees/Cross-Appellants. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20015270
Honorable Ted B. Borek, Judge
AFFIRMED IN PART; VACATED IN PART
Monroe & Associates, P.C.
By Karl MacOmber Tucson
Attorneys for Plaintiff/Appellant/
Cross-Appellee
Terry Goddard, Arizona Attorney General
By Peter C. Gulatto Phoenix
Attorneys for Defendants/Appellees/
Cross-Appellants
P E L A N D E R, Presiding Judge.
¶1 Appellant Dennis Way appeals from the Pima County Superior Court’s order that
modified but otherwise affirmed an administrative law judge’s (ALJ) order suspending Way’s
driver’s license pursuant to A.R.S. § 28-1321, Arizona’s implied consent statute. We affirm that
part of the superior court’s order upholding the ALJ’s one-year suspension of Way’s driver’s
license, but vacate the superior court’s starting date of July 13, 2001, and reinstate the ALJ’s
starting date of August 28, 2001.
BACKGROUND
¶2 Although the facts are largely undisputed, we view them in the light most favorable
to sustaining the ALJ’s decision. See Tornabene v. Bonine ex rel. Arizona Highway Dep’t, 203
Ariz. 326, ¶2, 54 P.3d 355, ¶2 (App. 2002). On July 13, 2001, a police officer stopped Way’s
car and, after taking his driver’s license and conducting a preliminary investigation, arrested him
for driving under the influence of intoxicants (DUI). After transporting Way to a police
substation, an officer read to him admonitions from an “Admin Per Se/Implied Consent Affidavit”
form (the form). The admonitions essentially informed Way that Arizona law required him to
successfully perform tests of the officer’s choice to determine the amount of alcohol or drugs in
his body; that failure of the tests would result in the suspension of his driver’s license for at least
ninety days; and that refusal to submit to the tests would result in the suspension of his driver’s
license for at least one year. Way refused to take a breath test, stating that such a test was “an
invasion.”
¶3 Despite Way’s refusal, police did not issue him a copy of the form on the night of
his arrest. That form includes and serves as an order of suspension that notifies a DUI arrestee
of the impending license suspension and of his or her right to request a hearing to contest the
2
propriety of that suspension. The form also serves as a temporary driver’s permit. The arresting
officer eventually served Way with a copy of the form six weeks later, on August 28, 2001.
¶4 Way then requested a hearing pursuant to § 28-1321(K) to contest the propriety of
his license suspension. At the hearing, Way did not testify but argued that § 28-1321(D)(2)(b)
required police to issue the form to him when he was arrested and his license was taken. The
officer’s failure to do so, Way further argued, divested the Department of Transportation (DOT)
of jurisdiction and voided its suspension of his driver’s license. The ALJ rejected those arguments
and affirmed the August 28 order of suspension, stating that the requirements of § 28-
1321(D)(2)(b) “were eventually complied with, albeit belatedly.” The ALJ further found that,
“[a]lthough Mr. Way had surrendered his license on July 13th, technically his driving privileges
were not suspended at that point. He could have obtained a duplicate license through the [DOT]
and lawfully driven.”
¶5 On review pursuant to § 28-1321(M), the superior court agreed with the ALJ that
the officer’s failure to serve the order of suspension on Way the night of his arrest did not divest
DOT of jurisdiction to suspend Way’s driver’s license. But the court adjusted the termination date
for the suspension, reasoning as follows:
[C]onsidering [§ 28-1321] as a whole, its purpose is best served by
considering the language [of § 28-1321(D)(2)(b)] as directory. As
the statute provides for the suspension to be effective fifteen days
after 1) service of the order of suspension and 2) surrender of a
license, this Court concludes that failure to provide immediately
notice of suspension limits the allowable suspension to account for
the period [Way] had surrendered his license and was without a
temporary permit. Thus, this Court concludes that the ALJ
properly imposed a suspension, except as a matter of law the
suspension must be adjusted to account for the 46-day delay (July
13, 2001, to August 28, 2001) in providing notice of the suspension
to [Way], the period [Way] was without a temporary permit.
3
¶6 Way appeals from the superior court’s ruling, again arguing that DOT lacked
jurisdiction to suspend his license. 1 Way alternatively contends that the ALJ essentially suspended
his license for more than one year, which DOT may not do, and that the superior court lacked
authority to modify that ruling. The state cross-appeals, urging us to reinstate the ALJ’s order
because the superior court erred in concluding that suspension of Way’s license began on the date
he surrendered his driver’s license to police.
DISCUSSION
A. Interpretation of § 28-1321
¶7 “When reviewing an ALJ’s decision under the implied consent law, the superior
court is limited to determining whether the ALJ’s decision was ‘arbitrary, capricious, or an abuse
of discretion.’” Caretto v. Arizona Dep’t of Transp., 192 Ariz. 297, ¶7, 965 P.2d 31, ¶7 (App.
1998), quoting Edwards v. Arizona Dep’t of Transp./Motor Vehicle Div., 176 Ariz. 137, 140, 859
P.2d 760, 763 (App. 1993). “In turn, we review the superior court’s decision ‘to determine
whether the record contains evidence to support the judgment.’” Caretto, 192 Ariz. 297, ¶7, 965
P.2d 31, ¶7, quoting Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc.,
167 Ariz. 383, 386, 807 P.2d 1119, 1122 (App. 1990). In cases such as this that involve statutory
interpretation, however, we are not bound by the conclusions of the ALJ or the superior court but,
1
Way does not challenge the ALJ’s findings that police had reasonable grounds to believe
that he had been driving while under the influence of intoxicating liquor or drugs; that police had
arrested him for DUI and requested that he submit to a breathalyzer test; that he had refused to
submit to that test; and that he had understood the consequences of his refusal to submit to breath
testing. See A.R.S. § 28-1321(K).
4
rather, our review is de novo. See Tornabene, 203 Ariz. 326, ¶12, 54 P.3d 355, ¶12; Forino v.
Arizona Dep’t of Transp., 191 Ariz. 77, 79, 952 P.2d 315, 317 (App. 1997).
¶8 Section 28-1321(A), A.R.S., provides that any person operating a motor vehicle
in this state and arrested for DUI impliedly consents “to a test or tests of the person’s blood,
breath, urine or other bodily substance for the purpose of determining alcohol concentration or
drug content.” Subsections (D) and (F) of the statute provide, in pertinent part:
D. If a person under arrest refuses to submit to the test designated
by the law enforcement agency as provided in subsection A of this
section:
....
2. The law enforcement officer directing the administration
of the test shall:
(a) File a certified report of the refusal with the
department.
(b) On behalf of the department, serve an order of
suspension on the person that is effective fifteen
days after the date the order is served.
(c) Require the immediate surrender of any license or
permit to drive that is issued by this state and that
is in the possession or control of the person.
....
(e) If a valid license or permit is surrendered, issue a
temporary driving permit that is valid for fifteen
days.
(f) Forward the certified report of refusal, a copy of
the completed notice of suspension, a copy of any
completed temporary permit and any driver
license or permit taken into possession under this
section to the department within five days after
the issuance of the notice of suspension.
5
....
F. On receipt of the certified report of refusal and a copy of the
order of suspension and on the effective date stated on the order, the
department shall enter the order of suspension on its records unless
a written request for a hearing as provided in this section has been
filed by the accused person. If the department receives only the
certified report of refusal, the department shall notify the person
named in the report in writing sent by mail that:
1. Fifteen days after the date of issuance of the notice the
department will suspend the person’s license or permit,
driving privilege or nonresident driving privilege.
2. The department will provide an opportunity for a
hearing if the person requests a hearing in writing and
the request is received by the department within fifteen
days after the notice is sent.
¶9 As he did below, Way argues that § 28-1321(D)(2)(b) requires a police officer to
serve the order of suspension contemporaneously with a DUI arrestee’s surrender of his or her
driver’s license; that this requirement is mandatory; and that, therefore, an officer’s failure to
comply with that requirement renders void all subsequent proceedings to suspend the license. Way
is correct that if a statutory provision is deemed mandatory, failure to follow it renders all
subsequent proceedings relating to that provision illegal and void. See Department of Revenue v.
Southern Union Gas Co., 119 Ariz. 512, 513-14, 582 P.2d 158, 159-60 (1978); Forino, 191 Ariz.
at 80, 952 P.2d at 318. Conversely, if a statutory provision is interpreted as merely directory,
“the failure to follow it has no invalidating consequence.” Forino, 191 Ariz. at 80, 952 P.2d at
318; see also Department of Revenue.
¶10 Section 28-1321(D)(2)(b) states that an officer “shall . . . serve an order of
suspension” on a DUI arrestee who refuses to submit to a designated test. But “use of the word
6
‘shall’ does not automatically render a statute mandatory.” Forino, 191 Ariz. at 81, 952 P.2d at
319. “Our primary goal in interpreting statutes is to discern and give effect to legislative intent.”
Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶8, 19 P.3d 1241, ¶8 (App. 2001). “To discern
the legislature’s intent, we may consider the effect and consequences of alternative construction.”
Forino, 191 Ariz. at 80, 952 P.2d at 318. “Language that is mandatory in form may be deemed
directory when such construction best serves the legislative purpose.” Id.; see also HCZ Constr.,
Inc. v. First Franklin Financial Corp., 199 Ariz. 361, ¶11, 18 P.3d 155, ¶11 (App. 2001). 2
¶11 We find the issue presented here analogous to that in Forino. In that case, a DUI
arrestee had been issued an order of suspension and timely requested a hearing on his license
suspension. At that time, the pertinent statute provided that the license suspension hearing “shall”
be held no later than “thirty days after receipt of the request” for hearing. 1994 Ariz. Sess. Laws,
ch. 317, § 19. The DOT, however, failed to hold the hearing within thirty days of Forino’s
request. The court held that the statutory language was directory and, as such, the failure to hold
the license suspension hearing within the statutory time period did not divest DOT of jurisdiction
to conduct the hearing and ultimately suspend Forino’s driver’s license. Forino, 191 Ariz. at 81,
952 P.2d at 319.
2
In HCZ Construction, on which Way relies, the court emphasized that the legislature had
used “both ‘may’ and ‘shall’ in the same paragraph of [the] statute,” A.R.S. § 12-1191(A),
thereby supporting an inference that “the Legislature acknowledged the difference and intended
each word to carry its ordinary meaning.” 199 Ariz. 361, ¶15, 18 P.3d 155, ¶15. In contrast,
§ 28-1321(D) has no such dichotomy and, therefore, we do not infer that the legislature
necessarily intended to ascribe an ordinary meaning to the word “shall” in that statute. And,
unlike HCZ Construction, Way has not cited or furnished any legislative materials that support his
proffered interpretation of § 28-1321(D)(2)(b) as mandatory.
7
¶12 As in Forino, this case concerns the effect of a delay in the civil, administrative
license suspension hearing process that might result in an ALJ sustaining or reversing DOT’s
order of suspension. See § 28-1321(L) through (O). Specifically, at issue here is the effect of
failing to immediately provide written notice to a DUI arrestee, who has refused to submit to
testing, that his or her driver’s license will be suspended and that the arrestee has the right to
request a hearing to contest that suspension. Forino dealt with the effect of a failure to comply
with the statutorily imposed deadline for such a hearing. We fail to see why, as a matter of
statutory interpretation, a delay at the beginning of the suspension process mandates a different
result than that reached in Forino.
¶13 Numerous Arizona cases support the conclusion that mandatory language relating
to the timeliness of a hearing generally should be construed as directory and that any delays in the
process will not invalidate all subsequent proceedings.3 See Department of Revenue (four-month
delay in tax appeal did not require dismissal); Lake Havasu City v. Arizona Dep’t of Health Servs.,
202 Ariz. 549, 48 P.3d 499 (App. 2002) (four-year delay by director of Department of Health
Services in issuing decision did not void subsequent proceedings); Francis v. Arizona Dep’t of
Transp., Motor Vehicle Div., 192 Ariz. 269, 963 P.2d 1092 (App. 1998) (reaffirming Forino);
Watahomigie v. Arizona Bd. of Water Quality Appeals, 181 Ariz. 20, 887 P.2d 550 (App. 1994)
3
Courts of other jurisdictions follow this approach as well. See Outdoor Resorts/Palm
Springs Owners’ Ass’n v. Alcoholic Beverage Control Appeals Bd., 273 Cal. Rptr. 748, 751 (Cal.
Ct. App. 1990) (thirty-day limitation directory, and statutes or rules establishing time within which
decision must be rendered directory “unless a consequence or penalty is provided for failure to
do the act within the time commanded”); Meyers v. Maul, 671 N.Y.S.2d 848, 849 (N.Y. App.
Div. 1998) (failure of state agency to issue determination within thirty days of hearing as required
by statute did not divest agency of jurisdiction because statute was directory).
8
(administrative regulations governing contents of notice of appeal not invalid despite failure to
adopt such regulations within statutorily prescribed period); Traylor v. Thorneycroft, 134 Ariz.
482, 657 P.2d 895 (App. 1982) (failure to hold implied consent hearing within twenty days of
petitioner’s request as required by agency rule did not invalidate license suspension proceedings).
We find those authorities persuasive in this context as well.
¶14 Interpreting § 28-1321(D)(2)(b) as directory also finds support in the “general rule”
that “if a statute ‘states the time for performance of an official duty, without any language denying
performance after a specified time, it is directory.’” Forino, 191 Ariz. at 81, 952 P.2d at 319,
quoting Watahomigie, 181 Ariz. at 32, 887 P.2d at 562; see also Department of Revenue, 119
Ariz. at 514, 582 P.2d at 160; Lake Havasu City, 202 Ariz. 549, ¶7, 48 P.3d 499, ¶7; cf. Lavidas
v. Smith, 195 Ariz. 250, ¶¶18, 21, 987 P.2d 212, ¶¶18, 21 (App. 1999) (statute specified that
“insubstantial failure to comply” did not affect subsequent proceedings). Indeed, unlike § 28-
1321(D)(2)(c), which “[r]equire[s] the immediate surrender” of the driver’s license of a DUI
arrestee who refuses to submit to testing, § 28-1321(D)(2)(b) does not specify when a law
enforcement officer must serve an order of suspension on that person. Nor does § 28-1321
express a legislative intent to require dismissal of all subsequent proceedings if an officer fails to
serve the order of suspension immediately upon a DUI arrestee’s surrender of his or her driver’s
license.4 In view of those omissions from the statute, an interpretation of § 28-1321(D)(2)(b) as
mandatory rather than directory would be inconsistent with prior case law and the aforementioned
4
Way does not contend that the officer’s failure to issue a temporary driving permit to him
when he was arrested and surrendered his driver’s license invalidated all further proceedings or
rendered DOT’s suspension void. See § 28-1321(D)(2)(e). In any event, the same reasoning that
leads us to construe § 28-1321(D)(2)(b) as directory would also apply to subsection (D)(2)(e).
9
general rule. We must interpret statutory language in a way that avoids such inconsistent or
untenable results. See State v. Estrada, 201 Ariz. 247, ¶16, 34 P.3d 356, ¶16 (2001).
¶15 Additionally, to interpret § 28-1321(D)(2)(b) as mandatory would not give effect
to the legislative purpose behind the implied consent statute—removal of drunk drivers from the
roads. See Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685, 689 (1971);
Tornabene, 203 Ariz. 326, ¶15, 54 P.3d 355, ¶15. A mandatory interpretation would provide a
technical basis for avoiding an otherwise proper license suspension. See Traylor, 134 Ariz. at
483, 657 P.2d at 896. We thus agree with the superior court that the legislative purpose of the
implied consent law is best served by “considering the language [of § 28-1321(D)(2)(b)] as
directory.” Accordingly, we hold that the officer’s failure to serve an order of suspension on Way
contemporaneously with the surrender of his driver’s license did not invalidate all further
proceedings or otherwise divest DOT of jurisdiction to subsequently suspend his license. 5
B. Duration of License Suspension
¶16 In light of our holding, we next address the issue raised by both Way’s appeal and
the state’s cross-appeal: whether the one-year suspension of Way’s license started when he
surrendered his license on the date of his arrest or, rather, six weeks later when he actually
5
We acknowledge that the pertinent statutes, though directory, apparently contemplate that
if an officer takes the driver’s license of a DUI arrestee who has refused testing, the officer
generally should serve the order of suspension and issue the temporary driving permit at that time,
rather than needlessly delaying the suspension process. See Tornabene v. Bonine ex rel. Arizona
Highway Dep’t, 203 Ariz. 326, ¶15, 54 P.3d 355, ¶15 (App. 2002) (sanction of license suspension
for refusal to submit to test intended to quickly revoke licenses of dangerous drivers). But,
depending on the circumstances, such a simultaneous exchange might not be feasible or advisable
if, for example, the arrestee is substantially impaired, has been hospitalized, or is otherwise
incapacitated.
10
received the order of suspension.6 Because resolution of this issue also involves statutory
interpretation, our review is de novo. Tornabene; Forino.
¶17 Way contends that because a driver is required to physically possess a driver’s
license “at all times when operating a motor vehicle,” A.R.S. § 28-3169(A), and because failure
to do so constitutes a misdemeanor and may subject such a person to arrest, see A.R.S. § 28-
1595(B); State v. Bonillas, 197 Ariz. 96, ¶7, 3 P.3d 1016, ¶7 (App. 1999), his license was
effectively suspended when he surrendered it to police the night he was arrested. Consequently,
Way argues, the ALJ was without authority to order Way’s license suspended for one year from
the date he received the order of suspension because the maximum period DOT may suspend a
person’s driver’s license is one year. Although DOT generally may not suspend a license for more
than one year, see State v. Banicki, 188 Ariz. 114, 116, 933 P.2d 571, 573 (App. 1997), we
disagree with Way’s premise that his license was effectively suspended when he surrendered it
to the officer on July 13.
¶18 Section 28-3001(16), A.R.S., states that “‘[s]uspension’ means that the driver
license and driver’s privilege to drive a motor vehicle on the public highways of this state are
temporarily withdrawn during the period of the suspension and until application for reinstatement
is made.” (Emphasis added.) In the context of the implied consent statute, a person’s privilege
6
Although neither party raises the issue, it appears that both the ALJ and the superior court
incorrectly determined the effective date of suspension of Way’s driver’s license. As stated on the
order of suspension, pursuant to A.R.S. § 28-1321(D)(2)(b), the effective date of suspension is
fifteen days after service of the order of suspension. Therefore, at the earliest, Way’s license
would have been suspended either fifteen days after July 13, 2001, assuming the officer had served
the order of suspension on Way then, or fifteen days after August 28, 2001, the date Way actually
was served. This discrepancy, however, does not affect our analysis of the issues presented. And
we do not modify the ALJ’s order because the state does not seek that relief.
11
to drive is withdrawn fifteen days after a law enforcement officer serves or the DOT issues the
written order of suspension. § 28-1321(D)(2)(b), (F)(1), (G)(3), (L).7 Such written notice is
consistent with both A.R.S. § 28-3306(C), which requires that, “[o]n suspending or revoking the
license of a person . . . the [DOT] shall notify the licensee in writing,” and with A.R.S. § 28-
3318(A)(1), which states DOT “shall provide written notice to a person possessing a driver license
. . . of . . .[a] suspension, revocation, cancellation or disqualification of the license or privilege
to operate a motor vehicle.” Thus, contrary to Way’s argument, the statutes are clear that the
surrender of one’s driver’s license, by itself, is not enough to constitute a “suspension”; there
must also be a withdrawal of the “privilege to drive a motor vehicle,” § 28-3001(16), which must
be preceded by a written notice.8
¶19 Moreover, we find no support in the record for Way’s contention that he “suffered
the prejudice of having his driving privileges effectively suspended for a period of 6 weeks before
the Order of Suspension was finally served upon him.” Cf. Forino, 191 Ariz. at 81, 952 P.2d at
319 (DUI arrestee “had the burden to show prejudice” from delayed license suspension hearing).
As the state points out, the record fails to show that Way did not drive during the interim between
7
In accordance with those applicable statutes, the form itself also informs a DUI arrestee
that, “[p]ursuant to ARS [§] 28-1321, your Arizona driver license/permit . . . is suspended
effective 15 days from Date Served.”
8
Way asserts that “[t]aking a driver’s license prevents a person from driving legally.”
From a practical, common sense standpoint, we agree that a reasonable person might so believe.
Our analysis of the pertinent statutes, however, leads us to conclude that surrender of a driver’s
license does not necessarily equate to a license suspension for purposes of § 28-1321. And, as
discussed in ¶19, the record does not reflect any prejudice to Way from his having surrendered
his driver’s license to the officer without also receiving a temporary driver permit until later.
Accordingly, we leave for another day the more difficult issue, not presented here, of what effect
any such showing of prejudice might have on the license suspension process or the starting date
of the suspension.
12
surrender of his license and his receipt of the suspension order. Nor does the record reflect that
Way drove without a license during that period or was cited or arrested for his failure to possess
a driver’s license. Way’s argument that he would have been subject to arrest during the forty-six
days in question merely presents a hypothetical, moot question that we decline to address. See
Contempo-Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 227, 229, 696 P.2d 1376,
1378 (App. 1985) (“The court is not empowered to decide moot questions or abstract
propositions.”).
¶20 Finally, Way’s reliance on State ex rel. Collins v. Scott, 129 Ariz. 588, 589, 633
P.2d 397, 398 (1981), for the proposition that “the period of revocation [is] to run from the date
the license is surrendered,” is misplaced. In that case, a DUI arrestee had surrendered his license
on the same day he had acknowledged receipt of the order of revocation. Thus, the supreme court
did not need to reach the precise question raised here: whether the mere surrender of the driver’s
license constitutes a license suspension. Moreover, the statute at issue and analyzed in Scott,
former A.R.S. § 28-448, has since been renumbered and amended and, thus, was no longer in
effect when Way was arrested in July 2001. See A.R.S. § 28-3315; 1993 Ariz. Sess. Laws, ch.
178, § 21. In sum, absent any showing of prejudice, and because the statutes are clear that
surrender of a driver’s license, by itself, does not necessarily constitute or effectuate a withdrawal
of a driver’s privilege to operate a motor vehicle, § 28-3001(16), the superior court erred in
modifying the duration of Way’s license suspension.
DISPOSITION
¶21 For the foregoing reasons, we affirm the ALJ’s order suspending Way’s license for
one year commencing August 28, 2001, but vacate that part of the superior court’s ruling that
13
ordered Way’s one-year license suspension to begin on July 13, 2001. And, because Way has not
prevailed on appeal, we deny his request for an award of attorney’s fees pursuant to A.R.S. § 12-
348.
_______________________________________
JOHN PELANDER, Presiding Judge
CONCURRING:
_______________________________________
PHILIP G. ESPINOSA, Chief Judge
_______________________________________
WILLIAM E. DRUKE, Judge (Retired)
14
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222 Md. 106 (1960)
159 A.2d 353
CAMPBELL
v.
JENIFER ET AL. JENIFER ET AL.
v.
CAMPBELL (Two Appeals In One Record)
[No. 165, September Term, 1959.]
Court of Appeals of Maryland.
Decided March 17, 1960.
Motion for rehearing filed April 14, 1960.
Denied May 11, 1960.
*108 The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Robert S. Rody, with whom were Richard D. Payne and MacDaniel & Payne on the brief, for Joseph F. Campbell, one of the appellants.
Max Sokol, with whom were Dickerson, Nice & Sokol and Melvin J. Sykes on the brief, for James Martin Shaunessy, appellee.
Foster H. Fanseen, with whom were Ginsberg & Ginsberg and Hyman Ginsberg on the brief, for Bond Lumber Company and James Jenifer, appellees and cross-appellants.
HORNEY, J., delivered the opinion of the Court.
Joseph F. Campbell (plaintiff) claiming that he had been struck and injured by one or both of two motor vehicles while he was walking across North Avenue in Baltimore in broad daylight sued James M. Shaunessy (Shaunessy), the operator of the automobile involved in the accident, and James A. Jenifer (Jenifer) and the Bond Lumber Company (Bond), the operator and owner, respectively, of the truck also involved in the accident. When the Superior Court of Baltimore City granted a motion for a directed verdict and entered a judgment for costs in favor of Shaunessy and later granted a motion for and entered a judgment n.o.v. in favor of Jenifer and Bond, the plaintiff appealed from the entry of *109 the judgment n.o.v., though not the judgment for costs entered on the directed verdict, and Jenifer and Bond cross-appealed from the judgment for costs.
In the late afternoon of October 5, 1957, the plaintiff was crossing North Avenue about half way between Bolton Street and Linden Avenue when the accident occurred. In the center of the avenue there was a raised narrow concrete median strip or island dividing east-bound and west-bound traffic. The avenue was wide enough on each side to accommodate two lanes of moving traffic and a lane of parked vehicles. Prior to the accident the plaintiff had been in a bar on the south side of the avenue where, according to his testimony, he had three shots of whiskey and a large bottle of beer. He admitted feeling the drinks, but thought he knew what was going on when he undertook to cross the avenue from south to north. There was other evidence both that he appeared to be sober and that he was highly intoxicated.
Shaunessy, operating the automobile in a westerly direction in the lane nearest the north side of the median strip, noticed the plaintiff as he came through the intersection at Bolton Street and saw him again when he was from six to ten feet away, staggering or walking somewhat irregularly across the east-bound traffic lanes with his hands to his head. In an attempt to avoid striking the plaintiff, Shaunessy applied his brakes, slowed down and gradually came to a complete stop. The plaintiff, continuing on his course, stepped or staggered up on the median strip with one hand in front of his face. As the truck collided with the automobile, he (the plaintiff) appeared to wake up, threw up his hands, and as the automobile, which was propelled forward by the impact of the truck, came opposite the plaintiff, he fell on the left front fender. Jenifer, who was following in the truck in the same lane close behind the automobile, did not see the plaintiff, but frankly acknowledged seeing Shaunessy slow down and stop. He also admitted that as the automobile was slowing the truck collided with the rear end of the automobile. Besides the automobile and truck involved in the accident, there was both traffic ahead of them in the same lane and still other traffic traveling both east and west.
*110 The evidence as to how the accident actually happened was conflicting. In addition to the testimony that the plaintiff walked or fell into the left side of the automobile, there was testimony to the effect that the plaintiff was struck by the front of the automobile. Other testimony indicates that the striking occurred before the truck ran into the automobile. According to the testimony of the plaintiff, he did not step from the median strip until the automobile had come to a stop and, as he put it, until Shaunessy had ceded him the right of way. He further testified that it was the collision of the truck with the automobile which caused the automobile to move forward and strike him. But on cross-examination, although he remembered falling down and sliding in front of the automobile, the plaintiff admitted he did not know how the accident happened. In any event, he was thrown back across the median strip into the nearest east-bound traffic lane.
The principal question on these appeals is whether the trial court erred when it ruled (i) that there was no evidence of negligence on the part of Jenifer and Bond and (ii) that the plaintiff was guilty of contributory negligence. If we should rule that the court erred in granting the motion for a judgment n.o.v., there is the further question of whether the trial court should have also permitted the case to go to the jury with respect to Shaunessy.
In a case such as this, where the trial court has granted either a motion for a directed verdict, or a motion for a judgment n.o.v., this Court must, in determining whether the ruling was proper, resolve all conflicts in the evidence in favor of the plaintiff and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the plaintiff to recover. Or, as it is often stated, the evidence must be considered in the light most favorable to the plaintiff. Baer Brothers, Inc. v. Keller, 208 Md. 556, 119 A.2d 410 (1956); Sun Cab Co., Inc. v. Cialkowski, 217 Md. 253, 142 A.2d 587 (1958).
The plaintiff contends that the cumulative effect of the evidence, if it had been construed in a light most favorable to *111 him,[1] was sufficient for the jury to consider the question of negligence in the case against Jenifer and Bond. We do not agree.
Of course, a pedestrian who crosses a street between crossings is not negligent per se, but, in so doing, he must use the greatest of care for his own protection. Henderson v. Brown, 214 Md. 463, 135 A.2d 881 (1957). Thus, the law required the plaintiff in this case to accommodate himself to the vehicular traffic between street crossings in the moving traffic lanes on North Avenue and to refrain from disputing the right of way with any of such traffic. Love v. State, Use of Nelson, 217 Md. 290, 142 A.2d 590 (1958); Henderson v. Brown, supra. Yet, it appears that the plaintiff did none of the things a rational man would have done under similar circumstances to protect himself from injury, which strongly suggests that he might not have been as sober as he thought he was. He admitted that he did not see the truck which was following the automobile at a distance estimated to be from ten to fifteen feet, and apparently, other than the automobile which came to a stop, he did not see any of the other traffic which, according to the testimony, was also moving in both directions.
Under such circumstances, even if we assume, without deciding, that Jenifer and Bond were guilty of negligence in that they caused the truck to propel the automobile forward so as to strike and injure the plaintiff, we think there is not the slightest doubt that the plaintiff was contributorily negligent as a matter of law when he elected to leave a place of safety for a position of peril and contest the right of way of the vehicular traffic then between street crossings in the west-bound lanes of the avenue. See Dean v. Scott, 196 Md. 70, 75 A.2d 83 (1950), Jackson v. Forwood, 186 Md. 379, 47 A.2d 81 (1946) and Jendrzejewski v. Baker, 182 Md. 41, 31 A. *112 2d 611 (1943) [holding that walking from a place of safety into a position of peril constitutes contributory negligence as a matter of law]. And see Love v. State, Use of Nelson, supra, and Henderson v. Brown, supra [holding that the law requires a pedestrian to know he cannot dispute the right of way with vehicular traffic between intersections]. See also Code (1957), Art. 66 1/2, sec. 236 [vehicles have right of way between street crossings in towns and cities].
Furthermore, even if the plaintiff was so naive as to believe that Shaunessy had yielded his right of way on one of the busiest thoroughfares in Baltimore to accommodate the plaintiff, he certainly had no right to assume that other vehicular traffic on the avenue would do likewise. The case of Ebert Ice Cream Co. v. Eaton, 171 Md. 30, 187 Atl. 865 (1936), relied on by the plaintiff to support the contrary, is clearly distinguishable on the facts. There, the jaywalker, who had observed the moving traffic while crossing the two-way street in front of it, left a potential position of peril as he crossed the center line of the street on to what might have been a place of safety if the ice cream truck had not pulled to the left of the center of the street and attempted to pass when the way ahead was not clear. Here, the jaywalker, who had not seen any of the moving traffic, left a place of absolute safety on the median strip and walked or fell into a position of peril when he attempted to cross the remainder of the six-lane avenue against the moving traffic which had the right of way.
We have repeatedly held as was stated in Love v. State, Use of Nelson, supra, at p. 297, that "a pedestrian crossing a street between intersections is guilty of contributory negligence if he fails to look for approaching motor vehicles, or, if having looked, he fails to see such a vehicle, and so fails to guard against being struck by it." This rule of law is applicable here. The judgment n.o.v. in favor of Jenifer and Bond will therefore be affirmed.
With this holding it is conceded that we need not consider the question concerning the judgment for costs in favor of Shaunessy, and that judgment will likewise be affirmed.
Judgments affirmed, the appellant Campbell to pay the costs.
NOTES
[1] Such as that the plaintiff, though he had been drinking, was in control of himself as he walked across the avenue that he stopped on the median strip until the automobile slowed down and stopped that the automobile thereby ceded him its right of way and that he was struck down as he was passing in front of the automobile as a result of the truck colliding with the automobile and propelling it forward.
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403 F.Supp.2d 1305 (2005)
KOYO CORPORATION OF U.S.A., Plaintiff,
v.
UNITED STATES, Defendant.
Slip Op. 05-152. Court No. 02-00800.
United States Court of International Trade.
December 1, 2005.
*1306 Sidley, Austin, Brown & Wood LLP (Richard M. Belanger and Leigh Fraiser), Washington, DC, for Plaintiff.
Peter D. Keisler, Assistant Attorney General, Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (James A. Curley), for Defendant.
OPINION
RESTANI, Chief Judge:
This matter is before the court on cross motions for summary judgment. The essence of the dispute is the failure of Customs[1] to liquidate various of plaintiff's entries of merchandise at the lowered rate of duties determined as a result of antidumping duty proceedings. Rather, Customs liquidated the entries at the original higher rates, which plaintiff was required to claim at entry and make deposit therefor while the antidumping proceedings were ongoing. The government alleges that as a result of its own failure to obey the public notice of reduced duties and liquidation instructions of the United States Department of Commerce ("Commerce"), it may obtain the benefit of the "deemed liquidation" statute, 19 U.S.C. § 1504,[2] which gives Customs a set period of time to liquidate an entry and which, absent liquidation during that time period, treats the entry as having been liquidated at the entered rate. Thus, the government asserts *1307 it may retain the monies deposited at the erroneous entered rate. The court disagrees.
FACTS
Before the court are various entries of roller and ball bearings made in 1990 and 1991. At the time of entry, antidumping duty orders issued by Commerce were in effect. The orders required duty deposits to cover estimated antidumping duties between 48 and 74 percent ad valorem. The importer had no choice as to the rate of antidumping duty it was required to assert upon entry pursuant to Commerce's orders. Because administrative reviews and litigation ensued, liquidation of the entries was suspended. The litigation was largely successful for importers and the rates were lowered substantially. In most cases, the antidumping duty rates were finalized at under ten percent. In 1998, Commerce began issuing instructions to Customs to liquidate the entries at the lower rates. Some months earlier notices of the results of the litigation were published and suspension of liquidation was lifted. Customs, however, did not comply with the published notices or Commerce's instructions to liquidate promptly at the lower rates. In fact, Customs did nothing. Approximately one year later, Koyo Corporation of U.S.A. ("Koyo"), the plaintiff herein, contacted Customs about five of its entries. Customs immediately found these entries to have been "deemed liquidated," and Customs posted an "active" liquidation at the original higher antidumping duty rate based on the "deemed liquidation."
Another batch of entries were similarly liquidated some months later. As to the final entry, once again, contact by the importer triggered the final manual liquidation at the higher rate based on the earlier "deemed liquidation." Koyo protested the liquidations, which protests were denied. This action followed.
JURISDICTION
The court has jurisdiction under 28 U.S.C. § 1581(a), as plaintiff timely protested all of the published liquidations at issue and then timely filed suit in this court.[3]
DISCUSSION
The issue here is whether the deemed liquidations, on which defendant relies, were actually proper liquidations based on 19 U.S.C. § 1504, in which case the later consistent active liquidations will stand. On the other hand, if the entries were not properly "deemed liquidated," then plaintiff's protests of the posted liquidations should have resulted in reliquidation at the lowered rates resulting from the lengthy administrative proceedings and subsequent litigation.
Congress initially enacted § 1504(d) to limit the amount of time which Customs could take to liquidate entries. The time limit imposed was four years. Customs Procedural Reform and Simplification Act, *1308 Pub.L. No. 95-410, § 209(a), 92 Stat. 888 (1978). In so doing, Congress "sought to increase certainty in the customs process for importers, surety companies, and other third parties. . . ." Int'l Trading Co. v. United States, 412 F.3d 1303, 1310 (Fed. Cir.2005) (internal citations omitted). The statue also imposed a ninety-day time limit for Customs to liquidate entries after removal of suspension of liquidation of those entries, otherwise the entries would be deemed liquidated at the rate asserted by the importer at the time of entry. The statute had an unfortunate anomaly that made deemed liquidation available for entries for which removal from suspension occurred within the four-year period, but not for entries for which removal from suspension occurred even one day after the four-year time limit. In those circumstances, Customs had an unlimited amount of time in which to liquidate entries.
Congress corrected this anomaly in 1993, making deemed liquidation available to all entries regardless of when removal from suspension occurs. North American Free Trade Agreement Implementation Act, Pub.L. No. 103-182, § 641, 107 Stat. 2057, 2204. The 1993 amendment also increased the deemed liquidation period from ninety days to six months after removal of suspension. In International Trading Co., 412 F.3d at 1310, the court noted that a primary motivation behind the 1993 amendment "was to remove the government's unilateral ability to extend indefinitely the time for liquidating entries."[4]
The requirements for deemed liquidation following antidumping proceedings were set forth in Fujitsu.
Thus, in order for a deemed liquidation to occur, (1) the suspension of liquidation that was in place must have been removed; (2) Customs must have received notice of the removal of the suspension; and (3) Customs must not liquidate the entry at issue within six months of receiving such notice.
283 F.3d at 1376. Under 19 U.S.C. § 1504(d), if these conditions are met, the entry is finally liquidated at the entered rate. Almost all of the cases dealing with this statute have involved importers' attempts to obtain the benefit of the statute by securing the finality of lower entry rates, but the issue here is whether the statute may also be used to deprive importers of later determined lower rates.
The government's interpretation of the statute is that the words are clear. In essence, it states that it is immaterial if the government benefits from its own neglect or other wrongdoing. The words of the statute control, and because it inadvertently failed to liquidate on time, it may retain any money collected. The government argues further that the goal of the statue was to achieve finality, and that goal is met as soon as the six-month period elapses. This is absurd. The goal of the statute was to achieve finality so that importers would not be hit with unexpected duties years later, not so that Customs would profit by intentional wrongdoing or even mere inattention to duty.
*1309 The Federal Circuit explained in detail in Cherry Hill, 112 F.3d at 1559, that the purpose of the statute is not simply finality as such, but finality to prevent later harm to a particular class of persons, i.e., importers and their sureties.
The "deemed liquidated" provision of section 1504 was added to the customs laws in 1978 to place a limit on the period within which importers and sureties would be subject to the prospect of liability for a customs entry. See St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 767 (Fed.Cir.1993); Ambassador Div. of Florsheim Shoe v. United States, 748 F.2d 1560, 1565 (Fed. Cir.1984); Pagoda Trading Co. v. United States, 617 F.Supp. 96, 99 (CIT 1985), aff'd, 804 F.2d 665 (Fed.Cir.1986); S.Rep. No. 95-778, at 31-32 (1978), reprinted in 1978 U.S.C.C.A.N. 2211, 2242-43 ("Under the present law, an importer may learn years after goods have been imported and sold that additional duties are due, or may have deposited more money for estimated duties than are actually due.").
The purpose of section 1504 was to bring finality to the duty assessment process. As the Commissioner of Customs said in his statement to the House committee that reported out the 1978 amendments to the Tariff Act, the provision that became section 1504 was designed to "eliminate unanticipated requests for additional duties coming years after the original entry." Customs Procedural Reform Act of 1977: Hearings on H.R. 8149 and H.R. 8222 Before the Subcomm, on Trade of the House Comm. on Ways and Means, 95th Cong., 1st Sess. 56 (1977) (statement of Robert E. Chasen, Commissioner of Customs). The effect of a "deemed liquidation" is therefore to fix the liability of the importer or surety and, once that liability is discharged, to terminate the government's cause of action for the entry in question. Thus, a "deemed liquidation" under section 1504 has the same effect as the expiration of the time for reliquidation in [United States v. Sherman & Sons Co., 237 U.S. 146, 35 S.Ct. 520, 59 L.Ed. 883 (1915)]: it subjects any further collection efforts by the government in connection with the same entry to dismissal for failure to state a claim upon which relief can be granted.
The same principle was recited in Cemex, S.A. v. United States, 279 F.Supp.2d 1357 (CIT 2003), aff'd, 384 F.3d 1314 (Fed. Cir.2004) (finding domestic parties have no right to challenge a deemed liquidation by administrative protest).
The purpose of [19 U.S.C. § 1504(d)] was to give importers finality as to their duty obligations by providing for deemed liquidation at the rate claimed by the importers, unless actual liquidation occurred within specified time limits. See Int'l Trading Co. v. United States, 281 F.3d 1268, 1272 (Fed.Cir. 2002) . . .; see also United States v. Cherry Hill Textiles, Inc., 112 F.3d 1550, 1559 (Fed.Cir.1997) (The "`deemed liquidated' provision of section 1504 was added to the customs laws in 1978 to place a limit on the period within which importers and sureties would be subject to the prospect of liability for a customs entry.").
. . . . .
As indicated, 19 U.S.C. § 1504(d) was meant to benefit importers. Therefore, it fits neatly into the Customs protest of liquidation scheme. If a deemed liquidation or any liquidation is adverse to an importer, it has its protest remedies under 19 U.S.C. § 1514 and access to judicial review under 28 U.S.C. § 1581(a). Domestic parties have no specific avenue of relief for improper liquidation. The *1310 Byrd Amendment[5] might have been accompanied with a new administrative remedy provision for domestic parties, but it was not.[6]
Cemex, 279 F.Supp.2d at 1360, 1362 (footnotes omitted).
Thus, the goal of § 1504 was not to allow Customs to ignore the outcome of years of litigation and to thumb its nose at Commerce and the courts. Customs cannot ignore Federal Register notices or throw liquidation instructions in a drawer and wait for six months to elapse from the time of public notice of new rates, so that it thereby collects duties to which it is not entitled. When the literal words of a statute create an absurd result, such a literal interpretation must be rejected. See Holy Trinity Church v. United States, 143 U.S. 457, 460, 12 S.Ct. 511, 36 L.Ed. 226 (1892).
The government argues, however, that the statute is not absurd. It says finality is achieved and plaintiff had ways to protect itself from its inattention. Defendant, however, can identify no way provided by statute or regulation for an importer to do that.
If the statutory scheme for deemed liquidation works as defendant alleges, the importer who sued as soon as "deemed liquidation" by operation of law occurred would have no remedy because the deemed liquidation, being final, could not be undone. See Cherry Hill, 112 F.3d at 1559. If the importer sued earlier, suspecting the government might not act timely, its suit would not be ripe. The government is expected to act in a regular manner and obey statutes. See United States v. Chem. Found., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) ("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.") (citations omitted).
Mandamus is another remedy proposed by the government, but how does one obtain mandamus before the failure to carry out the statute has occurred? Mandamus is available for clear violations of the law. See Maier v. Orr, 754 F.2d 973, 983 (Fed. Cir.1985) ("Before a writ [of mandamus] may properly issue, three elements must exist: (1) a clear right in the plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.") (citations omitted). If the six months period has not elapsed, Customs has not yet violated the law.
Finally, the government faults plaintiff for not reminding it earlier to do its duty. Of course, there is no statutory or regulatory requirement that an importer petition Customs during the six-month period to heed the Federal Register notice of the changed rates or the instructions from Commerce to liquidate properly. Furthermore, there is no formal permissive process to accomplish this. Customs has no obligation to comply with any request at any particular time, and importers have no rights to contest a failure to comply with such a request.
While the Federal Circuit noted in Cemex that domestic parties seeking to enforce *1311 higher duties could take some steps to increase the likelihood that entries would be properly liquidated, that fact did not determine the holding of the case. 384 F.3d at 1325. That is, Congress simply did not give domestic parties liquidation enforcement rights through protest procedures. Particularly before the Byrd Amendment (providing a mechanism for distributing unfair trade duties to domestic parties), domestic interests and Customs' interest in collecting duties were aligned, and they remain fairly well aligned now. Perhaps Congress found it unnecessary in such circumstances to give domestic parties a private enforcement right. Not so as to importers. Their interests are counter to those of Customs, and they therefore maintain the right to challenge duties assessed against them through a timely protest of liquidation. See 19 U.S.C. § 1514 (West Supp.2005).
In sum, the court cannot accept an interpretation of 19 U.S.C. § 1504(d) which encourages Customs simply to forget or refuse to liquidate and to ignore a court victory favoring an importer as to antidumping duties. The incentive would be perverse and the opposite of what Congress intended. Congress wished to spur on Customs to liquidate timely. This distinguishes this matter from all other cases in which § 1504 may produce difficult results, such as Cemex. The court is not substituting its notions of good policy for those of Congress. It is interpreting the statute to do what Congress intended, not the opposite. Congress did not intended to encourage prompt liquidation, not delayed liquidation. Congress did not intend to urge Customs to sit back, not obey its directions, Commerce's directions, and the courts' directions, and thereby retain funds to which it no longer had valid claim.
Accordingly, Customs must reliquidate the entries at hand at the appropriate duty rates, as instructed by Commerce, and refund the duties owed with interest as required by law. Judgment will be entered accordingly.
NOTES
[1] The Bureau of Customs and Border Protection ("Customs") is within the United States Department of Homeland Security.
[2] The applicable version of 19 U.S.C. § 1504 (Supp.1993) reads in pertinent part:
(a) Liquidation
Unless an entry is . . . suspended as required by statute or court order, an entry of merchandise not liquidated within one year from:
(1) the date of entry of such merchandise;
. . . . .
shall be deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer of record.
(d) Removal of suspension
When a suspension required by statute or court order is removed, the Customs Service shall liquidate the entry within 6 months after receiving notice of the removal from the Department of Commerce, other agency, or a court with jurisdiction over the entry. Any entry not liquidated by the Customs Service within 6 months after receiving such notice shall be treated as having been liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record.
[3] There is a question as to whether one can protest a bare "deemed liquidation," which occurs by operation of law. See United States v. Cherry Hill Textiles, Inc., 112 F.3d 1550, 1560 (Fed.Cir.1997) (holding in government enforcement action deemed liquidation in favor of the importer is a final, unalterable event, which cannot be undone by a later "liquidation"). As in Cherry Hill, here there was an "actual" liquidation following the purported "deemed" liquidation, but in contrast to Cherry Hill, the later "liquidation" did not purport to alter the "deemed liquidation." As required by Fujitsu General America, Inc. v. United States, 283 F.3d 1364, 1375-76 (Fed. Cir.2002), plaintiff, as an importer seeking a refund, protested the "actual liquidations." Presumably, if protest is not available an importer could file an action under the court's residual jurisdiction, 28 U.S.C. § 1581(i) to challenge a non-qualifying "deemed liquidation."
[4] Note that, following the signing one year later by the United States of the Antidumping Agreement of the Uruguay Round Agreements, Congress again amended § 1504(d), this time to bring the statute into conformity with obligations imposed by the Antidumping Agreement. See Uruguay Round Agreements Act, Pub.L. No. 103-165, 108 Stat. 4809 (1994). Congress described the 1994 amendment as a "conforming amendment," and did not indicate any change in the intent behind the deemed liquidation statute. See § 220(c), 108 Stat. at 4865.
[5] The Byrd Amendment, which allows members of the domestic industry to claim portions of the antidumping duties collected in a particular year, is found in the Continued Dumping and Subsidies Offset Act of 2000, 19 U.S.C. § 1675c (2000) (amending the Tariff Act of 1930), enacted as part of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, Pub. L No. 106-387, § 1003, 114 Stat. 1549 (2000).
[6] See supra note 3 regarding challenge to purported "deemed liquidation" unaccompanied by an "active" liquidation.
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90 B.R. 274 (1985)
In the Matter of MICHIGAN MASTER HEALTH PLAN, INC., Debtor.
Sheila SOLOMON, Trustee for Michigan Master Health Plan, Inc., Plaintiff,
v.
ST. JOSEPH'S MERCY HOSPITAL, Defendant.
Bankruptcy No. 82-00395-G, Civ. No. 84-CV-4404-DT, Adv. No. 84-0027-G.
United States District Court, E.D. Michigan, S.D.
February 28, 1985.
*275 Wallace M. Handler, Birmingham, Mich., for plaintiff.
Willa C. Hanson, Bloomfield Hills, Mich., for defendant.
ORDER
COHN, District Judge.
This is an appeal from an order of the Bankruptcy Court entered September 14, 1984 dismissing this bankruptcy case for lack of subject matter jurisdiction on the grounds that a health maintenance organization is an insurance company under Michigan state law and therefore excluded from being a debtor under 11 U.S.C. § 109(b)(2). 46 B.R. 642. Because of the uncertain status of a health maintenance organization under Michigan state law the Court solicited the views of the Commissioner of Insurance of Michigan. See Exhibit A. The Commissioner has responded through the Attorney General of Michigan, see Exhibit B, taking the position that as of the date the petition in this case was filed a health maintenance organization certainly was not an insurance company under Michigan state law and is likely still not an insurance company. The reasoning of the Attorney General cannot be improved upon. The order of September 14, 1984 is REVERSED.
SO ORDERED.
EXHIBIT A
January 28, 1985
Nancy Baerwaldt
Commissioner of Insurance
Insurance Bureau
1048 Pierpont
Lansing, MI 48909
RE: In The Matter Of Michigan Master
Health Plan, Inc., Debtor
Case No. 84-CV-4404-DT
Dear Commissioner Baerwaldt:
Michigan Master Health Plan, Inc., a health maintenance organization, was adjudicated bankrupt in this Court in 1982. An appeal is now pending on my docket from an order of the Bankruptcy Court, dated September 19, 1984 (copy enclosed), in which the proceedings were dismissed on the grounds that a health maintenance organization is an insurance company under Michigan law and, therefore, a federal court in bankruptcy lacks jurisdiction over such an organization. I invite you to present your views on the status of Michigan Master Health Plan, Inc. under Michigan law as an insurance company and its exemption as a debtor under the federal bankruptcy law.
As the record now stands if I were to affirm the order of the Bankruptcy Court, the Bankruptcy Court would be obligated to return the assets of Michigan Master Health Plan, Inc. to its directors since the State has not asserted jurisdiction over it under M.C.L.A. § 333.21027(3). If you have any questions please advise. A copy of this letter is being sent to the Attorney General.
Yours truly,
Avern Cohn
*276 CC: Honorable Frank J. Kelley, Attorney General
Wallace M. Handler, Esq.
William C. Hanson, Esq.
EXHIBIT B
February 5, 1985
Hon. Avern Cohn
District Judge
United States District Court
Eastern District of Michigan
219 Federal Building and U.S. Courthouse
Detroit, Michigan 48226
Re: In the Matter of Michigan Master
Health Plan, Inc. Case No. 84-CV-4404-DT
Dear Judge Cohn:
We are responding on behalf of the Insurance Commissioner to the Opinion of the U.S. Bankruptcy Judge, dated September 12, 1984.
Initially, it should be noted that the statute upon which the bankruptcy court relies was not in effect on January 25, 1982, the date upon which an involuntary petition under Chapter 7 of the Bankruptcy Code was filed. On that date, the pertinent statute read:
"(4) The insurance bureau has the same authority to take over or liquidate a health maintenance organization that it has as to domestic and foreign corporations, associations, societies, and orders [sic] pursuant to chapter 78 of Act No. 218 of the Public Acts of 1956, as amended, being sections 500.7800 to 500.7868 of the Michigan Compiled Laws." MCLA 333.21027(4) (Emphasis added.)
This language does not state that a health maintenance organization is an insurance company but, more importantly, since the Insurance Bureau had no authority to take over or liquidate insurance companies, this section of the Public Health Code was totally meaningless. Therefore, Section 21027 of the Public Health Code was amended by 1982 PA 354 and given immediate effect on December 21, 1982, some eleven months subsequent to the January 25, 1982 filing of the petition for bankruptcy in the federal bankruptcy court. The section now indicates that the "commissioner" has the authority to act under Chapter 78 of the Insurance Code in the same manner as with regard to insurance companies. The amended subsection reads as follows:
"(3) For purposes of liquidation or receivership, a health maintenance organization shall be treated in the same manner as an insurer under chapter 78 of the insurance code of 1956, Act No. 218 of the Public Acts of 1956, being sections 500.7800 to 500.7868 of the Michigan Compiled Laws. The commissioner has the same authority to act as a custodian or receiver of a health maintenance organization as the commissioner has to act regarding a domestic insurance corporation under chapter 78 of the insurance code of 1956, Act No. 218 of the Public Acts of 1956."
While Section 21027 of the Public Health Code, at the date of filing of the bankruptcy proceedings, had no effect upon the federal bankruptcy proceeding, there is still a serious question as to whether amended Section 21027 would classify a health maintenance organization as an insurance company for purposes of future exclusion from the federal bankruptcy act.
The bankruptcy court's opinion appears to provide for state preemption of federal laws by simply referring to liquidation in the same manner as an insurance company. If the Public Health Code referred to a hospital as an insurance company, would it too be exempt from the bankruptcy laws as an insurance company. This is not farfetched as some health maintenance organizations are operated by hospitals. It should be noted that the amending language states that "a health maintenance organization shall be treated in the same manner as an insurer. . . ." It does not state that a health maintenance organization is an insurer and, in fact, 1982 PA 354, which added the above language, also added a definition of health maintenance organization in Section 21005(2) of the Public Health Code, being MCLA 333.21005(2), as follows:
*277 "(2) `Health maintenance organization' means a health facility or agency that:
"(a) Delivers health maintenance services which are medically indicated to enrollees under the terms of its health maintenance contract, directly or through contracts with affiliated providers, in exchange for a fixed prepaid sum or per capita prepayment, without regard to the frequency, extent, or kind of health services.
"(b) Is responsible for the availability, accessibility, and quality of the health maintenance services provided." (Emphasis added.)
A health maintenance organization is clearly not an insurance company. It is not created in the same manner as an insurance company and can take any form profit, non-profit, partnership, sole proprietorship, etc. and is, if a corporation, incorporated under the Business Corporation Act.
At the very most, it could be argued that eleven months subsequent to the filing of an involuntary petition for bankruptcy, the State of Michigan provided that a health maintenance organization could be placed into receivership or liquidation in the same manner as an insurance company by the Commissioner of Insurance. It would require a retrospective application of the state law to arrive at the conclusion that the State of Michigan had divested the federal bankruptcy court of subject matter jurisdiction.
Moreover, the instant case is analogous to In re Prudence Co., 79 F.2d 77 (2 Cir., 1939), in that ". . . it cannot be maintained that the state has classified them as `banking corporations' (insurance companies) with the result of excepting them from the field of bankruptcy . . ." (emphasis omitted.) (See p. 5 of bankruptcy court opinion.) A perusal of the Public Health Code leads to the conclusion that a health maintenance organization has not been classified as an insurance company. Merely, the Commissioner of Insurance has been designated the state official to act as custodian or receiver of health maintenance organizations and since the Commissioner is already empowered under Chapter 78 to act as custodian or receiver of insurance companies, the manner of custodianship and receivership has been extended to health maintenance organizations. At no point in Michigan law is there an attempt to classify health maintenance organizations, which are in effect medical clinics, as insurance companies.
Therefore, it is still questionable whether even the amended Public Health Code succeeds in divesting the bankruptcy court of jurisdiction. In any event, subsequent amendments to Michigan law cannot be interpreted to divest a federal bankruptcy court of jurisdiction existing on the date of filing of a petition for bankruptcy.
We would be pleased to provide the court with a brief and orally argue if the court believes such would be of assistance.
Very truly yours,
FRANK J. KELLEY
Attorney General
(s) Harry G. Iwasko, Jr.
Harry G. Iwasko, Jr.
Assistant Attorney General
740 Law Building
525 West Ottawa Street
Lansing, Michigan 48913
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NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; [email protected]
SJC-12935
STEPHEN FOSTER1 & others2 vs. COMMISSIONER OF CORRECTION &
others3 (No. 1).
Suffolk. May 7, 2020. - June 2, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Commissioner of Correction. Parole. Commissioner of Public
Safety. Governor. Imprisonment, Safe environment.
Constitutional Law, Sentence, Imprisonment, Cruel and
unusual punishment. Due Process of Law, Sentence,
Commitment. Practice, Criminal, Sentence, Execution of
sentence. Practice, Civil, Civil commitment.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 17, 2020.
The case was reported by Cypher, J.
James R. Pingeon for the plaintiffs.
1 On behalf of himself and all others similarly situated.
2 Michael Gomes, Peter Kyriakides, Richard O'Rourke, Steven
Palladino, Mark Santos, David Sibinich, Michelle Tourigny,
Michael White, Frederick Yeomans, and Hendrick Davis, on behalf
of themselves and all others similarly situated.
3 Chair of the parole board, Secretary of the Executive
Office of Public Safety and Security, and the Governor.
2
Stephen G. Dietrick for Commissioner of Correction &
another.
Ryan P. McManus, Special Assistant Attorney General, for
the Governor.
Michael R. Byrne for the parole board.
The following submitted briefs for amici curiae:
Tatum A. Pritchard for Disability Law Center, Inc.
Rachael Rollins, District Attorney for the Suffolk
District, & Hon. Jon Santiago, pro se.
Matthew R. Segal for American Civil Liberties Union of
Massachusetts & another.
GAZIANO, J. The plaintiffs, incarcerated inmates serving
sentences or individuals who are civilly committed under G. L.
c. 123, § 35, commenced this class action in the county court,
alleging that their conditions of confinement expose them to
unreasonable risks from the COVID-19 pandemic. They claim,
among other things, that the defendants' failure to take readily
available steps to reduce the incarcerated population to safe
levels so as to permit adequate physical distancing within
prison walls constitutes cruel and unusual punishment in
violation of the Eighth Amendment to the United States
Constitution and art. 26 of the Massachusetts Declaration of
Rights, and violates substantive due process requirements
guaranteed under the Fourteenth Amendment to the United States
Constitution and arts. 1, 10, and 12 of the Massachusetts
Declaration of Rights.
The plaintiffs sought a preliminary injunction enjoining
the Department of Correction (DOC) from (1) housing any prisoner
3
in a facility where the population exceeds its design-rated
capacity and (2) "[h]ousing any prisoner in a cell, room, dorm,
or other living area where they must sleep, eat, or recreate
within six feet of another person."4 To accomplish this, the
plaintiffs asked that the DOC be ordered to reduce the number of
incarcerated individuals such that the proper physical
distancing can be maintained in all facilities. They also
requested that the parole board be ordered to expedite the
release of certain groups of inmates, consider the risks of
COVID-19 in all parole decisions, and adopt a presumption of
release on parole for all inmates who are eligible for parole.5
In addition, the plaintiffs sought to enjoin the DOC from
continuing to confine individuals who are civilly committed
pursuant to G. L. c. 123, § 35.
4 The plaintiffs also asked that the Department of
Correction (DOC) be enjoined from housing any inmate in a cell,
dormitory, or other living area that does not comply with the
minimize size standards established by the Department of Public
Health (DPH) as set forth in 105 Code Mass. Regs. §§ 451.320-
451.322 (2004); maintaining any medical services unit or
medication distribution area in which inmates have to wait
within six feet of each other; and transferring any inmate from
a county jail to the DOC.
5 The parole board sought to dismiss all claims against it
on the grounds that it is not responsible for conditions of
confinement in DOC facilities and has no control over them, and
also that the plaintiffs' requests for relief exceed the bounds
of the parole board's statutory authority; that motion was
denied. See Foster v. Commissioner of Correction (No. 2), 484
Mass. , (2020)(Foster [No. 2]).
4
The single justice reserved and reported the case to the
full court.6 She also remanded the matter to the Superior Court
"for fact-finding that will enable the full court to decide the
case in the first instance." A Superior Court judge, by special
assignment, conducted a series of evidentiary hearings, took
limited testimony from all parties over three days, collected
affidavits, and submitted his findings to this court. We also
ordered the defendants to provide answers to additional
questions pursuant to Mass. R. A. P. 16 (l), as appearing in 481
Mass. 1628 (2019).
The initial question before us at this stage is whether a
preliminary injunction should issue. This in turn requires a
determination whether the plaintiffs are likely to succeed on
the merits of their claims. See Packaging Indus. Group, Inc. v.
Cheney, 380 Mass. 609, 616-617 (1980).
To prevail on an Eighth Amendment claim, an individual must
establish that the punishment is inconsistent with "the evolving
standards of decency that mark the progress of a maturing
society." See Trop v. Dulles, 356 U.S. 86, 100-101 (1958).
Prison officials have a duty under the Eighth Amendment to
protect inmates in their custody from the spread of serious,
6 The Governor moved in this court to dismiss the claims
against him on the ground of sovereign immunity; that motion was
allowed, and thus, the Governor is no longer a party to this
case. See Foster (No. 2), 484 Mass. at .
5
communicable diseases, including where the complaining inmate
does not show symptoms of the disease, or where "the possible
infection might not affect all of those exposed." Helling v.
McKinney, 509 U.S. 25, 33 (1993) ("We have great difficulty
agreeing that prison authorities may not be deliberately
indifferent to an inmate's current health problems but may
ignore a condition of confinement that is sure or very likely to
cause serious illness and needless suffering the next week or
month or year").
Thus, to be entitled to a preliminary injunction in their
claims for unconstitutional conditions of confinement because of
the risk of spread of a disease, the incarcerated plaintiffs
must show that they are likely to establish that the defendants
have been deliberately indifferent to a substantial risk of
serious harm to their health or safety. See Estelle v. Gamble,
429 U.S. 97, 103-104 (1976); Torres v. Commissioner of
Correction, 427 Mass. 611, 613-614, cert. denied, 525 U.S. 1017
(1998).
It is undisputed, as we recognized in Committee for Pub.
Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass.
431, 445 (2020) (CPCS v. Trial Court), that, due to the COVID-19
pandemic, the situation inside the Commonwealth's jails and
prisons "is urgent and unprecedented, and that a reduction in
the number of people who are held in custody is necessary."
6
Nonetheless, on the record here, we conclude that the
incarcerated plaintiffs are unlikely to succeed on the merits of
their claim for violations of the Eighth Amendment, and thus
their motion for a preliminary injunction must be denied.
As to the plaintiffs' argument that commitment to a secure
facility for substance abuse treatment during the pandemic
violates the substantive due process rights of the committed
individual, on this record, the plaintiffs do not seem to have a
representative class member at this point, and thus are unlikely
to succeed on their petition for a class-based preliminary
injunction. Nonetheless, some immediate relief is necessary
with respect to those who have been civilly committed pursuant
to G. L. c. 123, § 35. Under our supervisory authority pursuant
to G. L. c. 211, § 3, we conclude that these individuals are
entitled to a new hearing to enable a motion judge to take into
account treatment limitations in the current circumstances, and
to weigh the balance of potential benefits from treatment and
the potential harms as a result of being held in wings of
prisons and jails or other conditions of confinement during the
pandemic.7
7 We acknowledge the amicus letters of the American Civil
Liberties Union of Massachusetts and the Massachusetts
Association of Criminal Defense Lawyers; of the district
attorney for the Suffolk district and Hon. Jon Santiago, pro se;
and of Disability Law Center, Inc.
7
Background. 1. COVID-19 in Massachusetts correctional
facilities. Despite a massive, concerted global containment
effort, COVID-19 has continued to spread, both around the world
and in Massachusetts.8 Few inhabited places worldwide have been
spared from infections; the Massachusetts correctional system is
not among them.
For many, the virus causes only mild symptoms. For others,
particularly the elderly or those with preexisting conditions,
the disease poses a substantial likelihood of serious illness or
death. Indeed, since February 29, 2020, the disease has killed
more than 100,000 people in the United States and more than
6,700 people in Massachusetts. The demographic distribution of
severe cases is of particular importance here, because
Massachusetts has the highest percentage of elderly prisoners
relative to all other States.9 Prisoners also have been shown to
age more rapidly than the general population, typically
developing the chronic conditions and disabilities associated
with old age ten to fifteen years earlier than their
8 According to data published by the DPH, on April 17, 2020,
the date the plaintiffs' complaint was filed, there were 34,402
confirmed cases of COVID-19 in Massachusetts. By the date of
oral argument on May 7, 2020, that number had more than doubled
to 73,721 cases. As of May 29, there were 95,512 confirmed
cases in Massachusetts.
9 As of May 11, 2020, thirteen percent of the prisoners in
DOC custody (957 of 7,343) were age sixty or older and thirty-
one percent (2,265) were age fifty or older.
8
nonincarcerated counterparts. According to estimates by the
Commissioner of Correction (commissioner), fifty percent of the
inmates under her care and control either are over sixty years
of age or have an underlying medical condition that puts them at
heightened risk for a severe course of COVID-19, should they
contract the virus.
In CPCS v. Trial Court, 484 Mass. at 456 (Appendix B), we
appointed a special master and established daily reporting
requirements in order to monitor the populations of
Massachusetts correctional institutions, and the progression of
COVID-19 within them. As of May 25, 2020, the DOC reported 396
confirmed cases among inmates. The vast majority of these cases
were found in three institutions: the Massachusetts
Correctional Institution (MCI)-Shirley (160 cases) and MCI-
Framingham (84 cases); and the Massachusetts Treatment Center
(MTC) (130 cases). Five other institutions had at least one
case among the incarcerated, and the rest reported zero
confirmed cases. The data do not reveal how many of these
individuals are actively symptomatic or how many have recovered
from the disease. Eight incarcerated individuals have died of
COVID-19.
Staff at a number of correctional institutions also have
9
tested positive for the virus.10 As of May 25, 2020, 182 DOC
staff, across eleven DOC facilities, had confirmed cases of
COVID-19. While MCI-Shirley, the MTC, and MCI-Framingham again
had the highest numbers of positive tests, the distribution of
infections amongst staff is broader than that of the inmates.
As we noted in CPCS v. Trial Court, 484 Mass. at 437, infections
among staff are of particular concern. They not only risk
bringing the virus into prisons, thereby spreading it amongst a
closely confined, captive, and especially vulnerable population,
but they also risk spreading the virus from prisons into the
broader community. Id. As with inmates, the data do not reveal
how many staff are currently symptomatic or recovered.
Currently, no correctional staff have died of COVID-19.
As part of ascertaining how crowded these facilities are,
the parties ask us to compare the total number of prisoners to
dueling definitions of prison capacity: operational capacity or
design capacity. Operational capacity is based on guidelines
issued by the Association of State Correctional Administrators.
CPCS v. Trial Court, 484 Mass. at 439 n.12. Design capacity
refers to "[t]he number of inmates that planners or architects
intended for the institution," as revised by a rating official
10In discussing staff, we include both those employed
directly by the DOC and also vendors and subcontractors who work
within correctional institutions.
10
from within the DOC. See Governor, Quarterly Report on the
Status of Prison Capacity, Fourth Quarter 2019, 10 (Apr. 2020)
(defining design capacity). In every facility in Massachusetts,
the operational capacity is higher than the design capacity,
sometimes significantly so. In the most pronounced example, the
North Central Correctional Institution at Gardner (NCCI-Gardner)
has a design capacity of 568 inmates, but an operational
capacity of 974 inmates.
The metric matters. As of May 25, 2020, no DOC facility
was over its operational capacity, and five were operating at
less than fifty percent of operational capacity.11 The DOC
system as a whole was at approximately sixty-five percent of
operational capacity (6,639 prisoners out of a total operational
capacity of 10,209). By contrast, five institutions were over
their design capacities, including NCCI-Gardner (medium
security), which was at 160 percent of its design capacity. In
aggregate, the DOC was operating at approximately eighty-nine
percent of its design capacity (6,639 prisoners and design
capacity of 7,492).
11The three institutions at which there have been the most
significant COVID-19 outbreaks do not stand out as notably
crowded. The MTC is at 80% of operational capacity and 94% of
design capacity; MCI-Shirley (medium security) is at 81% of
operational capacity and 121% of design capacity; and MCI-
Framingham is at 20% of operational capacity and 26% of design
capacity.
11
2. Efforts at containment in correctional institutions.
This court and all parties agree that correctional institutions
face unique difficulties in keeping their populations safe
during this pandemic. Because the constitutional adequacy of
the DOC's measures to control the spread of COVID-19 in its
facilities is central to this litigation, we review them at some
length.
a. Policy directives. When the Governor declared a state
of emergency on March 10, 2020, the DOC began implementing its
COVID-19 control plans. Beginning on March 12, 2020, the
commissioner delivered a series of directives, memoranda, and
advisories to both inmates and staff. These essentially weekly
communications document escalating and responsive efforts to
implement guidance from the Centers for Disease Control (CDC)
and the Department of Public Health (DPH). The interim guidance
by the CDC itself recognizes that full compliance with best
practices is not feasible in all facilities; therefore, the
commissioner has required each facility in Massachusetts to
create its own compliance plan. See Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities (Mar. 23, 2020) (Interim
Guidance), https://www.cdc.gov/coronavirus/2019-
ncov/downloads/guidance-correctional-detention.pdf
[https://perma.cc/MXY3-ETDL].
12
For example, the first memoranda issued guidance concerning
proper hand-washing technique, sanitation, and questions used to
screen potentially symptomatic staff and inmates. The advisory
issued on March 20, 2020, limited transports between facilities,
authorized staff to wear personal protective equipment (PPE) in
high-risk parts of facilities, and upgraded cleaning and
disinfection protocols. One week later, the guidance required
staff to wear masks, provided PPE to certain inmates in
especially high-risk areas, and allowed alcohol-based hand
sanitizer, something that previously had been discouraged in
prison settings. On April 3, 2020, the commissioner initiated a
system-wide lockdown. Since then, inmates who live in cells
have been spending twenty-three hours per day in their cells,
while inmates living in dormitory-style housing have been unable
to leave their units.
While the plaintiffs contest whether these various
directives are sufficient ultimately to ensure inmate safety, it
is difficult to dispute that they show ongoing attention -- at
least at the level of planning and policy -- both to guidance
from the CDC and DPH and to the evolving situation on the
ground. Nonetheless, as the boxer Mike Tyson once said,
"Everyone has a plan until they get hit." That is to say, even
the most meticulous and exceptional planning by the DOC still
might not meet constitutional muster if there are pervasive
13
failures in implementation. We therefore examine the execution
of these plans and procedures.
b. Physical distancing. Physical distancing between
individuals (so-called "social distancing") has been a
cornerstone of the public health response to COVID-19, both in
the United States and around the world. See generally Interim
Guidance, supra. The CDC defines social distancing as "the
practice of increasing the space between individuals and
decreasing the frequency of contact to reduce the risk of
spreading a disease (ideally to maintain at least [six] feet
between all individuals, even those who are asymptomatic)." Id.
at 4. By following these practices, the goal is to slow the
rate at which the disease progresses through the population.
Since the first case of COVID-19 was detected in a DOC
facility, the DOC has taken steps to implement physical
distancing within all of its facilities. Initially it banned
contact sports, and later banned all use of gyms, weights, and
prison yards. Some inmate beds were moved further apart, and,
in accordance with CDC guidance, inmates were asked to sleep
head to foot, so as to increase the distance between their
faces. Meals now are served in cells or dormitories to avoid
congregation in dining areas. Staff have attempted, apparently
at times unsuccessfully, to reduce or eliminate medication
lines.
14
Certain aspects of prison design limit the degree to which
physical distancing is possible. Due both to the fact that some
single cells have been reserved for quarantining inmates and
because of the underlying building designs, currently fifty-
eight percent of inmates sleep either in a two-person cell or in
a dormitory-style room. Since the lockdown, these inmates sleep
and live within six feet of at least one other inmate, and
sometimes many more. Approximately seventy percent of prisoners
eat within six feet of another prisoner.
For example, plaintiff Michael White resides in a
dormitory-style room at MCI-Concord that contains bunkbeds for
approximately eighty inmates. The beds are three feet apart,
the sinks are one foot apart, and White generally eats within
arm's reach of at least one other inmate. White's account of
attempting to maintain appropriate distance in a dormitory
setting is consistent with accounts by plaintiffs Ryan Duntin
and Dana Durfee. Moreover, while the occupants of a dormitory
may be siloed from other groups of inmates in the prison
(something the DOC calls "cohorting"), if an asymptomatic guard
or other staff member were to introduce the virus, this type of
"cohorting" would be ineffective to prevent the spread of COVID-
19 to those housed in the unit.
The DOC argues that, even if those in double cells are
unable to maintain physical distance from their cellmates, the
15
conditions are consistent with physical distancing guidance
provided by the CDC because each pair of cellmates is analogous
to a family unit in the broader community -- not distanced from
one another, but from every other set of cellmates. This
argument has merit as far as it goes, but runs up against basic
aspects of prison design: those housed in double and single
cells still often must share showers, toilets, sinks, and
telephones with those in other cells on their tier or in their
block. Inmate testimony credited by the Superior Court judge
consistently reported a lack of physical distancing with those
in other cells while individuals use these essential fixtures or
await their turn to do so.
c. Facility sanitation and personal protective equipment.
The DPH is statutorily required to conduct biannual inspections
of DOC facilities for compliance with health and sanitation
regulations and to report on its findings and recommendations.
See G. L. c. 111, § 20; 105 Code Mass. Regs. §§ 451.401 et seq.
The plaintiffs draw our attention to recent reports for each DOC
facility showing that health code violations for most facilities
number in the hundreds. The plaintiffs emphasize violations of
regulations that recommend a specific amount of floor space per
prisoner, and point out that twelve DOC facilities house at
least some inmates in cells that do not meet the DPH recommended
standards. These violations are concerning generally, and all
16
the more so under conditions of global pandemic.
We note, however, that the mere number of violations only
paints a partial picture. It does not distinguish between
mandatory regulations (105 Code Mass. Regs. §§ 451.100, 451.200)
and recommended standards (105 Code Mass. Regs. §§ 451.300).
Furthermore, the violations vary significantly in severity. At
MCI-Framingham, for example, violations range from a paper towel
dispenser that was not stocked at the time of inspection and a
dusty wall fan to evidence of a "chronic rodent and insect issue
in the food service areas." Counting the number of violations
alone does not capture this distinction. Some chipped paint has
little bearing on our analysis here; bathroom and shower areas
at the MTC that were so poorly maintained as to yield an
"increased risk of disease transmission" are highly germane.
In March 2020, the DOC began ordering large amounts of PPE
and cleaning supplies. Cleaning regimens at all DOC facilities
have been enhanced, and disinfectant cleaning supplies have been
made available to inmates so that they may clean their own
cells. As stated, the DOC also has begun to allow alcohol-based
hand sanitizer, which it has distributed widely across its
facilities. Despite these efforts, both cleaning supplies and
hand sanitizer periodically have run short. The precise extent
of these shortages varies by institution and remains the subject
of some factual dispute.
17
While initially PPE was provided only to correctional staff
in specific, high-risk areas, its use has expanded as the
pandemic has progressed. Since March, staff have been required
to wear masks at all times within the facilities. Between April
24, 2020, and April 28, 2020, the DOC distributed surgical masks
to all inmates. Not all staff have complied entirely with PPE
mandates; likewise, some inmates have not followed the DOC's
"strong encouragement" to wear the masks provided. Supervising
officers have used video surveillance records to discipline
officers who have failed to comply with PPE requirements,
including one officer who was suspended for five days when he
and all of his staff were found not to be wearing masks.
d. Entrance screenings and quarantines. To prevent the
introduction of the virus into its facilities, the DOC has
limited access to prisons; it has allowed only staff and
attorneys to enter, and has prohibited visitors and volunteers.
Each facility screens all those who seek entry according to
protocols developed with reference to the guidance issued by the
CDC and DPH. These protocols involve a questionnaire and self-
administered temperature check; those with temperatures over
99.9 degrees Fahrenheit categorically are denied admittance.
The effectiveness of these screenings are limited by the fact
that, as all parties agree, asymptomatic individuals can spread
the disease.
18
In every facility, the DOC has set aside areas to isolate
and quarantine confirmed and suspected cases of COVID-19, as
well as inmates who have refused to be tested. Individuals
entering DOC custody are quarantined for two weeks. As of
May 1, 2020, there were "many open cells in the quarantine
unit[s]" available should COVID-19 cases spike. Inmates who
believe they are at heightened risk proactively may request
isolation (being held in a single cell), subject to a medical
evaluation, but there is not enough space to place all inmates
at heightened risk, which would amount to one-half of the DOC
population, in single cells. Moreover, both the commissioner
and the plaintiffs share a concern for the mental health
implications of long-term single-cell isolation.
e. Testing. The DOC's testing strategy has evolved as the
pandemic has progressed. The DOC conducted its first COVID-19
test on March 19, 2020, when an inmate at the MTC presented with
symptoms. DOC reports that initially it followed CDC and DPH
guidelines by deferring to the medical judgment of the medical
providers at each facility as to the testing needed. This
generally involved testing inmates who were symptomatic or who
had been in close contact with someone who tested positive.
On April 22, 2020, large-scale mobile testing became
available to the DOC, and it began administering tests to any
inmate or patient who voluntarily agreed to be tested, facility
19
by facility. As of May 25, 2020, the DOC had offered tests to
all inmates or patients at thirteen facilities. According to
the schedule it submitted in its Mass. R. A. P. 16 (l) letter,
all inmates will be offered an initial test by the end of May.
Any staff member may receive a test at any time upon request.
f. Decreasing population. The plaintiffs seek an order
requiring the defendants to reduce the population of
incarcerated persons until no prisoner is housed in a
correctional facility where the population exceeds the design
capacity of the institution or until no inmate is housed in a
cell that does not meet the DPH-recommended floor space
regulations. It is unclear how many individuals would be
required to be released in order to meet these criteria. At the
evidentiary hearing, the commissioner agreed that decreasing the
inmate population at DOC facilities could help contain the
spread of COVID-19, and that measures to do so should be taken,
so long as they are lawful and appropriate in light of the over-
all health and safety of the public.
The commissioner has several tools at her disposal to
reduce the population in DOC custody, including medical parole,
good time credit, and furloughs. The Superior Court judge found
that the DOC has taken multiple steps to expedite the medical
parole process, including shortening internal deadlines,
reviewing home plans earlier in the process, and notifying
20
MassHealth so that the inmate has medical insurance upon
release. Since our decision in CPCS v. Trial Court, 484 Mass.
at 435-436, 456-457 (Appendix B), twenty-six individuals have
been approved for medical parole; it remains unclear how many of
those individuals actually have been released.12
Pandemic lockdown conditions effectively can lengthen
sentences by limiting the opportunities by which inmates
ordinarily would be able to earn good-conduct sentence
deductions, or "good time credit." See G. L. c. 127, § 129D.
The statute permits 7.5 days of good time credit per activity,
and fifteen days total per month. See id. In response to the
pandemic, the commissioner awarded full good time credit for the
month of March 2020 for anyone who had been earning such credit
on March 1. She also established a journaling program by which
inmates can earn 7.5 days of good time credit for the month of
April. Therefore, in April, inmates were eligible for one-half
the good time credits they ordinarily would have been able to
obtain. The commissioner indicated in her testimony that she
was considering expanding these opportunities in May; the record
does not indicate whether she has done so.
The DOC has not used furloughs since the 1990s, based on a
belief that it is "bad policy" to release an inmate who later
12See Robert Malloy & another vs. Department of Correction,
SJC No. 12961.
21
must be reincarcerated. Accordingly, the DOC has not furloughed
any inmates during the pandemic.
The commissioner does not believe that she has statutory
authority to allow inmates to serve any portion of their State
prison sentence under home confinement. We do not agree. See
G. L. c. 127, §§ 48, 49, 49A; Commonwealth v. Donohue, 452 Mass.
256, 265 (2008); discussion part 6, infra.
3. Plaintiffs committed for substance abuse treatment.
Under G. L. c. 123, § 35, Massachusetts courts are authorized to
commit an individual for involuntary substance use disorder
treatment upon a finding that the individual has a substance use
disorder and that the disorder poses a likelihood of serious
harm. See Matter of G.P., 473 Mass. 112, 120 (2015).
Generally, committed individuals are sent to unsecured
treatment facilities licensed by the DPH or the Department of
Mental Health. See G. L. c. 123, § 35. If DPH informs the
judge issuing the commitment that no such facilities are
available, or "if the court makes a specific finding that the
only appropriate setting for treatment for the person is a
secure facility," the judge may commit the individual to a
secure facility designated by the commissioner. Id. Currently,
there are three secure facilities in the Commonwealth. The DOC
operates the Massachusetts Alcohol and Substance Abuse Center
(MASAC), which is located at the MCI-Plymouth prison. The
22
Hampden County sheriff, under an agreement with the DOC,
operates the Stonybrook Stabilization and Treatment Centers at
Ludlow and Springfield, both of which are located at the Hampden
County Correctional Center.
a. General precautions. Both the DOC and the Hampden
County sheriff's office have taken steps to protect their
patients from COVID-19. All persons entering their facilities
are screened for symptoms of COVID-19 and are held in a medical
quarantine unit for fourteen days. Staff members are required
to wear masks; for certain activities, they also wear gloves.
The degree of compliance with these requirements remains in
dispute. A declarant and an affiant for the plaintiffs state
that masks and gloves are not consistently used or changed
between uses at MASAC. All patients have been given masks and
soap. MASAC does not provide soap in the bathrooms, so patients
must bring their personal soap with them. At MASAC, a private
vendor cleans and sanitizes the facility daily, including within
patient rooms. Between March 13 and April 23, 2020, the MASAC
population declined by eighty-two percent, and the Stonybrook
population declined by fifty-seven percent. As of May 25, 2020,
MASAC held forty-three patients. This amounts to twenty-nine
percent of its design capacity and seventeen percent of its
operational capacity. Due to the low censuses, all patients
have been given single occupancy rooms. On May 23, 2020, MASAC
23
reported that two patients tested positive for COVID-19. One
MASAC staff member had also previously tested positive.
b. Treatment. The parties offer divergent accounts of the
degree to which treatment has been interrupted by the pandemic;
the Superior Court judge did not make findings discrediting any
of these differing reports. Plaintiff Mark Santos was committed
to MASAC on March 4, 2020. He avers that because MASAC went
into a lockdown on April 3, 2020, he was required to remain in
his cell, and could leave only to go to the restroom, make a
telephone call, or receive medication. Santos states that most
treatment classes were canceled in mid-March, and he attended
only one daily group session before the lockdown. The lockdown
was still in effect when he was released on April 9, and Santos
avers that he received no treatment during the lockdown. The
DOC concedes that it instituted a lockdown at MASAC in order to
make COVID-19 response plans, but maintains that the lockdown
lasted only three days.
Declarant Robert Peacock was committed to MASAC on
April 24, 2020, and executed his declaration on April 28, 2020.
He stated that he had been locked in his cell continuously since
being committed, and could leave only to shower. He said as
well that he had received no counselling or any other type of
24
treatment since his arrival.13
The DOC asserts that, for the first three days of their
fourteen-day intake, patients are restricted to an observation
room and assessed daily by clinical staff. After three days,
patients who have been "detox cleared" are moved out of the
observation room but remain in the separate unit. For the
remainder of the fourteen-day period, patients receive
"individual services" from a substance use disorder counsellor.
Thereafter, MASAC patients are moved to the general treatment
unit, where they attend group sessions and other programming.
The Hampden County sheriff's office reports that new
patients are provided substance abuse treatment while in their
initial fourteen-day quarantine, and that, due to the lower
population, patients currently receive more programing overall
than they would have prior to the pandemic.
Discussion. 1. Standard of review. "A party seeking a
preliminary injunction must show that success is likely on the
merits; irreparable harm will result from denial of the
injunction; and the risk of irreparable harm to the moving party
13The DOC maintains that Robert Peacock initially exhibited
signs of withdrawal and confusion, and therefore was kept in an
observation room until April 28, 2020, when he was "detox
cleared." The DOC asserts that, on April 29, 2020, he met with
a substance abuse counsellor, who described the program,
explained the expectations of patients, and gave him some
written treatment materials.
25
outweighs any similar risk of harm to the opposing party"
(quotation and citations omitted). Doe v. Worcester Pub. Sch.,
484 Mass. 598, 601 (2010). "In cases in which a public entity
is a party, a judge may also weigh the risk of harm to the
public interest in considering whether to grant a preliminary
injunction" (citations omitted). Id. See Fordyce v. Hanover,
457 Mass. 248, 255 n.10 (2010); Packaging Indus. Group, Inc.,
380 Mass. at 616-617. "[T]he movant's likelihood of success is
the touchstone of the preliminary injunction inquiry. [I]f the
moving party cannot demonstrate that he is likely to succeed in
his quest, the remaining factors become matters of idle
curiosity." (Quotations and citations omitted.) Maine Educ.
Ass'n Benefits Trust v. Cioppa, 695 F.3d 145, 152 (1st Cir.
2012).
2. Class certification. In their complaint and in their
motion for injunctive relief, the plaintiffs purport to
represent one over-all class of individuals that also is made up
of two smaller subclasses. They seek class certification for
all classes. The broad injunctive relief sought by the
plaintiffs is possible only if there is a class that may be
certified. Thus, in order to determine whether their class
claims have a reasonable likelihood of success, a prerequisite
for granting a preliminary injunction, we first must determine
whether the requested classes may be certified.
26
Under Mass. R. Civ. P. 23 (a), as amended, 471 Mass. 1491
(2015), members of a class may represent the class "only if
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to
the class, (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately
protect the interests of the class." Additionally, the court
must conclude that "the questions of law or fact common to the
members of the class predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication
of the controversy." Mass. R. Civ. P. 23 (b). The plaintiffs
bear the burden of providing "information sufficient to enable
the motion judge to form a reasonable judgment that the class
meets the requirements of rule 23" (quotation and citation
omitted). Gammella v. P.F. Chang's China Bistro, Inc., 482
Mass. 1, 12 (2019).
While the precise contours of the global class that the
plaintiffs ask us to certify remain somewhat unclear, they are
clear as two specific putative subclasses: medically vulnerable
individuals who are at high risk for serious complications or
death from COVID-19 due to their underlying medical conditions
or age, and those being held for treatment pursuant to G. L.
27
c. 123, § 35.
We conclude that the plaintiffs have shown a substantial
likelihood that a class of medically vulnerable inmates who are
currently serving criminal sentences, or who will begin serving
such sentences in the future, can be certified. According to
the commissioner, nearly one-half of the DOC population is
potentially at heightened risk of a serious course of the
disease, leaving little question of numerosity. While there may
be some variance between facilities, the legal claim and its
basic factual underpinning are common to all potential class
members: that the increased risk of contracting COVID-19 caused
by the current conditions of the correctional facilities, in
concert with the individuals' medical vulnerability, constitutes
cruel and unusual punishment. Because this is precisely the
claim of several of the named class members, they appear to be
sufficiently typical and to have a substantial basis to show
that they adequately and fairly can represent the class.
Although the plaintiffs have shown that they are not
precluded from establishing a substantial likelihood of success
on the merits in at least one of their requests for class
certification, we do not have an adequate basis in this record
to ascertain the proper contours of who qualifies as medically
vulnerable. Nor, on this record, can we determine whether there
is adequate commonality in the named plaintiffs and the
28
superclass of all incarcerated individuals the plaintiffs also
seek to represent. While we understand the pressing urgency of
this litigation, the Superior Court judge is better positioned
to take expert testimony and to determine the appropriate
definition of medically vulnerable individuals for purposes of
this litigation. See Weld v. Glaxo Wellcome Inc., 434 Mass. 81,
87 n.8 (2001), citing Carpenter v. Suffolk Franklin Sav. Bank,
370 Mass. 314, 317–318 (1976) (unlike its Federal counterpart,
rule 23 of Massachusetts Rules of Civil Procedure does not
mandate early ruling on class certification).
The second subclass that the plaintiffs seek to represent,
those being held under G. L. c. 123, § 35, presents an entirely
different issue. As the defendants point out, Mark Santos, the
proposed representative of this class, was released eight days
before the filing of the complaint. He makes no claim that he
is likely to be committed again. Thus, he would not be able to
bring this claim on his own behalf because injunctive relief,
preliminary or otherwise, would not redress his asserted
injury.14 See Los Angeles v. Lyons, 461 U.S. 95, 102 (1983);
LightLab Imaging, Inc. v. Axsun Techs., Inc., 469 Mass. 181, 194
14Our holding in Matter of a Minor, 484 Mass. 295, 299-300
(2020), that the minor's release from commitment did not render
his appeal moot, is inapposite. Santos does not appeal from the
initial commitment decision. Cf. id. Rather, he argues, on
behalf of the class, that the conditions of confinement during
the pandemic render continued confinement unconstitutional.
29
(2014). Because he could not bring an action on his own behalf,
Santos cannot represent the purported class.15 See Doe v.
Governor, 381 Mass. 702, 704–705 (1980).
The plaintiffs' ability to locate a substitute class member
seems virtually certain. Indeed, even this limited record
contains an affidavit from Peacock, who was relatively newly
committed when the complaint was filed, setting forth his
concerns about lack of programming, the close to twenty-four
hours per day he was held in his room, proximity to others when
using certain necessary facilities, and cleanliness of shared
surfaces.
If, as appears virtually certain, the plaintiffs are able
to obtain a suitable representative whose claims are typical of
the class, we anticipate that they will succeed in meeting the
certification requirements. Multiple questions of law and fact
15Any anticipated future mootness of the class
representative's individual claims should not preclude class
certification, where the "claims are so inherently transitory
that the trial court will not have even enough time to rule on a
motion for class certification before the proposed
representative's individual interest expires" (citation
omitted). See County of Riverside v. McLaughlin, 500 U.S. 44,
52 (1991), and cases cited. See also Gammella v. P.F. Chang's
China Bistro, Inc., 482 Mass. 1, 20 n.24 (2019); Gonzalez v.
Commissioner of Correction, 407 Mass. 448, 452 (1990). Thus,
had Santos been committed when the complaint was filed, his
subsequent release would not have prevented the class from being
certified or Santos from continuing to represent it. Here,
however, the issue is not mootness; rather, Santos lacked
standing from the start. See County of Riverside, supra at 51
(distinguishing mootness from lack of standing).
30
are common to all putative class members, including issues
regarding conditions of treatment and the risk of transmission
in these conjugate settings. Based on the broad nature of the
plaintiffs' arguments, the issues in common apparently
predominate over those they may not share. The numerosity
requirement almost certainly will be met because dozens of class
members likely exist, and new commitments are ongoing, rendering
joinder of all members impracticable. See Gammella, 482 Mass.
at 11–12 & n.15. Lastly, adequacy exists due to the apparent
lack of conflict between class members, and class counsel's
ability vigorously to pursue the action. See In re Hyundai &
Kia Fuel Economy Litigation, 926 F.3d 539, 566 (9th Cir. 2019).
Thus, we defer the issue of certification to allow the
plaintiffs to locate and substitute an appropriate
representative. See Gonzalez v. Commissioner of Correction, 407
Mass. 448, 451-453 (1990) (holding that named plaintiff's claims
were moot, denying defendant's motion to dismiss, and remanding
matter to Superior Court with instructions to dismiss in set
period of time if substitute plaintiff could not be found). See
also Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974) (party may
amend pleading "by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so
requires").
Despite the open questions of class certification that we
31
remand for resolution in the Superior Court, we address the
merits of the preliminary injunction, which has been briefed and
argued before us. See O'Sullivan v. Secretary of Human Servs.,
402 Mass. 190, 192 (1988) (reaching merits of case, despite
mootness of named plaintiffs, because defendants did not argue
mootness and because counsel "apparently [were] prepared to
pursue this action on behalf of [a substitute plaintiff]");
Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371 Mass. 705,
713 (1977) (no error where court ruled on merits of case without
ruling on class certification); Gooch v. Life Investors Ins. Co.
of Am., 672 F.3d 402, 432–433 (6th Cir. 2012) (no error where
court ruled on preliminary injunction before class
certification). The urgency of the claims raised convinces us
that delaying resolution of the motion would do an injustice.
3. Constitutional claims. While the plaintiffs' briefs do
not make this distinction entirely clear, because only inmates
who have been convicted and are serving a sentence are subject
to punishment by the Commonwealth, the Eighth Amendment claims
are applicable only to this group. Any relief sought by civilly
committed individuals must be sought on the grounds of a
violation of substantive due process rights; because they are
not being punished, the Eighth Amendment's protections against
cruel and unusual punishment do not apply. See Youngberg v.
Romeo, 457 U.S. 307, 315–316 (1982).
32
We consider first the claims of the incarcerated
individuals.
a. Eighth Amendment claims. The plaintiffs contend that
their conditions of confinement, and the defendants' failure to
expedite the release of a greater number of individuals from
incarceration, using any of a number of mechanisms, violate
their rights under the Eighth and Fourteenth Amendments and
arts. 1, 10, 12, and 26.
Because we have not held that art. 26 provides greater
protections with respect to conditions of confinement than does
the Eighth Amendment, and conditions for the civilly committed
must be at least as good as for those who are serving sentences
of incarceration, see Youngberg, 457 U.S. at 321-322, we
consider first the plaintiffs' likelihood of success under the
Eighth Amendment.
"The Eighth Amendment . . . prohibits any punishment which
violates civilized standards and concepts of humanity and
decency." Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992).
As the plaintiffs observe, the Eighth Amendment applies to
conditions of confinement that are separate from and independent
of any condition imposed as a part of sentencing. See Helling,
509 U.S. at 32-33.
"[W]hen the State takes a person into its custody and holds
him there against his will, the Constitution imposes upon
it a corresponding duty to assume some responsibility for
33
his safety and general well being. . . . The rationale for
this principle is simple enough: when the State by the
affirmative exercise of its power so restrains an
individual's liberty that it renders him unable to care for
himself, and at the same time fails to provide for his
basic human needs -- e.g., food, clothing, shelter, medical
care, and reasonable safety -- it transgresses the
substantive limits on state action set by the Eighth
Amendment . . . ." (Quotation and citation omitted.)
Id. at 32.
In order to establish an unconstitutional condition of
confinement, a claimant must show both an objective element and
a subjective element. Wilson v. Seiter, 501 U.S. 294, 298
(1991). The objective element requires an inmate to show that
his or her living conditions amount to a "serious deprivation[]
of basic human needs," Rhodes v. Chapman, 452 U.S. 337, 347
(1981), which can include denial of medical care for serious
medical needs, Estelle, 429 U.S. at 102-105.
The subjective element requires an inmate to demonstrate
that prison officials acted or failed to act with deliberate
indifference. Id. at 106. See Torres, 427 Mass. at 614. "[A]
prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he [or she] must also draw the
inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). While
34
subjective knowledge is a question of fact that a claimant must
establish, and it is necessary to distinguish between obvious
risks and a prison official's actual knowledge of the risk,
where the risk is so obvious that a reasonable person would
realize it, "a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious." Id. at 842.
b. Risk of contracting COVID-19 in the Commonwealth's
prisons. As stated, an inmate asserting unconstitutional
conditions of confinement first must establish, objectively,
that the conditions pose a "substantial risk of serious harm."
See Farmer, 511 U.S. at 834, citing Helling, 509 U.S. at 35.
See also Rhodes, 452 U.S. at 347 (Eighth Amendment violation
requires showing that living conditions amount to "serious
deprivation of basic human needs," including denial of medical
care for serious medical needs).
The defendants contend that the incarcerated plaintiffs
will be unable to establish the objective component of their
deliberate indifference claim; they argue,
"No prisoner has been forced to endure an extreme
deprivation or even an unreasonable risk to their health or
safety. The measures mentioned above, such as increased
cleaning and sanitizing operations, distribution of PPE to
all inmates and staff, posting of educational and
institutional flyers and memoranda, and encouraging social
distancing as much as possible, rival that which is being
done in the community to help combat the spread of an
insidious disease that all Americans, inmate or not, are at
35
risk of contracting."
We do not agree. Notwithstanding the claim that no inmate has
had to endure an unreasonable risk to health or safety as a
result of being incarcerated during the COVID-19 pandemic, there
can be no real dispute that the increased risk of contracting
COVID-19 in prisons, where physical distancing may be infeasible
to maintain, has been recognized by the CDC and by courts across
the country.16 See, e.g., Baez vs. Moniz, U.S. Dist. Ct., No.
20-10753-LTS (D. Mass. May 18, 2020) ("There is, and can be, no
meaningful dispute that COVID-19 presents a substantial risk of
serious harm to health, to the proposed class of petitioners in
this case as well as to members of society at large"); Refunjol
vs. Adducci, U.S. Dist. Ct., No. 2:20-cv-2099 (S.D. Ohio May 14,
2020) ("The objective component of the inquiry is beyond debate.
Nobody can dispute that COVID-19 is a sufficiently serious
medical need . . . ."); Frazier vs. Kelley, U.S. Dist. Ct.,
No. 4:20-cv-00434-KGB (E.D. Ark. May 4, 2020) ("[I]t cannot be
disputed that COVID-19 poses an objectively serious health risk
16That the CDC interim guidance for prisons recognizes that
in some instances it may not be feasible to maintain the
recommended six feet, and offers other guidance that may help to
reduce the risk as far as possible in such circumstances, does
not mean, as the defendants appear to suggest, that the CDC
recommends maintaining a lesser distance among incarcerated
individuals than among others; it clearly states repeatedly that
six feet or more "ideally" should be maintained between
incarcerated individuals, including in housing arrangements.
See Interim Guidance, supra at 3, 4, 11, 13, 19, 20.
36
to named plaintiffs and the putative classes given the nature of
the disease and the congregate living environment of the . . .
facilities").
Having concluded that the incarcerated plaintiffs almost
certainly will succeed in establishing the objective component
of their claims under the Eighth Amendment, we turn to
consideration of the subjective component, i.e., whether the
plaintiffs are likely to be able to establish deliberate
indifference on the part of the defendants.
4. Deliberate indifference. a. Applicable standard.
"While Estelle[, 429 U.S. at 105-106,] establishes that
deliberate indifference entails something more than mere
negligence, the cases are also clear that it is satisfied by
something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result." Farmer,
511 U.S. at 835. "With deliberate indifference lying somewhere
between the poles of negligence on the one end and purpose or
knowledge at the other," courts frequently have described it as
"recklessly disregarding" a substantial risk of harm. Id. at
836, and cases cited. In other words, the subjective standard
for deliberate indifference requires the same showing of
"subjective recklessness" as would apply in the criminal
context. Id. at 839-840.
This is not a static determination. In a suit for
37
prospective relief, "the subjective factor, deliberate
indifference, should be determined in light of the prison
authorities' current attitudes and conduct," including "their
attitudes and conduct at the time suit is brought and persisting
thereafter." Farmer, 511 U.S. at 845, quoting Helling, 509 U.S.
at 36. In making the requisite showing of subjective
culpability, the prisoner may rely "on developments that
postdate the pleadings and pretrial motions, as [prison
officials] may rely on such developments to show that the
[prisoner] is not entitled to an injunction." Farmer, supra at
846.
b. Analysis.17 Following the United States Supreme Court's
reasoning in Estelle, 429 U.S. at 106, and Helling, 509 U.S.
at 32-33, concerning prison officials' Eighth Amendment duty to
take reasonable steps to protect inmates from the spread of
serious communicable diseases, inmates across the country have
The plaintiffs urge that, rather than the objective and
17
subjective components of deliberate indifference, this court
apply the objective standard used in Kingsley v. Hendrickson,
135 S. Ct. 2466, 2473 (2015), in evaluating their Eighth
Amendment claims. This reasoning is misguided. Kingsley
involved a claim by a pretrial detainee under 42 U.S.C. § 1983,
concerning the use of excessive force. The detainee asserted a
violation of his substantive due process rights. Accordingly,
to prevail, he was required to show only that the intentional
use of force was excessive or objectively unreasonable, and not
that the official intended it to be so. This standard, however,
is inapplicable to claims of deliberate indifference under the
Eighth Amendment.
38
brought a variety of actions successfully challenging the
policies, or lack of policies, of prison officials regarding the
spread of contagious diseases and other conditions that threaten
health throughout a prison. In Lareau v. Manson, 651 F.2d 96,
109 (2d Cir. 1981), for example, the United States Court of
Appeals for the Second Circuit applied this line of reasoning to
hold prison officials liable for violating the Eighth Amendment
when they made no efforts to screen incoming inmates for
contagious diseases, despite significant overcrowding that
further heightened the risk of infection. The court held that
aggrieved prisoners need not demonstrate that "an infectious
disease has actually spread in an overcrowded jail before
issuing a remedy." Id. See, e.g., DeGidio v. Pung, 920 F.2d
525, 533 (8th Cir. 1990) (prison officials were deliberately
indifferent to inmates' serious medical needs by consistent
pattern of reckless or negligent conduct in failing to prevent
and control prison's tuberculosis epidemic); Dunn v. White, 880
F.2d 1188, 1195 (10th Cir. 1989), cert. denied, 493 U.S. 1059
(1990) (observing that prison's failure to protect incarcerated
inmates from human immunodeficiency virus [HIV] infection may
violate Eighth Amendment); Smith v. Sullivan, 553 F.2d 373, 380
(5th Cir. 1977) (concluding that housing scabies- and gonorrhea-
infected inmates with healthy prisoners violates Eighth
Amendment).
39
Where the risk of serious harm is substantial, but prison
officials have undertaken significant steps to try to reduce the
harm and protect inmates, courts have concluded that there was
no Eighth Amendment liability.18 In Butler v. Fletcher, 465 F.3d
340, 345 (8th Cir. 2006), cert. denied, 550 U.S. 917 (2007), for
example, the United States Court of Appeals for the Eighth
Circuit determined that the sheriff in charge of a county jail
was not deliberately indifferent to the risk of a tuberculosis
infection within the jail where the county adopted "policies
[that] specifically acknowledged the risk and promulgated
detailed procedures for the diagnosis, segregation, and
treatment of . . . inmates infected with active cases of
[tuberculosis]." See Johnson v. United States, 816 F. Supp.
1519, 1522-1525 (N.D. Ala. 1993) (applying reasoning in Lareau,
651 F.2d at 109, and concluding that inmate did not establish
violation of Eighth Amendment from being housed in cell with
patient who was dying from acquired immune deficiency syndrome,
where prison officials' policies educated inmates on "universal
precautions" and prohibited type of high risk behavior that
18Courts have relied on similar reasoning in considering
prison officials' policies with respect to other widespread
risks to health and safety. See, e.g., Rish v. Johnson, 131
F.3d 1092, 1099 (4th Cir. 1997) (requiring inmates to clean up
blood and bodily fluids without providing them gloves); Wallis
v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995) (requiring inmate
to clean attic full of asbestos, known carcinogen, without
protective equipment).
40
could result in HIV infection).
While there are as yet no appellate court decisions on
claims asserting a violation of the Eighth Amendment due to the
increased risk of exposure to COVID-19 in prisons, a number of
Federal District Courts have considered the issue using a
similar analysis. For example, in Baez, No. 20-10753-LTS, the
United States District Court for the District of Massachusetts
concluded that the inmate-petitioners had not established a
likelihood of success on the merits. Given prison officials'
"many measures and policies aimed at keeping COVID-19 from
entering the facility," and the "meaningful actions" undertaken
"aimed at controlling and mitigating against the spread of
COVID-19 within the facility," the plaintiffs were unlikely to
show that prison officials had been "obdurate, wonton, or
reckless with respect to [the risk of COVID-19], or . . .
otherwise failed to take reasonable steps aimed at preventing or
mitigating the risk that COVID-19 presents to those detained."
Id. In Kevin M.A. vs. Decker, U.S. Dist. Ct., No. 20-4593 (KM)
(D.N.J. May 1, 2020), the United States District Court for the
District of New Jersey concluded that, due to the "numerous
affirmative steps to try and stop the spread of COVID-19" taken
by jail officials, and the "protocols for individuals who
exhibit symptoms," the inmate-petitioner had failed to
demonstrate deliberate indifference, notwithstanding that he
41
became ill with COVID-19 while in custody.
To combat the spread of COVID-19 as far as possible, the
DOC has undertaken a number of measures, set forth in the
appointed judge's findings of fact, many of which are stipulated
to by the parties. These measures included lockdowns of the
facilities; prohibiting all outside visitors; restrictions and
self-examination on entry to any facility; isolation of
symptomatic inmates and those who have tested positive;
requiring staff to stay home for fourteen days if they have any
symptoms; mandating that staff wear masks when in contact with
inmates; distribution of additional cleaning supplies to all
inmates; increased cleaning of frequently touched surfaces;
making alcohol-based hand sanitizer available to inmates in
numerous facilities; having inmates eat in their cells or
housing units rather than at tables in larger groups; and
instructions, posters, and information on COVID-19 and its
spread, in both Spanish and English. To reduce inmates
congregating in close contact with each other, the DOC has
eliminated most group programming, work release, and academic
and job skills classes, as well as outdoor recreation time and
access to gyms and libraries, i.e., any activities where groups
of inmates would be together.
Over the course of this litigation, the DOC has obtained
and distributed PPE to staff and, recently, all inmates. It has
42
required that staff in contact with inmates, and all inmates who
leave their cells or dormitories, wear masks at all times. The
DOC also recently has instituted some limited amount of outdoor
time for all inmates, in small groups approximately every four
days, so that physical distancing can be maintained.
In evaluating whether deliberate indifference has been
established, courts often have examined guidelines and standards
from professional associations and State codes. "Published
standards of medical care or adopted guidelines such as the
tuberculosis manuals . . . do not establish absolute standards
for measuring the constitutionality of official actions. But
neither may they be ignored by [S]tate officials, however. Such
standards and guidelines are useful measures for 'determining
whether contemporary standards of decency have been met.'"
DeGidio v. Pung, 704 F. Supp 922, 956 (D. Minn. 1989), aff'd,
920 F.2d 525 (8th Cir. 1980), quoting Ramos v. Lamm, 639 F.2d
559, 567 n.10 (10th Cir. 1980), cert. denied, 450 U.S. 1041
(1981). See, e.g., Lareau, 651 F.2d at 106 ("To inform itself
of contemporary standards, the district court considered
correctional guidelines and standards from a number of
organizations"). See also Williams v. Edwards, 547 F.2d 1206,
1214 (5th Cir. 1977) ("In the past we have affirmed findings of
constitutional violations based in part on [S]tate code
violations. . . . Such a standard is a valuable reference for
43
what is minimal for human habitation in the public view, thus
serving as an indicator of evolving notions of decency"
[quotation and citation omitted]).
At oral argument, the plaintiffs were unable to point to
any area in which they assert that the DOC is not in compliance
with the CDC's interim guidance on prisons and jails with
respect to COVID-19. When questioned, the plaintiffs conceded
that the DOC in fact is in compliance with all CDC interim
guidance for correctional facilities. While compliance with
professional guidance is not enough, on its own, to establish
constitutionality (or a lack thereof), see Bell v. Wolfish, 441
U.S. 520, 543 n.27 (1979), such compliance does provide useful
indications to be considered in conjunction with other factors,
see Ramos, 639 F.2d at 567 n.10 ("a variance from [S]tate
standards or from standards promulgated by certain professional
organizations does not establish a per se constitutional
violation[;] it is a factor to be considered in determining
whether contemporary standards of decency have been met"). The
DOC's current compliance with CDC's interim guidance weighs
against a determination that the plaintiffs are likely to
succeed on the merits of their claims.
Another notable factor is the DOC's current widespread
testing program. As stated, testing, contact tracing, and
quarantine are considered the sine qua non of any effort to
44
control the COVID-19 pandemic. See generally Interim Guidance,
supra. On March 19, 2020, the DOC first tested a symptomatic
inmate for COVID-19. Thereafter during that early period, only
inmates who presented as symptomatic, or, in a few cases, those
who had been in close contact with an inmate who had tested
positive, were being tested for COVID-19. When the plaintiffs
first commenced this action, the special master in CPCS v. Trial
Court, 484 Mass. at 456-457 (Appendix B), was presenting daily
reports showing little to no testing for COVID-19 at many
facilities, and, in particular, no testing of inmates at
facilities where a correction officer or other staff member had
tested positive for COVID-19. Based on the special master's
reports, the plaintiffs and the amicus American Civil Liberties
Union urged this court to conclude that there had been an Eighth
Amendment violation due to an apparent lack of basic contact
tracing, testing, and isolation, as recommended by the CDC, and
asked us to order testing of all inmates in DOC facilities. At
the same time, when the complaint in this case first was filed,
and even after the matter was assigned to the Superior Court
judge for fact finding, the DOC was asserting difficulty in
obtaining tests and a shortage of tests in all facilities.
Since that initial period of a few tests for symptomatic
inmates, if a test was recommended by an individual clinician
and as tests were available, the DOC has modified its testing
45
strategies substantially. After oral argument in this case, and
increasingly throughout the month of May, the DOC has begun
widespread testing of nonsymptomatic inmates, as well as
offering testing to all correction officers upon request.
At oral argument, the attorney for the DOC stated that the
DOC had access to 10,000 COVID-19 tests, and that the DOC was
planning a large-scale testing program. In response to requests
by this court for additional information on the subject pursuant
to Mass. R. A. P. 16 (l), the DOC clarified that, as of May 11,
2020, it had 2,073 tests in its possession, was using a mobile
testing van to conduct tests, had been assured that there was
now no limit on the number of tests that it would be able to
obtain, and had begun to implement a system-wide testing plan.
Under this plan, all inmates and all staff at each facility,
regardless of whether they are symptomatic, will be offered
tests, and all facilities will have been tested by May 31, 2020,
following a schedule of approximately two days of testing at
each site.
Current widespread DOC testing efforts, if continued as
planned, will provide much of the testing relief that the
plaintiffs, and the amicus American Civil Liberties Union, urge
this court to order. This further supports the conclusion that
the plaintiffs are not likely to succeed on the merits of their
claims for violations of the Eighth Amendment.
46
In sum, on this record, it appears unlikely that the
plaintiffs will be able to establish deliberate indifference on
the part of the DOC regarding their conditions of confinement as
a result of the pandemic. We turn to consider their claims for
violations of substantive due process.
5. Substantive due process claims for individuals
committed under G. L. 123, § 35. The plaintiffs argue that
commitment to a secured facility for substance abuse treatment
during the COVID-19 pandemic violates committed individuals'
substantive due process rights.
a. Professional judgment. In Youngberg, 457 U.S. at 315–
316, individuals who had been civilly committed based on
intellectual disabilities brought substantive due process
challenges regarding their conditions of confinement. The
United States Supreme Court concluded that, "[i]f it is cruel
and unusual punishment to hold convicted criminals in unsafe
conditions, it must be unconstitutional to confine the
involuntarily committed -- who may not be punished at all -- in
unsafe conditions." Id. Therefore, "when the State takes a
person into its custody and holds him [or her] there against his
[or her] will the Constitution imposes upon it a corresponding
duty to assume some responsibility for his [or her] safety and
general well-being." DeShaney v. Winnebago County Dep't of
Social Servs., 489 U.S. 189, 199-200 (1989), citing Youngberg,
47
supra at 317. See Williams v. Hartman, 413 Mass. 398, 403
(1992).
Relying on these holdings, the plaintiffs maintain that
commitment for substance abuse treatment during the COVID-19
pandemic creates unsafe conditions of confinement. Under
Youngberg, 457 U.S. at 323, however, to establish a violation of
substantive due process, it is not sufficient to allege only
that conditions are unsafe. Rather, the test is whether a
"decision by [a] professional is such a substantial departure
from accepted professional judgment, practice, or standards as
to demonstrate that the person responsible actually did not base
the decision on such a judgment."19 See Hopper v. Callahan, 408
Mass. 621, 626–627 (1990), quoting Youngberg, supra.
The plaintiffs contend that commitment to a secured
facility during the COVID-19 pandemic is so contrary to
19In determining whether there was a violation of
substantive due process, some courts have applied the standard
of deliberate indifference to decisions made by
nonprofessionals. See, e.g., Lanman v. Hinson, 529 F.3d 673,
684 (6th Cir. 2008). This court, however, has rejected the
application of the deliberate indifference standard to
individuals who have been civilly committed because of their
intellectual disabilities. See Hopper v. Callahan, 408 Mass.
621, 627 & n.4 (1990). Additionally, the United States Supreme
Court's decision in Kingsley, 135 S. Ct. at 2473, casts doubt on
the applicability of a subjective standard to claims challenging
conditions of confinement for nonsentenced individuals. See
Smith v. Washington, 781 Fed. Appx. 595, 597-598 (9th Cir.
2019), quoting Castro v. County of Los Angeles, 833 F.3d 1060,
1071 (9th Cir. 2016), cert. denied, 137 S. Ct. 831 (2017)
(applying objective test to civil detainees).
48
substance abuse treatment principles that it necessarily
constitutes a substantial departure from professional judgment.
They rely on the COVID-19 guidance from the Substance Abuse and
Mental Health Services Administration (SAMHSA), an entity within
the United States Department of Health and Human Services, which
states that residential treatment "has not been shown to be
superior to intensive outpatient treatment." Therefore,
"[b]ecause of the substantial risk of coronavirus spread with
congregation of individuals in a limited space such as in an
inpatient or residential facility, SAMHSA is advising that
outpatient treatment options, when clinically appropriate, be
used to the greatest extent possible." SAMHSA, Considerations
for the Care and Treatment of Mental and Substance Use Disorders
in the COVID-19 Epidemic (rev. May 7, 2020).
Contrary to the plaintiffs' characterizations, this
guidance does not state that inpatient treatment is never
advisable during the pandemic. Rather, SAMHSA states that
"[i]npatient facilities and residential programs should be
reserved for those for whom outpatient measures are not
considered an adequate clinical option[, such as] those with
mental disorders that are life threatening." Id. Commitment
under G. L. c. 123, § 35, intended to be a "carefully
circumscribed . . . tool of last resort," by definition is
limited to situations in which the individual poses a likelihood
49
of serious harm. See Matter of a Minor, 484 Mass. 295, 311
(2020). If outpatient treatment, or any other plausibly
available option, would "bring the risk of harm below the
statutory thresholds that define a likelihood of serious harm,"
a judge may not commit the subject of a petition to any
facility, secure or unsecure. See id. at 310, citing Matter of
G.P., 473 Mass. at 128-129.
Commitment to a secure facility requires an additional
finding that an unsecure facility is unavailable or
insufficient. See G. L. c. 123, § 35. Once committed, the
superintendent of the facility may release an individual early
if there is not a likelihood of serious harm. See id. These
restrictions, if followed, should limit commitment to
individuals "for whom outpatient measures are not considered an
adequate clinical option," as recommended by SAMHSA.
The plaintiffs have presented no evidence of individuals
having been committed in contravention of these requirements.
Nonetheless, the plaintiffs maintain that commitment for
substance use disorder during the pandemic constitutes a
violation of professional judgment in every case. Without a
more complete factual record, and without expert guidance, we
are not able to reach such a broad conclusion.
b. Reasonable relation. The plaintiffs argue also that
civil commitment for substance abuse treatment during the COVID-
50
19 pandemic does not advance sufficiently the treatment goals of
G. L. c. 123, § 35, and therefore violates their substantive due
process rights. Due process under the Federal Constitution
"requires that the conditions and duration of confinement under
the [statute] bear some reasonable relation to the purpose for
which persons are committed." Seling v. Young, 531 U.S. 250,
265 (2001), citing Foucha v. Louisiana, 504 U.S. 71, 79 (1992).
As the DOC notes in its opposition, however, under the
Massachusetts Declaration of Rights, civil commitment is subject
to a higher level of judicial review, i.e., strict scrutiny.
See Matter of a Minor, 484 Mass. at 309. Under strict scrutiny
review, a statute cannot stand unless it is "narrowly tailored
to further a legitimate and compelling governmental interest and
[is] the least restrictive means available to vindicate that
interest." Commonwealth v. Weston W., 455 Mass. 24, 35 (2009).
Both the "reasonable relation" standard and review under
strict scrutiny require the government to identify a purpose for
which a statute was enacted, and to show how the government
action is connected to that purpose. Review under strict
scrutiny, however, requires the government meet a much higher
burden for both elements of the test. Rather than simply
identifying a permissible purpose, the government must show that
the statute is designed to address a compelling government
interest. Otherwise put, here, rather than requiring only that
51
the civil confinement be reasonably related to the government's
interest, the confinement must be narrowly tailored to that
interest as well as the least restrictive means by which to
accomplish the intended goal.
Because the plaintiffs presented their arguments to us
under the Federal standard, we address it first. In Doe v.
Gaughan, 808 F.2d 871, 874 (1st Cir. 1986), the plaintiffs
argued that, because they were committed to a correctional
institution, rather than a mental health facility, the nature of
their confinement was not reasonably related to the purpose for
which they were confined. The United States Court of Appeals
for the First Circuit disagreed; the court concluded that the
secure facility bore a "reasonable relationship both to the
[S]tate's public safety needs and to the patients' own
therapeutic interests in a secure environment." See id. at 878.
Conversely, in Jackson v. Indiana, 406 U.S. 715, 738-739 (1972),
the United States Supreme Court held that the confinement of an
incompetent defendant for more than three years bore no
reasonable relation to his commitment because there was no
substantial probability of his becoming competent.
General Laws c. 123, § 35, states that the purpose of
commitment is "inpatient care for the treatment of an alcohol or
substance use disorder." This treatment is intended to promote
the health and safety of the individual committed and others, as
52
demonstrated by the statutory requirement that a committed
individual pose a danger to him- or herself, or a member of the
community. See G. L. c. 123, § 35. Therefore, if patients are
not receiving meaningful and reasonably effective treatment for
substance use disorders, which advances their health and safety,
their commitment violates Federal due process requirements.
The DOC and the Hampden County sheriff's office report that
committed individuals are held for the first fourteen days in a
separate unit and do not participate in group programming. The
plaintiffs argue that, during those fourteen days, committed
individuals receive "next to no treatment," and thus that their
confinement bears no reasonable relationship to the purpose of
commitment. The DOC reports, however, that after an initial
three-day observation period has ended, and the individual has
been "detox cleared," the individual receives daily "individual
services" from a substance abuse disorder counsellor. The
Hampden County sheriff's office reports that individuals receive
substance abuse treatment during their first fourteen days of
commitment. The record contains no information regarding the
nature and extent of these services.
We agree that, if the first fourteen days involve no real
treatment, or only minimal treatment, the plaintiffs would have
a strong claim. The DOC's deputy commissioner of clinical
services and reentry avers that many individuals are released
53
after thirty days of confinement. As the plaintiffs note, the
first fourteen days of confinement account for almost one-half
of the total period of commitment for those individuals.
Without more information regarding the limited treatment
provided, however, and without expert testimony regarding the
efficacy of that limited treatment, we cannot conclude that
commitment during the pandemic bears no reasonable relation to
the purposes of the statute.
c. Strict scrutiny. As stated, the plaintiffs' complaint
and its arguments before this court rest on substantive due
process requirements under the Federal standard. Because civil
commitment involves a loss of liberty, a fundamental
constitutional right, however, we also consider the plaintiffs'
constitutional claims under the more stringent standard embodied
in the Massachusetts Declaration of Rights. "In substantive due
process analysis, the nature of the individual interest at stake
determines the standard of review that courts apply when
deciding whether a challenged statute meets the requirements of
the due process clause." Aime v. Commonwealth, 414 Mass. 667,
673 (1993). See R.B., petitioner, 479 Mass. 712, 717–718
(2018); Commonwealth v. Travis, 372 Mass. 238, 246 (1977).
Freedom from physical restraint is a paradigmatic
fundamental right, essential to a free society. See Pembroke
Hosp. v. D.L., 482 Mass. 346, 347 (2019), citing Matter of E.C.,
54
479 Mass. 113, 119 (2018). Civil commitment under G. L. c. 123,
§ 35, thus is subject to strict scrutiny under the due process
protections in the Massachusetts Declaration of Rights.
Accordingly, the statute "must be narrowly tailored to serve a
compelling governmental interest" and "also be the least
restrictive means available to vindicate that interest."
Massachusetts Gen. Hosp. v. C.R., 484 Mass. 472, 489 (2020).
Here, the question whether G. L. c. 123, § 35, could
survive strict scrutiny review, absent a pandemic, is not before
us. As nothing in the plaintiffs' filings or the record touches
on the question of strict scrutiny, we assume without deciding,
as we did in Matter of a Minor, 484 Mass. at 309 n.9, that the
statute at baseline does not violate substantive due process.
Accordingly, we examine whether the current public health crisis
alters the strict scrutiny analysis such that commitment to a
secure facility during the COVID-19 pandemic must be
unconstitutional.
As stated, the purpose of commitment for substance abuse
treatment is to promote the health and safety of the committed
individual and others through such treatment. We have no
evidence that the dangers of substance use disorders, or the
need for treatment, have diminished during the COVID-19
pandemic. Thus, issues regarding COVID-19 have no impact on the
question whether there is a compelling and legitimate government
55
interest.
The pandemic, however, may affect whether commitment is
narrowly tailored to that interest. If the commitment and
treatment do not promote effectively the government's interest
in the individual's and others' health and safety, the
government action cannot survive strict scrutiny. See Grutter
v. Bollinger, 539 U.S. 306, 333 (2003) ("means chosen . . . must
be specifically and narrowly framed to accomplish [their]
purpose" [citation omitted]). In this regard, the increased
risk of COVID-19 transmission in congregate settings is highly
pertinent.
As we recognized in CPCS v. Trial Court, 484 Mass. at 436,
"confined, enclosed environments increase transmissibility" of
COVID-19. "[M]aintaining six feet of distance between oneself
and others . . . may be nearly impossible" in these settings.
Id. As with the jails and prisons at issue in that case,
"proper sanitation is also a challenge" for the commitment
facilities, as shown by DPH inspections in January and February
of 2020, identifying dozens of repeat violations at MASAC and
the Stonybrook facilities.20 Id. at 436-437.
The record here contains only the plaintiffs' summaries
20
of what the DPH reports state, and not the actual reports. We
have taken judicial notice of some of the publicly accessible
reports, which are available for download on the DPH's website,
and which are consistent with the plaintiffs' representations.
56
At the same time, these facilities have taken significant
steps to lessen the risk of transmission of COVID-19. Staff
members are required to wear masks when in contact with
patients, as well as gloves for some activities, and all
committed individuals have been given masks. Newly committed
individuals are placed in a separate unit for the first fourteen
days and are not permitted to attend group sessions. All
persons entering the facilities are screened for symptoms of
COVID-19. Soap and hand sanitizer are widely available, and
multiple other hygiene-related protocols have been instituted.
Although the expert affidavits discuss the general risk of
transmission in correctional facilities, they do not
specifically address conditions at MASAC or in the Stonybrook
facilities. Nor do they address whether the pandemic changes
the need for or the efficacy of commitment to a secure facility
for substance use disorder treatment. Moreover, on this record,
the plaintiffs have not presented evidence indicating that a
less restrictive alternative would have been sufficient to avoid
a likelihood of serious harm for any currently committed
individuals. See Massachusetts Gen. Hosp., 484 Mass. at 483–484
("record . . . reveals no realistic alternative"). Given the
limited record before us, we cannot say that there has been a
57
fundamental change in the need for or efficacy of commitment.21
We conclude that the plaintiffs have not shown a likelihood of
success on the merits. See Garcia v. Department of Hous. &
Community Dev., 480 Mass. 736, 747 (2018).
Nonetheless, we see fit to address the situation under our
supervisory authority. Going forward, a judge shall not commit
an individual under G. L. c. 123, § 35, unless the judge finds
that the danger posed by the individual's substance use disorder
outweighs the risk of transmission of COVID-19 in congregate
settings. "Given the high risk posed by COVID-19 for people who
are more than sixty years of age or who suffer from a high-risk
condition as defined by the CDC, the age and health of [the
individual] should be factored into [the] determination." CPCS
v. Trial Court, 484 Mass. at 449. Additionally, the judge must
find that commitment is necessary notwithstanding the treatment
limitations imposed by quarantine protocols. A judge's findings
may be made in writing or orally on the record. These
requirements will remain in effect for the duration of the
21These considerations apply as much to nonsecure,
inpatient treatment facilities as they do to the secure
facilities at issue here. The record is devoid of any
information regarding the conditions present in nonsecure
treatment facilities in the Commonwealth. Therefore, we have no
basis for determining whether COVID-19 transmission is more
likely in secure locations, and accordingly are unable to make a
determination on the plaintiffs' alternative request for
transfers to nonsecure facilities.
58
COVID-19 state of emergency, unless altered by further order of
this court. These are additional, temporary requirements beyond
those imposed by G. L. c. 123, § 35, due process principles, and
any other applicable law. See Matter of a Minor, 484 Mass. at
307-310; Matter of G.P., 473 Mass. at 120-122, 124-129.
Furthermore, as with the bail determinations that were the
subject of much of our decision in CPCS v. Trial Court, 484
Mass. at 434-436, current orders of commitment may have been
made without consideration of the crisis currently ravaging the
planet. We therefore conclude that the risks of COVID-19
transmission constitute a "material change in circumstances"
with regard to any order of commitment currently in effect. See
Littles v. Commissioner of Correction, 444 Mass. 871, 878
(2005); Commonwealth v. Cronk, 396 Mass. 194, 196 (1985). See
also CPCS v. Trial Court, supra at 435 ("risks inherent in the
COVID-19 pandemic constitute a changed circumstance" under bail
statutes). Any individual who is committed pursuant to G. L.
c. 123, § 35, at the time of the issuance of the slip opinion in
this case may file a motion for reconsideration of the
commitment order. Hearings shall take place by videoconference
or teleconference no later than two business days after the
filing of the motion. A decision on the motion shall be
rendered promptly.
6. Ongoing response to the continuing pandemic.
59
Conditions as a result of the pandemic, and society's response
to them, are changing rapidly. The CDC's interim guidance
itself states that it is subject to change and that individual
guidelines "may need to be adapted based on individual
facilities' physical space, staffing, population, operations,
and other resources and conditions." Interim Guidance, supra
at 1. While the court acknowledges the DOC's significant
efforts to reduce the risks for incarcerated individuals due to
the pandemic, to date the crisis generated by the pandemic
continues worldwide. All of the defendants must remain vigilant
in continuing to respond swiftly to ongoing and changed
conditions brought about as a result of the pandemic, while
retaining the testing, contact tracing, and quarantining
policies they now have put in place, that the CDC recognizes as
the heart of any plan to combat the pandemic.
Moreover, as the commissioner's counsel acknowledged at
oral argument, while the pandemic continues, the lockdown
conditions instituted by the DOC to prevent a serious risk of
harm themselves risk becoming Eighth Amendment violations. The
CDC's interim guidance notes that measures taken by correction
facilities to reduce transmission of COVID-19, such as canceling
activities and visitation, may be deleterious to the mental
health of inmates. These effects necessarily will be even more
pronounced for inmates in solitary cells, who are segregated
60
from all other humans for twenty-three or more hours per day.
Solitary confinement, even when imposed for good reason, "bears
'a . . . terror and peculiar mark of infamy.'" See Davis v.
Ayala, 135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring),
quoting In re Medley, 134 U.S. 160, 170 (1890). "[C]ommon side-
effects of solitary confinement include anxiety, panic,
withdrawal, hallucinations, self-mutilation, and suicidal
thoughts and behaviors." Davis, supra at 2210, citing Grassian,
Psychiatric Effects of Solitary Confinement, 22 Wash. U.J.L. &
Pol'y 325 (2006). "Suicides, attempts at suicide, and self-
mutilations are common among inmates thus confined." Ruiz v.
Estelle, 503 F. Supp. 1265, 1360 (S.D. Tex. 1980), aff'd in
part, rev'd in part, 679 F.2d 1115, amended in part, vacated in
part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042
(1983). Thus, "even the permissible forms of solitary
confinement might violate the Eighth Amendment if
[i]mposed . . . for too long a period" (quotations and citation
omitted). Jackson v. Meachum, 699 F.2d 578, 582 (1st Cir.
1983). See Hardwick v. Ault, 447 F. Supp. 116, 126 (M.D. Ga.
1978) ("indefinite duration of confinement shock[ed] the
conscience," especially in cell block "where prisoners [would]
go for several days without leaving their cell except briefly").
Similarly, deprivation of exercise may be "'reasonable' in
certain situations, such as during a 'state of emergency.'"
61
Thomas v. Ponder, 611 F.3d 1144, 1155 (9th Cir. 2010). Long-
term "deprivation of exercise" on the other hand, "may
constitute an impairment of health forbidden under the [E]ighth
[A]mendment." Miller v. Carson, 563 F.2d 741, 751 n.12 (5th
Cir. 1977), citing Estelle, 429 U.S. at 97. See Spain v.
Procunier, 600 F.2d 189, 199 (9th Cir. 1979) ("denial of fresh
air and regular outdoor exercise and recreation [over period of
years] constitutes cruel and unusual punishment"); Ruiz, 503 F.
Supp. at 1367 ("Even if accomplished according to appropriate
procedures and for valid reasons, long term confinement of
inmates in administrative segregation, without opportunities for
recreation, constitutes cruel and unusual punishment"); Sinclair
v. Henderson, 331 F. Supp. 1123, 1131 (E.D. La. 1971)
("Confinement for long periods of time without the opportunity
for regular outdoor exercise does, as a matter of law,
constitute cruel and unusual punishment . . .").
At this juncture, it appears that the COVID-19 pandemic
will continue to demand extraordinary, and coordinated, efforts
by all parties, as well as the courts. This is so also with
respect to the different entities within the executive branch.
Even the commissioner acknowledged at oral argument that
reducing the number of incarcerated individuals being held in
any given facility, if it can be done lawfully, is a desirable
goal for controlling the spread of communicable diseases such as
62
COVID-19. In their brief, the plaintiffs point to numerous
measures that they assert have been undertaken in other States
to reduce prison populations, among them release to home
confinement, enhanced good time sentence deductions, and early
parole.
With respect to one such measure, release to home
confinement for those who have been serving a sentence, for
example, the commissioner asserted before the hearing judge that
she believes the DOC has no authority to authorize such releases
for inmates who are serving sentences. We agree with Chief
Justice Gants that G. L. c. 127, §§ 48, 49, 49A, and this
court's holding in Donohue, 452 Mass. at 265, indeed would allow
the commissioner to release certain individuals who currently
are serving a sentence in a prison or house of correction to
home confinement, under specified conditions, prior to the
completion of their committed sentences, for certain
educational, employment, and training programs. See post
at .
The specific measures the defendants might choose to reduce
the number of incarcerated individuals in DOC custody are not as
important as the goal of reduction, and not ordinarily for a
court to decide. Nonetheless, the DOC's argument that, due to
concerns regarding separation of powers under art. 30 of the
Massachusetts Declaration of Rights, this court would never have
63
authority to order a reduction in the prison population is
unavailing; should the court conclude, at a later point, that
the defendants have held inmates under unconstitutional
conditions of confinement, it would have authority to issue
orders necessary to remedy that situation.
As two justices of the United States Supreme Court
commented recently with respect to the determination by a United
States Court of Appeals to stay a Federal District Court judge's
order granting a preliminary injunction sought by a group of
particularly vulnerable incarcerated inmates due to their
conditions of confinement, "[i]t has long been said that a
society's worth can be judged by taking stock of its prisons.
That is all the truer in this pandemic, where inmates everywhere
have been rendered vulnerable and often powerless to protect
themselves from harm. May we hope that our country's facilities
serve as models rather than cautionary tales." Valentine vs.
Collier, U.S. Supreme Court, No. 19A1034 (May 14, 2020).
Conclusion. The motion for a preliminary injunction is
denied. The matter is transferred to the Superior Court, where
litigation on the complaint shall proceed as an emergency
matter, with due speed in consideration of the circumstances,
before the same Superior Court judge who was designated to make
findings of fact with respect to the motion for a preliminary
injunction. In addition to rulings on the merits, the judge
64
shall resolve all questions of class certification, including
any amendment of the complaint or substitution of parties.
So ordered.
GANTS, C.J. (concurring, with whom Lenk and Budd, JJ.,
join). The essence of this case is summarized in a single
sentence in the judge's findings of fact: "Commissioner Mici
[(commissioner)] believes that [the Department of Correction
(DOC)] is doing the best it can to manage the COVID-19 crisis
given the physical layout of the facilities and the inmate
population." The record supports her belief that the DOC is
doing "the best it can" to attempt to prevent the COVID-19 virus
from entering prisons and to limit its spread within the
facilities that it has entered. And it is likely true that, for
all practical purposes, the "physical layout" of prison
facilities is a "given," in that it cannot be materially altered
quickly enough to make a significant difference.
But even acknowledging that public safety would not permit
a drastic reduction of the prison population, the inmate
population is not a "given." The commissioner herself
recognizes, as do the World Health Organization1 and the United
1 "Enhanced consideration should be given to resorting to
non-custodial measures at all stages of the administration of
criminal justice, including at the . . . post-sentencing
stage[]. Priority should be given to non-custodial measures for
alleged offenders and prisoners with low-risk profiles and
caring responsibilities . . . ." World Health Organization
Regional Office for Europe, Preparedness, Prevention and Control
of COVID-19 in Prisons and Other Places of Detention, at 4 (Mar.
15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019
/434026/Preparedness-prevention-and-control-of-COVID-19-in-
prisons.pdf [https://perma.cc/4ZGQ-RN5U].
2
States Department of Justice,2 that measures should be taken to
reduce the inmate population and that doing so can help to
contain the spread of COVID-19. To be sure, the commissioner
makes clear that any such reduction should be done in a manner
that is consistent with law and appropriate in light of the
health and safety of the public. I agree, and I write
separately from the court's opinion (with which I wholeheartedly
agree) to make three points. First, there is considerably more
that the DOC and the parole board can do to reduce the inmate
population, consistent with law and appropriate in terms of
public health and safety. Second, as the pandemic drags on, it
is even more important to press forward with such reductions
because the current lockdown that is being used by the DOC to
contain the virus cannot reasonably continue indefinitely. And
third, although what the DOC and parole board are doing now may
not likely demonstrate a reckless disregard for the health and
safety of prisoners arising from the risk of transmission of the
2 On March 26, 2020, and again on April 3, 2020, the United
States Attorney General instructed the Federal Bureau of Prisons
to prioritize the use of home confinement as a tool for
combatting the risk that COVID-19 poses to vulnerable inmates
while protecting public safety. See Office of the Attorney
General, Prioritization of Home Confinement as Appropriate in
Response to COVID-19 Pandemic (Mar. 26, 2020), https://www
.justice.gov/file/1262731/download [https://perma.cc/3RKS-8FYN];
Office of the Attorney General, Increasing Use of Home
Confinement at Institutions Most Affected by COVID-19 (Apr. 3,
2020), https://www.justice.gov/file/1266661/download [https:
//perma.cc/RK4L-4B93].
3
COVID-19 virus, continuing unchanged along that same path in the
months ahead might constitute reckless disregard, especially if
we are hit with a new wave of COVID-19 cases.
1. More can be done to reduce the prison population. In
2019, approximately 600 inmates were released each month from
DOC custody. Those releases were offset by 557 admissions per
month, yielding a net monthly reduction of 43 inmates. However,
as a result of the pandemic, the number of criminal admissions
has dramatically fallen, from 190 in January and 161 in February
2020, to 87 in March and 15 in April. Given the sharp reduction
in criminal admissions, one would expect that the over-all
prison population would naturally fall, and it has by
approximately eight percent between January 1 and May 21.3 But
the vast majority of this decrease arises from the drop in
admissions; actual releases grew only modestly in April 2020 to
526 (compared to an average of 424 in January through March
2020), with virtually all of the increase in releases arising
from an increase in parole permits in April to 141 (compared to
a monthly average of 52 in January through March 2020). In
contrast, the county jail population, in large part fueled by
3 There were 7,923 inmates in DOC custody on January 1,
2020, see MA DOC Jan 1 Inmate Snapshot, https://public.tableau
.com/profile/madoc#!/vizhome/MADOCJan1Snapshot/Jan1Snapshot,
dropping to 7,278 by May 21, see May 21, 2020 Special Master's
Report.
4
our decision in Committee for Pub. Counsel Servs. v. Chief
Justice of the Trial Court, 484 Mass. 431 (2020), fell more than
thirty per cent between April 5 and May 21, 2020. See May 21,
2020 Special Master's Report. To be sure, it is far easier to
release detainees who have yet to be tried than sentenced
prisoners. But the fact remains that more inmates can be
released in accordance with law, without compromising public
health and safety.
a. Home confinement. The commissioner claims that she
does not have the legal authority to allow any sentenced
prisoner to serve any part of a prison sentence in home
confinement. The commissioner is mistaken.
Under G. L. c. 127, § 48, "[t]he commissioner shall
establish and maintain education, training and employment
programs for persons committed to the custody of the [DOC].
. . . Such programs shall include opportunities for academic
education, vocational education, vocational training, other
related prevocational programs and employment, and may be made
available within correctional facilities or, subject to the
restrictions set forth in [G. L. c. 127, §§ 49 and 86F], at
other places approved by the commissioner or administrator"
(emphasis added). Id. General Laws c. 127, § 49, provides:
"The commissioner of correction, or the administrator of a
county correctional facility, subject to rules and
regulations established in accordance with the provisions
5
of this section, may permit an inmate who has served such a
portion of his sentence or sentences that he would be
eligible for parole within eighteen months to participate
in education, training, or employment programs established
under [§ 48] outside a correctional facility . . . . In
the case of a committed offender who participates in any
program outside a correctional facility established under
[§ 48], the time spent in such participation shall be
credited toward the serving of his sentence in the same
manner as though he had served such time within the
facility. . . . The commissioner or such administrator
shall make and promulgate rules and regulations regarding
programs established under [§ 48] outside correctional
facilities. Such rules and regulations shall include
provisions for reasonable periods of confinement to
particular correctional facilities before a committed
offender may be permitted to participate in such programs
and provisions for feeding, housing and supervising
participants in such programs in such manner as will be
calculated to maintain morale and prevent the introduction
of contraband to the facility."4,5
In Commonwealth v. Donahue, 452 Mass. 256 (2008), we
considered whether a sheriff had the authority under § 48 and
§ 49 to release a prisoner from a house of correction and place
him in home confinement under a global positioning system (GPS)
monitoring program where the prisoner had an approved home and
work plan and was monitored by a GPS bracelet. We concluded
that "G. L. c. 127, §§ 48, 49, and 49A, provide specific
legislative authorization for the GPS program and for the
4 Participation in such programs is limited for prisoners
serving a life sentence, for sex offenders, and for prisoners
who were sentenced for specified violent crimes. See G. L.
c. 127, § 49.
5 General Laws c. 127, § 86F, applies only to sheriffs, not
to the commissioner.
6
placement of Donohue, or similarly situated inmates, in it."
Id. at 265. We specifically rejected the argument that these
statutes did not permit home confinement, declaring that "[t]o
the contrary, the statutory scheme suggests a legislative intent
to allow this kind of arrangement." Id. at 266. The
commissioner has the same authority under these statutes to
place prisoners in home confinement, monitored by a GPS
bracelet, as part of an inmate's participation in an education,
training, or employment program.
General Laws c. 127, § 49A, requires the commissioner to
establish in each correctional facility a committee to evaluate
the behavior and conduct of inmates within the prison and
recommend whether an inmate "shall be permitted to participate
in any program outside a correctional facility, exclusive of
parole." There is nothing in the record regarding the
activities of these committees and no explanation as to why,
especially at a time when the commissioner recognizes the need
to reduce the prison population, eligible prisoners who have
demonstrated good behavior and conduct have not been approved
for home confinement to participate in education, employment, or
training programs.
b. Parole release. As I have noted, the parole board has
stepped up its pace of activity and has released nearly three
times more prisoners in April than it did on average in the
7
first three months of this year. But there are at least two
ways in which the parole board can release more prisoners,
consistent with its statutory obligation to release a prisoner
on parole "only if the board is of the opinion, after
consideration of a risk and needs assessment, that there is a
reasonable probability that, if the prisoner is released with
appropriate conditions and community supervision, the prisoner
will live and remain at liberty without violating the law and
that release is not incompatible with the welfare of society."
G. L. c. 127, § 130.
First, § 130 requires the parole board to make two
determinations: whether "there is a reasonable probability that
. . . the prisoner will live and remain at liberty without
violating the law" and whether "release is not incompatible with
the welfare of society." Id. With respect to the second
determination, it is appropriate for the parole board to
consider whether the prisoner has tested positive for COVID-19
and, if so, whether he or she could be safely quarantined and
medically monitored or treated upon release. But it is also
appropriate for the parole board to consider the increased risk
to the inmate, to fellow inmates, and to the general public of
continuing custody in a prison where he or she is particularly
vulnerable to an outbreak of COVID-19 given the close quarters
and difficulties of social distancing in a prison. This
8
consideration is most acute in prisoners who are at special risk
of death or serious illness from COVID-19 because of their
advanced age or compromised immune system. In Christie v.
Commonwealth, 484 Mass. 397, 401-402 (2020), we declared in the
context of a judge's determination whether to stay a defendant's
execution of sentence pending appeal:
"We also note that the health risks to persons in custody
arising from this pandemic require that we adjust the
analysis applied to motions to stay the execution of
sentence pending appeal. In ordinary times, in considering
the second factor, a judge should focus on the danger to
other persons and the community arising from the
defendant's risk of reoffense. See [Commonwealth v. Cohen
(No. 2), 456 Mass. 128, 132 (2010); Commonwealth v. Hodge
(No. 1), 380 Mass. 851, 855 (1980)]. In these
extraordinary times, a judge deciding whether to grant a
stay should consider not only the risk to others if the
defendant were to be released and reoffend, but also the
health risk to the defendant if the defendant were to
remain in custody. In evaluating this risk, a judge should
consider both the general risk associated with preventing
COVID-19 transmission and minimizing its spread in
correctional institutions to inmates and prison staff and
the specific risk to the defendant, in view of his or her
age and existing medical conditions, that would heighten
the chance of death or serious illness if the defendant
were to contract the virus." (Emphases in original.)
A comparable adaptation to the pandemic should be made to the
parole board's evaluation of whether "release is not
incompatible with the welfare of society" under § 130.
Second, some inmates who are granted parole because they
meet the criteria in § 130 do not promptly obtain the parole
permits needed for release and must first obtain a transfer to a
long-term residential facility or a step-down to a lower-
9
security facility before they can receive their permits. In
this pandemic era, such a condition of release would prove a
"Catch-22" situation for many inmates otherwise eligible for
parole release: because all transfers among facilities have
ceased, such inmates could not meet the condition established
for their release. The parole board should reevaluate all such
conditions where they prevent the release of those whom the
board has already determined will be unlikely to reoffend upon
their release.
c. Earned good time. The majority of prisoners who are
released from custody are released because they have completed
their sentence. The DOC declares that it "has no control" over
the completion of sentences. But to the extent that the
commissioner has the authority to grant good time credit of up
to fifteen days per month under G. L. c. 127, § 129D, plus an
additional ten days of credit for the successful completion of a
program, the commissioner has the ability to reduce a prisoner's
sentence by approximately one-half (180 days per year if the
prisoner receives fifteen days per month, and another ten days
for each completed program). The pandemic put a temporary end
to the programs that enabled inmates to earn good time, and the
commissioner deserves credit for allowing inmates to earn seven
and one-half days per month by maintaining a diary. But with
more than two months having passed since the Governor's
10
announcement that a state of emergency existed, it is time for
the commissioner to devise new programs that can be accomplished
by inmates in the midst of a pandemic that would enable them to
earn the full complement of possible good time, including
completion credit, and reduce the over-all length of their
sentences.
2. Planning beyond the lockdown. To prevent the COVID-19
virus from entering DOC facilities and to mitigate its spread in
those facilities that already had cases, the commissioner
initiated a system-wide lockdown on April 3, 2020. In practice,
this means that inmates who are housed in cells remain there for
twenty-three hours a day, and those who live in dormitory-style
housing cannot leave their units. Inmates eat meals in their
cells or units; use of gyms, weight rooms, and outdoor spaces is
strictly limited; and work opportunities and classes have been
suspended.
These stringent policies might have been necessary to quell
the outbreak by reducing contact between inmates and by making
it easier to conduct contact tracing when positive cases were
identified. But while this may have averted a worst-case
scenario in the early days of the pandemic, the court's opinion
notes that the DOC may soon face another challenge: the mental
health impact of an extended lockdown, with its own implications
11
under the Eighth Amendment to the United States Constitution and
art. 26 of the Massachusetts Declaration of Rights.
According to the DOC, this is the first time in recent
memory that the entire Massachusetts prison system has been
locked down because of health risks. The longest recorded
lockdown at any DOC facility lasted for four months in 1995
following an assault on a correction officer at the
Massachusetts Correctional Institution at Cedar Junction. This
system-wide lockdown has already been in place for two months,
but I believe that the DOC recognizes that it cannot reasonably
continue for the many months that will pass until a COVID-19
vaccine becomes widely available. The isolation arising from a
lockdown over time will have increasingly severe mental health
ramifications, particularly in a population that already has a
higher-than-average prevalence of mental health issues. And if
the lockdown were to continue, there may come a time when the
lockdown itself raises serious questions about the DOC's
deliberate indifference to inmate mental health.
I do not profess to know what should be the next step
beyond lockdown; I know only that there will be a need for a
next step, that it must be carefully considered by correctional,
public health, and mental health professionals, and that, as we
are learning from our experience outside the prison walls,
reopening to permit increased human interaction poses even more
12
challenges than the formidable challenges arising from
sheltering in place. Soon, the DOC will have to develop
protocols that are, to the extent possible, protective of both
inmate physical health and mental health. And doing so will be
easier and more likely to succeed with a smaller prison
population, which will provide greater potential for social
distancing and give prison superintendents more flexibility in
their use of available prison space, cells, and facilities.
3. Planning ahead for a second wave. I recognize that,
when it became apparent that COVID-19 had spread through
Massachusetts communities, the DOC had to improvise quickly and
make adjustments to avoid rampant spread of the virus in its
correctional facilities. But what is appropriate in reacting to
an immediate and unpredictable threat might not be appropriate
as the threat drags on over many months. Reducing the size of
the prison population, especially the size of the elderly and
infirm prison population, in a manner that is consistent with
law and public safety takes time, both to identify appropriate
candidates for release and to ensure that they have appropriate
release plans. But there will be time before the fall to
accomplish sensible reductions in the size of the prison
population, including the release or transfer to home
confinement of many elderly and medically vulnerable prisoners,
to give prison superintendents the better options to protect the
13
physical and mental health of inmates that come with fewer
prisoners. With experts warning of a potential resurgence of
COVID-19 in the winter, see CDC Director Warns Second Wave of
Coronavirus Is Likely to Be Even More Devastating, Wash. Post,
Apr. 21, 2020, https://www.washingtonpost.com/health/2020/04
/21/coronavirus-secondwave-cdcdirector [https://perma.cc/3SVZ
-BQCX], the DOC has the opportunity and, indeed, the obligation
to begin preparing for that possibility. Policies that pass
constitutional muster in the face of an unprecedented emergency
may not be constitutionally sufficient after the department has
had time to consider and plan its response to a now-foreseeable
threat.
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287 F.Supp. 716 (1968)
UNITED STATES ex rel. Stephen FINK, Petitioner,
v.
Louis HEYD, Criminal Sheriff of the Parish of Orleans, Respondent.
Misc. No. 1332.
United States District Court E. D. Louisiana, New Orleans Division.
July 30, 1968.
*717 Ross T. Scaccia, New Orleans, La., for petitioner.
Numa Bertel, Jr., New Orleans, La., for respondent.
RUBIN, District Judge.
The petitioner asserts that there is a federal constitutional right to bail during the period pending appeal from his conviction for a State criminal offense. Finding no such right, I deny the application for habeas corpus.
On May 13, 1968, the applicant, Stephen Fink, was convicted of selling marijuana to a person over the age of 21 in violation of a Louisiana criminal statute, LSA-R.S. 40:962. Fink was only 19 when the offense was committed, and he had no prior criminal record. He was subsequently sentenced to five years in prison at hard labor in the Louisiana State Penitentiary. Fink appealed his conviction and sought to have bond set pending appeal.
LSA-Code of Criminal Procedure, Article 314, forbids bail to a person convicted of a felony who has been sentenced to a term of five years or more.[1] This is in accordance with the provisions of Article I, Section 12 of the Louisiana Constitution which provides that all persons shall be bailable except certain persons charged with a capital offense and "persons convicted of felonies, provided that where a minimum sentence of less than five years at hard labor is actually imposed, bail shall be allowed pending appeal until final judgment." Therefore, the Louisiana court denied petitioner's motion for bond pending appeal. Fink then sought writs of certiorari, mandamus, and prohibition on the denial of bond from the Louisiana Supreme Court. These were denied on June 6, 1968. On June 11, Fink filed a petition for habeas corpus in this Court seeking his release on bond pending appeal on the ground that denial of bond on appeal violated his rights under the Eighth, Ninth, and Fourteenth Amendments to the United States Constitution.
The Eighth Amendment to the Constitution of the United States provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "We take it for granted that, contrary to earlier cases such as Ex parte Watkins, 7 Pet. 568, 574, 32 U.S. 568, 574, 8 L.Ed. 786, and Collins v. Johnston, 237 U.S. 502, 510, 35 S.Ct. 649, 59 L.Ed. 1071, the prohibition in the Eighth Amendment against requiring excessive bail must now be regarded as applying to the States, under the Fourteenth Amendment." Pilkinton v. Circuit Court of Howell County, Missouri, 8 Cir., 1963, 324 F.2d 45, 46. See also Wansley v. Wilkerson, W.D.Va., 1967, 263 F.Supp. 54.
But "Neither the Eighth Amendment nor the Fourteenth Amendment requires that everyone charged with a state offense must be given his *718 liberty on bail pending trial. While it is inherent in our American concept of liberty that a right to bail shall generally exist, this has never been held to mean that a state must make every criminal offense subject to such a right or that the right provided as to offenses made subject to bail must be so administered that every accused will always be able to secure his liberty pending trial. Traditionally and acceptedly, there are offenses of a nature as to which a state properly may refuse to make provision for a right to bail." Mastrian v. Hedman, 8 Cir., 1964, 326 F.2d 708, 710, cert. denied, 1964, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982. This would apply a fortiori to bail pending appeal after conviction.
In a per curiam opinion in Sellers v. State of Georgia, 1967, 374 F.2d 84, 85, the Fifth Circuit Court of Appeals said there is "no absolute right to bail pending appeal." See also Iles v. Ellis, S.D. Ind., 1967, 264 F.Supp. 185, 186 ("There is no constitutional right to bail pending appeal."); Cf. Dameron v. Harson, W. D.La., 1966, 255 F.Supp. 533, 536-537, aff'd, 5 Cir., 1966, 364 F.2d 991, dealing with the right to bail pending trial.
There can be no doubt that the rule, so recently restated by the Fifth Circuit applies here. "While the right to bail is fundamental, it is not absolute. A state may constitutionally provide by statute that bail be granted in some cases and denied in others and it may constitutionally leave to the discretion of the trial court the grant or denial of bail and the fixing of its amount. The proscription is only that the state and the trial court must act reasonably and not arbitrarily or discriminatorily." Wansley v. Wilkerson, W.D.Va., 1967, 263 F. Supp. 54, 57.
In Rehman v. State of California, 1964, U.S. (not reported), 85 S.Ct. 8, 9, 13 L.Ed.2d 17, 18-19, Justice Douglas refused to admit a state prisoner to bail following conviction because "the applicant fell within the small and exceptional category of people who are not entitled to bail on appeal." In the later case of California v. Alcorcha, 1966, 385 U.S. 923, 86 S.Ct. 1359, 16 L.Ed.2d 435, Justice Douglas considered an application for bail from a state prisoner pending hearing of his state appeal, and apparently did not consider it necessary even to discuss the issue here raised.
Louisiana's policy as stated in its Constitution and in Article 314 of the Code of Criminal Procedure appears to be neither arbitrary nor capricious. It is not irrational for the state's people and its legislature to conclude that anyone already convicted of a crime involving five years imprisonment is so poor a bail risk that he should not be set free pending appeal.[2]
For the reasons stated, the application for habeas corpus is
Denied.
NOTES
[1] "A convicted person shall be remanded in jail to await sentence, unless he is released on bail in accordance with this article. A person convicted of a felony shall not be admitted to bail, except that when a sentence of less than five years imprisonment is imposed, bail shall be allowed pending appeal and until final judgment. A person convicted of a misdemeanor shall be allowed bail pending sentence, and on appeal until final judgment." Article 314, LSA-Code of Criminal Procedure.
[2] Whether or not the sale of marijuana should be proscribed is a question for the Louisiana Legislature. See United States v. Ward, 7 Cir., 1967, 387 F.2d 843. The federal constitution does not prevent the state from requiring its courts to impose on a youthful first offender a minimum sentence of five years for selling the weed that it assumes to be noxious "without benefit of parole, probation or suspension of sentence." LSA-R.S. 40:981(3).
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956 F.2d 1159
Himesv.Sullivan
NO. 91-6217
United States Court of Appeals,Second Circuit.
Jan 13, 1992
Appeal From: W.D.N.Y., 779 F.Supp. 258
1
AFFIRMED.
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6 So.3d 810 (2009)
STATE of Louisiana
v.
Byron L. DAVIS.
No. 2008-KO-2188.
Supreme Court of Louisiana.
May 1, 2009.
Denied.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 22, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 14-6112
(D.C. No. 5:14-CR-00006-C-1)
MARTIN CARRILLO-LOPEZ, (W.D. Okla.)
a/k/a Jonathan Pacheco Bernal,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, EBEL, and LUCERO, Circuit Judges.
Appellant Martin Carrillo-Lopez entered into a plea agreement in which he
waived his right to appeal his conviction and sentence, with the exception of a few
limited circumstances not relevant here. The district court sentenced him to
70 months’ imprisonment, which was the low end of the Sentencing Guidelines
range. Mr. Carrillo-Lopez filed an appeal despite his waiver; the government seeks
*
This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
to enforce the plea agreement and asks this court to dismiss the appeal. See United
States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
The plea agreement, which Mr. Carrillo-Lopez signed, states that he
“knowingly and voluntarily waives” his right to appeal his sentence or conviction.
Plea Agreement at 7. And the transcript of the hearing at which Mr. Carrillo-Lopez
changed his plea to “guilty” evidences his understanding that he was agreeing to
waive his right to appeal, as well as his understanding that the court would be advised
in sentencing by the Sentencing Guidelines range and that it was not bound by any
predictions his attorney may have made about what that range would be. Change of
Plea Tr. at 9-12.
Mr. Carrillo-Lopez argues that his appeal waiver was not knowing and
voluntary because it was based on his attorney’s lower prediction of what the
guidelines range would be. The district court, however, was very clear in the plea
colloquy that the court was not bound by any predictions made by others regarding
what the guidelines range. He further argues that his waiver resulted in a miscarriage
of justice because his sentence was “otherwise unlawful.” Hahn, 359 F.3d at 1327.
His basis for this assertion is that “counsel for the government, in advocating at the
sentencing hearing for a ‘low-end guidelines sentence,’ did not act in good faith in
light of Mr. [Carrillo-Lopez’s] safety-valve eligibility.” Resp. at 2. He states that
this “negatively impacts the fairness, integrity, or public reputation of judicial
proceedings.” Id. Mr. Carrillo-Lopez’s one-sentence statement is insufficient to
-2-
establish (or even argue) as to how the fairness, integrity, or public reputation of the
judicial proceeding was negatively impacted. Enforcing this knowing and voluntary
waiver will not result in a miscarriage of justice. The Motion to Enforce Appeal
Waiver is granted, and the appeal is dismissed.
Entered for the Court
Per Curiam
-3-
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-1710
PATRICIA F. APPLEGATE, R.N.,
Plaintiff - Appellant,
versus
JOHN MICHAEL FRAY, Phd.; ROBERT S. BOYD,
Reverend; THE EPISCOPAL DIOCESE OF VIRGINIA,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CA-95-814)
Submitted: October 3, 1996 Decided: October 9, 1996
Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patricia F. Applegate, Appellant Pro Se. Sandra Morris Holleran,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia; Roger
Louis Williams, WILLIAMS, BUTLER & PIERCE, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's orders granting
Defendants' motions for summary judgment, dismissing her action,
and denying her motion for reconsideration. We have reviewed the
record and the district court's opinion and find no reversible
error. Accordingly, we grant in forma pauperis status and affirm
on the reasoning of the district court. Applegate v. Fray, No. CA-
95-814 (E.D. Va. Apr. 19 & May 17, 1996). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
2
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234 S.W.3d 906 (2006)
OFFICE MACHINES, INC.
v.
Bruce MITCHELL, et al.
No. CA 05-323.
Court of Appeals of Arkansas.
May 3, 2006.
*907 Hartsfield, Almand & Denison, PLLC, by: Larry J. Hartsfield, Little Rock, AR, for appellant.
Bridges, Young, Matthews & Drake, PLC, by: Joseph A. Strode, Pine Bluff, AR, for appellees.
JOHN MAUZY PITTMAN, Chief Judge.
Appellant is an office-supply business serving southeast Arkansas. Appellees are former employees of appellant who, after an agreement for them to purchase the business fell through, quit their employment with appellant and started a rival business that hired several of appellant's employees. Appellant, which has since replaced those employees and continues to do business in the region, sued appellees alleging that they committed numerous torts by hiring the employees, including disparagement and misuse of proprietary information. The trial court granted summary judgment to appellees, holding that the evidence presented in support of appellant's allegations was insufficient to create *908 a genuine issue of material fact. Appellant has abandoned its allegations of disparagement and misuse of proprietary information. The sole argument on appeal is whether the organizers of the new business breached a fiduciary duty to appellant and committed the tort of tortious interference by hiring several of appellant's employees. We affirm.
Although a covenant in restraint of trade such as a covenant not to compete is valid when founded on a valuable consideration, such agreements are not favored in the law and will be enforced only if the restraint imposed is reasonable as between the parties and not injurious to the public by reason of its effect upon trade. See Girard v. Rebsamen Insurance Co., 14 Ark.App. 154, 685 S.W.2d 526 (1985). The law will not enforce such a covenant simply to provide protection against ordinary competition. Import Motors v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (Ark.App.1980). Furthermore, absent a restrictive agreement, Arkansas courts have declined to shackle the privilege to engage in legitimate competition by extending a non-compete agreement to third parties. Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999). Here, it is undisputed that no such agreement was entered into by any of the appellees.
Arkansas has recognized wrongful interference with a contract as an actionable tort for nearly a century. See Mahoney v. Roberts, 86 Ark. 130, 110 S.W. 225 (1908). The underlying premise of this cause of action is that a person has a right to pursue valid contractual and business expectancies unmolested by the wrongful and officious intermeddling of a third party, so that a third party who intentionally and with malice interferes with the contractual relations of another incurs liability for his action in tort. United Bilt Homes v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992).
The elements of tortious interference that must be proved are: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional 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. Id. However, the defendant will not be liable if he shows that his interference was privileged. Conway Corp. v. Construction Engineers, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). Arkansas recognizes a privilege to compete, and the scope of this privilege is broad:
In short, it is no tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by Statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, allow discounts or rebates, enter into secret negotiation behind the plaintiff's back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability.
Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 77, 671 S.W.2d 178, 181 (1984) (quoting W. Prosser, LAW OF TORTS, 130 (3rd ed.1971)). The Kinco court also adopted the following definition of the circumstances under which competition will justify interfering with another's business expectancy:
(1) One who intentionally causes a third person not to enter into a prospective contract relation with another who is his competitor or not to continue an existing contract terminable at will does *909 not interfere improperly with the other's relation if
(a) the relation concerns a matter involved in the competition between the actor and the other and
(b) the actor does not employ wrongful means and
(c) his action does not create or continue an unlawful restraint of trade and
(d) his purpose is at least in part to advance his interest in competing with the other.
Kinco, Inc., 283 Ark. at 78, 671 S.W.2d at 181-82 (quoting RESTATEMENT (SECOND) OF TORTS 768 (1977)).
Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Castaneda v. Progressive Classic Insurance Co., 357 Ark. 345, 166 S.W.3d 556 (2004). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues left to be tried. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. George v. Jefferson Hospital Association, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. In so doing, we view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). When the facts are not at issue but possible inferences therefrom are, we will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds differ on those hypotheses. Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).
Here, it is undisputed that appellees intended for some time to operate a business like that of appellant for their mutual profit; that appellant was aware of this intention and negotiated for the sale of its business; that the sale fell through and, after resigning, appellees continued with their intended business by forming their own concern; that they needed employees for their new business; that they offered employment to several of appellant's employees, none of whom were bound by non-competition agreements; that some of those offered employment accepted; that appellant has replaced the employees who were hired by appellees; and that both concerns remain in operation, competing for business in the same general area. Under these circumstances, we think that the only conclusion that could reasonably be drawn is that appellees were engaged in privileged competitive activity, and we hold that the trial court therefore did not err in granting summary judgment.
Affirmed.
ROBBINS and BAKER, JJ., agree.
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885 F.2d 867Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Philip G. NIEBERGALL, Defendant-Appellant.
No. 89-5010.
United States Court of Appeals, Fourth Circuit.
Argued June 9, 1989.Decided Aug. 31, 1989.
William David Levine (Marshall & St. Clair on brief) for appellant.
Mary Stanley Feinberg, Assistant United States Attorney (Michael W. Carey, United States Attorney on brief) for appellee.
Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and RICHARD L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.
PER CURIAM:
1
Philip G. Niebergall pled guilty on November 4, 1988 to one count of fraudulently misapplying federally insured student loan proceeds in violation of 20 U.S.C. Sec. 1097(a) and one count of submitting a false document to the Department of Education in violation of 18 U.S.C. Sec. 1001. The district court sentenced Niebergall to two years of imprisonment for his fraudulent misapplication of funds and imposed a five year suspended sentence with five years of probation for submitting false documents. As a condition of probation, the district court also ordered Niebergall to pay restitution to the United States in the amount of $100,000. In this appeal, Niebergall challenges only the restitution order. Finding no abuse of discretion, we affirm the district court's decision.
I.
2
Niebergall is the former president and owner of Century College, a for-profit business and vocational school located in Huntington, West Virginia. Both Niebergall and Century College are currently in bankruptcy following a period of gross mismanagement and financial irresponsibility. Among the college's various derelictions, it failed to pay employee withholding taxes and failed to refund tuition payments to students who flunked out or otherwise withdrew. To be accredited to participate in federally insured student loan programs, however, the college was obligated to refund the unearned portion of any tuition paid by a student who did not complete his or her course of study. On allegations that the college willfully withheld refunds under Niebergall's direction, he was indicted on 26 counts of violating 20 U.S.C. Sec. 1097(a) in September of 1988. He was also indicted on two counts of violating 18 U.S.C. Sec. 1001 for his attempt to cover up this failure by submitting false reports to the Department of Education.
3
Niebergall is currently unemployed and owes over $200,000 to the Internal Revenue Service for unpaid employee withholding taxes. Niebergall has no assets and is for all practical purposes an indigent.
II.
4
Evidence introduced by the government indicates that the college withheld over $750,000 in tuition payments made from federally insured loan proceeds. Pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. Secs. 3663, 3664 (formerly 18 U.S.C. Secs. 2579, 3580), the district court ordered Niebergall to pay the United States $100,000 in restitution. On appeal, Niebergall raises two simple arguments against this order. First he asserts that the government failed to show any damages for which restitution could be ordered. Second, he argues that the district court abused its discretion in ordering an admitted indigent to pay restitution.
5
Niebergall's first argument is without merit. Since restitution may not be ordered for criminal misapplication of student loan proceeds, see 18 U.S.C. Sec. 3663(a), Niebergall was ordered to pay restitution to the government on account of his fraudulent representations to the Department of Education. Niebergall asserts that the government's evidence of the amount of tuition refunds unlawfully withheld only proves the government's losses attributable to his criminal misapplication of loan proceeds. The mere amount of misapplied loan proceeds does not, he suggests, show that the government's losses were in any way attributable to his fraudulent submissions to the Department of Education. Niebergall thus claims that the government is not entitled to restitution.
6
The force of this argument depends on the assertion that the government's losses are not attributable to Niebergall's efforts to cover up his fraudulent misapplication of loan proceeds. The VWPA authorizes the imposition of restitution orders "for actual damages or loss caused by the offense for which conviction was had." United States v. McMichael, 699 F.2d 193, 195 (4th Cir.1983). "The only limitation on the sentencing judge is that the damages or loss which the defendant can be ordered to repay are those which were directly caused by the offense for which the defendant was indicted." Id. Under this standard, Niebergall's fraudulent reports are sufficiently causally related to the refund losses to support the restitution order. If the government had been accurately informed of the problem, it could and would have taken steps to prevent the college from withholding tuition refunds. At a minimum, the government could have terminated the college's accreditation to participate in federal student aid programs and thereby cut the amount of its losses.
7
Niebergall's second argument, that the district court abused its discretion by granting restitution in this case, is also without merit. Niebergall asserts that he is currently indigent, has at best meager prospects for the future, and will in no way be able to repay the $100,000 order. "The VWPA implicitly requires the district judge to balance the victim's interest in compensation against the financial resources and circumstances of the defendant--all while remaining faithful to the usual rehabilitative, deterrent, retributive, and restrictive goals of criminal sentencing." United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987). We cannot say that the district court abused its discretion in striking that balance here. The district court clearly considered Niebergall's current indigency and accordingly did not order Niebergall to repay the full amount of the government's proven losses. And while Niebergall's prospects may be meager, we cannot say that he will be unable to find employment and fulfill the restitution order after the completion of his sentence.
III.
8
The record shows that, through Century College, Niebergall acquired a small fortune, in part by defrauding both the United States and the college's students. The district court's decision ordering Niebergall to repay a small fraction of the total amount of the government's losses was not an abuse of discretion and that order is accordingly
9
AFFIRMED.
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937 F.2d 598
142 L.R.R.M. (BNA) 2440
Rishel (Ralph E.)v.United Mine Workers of America Health and Retirement Funds
NO. 91-3073
United States Court of Appeals,Third Circuit.
JUN 11, 1991
1
Appeal From: W.D.Pa.
2
AFFIRMED.
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IN THE SUPREIVIE COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, §
§ No. 692, 2015
Plaintiff-Below, §
Appellant, § Court BeloW-Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 9808000280A
DAMONE FLOWERS, §
§
Defendant-Below, §
Appellee. §
Submitted: September 14, 2016
Decided: October 21, 2016
Before STRD\IE, Chief Justice; HOLLAND, VALIHURA, VAUGHN and
SEITZ, constituting the Court en Banc.
Upon appeal from the Superior Coult. REVERSED.
Elizabeth R. McFarlan, Esquire (Argued), Department of Justice, Wilmington,
Delaware, Attorney for Plaintiff-Below, Appellant.
Michael W. Modica, Esquire (Arguea), Wilmington, Delaware, Attorney for
Defendant-Below, Appellee.
HOLLAND, Justice; for the Majority:
The defendant-below, appellee, Damone Flowers’ second Motion for Post-
Conviction Relief Was referred to a Superior Court Commissioner, Who issued a
report recommending that the Superior Court grant Flowers’ motion for relief. The
Superior Court adopted in part and denied in part the Commissioner’s report and
granted Flowers’ relief. The State appeals from the Superior Court’s final judgment.
The State argues that Flowers’ second Motion for Post-Conviction Relief Was
untimely under Criminal Rule 61(i)(1), because it Was filed more than three years
after his conviction became final in September 2004. The State also argues that the
claims in that motion Were barred as repetitive under Rule 6l(i)(2), because the
claims Were not raised in Flowers’ first Motion for Post-Conviction Relief.
The Superior Court correctly recognized that Flowers’ Post-Conviction
motion Was untimely under Criminal Rule 6l(i)(1), as he filed the motion more than
three years after his conviction became fmal With the issuance of the mandate Hom
this Court in September 2004. The Superior Court also correctly recognized that the
claims in the motion Were barred as repetitive under Rule 61(i)(2), because the
claims could have been, but Were not, raised in Flowers’ first Motion for Post-
Conviction Relief`.
However, the Superior Court invoked an exception to the procedural bars as
a basis f`or addressing Flowers’ motion on the merits. At the time of`FloWers’ second
Motion for Post-Conviction Relief, the bars to relief in Rule 6l(i)(l)-(3) did not
apply “to a colorable claim that there was a miscarriage of justice because of a
constitutional violation that undermined the filndamental legality, reliability,
integrity[,] or fairness of the proceedings leading to the judgment of conviction.”1
We have concluded that Flowers’ second Motion for Post-Conviction Relief
was untimely and that the exception to those procedural bars was not properly
invoked by the Superior Court. Theref`ore, the judgment of the Superior Court must
be reversed.
Direct Appeal
Flowers was convicted of Murder in the First Degree and Possession of a
Firearrn during the Commission of a Felony on October 30, 2002, and sentenced to
life in prison, plus ten years. On August 3l, 2004, this Court affirmed Flowers’
convictions. The historical facts which led to Flowers’ convictions are summarized
in this Court’s decision in his direct appeal as follows:
On August l, 1998, Alfred Smiley drove a car with two
passengers in the area of 22nd and Lamotte Streets in
Wilmington. At some point, Smiley became involved in
an argument with several people on the street. A gunshot
fired from the sidewalk next to the car struck Smiley in the
chest. The car careened out of control on the street and
came to rest against a utility pole. Wilrnington police
responded to the call and took Smiley to the hospital where
he died from the gunshot wound.
The State charged Damone Flowers with Smiley’s murder
and presented five witnesses at trial who were alleged to
1 super cr. crim. R. 61(1)(5).
have been present at the scene of the shooting. Most of
the incriminating evidence was presented through pretrial
taped statements.
At Flowers’ trial, the State admitted the pretrial taped statements of five witnesses
pursuant to 11 Del. C. § 3507. A review of testimony of Vernon Mays, Matthew
Chamblee, Ronetta Sudler, Tysheik McDougall, and Othello Predeoux reflects that
none of the witnesses Were asked by the State whether their pretrial taped statements
were true.
Post-Conviction Motions
On May 3, 2005 , Flowers filed a pro se Motion for Post-Conviction Relief.
The Superior Court dismissed the motion without prejudice and stated that Flowers
may amend the motion. Instead, Flowers appealed to this Court and that appeal was
dismissed as untimely.
On May 14, 2012, Flowers filed a second pro se Motion for Post-Conviction
Relief. He subsequently obtained Rule 6l Counsel, and filed an amended and
superseding Motion for Post-Conviction Relief. Flowers presented five claims of
ineffective assistance of counsel: Claim One, that trial counsel failed to object to the
admission of five videotaped statements admitted at trial pursuant to ll Del. C. §
35 07 based on the State’s failure to lay the proper foundation; Claim Two, that trial
counsel failed to object to three of the Section 35 07 statements as cumulative; Claim
Three, that trial counsel failed to object to the Section 3507 videotaped statements
going back to the jury during deliberations; Claim Four, that trial counsel failed to
call four allegedly exculpatory witnesses; and Claim Five, that appellate counsel
failed to raise the underlying claims on direct appeal.
Commissioner’s Report and Recommendation
The motion was referred to a Superior Court Commissioner in accordance
with 10 Del. C. § 512(b) and Superior Court Criminal Rule 62.2 The Commissioner
issued the Report and Recommendation, stating that the defendant’s Motion for
Post-Conviction Relief should be granted. The Commissioner found that Claim One
is not barred by Rule 61 because a constitutional violation occurred when the Section
3507 statements were admitted without proper foundation and it was appropriate for
the Superior Court to consider it under the exception to procedural bars set forth in
Rule 61(i)(5).
The Commissioner then addressed each of Flowers’ claims under the
Stricklana'3 Standard. Under Claim One, the Commissioner found that trial counsel
could have, and should have, objected to the incomplete foundation prior to the
admission of the Section 3507 statements Thus, the Commissioner concluded that
had the statements not been presented at trial, there is a reasonable probability that
the outcome would have been different and Flowers should be granted relief on this
2 Id. 62(a)(5)(ii).
3 Strickland v. Washz'ngton, 466 U.S. 668 (1984).
5
claim. The Comrnissioner found that Claims Two, Three and Four were all without
merit and found that Claim Five did not need to be addressed in light of the ruling
as to Flowers’ First Claim.
Superior Court Granted Post-Conviction Relief
After reviewing the Commissioner’ s Report and Recommendation, as well as
the State’s objection and Flowers’ response, the Superior Court issued a decision
adopting in part and denying in part the Comrnissioner’s Report and
Recommendation. The Superior Court adopted in part the Comrnissioner’s
recommendation to dismiss Claims Two, Three, and Four, and granted Defendant’s
Motion of Post-Conviction Relief on Claims One and Five. Only Claims One and
Five are at issue in this appeal.
The Superior Court’s reasoning on Claim One was that although Flowers’ trial
counsel had made a reasonable decision not to object to the admission of the Section
3507 statements for failure of the State to ask the witnesses about the truthfulness of
their statements,4 and thus had not violated Strickland,5 the same lawyer had, as
appellate counsel, breached his duties under Strickland by failing to argue that the
Superior Court had committed plain error by not itself acting to interpose the
objection he had strategically chosen not to assert.6 Based on that logic, the Superior
4 State v. Damone Flowers, 2015 WL 7890623, at *5 (Del. Super. Ct. Nov. 20, 2015).
5 Id.
6 Id.
Court held that there was prejudice because on appeal there was no basis to cure the
failure to ask the foundational question, and that this Court’s precedent had read
Section 3507 as requiring that witnesses be asked about the truthfulness of their
statements before admission.7
The Superior Court then held that this Strz'ckland violation gave rise to a denial
of Flowers’ Sixth Amendment right to condontation, stating “Trial Counsel’s failure
to object to the improper foundation for admission of the five section 3507
statements resulted in a violation of Defendant’s Sixth Amendment right to
confrontation.”8 The Superior Court also granted Claim FiVe on the basis of
“Counsel’s failure to raise the same issue on direct appeal, which constituted
ineffective assistance of counsel.”9
As a preliminary matter, we note that the Superior Court did not consider that
a claim of ineffective assistance of trial counsel cannot be raised in a direct appeal.10
Section 35 07 Foundational Requirements
In Woodlz'n, this Court noted that there are certain threshold requirements to
admissibility that must be met before a Section 3507 statement can be heard by the
jury:
7 Id.
8 Id.
9 Id.
10 Sahin v. S¢a¢e, 7 A.3d 450 (Del. 2010).
of the witness’ prior statement13
A statement offered under Section 3507 must be offered
before the conclusion of the direct examination of the
declarant. The prosecutor must inquire about the
voluntariness of the statement during the direct
examination of the declarant, and the judge must make a
ruling on whether the declarant made the statement
voluntarily before the statement may be submitted to the
jury for consideration11
In Wooa’lz'n,12 this Court also set forth a comprehensive review and analysis of
the Section 3507 foundational requirements that must be established by the State
during the direct examination of a witness, as a condition precedent to admissibility
summarized by this Court more than twenty-five years ago in Ray v. State:
“In order to offer the out-of-court statement of a witness,
the statute requires the direct examination of the declarant
by the party offering the statement, as to both the events
perceived or heard and the out-of-court statement itself.”
Thus, a witness’ statement may be introduced only if the
two-part foundation is first established: the witness
testifies about both the events and whether or not they are
true.14
ln this case, the Superior Court did not recognize the distinction between the
right of a defendant’s attorney to insist that the State established both foundational
11 Woodlz'n v. State, 3 A.3d 1084, 1087 (Del. 2010). See also Starlz'ng v. State, 130 A.3d 316, 228
(Del. 2015). ln this case, Flowers’ trial counsel objected to the admission of Ronetta Sudler’s out-
of-court statements on voluntariness grounds, but that objection was overruled.
12 Woodlz`n v. State, 3 A.3d 1084 (Del. 2010).
13 Id. ar1087-88.
14 Ray v. State, 587 A.2d 439, 443 (Del. 1991), quoting Keys v. State, 337 A.2d 18, 20 n.l (Del.
8
Those foundational requirements were
requirements prior to the admission of a Section 35 07 statement into evidence and
the right of a defendant’s attorney to make a professional judgment not to object if
the second foundation requirement is not established by the State,
The first situation was addressed by this Court in Blake.15 ln that case, the
State did not establish the second foundational requirement and the defendant
objected to the admission of the Section 3507 statement.16 The Superior Court
overruled the objection on the basis that establishing the second foundational
requirement was unnecessary because the statement would be admitted into evidence
no matter how the question was answered.17 We summarized the trial judge’ s ruling
in Blake’s case as follows:
After the State finished its direct examination on voir dire,
Blake argued that the State, under Ray and Acosta [v.
St‘ate],18 was required to ask Land whether her statement
was truthful. The Superior Court, recognizing that the
statement could be played for the jury Whether Land said
that her prior statements were truthful or not, ruled that the
statement could be played for the jury without such an
inquiry.19
ln Blake, although the Superior Court correctly stated that the Section 3507
statement would be admissible irrespective of the answer, this Court reversed and
15 Blake v. State, 3 A.3d 1077 (Del. 2010).
161d. at 1081.
17 Id. at 1082.
18 Acosta v. State, 417 A.2d 373 (Del. 1980).
19 Blake, 3 A.3d at 1082.
held that, upon request of the defendant’s attorney, the State must establish both
foundational requirements.2°
ln doing so, we reviewed the rationale for the second foundational inquiry:
truthfulness. We noted that, in Johnson,21 we held that the jury or trier of fact must
assess the declarant’s credibility on the witness stand “in the light of all the
circumstances presented, including any claim by the witness denying the prior
statement, or denying memory of the prior statement or operating events, or
changing his [or her] report of the facts.”22 Our decision in Moore23 explained,
“[u]nder § 3507, there is no requirement that the witness either affirm the
truthfulness of the out-of-court statement, or offer consistent trial testimony.”24
The second situation (no defense objection) was presented in Flowers’ case,
During direct examination, the State failed to ask the witnesses whether their prior
statements were truthful and therefore, failed to establish the second Section 3507
foundational requirement. Nevertheless, Flowers’ trial attorney made a professional
judgment that he would not object to its absence. Instead, he decided to challenge
the credibility of each witness by cross-examining them about their pretrial recorded
statements, which he had already carefully reviewed. The record reflects that trial
201d
21 Johnson v. State, 338 A.2d 124 (Del. 1975).
22 Blake, 3 A.3d at 1082-83 (quoting Johnson, 338 A.2d at 128).
23 Moore v. State, 655 A.2d 308, 1995 WL 67104 (Del. Feb. 17, 1995) (TABLE).
24 Id. at *2.
10
counsel filed an affidavit responding to Flowers’ claims of ineffective assistance of
counsel and explained that:
Counsel felt at the time that the other foundational
requirements for the admissibility of the statements had
been met and counsel was intent on effectively cross-
examining the witnesses. Some of the witnesses either did
not remember speaking to the police officer or, in fact,
refused to even acknowledge the statements F or example,
if the witness was asked if the statement was true, in all
likelihood the answer would have been that the witness did
not even remember making it. To cure the deficiency and
the interposing of such an objection could have potentially
undermined counsel’s credibility with the jury. Counsel
did not expect that the presiding Judge was going to keep
these statements out of evidence on that basis.25
Counsel’s explanation f`or not objecting was professionally reasonable. “When a
defendant is represented by counsel, the authority to manage the day-to-day conduct
of the defense rests with the attorney.”26 “Specifically, the defense attorney ‘has the
immediate and ultimate responsibility of deciding if and when to object, which
witnesses, if any, to call, and what defenses to develop.”’27 “Vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”28
25 App. to State’s Operiing Br. at A108-09 (emphasis added).
26 Cooke v. State, 977 A.2d 803, 840 (Del. 2009).
27 Id. at 840-41 (emphasis added) (quoting Wainwright v. Sykes, 433 U.S 72, 93 (1977)).
28 Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 596 (1993).
ll
The record reflects trial counsel addressed the out-of-court statements of the
witnesses in his opening statement at trial, and pointed to inconsistencies the jury
would hear both within and between certain statements On cross-examination, trial
counsel was able to obtain concessions that some of the statements contained
inaccuracies and that other information could have been inaccurate. The record
reflects that trial counsel effectively used the prior statements to attack the credibility
of all five witnesses at trial.29
Ineffective Assistance of Counsel
At the time of Flowers’ second Motion for Post-Conviction Relief, the bars to
relief in Rule 61(i)(1)-(3) did not apply “to a colorable claim that there Was a
miscarriage of justice because of a constitutional violation that undermined the
fundamental legality, reliability, integrity[,] or fairness of the proceedings leading to
the judgment of conviction.”30 A meritorious ineffective assistance of counsel claim
that demonstrates a constitutional violation may be considered an exception under
29Counsel used the inconsistencies and memory problems to cast doubt on the witnesses’
credibility and the accuracy of their prior statements For example, as Superior Court noted,
Matthew Chamblee identified Flowers as the shooter at trial: “And could you see the person
holding the gun? A. Yes.”. App. to State’s Opening Br. at A52. Using his prior statement, trial
counsel was able to have Chamblee admit that he could not really see the shooter and could not be
sure of his identification: “You specifically say I didn’t see his face. Do you remember saying
that? A. No.”. Trial counsel replayed portions of Chamblee’s statement as he cross-examined
him
3° saper. Ct. Crim. R. ei(i)(s).
12
Rule 61(i)(5). Flowers “has the burden of proof and must show that he has been
deprived of a substantial constitutional right before he is entitled to any relief.”31
To prevail on a claim of ineffective assistance of counsel, the defendant must
meet the two-prong Strz'ckland test by showing that (1) “counsel’ s representation fell
below an objective standard of reasonableness,” and (2) “the deficient performance
prejudiced the defense.”32 There is a strong presumption that trial counsel’s conduct
constitutes sound trial strategy.33 In evaluating an attorney’s performance, a
reviewing court should “eliminate the distorting effects of hindsigh ,” “reconstruct
the circumstances of counsel’s challenged conduct,” and “evaluate the conduct from
counsel’s perspective at the time.”34
Had Flowers’ trial counsel objected to the admission of the prior statements
on the basis that the State had failed to ask the witnesses whether their statements
were truthful, the trial judge would simply have directed the State to ask the question.
Under the circumstances of Flowers’ case, trial counsel’s failure to object to the
absence of a foundational question that Would not have prevented the admission of
the statements into evidence was objectively reasonable. Flowers has not
31 Younger v. State, 580 A.2d 552, 555 (Del. 1990) (citing People v. Gaines, 473 N.E.2d 868, 877
(Ill. 1984)).
32 Strz`cklana' v. Washington, 466 U.S. 668, 687-88 (1984).
33 Id. at 689.
34 Id
13
demonstrated a reasonable probability that an objection would have changed the
outcome of his trial.
In rejecting a similar claim of ineffective assistance of counsel for failure to
object when the second foundational requirement was not established by the State,
this Court stated:
Although trial counsel failed to object to the prosecutor’s
perhaps awkward attempt to comply with his obligation
under § 3507, trial counsel may well have recognized that
a technical objection was unlikely to help his client.
Hoskins argues that his trial counsel should have objected
because the prosecutor’s questions were not precise
enough, and did not focus on whether West’s prior
testimony was truthful, not just when given, but whether it
remained truthful. Had his trial counsel objected to the
prosecutor’s awkward but harmless form of questioning
on this basis, as Hoskins claims he should have done, West
would presumably have affirmed that his prior statements
were still truthful, both because he took an oath to tell the
truth before he testified at trial, and because his current
testimony was consistent with his prior testimony. Thus,
Hoskins has not shown that trial counsel’ s failure to object
constituted a Strz'ckland violation at all, and, in any event,
has not demonstrated prejudice. And absent any prejudice
to the defendant, we will not reverse as an abuse of
discretion a trial court’s decision to admit evidence based
upon the technical requirements of § 3507. ln sum, there
are insufficient grounds in the record to overcome the
presumption of trial counsel’s reasonableness35
Flowers’ trial counsel acted well within the bounds of objectively reasonable
representation in deciding not to raise a challenge to the admission of the statements
35 Hoskins v. State, 102 A.3d 724, 734-35 (Del. 2014).
14
based on a failure of the prosecutors to ask a single question where the answer did
not affect the admissibility of the witness’ prior statement or the ability of counsel
to effectively cross-examine the witnesses on both their trial testimony and their out-
of-court statement, If trial counsel for a defendant makes a reasonable decision not
to make a foundational objection to a witness statement under Section 3507, the
failure cannot then be considered a violation of the defendant’s right to
confrontation, much less when the defendant’s counsel vigorously confronted the
witness on cross-examination on all material issues covered by that statement.
Flowers failed to establish the first prong of Strickland.
Conclusion
Flowers’ claim was untimely under Rule 61(i)(1) and repetitive under Rule
61(i)(2). Flowers has not demonstrated that the Superior Court was required to
consider his claim under Rule 61(i)(5) to avoid these procedural bars to his clairn.
The judgment of the Superior Court is reversed.36
36 We note Justice Vaughn’s well-stated concurrence Because we believe this case can be decided
without addressing the important issue the concurrence discusses, which arguably requires us to
reexamine and perhaps reverse precedent, we rest our decision on grounds that involves the
straight-forward application of existing law.
15
VAUGHN, Justice, concurring:
In order to avoid the time-bar of Superior Court Rule 61(i)(1), Mr. Flowers
must proceed under Rule 61(i)(5) by showing that he has a “colorable claim that
there was a miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, integrity or fairness of the
proceedings leading to the judgment of conviction.”1
ln other words, he must begin
by showing there was a constitutional violation. The Superior Court found there
was a violation of Mr. Flowers’ Sixth Amendment right to confront witnesses
against him. Specifically, the Superior Court found that Mr. Flowers’ right to
con&ont witnesses was violated because the State did not ask the witnesses on direct
examination, prior to admission of their § 35 07 statements,2 whether the prior, out-
of-court statements were true or not. ln reaching its conclusion, the Superior Court
relied upon and followed this Court’s decisions in Ray v. State3 and Blake v. State,4
In Ray this Court first established the requirement that the witness must be
asked on direct examination whether the prior, out-of- court statement is true before
the statement can be introduced under § 3507.5 Specifically, the Court said:
1 Del. Super. Ct. R 61(i)(5).
2 ii Dez. C. §3507.
3 587 A.2d 439 (Del. 1991).
4 3 A.3d 1077 (Del. 2010).
5 587 A.2d at 443.
16
Thus, a witness’ statement may be introduced only if the two-part
foundation is first established: the witness testifies about both the
events and whether or not they are true,6
The requirement that the State ask on direct examination whether the prior,
out-of-court statement is true was restated and elevated to Sixth Amendment status
in Blake, as illustrated by the following passages from that decision:
After Ray and Moore were decided, there was no reason for
confusion, because our holding in Moore Was completely consistent
with Ray, where we construed Johnson v. State as standing for the
proposition that the witness must testify about whether or not the
prior statement was true,
The Sixth Amendment requires an entirely proper foundation,
if the prior statement of a witness is to be admitted under section
3507 as independent substantive evidence against an accused. This
Court has consistently and unequivocally held “a witness’ statement
may be introduced only if the two-part foundation is first established:
the witness testifies about both the events and whether or not they
are true Accordingly, in Ray we held that “in order to conform to
the Sixth Amendment’s guarantee of an accused’s right to confront
witnesses against him, the [witness] must also be subject to cross-
examination on the content of the statement as well as its
truthfulness7
It is of course true that the witness must be subject to cross-examination on
the content of the statement as well as its truthfulness But l find nothing in the text
of § 3507 or the Sixth Amendment that requires the state to ask the witness on direct
6 Id.
7 3 A.3d at 1082-83 (emphasis in original).
17
examination, as a foundational question, whether the prior, out-of-court is true or
not.
§ 3507 provides, in pertinent part:
(a) ln a criminal prosecution, the voluntary out-of-court
prior statement of a witness who is present and subject to
cross-examination may be used as affirmative evidence
with substantive independent testimonial value.
(b) The rule in subsection (a) of this section shall apply
regardless of whether the witness’ in-court testimony is
consistent with the prior statement or not. The rule shall
likewise apply with or without a showing of surprise by
the introducing party.8
This Court first discussed the foundational requirements of § 3507 in Keys v.
State,9 decided sixteen years before Ray.1° ln Keys, the Court stated, in pertinent
part:
We conclude that, in order to use the out-of-court
statements of Wells, in the situation presented by this case,
the legislative language required the production and direct
examination of the witness Wells by the prosecution. We
do not mean to suggest any precise form of direct
examination except that it should touch both on the events
perceived and the out-of-court statement itself.11
I agree with this analysis from Keys. The state must call the witness and
conduct a direct examination which touches on the events perceived and the out-of-
8 ii Dez. C. §§ 3507(a)-(b).
9 337 A.2d is (Dei. 1975).
10 587 A.2d at 443.
11 337 A.2d at 23.
18
court statement. But the direct examination does not need to be conducted in any
precise form and there is no single question which precisely must be asked. If the
State wishes to ask the witness whether the statement is true or not, it is free to do
so. If the defense wishes to ask the witness whether the statement is true or not, it
is free to do so. As I read the statute, neither side is required to do so.
The United States Supreme Court has stated that “the Con&ontation Clause
imposes a burden on the prosecution to present its witnesses.”12 In addition, the
Clause “has long been read as securing an adequate opportunity to cross-examine
adverse witnesses”13 The Court has further stated that “when a hearsay declarant
is present at trial and subject to unrestricted cross-examination . . . the traditional
protections of the oath, cross-examination, and opportunity for the jury to observe
the witness’ demeanor satisfy the constitutional requirements” of the Confrontation
Clause.14
ln this case, the State called its witnesses, who testified under oath, and
the defendant had a full and fair opportunity to cross-examine each. ln my opinion,
the Sixth Amendment was satisfied
At oral argument, counsel for Mr. Flowers argued that the following passage
from Cah'fornia v. Green supports a requirement that the State ask the witness on
12 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
13 U.S. v. Owens, 484 U.S. 554, 557 (1988).
14 Id. at 560.
19
direct examination whether the prior, out-of-court statement is true or not:
Thus, as far as the oath is concemed, the witness must now
affirm, deny, or qualify the truth of the prior statement
under the penalty of perjury; indeed, the very fact that the
prior statement was not given under a similar circumstance
may become the witness’ explanation for its inaccuracy -
an explanation a jury may be expected to understand and
take into account in deciding which, if either, of the
statements represents the truth.15
I read this passage as simply meaning that the witness at trial, under oath, can
be confronted with the prior, out-of-court statement, Whether that confrontation
occurs during the State’s direct examination or the defendant’s cross-examination
is, I think, without Sixth Amendment significance
Since the State called its Witnesses at trial and the defense had a full,
unrestricted opportunity to cross-examine them, my conclusion is that no Sixth
Amendment violation occurred. I would reverse the judgment of the Superior Court
on the ground that Mr. Flowers has failed to show a constitutional violation for the
reasons set forth in this concurrence.
15 399 U.S. 149, 158-59 (1970).
20
| {
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} |
854 F.Supp. 757 (1994)
Stephen T. AGUINAGA, Wayne Pappan, and Janet Brown, Individually and in behalf of all Union Members similarly situated, Plaintiffs,
v.
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, Defendant.
Civ. A. No. 83-1858-FGT.
United States District Court, D. Kansas.
May 16, 1994.
*758 *759 *760 Dennis M. Feeney, Ken M. Peterson, Morris, Laing, Evans, Brock & Kennedy, Chtd., Robert C. Brown, Brown, Dengler, Good & Rider, L.C., Wichita, KS, for Stephen T. Aguinaga, Wayne (NMI) Pappan and Janet (NMI) Brown.
Irving M. King, Peggy A. Hillman, Cotton, Watt, Jones & King, Chicago, IL, Annette M. Capretta, Donovan, Leisure, Rogovin & Schiller, Washington, DC, Paul H. Hulsey, Ness, Motley, Loadholt, Richardson & Poole, Charleston, SC, Richard Roesel, Asst. Gen. Counsel, UFCW, Washington, DC, for United Food and Commercial Workers Intern. Union.
Steven K. Hoffman, Guerrieri, Edmond & James, P.C., Washington, DC, Irving M. King, Peggy A. Hillman, Cotton, Watt, Jones & King, Chicago, IL, Gary K. Harris, Donovan, Leisure, Rogovin & Schiller, Harry Huge, Shea & Gould, Washington, DC, for United Food and Commercial Workers.
OPINION AND ORDER
THEIS, District Judge.
For of all sad words of tongue or pen, The saddest are these: "It might have been!"
James Greenleaf Whittier, "Maud Muller."
The peerless truth of that great American poet Whittier's couplet graphically illustrates the position this court is put in by the defendant's contention and the Tenth Circuit's admonition to determine by a preponderance of the evidence what a now non-party, John Morrell & Company, would have done concerning the work force and operation of its meat packing plant if its chicanery upon its labor force had not occurred, i.e., "what might have been." The court now turns to an analysis of the evidence in what is hoped to be the last episode in this ancient saga of the quest for terminable justice by a class of workers.
This is a hybrid breach of contract/breach of duty of fair representation brought by a class of 641 plaintiffs against their former employer, John Morrell & Company ("Morrell") and their union, the United Food and Commercial Workers International Union ("the Union"). This matter is before the court following the remand order of the Tenth Circuit Court of Appeals. Pursuant to the remand, the court conducted a rehearing on the damages to be awarded to the plaintiff class. Liability has been established; the jury's verdict as to liability was affirmed by the Tenth Circuit.
The plaintiffs are a group of former employees at Morrell's Rodeo meat packing plant located in Arkansas City, Kansas. Plaintiffs were all members of the Union. Morrell and the Union were parties to a collective bargaining agreement (the 1979 Master Agreement) which set the terms and conditions of employment. The 1979 Master Agreement was in effect until September 1, *761 1982 and from year to year thereafter unless proper notice was given.
In December 1981, Morrell issued a notice of closing for the Rodeo plant. Morrell represented that the closing would be permanent. The Rodeo plant closed as scheduled on June 19, 1982. Pursuant to the terms of the 1979 Master Agreement, the plaintiffs received severance benefits. In March 1983, Morrell reopened the Rodeo plant as the Ark City Packing Company (ACPC). ACPC was initially a nonunion plant. Morrell did not recall the Rodeo workers in seniority order and did not pay Master Agreement wages.
Following a trial on liability, the jury determined that Morrell had violated two provisions of the 1979 Master Agreement and that the Union had breached its duty of fair representation by failing the protect the plaintiffs' rights. The court thereafter awarded damages to all class members for a period of approximately fifteen months (from the date of the closing in June 1982 until September 1, 1983). Twenty-five percent of the damages were assessed against the Union. Both sides appealed various issues to the Tenth Circuit Court of Appeals.
The two primary holdings of the Tenth Circuit in this case were: (1) that damages were to be awarded from the date of the Rodeo plant closing until February 17, 1987, the date the court approved the plaintiffs' settlement with Morrell; and (2) that this court must consider the Union's evidence that not all members of the plaintiff class would have retained their jobs in the absence of breaches by Morrell and the Union. See Aguinaga v. United Food and Commercial Workers International Union, 993 F.2d 1463 (10th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 880, ___ L.Ed.2d ___ (1994). The Tenth Circuit affirmed the liability issues and the court's method of apportioning damages. Pursuant to the remand order, this court conducted a rehearing on the backpay and related damages due the plaintiffs.
The purpose of an award of backpay (including fringe benefits) is to make employees whole for the losses suffered. Bowen v. United States Postal Service, 459 U.S. 212, 223, 103 S.Ct. 588, 595, 74 L.Ed.2d 402 (1983); NLRB v. Master Slack, 773 F.2d 77, 83 (6th Cir.1985). In unfair labor practice proceedings, the NLRB's task is to find a remedy that will restore the economic status quo that would have obtained but for the unfair labor practice. Remedies that award employees more than they would have received but for the violations are punitive and thus improper. See NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596, 602 (9th Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1275, 63 L.Ed.2d 599 (1980); see also Kallmann v. NLRB, 640 F.2d 1094, 1103 (9th Cir.1981); NLRB v. J.S. Alberici Construction Co., 591 F.2d 463, 468, 470 n. 8 (8th Cir.1979). Thus, only one recovery is allowed, even if the employer and the union committed multiple breaches. The damage formula the court chooses must give a close approximation of the amounts due. Damages need not be proven with exactitude, however. NLRB v. Overseas Motors, Inc., 818 F.2d 517, 521 (6th Cir.1987).
1. Wage rate
The court has previously ruled that the 1979 Master Agreement wage rate would be applied through September 1, 1982 and the 1982 Master Agreement rate would be applied until September 1, 1983. This ruling was not disturbed by the Tenth Circuit. The Union concedes the application of these wage rates from the beginning of the damage period until September 1, 1983. The Union argues that the issue of the relevant wage rate from September 1, 1983 through February 17, 1989 has not been decided by the court. The Union argues that the ACPC wage rate must be applied from September 1, 1983 through the end of the damage period. The court disagrees.
The Tenth Circuit's remand order instructed this court to determine what would have occurred absent the breaches by Morrell and the Union. As the Tenth Circuit noted in its opinion, the parties had had a long-standing relationship, and over the years they continued to negotiate new Master Agreements. The plaintiffs were not in jeopardy of losing their jobs simply because the 1979 Master Agreement expired. Plaintiffs, Morrell and the Union each contemplated a continued *762 contractual relationship between the expiration of the old Master Agreement and the negotiation of the next. As the Tenth Circuit also noted, there was a strong likelihood of future employment of the plaintiffs beyond the expiration date of the 1979 Master Agreement. A collective bargaining agreement beyond the 1979 Master Agreement was likely, and in fact a new Master Agreement was entered into in 1982. Absent the breaches, plaintiffs would have maintained continued employment at the Rodeo plant beyond the term of the 1979 Master Agreement. Aguinaga v. United Food and Commercial Workers International Union, 993 F.2d at 1478-79.
Absent the breaches which occurred in this case, the Rodeo plant would have continued to operate under a Master Agreement. The subsequent Master Agreements which were in fact negotiated would have governed the terms of employment at Rodeo.
Wage rates would have fallen at Rodeo even absent the breaches which occurred. In April 1983, Wilson and Company, a major pork producer, filed bankruptcy. Wilson subsequently reduced the wage rate paid to its production workers to approximately $6.50 per hour. Following a strike by the Union's employees at Wilson, an $8.00 wage rate was negotiated. The Wilson bankruptcy and subsequent wage cuts caused all the major packers to demand wage concessions. Other Master Agreement packers (including Morrell) demanded to meet with the Union to reopen contract negotiations.
In 1983, Morrell and the Union negotiated wage concessions for Morrell's remaining facilities production plants in Sioux Falls, South Dakota and Estherville, Iowa and a distribution center in East St. Louis, Illinois. While the Estherville plant received a lower wage than Sioux Falls under the new wage agreement, the difference was only $.25 per hour. The Estherville plant was permanently closed during the time period at issue here. The East St. Louis facility was a distribution center at all relevant times. The Sioux Falls plant is the only production plant comparable to Rodeo. The court shall apply the wage rates applicable to the Sioux Falls plant. The new wage rates implemented at Morrell's Sioux Falls production plant reflect the industry-wide wage cuts experienced after the Wilson bankruptcy.
The court shall not apply the ACPC wage rate. Prior to the closing, Rodeo's production workforce was 100% union. Absent the breaches, the Rodeo plant would never have been nonunion. Morrell would not have been able to set unilaterally an initial wage rate of $5.00 per hour. There would have been no need for the Union to organize the workforce at ACPC. A contract separate and distinct from the Master Agreement would not have been negotiated.
The ACPC contract with the Union provided an initial wage of $7.00 per hour. This wage rate flowed directly from the breaches of contract and breaches of the duty of fair representation. Absent the wrongful conduct which actually occurred, it is more likely that the Rodeo plant would have been governed by the new Master Agreement in effect at the remaining Morrell plants. Absent the breaches, the Arkansas City plant would have remained a part of the Morrell "chain" and would have been governed by subsequent Master Agreements. Absent the breaches, the Master Agreement wage rates would have continued in effect. The new Master Agreement wage rates applicable at Sioux Falls shall apply to the remainder of the damage period.
Pursuant to the 1979 Master Agreement, production employees at Rodeo received a base rate of pay of $11.07 per hour. In July 1982 (after the closing of Rodeo), the Master Agreement rate of pay for Sioux Falls pork processing employees increased to $11.27 per hour due to a cost of living adjustment. The 1982 Master Agreement set a base rate of $10.69 per hour effective in September 1982. In October 1983, the wage rate fell to $8.25 per hour. Wages then rose in June 1985 to $8.75 per hour, then rose again in November 1985 to $9.00 per hour, and rose for the final time in November 1986 to $9.25 per hour. The $9.25 wage rate remained in effect through the end of the damage period being applied to the present case.
*763 2. Number of Plaintiffs Entitled to Damages
Plaintiffs have proposed awarding damages to all 641 plaintiff class members. The Union argues that fewer members of the plaintiff class are entitled to damages. The primary purpose of the damages rehearing was to allow the Union to present evidence that not all members of the plaintiff class would have retained their jobs even in the absence of breaches by Morrell and the Union. As pointed out by Tenth Circuit in this matter, the burden is on the defendant to prove by a preponderance of the evidence that an employee would have been discharged or laid off at a later date, or that the employee's job would have been phased out, even if no breach of contract and no breach of the duty of fair representation had occurred. Aguinaga, 993 F.2d at 1473.
The court must derive a figure approximating the total level of employment that would have obtained absent the breaches. Jobs would have been available according to seniority among all former Rodeo employees, including those who are not members of the plaintiff class.
In considering the remand order of the Tenth Circuit and the evidence presented by the Union, this court was struck by the difficulties inherent in making a determination of what would have happened if none of the breaches occurred. This court could find that the Rodeo plant would have employed virtually any number of workers between zero and 720, and award damages to anywhere from zero to all 641 plaintiffs. The Tenth Circuit's opinion did not foreclose relief to the entire class of plaintiffs. The final footnote in the Tenth Circuit's opinion instructed the court to reconsider its initial damage award in light of the Union's evidence. See Aguinaga, 993 F.2d at 1479 n. 5.
According to Union Exhibit U 3103, over the period 1977-1981, the Rodeo plant was the only Morrell plant to realize cumulative losses in the pork division. The total loss figure for the five year period, however, appears to have been only $100,000. The Rodeo plant's losses in the processed meats division for 1977-1981 totalled $1.8 million dollars, far less than the losses of $10.6 million at Morrell's Cincinnati plant. Between 1973 and 1981, the Rodeo plant realized a profit in only one year, 1979.
While the Rodeo plant may have been experiencing losses in the short term, Morrell nevertheless considered it a valuable plant. Morrell considered the Arkansas City facility one of the key plants in its chain. Morrell did not intend to discontinue the Rodeo brand or to abandon the Arkansas City facility. Morrell had the expectation of future profits even if, in the short term, it was experiencing losses at the Rodeo operation. Believing that the Arkansas City facility had the potential for future profits, Morrell invested some $3 to $5 million into renovating the Rodeo plant shortly before closure. Morrell ceased producing beef at Rodeo approximately six months prior to the closure. After reopening the plant, Morrell sought to concentrate less on processing and more on pork kill and cut.[1] In this manner, Morrell hoped to make the Arkansas City facility profitable again.
The court has considered the evidence regarding trends in the meatpacking industry. The entire meatpacking industry experienced wage cuts during the damage period. Wage concessions would have occurred even absent Morrell's breaches of contract. Morrell had no plan for a reduction in force as such. Morrell's main objective during the relevant time period was to decrease its labor costs drastically through low wages and an increased rate of production.
At the damages rehearing, the Union presented evidence regarding employment levels *764 at ACPC which were admittedly based on estimates and assumptions. The Union's evidence was a cut-and-paste affair, consisting of mounds of documents obtained from a variety of sources. Subsequent to the damages rehearing, the court ordered to parties to submit evidence regarding the actual employment levels at ACPC.
The Union produced no official of either Morrell or its parent company United Brands to testify either in court or by deposition, nor any affidavits from responsible decision makers in the Morrell management hierarchy as to what Morrell would have done legally under the Master Agreement in the absence of the breaches.[2]
The evidence presented by the Union was hypothetical and speculative. More significantly, however, the Union's evidence was based on a faulty premise that, absent the breaches of contract, Morrell would have done exactly what it did in the presence of the breaches of contract. The court did not find persuasive the evidence which the Union presented to support its position. The court cannot find that Morrell would have taken the same actions if it had acted lawfully as it did when it acted unlawfully. Had Morrell wished to implement a layoff and reduction in force pursuant to lawful means, it could have done so under the express terms of the Master Agreement. However, Morrell did not do so and there was no evidence that Morrell ever intended to do so.
The Union's reduction in force evidence was geared entirely toward proving its position that, absent the breaches, Morrell would have taken the same actions. While it may be appropriate to look at what actually happened subsequent to the breach, the Union cites no case law mandating that this court blindly adopt Morrell's post-breach actions as determinative of what Morrell would have done in the absence of the breaches. The Union argues that Morrell's staffing level decisions were not a breach of contract and that the jury was not instructed to consider Morrell's actions in staffing ACPC in considering whether a breach of contract occurred. This argument misses the point. The closing of the Rodeo plant to avoid the obligations of the Master Agreement allowed Morrell to implement its plan to reopen Rodeo nonunion as ACPC. The reopening of ACPC cannot be separated from the improper closing of Rodeo. What occurred at ACPC flowed directly from the breaches and cannot be neatly divorced from the breaches. The staffing of ACPC, rather than showing what Morrell would have done absent the breaches, merely shows what Morrell did do to complete the breaches.
The court has examined the cases cited by the Union. The court does not disagree with the general principles discussed therein. To toll back pay, the burden is on the defendant to show by a preponderance of the evidence that the employer would have terminated the plaintiffs for legitimate business reasons on the same or some future date. E.g., Bales v. NLRB, 914 F.2d 92, 94, 95 n. 2 (6th Cir.1990); see Shaw College at Detroit, Inc. v. NLRB, 623 F.2d 488 (6th Cir.1980). When a plant has been closed for purely economic reasons, and not from anti-union animus, it is appropriate to cut off back pay liability to discriminatees as of the date of the closing of the plant. NLRB v. Master Slack, 773 F.2d 77 (6th Cir.1985). When the record reflects a real (not hypothetical) event triggering the cessation of work, an award of back pay need not continue beyond that date. See New York Urban Coalition, Inc. v. United States Department of Labor, 731 F.2d 1024 (2d Cir.1984) (expiration of government contract signalled end of back pay liability to discriminatee; all employees ceased receiving wages when project terminated). When an employee is laid off for discriminatory *765 reasons, it is appropriate to look at whether work was available which the discriminatee would have performed absent the layoff. See NLRB v. United Contractors, Inc., 713 F.2d 1322 (7th Cir.1983). The availability of jobs is to be determined, not by the actual closing date of a business, but by when the employer, in the exercise of reasonable business judgment, would have been forced to close the business due to financial losses. See Mastell Trailer Corp. v. NLRB, 682 F.2d 753 (8th Cir.1982).
The court does not agree with the proposition derived from these cases by the Union, i.e., that it is necessary for this court to rely upon Morrell's post-breach actions as indicative of what Morrell would have done absent the breaches. The cases cited by the Union do not support its position.
The Union has attempted to prove that Morrell would have laid off the plaintiffs for permissible reasons on the same date it discharged them for impermissible reasons. The court finds no credible evidence that Morrell would have temporarily shut down the Rodeo plant and laid off the entire Rodeo workforce absent the breaches.
At the time of the closing of the Rodeo plant, the work force consisted of approximately 720 bargaining unit employees. When ACPC opened, it employed significantly fewer employees than had been employed at Rodeo. ACPC opened with an initial complement of approximately 200 workers. Employment levels at ACPC never reached the level of employment previously experienced at Rodeo. However, employment continued to rise at ACPC during the term of the damage period. By May 1988, there were roughly 600 bargaining unit employees at ACPC. In 1989, Morrell closed ACPC. The plant remains closed to this day.
The stipulation on employment levels at ACPC submitted after the damages rehearing (Doc. 890, Joint Exh. 1) reveals the following. When the plant reopened as ACPC, 210 persons were employed. While there were fluctuations in employment levels, the overall trend was upward throughout the damages period. By year, the maximum employment levels were as follows: in 1983, 395 employees (December); in 1984, 442 employees (December); in 1985, 497 employees (November); in 1986, prior to the strike, 421 employees (April and May); in 1986, during the strike, 516 employees (November); and in 1987, 438 employees (February; only two months in the damage period).
During the strike at ACPC from July 1, 1986 until February 1, 1987, employment at the plant was as follows: 301 (week ending July 5, 1986); 58 (week ending August 2); 467 (week ending August 30); 474 (week ending September 27); 482 (week ending October 4); 516 (week ending November 1); 496 (week ending December 6); 439 (week ending December 27); and 426 (week ending January 31, 1987). Morrell continued to operate during the course of the strike with strike-breakers and permanent replacements.
Since production and sales of Rodeo brand products increased during the damage period, employment at Rodeo would have remained stable, at least in the short term, absent the breaches by Morrell. To produce the same amount of Rodeo products as was produced before the closure would have required approximately the same level of employment as existed prior to the closure.
The court shall award damages to all class members for the period from the Rodeo plant closing until the end of August 1983. The fact that Morrell was able to increase production and sales of Rodeo brand products after the Rodeo plant closed is evidence that the Rodeo plant would have maintained its preclosing workforce size for a period of time. Beginning September 1, 1983, the court finds that Morrell would have begun to decrease its work force from the preclosing level of 720. The court finds that a total employment level of 500 (which was achieved approximately October 1, 1985, see Joint Exh. 1) approximates what would have occurred absent the breaches. There is no formula the court could reasonably ascertain from the evidence which would determine the work force with exactitude under the "what might have been" scenario mandated by the Tenth Circuit.
Absent the breaches by Morrell, the Rodeo plant would not have closed. The start-up *766 process and corresponding gradual increase in employment would have been avoided. Instead, Morrell would have begun the process of laying off its least senior employees to take into account the shifts in production that it intended to implement at the plant.
From the beginning of the damage period until the end of August 1983, employment at Rodeo would have remained at the preclosing level of approximately 720 employees. Thus, all 641 plaintiffs are entitled to damages through this period. From the beginning of September 1983 until the beginning of October 1985 (a total of 25 months), Morrell would have gradually reduced employment by 220, from 720 to 500. As an approximation of what would have occurred absent the breaches, the court finds that Morrell would have laid off the nine least senior employees per month (effective on the last day of the month) until a total employment level of 500 was reached by October 1, 1985.[3] Jobs would have been available to the Rodeo employees by virtue of seniority. Thus, all former employees, class members and nonclass members alike, would have been eligible for employment. Class members lacking sufficient seniority for employment in available positions will not be entitled to recover damages.
For those class members entitled to damages who became disabled, reached age 65, or died during the damage period, damages shall run until the date the relevant event occurred. At the point at which a class member's damages are cut off, a position becomes available for the next person on the seniority list.
The court shall not cut off damages for the period of the ACPC strike. Class member Donald Palmer testified that the strike occurred when the ACPC contract expired in 1986 and Morrell again demanded wage cuts. In the absence of the breaches which occurred in this case, the Rodeo plant would have remained subject to the Master Agreement. The ACPC contract would not have come into existence. The economic strike which occurred upon the expiration of the ACPC contract would not have occurred.
However, the court does find that damages should be cut off during the time period of the strike at Sioux Falls. If a strike would have occurred at Rodeo, it would have coincided with the expiration date of the Master Agreement. Since there was a strike at Sioux Falls during the damage period, the court shall cut off damages for that time period, instead of the time period of the ACPC strike. Morrell Vice President James Hurley testified that there was a strike at Sioux Falls in the fall of 1985 which lasted approximately 12 weeks. The strike began on September 1, 1985 the expiration date of the 1982 Master Agreement and lasted until approximately November 11 or November 16, 1985, according to Hurley. A new agreement governing Sioux Falls was reached on November 20, 1985. Exh. U 1606. The parties should be able to stipulate to the exact time period of the strike.
The Rodeo workforce was 100% union. Absent the breaches by Morrell and the Union, there would have been no change in the percentage union membership. As loyal union members, the plaintiffs would have participated in the strike which occurred in Sioux Falls in the fall of 1985. No damages shall be awarded for the time period of the strike. The court shall award damages based on an employment level of 500 for the period following the Sioux Falls strike.
The court's findings herein are consistent with the case law. The Union has cited no cases which require the court to blindly follow what Morrell actually did in implementing its breaches. Had the damage period in this case extended beyond 1987, however, it may have been appropriate to consider the fact that the Arkansas City plant closed in 1989. By all indications, this closing is indeed permanent.
The court's determination regarding the level of employment that would have obtained absent the breaches is consistent with the general evidence regarding a downturn in the meat packing industry during the relevant time period. The gradually decreasing number of plaintiffs entitled to damages reflects *767 that, absent the breaches which occurred, the level of employment at the Rodeo plant would likely have decreased somewhat.
3. Pension and Health Benefits
When an employee is ordered reinstated, the court may add to the award the contributions the employer would have made to the pension fund. The award will consist of payments to the pension fund on the plaintiff's behalf to bring the plaintiff's pension interest up to the level it would have been absent the discrimination. Loeb v. Textron, Inc., 600 F.2d 1003, 1021 (1st Cir.1979) (Age Discrimination in Employment Act). When reinstatement is not ordered, pension damages should approximate the present discounted value of the plaintiff's interest. The award should be computed as if the plaintiff had been employed until the date the damages are settled. Id. Pension rights are proper elements of damage and their present value is recoverable based on expert testimony. Kelly v. American Standard, Inc., 640 F.2d 974, 986 n. 20 (9th Cir.1981) (Age Discrimination in Employment Act). A pension award is allowed unless the record reflects that plaintiffs secured equivalent pension benefits with interim employers. Smyth Mfg. Co., 277 N.L.R.B. 680, 683 n. 12, 1985 WL 46075 (1985). The burden must be placed on the defendant to show equivalency of new pension benefits, as this is in the nature of a setoff.
John Powers, director of pension and benefits for Morrell, testified by deposition regarding the pension and health care plans covering Morrell's plants. Under the 1979 Master Agreement, an employee was entitled to receive a pension benefit per month in the amount of $15 per year of service. In October 1983, the pension benefit applicable to Sioux Falls changed to $10 per month multiplied by years of service. A Sioux Falls retiree would thus be eligible for a monthly pension benefit in the amount of $15 per year of service up to 1983, and $10 per year of service after 1983.
The court has previously addressed the discount rate and interest rate to be applied to the pension benefit calculation. The plaintiffs' expert applied a discount rate of 8%, which was derived from the Unisex Mortality Table of the Pension Benefit Guaranty Corporation. The court sees no inconsistency with using an 8% discount rate and a 10% prejudgment interest rate. The 8% discount rate is actuarially sound. The 10% prejudgment interest rate is set by statute, K.S.A. 16-201. The court's findings on these matters were not disturbed on appeal.
The court adopts plaintiffs' pension benefit calculations as correct. The court found the testimony of plaintiffs' actuary Michael Johnston to be more credible than the testimony of defendant's accountant Susan Mackie. Johnston indicated that it was actuarially sound to offset pension receipts against pension losses. Johnston performed the calculations in this manner to address an issue raised in an affidavit previously submitted by the Union's actuary. The Union's actuary did not testify at the damages rehearing.
The Union's actuary Stanley Goldfarb submitted an affidavit in 1990 during the prior damage proceedings. Goldfarb criticized Johnston for failing to offset against the pension damages the pension benefits actually received by the plaintiffs during the course of the damage period. The plaintiffs had treated pension benefits received as a general setoff, rather than a setoff against pension damages specifically. While making his pension damage computations for the lengthened damage period on remand, Johnston heeded Goldfarb's advice and used pension benefits received during the damage period as a setoff against pension damages.
On the issue of pension setoffs (i.e., pension benefits actually received by members of the plaintiff class), the Union's accountant Mackie complained that needed information was missing. The plaintiffs' accountant Gary Poore testified that he was unaware of any relevant or necessary data being withheld from the Union. Since 100% of the pension benefits received by class members was taxable, the plaintiffs' tax returns (already provided to the Union) contained all the information necessary to determine the actual amount of pension benefits received. According to the credible testimony presented at the hearing, the Union was already in *768 possession of the information it needed to compute pension setoffs for each plaintiff who received pension benefits from Morrell during the damage period. The Union's position that plaintiffs have withheld information from the Union is unworthy of belief.
The Union argues that excess interim earnings be carried over to reduce any plaintiff's pension damages. The Union also argues that excess pension receipts (actual pension benefits received over pension losses calculated) be carried over to reduce the backpay damage award. Since plaintiffs' actuary presented a net pension damages figure, the Union's accountant spent a great deal of time and effort attempting to compute the gross figures, in order to derive an excess pension benefits figure. By the court's estimation, this "excess pension setoff" figure was, at best, a very rough estimation, and, at worst, a figment of Union counsel's imagination. The sole purpose in computing this figure was to conjure up an offset against backpay damages.
The court finds that it is unsound, both under the law and under accepted accounting and actuarial principles, to setoff earnings against pensions and vice versa. These two components of the damage award are computed in greatly different manners. Interim earnings are a straightforward matter derived from the plaintiffs' tax returns. Pension losses require the efforts of an accountant and an actuary and involve the use of mortality statistics and an appropriate discount rate. It is indeed the comparison of apples and oranges to lump together both categories of damages.
Setoffs from one category shall not be carried over into another category of damages. Any setoffs applicable to one plaintiff shall not be applied to reduce the damages awarded to any other plaintiff.
Since interim earnings shall not be carried over to reduce pension damages, it is to be expected that some plaintiffs may receive little or no back pay but be entitled to an award of pension damages. A plaintiff who properly mitigated his damages by obtaining higher-paying interim employment may still have suffered pension losses. Certain plaintiffs (e.g., C.H. Banks) would have become vested in the Morrell pension had their employment continued beyond the Rodeo closing date. Certain plaintiffs (e.g., D.E. Keeler) would have reached thirty years of service had their employment continued beyond the Rodeo closing date. These thirty year veterans would have been eligible for immediate retirement, regardless of age, with a supplement of $100 per month (over and above the regular pension amount) until they reached age 65. These plaintiffs will be seen to have larger pension damages than other members of the plaintiff class.
It merits repeating that the Union bears the burden of proof on setoffs. As the court noted above, an award of pension damages is appropriate unless the record shows that the plaintiff received an equivalent pension benefit through his or her interim employment. The Union has failed to show that any plaintiff has received an equivalent pension benefit.
The Union must do more than point to carefully selected individual plaintiffs and argue that their damages are "excessive." Given the manner of calculating damages, certain plaintiffs will recover larger damage awards than others. The fact that certain plaintiffs will recover larger damage awards than other plaintiffs does not make those larger damage awards "punitive," a common refrain in the Union's briefs. While not ever stating as much, the Union's litigation position appears to be that any award of damages that it will have to pay is "punitive."
There appears to be no particular dispute with the method used for calculating lost health benefits. The court shall adopt the plaintiffs' computations.
4. Mitigation of Damages, Including Setoffs for Interim Earnings
The burden is on the plaintiffs to prove the gross amounts of backpay and related damages due each of them. The burden then shifts to the defendant to demonstrate any reductions in the amount of backpay or any facts which would mitigate its liability. Lundy Packing Co. v. NLRB, 856 F.2d 627, 629 (4th Cir.1988); Kawasaki Motors Mfg. Corp., U.S.A. v. NLRB, 850 F.2d *769 524, 527 (9th Cir.1988); NLRB v. Overseas Motors, Inc., 818 F.2d 517, 521 (6th Cir. 1987); NLRB v. Laredo Packing Co., 730 F.2d 405, 407 (5th Cir.1984) (per curiam).
A backpay claimant has a duty to mitigate his damages. A claimant's failure to search for alternative work, his refusal to accept substantially equivalent employment, or his voluntary quitting of alternative employment without good cause constitute affirmative defenses to backpay liability. Laredo Packing Co., 730 F.2d at 407. A claimant is not required, however, to accept anything other than suitable interim employment. Id. at 408. The reasonableness of a claimant's efforts to secure substantially equivalent employment is determined by, inter alia, the economic climate and the worker's skill, qualifications, age, and personal limitations. Lundy Packing Co., 856 F.2d at 629.
The Tenth Circuit's opinion in this case provides: "Employees claiming entitlement to back pay and benefits are required to make reasonable efforts to mitigate damages. Once back pay and benefits have been awarded, the burden is on the employer to show that the claimant did not exercise reasonable diligence in mitigating his or her damages. To satisfy this burden, the employer must establish that: (1) there were suitable positions which the claimants could have discovered and for which they were qualified, and (2) the claimants failed to use reasonable diligence in seeking such positions." Aguinaga, 993 F.2d at 1474 (citations omitted). The burden is on the Union to satisfy both prongs of this two-part test. Id.
The burden is not placed on the employee to prove a "systematic method of searching for a job." NLRB v. Westin Hotel, 758 F.2d 1126, 1130 (6th Cir.1985).
A. Availability of Suitable Jobs In General
The testimony presented at the rehearing demonstrated that employment was not readily available in the Arkansas City area during the time period under consideration. In general, employment was difficult to obtain. The Union has not met its burden of proving the availability of suitable jobs in the relevant geographic area which the plaintiffs could have obtained.
Plaintiffs have designated testimony regarding the difficulties various individuals experienced in obtaining employment after the closing of Rodeo. The court refers specifically to the trial testimony of Stephen T. Aguinaga; the deposition of James Brown; the trial testimony of Booker Jennings; the deposition of Kenneth Mauzey; the deposition of Gary Meyer; the deposition of Lyall Moore; the deposition and trial testimony of Wayne Pappan; the deposition of Raymond Powders; and the deposition of Warren Stout.
The testimony of defendant's witness Philip "Joe" Phillips, president of Union Local 340, was consistent with the testimony of the class members. Phillips testified at the damages rehearing that it was almost impossible to find employment in Arkansas City after Rodeo closed. Between 2,000 and 3,000 people applied for the approximately 200 jobs available when ACPC reopened. No other Union witness testified regarding the availability of jobs in the Arkansas City area.
Counsel for the Union noted at the damages rehearing that the Union still desired to hold individual hearings before the Magistrate Judge regarding each class member's attempts at mitigation of damages. The court has previously rejected this position. Since the Union has again failed to demonstrate the availability of suitable jobs, individual inquiry into whether a plaintiff used reasonable diligence in seeking employment is unnecessary. Individual inquiry would be unduly burdensome and simply appears to be an attempt to delay the final resolution of this matter.
B. Availability of suitable jobs ACPC
Employment at ACPC was not substantially equivalent employment to that previously available at Rodeo. The court makes this determination based in large part on the testimony presented by the Union's witnesses at the damage rehearing. Employment at ACPC was difficult to obtain. Applicants outnumbered initial hires by at least 10 to 1. The wage rate paid was cut in half, while the speed at which the work was to be performed *770 was increased. Given the increased speed in an admittedly dangerous industry, the work was more difficult and more dangerous. Employees did not receive proper training. As a result, they suffered injuries and accidents and were fired by Morrell. ACPC employees suffered a higher level of accidents and injuries on the job than was the case at Rodeo. Turnover rates were high, given Morrell's propensity to fire its injured workers. A Union witness testified that initially at ACPC turnover was probably in excess of 80%. While turnover rates fell significantly from this initial level, the rate of turnover at ACPC was far greater than that experienced at Rodeo.
Since employment at ACPC did not constitute substantially equivalent employment, the failure of any plaintiff to work at ACPC does not constitute a defense to backpay liability.
C. "Reinstatement" at ACPC
The Union argues that damages should terminate for any Rodeo employee who was "reinstated" at ACPC. The Union cites the Tenth Circuit's opinion in support of this proposition. However, the Tenth Circuit's opinion does not provide support for the Union's position. In discussing general principles applicable to back pay awards, the Tenth Circuit's opinion provides, "Back pay liability normally runs until the employer makes a valid, unconditional reinstatement offer. A back pay claimant who rejects a valid reinstatement offer is therefore not entitled to back pay for the period after the rejection of the offer. In the same manner, a waiver of all rights to reinstatement via a settlement with the employer operates to cut off all liability for back pay." Aguinaga, 993 F.2d at 1479 (citations omitted). From this statement of generally applicable principles, the Tenth Circuit concluded that damages should run to the date of the plaintiffs' settlement with Morrell. Id.
The Tenth Circuit did not rule that upon going to work at ACPC, a plaintiff's damages must cease. Any offers of employment at ACPC were not valid, unconditional reinstatement offers. A job at ACPC was not "reinstatement," since the former Rodeo employees were given no particular preference in hiring and were not recalled in seniority order. Former Rodeo employees did not keep their Rodeo seniority and were treated as new hires by Morrell. The wage rate offered was not the Master Agreement rate. Further, the court has found that the Master Agreement wage rates applicable to Sioux Falls would have applied at Rodeo absent the breaches. Since the court is applying the Sioux Falls wage rate for the remainder of the damage period, the plaintiffs cannot receive a "make whole" damage award if their damages are based on the wage rate actually paid at ACPC.
D. Plaintiffs Who Did Not Work at ACPC
The Union argues that a refusal to work at ACPC should result in a limitation on the amount of each plaintiff's damages. The Tenth Circuit's opinion was very clear on the issue of the length of the damage period: "... damages must be awarded to Plaintiffs from the date of the Rodeo Plant closing until February 17, 1987 the date that the settlement between Plaintiffs and Morrell was approved by the court. Back pay liability normally runs until the employer makes a valid, unconditional reinstatement offer. A back pay claimant who rejects a valid reinstatement offer is therefore not entitled to back pay for the period after the rejection of the offer. In the same manner, a waiver of all rights to reinstatement via a settlement with the employer operates to cut off all liability for back pay. Applying this general rule of awarding back pay and benefits until rejection of an offer of reinstatement is the only way Plaintiff can be made whole i.e., put in the same position as if Morrell had not breached the 1979 Master Agreement and the Union had not breached its duty of fair representation. Accordingly, we remand to the district court for calculation of Plaintiffs' damages from June 19, 1982 until February 18, 1987." Aguinaga, 993 F.2d at 1479 (citations and footnotes omitted).
The Tenth Circuit did not rule that a failure to work at ACPC would cut off a plaintiff's damages. As discussed above, a job offer from ACPC did not constitute a valid, unconditional reinstatement offer sufficient to cut off liability for back pay. An offer of *771 employment at ACPC was neither "valid" nor a "reinstatement" offer. Employment at ACPC was not offered pursuant to the terms of the Master Agreement. Master Agreement wages and benefits were not paid. Employees were not hired in their Rodeo seniority order. ACPC employees were treated as new hires, not as reinstated employees with Rodeo seniority. Union witness Susan Miller was incorrect when she testified that the former Rodeo employees were hired at ACPC on the basis of their Rodeo seniority.
Employment at ACPC did not constitute reinstatement. Similarly, as the court has previously found, ACPC was not substantially equivalent employment. Working at ACPC was not equivalent to reinstatement at Rodeo. It is not reasonable to expect each and every member of the plaintiff class to return to work at the same physical location, but to perform a dangerous job at a higher rate of speed for half the previous wage. The Union's argument to the contrary is not supported by the law and is unworthy of credence.
The Union has geared its setoff arguments entirely around the availability of work at ACPC. For the reasons the court has already specified reasons which should be obvious to even the most casual observer employment at ACPC did not constitute a suitable job. In the absence of a showing of the availability of suitable jobs in the Arkansas City area, it is inappropriate to impute an average level of interim earnings to the plaintiffs.
This court's decision in Volkman v. United Transportation Union, 770 F.Supp. 1455, 1472 (D.Kan.1991) is not to the contrary. In Volkman, the court imputed to all plaintiffs a level of interim earnings based on the earnings of less senior employees. The Volkman plaintiffs could have displaced (or "bumped") the less senior employees and thus could have earned at least as much as those less senior employees. The work performed by the less senior employees was the same work and was available to the plaintiffs. The absence of these facts in the present case makes imputing interim earnings to the plaintiffs inappropriate. There were no jobs for the former Rodeo employees to "bump" into.
E. Setoffs for Interim Earnings
Setoffs for interim earnings are to be calculated on a yearly basis. The court shall not carry forward a negative damage number as proposed by the Union. This holding is consistent with this court's ruling in Volkman v. United Transportation Union, 826 F.Supp. 1253, 1263 (D.Kan.1993). This holding is also consistent with the law applicable in backpay proceedings before the NLRB. See F.W. Woolworth Co., 90 N.L.R.B. 289 (1950); NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953) (affirming Woolworth rule; backpay to be determined on a quarterly basis; interim earnings in one calendar quarter have no effect on backpay liability for any other quarter).
Plaintiffs have calculated their damages on an annual, rather than quarterly, basis. Plaintiffs assert that quarterly figures were not available and that annual figures simplify the computation of damages. Neither the plaintiffs nor the Union seeks to have damages calculated on a quarterly basis.
The original damage period was slightly more than one year long. Given the short length of the original damage period, it made no sense from an accounting standpoint to split the damage period into two calendar years. This computational method simplified the original damage computation. The present damage period runs for almost five years, and encompasses four complete calendar years (1983 through 1986). Individual income tax returns are prepared on a calendar year basis. The court finds that determining setoffs on a yearly basis is appropriate from an accounting standpoint as well as a legal standpoint.
The Union's only argument to the contrary is that the computational method is the law of the case. Defendant cites one case in its brief (Doc. 789) which it asserts is "precisely in point." Fox v. Mazda Corporation of America, 868 F.2d 1190, 1194-95 (10th Cir. 1989) (Fox II). A reading of Fox II demonstrates that the case is readily distinguishable. *772 In a prior appeal of the same case, the Tenth Circuit had specifically addressed the issue of the appropriate measure of damages. Fox v. Mazda Distributors (Gulf), 806 F.2d 953 (10th Cir.1986) (Fox I).
The plaintiffs in Fox I had brought suit against various Mazda entities, challenging Mazda's method of allocating vehicles to Mazda dealerships. Plaintiffs brought two antitrust claims and a claim under the Automobile Dealers' Day in Court Act, 15 U.S.C. § 1221 et seq. A jury found in favor of the plaintiffs on all three claims and the court entered a treble damage award. In the first appeal, the Tenth Circuit affirmed liability against defendant Gulf under the Automobile Dealers' Day in Court Act, but reversed the verdict against defendants Gulf and Central on the antitrust claims. The damage award was set aside and the action was remanded for a new trial on damages only. Fox I, 806 F.2d at 961.
At the first trial, the plaintiffs had presented a damage model based on lost profits, which purported to represent their damages under all three claims and against both defendan. The jury returned one damage verdict for all claims. Because it was impossible to determine on what basis the jury computed the damages, a new trial was necessary to assess damages against only defendant Gulf and only under the Automobile Dealers' Day in Court Act. Fox I, 806 F.2d at 961. The Tenth Circuit held that, on retrial, damages were to be based on the losses attributable to defendant Gulf's discriminatory allocation of vehicles. The actions of defendant Central, who was not liable under the Dealers' Act, was not to be considered. Id.
In the second appeal, the question presented was whether the district court had erroneously restricted the plaintiffs' proof of damages. Fox II, 868 F.2d at 1193. The district court had disallowed certain testimony and a damage model which projected the plaintiffs' loss of profits and loss of dealership market value. The district court held that this damage model was contrary to the remand in Fox I. The district court interpreted the Tenth Circuit's mandate as allowing for the recovery of damages based on the number of vehicles the plaintiffs would have received if the vehicles had not been wrongfully allocated to other dealers. Fox II, 868 F.2d at 1194. The Tenth Circuit in Fox II held that the district court had not abused its discretion in disallowing the proffered evidence. The Tenth Circuit noted that the plaintiffs' damage evidence on remand "went well beyond the bounds of our remand" order. Fox II, 868 F.2d at 1194-95.
This rather lengthy discussion of the procedural background of the Fox cases demonstrates how far from "on point" they are to the present action. The present case, unlike the Fox cases, involves one defendant and a damage model based on one theory of recovery. Unlike Fox I, in the (first) appeal of the present case, the Tenth Circuit did not address the issue of the appropriate damage calculation methodology. The Tenth Circuit opinion nowhere addressed the issue of the appropriate method of calculating setoffs for interim earnings. The damage methodology constituted law of the case in Fox II because the district court was bound to adhere to the mandate of the Tenth Circuit in Fox I on the allowable measure of damages.
The Union argues in its Motion for Judgment as to Invalidity of Plaintiffs' Damages Model (Doc. 789) that neither it nor the plaintiffs challenged on appeal the damage model proposed by the plaintiffs and adopted by this court. This court can only assume that the Union did not challenge this matter on appeal, since the Tenth Circuit did not address it. The Union's failure to appeal this issue could have been deliberate or inadvertent. The plaintiffs would have had no reason to appeal the damage computations as they proposed.
Notwithstanding this apparent failure to challenge this issue on appeal, the court cannot find that this issue has been waived or constitutes the law of the case. This court did not address the specific issue in its prior orders on damages. The Tenth Circuit did not address this specific issue. "The rule that a lower court must follow the decision of a higher court at an earlier stage of the case applies to everything decided `either expressly or by necessary implication.'" Cherokee Nation v. Oklahoma, 461 F.2d 674, 678 (10th *773 Cir.) (citation omitted), cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 489 (1972).
Unlike the various rules of res judicata, the more amorphous concept of law of the case determines whether a court's prior decision on a rule of law should continue in force in subsequent stages of the same case. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). As it is most frequently applied, law of the case encompasses a lower court's adherence to its own prior rulings, to the rulings of its superior court in the case, or to the rulings of another judge or court in the same case or a closely related case. The final category of law of the case involves the consequences of failure to appeal an issue. 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 788 (1981).
Under the first category of law of the case, questions that have not been decided do not become law of the case simply because they could have been decided. However, law of the case principles may apply when a court concludes that an issue was decided implicitly. Id. § 4478, at 789. In the present case, this court never explicitly decided the particular issue being raised by the Union. Nor does the court find that the matter was implicitly determined. Given the length of the damage period initially determined by this court, the computation of setoffs on an annual versus an aggregate basis was simply not an issue.
The second category of law of the case simply refers to the "mandate rule" the principle that a lower court is bound to honor the mandate of a superior court. Lower courts are free to decide issues that were not resolved in a prior appeal, as long as the case remains open for further proceedings. Id. § 4478, at 792-93. The issue presented by the Union was not resolved by the Tenth Circuit in the prior appeal, and the court does no violence to the mandate rule by considering the issue herein.
The third category of law of the case determines the amount of deference one judge or court owes to the rulings of another judge or court in the same case or in a closely related case. This aspect of law of the case doctrine is inapplicable here.
A less common fourth aspect of the doctrine covers circumstances under which courts will give preclusive effect to a ruling that could have been appealed, but has been abandoned by a failure to do so. Id. § 4478, at 801. Professors Wright, Miller and Cooper call this "[t]he last and least important aspect of law of the case doctrine." Id. Under this category of law of the case, lower court rulings become binding on higher courts through failure to preserve an issue for review. Id.
The Union's law of the case argument appears to fall within either the first or the fourth category outlined above. Regardless of its categorization, the court finds that the issues addressed by the Union are not law of the case. The method of calculating setoffs was not decided either expressly or implicitly in the earlier proceedings before this court, was not determined in the appeal, and has not been waived.
The issue of the appropriate period over which to calculate setoffs was not specifically decided in the earlier damage proceedings. The damage period originally found by this court was such a short period that it made no sense from an accounting standpoint to break it into two calendar years. The failure to account for setoffs on a yearly basis was not material.
The court must reject the Union's setoff calculations. The Union's accountant Susan Mackie presented a confused setoff computation. Mackie aggregated setoffs and carried forward an "excess setoff" figure from the wage category into the pension category. Mackie then subtracted this "excess setoff" figure from her pension damage figure to achieve a net damage figure. Mackie then attempted to estimate gross pension damages and pension setoffs from the net pension damage figures prepared by the plaintiffs' actuary Johnston. Mackie then used these estimated figures to estimate "excess pension setoffs" which she then used as setoffs against wage damages. In the court's opinion, Mackie's testimony was misleading, her reasoning circular and her result flawed. *774 The plaintiff's accountant presented a more sound computational method. The court found his testimony to be more credible.
IT IS BY THE COURT THEREFORE ORDERED that damages shall be awarded to the plaintiffs and against the defendant Union consistent with the rulings contained in this memorandum and order. Counsel for plaintiffs shall prepare and submit an appropriate journal entry of judgment within thirty (30) days of the date of this order.
IT IS FURTHER ORDERED that defendant's Motion for Judgment as to Post September 1983 Wage Rate (Doc. 775) is hereby denied.
IT IS FURTHER ORDERED that defendant's Motion for Judgment as to Invalidity of Plaintiffs' Damages Model (Doc. 789) is hereby denied.
IT IS FURTHER ORDERED that plaintiffs' Motion to Admit Inadvertently Omitted Exhibits (Doc. 877) is hereby granted.
NOTES
[1] Prior to the closing of Rodeo, pork kill and cut accounted for approximately 30% to 35% of total employment, according to the deposition testimony of Morrell witness James Humphrey. After the reopening as ACPC, pork kill and cut accounted for a large majority of total employment. ACPC appears to have produced no processed meats from the time of reopening until approximately November 1983. From March 1983 through October 1983, there were no employees in the bacon and ham departments. Beginning in November 1983, employees are shown for those departments. See Joint Exh. 1. While ACPC may have concentrated on pork kill and cut, it did conduct some pork processing.
[2] The Union's counsel would blame plaintiffs' counsel and the court for purportedly preventing new depositions to be taken from members of Morrell officialdom for use in the rehearing mandated by the Tenth Circuit. However, the Union's contention before this court at the trial on damages and before the Tenth Circuit in its argument on appeal was that this court erred in denying it the presentation of evidence which it already had in its possession at the time of the court trial. The record on rehearing will reflect that this court was generous, over plaintiffs' objections, in allowing a plethora of evidence, much of which was pure hearsay in multiple layers, in the form of many documentary ruminations (press releases and intra-office communications) as to solutions for Morrell's financial problems through production and marketing changes.
[3] This is subject to the court's determination, see infra, that no damages shall be awarded during the period of the Sioux Falls strike, which began on September 1, 1985.
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323 F.2d 214
Dwight LOOK, Appellant,v.Eldridge C. MOBLEY and Patricia Mobley, Appellees.Paul BORDALLO, Appellant,v.Eldridge C. MOBLEY and Patricia Mobley, Appellees.
No. 17767.
United States Court of Appeals Ninth Circuit.
September 24, 1963.
Turner, Barrett & Ferenz, Howard G. Trapp and Walter Ferenz, Agana, Guam, for appellant Look.
Arriola, Bohn & Gayle, John A. Bohn, Charles J. Williams and Robert B. Looby, Benicia, Cal., and Gerald Ellersdorfer, San Francisco, Cal., for appellant Bordallo.
Schofield, Hanson, Bridgett, Marcus & Jenkins, Thomas M. Jenkins and John A. Judge, San Francisco, Cal., and E. R. Crain, Agana, Guam, for appellees.
Before POPE, HAMLIN and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge.
1
This litigation arises out of an automobile accident on Guam. The facts as found by the trial court are not seriously disputed.1 On February 22, 1961, appellee Eldridge C. Mobley was driving north along Guam Route 4, with his wife, appellee Patricia Mobley, as passenger. Their car collided with one driven by Daniel M. Tenorio, a defendant below who has not appealed. Before trial it was stipulated by all parties that if Tenorio be found negligent, Mobley should have damages in the amount of $5,000 for personal injuries and $1,200 property damage, and Mrs. Mobley $20,000 for personal injuries. The car driven by Tenorio was registered in the name of appellant Dwight Look. On January 18, 1961, he had sold the car to appellant Paul Bordallo, giving him the endorsed certificate of ownership. On that day, or a day later, Bordallo sold the car to Tenorio, giving him the ownership certificate endorsed by Look but not adding his own endorsement. Neither Look nor Bordallo ever reported the two transfers to the Department of Finance, Government of Guam.
2
The trial court found that Tenorio's negligent driving caused the accident, and this finding is not disputed on appeal. The court entered judgment against Tenorio in the amounts stipulated. The court also found and concluded that Look and Bordallo were liable as owners under the Guam imputed negligence statute (Guam Gov't Code § 23504 (1961)), and gave judgments against them conditioned on Tenorio's failure to satisfy the judgment against him.2 These conditional judgments each totalled $11,200, since the maximum amount recoverable under section 23504 for injury to any person is $5,000.
3
Section 23504(a) in pertinent part provides:
4
"Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle * * * by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages."
5
Each appellant contends that he is not an "owner" within the meaning of the statute. We agree, and conclude that the trial court was in error.
6
Were this the sale of ordinary goods instead of an automobile, neither appellant could legally be termed an owner. In both transactions possession and the additional indicium of ownership, the ownership certificate, were turned over to the buyer, and no circumstances suggest an intention that title was not then to pass. (See Guam Civil Code, § 1738 (1953)) Appellees argue, however, that the Guam vehicle code enlarges the common-law concept. All parties acknowledge that the Guam statutes involved derive from California law. (See also United States v. Johnson, 9 Cir., 1950, 181 F.2d 577)
7
The Guam vehicle code provides for what might be termed dual paper titles. "Upon registering a vehicle, the Department of Finance shall issue a certificate of ownership to the legal owner and a registration card to the owner, or both to the owner if there is no legal owner of the vehicle." (Guam Gov't Code, § 23314 (1961)) A "legal owner" is defined as "a person holding the legal title to a vehicle under a conditional sale contract[,] the mortgagee of a vehicle, or the renter or lessor of a vehicle to the Government * * *." (Guam Gov't Code, § 23001 (pp) (1961)) An "owner" is defined as "a person having all the incidents of ownership including the legal title of a vehicle whether or not such person lends, rents or pledges such vehicle; the person entitled to the possession of a vehicle as the purchaser under a conditional sale contract; the mortgager of a vehicle; or the government, when entitled to the possession and use of a vehicle under a lease * * *." (Guam Gov't Code, § 23001(w) (1961)) Put more simply, an "owner" under the Guam vehicle code is either a person with all rights in the automobile, in which case he holds both the registration card and the certificate of ownership, or someone who has some rights, including use, but whose interest is subject to a defined interest held by another, in which case only the registration card is in his name and possession, the certificate of ownership being in the name and possession of the other, who is called the "legal owner."
8
These definitions show that appellant Look was an "owner" within the meaning of the imputed negligence statute up to the point when he sold the car, but they in no way suggest that he continued to be an "owner" for the purposes of that statute after he sold. Insofar as they are applicable, they suggest the opposite. The definitions quoted above are to govern the construction of any statute in the vehicle code "unless the context otherwise requires * * *." (Guam Gov't Code, § 23001 (1961)) Giving the definition of "owner" the broadest possible reading, by equating "legal title" (a phrase nowhere defined in the code) with registered title, instead of with a common-law interpretation of ownership, we come up with no more than that an owner under section 23504 is a "person having all the incidents of ownership including the [registered] legal title of a vehicle." Look, after his sale to Bordallo, had none of the incidents of ownership, except the registered legal title. Bordallo, after his sale to Tenorio, had neither incidents of ownership nor registered legal title.
9
However, the applicability of the general definition of "owner" to the imputed negligence section is questionable. The general definition of "owner" includes outright owners and time-buyers, but excludes conditional sellers and chattel mortgagees, terming these latter "legal owners." Section 23504(a) speaks only of "every owner," yet subdivision (f) expressly excludes from its coverage conditional sellers and chattel mortgagees out of possession. If section 23504 by the phrase "every owner" had meant only an "owner" as defined in section 23001 (w), such an exclusionary clause would be unnecessary. Of course this is not to say that a broader meaning of "owner" in the imputed negligence statute would be so broad as to place liability on appellants. The most that can be said of both the "definitions" section and the imputed negligence statute is that they are an unclear blend of common-law concepts and the vehicle registration scheme. The answer to our problem must be sought in the statutes providing for the transfer of automobile registration.
10
Both the certificate of ownership and the registration card are to contain certain data on ownership and on the automobile, but only on the certificate of ownership is it required that there be "upon the reverse side forms for notice to the Department of a transfer of the title or interest of the owner or legal owner and application for such transfer by the transferee." (Guam Gov't Code, §§ 23315, 23316 (1961)) Upon sale, "the person whose title or interest is to be transferred shall write his signature and write the date of transfer after his signature, and the transferee shall write his signature and address, in the appropriate spaces provided upon the reverse side of the certificate of ownership issued for such vehicle." (Guam Gov't Code, § 23337 (1961)) The seller is legally obligated to endorse and deliver the certificate of ownership to the buyer. (Guam Gov't Code, § 23338 (1961)) Presumably there is also an obligation to hand over the registration card, although this is not specified, since the new owner would require it for re-registration, unless he could explain its absence. (See Guam Gov't Code, §§ 23340-23343 (1961)) The Department of Finance issues a new certificate of ownership, and a new registration card, to the purchaser upon receipt of the properly endorsed old certificate, the "proper registration card," and a transfer fee. (Guam Gov't Code § 23340 (1961)) Section 23339(a) further provides:
11
"Whenever the owner of a vehicle registered under this title sells or transfers his title or interest in, and delivers the possession of, the vehicle to another, the owner shall immediately notify the Department of Finance of such sale or transfer giving the date thereof, the name and address of such owner and of the transferee and such description of the vehicle as may be required in the appropriate form provided for such purpose by the Department."
12
All the registration and transfer provisions were the law of Guam at the time of the post-war codification in 1952.3 The imputed negligence statute was enacted in 1957. (Public Law 48, 4th Guam Legis., 1st Sess., Aug. 15, 1957)
13
Appellees' argument from these statutes is not crystal-clear, but they appear to contend that appellant Look remains liable because the car is registered in his name, or, at the least, that he is liable because he has not tried to notify the Department of Finance of the transfer. Appellant Bordallo is said to be liable on "public policy" grounds as a transferee of Look, or, apparently, because he neither endorsed the ownership certificate nor notified the Department of Finance of the transfer.
14
We decline to give this reading to the imputed negligence statute. We would tend to favor appellants because it is never clearly stated that liability endures so long. We think that a legislature, when enacting a statute imposing liability both unknown at common law and of a type which a layman is likely to view as unexpected, is required to be somewhat more explicit than is the Guam vehicle code. Imputed negligence statutes, being in derogation of the common law, are strictly construed (See Dodson v. Imperial Motors, Inc., 6 Cir., 1961, 295 F.2d 609, 613) A simple one-sentence provision in section 23339 or section 23504 would have been all that was necessary, but no such provision appears. However, we rest our decision upon a narrower ground: the partial adoption by Guam of a more comprehensive California registration system.
15
California has a similar scheme of dual paper titles, an identical imputed negligence statute (Cal. Vehicle Code § 17150),4 and an identical statute requiring notice to the Department of Motor Vehicles by a seller of an automobile. (Cal. Vehicle Code § 5900) But California law also includes two provisions not found in the Guam vehicle code. Cal. Vehicle Code, section 5600, provides:
16
"No transfer of the title or any interest in or to a vehicle registered under this code shall pass, and any attempted transfer shall not be effective, until the parties thereto have fulfilled either of the following requirements:
17
"(a) The transferor has made proper endorsement and delivery of the certificate of ownership and delivery of the registration card to the transferee as provided in this code and the transferee has delivered to the department or has placed the certificate and card in the United States mail addressed to the department when and as required under this code with the proper transfer fee and thereby makes application for a transfer of registration * * * [with certain exceptions not relevant here.]
18
"(b) The transferor has delivered to the department or has placed in the United States mail addressed to the department the appropriate documents for the registration or transfer of registration of the vehicle pursuant to the sale or transfer except as provided in Section 5602."
Section 5602 provides:
19
"An owner who has made a bona fide sale or transfer of a vehicle and has delivered possession thereof to a purchaser shall not by reason of any of the provisions of this code be deemed the owner of the vehicle so as to be subject to civil liability for the operation of the vehicle thereafter by another when the owner in addition to the foregoing has fulfilled either of the following requirements:
20
"(a) When he has made proper endorsement and delivery of the certificate of ownership and delivered the certificate of registration as provided in this code.
21
"(b) When he has delivered to the department or has placed in the United States mail, addressed to the department, either the notice as provided in Section 5900 or Section 5901 or appropriate documents for registration of the vehicle pursuant to the sale or transfer."
22
Under the California statutes appellant Look would not be liable if he had fully complied with section 5602(a); the record does not show whether he made proper delivery of the registration card.5 It would seem that appellant Bordallo would be liable under California law, for he has failed to make proper endorsement of the certificate of ownership, as required by section 5602(a), and there was no attempt to inform the government of the transfer so as to come within sections 5600 and 5602(b). (See Larson v. Barnett, 1950, 101 Cal.App.2d 282, 225 F.2d 297)
23
But it is noteworthy that in two ways the California statutory scheme goes far beyond that of Guam. To some extent common-law title does not pass until an attempt is made to notify the government of the change in ownership (§ 5600) — but in Guam law there is no such explicit recognition that ownership is so closely tied to the registration scheme. Even without notice to the government, a California seller can cut off his liability under the imputed negligence statute by making a complete delivery of the car and the paper titles (§ 5602(a)) — but there is no comparable Guam statute whereby a seller can limit his liability.
24
We note also that a Guam statute upon which appellees rely, requiring notice by the seller to the government department, is duplicated by Cal. Vehicle Code § 5900 — yet section 5900 does not mean that liability under the imputed negligence statute continues until notice is given, because the seller can relieve himself of this liability by making complete delivery under section 5602(a), though he might be subject to a fine for failure to comply with the notice statute. (See Woods v. Eastridge, 1950, 99 Cal.App.2d 625, 222 P.2d 296)
25
In ascribing a legislative purpose to this piecemeal adoption by Guam of the California Vehicle Code, we must choose between an intent to make liability more extensive than in California, and an intent to make it less extensive. If sellers are to be liable so long as the automobile is registered in their name, as appellees suggest, their liability will be incalculably greater. If sellers are to be liable until notice has been sent the Department of Finance, a more rational cut-off point also suggested by appellees, then a seller who would end his liability under California law by turning over possession and the papers to a buyer would remain liable in Guam. Conversely, if a seller's liability is to cease upon the passage of common-law title, the most logical remaining dividing line under the Guam statutes, then Guam sellers turning over the automobile and improperly endorsed papers will escape a liability which California law would impose.
26
We think the latter is the more likely intent. If the Guam legislature, aware that liability under the California Vehicle Code extended beyond the point where an "owner" ceased to be such at common law, deliberately chose not to adopt those parts of the Code linking the passage of title and the cessation of liability to certain formalities not required for a common-law transfer, it is likely that the legislature intended less, not greater, liability. This conclusion is reinforced by the fact that, if we wished to side with appellees, this Court could cut off imputed liability with equal ease at any one of a number of points, by relying on the notice statute, or on the re-registration statute, or on the statute requiring endorsement of the ownership certificate. This, we think, is to thrust too much of the legislative function upon the courts.
27
The purpose of section 23504 itself can hardly be to give an injured party a crack at every person through whose hands the automobile has passed; the legislature has indicated otherwise by exempting conditional vendors and chattel mortgagees out of possession. We think that the primary purpose of section 23504 is to allow an injured party recourse against an owner who is in a position to control the use of his property, and to insure against the harm it causes. (Cf. Burgess v. Cahill, 1945, 26 Cal.2d 320, 158 P.2d 393, 159 A.L.R. 1304, and concurring opinion of Carter, J., at 26 Cal.2d 325, 158 P.2d 395, 159 A.L.R. 1304). Neither appellant, after he sold the car, was in such a position. If section 23504 is to serve a secondary purpose, as a sanction to force compliance with the transfer and notice requirements of the vehicle code, the legislature must make this secondary purpose clearer; and we note that the legislature has already declared that "Except in cases where a different punishment is provided * * *, every person who fails or refuses to comply with or violates any provision * * * [of the vehicle code] is guilty of a misdemeanor punishable by a fine of not more than $250.00 or by imprisonment for not more than ninety days or by both such fine and imprisonment." (Guam Gov't Code, § 23408 (1961))
28
The judgments are reversed.
Notes:
1
Appellant Look does contend that the trial court could not find that Mrs. Mobley was a passenger in her husband's car because no evidence was offered on that point. We do not understand Look's argument to relate to Mrs. Mobley's status (whether passenger, guest, or what have you), since this would make no difference in Tenorio's liability or that of appellants, in this case; the argument appears to be that it was not proved that Mrs. Mobley was in the car at the time of the accident. It is true that in his brief testimony Mobley did not mention that his wife was in the car, and Mrs. Mobley was not put on the stand. However, a police officer testified: "Upon my arrival, I discovered two vehicles on the middle of the highway. * * * The other vehicle is a '57 Ford, identified the operator as Mr. Mobley and his wife on the passenger side. They were all injured." It is perhaps conceivable that Mrs. Mobley took herself to the scene of the accident by some other means, injured herself, and then crawled into Mobley's car after the accident occurred, but we do not feel compelled to toy with such fantasies, particularly in light of the stipulation recited in the text
2
See Guam Gov't Code § 23504(c), (d)
3
See generally Guam Gov't Code, Title 24 (1952). Minor amendments were made to sections 23337 and 23343 in 1958, but they are not pertinent here
4
In 1957 when the Guam legislature enacted its imputed negligence statute, the 1935 California Vehicle Code was the codification in use. This was superseded by the present codification in 1959. Changes in the numbering of the statutes discussed in the text are as follows:
1959 Vehicle Code 1935 Vehicle Code
Section 17150 ....... Section 402 (a)
Section 5900 ....... Section 177 (a)
Section 5600 ....... Section 186 (a)
Section 5602 ....... Section 178
The 1959 codification made no pertinent changes in the California law as it was in 1957, beyond the renumbering.
5
In discussing the transfer from Look to Bordallo, Bordallo remarked: "I don't believe I ever even saw the registration upon the vehicle, just the ownership that I got from Mr. Look."
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Darrell J. Harper, )
)
Plaintiff, )
) Case: 1:15—cv-O1172
v. ) Assigned To : Unassigned
) Assign. Date : 7/21/2015
United States of America, ) Description: Pro Se Gen, Civil
)
Defendant. )
MEMORANDUM OPINION
This matter is before the Court on its initial review of plaintiffs pro se complaint and
application to proceed in forma pauperis. The Court will grant plaintiff’s application and
dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3)
(requiring the court to dismiss an action “at any time” it determines that subject matter
jurisdiction is wanting).
Plaintiff is a Texas state prisoner incarcerated in Huntsville, Texas. He purports to sue
the United States under Bivens v. Six Unknown Named Agents, 403 US. 388 (1971), which
authorizes a private cause of action against federal officials for violating constitutional rights.
Plaintiff demands $100 million in monetary damages.
Since plaintiff has not named an individual defendant, his Bivens claim fails as a matter
of law. See Ashcroft v. Iqbal, 556 US. 662, 676 (2009) (In a Bivens lawsuit, “a plaintiff must
plead that each Govemment-official defendant, through the official's own individual actions, has
violated the Constitution”). Regardless, under the doctrine of sovereign immunity, the United
States is subject to suit only upon consent, which must be clear and unequivocal. United States v.
1
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Mitchell, 445 US. 535, 538 (1980) (citation omitted); see Lane v. Pena, 518 US. 187, 192
(1996) (the United States may be sued only upon consent “unequivocally expressed in statutory
text[.]”). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671—80, provides a
limited waiver of the sovereign’s immunity for money damages “under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” Id., § l346(b)(l). The United States has not
consented to be sued for constitutional violations. See FDIC v. Meyer, 510 US. 471, 476-78
(1994).
To the extent that plaintiff is suing for “negligent supervision,” Compl. at 1, jurisdiction
is wanting because plaintiff has not indicated that he has exhausted his administrative remedies
by "first present[ing] the claim to the appropriate Federal agency. . . .," 28 U.S.C. § 2675, and
this exhaustion requirement is jurisdictional. See Abdurrahman v. Engstrom, 168 Fed.Appx.
445, 445 (DC. Cir. 2005) (per curiam) (affirming the district court’s dismissal of unexhausted
FTCA claim “for lack of subject matter jurisdiction”); accord Simpkins v. District of Columbia
Gov ’t, 108 F.3d 366, 371 (DC. Cir. 2007). Hence, this case will be dismissed. A separate Order
nited State ' tric Judge
accompanies this Memorandum Opinion.
,/
DATE: July [5 ,2015
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959 A.2d 928 (2008)
COM.
v.
LAUNDERS.
No. 376 EAL (2008).
Supreme Court of Pennsylvania.
October 14, 2008.
Disposition of petition for allowance of appeal. Denied.
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42 F.3d 1406
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Ronald R. ERNST, Plaintiff-Appellant,v.Donna THURLOW, Defendant-Appellee.
No. 94-1251.
United States Court of Appeals, Tenth Circuit.
Nov. 30, 1994.
Before MOORE, ANDERSON, and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
2
This is a pro se civil rights action brought pursuant to 42 U.S.C.1983. Plaintiff-appellant Ronald R. Ernst, proceeding in forma pauperis, seeks monetary damages from defendant Donna Thurlow, the time computation manager for the Colorado Department of Corrections, claiming that she failed to subtract earned time credits from his sentence, with the result that he served a one year and one day prison sentence, instead of a one-year prison sentence. The district court referred the case to a magistrate judge, who recommended dismissal of the complaint as frivolous, under 28 U.S.C.1915(d). The court adopted the magistrate's recommendation and dismissed the complaint. We affirm.
3
We have had difficulty ascertaining the facts of this case. Mr. Ernst's brief makes a number of assertions, but Ms. Thurlow has not filed a brief. From our review of the sparse record in this case, we glean the following: Mr. Ernst was sentenced in 1987 to a one-year prison term for a bond violation. He asserts that the sentence commenced on December 1, 1987, and that he received credit for one day of presentence confinement.
4
He further claims that the Time Computation Division of the Department of Corrections credited him with 35 days of earned time, pursuant to Colo.Rev.Stat. 17-22.5-302, but failed to deduct this earned time from his sentence. Mr. Ernst states that he completed his sentence on November 30, 1988. It is unclear from the record whether Mr. Ernst remained in prison pursuant to some other sentence of confinement, following the claimed completion of his sentence for the bail bond violation.2 He further claims that he remained in prison until December 1, 1988, which means he served one year and one day in prison for a one-year prison sentence. He alleges that it was Ms. Thurlow's failure to award him the earned time credits that resulted in the unlawful extension of his sentence.
5
The district court dismissed his claims, agreeing with the magistrate judge's statement that "[t]o the extent Mr. Ernst may have been held one day too long on his one year sentence, his damages are de minimis. Mr. Ernst has not alleged that he has suffered any significant harms as a result of the alleged one day extension of his sentence." Recommendation at 2, R. Vol. I, Tab 7. It also rejected his arguments relating to earned time credits, holding that, under Colorado law, Mr. Ernst had no right to be released before he had served his full one-year sentence, no matter how many earned time credits he had, and that the denial of earned time credits violated no constitutional right, given the broad discretion vested in state officials under Colorado law to grant or deny such credits.
6
We review the district court's dismissal of a complaint under section 1915(d) for an abuse of discretion. Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992); Shabazz v. Askins, 980 F.2d 1333 (10th Cir.1992). A claim is frivolous when it is "based on an indisputably meritless legal theory" or when its factual allegations are "clearly baseless." Northington v. Jackson, 973 F.2d 1518, 1520 (10th Cir.1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). Because Mr. Ernst proceeds pro se, we construe his complaint liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Ruark v. Solano, 928 F.2d 947, 948 (10th Cir.1991).
7
We agree with the district court that Mr. Ernst's claim that his constitutional rights were violated by the failure to reduce his sentence because of earned time allegedly withheld is meritless. There is no general constitutional right to good time or earned time credit. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). A protected liberty interest in earned time may nonetheless arise where a state statute mandates the award of earned or good time credits, and prison officials lack discretion in awarding it. Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Lustgarden v. Gunter, 966 F.2d 552, 554-55 (10th Cir.), cert. denied, 113 S.Ct. 624 (1992). As the magistrate judge acknowledged, such is not the case with Colorado's earned time statutes. Colorado Revised Statute 17-22.5-405 provides that "[e]arned time, not to exceed ten days for each month of incarceration or parole, may be deducted from the inmate's sentence...." The language is clearly discretionary, and it therefore creates no entitlement or liberty interest in earned time credits. See Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir.1994). The decision whether to parole an inmate earlier for time earned in prison is similarly within the discretion of the Colorado parole board, and confers no constitutional right to early release for prisoners like Mr. Ernst. See Thiret v. Kautzky, 792 P.2d 801, 804-05 (Colo.1990).
8
Mr. Ernst further suggests that earned time credits actually granted were somehow taken away, and that this violated certain Colorado statutes. His argument is vague, and his statutory references are unclear, but we find neither statutory nor record support for his allegation that credits were granted and vested and then impermissibly removed.
9
Finally, Mr. Ernst challenges the district court's dismissal of his complaint alleging an impermissible one-day extension of his prison term on the ground that such a claimed injury is de minimis. While we have recently acknowledged that some violations can indeed be de minimis, see Artes-Roy v. City of Aspen, 31 F.3d 958, 962-63 (10th Cir.1994), we are reluctant to conclude that any added time spent in prison would be de minimis, no matter how short in duration. However, Mr. Ernst's claim against Ms. Thurlow for the added day of prison time faces a more fundamental problem. We have held that Ms. Thurlow committed no section 1983 violation in somehow contributing to Mr. Ernst's failure to be released earlier than upon completion of his one-year sentence. Not only does Mr. Ernst present no record support for his claim that he did in fact serve the extra day in prison, he makes no attempt to explain how Ms. Thurlow's alleged computational error resulted in his serving a sentence longer than he claims was ever imposed. While we must construe his complaint liberally, his factual and legal allegations must at least be plausible. See Lemmons v. Morris, No. 94-5048 1994 WL 593276 (10th Cir. Nov. 1, 1994). Mr. Ernst's are not.
10
We therefore conclude that the district court did not abuse its discretion in dismissing Mr. Ernst's complaint.
11
AFFIRMED.
1
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470
2
Mr. Ernst is no stranger to this court, having filed numerous appeals from various district court rulings. Among them was another appeal involving section 1983, in which he claimed that the Executive Director of the Colorado Department of Corrections and the Chairman of the Colorado Board of Parole violated his constitutional rights "by failing to release him from custody on December 13, 1989 ... following his guilty plea in May 1985 for a sex offense." Ernst v. Gunter, 1993 WL 436833 * * 1 (10th Cir., Oct. 29, 1993)
Additionally, the magistrate judge observed that Mr. Ernst's "allegations in this case appear to conflict with allegations Mr. Ernst made in another suit filed with this court, Ernst v. Thurlow, Peoples & Enright, 93-F-2631 [in which] Mr. Ernst challenged the sentence calculation applied to a two year sentence he received in November 1987, and alleged detailed facts concerning the dates he was held in prison, and the dates he was released." Recommendation at 2, R. Vol. I, Tab 7.
These statements suggest, although they do not establish, that Mr. Ernst may indeed have remained in prison on another sentence when he claims his bail bond violation sentence terminated. However, in response to court-ordered interrogatories, Mr. Ernst stated that "[t]he sentence on the bond violation did not run concurrently with any other sentence. The parent sentence that formed this case, was overturned by the district court, thereby leaving this sentence to be served." Answers to Court-Ordered Interrogatories, R. Vol. I, Tab 5.
We simply cannot tell Mr. Ernst's whereabouts following the alleged completion of his bail bond violation sentence.
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T.C. Memo. 2003-45
UNITED STATES TAX COURT
TOMMY RAY SMITH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8564-02L. Filed February 25, 2003.
Tommy Ray Smith, pro se.
Rollin G. Thorley, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before the Court on respon-
dent’s motion for summary judgment and to impose a penalty under
section 66731 (respondent’s motion). We shall grant respondent’s
1
All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
- 2 -
motion.
Background
The record establishes and/or the parties do not dispute the
following.
Petitioner resided in Las Vegas, Nevada, at the time he
filed the petition in this case.
On December 28, 1998, petitioner filed a Federal income tax
(tax) return for his taxable year 1997 (1997 return). In his
1997 return, petitioner reported total income of $0, total tax of
$0, and claimed a refund of $2,939.89 of tax withheld. Peti-
tioner attached a two-page document to his 1997 return (peti-
tioner’s attachment to his 1997 return). That document, as
completed by petitioner, stated in pertinent part:
I, Tommy R. Smith am submitting this as part of my 1997
income tax return, even though I know that no section
of the Internal Revenue Code:
1) Establishes an income tax “liability” as, for
example, Code Sections 4401, 5005, and 5703 do with
respe to wagering, alcohol, and tobacco taxes;
2) Provides that income taxes “have to be paid on
the basis of a return”-as, for example, Code Sections
437 4401(c), 5061(a) and 5703(b) do with respect to
other taxes * * * this return is not being filed volun-
tarily but is being filed out of fear that if I did not
file this return I could also be (illegally) prosecuted
for failing to file an income tax return for the year
1997.
3) In addition to the above, I am filing even
though the “Privacy Act Notice” as contained in a 1040
booklet clearly informs me that I am not required to
file. It does so in at least two places.
a) In one place, it states that I need only file a
- 3 -
return for “any tax” I may be “liable” for. Since no
Code Section makes me “liable” for income taxes, this
provision notifies me that I do not have to file an
income tax return.
b) In another place, it directs me to Code Section
6001. This section provides, in relevant part, that
“Whenever in the judgment of the Secretary it is neces-
sary, he may require any person by notice served on suc
person; or by regulations, to make such returns, render
such statements, or keep such records, as the Secretary
deems sufficient to show whether or not such person is
liable for tax under this title.” Since the Secretary
of the Treasury did not “serve” me with any such “no-
tice” and since no legislative regulation exists re-
quiring anyon to file an income tax return, I am again
informed by the “Privacy Act Notice” that I am not
required to file an income tax return.
* * * * * * *
7) It should also be noted that I had “zero”
income according to the Supreme Court’s definition of
income * * * since in Merchant’s Loan & Trust C. V.
Smietanka, 225 U.S. 509, (at pages 518 & 519) that
court held that “The word (income) must be given the
same meaning in all of the Income Tax Acts of Congress
that was given to it in the Corporation Excise Tax Act
of 1909.” Therefore since I had no earnings in 1997,
tha would have been taxable as “income” under the
Corporation Excise Tax Act of 1909, I can only swear to
having “zero” income in 1997. Obviously, since I know
the legal definition of “income”, if I were to swear to
having received any other amount of “income,” I would
be committing perjury * * *. Therefore, not wishing to
commit perjury * * *, I can only swear to having “zero”
income fo 1997. [Reproduced literally.]
On June 14, 1999, respondent paid petitioner the $2,939.89
refund that he claimed in his 1997 return plus interest thereon.
On August 4, 2000, respondent issued to petitioner a notice
of deficiency (notice) with respect to his taxable year 1997,
which he received. In that notice, respondent determined a
deficiency in, and an accuracy-related penalty under section
- 4 -
6662(a) on, petitioner’s tax for his taxable year 1997 in the
respective amounts of $2,194 and $438.80.
Petitioner did not file a petition in the Court with respect
to the notice relating to his taxable year 1997. Instead, on
October 6, 2000, in response to the notice, petitioner sent a
letter (petitioner’s October 6, 2000 letter) to the Internal
Revenue Service. That letter stated in pertinent part:
RE: Deficiency Notice dated 08-04-00
Registered Mail # Z 096 931 664
According to your “Deficiency Notice” of above date
(cover sheet [page 1 of notice with respect to peti-
tioner’s taxable year 1997] attached), there is an
alleged deficiency with respect to my 1997 income tax
return of $0.00, if I wanted to “contest this defi-
ciency before making payment”, I must “file a petition
with the United States Tax Court”. Before I file, pay,
or do anything with respect to your “Notice”, I must
first establish whether or not it was sent out pursuant
to law and whether or not it has the “force and effect
of law”, since, if it does not, than it can not legally
apply to me on any basis.
1) For one thing, Section 6212 states that “If the
Secretary determines that there is a deficiency in
respect of any tax... he is authorized to send notice
of such deficiency etc., etc., etc.,” However, the
“Notice” I recieved was not sent out by the Secretary,
but rather by Ms. Power, who is identified as being the
Director of the Service Center in Ogden, UT, and I have
no way of knowing whether she has been delegated by the
Secretary to send out such notices on the Secretary’s
behalf. So before I do anything at all with respect to
your “Notice”, I would have to see a Delegation Order
from the Secretary of the Treasury delegating to Ms.
Power the authority to send out Deficiency Notices.
2) I would also like you to send me (or identify
for me) the legislative regulations that you claim
implement Code Section 6212 and 6213. According to two
Code Sections in the Privacy Act and Paperwork Reduc-
- 5 -
tion Act notice (as contained in the 1040 booklet) to
which my attention was specifically directed - Section
6001 States that I must “comply with such rules and
regulations as the Secretary may from time to time
prescribe etc. etc.,...; while Section 6011 states that
“when required by regulations prescribed by the Secre-
tary etc., etc...”, however, I can not find any legis-
lative regulation “prescribed by the Secretary” that
requires me to petition Tax Court in responce to a
Deficiency Notice. Therefore, I am asking that you
supply me with the legislative regulations that you
claim implement Code Section 6212 and 6213, since I can
not find any such regulations on my own. * * * [Repro-
duced literally.]
On January 8, 2001, respondent assessed petitioner’s tax, as
well as any penalties and interest as provided by law, for his
taxable year 1997. (We shall refer to those assessed amounts, as
well as interest as provided by law accrued after January 8,
2001, as petitioner’s unpaid liability for 1997.)
On January 8, 2001, respondent issued to petitioner a notice
of balance due with respect to petitioner’s unpaid liability for
1997.
On July 30, 2001, respondent issued to petitioner a final
notice of intent to levy and notice of your right to a hearing
(notice of intent to levy) with respect to his taxable year 1997.
On or about August 29, 2001, in response to the notice of intent
to levy, petitioner filed Form 12153, Request for a Collection
Due Process Hearing (Form 12153), and requested a hearing with
respondent’s Appeals Office (Appeals Office). Petitioner at-
tached a document to his Form 12153. That document stated in
pertinent part:
- 6 -
1) I want the appeals officer to have with him a
copy of the Notice and Demand that was supposed to have
been sent.
2) If he dose not have the actual “notice and
demand”, then I demand that he at least have
a blank copy of the document.
3) Please have the Form 4340 signed by an assess-
ment officer certifying that an assessment has been
made. In lieu of a signed 4340, don’t show me an
unsigned IRS printout (containing coded entries I don’t
understand) which claims an assessment was made.
4) I want the appeals officer to also have the
1040 return from which my claimed 1997 assessment was
made.
5) I would like to see the Treasury Decision or
Treasury Regulation which identifies the document sent
to me as being the stutory “notice and demand” is, in
fact, that document.
6) I claim there is no Statute requiring me to pay
the income taxes at issue. Please have that Statute
for me to see.
7) Also show me the law that authorizes the IRS to
claim that I owe more in income taxes than the “zero” I
reported on my 1997 income tax return.
8) Show me the law that says a Form 1040 is to be
used.
9) And finally I expect you to have at the hearing
“verification from the Secretary that the requirements
of any applicable law or administrative procedure have
been met. [Reproduced literally.]
On March 13, 2002, respondent’s Appeals officer held an
Appeals Office hearing with petitioner with respect to the notice
of intent to levy. At the Appeals Office hearing, the Appeals
officer gave petitioner Form 4340, Certificate of Assessments,
Payments, and Other Specified Matters (Form 4340), with respect
to petitioner’s taxable year 1997.
On April 4, 2002, the Appeals Office issued to petitioner a
notice of determination concerning collection action(s) under
- 7 -
section 6320 and/or 6330 (notice of determination). An attach-
ment to the notice of determination stated in pertinent part:
Verification of Legal and Procedural Requirements
The Secretary has provided sufficient verification that
all legal and procedural requirements have been met.
Computer transcripts have been reviewed by Appeals,
verifying the assessment.
The assessment was made, and notice and demand was
issued on 01/08/2001 by regular mail to the taxpayer’s
last known address, as required under IRC 6303. The
notices required under IRC 6331(d) and IRC 6330 were
combined in Letter 1058, dated 07/30/2001, which was
mailed certified to the taxpayer’s last known address.
The taxpayer responded with Form 12153, Request for a
Collection Due Process Hearing, which was timely re-
ceived on 08/29/2001. The taxpayer is entitled to
judicial review. This is a levy issue only.
A certified transcript was requested and reviewed and a
copy was provided to the taxpayer at the hearing. An
in-person collection due process hearing was held on
03/13/2002. In attendance were the taxpayer, a tax-
payer witness, Settlement Officer Donna Fisher, and
Appeals Officer Tony Aguiar. The hearing was audio
recorded by the taxpayer and Settlement Officer Donna
Fisher.
Settlement Officer Donna Fisher has had no prior in-
volvement with respect to this tax liability.
Issues Raised by the Taxpayer
The taxpayer disagrees with the assessment. He filed a
zero income, zero tax due return, attached his W-2 Form
showing taxable wages of $19,826.40, and received a
full refund. The Service completed an audit, and the
taxpayer was issued a statutory notice of deficiency,
dated 08/04/2000. He received the statutory notice of
deficiency and responded to it with a letter dated
10/06/2000 with one and a half pages of non-filer
arguments. As such, under the collection due process
procedures, he may not raise as an issue the existence
or amount of the underlying assessment.
- 8 -
The taxpayer stated he did not receive the letter of
notice and demand. The certified transcript shows it
was issued to him on 01/08/2001, at which time his last
known address was 4104 E. Harmon as indicated by com-
puter transcripts. The taxpayer also stated his ad-
dress at that time was 4104 E. Harmon. This was the
same address as it was when he received and responded
to both the statutory notice of deficiency dated
08/04/2000, and the Letter 1058 dated 07/30/2001.
Today he still lives at 4104 E. Harmon. Therefore, it
is presumed he did receive the letter of notice and
demand.
The taxpayer raised no non-frivolous arguments.
I raised the issue of collection alternatives with the
taxpayer. He was not interested. He said he would pay
the tax due if it could be proven to him that it was
owed, but since he does not believe wages are income,
this discussion was fruitless. In addition, since the
taxpayer has not filed any returns since 1997, he is
not in filing compliance, and therefore, is not now
eligible for an offer in compromise or an installment
agreement.
Balancing the Need for Efficient Collection with Tax-
payer Concerns
The requirements of all applicable laws and administra-
tive procedures have been met. The taxpayer received
all his required notices. The assessment is valid.
Given the taxpayer’s continued lack of compliance with
the tax laws, a levy or levies on his property or
rights to property would not be considered more intru-
sive than necessary when balancing the government’s
need for efficient collection with his concerns.
Discussion
The Court may grant summary judgment where there is no
genuine issue of material fact and a decision may be rendered as
a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner,
98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994).
In petitioner’s response to respondent’s motion (peti-
- 9 -
tioner’s response), petitioner contends that the following are
genuine issues of material fact: “Verification from the Secre-
tary was not obtained by appeals officer” and “No statutory
notice and demand was sent”.2 The record in this case estab-
lishes that the Appeals officer obtained verification from the
Secretary that the requirements of any applicable law or adminis-
trative procedure were met. The record further establishes that
respondent sent to petitioner a notice of balance due with
respect to petitioner’s unpaid liability for 1997, which, as
discussed below, constitutes a notice and demand for payment
under section 6303(a), Craig v. Commissioner, 119 T.C. 252, 262-
263 (2002). We conclude that there are no genuine issues of
material fact regarding the questions raised in respondent’s
motion.
With respect to petitioner’s taxable year 1997, petitioner
received a notice of deficiency, but he did not file a petition
with respect to that notice. In the petition, petitioner admits
2
Petitioner also contends that the following are genuine
issues of material fact:
No statute establishes a liability for the income tax
or requires the payment of the income tax
* * * * * * *
Petitioner is not now, and has never been involved in
any occupation requiring taxes be paid by stamp. * * *
The foregoing assertions do not raise genuine issues of material
fact. Those assertions raise frivolous legal arguments.
- 10 -
that he received the notice of deficiency and alleges that he
“would have petitioned Tax Court if the agent who sent the notice
could prove that she had the authority to do so.” On the instant
record, we find that petitioner may not challenge the existence
or the amount of petitioner’s unpaid liability for 1997. See
sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 610-611
(2000); Goza v. Commissioner, 114 T.C. 176, 182-183 (2000).
Where, as is the case here, the validity of the underlying
tax liability is not properly placed at issue, the Court will
review the determination of the Commissioner of Internal Revenue
for abuse of discretion. Sego v. Commissioner, supra at 610;
Goza v. Commissioner, supra at 181-182.
As was true of petitioner’s attachment to his 1997 return,
petitioner’s October 6, 2000 letter, and petitioner’s attachment
to Form 12153, petitioner’s response contains contentions,
arguments, and requests that the Court finds to be frivolous
and/or groundless. To illustrate, petitioner argues that he “has
not received proper Notice and Demand” under section 6303(a).
That is because, according to petitioner, respondent must use
Form 17 in issuing such notice and demand.
We reject petitioner’s argument that respondent did not
issue the notice and demand required by section 6303(a). Form
4340 with respect to petitioner’s taxable year 1997 shows that
respondent sent petitioner a notice of balance due on January 8,
- 11 -
2001, the same day on which respondent assessed petitioner’s tax,
as well as any penalties and interest as provided by law, for his
taxable year 1997. A notice of balance due constitutes the
notice and demand for payment under section 6303(a). Craig v.
Commissioner, supra. Respondent is not required to use Form 17
as the notice and demand for payment. E.g., Keene v. Commis-
sioner, T.C. Memo. 2002-277; Tapio v. Commissioner, T.C. Memo.
2002-141.
As a further illustration of the frivolous and/or groundless
nature of petitioner’s position in this case, petitioner contends
in petitioner’s response that the Appeals officer failed to
obtain verification that the requirements of any applicable law
or administrative procedure have been met, as required by section
6330(c)(1). In this regard, petitioner contends that the Appeals
officer improperly relied on Form 4340 to meet the verification
requirement of section 6330(c)(1).
As indicated above, the record establishes that the Appeals
officer obtained verification from the Secretary that the re-
quirements of any applicable law or administrative procedure were
met, and we reject petitioner’s contention to the contrary. As
for the Appeals officer’s reliance on Form 4340, at the Appeals
Office hearing, the Appeals officer relied on, and gave peti-
tioner, Form 4340 with respect to petitioner’s taxable year 1997.
Section 6330(c)(1) does not require the Appeals officer to rely
- 12 -
on a particular document to satisfy the verification requirement
imposed by that section.3 Craig v. Commissioner, supra at 261-
262. Form 4340 is a valid verification that the requirements of
any applicable law or administrative procedure have been met.
Id. at 262. Petitioner has not shown any irregularity in respon-
dent’s assessment procedure that would raise a question about the
validity of the assessment or the information contained in Form
4340 with respect to petitioner’s taxable year 1997. We hold
that the assessment with respect to petitioner’s taxable year
1997 was valid and that the Appeals officer satisfied the verifi-
cation requirement of section 6330(c)(1). See id.4
Based upon our examination of the entire record before us,
we find that respondent did not abuse respondent’s discretion in
3
Nor does sec. 6330(c)(1) require the Appeals officer to
provide petitioner with a copy of the verification upon which the
Appeals officer relied. Craig v. Commissioner, 119 T.C. 252, 262
(2002).
4
We shall not specifically address any additional matters,
such as the following, which petitioner asserts in petitioner’s
response, all of which, as indicated above, the Court finds to be
frivolous and/or groundless:
This Court has repeatedly ignored taxpayers’
requests that this Court identify the IR Code Section
that establishes a liability for the income tax, by
simply stating that this argument is “frivolous”,
instead of citing the alleged Code Section itself, if
it exists. * * * Also, there is no entry under the
“liability” heading in the index of the Internal Reve-
nue Code for “income tax”. * * * This Court has repeat-
edly refused to produce proper, legal delegations of
authority from the Secretary to various employees of
the IRS * * *
- 13 -
determining to proceed with the collection action as determined
in the notice of determination with respect to petitioner’s
taxable year 1997.
In respondent’s motion, respondent requests that the Court
require petitioner to pay a penalty to the United States pursuant
to section 6673(a)(1). Section 6673(a)(1) authorizes the Court
to require a taxpayer to pay to the United States a penalty in an
amount not to exceed $25,000 whenever it appears to the Court,
inter alia, that a proceeding before it was instituted or main-
tained primarily for delay, sec. 6673(a)(1)(A), or that the
taxpayer’s position in such a proceeding is frivolous or ground-
less, sec. 6673(a)(1)(B).
In Pierson v. Commissioner, 115 T.C. 576, 581 (2000), we
issued an unequivocal warning to taxpayers concerning the imposi-
tion of a penalty under section 6673(a) on those taxpayers who
abuse the protections afforded by sections 6320 and 6330 by
instituting or maintaining actions under those sections primarily
for delay or by taking frivolous or groundless positions in such
actions.
In the instant case, petitioner advances, we believe primar-
ily for delay, frivolous and/or groundless contentions, argu-
ments, and requests, thereby causing the Court to waste its
limited resources. We shall impose a penalty on petitioner
pursuant to section 6673(a)(1) in the amount of $500.
- 14 -
We have considered all of petitioner’s contentions, argu-
ments, and requests that are not discussed herein, and we find
them to be without merit and/or irrelevant.
On the record before us, we shall grant respondent’s motion.
To reflect the foregoing,
An appropriate order granting
respondent’s motion and decision
will be entered for respondent.
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Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-14-1994
United States v. Breyer
Precedential or Non-Precedential:
Docket 94-1301
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"United States v. Breyer" (1994). 1994 Decisions. Paper 184.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/184
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-1301
___________
UNITED STATES OF AMERICA
vs.
JOHANN BREYER, aka JOHN BREYER,
JOHANN PAUL BREUER, JAN PAVEL BREUER,
JAN PAVEL BREYER, HANS BREYER
Johann Breyer,
Appellant
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ No. 92-cv-02319)
___________
Argued
September 13, 1994
Before: SLOVITER, Chief Judge,
MANSMANN and ALARCON,* Circuit Judges.
(Filed November 14, 1994)
___________
Joseph V. Restifo, Esquire (Argued)
Suite 2525
12 South 12th Street
PSFS Building
Philadelphia, PA 19107
Counsel for Appellant
Eli M. Rosenbaum, Acting Director
Ronnie L. Edelman, Deputy Director
Denise Noonan Slavin, Sr. Trial Attorney
Michael D. Bergman, Trial Attorney (Argued)
Joseph J. Malcolm, Trial Attorney
Office of Special Investigations
Criminal Division
U.S. Department of Justice
1001 G Street, N.W., Suite 1000
Washington, DC 20530
Counsel for Appellee
* Honorable Arthur L. Alarcon of the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
The United States commenced an action under the
Immigration and Nationality Act of 1952, as amended, U.S.C. §§
1101 et seq., against Johann Breyer, seeking his denaturalization
based on his service as an armed guard in Nazi concentration
camps during World War II. Breyer's naturalization was premised
on his 1952 entry into the United States as a displaced person
under the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62
Stat. 1009, amended by Pub. L. No. 81-555, 64 Stat. 219 (1950).
Although Breyer essentially conceded that he was ineligible for
displaced persons status as a result of his wartime activities,
he challenged the government's right to denaturalize him,
asserting that in retrospect, he should be deemed to have entered
this country in 1952 lawfully as a United States citizen, having
derived citizenship through his mother. The district court
granted summary judgment in the government's favor, which served
to denaturalize Breyer. Nonetheless, the court determined that
the derivative citizenship statute in effect at the time of
Breyer's birth, which awarded citizenship only to persons born to
United States citizen fathers, was unconstitutional, but
abstained from declaring Breyer a United States citizen because
of a pending administrative proceeding he had initiated for this
purpose. The issues we address are whether Breyer was properly
denaturalized and whether the district court should have reached
Breyer's derivative citizenship claim.
I.
The material facts surrounding Breyer's entry into the
United States and subsequent naturalization are not in dispute.
Breyer was born on May 30, 1925, in Neuwalddorf, now known as
Nova Lesna in the Republic of Slovakia. As a young man, he
joined the Waffen SS, a Nazi paramilitary group, and ultimately
became a member of the SS Totenkopfsturmbanne (Death's Head)
Battalion. The SS Totenkopfsturmbanne was responsible for
guarding Nazi concentration camps, where people were forcibly
confined in inhumane conditions, subjected to unspeakable
atrocities and executed because of their race, religion, national
origin or political beliefs.
Breyer was initially assigned to the Buchenwald
concentration camp where he served in the SS Totenkopf guard unit
from February, 1943 to May, 1944. At Buchenwald, Breyer was
trained to use a rifle and guard prisoners. In uniform, Breyer
accompanied prisoners to and from work sites, and stood guard
with a loaded rifle at the perimeter of the camp, under orders to
shoot any prisoner trying to escape who failed to heed a warning
to stop. In May, 1944, Breyer was transferred to Auschwitz, a
death camp complex established in Nazi-occupied Poland. Again
uniformed as an SS Totenkopf guard and armed with a rifle, Breyer
patrolled the camp's perimeters and escorted prisoners to and
from work. In August, 1944, Breyer took a paid leave, never to
return to guard duty. While Breyer denied that he personally
engaged in any abuse of prisoners, he was aware that prisoners
were tortured and killed at Buchenwald and Auschwitz.
In May, 1951, Breyer applied to the United States
Displaced Persons Commission to be qualified as a displaced
person under the Displaced Persons Act for purposes of obtaining
a visa to immigrate to the United States. His application was
initially rejected because he had served in the Waffen SS.
Several months later, the criteria for eligibility under the Act
changed, so that membership in the Waffen SS was no longer a bar
to displaced person status. In an interview with the Commission,
Breyer disclosed that he was a member of the Waffen SS, but did
not disclose his membership in the SS Totenkopf. On March 28,
1952, the Commission certified Breyer as a displaced person
eligible for a visa.
Breyer then applied to immigrate to the United States
as an alien under the Act. He was granted an immigrant visa and
entered the United States in May, 1952. Thereafter, Breyer filed
a petition for naturalization and on November 7, 1957, the United
States District Court for the Eastern District of Pennsylvania
granted his petition and issued a certificate of naturalization.
On April 21, 1992, the government filed a five-count
complaint under section 1451(a) of the Immigration and
Nationality Act to revoke and set aside Breyer's naturalized
United States citizenship on the grounds that it was illegally
procured (Counts I, II, III, IV) or was procured by concealment
or willful misrepresentation (Count V).1 In an amendment to his
answer, Breyer set forth as an "affirmative defense" the
allegation that he was a derivative citizen of the United States.
Breyer asserted that his citizenship was derived from his mother,
who he alleged was born in Philadelphia, Pennsylvania.2
1
. Section 1451(a) states in pertinent part:
§ 1451. Revocation of naturalization
(a) Concealment of material evidence; refusal to
testify
It shall be the duty of the United States attorneys for
the respective districts, upon affidavit showing good
cause therefor, to institute proceedings in any
district court of the United States . . . for the
purpose of revoking and setting aside the order
admitting such person to citizenship and canceling the
certificate of naturalization on the ground that such
order and certificate of naturalization were illegally
procured or were procured by concealment of a material
fact or by willful misrepresentation . . . .
2
. United States citizenship is acquired under the United
States Constitution or by federal statute. Persons born in the
United States are automatically citizens under the Fourteenth
Amendment. Alternatively, a person may have a statutory right to
United States derivative citizenship through certain familial
relationships. The applicable statute has been revised over the
years. When Breyer was born, section 1993 of the Revised Statute
of 1874 granted United States citizenship to foreign-born
offspring of United States citizen fathers, but not of United
States citizen mothers. Section 1993 was amended in 1934 to make
it gender neutral, and thereafter, it was repealed and replaced.
Presently, derivative citizenship is granted to all foreign-born
children of either American citizen parent. 8 U.S.C. § 1401.
In October, 1994, Congress enacted legislation which
amends 8 U.S.C. § 1401 to eliminate retroactively the gender
distinction in section 1993. Under the amendment, persons born
abroad before noon May 24, 1934 to a United States citizen mother
obtain citizenship. Pub. L. No. 103-416, 108 Stat. 4305 (1994).
The amendment also provides that the retroactive application of
the amendment shall not confer citizenship upon any person who
was ineligible for admission into the United States under the
On October 30, 1992, pursuant to section 1452(a),
Breyer filed an Application for Certificate of Citizenship with
the Immigration and Naturalization Service, claiming derivative
citizenship through his mother,3 which is pending at the time of
this appeal.
In December, 1992, the government filed a motion for
summary judgment on Count I (Illegal Procurement of U.S.
Citizenship: Unlawful Admission under the Displaced Persons Act,
Assistance in Persecution) and Count II (Illegal Procurement of
U.S. Citizenship: Unlawful Admission under the Displaced Persons
Act, Membership In Hostile Movement). Attacking the lawfulness
of Breyer's 1952 entry, the government contended that Breyer was
excluded under the Displaced Persons Act from obtaining a visa
because of his SS Totenkopf guard service at Buchenwald and
Auschwitz. Since he was ineligible under the Act, the visa with
which he entered this country was invalid. Without a valid visa,
his entry was unlawful, and his naturalization, in turn, was
illegally procured.
Breyer's primary response to the government's motion
was his claim of derivative citizenship. According to Breyer,
(..continued)
Displaced Persons Act or affect the validity of a
denaturalization action against any such person. Id. Since this
legislation is not before us, we make no comment upon it.
3
. The Service is authorized to issue evidence of
derivative citizenship in the form of a Certificate of
Citizenship to persons who claim statutory derivative
citizenship. 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1-.7 (1994).
The statutory procedure that persons with derivative citizenship
claims must follow is discussed on pp. 17-18, supra.
since he was a United States citizen through his mother at the
time of his 1952 entry, he entered the United States lawfully,
and thus, his naturalization was meaningless and not the means by
which he was entitled to citizenship.
On March 30, 1993, Breyer filed a motion to stay before
the district court, requesting that the government's
denaturalization action be stayed pending final resolution of his
derivative citizenship claim under consideration before the
Service. The court denied Breyer's motion on April 20, 1993.
On July 7, 1993, the district court issued an opinion
and order on the government's summary judgment motion in which it
analyzed the government's request for summary judgment and
Breyer's derivative citizenship defense separately. United
States v. Breyer, 829 F. Supp. 773 (E.D. Pa. 1993). The district
court found, as the government asserted, that Breyer's
concentration camp guard service was a bar to eligibility under
the Displaced Persons Act, rendering his visa invalid and his
entry unlawful, and concluded that Breyer's naturalization was
illegally procured.
The district court then turned to the merits of
Breyer's derivative citizenship claim, specifically whether
section 1993 of the Revised Statute of 1874 violated Breyer's
Fifth Amendment equal protection rights since at the time of
Breyer's birth, the statute awarded citizenship to foreign-born
offspring of United States citizen fathers but not of United
States citizen mothers. The district court found section 1993
unconstitutional as applied to Breyer, but deferred a ruling on
the appropriate remedy pending the outcome of a bench trial on
the disputed issue of Breyer's mother's birthplace. The district
court's July 7, 1993 order granted the government's motion for
summary judgment on Counts I and II, without prejudice to
Breyer's right to pursue the issue of derivative United States
citizenship as an affirmative defense. The government
subsequently withdrew the other counts of the complaint.
After a bench trial to determine Breyer's mother's
birthplace, the district court rendered a second opinion and
order on December 21, 1993. United States v. Breyer, 841 F.
Supp. 679 (E.D. Pa. 1993). The district court found that
Breyer's mother was indeed born in the United States, and
concluded that the remedy for the unconstitutionality of section
1993 is to include United States mothers under the statute
retroactively. Nonetheless, because the district court also
concluded that a party must exhaust administrative remedies
before a federal court could issue a declaration of citizenship,
it "abstained" from resolving the issue of Breyer's derivative
citizenship to enable him to pursue to conclusion the
administrative proceeding he had initiated before the Service.
Accordingly, in its December 21, 1993 order, because the
government had prevailed on summary judgment, the district court
declared that Breyer procured his certificate of naturalization
illegally,4 set aside the order admitting Breyer to United States
4
. Even though the government withdrew Counts III, IV and
V of the complaint, the district court also found that Breyer
procured his certificate of naturalization by "willful
concealment and misrepresentation of material facts". In a post-
citizenship, canceled his certificate of naturalization and
demanded its surrender, and declared that Breyer's right to
pursue his derivative citizenship claim through the appropriate
channels was not prejudiced.5
On December 29, 1993, Breyer filed a motion for relief
from judgment and a motion to alter or amend judgment, which
requested essentially that the district court vacate its prior
orders.6 Breyer's post-trial motions were denied on January 20,
(..continued)
trial motion, Breyer requested that these words be stricken from
the court's December 21, 1993 order. In a January 24, 1994
order, the district court granted Breyer's request, striking the
words from its prior order as "superfluous". On appeal, Breyer
contends that the district court should have stricken the
language as "incorrect". We interpret the district court's use
of the word "superfluous" in this context to mean unnecessary and
invalid, and to provide Breyer essentially with the relief he
sought. Thus, we find that the district court did not err in the
language it used to modify its December 21, 1993 order.
5
. Although the court used the term "abstain", its
December 21, 1993 order was conclusive and the case was closed on
December 23, 1993. Therefore, the district court's December 21,
1993 order was final for purposes of appeal under 28 U.S.C. §
1291.
6
. As Breyer's December 29, 1993 motions asked the
district court to vacate its prior orders, both will be viewed as
Rule 59(e) motions to alter or amend the judgment, even though
one was styled a Rule 60(b) motion for relief from judgment.
Fed. R. Civ. P. 59, 60; Sonnenblick-Goldman Corp. v. Nowalk, 420
F.2d 858, 859 (3d Cir. 1970). A timely appeal from a denial of a
Rule 59 motion "`brings up the underlying judgment for review.'"
Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.
1986), quoting Quality Prefabrication, Inc. v. Daniel J. Keating
Co., 675 F.2d 77, 78 (3d Cir. 1982). Therefore, our standard of
review for a denial of a Rule 59 motion varies with the
underlying judicial decision. Federal Kemper, 807 F.2d at 348.
Here, it is the underlying summary judgment in favor of the
government, upon which the revocation of Breyer's naturalized
citizenship was premised, that we review. Moreover, the issues
Breyer raises on appeal relate to those determined by the
district court's grant of summary judgment.
1994 and January 24, 1994 respectively.7 Breyer's timely appeal
followed.
II.
In our review of this case, we remain mindful of two
competing concerns. On the one hand, we acknowledge that "the
right to acquire United States citizenship is a precious one, and
that once citizenship has been acquired, its loss can have severe
and unsettling consequences." Fedorenko v. United States, 449
U.S. 490, 505 (1981). For this reason, the government "`carries
a heavy burden of proof in a proceeding to divest a naturalized
citizen of his citizenship'", Id., quoting Costello v. United
States, 365 U.S. 265, 269 (1961), and the evidence for revocation
must be "`clear, unequivocal, and convincing'" and not leave
"`the issue in doubt.'" Id., quoting Schneiderman v. United
States, 320 U.S. 118, 125 (1943) and Maxwell Land-Grant Case, 121
U.S. 325, 381 (1887). On the other hand, we recognize that there
must be "strict compliance" with all the congressionally imposed
prerequisites to naturalization, and failure to comply with any
of these terms renders the naturalization illegally procured and
subject to revocation under section 1451(a) of the Immigration
and Nationality Act. Fedorenko, 449 U.S. at 506. Even though
Breyer does not specifically challenge the district court's
conclusion that he was ineligible for a visa and entry into this
7
. Breyer's post-trial motions were denied, except that
the district court struck certain language from its December 21,
1993 order. See n. 4, supra.
country under the Displaced Persons Act, the importance of the
fundamental right that is at stake in a denaturalization
proceeding requires our in-depth examination of the record to
make certain that the government met its stringent burden.
A.
The Immigration and Nationality Act provides, inter
alia, that no person shall be naturalized unless the applicant
has resided continuously within the United States, after having
been lawfully admitted for permanent residence, for at least five
years. 8 U.S.C. § 1427(a)(1). Lawful admission requires entry
pursuant to a valid immigrant visa. Fedorenko, 449 U.S. at 515;
United States v. Kowalchuk, 773 F.2d 488, 492-93 (3d Cir. 1985),
cert. denied, 475 U.S. 1012 (1986).
The Displaced Persons Act was specially enacted in 1948
to accommodate the large number of refugees wishing to emigrate
to the United States following World War II. Under the Act,
those eligible as displaced persons were granted entrance visas.
In section 13 of the Act, however, there were notable exclusions
from eligibility for a visa, two of which the government alleged
and the district court found were applicable to Breyer. Section
13 states in pertinent part:
No visas shall be issued under the provisions
of this Act, as amended . . . to any person
who is or has been a member of or participant
in any movement which is or has been hostile
to the United States or the form of
government of the United States, or to any
person who advocated or assisted in the
persecution of any person because of race,
religion or national origin.
64 Stat. 219, 227.
Since Breyer entered the country with a visa obtained
under the Displaced Persons Act, the legality of Breyer's
naturalization ultimately turns on his eligibility under that
Act. Therefore, we begin with the district court's application
of the Act's exclusionary provisions to Breyer.
In Fedorenko v. United States, the Supreme Court
addressed the meaning of the Act's "assistance in persecution"
exclusion in a denaturalization case of an Nazi concentration
camp guard.8 The Court clarified that this exclusion does not
require willing and personal participation in atrocities, and
drew a continuum of conduct to guide the courts in deciding what
behavior it covers. Fedorenko, 449 U.S. at 512. According to
the Court, while at one extreme is the individual who cut a
female prisoner's hair before execution and should not be viewed
as having assisted in persecution, at the other extreme is the
8
. Fedorenko was decided under section 10 of the Act which
requires a misrepresentation of a material fact before
ineligibility may attach. By contrast, under section 13, a
person may be ineligible simply because he falls within an
excludable category of persons.
Under the Act in effect when Fedorenko applied for a
visa, section 2 incorporated by reference an "assistance in
persecution" exclusion found in the International Refugee
Organization Constitution. This exclusion denied eligibility to
those who "assisted the enemy in persecuting civil[ians]" or had
"voluntarily assisted the enemy forces . . . in their
operations. . . ." Fedorenko, 449 U.S. at 495, n.4. In 1950,
Congress amended section 13 to create an explicit bar within the
Act itself against those who assisted in persecution. 64 Stat.
219, 227 (June 16, 1950).
armed, uniformed, paid guard who having shot a fleeing prisoner
would fit within the exclusion. Id. at n.34. In light of this
standard, the Court held that Fedorenko's service as a guard on
the perimeters of the Nazi concentration camp at Treblinka in
Poland -- whether voluntary or involuntary -- constituted
"assistance in persecution" under the Displaced Persons Act. Id.
at 512.
In the wake of Fedorenko, other courts have determined
that concentration camp guard service in circumstances similar to
those presented here qualifies as assistance in persecution
within the meaning of the Act. United States v. Schmidt, 923
F.2d 1253, 1259 (7th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct.
331 (1991) (member of Death's Head Battalion who served as an
armed, uniformed guard at Sachsenhausen concentration camp
patrolling outside camp gates and escorting prisoners to and from
work sites with orders to shoot assisted in persecution under the
Act); United States v. Kairys, 782 F.2d 1374, 1377 n.3 (7th
Cir.), cert. denied, 476 U.S. 1153 (1986) (prisoner of war who
was recruited to serve as a camp guard at Treblinka assisted in
persecution); United States v. Demjanjuk, 518 F. Supp. 1362, 1382
n.43 (N.D. Ohio 1981), aff'd, 680 F.2d 32 (6th Cir.), cert.
denied, 459 U.S. 1036 (1982) (same).
B.
Given Fedorenko's guiding principles and upon our
careful examination of the record, we find that the district
court correctly concluded that Breyer assisted in the persecution
of persons as contemplated by section 13 of the Displaced Persons
Act. The undisputed facts of record establish that Nazi
concentration camps were places where suffering and harm was
inflicted upon tens of thousands of innocent persons and that
Breyer furthered Nazi military, political and social aims. The
record is uncontroverted that he was a trained, paid, uniformed
armed Nazi guard who patrolled the perimeters of two such camps
with orders to shoot those who tried to escape. The prisoners he
guarded and prevented from fleeing were oppressed, brutalized and
killed for no other reason than their race, national origin or
religion. It is therefore beyond dispute that Breyer assisted in
persecution within the meaning of section 13 and, therefore, was
excluded from the Act's intended scope.
We next consider whether Breyer's service as a member
of the SS Totenkopf constitutes membership or involvement in a
movement hostile to the United States under section 13 of the
Act, and are firmly persuaded that it does. Indeed, the
Displaced Persons Commission considered the SS Totenkopf to be
such a movement. See Interoffice Memorandum U.S. Displaced
Persons Commission Headquarters Frankfurt Instruction Memo No.
242, dated November 12, 1951. Significantly, at Auschwitz, the
SS Totenkopf committed atrocities against the Polish people who
were United States allies. Accordingly, we agree with the
district court that Breyer's affiliation with the SS Totenkopf
also excluded him from the benefits of the Act. See United
States v. Koziy, 728 F.2d 1314, 1319 (11th Cir.), cert. denied,
469 U.S. 835 (1984) (individual's membership in the Organization
of Ukrainian Nationalists during World War II constituted
membership in an organization hostile to the United States under
section 13 of the Displaced Persons Act inasmuch as the
Commission listed it as such and its members terrorized United
States allies).
As in Fedorenko, where the Court sustained the
revocation of the defendant's naturalization once it found that
he was ineligible under the Displaced Persons Act, 419 U.S. at
418-19, a determination that section 13 of the Act precluded
Breyer from obtaining a visa leads inexorably to the conclusion
that Breyer's naturalization was properly revoked. See also
Schmidt, 923 F.2d at 1253; Kairys, 782 F.2d at 1374, Demjanjuk,
680 F.2d at 32. When Breyer filed his petition for
naturalization, the Immigration and Nationality Act required
lawful admission to the United States, which in turn required a
valid visa. To gain admittance, Breyer used a visa obtained
under the Displaced Persons Act. Because of Breyer's wartime
activities, however, the Displaced Persons Act excluded him from
coverage. As the visa Breyer presented upon entry was invalid,
his admission into this country was unlawful. Therefore, his
naturalization was illegally procured under section 1451 as a
matter of law, and the district court did not err in granting
summary judgment and in ordering the cancellation of Breyer's
certificate of naturalization and its surrender.
III.
In contesting the district court's decision to grant
summary judgment to the government and thereby denaturalize him,
Breyer did not raise any fact dispute, or for that matter, take
issue with the district court's conclusions of law. Instead, he
advanced his entitlement to derivative citizenship as a complete
defense to the government's case. Breyer contended that the
district court erred in not declaring him a United States citizen
through his mother, and asserted that had his citizenship been
declared, the government's case would have necessarily failed for
failure to establish that he entered the United States
unlawfully. Breyer also asserted that his derivative citizenship
rendered the legality of his naturalization moot.
Acceptance of Breyer's mootness argument, however,
would relieve him of accountability for the illegality in an
essential element of the process that he chose to pursue for
naturalization. That Breyer may be a citizen of this country
through some other means does not alter his ineligibility under
the Displaced Persons Act or validate his visa and 1952 entry and
should not nullify the government's right under section 1451(a)
to require the surrender of a certificate of naturalization to
which Breyer is not entitled or negate the practical significance
of our determining whether he may continue to assert the status
of "naturalized United States citizen", a privilege he has
enjoyed for over thirty-five years.
More importantly, Congress has set forth the method by
which one asserting derivative citizenship may have it declared.
The Immigration and Nationality Act requires that a person with
such a claim initially apply to the Immigration and
Naturalization Service for a Certificate of Citizenship. 8
U.S.C. § 1452(a); 8 C.F.R. § 341.1-.7 (1994).9 If the applicant
is denied a certificate, he or she may then initiate a
declaratory judgment action in federal court under section
1503(a)10 requesting a judicial declaration of citizenship. As
9
. Section 1452 provides in pertinent part:
§ 1452. Certificates of citizenship or U.S. non-
citizen national status; procedure
(a) A person who claims to have derived
United States citizenship through the
naturalization of a parent or through the
naturalization or citizenship of a husband,
or who is a citizen of the United States by
virtue of the provisions of section 1993 of
the United States Revised Statutes . . . may
apply to the [Service] for a certificate of
citizenship. Upon proof to the satisfaction
of the [Service] that the applicant is a
citizen, and that the applicant's alleged
citizenship was derived as claimed, or
acquired, as the case may be, and upon taking
and subscribing before a member of the
Service within the United States to the oath
of allegiance required by this chapter of an
applicant for naturalization, such individual
shall be furnished by the [Service] with a
certificate of citizenship . . . .
10
. Section 1503(a) states in pertinent part:
§ 1503. Denial of rights and privileges as national
(a) If any person who is within the United States
claims a right or privilege as a national of the
United States and is denied such right or privilege
by any department or independent agency, or official
thereof, upon the ground that he is not a national of
the United States, such person may institute an
action under the provisions of section 2201 of Title
28 against the head of such department or independent
agency of a judgment declaring him to be a national
section 1503(a) expressly requires a "final administrative
denial" before any such action may be instituted, a federal
district court does not have jurisdiction to declare citizenship
absent exhaustion of an applicant's administrative remedies.
Whitehead v. Haig, 794 F.2d 115, 119 (3d Cir. 1986).
Breyer relies upon United States v. Schiffer, 798 F.
Supp. 1128 (E.D. Pa. 1992), aff'd without opinion, 31 F.3d 1175,
(3d Cir. 1994), to support his assertion that his derivative
citizenship claim was properly before the district court as a
complete defense to the government's case.11 We find, however,
that Schiffer is inapposite. There the government filed a
section 1451(a) complaint against Nickolas Schiffer in which it
admitted that Schiffer was born in Philadelphia, Pennsylvania.
This admission established that Schiffer was a United States
citizen under the Fourteenth Amendment of the United Sates
Constitution. Schiffer filed a motion to dismiss the
government's complaint, asserting that whether he had lost his
(..continued)
of the United States . . . . An action under this
subsection may be instituted only within five years
after the final administrative denial of such right or
privilege and shall be filed in the district court of
the United States. . . . (emphasis added).
11
. In Schiffer, we affirmed the district court by judgment
order. Thus, this case does not have precedential value, except
for the parties involved. Airco Indus. Gases, Inc. v. Teamsters
Health and Welfare Pension Fund, 850 F.2d 1028, 1030 & n.1 (3d
Cir. 1988); Internal Operating Procedures of the United States
Court of Appeals for the Third Circuit, Chapter 6.A.1.a (a
judgment order is entered "[w]hen the panel unanimously
determines . . . that a written opinion would have no
precedential or institutional value. . . .").
original United States birth citizenship pursuant to a
Certificate of Loss of Nationality that had previously been
issued ex parte by the Department of State was an issue in the
case. In these circumstances, where Schiffer's constitutional
right to United States citizenship had been admitted by the
government and the complaint sought to revoke a status
safeguarded by the Fourteenth Amendment and outside the reach of
Congress, the district court determined that the issue of
Schiffer's birth citizenship which had already been subject to
attack, should be heard. Schiffer, 798 F. Supp. at 1133.
Because Breyer, with allegations of statutory derivative
citizenship in a straightforward denaturalization action,
presents a far different case, Schiffer does not apply.
Alternatively, Breyer argues that had his derivative
citizenship been declared, the government's prima facie section
1451(a) case would have failed because the government could not
sustain its burden of proving that he entered the United States
in alien status. Section 1451(a), however, does not require such
proof. Even if it did, in his answer to the government's
complaint, Breyer admitted that he applied for immigration and
alien registration and entered the United States as a permanent
resident and refugee.
We conclude that the district court exceeded its
jurisdiction in considering the question of Breyer's derivative
citizenship. The district court had before it a narrow section
1451(a) case in which it was called upon only to decide whether
each step that Breyer took toward naturalization was proper.
Breyer's derivative citizenship claim was separate and distinct
from, and had no bearing on, the government's denaturalization
case. Significantly, in permitting Breyer to proceed with his
derivative citizenship claim, the district court reached a
constitutional issue that was unnecessary to its holding. In
doing so, the district court disregarded a fundamental and
longstanding principle of judicial restraint which requires that
courts "avoid reaching constitutional issues in advance of the
necessity of deciding them." Lyng v. Northwest Indian Cemetery
Protective Ass'n., 485 U.S. 439, 445-46 (1988). Accordingly,
Breyer's derivative citizenship claim should not have been
considered, and those orders of the district court which relate
to this issue will be vacated.
IV.
Lastly, Breyer raises as error the district court's
denial of his motion to stay the government's denaturalization
action until final resolution of his pending administrative
derivative citizenship proceeding. The power to stay is
incidental to the power inherent in every court to dispose of
cases so as to promote their fair and efficient adjudication.
Gold, 723 F.2d at 1077. Absent an abuse of discretion, a
district court's decision in this regard will not be overturned.
A stay is an extraordinary measure and Breyer failed to offer any
compelling reasons for its issuance. Therefore, we will uphold
the district court's decision denying Breyer a stay as within the
sound exercise of its discretion.
V.
For the foregoing reasons, we will affirm the district
court's grant of summary judgment on Counts I and II of the
complaint in the government's favor, and its orders revoking and
setting aside the order admitting Breyer to citizenship and
canceling and demanding the surrender of Breyer's certificate of
naturalization. We will vacate those portions of the district
court's orders relating to Breyer's derivative citizenship claim.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2435
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Jamie Quintana, also known as Ygnacio, *
Castro, also known as Ignacio C. Rios, *
also known as Melicio Salazar, *
*
Defendant - Appellant. *
___________
Submitted:
Filed: August 25, 2003
___________
Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
Defendant-Appellant Jamie Quintana pled guilty to Conspiracy to Distribute
Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the
district court1 attributed between five and fifteen kilograms to Quintana, found him
1
The Honorable Warren K. Urbom, United States District Judge for the
District of Nebraska.
ineligible for “safety valve” relief under U.S.S.G. § 5C1.2, and found that he was a
manager or supervisor in the conspiracy. Quintana appeals these findings. We
affirm.
I.
Quintana objected to the Presentence Investigation Report (PSR) based on the
drug quantity determination and the conclusion that he was ineligible for safety valve
relief. He did not specifically object to the determination that he was a manager or
supervisor in the conspiracy. Because he objected to the drug quantity determination,
the government presented evidence regarding quantity at the sentencing hearing.
Four witnesses attributed various quantities of methamphetamine to Quintana. He
contends that this testimony was inadequate because it was based on memories
clouded by drug use, was inconsistent, and/or was motivated by personal bias. The
district court considered these arguments, noted that it was likely that at least one
witness had exaggerated, and reduced the amount of drugs attributable to Quintana.
The fact remains, however, that this reduced quantity still exceeded five kilograms.
The district court otherwise accepted the recommendations of the PSR. Based on the
PSR’s recommendations, the district court sentenced Quintana to 188 months
imprisonment, five years of supervised release, and a $100 special assessment.
II.
"We review the district court’s determination of drug quantity for clear error."
United States v. Gonzales-Rodriguez, 239 F.3d 948, 953 (8th Cir. 2001). We "will
overturn a finding of 'drug quantity only if the entire record definitively and firmly
convinces us that a mistake has been made.’" Id. (quoting United States v. Granados,
202 F.3d 1025, 1028 (8th Cir. 2000)). In this case, because the quantity of drugs was
established through witnesses’ testimony, the issue becomes one of credibility. “It
is . . . well established that in sentencing matters ‘a district court's assessment of
-2-
witness credibility is quintessentially a judgment call and virtually unassailable on
appeal.’” United States v. Luna, 265 F.3d 649, 652 (8th Cir. 2001) (quoting United
States v. Causor-Serrato, 234 F.3d 384, 390 (8th Cir. 2000). Finding no clear error
in the district court’s finding, we defer to its assessment of the drug quantities.
III.
Quintana also asserts that the district court erred in finding that he was
ineligible for a reduced sentence under the safety valve provisions of U.S.S.G. §
5C1.2. The standard of review for such a finding is clear error. United States v.
Tournier, 171 F.3d 645, 647 (8th Cir. 1999).
To be eligible for safety valve relief, a defendant must meet five criteria.2 It is
2
U.S.S.G. § 5C1.2 provides:
. . . in the case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960,
or § 963, the court shall impose a sentence in accordance with the
applicable guidelines without regard to any statutory minimum sentence,
if the court finds that the defendant meets the criteria in 18 U.S.C. §
3553(f)(1)-(5) set forth verbatim below:
(1) the defendant does not have more than 1 criminal history point,
as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence
or possess a firearm or other dangerous weapon (or induce
another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any
person;
(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
-3-
undisputed that Quintana met the first three criteria. At issue are the fourth and fifth
criteria, namely, whether Quintana acted as a manager in the conspiracy and whether
he failed to truthfully provide all the information he possessed about his offenses to
the government.
Quintana maintains that he satisfied the fifth criterion by providing to the
government all of the information he possessed. The district court disagreed, stating:
“I think it is true that before the time of this hearing [Quintana] had not truthfully
provided the government with all information that he had about it, and I cannot
accept the idea that he has provided that here at this hearing.” Quintana’s claim that
the district court’s assessment was incorrect is “in essence an attack on the district
court's credibility findings, which we review for clear error.” United States v.
Morones, 181 F.3d 888, 890 (8th Cir. 1999). At the sentencing hearing, Quintana’s
testimony directly contradicted that of several of the other witnesses who testified.
Because the district court was able to directly observe each of these witnesses, we do
not find that his assessment of their truthfulness was clear error. Accordingly, we
affirm the denial of safety valve relief.
sentencing guidelines and was not engaged in a continuing
criminal enterprise, as defined in Section 408 of the Controlled
Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant
has truthfully provided to the Government all information and
evidence the defendant has concerning the offense or offenses
that were part of the same course of conduct or of a common
scheme or plan, but the fact that the defendant has no relevant or
useful other information to provide or that the Government is
already aware of the information shall not preclude a
determination by the court that the defendant has complied with
this requirement.
-4-
IV.
Because we affirm the district court’s finding that Quintana was not eligible for
safety valve relief based on his failure to meet the fifth criterion, it is not necessary,
in that context, to assess whether Quintana served as a manager in the conspiracy and
thus failed to meet the fourth criterion. The finding that Quintana served as a
manager is independently important, however, because it resulted in a three level
increase in his base offense level.
At the sentencing hearing, one witness testified that Quintana appeared to be
“partners” with Jose Ramos-Corona (a.k.a. “Teeth”), but no one stated that Quintana
served in a supervisory or decision-making capacity. Thus it is not clear that the
evidence presented at the hearing alone would warrant an increase in the level of
Quintana’s base offense. The PSR, on the other hand, states that Quintana “acted as
a manager over one or more other participants in the conspiracy. He exercised
decision making authority over Jose Ramos-Corona, directed the amount of drugs
sold, and had money collected from drug sales turned over to him. The PSR states
elsewhere that “Mr. Ramos-Corona described the defendant’s role as a manager."
In general, a “presentence report is not evidence and is not a legally sufficient
basis for making findings on contested issues of material fact." United States v.
Wise, 976 F.2d 393, 404 (8th Cir. 1992) (en banc) (quoting and overruling on other
grounds United States v. Streeter, 907 F.2d 781, 791-92 (8th Cir. 1990)) (emphasis
added). However, “[i]n the absence of objection alerting the Court to the need for a
specific finding, the Court may rely on the presentence report." Streeter, 907 F.2d at
792. Quintana did not object specifically to the finding in the PSR that he was a
manager, nor did he object to those portions of the PSR which outlined the evidence
that formed the basis for his sentence enhancement and denial of safety valve relief.
He did, however, object generally to the conclusion in the PSR that he was ineligible
for safety valve relief. Quintana asserts that this general objection served as an
-5-
objection to all of the underlying criteria for safety valve relief, including the issue
of managerial role. This argument is bolstered by the fact that if Quintana had
conceded that he was a manager, such a concession alone would have disqualified
him from safety valve relief, rendering his general objection moot. We must
determine whether Quintana's general objection was sufficient to preclude the district
court's reliance on the PSR.
Objecting to the findings of a PSR puts the government on notice that it must
meet an additional burden at the sentencing hearing. See U.S. v. Hammer, 3 F.3d 266,
272-73 (8th Cir. 1993):
If a defendant objects to factual allegations in a presentence report, the
Court must either state that the challenged facts will not be taken into
account at sentencing, or it must make a finding on the disputed issue.
See Fed.R.Crim.P. 32(c)(3)(D). If the latter course is chosen, the
government must introduce evidence sufficient to convince the Court by
a preponderance of the evidence that the fact in question exists.
In this case, Quintana’s objection to the drug quantity determination led the
government to present evidence on that issue as discussed above. Quintana’s
objection to the finding that he was ineligible for safety valve relief likewise put the
government on notice that it would have to establish that Quintana failed to meet one
of the criteria required for relief. Quintana’s objection did not, however, put the
government on notice that it would have to show specifically that Quintana failed to
meet the managerial role criterion. Had that criterion been the only basis for denying
safety valve relief, Quintana’s general objection may have been sufficient.
Managerial role, however, was not the only basis for denying safety valve
relief, and the course of the proceedings in this case convinces us that Quintana's
objection was not sufficiently specific. In particular, we find it significant that
Quintana’s attorney was given numerous opportunities to contest the managerial role
-6-
criterion, but did not do so. In a telephone conference on October 31, 2001,
Quintana’s counsel objected to the paragraph of the PSR containing the drug quantity
determination and asserted that Quintana was entitled to safety valve relief. Counsel
provided no details as to why Quintana was entitled to safety valve relief. Quintana’s
sentencing statement contained objections to every paragraph of the sentencing report
related to the drug quantity determination and stated Quintana's intent to offer
testimony regarding “the five (5) elements of the United States Sentencing
Commission Guidelines Rule §5C1.2”. No details regarding why Quintana was
eligible for safety valve relief were provided.
During direct-examination at the sentencing hearing, Quintana’s counsel asked
Quintana numerous questions about the quantity of drugs Quintana distributed.
Counsel also asked: “Is there anything else that you’ve done regarding
methamphetamine that you haven’t talked about here this morning.” This question
was related to the issue of whether Quintana honestly conveyed all information he
had about his crimes to the government. Counsel asked no questions as to whether
Quintana served as a manager or supervisor in the drug conspiracy.
After the government’s cross-examination, the court asked Quintana’s counsel
if he wished to re-direct. After taking a moment, counsel declined the opportunity,
and the following exchange occurred:
District Court: All right. Then I will hear you – well, let’s see, is there
anything you want to offer – Mr. Cruise, there also was a challenge by
you with respect to the safety valve.
Mr. Cruise: Your honor, the evidence that I would offer with respect to
those things has come forward in the testimony that the defendant has
given. I’ll just make argument with respect to those things.
Following this exchange, Quintana's counsel did not raise the issue of managerial
-7-
role. Rather, the first time that any party discussed managerial role at the hearing was
when the government stated in its closing argument: “I don’t believe . . . that the
defendant can possibly receive a safety valve reduction because the presentence
report has adjusted . . . the offense level for his role in the offense under Section
3B1.1(b) and there’s been no objection to that.” The only reply Quintana’s counsel
offered was the statement in closing that, “[Quintana] doesn’t believe that he was an
organizer or leader or manager or supervisor of others regarding the level of offense
that was involved."
Finally, we are not persuaded by Quintana’s argument that the government's
presentation of evidence that might have indicated Quintana was a manager
necessarily demonstrated that the government was on notice regarding the managerial
role criterion. In any drug conspiracy hearing, questions may be asked in an attempt
to demonstrate the defendant’s involvement. Such questions do not mean that the
government is attempting to prove the defendant served in a particular capacity.
Based on the general nature of Quintana's objections, and the course of the
proceedings as just described, we are convinced that Quintana's objections were not
sufficiently specific to preclude the district court's reliance on the PSR. See United
States v. Flores, 9 F.3d 54, 55-56 (8th Cir. 1993) (holding that a defendant's general
objection to his PSR's recommendation of a sentence increase did not serve as an
objection to specific factual allegations in the PSR); see also, United States v.
Coleman, 132 F.3d 440, 441 (8th Cir. 1998) (holding that a defendant's argument that
her PSR overstated the seriousness of her past conduct was not a sufficiently specific
objection to the fact of her previous conviction). The unobjected-to portions of the
PSR contained sufficient facts from which the district court could conclude Quintana
met the criterion for the managerial role adjustment.
The judgment of the district court is affirmed.
-8-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
-9-
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464 F.3d 968
Leonard R. GREGER, Plaintiff-Appellant,v.Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
No. 04-35891.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 6, 2006.
Filed September 20, 2006.
1
COPYRIGHT MATERIAL OMITTED Rebecca M. Coufal of Spokane, WA, for Plaintiff-appellant.
2
Robert McCallum, Assistant Attorney General, James A. McDevitt, United States Attorney, Pamela J. Derusha, Assistant United States Attorney, Lucille Gonzales Meis, Regional Chief Counsel, and Franco L. Becia, Assistant Regional Counsel Social Security Administration, of Seattle, WA, for Defendant-appellee.
3
Appeal from the United States District Court for the Eastern District of Washington; Michael W. Leavitt, Magistrate Judge, Presiding. D.C. No. CV-04-0023-MWL.
4
Before: FERGUSON and CALLAHAN, Circuit Judges, and BOLTON,* District Judge.
BOLTON, District Judge:
5
Leonard R. Greger appeals the district court's order affirming the Commissioner of Social Security's ("Commissioner") denial of social security disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FACTS AND PROCEDURAL HISTORY
6
Greger applied for social security disability insurance benefits on January 30, 2001. He alleged that he became disabled on June 25, 1998 due to triple bypass surgery, high blood pressure, a defective aorta, fibromyalgia, bad knees, and stomach problems. Greger's disability insurance lapsed on December 31, 1998, and so he must establish that he was disabled and unable to work from the alleged onset date, June 25, 1998, to December 31, 1998 (the "relevant period").
7
Greger was 49 years old, with a ninth-grade education, when his insured status expired. At his hearing on October 8, 2002, Greger testified that he worked as a truck driver until 1993 and was self-employed after that, doing miscellaneous carpentry-type jobs until shortly before he had open heart surgery in June 1998. Greger also had surgery in July 1998 to remove a perianal abscess with followup surgery in November 1998. Greger testified that, during the relevant period, he experienced pain when sitting or standing for more than 30 minutes at a time, or walking more than half a block, shortness of breath with activity such as walking, and fatigue and shortness of breath caused by his heart medication, Atenolol. He said that he had suffered from carpal tunnel syndrome for five years. He also testified that the Veterans Administration ("VA") diagnosed him with post traumatic stress disorder ("PTSD") in August 1998, with a disability rating of 30%.1 Also, stomach surgery in 1976 left him with "dumping syndrome," a difficulty in controlling one's bowels.
8
The administrative law judge ("ALJ") went through the five-step sequential evaluation process as required by 20 C.F.R. § 404.1520.22 At step one, the ALJ determined that Greger was not performing substantial gainful activity. At steps two and three, the ALJ found that Greger suffered from severe cardiac, gastrointestinal and musculoskeletal impairments, as well as gout and hypertension, but that his condition did not meet or equal a listed impairment. The ALJ also found that Greger's PTSD and other psychological problems did not meet the criteria for a severe mental impairment during the relevant period. At steps four and five, the ALJ found that Greger's problems prevented him from doing his past relevant work as a truck driver and carpenter, but that he retained the residual functional capacity ("RFC") during the relevant period to perform other work at a light level of exertion. Accordingly, the ALJ found that Greger was not disabled.
9
Greger appealed the ALJ's decision to the district court, and the magistrate judge entered judgment for the Commissioner. On appeal to this court, Greger advances the same issues he raised in the court below: that substantial evidence does not support the ALJ's findings that Greger and his former girlfriend, Lois Shields, are not credible and that the ALJ's RFC analysis was erroneous because it did not include all of Greger's claimed limitations. Greger also raises two new issues that he did not raise in the district court: that the ALJ erred (1) by concluding that his psychological problems were not severe when the VA had rated him with a 30% mental disability; and (2) by not ordering a consultative psychological exam in order to fully develop the record.
STANDARD OF REVIEW
10
We review de novo a district court's order upholding a denial of social security disability benefits. Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.1995). This review is limited, however, and "we may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error." Id. (citation omitted).
DISCUSSION
I.
11
Greger argues that the ALJ erred in finding him not credible and rejecting his testimony regarding his limitations.
12
To reject Greger's subjective complaints, the ALJ "must provide `specific, cogent reasons for the disbelief.'" Lester, 81 F.3d at 834 (quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). In the absence of evidence that Greger is malingering, the ALJ's reasons for rejecting his testimony "must be clear and convincing." Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989). When an ALJ "finds that a claimant's testimony relating to the intensity of his pain and other limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999) (citing Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991)). In making a credibility determination, the ALJ "must specifically identify what testimony is credible and what testimony undermines the claimant's complaints[.] In this regard, questions of credibility and resolutions of conflicts in the testimony are functions solely of the Secretary." Id. (citations omitted).
13
The ALJ provided clear and convincing reasons for rejecting Greger's testimony and gave a detailed written opinion summarizing the specific statements by Greger that were not credible and the evidence that undermined Greger's complaints. During the relevant six-month period and into 1999, Greger failed to report any shortness of breath or chest pain; there was no evidence that Greger participated in a planned cardiac rehabilitation program; and he never reported problems related to carpal tunnel syndrome. Moreover, Greger told the VA in 2000 that he did carpentry work "under the table" through 1999, well after his date last insured. The ALJ noted evidence that after his surgery Greger was "active with yard work, work around the house, and that he was able to continue his past work activities as a contractor."
II.
14
Likewise, the ALJ did not find Shields credible and so disregarded her affidavit which attested to Greger's fatigue and shortness of breath following his surgery and to pain and numbness in his hands.
15
While an ALJ must take into account lay witness testimony about a claimant's symptoms, the ALJ may discount that testimony by providing "reasons that are germane to each witness." Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993). The ALJ found that Shields' "statements are inconsistent with [Greger's] presentation to treating physicians during the period at issue, and with [Greger's] failure to participate in cardiac rehabilitation." The ALJ also considered Shields' "close relationship" with Greger, and that she was possibly "influenced by her desire to help [him]." The ALJ's reasons for doubting Shields' credibility are germane to her; accordingly, it was not error for the ALJ to disregard her testimony.
16
Greger also argues that this matter must be remanded so that the ALJ can examine Shields and properly assess her credibility. At the hearing, however, Greger's attorney agreed to have Ms. Shields submit an affidavit in lieu of testifying due to the lack of time that day. Accordingly, there is no error.
III.
17
Greger argues that the ALJ erred in assessing his RFC because the hypothetical posed to the vocational expert at Greger's hearing did not specifically include Greger's claim that the Atenolol produced the side effect of fatigue. The ALJ, though, "is free to accept or reject restrictions in a hypothetical question that are not supported by substantial evidence." Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir.2001). Because Greger did not report any fatigue to his doctors during the relevant period, the ALJ properly limited the hypothetical to the medical assumptions supported by substantial evidence in the record.
IV.
18
Greger argues for the first time on appeal that the ALJ erred in finding his psychological problems not severe when the VA had rated him 30% disabled due to PTSD and that the ALJ failed to develop the record by not ordering a consultative psychological evaluation. Greger has waived these issues because he did not raise them before the district court. The Ninth Circuit recognizes three exceptions to the general rule that the court will not consider an issue raised for the first time on appeal: "in the `exceptional' case in which review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, when a new issue arises while appeal is pending because of a change in the law, or when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed." Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985) (citations omitted). The court "will only excuse a failure to comply with this rule when necessary to avoid a manifest injustice." Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.1999).
19
Greger argues that the ALJ made legal errors and that it would be an injustice to not remand for consideration of the PTSD issue. We do not believe the ALJ erred in this case or that this is the exceptional case in which review is needed to prevent a miscarriage of justice. Greger never raised the issue of PTSD as a basis for finding him disabled before either the Social Security Administration or the district court. His disability claim prior to this appeal related only to his physical problems. PTSD was only brought up when the ALJ was questioning Greger as to why he had problems getting along with his former supervisor and left his truck-driving job in 1992. It was the ALJ who first raised whether Greger had a rating from the VA for PTSD, and the ALJ specifically inquired about the VA's percentage rating for PTSD and when Greger first received that rating. Nonetheless, Greger, who was represented by counsel at all times, failed to claim PTSD as a basis for his disability. Therefore, the issue is waived.
20
The dissent suggests that the court should consider these newly-raised issues because they involve a pure question of law, i.e., that the ALJ erred by not referencing the VA's disability rating, as required by McCartey v. Massanari, 298 F.3d 1072 (9th Cir.2002). The claimant in McCartey, though, had asserted from the outset that his primary disability was the same impairment for which the VA had rated him 80% disabled, but the ALJ's decision never mentioned the VA's disability rating. Greger never raised the issue of PTSD or his 30% VA disability rating until this appeal.
21
Greger asserts that this is his only opportunity to establish his eligibility for disability benefits, as he cannot file a new claim after this. Greger, however, has had several opportunities over the past few years to raise the issue of his PTSD. His initial claim never mentioned his PTSD or any mental health problems. He was represented by counsel at his hearing before the ALJ and never claimed at that time that he suffered from disabling PTSD; it was the ALJ who inquired about Greger's PTSD rating from the VA. Greger had an opportunity to brief the PTSD issue before the Appeals Council, but did not. In his appeal to the district court, Greger's new lawyers, in their recitation of the facts, summarized Greger's testimony before the ALJ, including the discussion of Greger's PTSD and 30% disability rating from the VA, but they never suggested that PTSD was a basis for finding Greger was disabled. Only when Greger obtained new counsel for this appeal and it appeared that his claim of physical disabilities would fail did he ever suggest that he was disabled due to PTSD.
22
In sum, our independent review of the record does not reveal any miscarriage of justice or error of law in the administrative proceedings.
23
Accordingly, the district court's judgment is AFFIRMED.
Notes:
*
The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation
1
A May 1, 2000, VA compensation and pension exam report recognized that Greger was "currently 30% service-connected for PTSD and 20% service-connected for postoperative stomach injury." The May 2000 report referenced Greger's previous compensation and pension exam, conducted in September of 1998, although the earlier report is not in the record
2
The Ninth Circuit outlined this five-step process inLester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir.1995):
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a `severe' impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
FERGUSON, Circuit Judge, dissenting:
24
Leonard Greger suffers from Post-Traumatic Stress Disorder ("PTSD") arising out of his experiences during his military service in Vietnam. In 1998, the Veterans Administration ("VA") rated Greger as 30% disabled due to his PTSD diagnosis. According to Greger, his PTSD makes it difficult for him to get along with authority, causes him to be irritable, and contributes to his anger control problems. Greger also testified that he has had trouble sleeping due to nightmares. Since 1998, Greger has been on anti-anxiety and anti-depressant medication to control his psychological problems, and previously saw a psychiatrist. In 2000, Greger told a VA examiner that, in addition to his other symptoms, his memory and concentration are poor. That same examiner noted that Greger suffers from "some vague, paranoid thoughts." And during the examination, Greger took the Mississippi Scale of Combat Stress test and received a raw score of 131, which, according to the VA examiner, "is about average for those diagnosed with PTSD."
25
PTSD is a tragic disease that commonly interferes with a sufferer's ability to interact with other people and maintain work relationships. See Kathleen A. Tarr, Above and Beyond: Veterans Disabled by Military Service, 5 GEO. J. ON FIGHTING POVERTY 39, 44 (1997). When determining whether a veteran is eligible for social security disability benefits, therefore, an Administrative Law Judge ("ALJ") must pay particularly close attention to the VA's findings regarding a PTSD diagnosis. See McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.2002). Here, in denying Greger benefits, the ALJ failed to even mention that the VA rated Greger as 30% disabled due to his PTSD. This omission is reversible error. Id. Additionally, the ALJ's conclusion that Greger's mental impairments are not severe is not supported by substantial evidence. For these reasons, I respectfully dissent from the majority's affirmance of the ALJ's denial of Greger's request for social security disability insurance benefits.
26
The majority holds that Greger's PTSD-related claims are waived because of his failure to argue them before the District Court. Maj. op. at 973-974. We have, however, recognized three exceptions to this pleading requirement. Taniguchi v. Schultz, 303 F.3d 950, 959 (9th Cir.2002). Most applicable here is the exception that allows us to consider a claim not raised before the District Court if that claim is "purely one of law and the opposing party would suffer no prejudice as a result of the failure to raise the issue" below. Id. Whether an ALJ must consider, on the record, a VA disability rating when reaching his decision is a question of law. See McCartey, 298 F.3d at 1076 (creating the rule that an ALJ procedurally errs when he fails to consider a VA finding and does not mention that finding in his opinion); cf. Silveira v. Apfel, 204 F.3d 1257, 1260 & n. 8 (9th Cir.2000) (holding that whether an ALJ should have applied a regulation, which required a finding of disability under certain circumstances, to a particular claimant's case is a pure question of law). Furthermore, in her answering brief, the Commissioner had the opportunity to address this purely legal claim; thus, the Commissioner is not prejudiced by our consideration of the issue. See id. at 1260 n. 8 (considering a claim raised for the first time on appeal because the claim was a pure issue of law that the Commissioner had the opportunity to respond to on appeal).
27
Proceeding to the merits of Greger's claim, in McCartey we held that an ALJ must generally give great weight to a VA determination of disability. McCartey, 298 F.3d at 1076. Such deference is justified because of the "marked similarity" between the purposes and evaluation procedures employed by both the social security and VA federal disability programs. Id. If an ALJ chooses to give less weight to a VA determination, therefore, he must give "persuasive, specific, valid reasons for doing so that are supported by the record." Id. Reversal is warranted if the ALJ does not provide evidence that he adequately considered the VA's rating, such as by explicitly mentioning that rating in his opinion. Id.
28
Here, despite the fact that Greger informed the ALJ of his VA rating for PTSD, the ALJ made no mention of the VA's finding in his consideration of Greger's disability claim. The ALJ cursorily acknowledged Greger's history of posttraumatic stress disorder and completely failed to reference either the VA's rating or its basis. Further, it is not apparent from the record that the ALJ otherwise considered the VA's rating. The omission is a clear violation of McCartey.
29
Therefore, I would reverse the District Court and remand with instructions to send the case back to the ALJ for additional factual development and consideration of the impact of Greger's PTSD on his ability to function in the workplace.
30
Remand is especially important in this case because the ALJ's findings regarding Greger's mental impairments are not supported by substantial evidence. Greger testified that his PTSD makes it hard for him to get along with authority, makes him irritable, and contributes to his anger control problems. The ability to respond "appropriately to supervision, co-workers, and work pressures" is an important part of the assessment of a claimant's functional capacity. See 20 C.F.R. § 404.1545(c). The symptoms Greger describes would severely impact his ability to function in any workplace.
31
The ALJ may not reject Greger's subjective complaints without providing "specific, cogent reasons for the disbelief." Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir.1999). "Without affirmative evidence showing the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing." Id. The ALJ countered Greger's description of the severity of his PTSD symptoms by finding that Greger did not seek ongoing treatment for his mental conditions, or ever seek mental status testing.1 This finding is simply not supported by the evidence. First, the record shows that Greger was taking anti-anxiety and anti-depressant drugs to keep his symptoms under control. Moreover, he was given the Mississippi Scale of Combat Stress test by the VA in 2000 and received an average score for those suffering from PTSD. While this testing took place after the relevant time period, a subsequent diagnosis should still be considered by the ALJ "because it may bear upon the severity of the claimant's condition before the expiration of his insured status." Loza v. Apfel, 219 F.3d 378, 396 (5th Cir.2000).
32
Additionally, the ALJ noted that treating physicians and other health care professionals "have not reported any significant psychological or depressive symptoms." The ALJ then concluded that Greger's PTSD had, at most, a de minimis affect on his ability "to interact socially or adapt." This conclusion is contradicted by the VA's 30% disability rating. The VA undertakes a very thorough review of a claimant's medical history before rating that claimant as disabled. See McCartey, 298 F.3d at 1076. Thus, in granting Greger benefits, the VA's health care professionals necessarily would have determined that Greger suffered from significant psychological symptoms. The ALJ's error in not addressing the VA's rating on the record, therefore, is compounded by the fact that the VA's finding contradicts the ALJ's conclusions regarding the severity of Greger's impairment.
33
For these reasons, a remand is necessary; therefore, I would reverse.
Notes:
1
The Veterans Administration notes that many soldiers who show initial signs of PTSD are reluctant to seek treatment because they "may be ashamed of opening themselves up to professionals and are very concerned about taking on a `sick' or `weak' persona." Brett T. Litz,The Unique Circumstances and Mental Health Impact of the Wars in Afghanistan and Iraq, PTSD Support Services, Aug. 15, 2006, http:// www.ptsdsupport.net/PTSD — anew — generation.html.
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49 So.3d 243 (2010)
GEIST
v.
STATE.
No. 2D10-661.
District Court of Appeal of Florida, Second District.
September 22, 2010.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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543 F.Supp. 1004 (1982)
Joseph McALINDEN, Plaintiff,
v.
Walter J. WIGGINS and Divi Divi Hotel Corporation, N.V., Defendants.
No. 81 Civ. 5764 (KTD).
United States District Court, S. D. New York.
July 23, 1982.
*1005 Greenfield & Chimicles, P.C., Bala Cynwyd, Pa., Mordecai Rosenfeld, New York City, for plaintiff; Richard D. Greenfield, Carole A. Broderick, Julie T. Barsel, Bala Cynwyd, Pa., of counsel.
Galpeer, Altus, Karp & Beckerman, New York City, for defendants; Murray Beckerman, New York City, of counsel.
MEMORANDUM & ORDER
KEVIN THOMAS DUFFY, District Judge:
Plaintiff Joseph McAlinden moves to vacate the dismissal of plaintiff's original complaint entered January 22, 1982 and for the imposition of sanctions against defendant Wiggins and his counsel for allegedly improper conduct which plaintiff contends prompted the January 22 dismissal. Plaintiff also moves to disqualify Murray Beckerman, Esq. the attorney retained by both defendants. The failure of plaintiff to substantiate any of his arguments, as stated below, necessitates denial of all three motions.
I. Motion to Vacate Prior Dismissal
The file on this case is fast acquiring a pile of needless, useless papers and the instant motions merely add to it. McAlinden, a stockholder of Divi Divi Hotel Corporation, N.V. ("Divi"), brought suit in October, 1981 against defendant Divi and its President and Managing Director, defendant Walter J. Wiggins, alleging violations of Section 14 of the Securities Exchange Act, 15 U.S.C. § 78n (1976) arising out of the defendants' alleged fraud in connection with the solicitation of proxies. The complaint was dismissed on defendants' motion after the defendants established that Divi did not have the requisite number of stockholders to require registration under Section 12 of the Securities of the Securities Exchange Act, 15 U.S.C. § 78l and was therefore not subject to the purview of Section 14. Instead of answering the defendants' motion, plaintiff filed an amended complaint which dropped the alleged federal securities laws violations and was grounded on common law fraud. Plaintiff now argues for the first time that Divi wrongfully avoided the registration requirements of Section 12. This argument must be rejected. Section 12 provides that Divi shall,
within one hundred and twenty days after the last day of its first fiscal year ended after two years from July 1, 1964, on which the issuer has total assets exceeding $1,000,000 and a class of equity security (other than an exempted security) held of record by five hundred or more but less than seven hundred and fifty persons, ...
register its securities with the Securities and Exchange Commission. 15 U.S.C. § 781(g)(1)(B) (1976). Plaintiff submits evidence that Divi had in excess of 500 stockholders in June, 1981 at the time of the alleged wrongful acts. The crucial date, however, for determining the need for registration is explicitly stated in Section 12 to be the last day of the fiscal year and not at any other time during the fiscal year. Defendants have proven to my satisfaction that on April 30, 1981, the last date of Divi's fiscal year, Divi had only 493 shareholders, seven below the statutory minimum requirement and accordingly was not obliged to register its securities. Thus, any evidence submitted by plaintiff documenting the number of Divi shareholders in June, 1981 is irrelevant and not grounds for vacation of my dismissal. Plaintiff's motion to vacate the dismissal is accordingly denied.
Plaintiff also moves for the imposition of sanctions resulting from the failure of defendant counsel to inform this court that Divi had in excess of 500 shareholders June, 1981. The immateriality of this information renders the imposition of sanctions totally inappropriate. This motion is denied.
II. Disqualification of Mr. Beckerman
Plaintiff moves to disqualify Mr. Beckerman as the joint counsel of both Divi *1006 and Mr. Wiggins and claims that this dual representation arrangement violates the Code of Professional Responsibility. Although plaintiff vehemently asserts that the inherent conflicts in this joint counsel arrangement mandate Mr. Beckerman's automatic disqualification, each case must be independently reviewed on its facts to determine if the severe remedy of disqualification is merited. The American Bar Association ("ABA") Code of Professional Responsibility proscribes multiple representation,
if the exercise of [the attorney's] independent professional judgment in behalf of a client will be or is likely to be adversely affected by [the attorney's] representation of another client, except to the extent permitted under DR 5-105(C).
ABA Model Code of Professional Responsibility DR 5-105(B). DR 5-105(C) allows dual representation to stand,
if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
The affidavits of Anthony Ceracche, the Secretary/Treasurer of Divi, and Walter Wiggins reflect Beckerman's full disclosure to his clients of potential ramifications of his joint representation and the consent of both clients to his continued legal counsel. While plaintiff asserts that this consent is illusory based on Wiggins' control of Divi, Mr. Ceracche's statement that the matter of Mr. Beckerman's representation was "carefully considered by the [Divi] Board of Directors (without the participation of Wiggins). ..." Affidavit of Anthony Ceracche, ¶ 2, successfully counters plaintiff's argument.
McAlinden further argues that because this case is "closely akin to a derivative action," Plaintiff's Reply Memorandum in Support of his Motion to Disqualify Defendants' Counsel, at p. 3, the rights of the defendant President and the defendant corporation are at odds.
Plaintiff correctly argues that joint representation in a derivative suit is frowned upon due to the inherent conflict between the corporation and its president. Cannon v. U. S. Acoustics Corp., 398 F.Supp. 209, 216 (N.D.Ill.1975), rev'd in part on other grounds, 532 F.2d 1118 (7th Cir. 1976). This case, however, was not brought derivatively. The plaintiff's amended complaint filed November 27, 1981 alleges common law fraud violations against both Wiggins and Divi. The amended complaint is concerned with the proxy materials discussing the potential purchase by Divi of a Ramada Inn located in Ithaca, New York and the leasing of the Flamingo Beach Hotel situated on the Island of Bonaire, Netherland Antilles. Mr. Wiggins is alleged to be a principal investor in both hotels. In essence, plaintiff charges that neither Wiggins or Divi was forthright in divulging relevant information to the shareholders in the proxy materials. If plaintiff were seeking relief on behalf of Divi against Wiggins, Beckerman's dual representation could be jeopardized, but instead plaintiff seeks relief against Divi arising out of the solicitation of allegedly deceptive proxies.
The Second Circuit, in Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980) (en banc), vacated on jurisdictional grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981), set forth the appropriate standards for disqualification of attorneys. Disqualification is warranted "where an attorney's conflict of interests ... undermines the court's confidence in the vigor of the attorney's representation of his client ..." 625 F.2d at 444, quoting Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). No such showing has been made and the disqualification motion is denied.
In sum, plaintiff's motions for sanctions, disqualification of Mr. Beckerman and vacation of the dismissal of the original complaint are denied. These motions are as baseless as the prior motions. Costs for these motions are therefore assessed against plaintiff.
SO ORDERED.
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5 F.3d 1496
U.S.v.Niemann*
NO. 93-8130
United States Court of Appeals,Fifth Circuit.
Oct 01, 1993
1
Appeal From: W.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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People v Austin (2018 NY Slip Op 06455)
People v Austin
2018 NY Slip Op 06455
Decided on September 28, 2018
Appellate Division, Fourth 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 September 28, 2018
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ. (Filed Sept. 28, 2018.)
MOTION NO. (709/18) KA 16-01081.
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vRASHAWN C. AUSTIN, DEFENDANT-APPELLANT.
MEMORANDUM AND ORDER
Motion for reargument be and the same hereby is granted and, upon reargument, the memorandum and order entered June 8, 2018 (162 AD3d 1574) is amended by adding the following sentence as the last sentence of the memorandum: "We have reviewed the remaining contentions raised by defendant on appeal and conclude that none warrant reversal or modification of the judgment."
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764 S.W.2d 28 (1989)
Ermilo BARRIENTES, Appellant,
v.
BOARD OF TRUSTEES, HARLANDALE INDEPENDENT SCHOOL DISTRICT, Appellee.
No. 04-88-00055-CV.
Court of Appeals of Texas, San Antonio.
January 11, 1989.
Rehearing Denied February 7, 1989.
James E. Shugart, David W. Rogers, Law Offices of Dave Rogers, Inc., San Antonio, for appellant.
North O. West, West & West, San Antonio, for appellee.
Before CANTU,[*] REEVES, and CHAPA, JJ.
OPINION
CHAPA, Justice.
This appeal arises from a summary judgment rendered against appellant, Ermilo Barrientes, in favor of appellee, Harlandale Independent School District.
Appellant was employed as a vice-principal by the Harlandale Independent School District during the 1985-1986 school year. When he was notified in 1986 that his contract would not be renewed for the following year, he filed suit against appellee HISD based on its failure to give the required notice of non-renewal under Chapter *29 21 of the Texas Education Code, which appellant believed was the proper statute governing this dispute. As a result of this action, the parties entered into a settlement agreement and agreed judgment which provided that appellant would be employed as an administrator with HISD for the 1986-1987 school year at an annual salary of $28,884.00, and further provided that the parties "compromise and settle all claims and causes of action which plaintiff has or may have in the future arising out of the dispute and that the full terms and conditions of the compromise and settlement be set forth in this Settlement Agreement." Finally, in addition to its terms, the agreement provided that appellant's employment with HISD was to automatically terminate at the end of the 1986-1987 school year. In 1987, upon learning that HISD had adopted and was governed by Chapter 13 of the Education Code instead of Chapter 21, appellant filed suit seeking declaratory judgment that the agreement entered by the parties was void as a matter of law because appellee had no authority to contract under any section of the Education code other than Chapter 13. In the alternative, appellant sought to have the contract rescinded because appellee had failed to fulfill its obligations under the settlement agreement. Both parties filed opposing motions for summary judgment, and the court ruled in favor of appellee HISD.
The issues before us are:
(1) Whether the agreement was void as a matter of law because it was entered into under an inapplicable statute; and
(2) Whether there was an issue of fact concerning the breach of the contract because either party failed to perform.
It must be noted at the outset that this suit is based on a settlement agreement that was subsequently incorporated into an agreed judgment. This type of judgment is to be construed in the nature of a contract, and therefore rules relating to contracts apply in its interpretation. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956). Despite its contractual nature, however, it is more than a mere contract; it has the same degree of finality and binding force as one rendered by a court at the conclusion of adversary proceedings. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 239 (1961); Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786, 787 (1941). Further, it has been held that one who has acquiesced in a consent judgment and accepted its benefits is precluded from questioning its validity, even if the judgment is defective or invalid. Roberts v. Southwestern Life Ins. Co., 244 S.W.2d 302, 308 (Tex.Civ.App.Dallas 1951, writ ref'd n.r.e.). Here, appellant accepted as a final disposition of its claim against appellee an administrative position at an annual salary of $28,884.00. He was fully compensated during his one year tenure. We cannot sustain appellant's argument that the agreement is void when appellant voluntarily entered into and accepted its benefits. In addition, where a court of general jurisdiction, in the exercise of its ordinary judicial functions, renders a judgment in a cause in which it has jurisdiction over the parties and subject matter of the controversy, the judgment is never void regardless of how erroneous it may appear. Roberts, supra at 308. The judgment must be given its full effect. Therefore, we find that the trial court properly decided that the judgment was not void as a matter of law.
Accordingly, our next step is to determine whether an issue of fact existed as to the breach of the agreement which would preclude a summary judgment. Appellant claims in his pleadings that he was not given the responsibilities promised to him by the school district. Appellee apparently agrees that a breach has occurred, but claims that it is appellant who has not fulfilled his obligations in compliance with the agreement.[1]
The standard of review in a summary judgment appeal requires the reviewing court to disregard all conflicts within the *30 evidence and accept as true the proof which tends to support the position of the party opposing the motion. Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex.1972). The judgment should be affirmed only if the record establishes a right to the summary judgment as a matter of law. Clutts v. Southern Methodist University, 626 S.W.2d 334, 335 (Tex.App.Tyler 1981, writ ref'd n.r.e.). Here, although there is some contention by appellee that the damages sought by appellant were not of the proper nature, we do not find it necessary to reach this argument. Appellant's controverting affidavit clearly shows that there is a material fact issue present concerning the breach of contract claim. Appellee's brief does not controvert or deny this allegation, and thus this court is permitted to accept this fact as correct. TEX.R.APP.P. 74(f). Additionally, appellee admitted in oral argument before this court that a fact issue existed as to the breach allegations, but argued that the remedy sought by appellant was unavailable. Moreover, appellant's counterclaim suggests that a genuine issue of material fact is present. Where ultimate issues of fact exist, summary judgment is improper. Christy v. Stauffer Publications, Inc., 437 S.W.2d 814, 815 (Tex.1969). Appellee has not overcome its burden of establishing that it is entitled to judgment as a matter of law. Therefore, we affirm the portion of the judgment concerning the validity of the agreement and reverse the portion of the judgment as to the breach of contract dispute and remand it for a trial on its merits.
NOTES
[*] Not participating (retired).
[1] In its original answer, appellee counterclaimed alleging breach of the settlement agreement by appellant. This action was later dismissed by appellee's own motion.
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February 8, 1993
United States Court of Appeals
For the First Circuit
No. 92-1709
UNITED STATES,
Appellee,
v.
PAUL J. CASTELLONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge, and
Stahl, Circuit Judge.
Edward J. Romano with whom Michael Devlin was on brief for
appellant.
Stephanie S. Browne, Assistant United States Attorney, with whom
Margaret E. Curran, Assistant United States Attorney and Lincoln C.
Almond, United States Attorney, were on brief for appellee.
February 8, 1993
STAHL, Circuit Judge. Defendant-appellant Paul J.
Castellone pled guilty to a two-count information in which he
was charged with distribution of marijuana, in violation of
21 U.S.C. 841(a)(1). He was sentenced to 21 months of
imprisonment and three years of supervised release. In this
appeal, Castellone challenges his sentence on two grounds
related to the district court's calculation of the offense
level assigned to his conviction. Specifically, defendant
argues: 1) that the court erroneously included as relevant
conduct certain amounts of marijuana sold by a coconspirator;
and 2) that the court should not have ascribed to him a
managerial role in the offense. As we find these arguments
persuasive, and the government has candidly made us aware of
an apparent mathematical error in the offense level
calculation, we remand for resentencing.
I.
Background
Because Castellone pled guilty, we garner the
relevant facts from the probation officer's Pre-Sentence
Report (PSR) and the transcript of the sentencing hearing.
United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992). In
early January 1992, Detective Michael Purro of the
Providence, Rhode Island, Police Department began an
undercover investigation of marijuana trafficking by
Castellone and Roland R. Chaput. Purro was assisted by an
-2-
2
agent from the federal Bureau of Alcohol, Tobacco and
Firearms.
On January 9, 1992, Detective Purro, in his
undercover capacity, purchased one pound of marijuana from
Castellone for $2,200 ("the first sale"). The next day,
Purro purchased another pound of marijuana from Castellone
for the same price ("the second sale"). Both sales took
place in the late afternoon at a Dunkin Donuts on East Street
in Providence. Prior to the second sale, Purro followed
Castellone to the Dunkin Donuts parking lot and observed
Chaput arrive and enter Castellone's car. Purro then
approached Castellone's vehicle and introduced himself
directly to Chaput, whom he believed, correctly, as it later
turned out, to be Castellone's supplier.
At some point between January 10 and 16, Castellone
and Purro discussed a sale of five pounds of marijuana and a
handgun. Castellone told Purro that he had been in contact
with Chaput and would be able to execute the sale. Since law
enforcement officials considered Chaput to be a higher-level
dealer and a more important target than Castellone, Detective
Purro decided to exclude Castellone from any future deals,
and instead buy directly from Chaput. After obtaining
Chaput's phone number from a confidential informant, Purro
contacted him and after discussion was offered five pounds of
marijuana for $1700 per pound ("the third sale"). Castellone
-3-
3
was totally unaware of the third sale or the direct contact
between Purro and Chaput.
On January 16, 1992, at approximately 6:30 p.m.,
Chaput, Purro, and two other men, Robert Laiter and Peter M.
Leite, all arrived at the Dunkin Donuts in separate vehicles.
Chaput retrieved a handgun from Laiter's car and delivered it
to Purro. Chaput, Laiter and Leite were all arrested as
Chaput was removing the marijuana from the trunk of Leite's
car. Law enforcement agents found five, approximately one-
pound packages of marijuana in the trunk.1
Castellone was not present at the third sale, but
was later arrested pursuant to a warrant. He subsequently
agreed to plead guilty to an information charging him with
the first two marijuana deals. He also agreed to assist the
government in its attempts to arrest others in the drug
trade. In return for his cooperation, the government agreed
not to charge him with conspiring with Chaput to distribute
marijuana. The plea agreement also indicated that the weight
of the two sales to which Castellone was pleading was 908.7
grams. Moreover, the government agreed it would not seek to
hold Castellone responsible at sentencing for the 2,300.3
grams or the firearm seized at the January 16, 1992, arrest.
1. The total weight of the five packages was 2,300.3 grams.
As a pound contains 454 grams, the contraband slightly
exceeded five pounds.
-4-
4
Finally, the government agreed to recommend a sentence at the
low end of the applicable guideline range.
II.
Sentencing
In calculating Castellone's base offense level
("BOL"), the probation officer used a total quantity of 3209
grams of marijuana. This amount included the 2,300.3 grams
Chaput delivered to Purro at the third sale, as well as the
908.7 grams Castellone sold directly to Purro at the first
two sales. Applying the Sentencing Guidelines' Drug Quantity
Table, U.S.S.G. 2D1.1(c), the probation officer tabulated a
BOL of 12, applicable to quantities of marijuana between 2.5
and five kilograms. The BOL was increased by two levels for
Castellone's managerial role in the offense, U.S.S.G.
3B1.1(c), and decreased by two levels for acceptance of
responsibility. After assigning Castellone a criminal
history category of I, the probation officer concluded that
Castellone's offense level was 12, with a resulting guideline
range of 10 to 16 months.
Prior to sentencing, Castellone objected to the
inclusion of the 2300.3 grams of marijuana from the third
sale as relevant conduct, as well as to the two-level
adjustment for a managerial role in the offense. At the May
19, 1992, sentencing hearing, the defense put Detective Purro
on the stand to testify about, inter alia, Castellone's
-5-
5
involvement--or lack thereof--in the third sale. At the
close of the hearing, the trial court expressed concern over
what it thought to be an inconsistency between the
government's plea agreement obligation not to hold Castellone
responsible for the third sale, and the probation officer's
statement that in response to Castellone's objection, the
government was prepared to present evidence regarding
Castellone's role in the third sale. Accordingly, the trial
court gave Castellone the option of withdrawing his guilty
plea. Castellone declined, and the sentencing hearing
reconvened on June 15, 1992, whereupon the government
reiterated its position that defendant was legally
responsible only for the 908.7 grams of marijuana from the
first two sales. The court, however, questioned the
government's decision to forego inclusion of the 2300.3
grams. In response, the government cited the plea agreement,
which, in turn, was based on its conclusion that the element
of foreseeability of the third sale, as it related to
Castellone, was "questionable." The trial court then ordered
further testimony from Purro, to elaborate on what, if any,
nexus existed between Purro and Castellone's last
conversation and the third sale.
Following Purro's testimony, and defense argument,
the court found that Castellone initiated the third sale and
that he took two actions in furtherance of that sale by
-6-
6
initiating the negotiations with Purro and by communicating
Purro's marijuana and handgun order to Chaput. Based on
those findings, the court ruled that the third sale
constituted relevant conduct for which Castellone should be
held responsible.
Next, having heard argument regarding Castellone's
role in the offense, the trial court found that Castellone's
negotiations in the first two sales and involvement in the
third supported an offense level increase for a managerial
role. Castellone appeals these two findings.
III.
Discussion
At the outset, we note that remand is in order to
correct an apparent mathematical error in calculating
Castellone's offense level, irrespective of our decision on
the merits of the trial court's findings.2 A brief
explanation follows.
The court found that the third sale, involving the
2300.3 grams of marijuana and the handgun, was relevant
conduct for purposes of determining Castellone's offense
level. As noted, supra, p. 3, this amount of marijuana
yielded a BOL of 12. The firearm added two levels, to 14.
2. Although Castellone failed to raise this argument before
the trial court, we do have jurisdiction to correct plain
error. United States v. Morales-Diaz, 925 F.2d 535, 539 (1st
Cir. 1991).
-7-
7
U.S.S.G. 2D1.1(b)(1).3 The court's ruling on Castellone's
managerial role added two more levels, resulting in an
adjusted offense level of 16. U.S.S.G. 3B1.1(c). Finally,
the court agreed that Castellone was entitled to a two-level
reduction for his acceptance of responsibility, U.S.S.G.
3E1.1(a), suggesting an offense level of 14, which, when
coupled with a criminal history category I, yields a
sentencing range of 15 to 21 months. U.S.S.G. 5, Part A,
Sentencing Table. The court, however, after factoring in the
relevant conduct, erroneously began with an offense level of
18, which it reduced to 16 based on Castellone's acceptance
of responsibility. Thereafter, consistent with the plea
agreement, the trial court sentenced Castellone at the
lenient end of the 21 to 27 month range called for by offense
level 16. While we might assume that the district court
would again follow the plea agreement and sentence Castellone
to the bottom end of the corrected guideline range, our other
rulings relative to the instant sentence require remand of
3. The PSR omitted reference to the firearm, and thus did
not account for the two-point upward adjustment. The trial
court, however, explicitly found that the gun, as part of the
third sale, was relevant conduct attributable to Castellone.
While Castellone does not specifically appeal the propriety
of the handgun increase, he did object to and has appealed
the inclusion of the third sale. The handgun increase,
therefore, succeeds or fails concomitant with the third sale,
without meriting separate discussion.
-8-
8
this item as well.4 We turn now to the substantive issues
on appeal.
A. Relevant Conduct--The Third Sale
Pursuant to U.S.S.G. 2D1.1(c), the BOL for drug
trafficking offenses depends on the quantity of contraband
attributable to the defendant. For sentencing purposes, this
total includes the amount to which the defendant pleads
guilty, as well as any relevant uncharged conduct. Garcia,
954 F.2d at 15 (citations omitted). "[D]rugs not specified
in the count of conviction are to be included in determining
the offense level if they were part of the same course of
conduct or part of a common scheme or plan as the count of
conviction." U.S.S.G. 1B1.3, comment. (background). In
cases involving drug conspiracies, relevant conduct also
includes "all reasonably foreseeable acts and omissions of
others in furtherance of" the conspiracy. U.S.S.G.
1B1.3(a)(1)(B); Garcia, 954 F.2d at 15. In order to factor
the quantities associated with relevant conduct into the
sentencing formula, the government must establish by a
preponderance of the evidence that a sufficient nexus exists
between the conduct at issue and the offense of conviction.
United States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990).
4. Because of our decision today, the low end of the
applicable guideline range may lead to a sentence not
involving incarceration. We leave that decision to the
district court.
-9-
9
We will set aside the district court's findings on relevant
conduct only if they are clearly erroneous. United States v.
Camuti, 950 F.2d 72, 74 (1st Cir. 1991).
As he did below, Castellone argues here that the
government's decision to "cut him out" of the third sale and
deal directly with Chaput without his knowledge inoculates
him from responsibility for the sale. Castellone bases his
argument on the following undisputed facts. Castellone's
relationship with Purro was severed after only preliminary
conversations relative to the third sale wherein the two
never agreed that a sale would take place, or on a price for
such a sale. Furthermore, due to his own profit motive,
Castellone did not want Purro to deal directly with Chaput,
did not know Purro was going to do so, and did not know that
the third sale had occurred until after his arrest.
The trial court, however, found that Castellone and
Chaput had formed a conspiracy to sell marijuana, and that
Castellone initiated the negotiation for the third sale and
communicated Purro's third sale request to Chaput. The court
then determined that the third sale was both foreseeable to
Castellone and in furtherance of the conspiracy. Therefore,
the trial court concluded that the third sale was relevant
conduct for purposes of sentence calculation. Based on the
following, we disagree.
-10-
10
In analyzing this situation, we find that two of
our recent decisions offer direction. In United States v.
Wood, 924 F.2d 399 (1st Cir. 1991), the defendant was
convicted of one narcotics sale. At sentencing, the district
court placed additional, uncharged sales into the relevant
conduct category. We ruled that an uncharged sale between
defendant's wife and a drug supplier, of which the defendant
had no knowledge until after the fact, could not be
considered relevant conduct for sentencing purposes. Id. at
404-05. We rested our decision on the fact that the
defendant "in no way conspired to facilitate the deal;
indeed, he had no knowledge that his wife was engaged in drug
transactions with anyone other than himself." Id.
Subsequently, we upheld a district court's decision to
include as relevant conduct drug sales between the
defendant's coconspirator and an undercover agent, despite
the fact that the defendant was not personally involved in
the later sales. Garcia, 954 F.2d at 16-17. A fair reading
of Garcia, however, indicates that the defendant and his
coconspirator worked as a team to sell drugs to the
undercover officer. As we noted:
"Garcia introduced [his coconspirator to
the undercover agent] for the express
purpose of facilitating drug
transactions. He was aware of the nature
and salient details of the relationship
that developed between the two men.
There was no evidence of Garcia's
affirmative withdrawal from the
-11-
11
conspiracy or of any other intervening
event materially affecting the
trafficking calculus."
Id. at 16 (emphasis added). We stated that "the measure of a
defendant's accountability for drug transactions in which he
was not personally involved is usually congruent with the
scope of his agreement with the other participants in the
enterprise." Id. (citation omitted). We therefore
distinguished Wood on the ground that "Garcia's agreement
with his coconspirator [] could reasonably be said to
transcend the initial series of transactions." Id.
Here, with Wood and Garcia as our guideposts, we
find that Castellone was sufficiently detached from the third
sale so that it stands alone, and not as part of an overall
course of conduct. Based on our review of the record, we
doubt whether Castellone could have foreseen that the third
sale, about which he knew nothing, would take place as it
did, from Chaput directly to Purro. And although the
evidence supports the district court's conclusion that
Castellone and Chaput had formed a conspiracy to sell
marijuana, there is no evidence that the third sale was in
furtherance of a common plan between Castellone and Chaput.
Just as the defendant in Wood had no knowledge that his wife
dealt with anybody but him, Castellone had no reason to
expect Purro to deal directly with Chaput. The record is
clear that Castellone was little more than a street-level
-12-
12
"retail" dealer, and that Chaput was his "wholesaler," rather
than his partner. This conclusion is supported by the
circumstances of the first two sales, wherein Castellone
bought marijuana from Chaput, and sold it to Purro for a
several hundred dollar profit.5 As for the third sale, the
record does not support the trial court's conclusion that
Castellone initiated the negotiations. Purro's testimony
indicated only that the two "had communication" after the
second sale, but is silent as to the instigator. Moreover,
while the record does support the finding that Castellone
told Chaput of Purro's interest in another sale, there is
nothing in the record to indicate that Castellone's call to
Chaput was anything other than part of the previous modus
operandi. In other words, after Purro made the request for
more marijuana and a gun, Castellone attempted to accommodate
him by contacting his supplier. There is nothing in the
record to indicate that Castellone's call to Chaput was
intended to facilitate the Chaput-Purro transaction. Indeed,
such a conclusion defies logic, because the record
demonstrates that Castellone's only source of narcotics-
related income was his own "retail" operation. Unlike the
defendant in Garcia, Castellone was in business for himself.
Also unlike the scenario in Garcia, Castellone never
5. The exact amount of Castellone's per-pound profit is
disputed. Resolution of that issue, however, is
insignificant to our analysis.
-13-
13
introduced Purro to Chaput. Had events taken their usual
course, as Castellone had every reason to expect, Castellone
would have again purchased the contraband from Chaput,
factored in a profit, and re-sold it to Purro. Castellone,
however, never again discussed the sale with Purro, as he had
been, unbeknownst to him, bypassed. This is akin to the
"intervening event" adverted to in Garcia. Thus, there was
no evidence from which the court could properly find that the
third sale was in furtherance of a common scheme involving
Castellone and Chaput. Accordingly, we find the district
court's inclusion of the third sale as relevant conduct to be
clearly erroneous.6
B. The Managerial Role
Despite entreaties from both the defense and
government, the trial court assessed Castellone a two-level
increase in his BOL for his role as a manager of criminal
activity pursuant to U.S.S.G 3B1.1(c). Upon review of the
record, we find this increase legally insupportable.
At the outset, we note that the government bears
the burden of proving that an upward adjustment was
warranted. United States v. Ortiz, 966 F.2d 707, 717 (1st
Cir. 1992), cert. denied, 61 U.S.L.W. 3479 (U.S. Jan. 11,
6. We are not unmindful of our recent decision in United
States v. Moran, No. 91-1772 (1st Cir. Jan 20, 1993).
However, we view the facts of this case quite differently
than those in Moran.
-14-
14
1993) (No. 92-6552). To meet its burden, the government must
demonstrate that Castellone exercised "some degree of control
over others involved in the commission of the offense or he
must have been responsible for organizing others for the
purpose of carrying out the crime." United States v. Fuller,
897 F.2d 1217, 1220 (1st Cir. 1990). Here, we find the
record devoid of evidence of such control or organization.
On appeal, the government argues that Castellone determined
who purchased, when and where sales took place, prices, and
profit. Thus, the argument goes, it was Castellone's
decisions on those matters that effectuated his control over
when and where Chaput and others presented themselves. With
respect to the first part of the argument, the same can be
said of any independent, street-level dealer. In fact, no
street-level drug sale could ever be made without a customer,
a time and location for the sale, and a price. Furthermore,
the profit Castellone determined was his own, not Chaput's.
Moreover, the second part of the argument is unsubstantiated.
There is simply no evidence that Castellone exercised any
control over the movement of Chaput--or anyone else. In
ruling in favor of the increase, the trial court stated:
It's not necessary that a [d]efendant be
the CEO of the operation to be in a
managerial role. Here, there is no
question but that the Defendant
negotiated the first two transactions and
began the negotiations for the third
transaction, and along with Mr. Chaput,
the transactions were carried out. It
-15-
15
seems to me those facts do establish a
managerial role on his part. . . .
Conspicuously lacking from the court's analysis, however, is
any finding that Castellone organized or exercised control
over others--that is, that he "managed" or "organized,"
within the meaning of section 3B1.1(c).7 We have recently
stated that an upward BOL adjustment "must be based on more
than the trial judge's hunch, no matter how sound his
instincts or how sagacious his judgment." Ortiz, 966 F.2d
707, 717 (1st Cir. 1992). The evidence in this case does not
support such an adjustment.
Appellant's sentence is vacated and the case is
remanded to the district court for resentencing in accordance
with this opinion.
7. By comparison, Chaput, who also received a two-level
managerial role adjustment, was accompanied by his
subordinates at the third sale.
-16-
16
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150 Ill. App.3d 216 (1986)
501 N.E.2d 752
SWIFT AND COMPANY, Appellant,
v.
THE INDUSTRIAL COMMISSION (James Colley, Appellee).
No. 2-86-0154WC.
Illinois Appellate Court Second District (Industrial Commission Division).
Opinion filed November 6, 1986.
Rehearing denied January 9, 1987.
*217 *218 John H. Guill and Paul Werner Schumacher, both of Roddy, Power & Leahy, Ltd., of Chicago, for appellant.
Harry Schaffner, of Schaffner & Associates, Chartered, of West Dundee, for appellees.
Affirmed in part and reversed in part.
JUSTICE McNAMARA delivered the opinion of the court:
Claimant, James Colley, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for injuries he sustained to his lower back while employed by Swift and Company. An arbitrator made a preliminary award of $296.05 per week for 22 5/7 weeks of temporary total disability benefits and $5,596.50 for necessary medical services. The arbitrator also awarded claimant additional compensation in the amount of $1,580 under section 19(1) due to the employer's refusal to pay temporary total disability benefits. The Commission affirmed the decision of the arbitrator, and the circuit court of Kane County confirmed the decision of the Commission. On appeal the employer contends that the Commission failed to consider all of the evidence; that the Commission erred in finding the accident occurred on a date other than the date offered by claimant; and that the award of penalties is against the manifest weight of the evidence.
Claimant is a millright employed by Swift. He testified that in November 1981 he was working with employees from Griffith Laboratories, building a mincemaster machine. While two of the Griffith employees were underneath the machine on the opposite side, claimant and a third Griffith employee, Hans Niewalt, tried to loosen two nuts which held a large motor onto the machine. When claimant attempted to turn the wrench, he slipped and fell back against a platform located 5 or 6 feet behind the machine. Claimant immediately felt pain in his right hip, shoulder, and lower back. Claimant further testified that at some point Niewalt had cautioned him to be careful not to hurt himself, and claimant replied, "I think I already have." Later in the morning, Charles Staples, whom claimant testified was his supervisor at the time, asked claimant why he was limping. Claimant replied that he had been hurt while working on the mincemaster. Claimant continued to work for the rest of the day. When the pain persisted to the following Tuesday, he went to see the company nurse, who was present at the plant only on Tuesdays and Thursdays. Claimant also *219 testified that he told the nurse that he fell while working on the mincemaster. She gave him a muscle relaxant, but the pain continued. Two weeks later, the nurse gave claimant more relaxants and suggested he see a family doctor if the pain persisted.
In regard to the exact date of the accident, claimant testified that he originally thought it occurred on November 7 or November 14, 1981. Claimant subsequently saw the employer's accident report on the doctor's desk. The report indicated that the accident occurred on November 20. "I told my attorney that must have been when it happened because I didn't know the date." The accident report had been filled out by Staples. Claimant repeatedly testified that he was "not very good on dates," "confused on dates because I work so many shifts and hours," and "I am not sure of the date."
On January 18, 1982, claimant saw Dr. D. Giedraitis, his family physician. He informed Dr. Giedraitis that he had fallen at work two months earlier while trying to use a large wrench on a machine. Claimant was admitted to the hospital on January 29, 1982, and a myelogram revealed a ruptured disc at L4-L5. He was scheduled for surgery on February 9, but surgery was postponed when the employer informed the doctor that more evidence was necessary to determine whether workers' compensation coverage existed. Dr. B. Chung performed a laminectomy on claimant on February 28, 1982.
Andrew Macey, a co-worker, testified for claimant that he saw claimant working with the Griffith employees. Macey observed claimant using a pipe and wrench to loosen a bolt, but did not see him fall or injure himself.
Charles Staples, a maintenance supervisor, testified for claimant that he had spoken to claimant on the day the Griffith employees were present. On that day, and again two weeks later, claimant complained to Staples of lower-back pain which was related to working on the mincemaster. Staples understood the injury occurred while claimant was lifting something. Staples stated that he has supervised claimant, but that he did not act as claimant's supervisor on that particular day.
Hans Niewalt testified for the employer that he worked with claimant at Swift in November 1981, although he was unsure of the exact date. "The date I am not really sure of but probably it was November 21st or something like that, whatever it is." Niewalt testified that he did not see claimant use any tools that day. Instead, claimant only washed machine parts to remove grease and did other odd jobs. Niewalt stated further that claimant never mentioned falling or injuring himself. Niewalt himself loosened the nuts on the mincemaster. *220 Niewalt did not know if claimant saw Niewalt loosening the nuts or if claimant was even in the area at the time.
Marsha Taulbee, the company nurse, testified that she saw claimant sometime in late November or early December 1981 and again a few weeks later. He complained of lower-back pain, but never mentioned that the injury was work-related. In February 1982 claimant's attorney contacted the employer regarding the accident, and an accident form was then filled out. Taulbee did not ask claimant if the injury was work-related prior to that. Taulbee also stated that claimant missed only one day of work between November 20, 1981, and the time of his hospitalization in January 1982.
Michael McElhattan, the plant manager, testified that claimant continued to work overtime from November 1981 through the last week of January 1982. McElhattan did not observe anything unusual about claimant's appearance or performance during this time period.
After hearing all the evidence, an arbitrator found that the accident occurred while the employer's mincemaster machine was being overhauled by Griffith and that the accident therefore "had to occur on Saturday, November 21, 1981." The arbitrator also found that the accident arose out of and in the course of claimant's employment. The arbitrator stated that, "[e]xcept for the confusion about the date, petitioner's testimony is entirely credible and plausible." After finding that expenses for necessary medical care had not been provided by the employer and workers' compensation benefits had not been provided, the arbitrator awarded penalties under section 19(1) of the Act.
On review the Commission adopted the findings and decision of the arbitrator. The Commission's decision noted the arbitrator's reliance on claimant's testimony and medical evidence showing a causal connection between the injury and the present condition of ill-being, but did not detail the testimony given by the witnesses. The Commission affirmed the arbitrator's award for temporary total disability and for penalties and medical expenses.
1 The employer first contends that the Commission's decision should be set aside because the Commission failed to independently review all of the evidence before it. Employer argues that the absence of any express comment in the Commission's decision concerning the testimony of employer's witnesses or the conflicting evidence presented by each party proves that the Commission failed to consider the evidence. The arbitrator and the Commission are required to make findings of fact and law. (Wolfe v. Industrial Com. (1985), 138 Ill. App.3d 680, 486 N.E.2d 280.) The Commission is permitted to adopt the findings of the arbitrator. (Ill. Rev. Stat. 1985, ch. 48, par. *221 138.19(e).) There is no requirement, however, that the findings be stated in any particular language. (Wolfe v. Industrial Com. (1985), 138 Ill. App.3d 680, 486 N.E.2d 280.) Moreover, the commission's decision need not recite all of the underlying evidence. (See Hart Carter Co. v. Industrial Com. (1982), 89 Ill.2d 487, 433 N.E.2d 1307.) A presumption exists that the Commission and the arbitrator considered all competent and proper evidence in reaching their decision. See Thomas v. Industrial Com. (1980), 78 Ill.2d 327, 399 N.E.2d 1322; Glover v. Industrial Com. (1985), 140 Ill. App.3d 361, 485 N.E.2d 605.
2 The Commission here found that the arbitrator had heard all of the testimony and considered all of the evidence. The record before the Commission included the testimony of all of employer's witnesses. It is not necessary for the Commission to set forth a detailed description of all evidence presented. Moreover, it is the peculiar province of the Commission to determine credibility of witnesses, weigh testimony, and determine the weight to be given to the evidence. (Berry v. Industrial Com. (1984), 99 Ill.2d 401, 459 N.E.2d 963.) Additionally, findings regarding the evidence may be implied from the Commission's decision. (See, e.g., Coultas v. Industrial Com. (1964), 31 Ill.2d 527, 202 N.E.2d 485.) Thus, the Commission's reliance on claimant's evidence, instead of the employer's evidence, implies that it found claimant's evidence more credible. Furthermore, the effect of the Commission's failure to expressly find claimant's evidence to be more credible than employer's evidence does not require reversal here.
Employer's reliance on National Biscuit, Inc. v. Industrial Com. (1984), 129 Ill. App.3d 118, 472 N.E.2d 91, for its argument that the Commission did not consider all the evidence is misplaced. In that case, the Commission did not adopt the arbitrator's finding. Instead, it stated that it would rely on the arbitrator's resolution of the conflicting evidence despite the fact that the Commission might have resolved the dispute differently. No such inconsistent finding is present in the case before us.
3 Employer next contends that the arbitrator and Commission erred as a matter of law in finding, absent claimant's request to do so, that the accident occurred on a date other than the date alleged by claimant. An arbitrator and the Commission may draw reasonable inferences from the evidence and resolve disputed questions of fact and evidentiary conflicts. (Material Service Corp. v. Industrial Com. (1983), 97 Ill.2d 382, 454 N.E.2d 655.) Claimant testified repeatedly that he was uncertain of the exact date of the accident because he worked irregular hours on various shifts. He originally thought it occurred *222 on November 7 or 14, but later decided it must be November 20 because that was the date on the company report. Claimant emphasized, however, that the accident occurred on the day the Griffith employees were present. Employer's evidence established that the day the Griffith employees were present was November 21. The Commission did not overstep its authority by making a finding regarding the date of the accident. Although the Commission erred in stating that claimant testified he was injured on November 21, the Commission could reasonably infer from all the evidence presented that November 21 was the date of the accident. See General Carbon Co. v. Industrial Com. (1972), 50 Ill.2d 273, 278 N.E.2d 799.
4-6 Employer also contends that the commission's decision to impose penalties under section 19(1) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(1)) is against the manifest weight of the evidence. Section 19(1) provides for the imposition of penalties when the employer "without good and just cause" fails or delays in paying temporary total disability benefits. A delay of more than 14 days creates a rebuttable presumption of unreasonableness. (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(1).) The purpose of imposing penalties under the Act is to expedite compensation of industrially injured workers and penalize an employer who unreasonably, or in bad faith, delays or withholds compensation due to an employee. (Continental Distributing Co. v. Industrial Com. (1983), 98 Ill.2d 407, 456 N.E.2d 847, citing Avon Products, Inc. v. Industrial Com. (1980), 82 Ill.2d 297, 412 N.E.2d 468.) Where a delay in the payment of compensation has occurred, the employer has the burden to demonstrate that the delay was warranted. (Boker v. Industrial Com. (1986), 141 Ill. App.3d 51, 489 N.E.2d 913.) Penalties under the Act may not be imposed on an employer if the nonpayment is based on a reasonable and good faith challenge to liability. (Ford Motor Co. v. Industrial Com. (1984), 126 Ill. App.3d 115, 466 N.E.2d 1221.) This is a factual question, and the Commission's determination will not be disturbed unless it is against the manifest weight of the evidence. Board of Education v. Industrial Com. (1982), 93 Ill.2d 1, 442 N.E.2d 861.
Employer urges the delay in paying benefits was reasonable because the evidence was sufficiently conflicting regarding whether or not an accident ever occurred. We agree, for several reasons. First, the employer was faced with the confusion as to when the accident occurred. On February 9, 1982, claimant filed an application for adjustment of claim stating that the accident occurred on either November 7 or November 14, 1981. That date was not amended to November 20, 1981, until much later. Subsequently, the exact date of the *223 accident was found to be November 21. While claimant clearly stated that the accident occurred on the day the Griffith employees were present, the Griffith employees disclaimed any knowledge of the accident.
Second, the employer was not presented with any accident witnesses. The Griffith employees who were working with claimant when the accident occurred stated that they did not see claimant use any tools or fall. Although claimant said he fell while loosening nuts on the mincemaster, a Griffith employee claimed that he had loosened those nuts himself.
Next, the employer was not notified of the accident, through an accident report made by an employee, or claimant's absenteeism, or claimant's seeking immediate medical treatment. According to the employer's nurse, claimant did not report the accident when he saw her a few days later. Although Staples heard claimant complain of back pain, Staples believed it was due to a lifting injury suffered in connection with his work on the mincemaster. Also, according to Staples, he was not claimant's supervisor that day. Additionally, during the two months following the accident, claimant continued to work overtime and missed only one day of work. Finally, claimant did not begin receiving medical treatment until two months after the injury.
7 Faced with no accident witnesses, no accident report, and no medical treatment until two months after the accident, along with the subsequent confusion as to when the accident occurred, the employer's belief that claimant was not entitled to compensation was not unreasonable. The only reasoning given by the arbitrator for imposing penalties was that the employer had not paid either workers' compensation or group insurance benefits and that the Act was not "intended to allow injured workers to be ensnared by red tape and squabbling between insurance companies." Under the circumstances, this reasoning is insufficient to sustain the award of penalties. We find that the Commission's decision to impose penalties was against the manifest weight of the evidence.
In sum, we find ample evidence to support the Commission's decision that the accident arose out of and in the course of claimant's employment with Swift. Furthermore, we find that the Commission independently reviewed all the evidence before it. The Commission did not err in adopting the findings and decision of the arbitrator, including the finding that the accident occurred on November 21, 1981. However, we hold that the Commission's award of penalties is against the manifest weight of the evidence.
For the foregoing reasons, the judgment of the circuit court of *224 Kane County confirming the Commission's award of temporary total disability is affirmed, and the judgment confirming the Commission's award of penalties is reversed.
Affirmed in part and reversed in part.
WOODWARD, BARRY, McCULLOUGH, and KASSERMAN, JJ., concur.
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19 F.3d 31
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.UNITED STATES of America, Plaintiff-Appellee,v.Carlos Dewayne NASH, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Carlos Dewayne NASH, Defendant-Appellant.
Nos. 93-30249, 93-30251.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 22, 1994.*Decided Feb. 25, 1994.
Before: SCHROEDER, CANBY and WIGGINS, Circuit Judges.
1
MEMORANDUM**
2
In these consolidated appeals, Carlos Dewayne Nash appeals his 108-month sentence imposed following his guilty pleas to distributing cocaine powder in violation of 21 U.S.C. Sec. 841(a)(1) (District Court No. CR-92-144-1-MFM), and failing to appear for sentencing in violation of 18 U.S.C. Sec. 3146(a)(1) (District Court No. 93-47-1-MFM). Nash contends the district court erroneously classified him as a "career offender" by relying in part on a 1983 state burglary conviction which resulted from an invalid no contest plea. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.
3
We review de novo the district court's determination of the voluntariness of a guilty plea, while reviewing for clear error factual findings concerning the prior conviction. United States v. Newman, 912 F.2d 1119, 1123 (9th Cir.1990).
4
When the government seeks inclusion of a prior conviction for enhancement purposes, it must prove the fact of conviction. Id. at 1122. The burden then shifts to the defendant to show the constitutional invalidity of the prior conviction by a preponderance of the evidence. Id.
5
The defendant's waiver of constitutional rights need not be explicit as long as the plea was "voluntary and intelligent." United States v. Carroll, 932 F.2d 823, 824-25 (9th Cir.1991); accord Wilkins v. Erickson, 505 F.2d 761, 765 (9th Cir.1974) (no requirement that state defendant specifically waive each of his constitutional rights for a valid guilty plea).
6
Here, Nash introduced a copy of the plea transcript of his 1983 Oregon state burglary conviction and a copy of his plea petition. The transcript reveals that: (1) Nash was represented by counsel; (2) the state court advised Nash of the charge; (3) Nash read and signed the plea petition; (4) Nash understood that a plea of no contest was the same as a guilty plea; (5) Nash chose to plead "no contest" because of the overwhelming evidence against him; (6) Nash's counsel recited the factual basis for the charge; and (7) Nash understood he had the right to a jury trial. Additionally, the transcript shows that Nash's counsel spoke with Nash for hours about the plea. In the plea petition, Nash acknowledges he understood and waived his constitutional rights.
7
At his federal sentencing, Nash argued that the 1983 conviction resulted from an involuntary plea because the state court failed to inquire whether he understood his constitutional rights by advising him of them on the record.
8
On the basis of this record, and in the absence of any evidence or specific testimony affirmatively supporting Nash's alleged lack of understanding or waiver of these rights, the district court's finding that Nash's plea was knowing and voluntary was not clearly erroneous. See Newman, 912 F.2d at 1124; see also Carroll, 932 F.2d at 824-25. Accordingly, the 1983 burglary conviction was properly considered for purposes of career offender status.
9
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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389 S.C. 107 (2010)
697 S.E.2d 634
SUSAN R., Respondent,
v.
DONALD R., Appellant.
No. 4693.
Court of Appeals of South Carolina.
Submitted April 1, 2010.
Decided June 2, 2010.
*109 Christopher Paul Thompson and David Michael Collins, Jr., both of Spartanburg, for Appellant.
*110 Richard H. Rhodes and Ruth L. Cate, both of Spartanburg, for Respondent.
WILLIAMS, J.
In this appeal, Donald R. (Husband) contends the family court erred by (1) requiring Husband to pay Susan R.'s (Wife) premarital medical expenses and costs; (2) imputing additional income to Husband; and (3) awarding attorneys' fees to Wife. We affirm as modified.[1]
FACTS
On June 22, 2006, Wife filed for divorce on the grounds of Husband's adultery and habitual drunkenness. In Wife's complaint, she sought, inter alia, custody of the parties' children, child support, contribution for their children's uncovered medical expenses, equitable distribution of the parties' assets and debts, alimony, restraining orders, and attorneys' fees. Husband counterclaimed, seeking a decree of separate maintenance and support and requesting custody, child support, contribution for their children's uncovered medical expenses, equitable division of their assets and debts, restraining orders, and attorneys' fees.
The majority of Husband's and Wife's claims were resolved in the parties' settlement agreement, which the family court approved at the final hearing. During the final hearing on May 5 and 6, 2007, the family court heard testimony regarding several outstanding issues not agreed upon by Husband and Wife, namely the parties' income for purposes of computing child support, responsibility for payment of Wife's medical bills, and attorneys' fees.
In its subsequent divorce decree dated June 7, 2008, the family court made the following findings of fact and conclusions of law relevant to this appeal: (1) Husband and Wife married on May 24, 2004, in Spartanburg County; (2) the parties had two children together, one child being born during the marriage and the other child being born prior to the marriage; (3) several witnesses, including two of Husband's *111 paramours, admitted to engaging in an adulterous relationship with Husband, thus entitling Wife to a divorce on the grounds of adultery; (4) Wife waived her claim for alimony; (5) for purposes of child support, Husband's gross monthly income from his employment with Mitsubishi Polyester Film was $4,651.66, which included $100 per month in proceeds from a rental property and $400 per month from Husband's part-time farrier business; (6) Wife's gross monthly income as a nurse was $2,849.41; (7) the $18,542.13 in debt for Wife's surgery at Spartanburg Regional Medical Center was a result of Wife's miscarriage; thus, it was a marital debt, despite being incurred prior to the parties' marriage; and (8) Husband was responsible for paying half of Wife's attorneys' fees.
Husband timely filed a Rule 59(e), SCRCP, motion, arguing the family court erred in its award of attorneys' fees, imputation of additional income to Husband, and requirement for supervised visitation with the parties' children. The family court denied Husband's Rule 59(e) motion.[2] This appeal followed.
STANDARD OF REVIEW
On appeal from a family court order, this court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence. E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992). When reviewing decisions of the family court, we are cognizant that the family court had the opportunity to see the witnesses, hear "the testimony delivered from the stand, and had the benefit of that personal observance of and contact with the parties which is of peculiar value in arriving at a correct result in a case of this character." DuBose v. DuBose, 259 S.C. 418, 423, 192 S.E.2d 329, 331 (1972).
ISSUES ON APPEAL
Husband claims the family court erred by (1) requiring Husband to pay Wife's premarital medical expenses and costs; *112 (2) imputing additional income to Husband for purposes of child support; and (3) requiring Husband to pay $13,000 of Wife's attorneys' fees. We affirm as modified.
LAW/ANALYSIS
I. Wife's Medical Expenses
Husband contends the family court lacked jurisdiction to order Husband to pay a portion of Wife's medical bills because the surgery occurred prior to the parties' marriage; thus, it was a nonmarital debt. We disagree.
The family court found Wife's medical bill from Spartanburg Regional Medical Center for $18,542.13 was a marital debt because although the surgery occurred prior to the parties' marriage, it related to the miscarriage of Husband and Wife's child. Therefore, it was a shared expense of the parties. While we agree with the family court's decision to require Husband to contribute towards the repayment of this debt, we modify the family court's classification of this debt as marital because the surgery occurred prior to the parties' marriage. See Wooten v. Wooten, 364 S.C. 532, 546, 615 S.E.2d 98, 105 (2005) (citing S.C.Code Ann. § 20-7-472(13) (Supp.2004)) (currently S.C.Code Ann. § 20-3-620(13) (Supp.2009)) (stating marital debts include, among other things, "any other existing debts incurred by the parties or either of them during the course of the marriage").
Despite the acquisition of this debt prior to the parties' marriage, we find this debt would not have occurred but for Husband and Wife's relationship, which merits Husband's participation in its repayment. See S.C.Code Ann. § 20-5-60 (Supp.2007) ("A husband shall not be liable for the debts of his wife contracted prior to or after their marriage, except for her necessary support and that of their minor children residing with her."); see also Richland Mem. Hosp. v. Burton, 282 S.C. 159, 160-61, 318 S.E.2d 12, 13 (1984) (reaffirming common law doctrine requiring a husband to be responsible for necessary debts incurred by a wife prior to and during marriage and holding a hospital could initiate a collection action against husband for medical services rendered to deceased wife based on this doctrine).
*113 Furthermore, the family court has jurisdiction "to include in the requirements of an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, both before and after [] birth, ... and other proper and reasonable expenses...." S.C.Code Ann. § 63-3-530(15) (Supp.2009) (emphasis added). Section 63-3-530(15) grants the family court exclusive jurisdiction to include in any support order a provision for payment of medical expenses and hospital bills that are attendant to childbirth. Regardless of whether Husband and Wife were married on the date of the surgery, Wife's hospital bill was a direct result of her pregnancy and ensuing miscarriage,[3] and the procedure was necessary to Wife's health. Not requiring Husband to share in the responsibility for defraying this expense would thwart the ultimate goal of ensuring a just, equitable, and fair outcome to both parties. Thus, we conclude the family court had jurisdiction, and consequently the authority, to order Husband to pay half of Wife's hospital bill.
II. Imputing Income to Husband
Next, Husband claims Wife presented insufficient evidence regarding Husband's farrier business and rental property to justify the family court's decision to impute additional income to Husband for purposes of calculating his child support obligations. We disagree.
Child support awards are within the family court's sound discretion and, absent an abuse of discretion, will not be disturbed on appeal. Mitchell v. Mitchell, 283 S.C. 87, 92, 320 S.E.2d 706, 710 (1984). An abuse of discretion occurs when the family court's decision is controlled by some error of law *114 or when the order, based upon the findings of fact, is without evidentiary support. Kelley v. Kelley, 324 S.C. 481, 485, 477 S.E.2d 727, 729 (Ct.App.1996).
Generally, the family court determines gross income for purposes of calculating child support based upon the financial declarations submitted by the parties. S.C.Code Ann. Regs. 114-4720(A)(6) (Supp.2009). "Gross income includes income from any source including salaries, wages, commissions, royalties, bonuses, [and] rents (less allowable business expenses)...." S.C.Code Ann. Regs. 114-4720(A)(2) (Supp. 2009). Additionally, "[u]nreported cas[h] income should also be included if it can be identified." Id. When income reflected on the financial declaration is at issue, the family court may rely on suitable documentation to verify income, such as pay stubs, employer statements, receipts, or expenses covering at least one month. Regs. 114-4720(A)(6).
We note neither Husband's 2006 financial declaration nor his 2007 income tax return reflected any income from his farrier business or rental property. As a result, it was proper for the family court to consider invoices from Husband's farrier business for purposes of calculating his child support obligation. At the final hearing, Wife introduced invoices from 2004 until 2006 that documented Husband's yearly and monthly income from his farrier business. Wife testified Husband charged between $75 and $135 per horse and shoed horses almost every day of the week. Husband did not contest the validity of the invoices Wife submitted, but he stated he typically charged $50 per horse, which netted him approximately $110 every two weeks based on his current workload. Husband also discussed the ordinary and necessary expenses he incurred as part of running his farrier business during his testimony. In explaining the large discrepancies between his current earnings and past profits, Husband stated his income from the farrier business had decreased because he was spending more time with his son, and the increased cost of gas prevented him from shoeing as many horses as he had in the past.
In regards to Husband's rental property, Husband stated he had not rented his mobile home in more than two years, but when he did rent it, he was charging $450 per month in rent *115 and was splitting the proceeds with his father who owns the land.[4] Husband contended, however, that he was unable to currently rent the property because it needed "a lot of work to get it where it can be rented." Wife also stated Husband rented out the mobile home for between $400 and $475 per month when she filed for divorce, but it was unoccupied on the date of the final hearing, despite Husband's ability to rent it. Husband estimated it cost him approximately $100 per month to maintain the mobile home and surrounding property.
After considering the parties' testimony and the submitted invoices, the family court concluded Husband earned $921.75 per month in 2004,[5] $1,459.33 per month in 2005, and $1,578.50 per month in 2006. In its decision to impute additional income to Husband, the family court acknowledged the parties' conflicting testimony and determined Husband should be attributed an additional $400 per month from his farrier business and $100 per month for his rental property.
Based on the evidence adduced at the final hearing, the family court did not abuse its discretion in determining Husband's gross income. The documented monthly income from Husband's farrier business was far greater than the $400 actually imputed to Husband, which demonstrates the family court took Husband's expenses and varied workload into consideration in its decision. Furthermore, Husband failed to account for this income in either his financial declaration or his most recent tax return. As a result, the family court did not err in relying on these invoices as they were the most reliable source for computing Husband's gross income. See Regs. 114-4720(A)(6); see also Spreeuw v. Barker, 385 S.C. 45, 66-67, 682 S.E.2d 843, 853-54 (Ct.App.2009) (upholding family court's decision to deviate from the father's most recent financial declaration in imputing additional income to the father for child support purposes where financial declaration understated father's gross income).
*116 As to the $100 attributed to Husband from his rental property, both Husband and Wife stated Husband had rented the mobile home in the past for approximately $450 per month. While Husband and Wife differed on whether the mobile home was currently suitable for rental purposes, Husband conceded that he had a tenant one month prior to Wife filing for divorce and that he lived in the mobile home during the pendency of the marital litigation. Furthermore, Husband's own testimony indicates he actually earned $250 per month from the rental property after taking into consideration deductions for maintenance and use of the surrounding property.[6] Because the family court has the authority to include rent for purposes of calculating gross income, we discern no error in the family court's decision to impute this amount to Husband. See Regs. 114-4720(A)(2) ("Gross income includes income from any source including rents (less allowable business expenses)....").
III. Attorneys' Fees
Last, Husband argues Wife was not entitled to attorneys' fees. In the alternative, Husband contends the family court's award of attorneys' fees was unreasonable and excessive pursuant to Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 313 (1991).
"An award of attorneys' fees and costs is a discretionary matter not to be overturned absent abuse by the trial court." Donahue v. Donahue, 299 S.C. 353, 365, 384 S.E.2d 741, 748 (1989). In order to award attorneys' fees, a court should consider several factors including: (1) ability of the party to pay the fees; (2) beneficial results obtained; (3) financial conditions of the parties; and (4) the effect a fee award will have on the party's standard of living. E.D.M., 307 S.C. at 476-77, 415 S.E.2d at 816. In determining the amount of attorneys' fees, the family court should consider the nature, extent, and difficulty of the services rendered, the time necessarily devoted to the case, the professional standing of counsel, the contingency of compensation, the beneficial results obtained, *117 and the customary legal fees for similar services. Glasscock, 304 S.C. at 161, 403 S.E.2d at 315.
At the final hearing, Wife's attorney submitted a fee affidavit documenting fees of $26,155.15. Husband did not object to the affidavit or attempt to cross-examine Wife or her attorney on any portion of the affidavit at the final hearing. Citing to Glasscock in its final order, the family court required Husband to pay $13,000 of Wife's attorneys' fees because the results were beneficial, the fee was reasonable, Husband was at fault, and he had the ability to contribute.
Husband first claims Wife is not entitled to attorneys' fees because he successfully defended against some of Wife's claims. Even though Husband may have prevailed on some issues, Wife obtained beneficial results regarding child custody, child support, Husband's adultery, and her entitlement to a portion of Husband's pension and 401(k) plan. See Golden v. Gallardo, 295 S.C. 393, 395, 368 S.E.2d 684, 685 (Ct.App.1988) (finding the family court properly awarded the mother a portion of her fees and costs in suit brought by father to enforce visitation rights when both parties prevailed on some issues). Husband is correct in his contention that his fault in causing the break-up of the marriage should not be a factor in awarding attorneys' fees. See Doe v. Doe, 370 S.C. 206, 219, 634 S.E.2d 51, 58 (Ct.App.2006) ("A party's fault in causing a divorce ... is not a factor to be considered when awarding attorney's fees."). Regardless of Husband's adultery, it is evident from the record Husband has a greater ability to pay the fees based on his superior income, which necessarily affects his ability to pay the award and the effect of the award on his standard of living. Taking these factors into consideration, we do not find the family court erred in ordering Husband to contribute towards Wife's attorneys' fees.
Regarding Husband's argument on the reasonableness of Wife's fees, we do not believe the amount awarded by the family court was excessive. We note the family court did not make specific findings on all six factors from Glasscock in its order as it is required to do pursuant to Rule 26(a), SCFCR. See Griffith v. Griffith, 332 S.C. 630, 646-47, 506 S.E.2d 526, 534-35 (Ct.App.1998) (remanding issue of attorneys' fees because *118 of family court's failure to set forth specific findings of fact on each of the six required factors to be considered in determining the amount of the fees pursuant to Glasscock). Specifically, Rule 26(a) directs: "An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court's decision."
However, we find the record is sufficient to affirm the fees award based on the family court's order and Wife's affidavits concerning costs and fees. See Holcombe v. Hardee, 304 S.C. 522, 524, 405 S.E.2d 821, 822 (1991) (stating that when an order from the family court is issued in violation of Rule 26(a), SCRFC, the appellate court "may remand the matter to the trial court or, where the record is sufficient, make its own findings of fact in accordance with the preponderance of the evidence"). The family court enumerated four of the six factors from Glasscock, and Wife's counsel's affidavit demonstrates her fees and hours were reasonable in light of the length of the litigation and her experience and professional standing within the legal community. Accordingly, we affirm the reasonableness of Wife's fees based on our review of the record.
Husband also takes specific issue with certain fees assessed for time that Wife's counsel billed relating to a rule to show cause hearing and a separate DSS action. This issue is not preserved for our review because Husband did not object to the affidavit or attempt to cross-examine Wife's attorney on those issues at the final hearing. See King v. King, 384 S.C. 134, 145, 681 S.E.2d 609, 615 (Ct.App.2009) (noting husband's objection to Wife's affidavit documenting her attorney's fees was untimely because he never objected or attempted to cross-examine Wife's counsel on the affidavit at the final hearing). Furthermore, while Husband generally contested the attorneys' fees award in his Rule 59(e), SCRCP, motion on the grounds the award was excessive, he failed to specifically object to the propriety of including these fees at the final hearing. See Hickman v. Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct.App.1990) ("A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not."). As a result, we decline to address this particular argument on appeal. See *119 Doe, 370 S.C. at 212, 634 S.E.2d at 55 (finding wife failed to preserve argument when she did not raise the issue specifically at the final hearing or in her Rule 59(e) motion and only generally asserted the decree was unsupported by the evidence).
IV. Conclusion
Based on the foregoing, we affirm the family court's decision to impute additional income to Husband for purposes of calculating child support and to require Husband to pay half of Wife's attorneys' fees. Additionally, we modify the portion of the family court's order regarding its classification of Wife's medical expenses as marital debt but affirm its decision to divide the debt equally between the parties.
Accordingly, the family court's decision is
AFFIRMED AS MODIFIED.
SHORT and LOCKEMY, JJ., concur.
NOTES
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.
[2] The family court did modify one paragraph in its order by permitting Husband to petition the family court to terminate supervised overnight visitation with his children once a psychiatrist informed both parties' attorneys in writing that Husband no longer needed supervised overnight visitation.
[3] Husband argues the primary purpose of the surgery was to remove Wife's gallbladder, and Wife failed to provide any medical records to substantiate her testimony that the surgery related to her miscarriage. Despite Wife's failure to supplement the record with medical documentation, we believe both parties' testimony sufficiently establishes that the surgery was a direct result of Wife's miscarriage. Additionally, Husband failed to contest the source of this debt or Wife's lack of documentation after the final hearing, despite his ability to do so by way of a post-trial motion. See Kneece v. Kneece, 296 S.C. 28, 33, 370 S.E.2d 288, 291 (Ct.App.1988) (finding a party's failure to move pursuant to Rule 59(e) to have the family court amend its decree to consider the issue of transmutation prevented consideration of issue on appeal).
[4] Husband later testified he only gave his father $100 per month, as opposed to $225 per month, from the rent he collected on the mobile home.
[5] The family court's order misstated Husband's 2004 income, as the 2004 invoice for Husband's farrier business reflected monthly earnings of $851.50 as opposed to $921.75. Despite this apparent scrivener's error, we discern no error in the family court's overall award.
[6] Husband testified it cost him approximately $100 per month to maintain the property, and he paid his father $100 per month for use of the surrounding property.
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922 F.2d 839
Falkenhagenv.Foti*
NO. 90-3671
United States Court of Appeals,Fifth Circuit.
DEC 27, 1990
1
Appeal From: E.D.La.
2
DISMISSED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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560 F.Supp. 202 (1983)
Dorlesca SALANGER, Plaintiff,
v.
U.S. AIR, Defendant.
No. 81-CV-542.
United States District Court, N.D. New York.
January 7, 1983.
R.J. & P.R. Shanahan, Syracuse, N.Y., for plaintiff.
Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, N.Y., for defendant.
MEMORANDUM-DECISION and ORDER
MINER, District Judge.
I
This action arises out of the allegedly wrongful discharge of plaintiff from her position of employment with defendant. Jurisdiction in this Court is invoked pursuant to the provisions of 28 U.S.C. § 1332, and the amount in controversy is alleged to exceed the sum of $10,000, exclusive of interest and costs. Before the Court is defendant's motion for summary judgment *203 pursuant to Fed.R.Civ.P. 56(b)[1] dismissing the complaint.
II
In early 1967, plaintiff enlisted the aid of an employment agency to secure a position with Mohawk Airlines, defendant's predecessor in interest. Upon completion of an unsalaried training period, plaintiff was placed on Mohawk's payroll on April 29, 1967 and began her probationary period of employment. During this initial period, plaintiff worked in Syracuse, New York as an "Airline Reservationist." In 1972, Mohawk Airlines merged with Allegheny Airlines, and plaintiff continued in her position as an Airline Reservationist. Plaintiff then applied for, and in 1978 was granted, a transfer to Allegheny's facility at Hancock Airport. After the transfer, she assumed the position of "Customer Service Agent." Plaintiff continued in this position after defendant acquired Allegheny Airlines.
Sometime in 1980, defendant, through its Security Department and Customer Service Department, conducted an investigation of plaintiff's possible involvement in an alleged misappropriation of company funds. Plaintiff was suspended from her position during the pendency of this investigation. Eventually, based upon the findings of the investigation, a criminal complaint was filed charging plaintiff with the crime of grand larceny in the third degree,[2] and a warrant for plaintiff's arrest was issued by a Town of DeWitt justice. Pursuant to this warrant, plaintiff was arrested on September 10, 1980 and arraigned in the Town of DeWitt Justice Court. Thereafter, on September 24, 1980, plaintiff received a letter from defendant, dated September 19, 1980, notifying her that defendant's investigation had been completed and that her period of employment with defendant was terminated.
In accordance with the Personnel Policy Guide[3] issued by defendant, plaintiff exhausted the three grievance steps available to her. However, at the termination of the grievance proceedings, defendant adhered to its original determination to discharge plaintiff.
Finally, on March 10, 1981, a grand jury in Onondaga County dismissed the charge of grand larceny in the third degree against plaintiff pursuant to New York Criminal Procedure Law § 190.75.[4] Plaintiff then applied to defendant for reinstatement, but was again refused her former position, or any other position.
In her complaint, plaintiff alleges that, "[t]he actions of the defendant, in discharging this plaintiff and causing her arrest, were not in good faith and constituted the prima facie tort of wrongful discharge." (Complaint, ¶ 6). Moreover, plaintiff contends, "[t]hat, following the dismissal of said criminal charge against the plaintiff, she applied to the defendant for reinstatement of her employment with this defendant and her application therefor was summarily rejected, in violation of § 296, subdivision 16, of the Executive Law of the State of New York, which defines such action of *204 the defendant as an unlawful discriminatory practice and in violation of § 160.60 of the Criminal Procedure Law of the State of New York." (Id., ¶ 9).
III
Summary judgment is a drastic remedy which should be granted only when it is clear that the requirements of Fed.R.Civ.P. 56 have been satisfied. United States v. Bosurgi, 530 F.2d 1105, 1110 (2d Cir.1976). Moreover, "[s]ummary judgment is to be used not as a substitute for trial, but only when `... it is quite clear what the truth is [and] that no genuine issue remains for trial.' Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944)." Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 184-185 (8th Cir.1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977). Indeed, the reviewing court must accept as true the factual statements in the opposing party's affidavits, draw all permissible inferences in that party's favor, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir.1980), and resolve any doubts in favor of the latter, American Mfrs. Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir.1967). In short, the movant has the dual burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Here, defendant has only partially met this heavy burden.
IV
To date, the tort of "abusive discharge" or "wrongful discharge" has not become a part either of New York's common law or its statutory law. Murphy v. American Home Products Corp., 88 A.D.2d 870, 451 N.Y.S.2d 770, 771 (1st Dep't 1982), modifying 112 Misc.2d 507, 447 N.Y.S.2d 218 (Sup. Ct.N.Y.Co.1982). However, some lower courts in New York have indicated their willingness to recognize the tort of abusive discharge if presented with appropriate circumstances. See, e.g., Fletcher v. Greiner, 106 Misc.2d 564, 435 N.Y.S.2d 1005 (Sup.Ct. Nassau Co.1980); Chin v. American Telephone & Telegraph Co., 96 Misc.2d 1070, 410 N.Y.S.2d 737, (Sup.Ct.N.Y.Co.) affirmed without opinion, 70 A.D.2d 791, 416 N.Y. S.2d 160 (1st Dep't 1979), motion for leave to appeal denied, 48 N.Y.2d 603, 421 N.Y. S.2d 1028, 396 N.E.2d 207 (1979).
Significantly, both the Fletcher court and the Chin court recognized that the tort of abusive discharge has not yet been recognized in New York. Fletcher v. Greiner, supra, 435 N.Y.S.2d at 1010; Chin v. American Telephone & Telegraph Co., supra, 410 N.Y.S.2d at 740. However, in discussing the tort of abusive discharge as it has developed in other jurisdictions, the Chin court noted that, "[u]nder this theory the interest of the employer in the exercise of his unfettered right to terminate an employee under a contract at will is balanced against the interest of the community in upholding its laws and public policy." (citations omitted) Id. 410 N.Y.S.2d at 740. The court then indicated what it believed would be the two part test employed to determine whether a plaintiff established the tort of abusive discharge: "At the threshold, the doctrine of abusive discharge places upon the plaintiff the burden of persuading this court that (1) there is a public policy of this state that (2) was violated by the defendant." Id. 410 N.Y.S.2d at 741. Although each expressed its willingness to do so, neither the Fletcher court nor the Chin court found, on the facts presented, that plaintiff had established the tort of abusive discharge.
Relying principally on Chin, as well as on what is perceived to be a growing trend in other jurisdictions to recognize the tort of abusive discharge, several federal courts have expressed their opinion that the New York Court of Appeals, if confronted squarely with the issue, would now recognize the tort of abusive discharge. See, e.g., Sherman v. St. Barnabas Hospital, 535 F.Supp. 564, 571 (S.D.N.Y.1982); Brink's Inc. v. City of New York, 533 F.Supp. 1123, 1125 (S.D.N.Y.1982); Placos v. Cosmair, Inc., 517 F.Supp. 1287, 1289 (S.D.N.Y.1981); Savodnik v. Korvettes, Inc., 488 F.Supp. 822, 824-826 (E.D.N.Y.1980). This Court *205 believes, however, that a change in New York's law, such as the recognition of a tort which for the past 90 years has not been recognized by the New York Court of Appeals, should not be brought about by a federal district court deciding issues of state law solely by virtue of the diversity of citizenship of the parties before it. Accord, Boniuk v. New York Medical College, 535 F.Supp. 1353 (S.D.N.Y.1982). Here, the established law of New York is clear: "hirings for an unspecified or indefinite period are freely terminable at the will of either party." Id. at 1356, citing James v. Board of Education, 37 N.Y.2d 891, 378 N.Y.S.2d 371, 340 N.E.2d 735 (1975); Parker v. Borock, 5 N.Y.2d 156, 182 N.Y.S.2d 577, 156 N.E.2d 297 (1959); and Martin v. New York Life Ins. Co., 148 N.Y. 117, 42 N.E. 416 (1895). See also Pavolini v. Bard Air Corp., 88 A.D.2d 714, 451 N.Y.S.2d 288, 289 (3rd Dep't 1982):
We find no case in this State wherein a cause of action for abusive discharge based on a violation of public policy has been sustained and we are unable to subscribe to such a cause of action in light of the well-established principle that an at will employee may be discharged at any time without cause.
Moreover, the New York Court of Appeals has recently declined another opportunity in which to indicate its willingness now to recognize the tort of abusive discharge. Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 462, 457 N.Y.S.2d 193, 443 N.E.2d 441 (N.Y. Ct.App.1982).
Taking into account New York's long history of non-recognition of the tort of abusive discharge, coupled with the New York Court of Appeals' failure to address this question, this Court declines to prophesize that the law of New York is about to be changed by that State's highest tribunal. Accordingly, defendant is entitled to summary judgment dismissing plaintiff's claim for abusive discharge.
V
New York Executive Law § 296(16)[5] protects an individual from the adverse effects of an arrest which has not resulted in a conviction. The statute's objective is unquestionably a laudable one, since
`the mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed ... whatever probative force the arrest may have had is normally dissipated ... Schware v. Board of Bar Examiner, 353 U.S. 232, 241 [77 S.Ct. 752, 757, 1 L.Ed.2d 796] (1957). Furthermore, `arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a person. It happens to the innocent as well as the guilty.' Michelson v. United States, 335 U.S. 469, 482 [69 S.Ct. 213, 221, 93 L.Ed. 168], (1948), see also Pennex v. United States, 313 F.2d 524 (4th Cir.1963). (sic)
Letter of the New York Civil Liberties Union to Governor Carey supporting passage of Bill # S9924A, now Executive Law § 296(16).
In support of its instant motion for summary judgment, defendant contends that,
the legislative history, and indeed logic, supports the conclusion that section 296(16) was enacted to deal with the situation of an arrest occurring other than within the employment context, where an ultimate disposition favorable to the employee *206 results. Clearly in that instance, the mere fact of an arrest, being wholly unrelated to the employment relationship, should not adversely affect an employee. Where, however, as here the underlying facts of the arrest occur within the employment setting, the employee should not be shielded from discharge by virtue of Executive Law § 296(16) and Criminal Procedure Law § 160.60.
Memorandum in Support of Defendant's Motion for Judgment on the Pleadings Dismissing Plaintiff's Complaint, pp. 5-6. However, nothing in the language of the statute supports defendant's position and defendant has cited no case law in support of its contention. Accordingly, in keeping with the remedial purpose of § 296(16), this Court declines to preclude its application to the situation at bar.
Section 296(16) does not prevent an employer from acting adversely with respect to an employee if such action is motivated by bona fide business reasons not otherwise proscribed by the statute. Stewart v. Civil Service Commission of the City of New York, 84 A.D.2d 491, 446 N.Y.S.2d 948 (1st Dep't 1982); Winthrop Laboratories Division of Sterling Drug, Inc. v. New York State Human Rights Appeal Board, 64 A.D.2d 725, 406 N.Y.S.2d 897 (3rd Dep't 1978). Here, this Court cannot say, as a matter of law, that defendant's failure to rehire plaintiff, after the criminal charges against her were dismissed, was not motivated by plaintiff's arrest. It well may be that defendant's decision not to rehire plaintiff was occasioned by the results of its independent, internal investigation into plaintiff's alleged misconduct. However, defendant's decision just as easily could have been motivated by the arrest. The need to resolve this factual issue precludes a grant of summary judgment on plaintiff's Executive Law claim at this time. Fed.R. Civ.P. 56(c).[6]
VI
As indicated, defendant's motion for judgment on the pleadings, Fed.R.Civ.P. 12(c), was converted to one for summary judgment, Fed.R.Civ.P. 56(b), to enable this Court to consider matter outside the pleadings. Pursuant to the Court's instructions, both parties have availed themselves of the opportunity to submit additional material in support of their respective positions. In this regard, plaintiff has submitted an affidavit alleging, inter alia, that defendant, through its predecessor in interest, orally assured plaintiff that she could be discharged for "just cause" only. (Affidavit of Dorlesca Salanger, ¶ 4). Plaintiff is apparently attempting to establish defendant's breach of an oral contract between the parties. See McGraw-Hill, supra. Although plaintiff may indeed be able to establish *207 such a contract and its breach here, she has pleaded no grounds to support a breach of contract claim in the instant complaint, and this Court cannot imply one for her. See Fed.R.Civ.P. 8. Accordingly, this Court's disposition of defendant's summary judgment motion is in no way concerned with any breach of contract claim which plaintiff might be able to assert in a properly pleaded complaint.
VII
For the foregoing reasons, defendant's motion for summary judgment, Fed.R. Civ.P. 56(b), is granted with respect to plaintiff's claim for abusive discharge. With respect to plaintiff's claim pursuant to New York Executive Law § 296(16), the motion is denied.
It is so Ordered.
NOTES
[1] Defendant originally moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). On the return date of that motion, December 3, 1982, this Court converted the motion to one for summary judgment pursuant to Fed.R. Civ.P. 56(b) and afforded the parties an additional two weeks in which to submit supplemental materials.
[2] New York Penal Law § 155.30.
[3] Defendant's predecessors in interest had employed a similar manual to inform their employees of assorted rights which would be afforded them during their course of employment.
[4] New York Criminal Procedure Law § 190.75(1) provides:
If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge....
A dismissal pursuant to § 190.75 is a termination of a criminal proceeding in favor of an individual within the meaning of N.Y.Crim. Proc.Law § 160.50, and therefore satisfies the requirements of N.Y.Exec.Law § 296(16).
[5] N.Y.Exec.Law § 296(16) provides:
It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons.
[6] Along with her N.Y.Exec.Law § 296(16) claim, plaintiff contends that defendant's failure to rehire her violated the provisions of N.Y.Crim.Proc.Law § 160.60, which provides:
Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.50 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.
This section, however, was intended to "dovetail" with the provisions of N.Y.Crim. Proc.Law §§ 160.50 and 160.55. See Practice Commentary to § 160.60 by Joseph W. Bellacosa. These latter provisions provide the mechanics for the sealing of records, etc., upon the termination of criminal proceedings in an accused's favor. This Court believes that the legislative intent in enacting these provisions and the remainder of Article 160 of the Criminal Procedure Law was to provide only the mechanics for protecting an individual who has been arrested, but never convicted, not to establish a private cause of action on behalf of such an individual. Cf. Cort v. Ash, 422 U.S. 66 [95 S.Ct. 2080, 45 L.Ed.2d 26] (1975) (factors for implying a private federal cause of action); and N.Y.Exec.Law § 297(9) (providing expressly for a private cause of action based upon an alleged unlawful discriminatory practice). Accordingly, this Court does not interpret plaintiff's reference to N.Y.Crim.Proc.Law § 160.60 as an assertion of a claim independent of her claim asserted pursuant to N.Y.Exec.Law § 296(16).
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753 F.2d 1079
Desrisv.City of Kenosha, Wis.
83-1771
United States Court of Appeals,Seventh Circuit.
1/28/85
1
E.D.Wis.
VACATED AND REMANDED
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51 F.3d 280
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.Robert Eldridge JENNISON, Petitioner-Appellant,v.B.D. GOLDSMITH, Warden, et al., Respondents-Appellees.
No. 94-16532.
United States Court of Appeals, Ninth Circuit.
Submitted March 21, 1995.*Decided March 27, 1995.
Before: SNEED, POOLE, and BRUNETTI, Circuit Judges.
1
MEMORANDUM**
2
Robert Eldridge Jennison appeals pro se denial of his 28 U.S.C. Sec. 2254 habeas corpus petition challenging his conviction for four counts of child molestation and his fifty-six year sentence. Jennison contends that the district court erred by finding some of his claims procedurally barred and denying others on their merits. We have jurisdiction under 28 U.S.C. Sec. 2253, and we affirm.
3
Jennison was convicted, following a guilty plea, in 1982. He filed a direct appeal in the Arizona Court of Appeals and unsuccessfully petitioned for review before the Arizona Supreme Court. In 1984, he filed an Ariz.R.Crim.P. 32 petition for post-conviction relief. The trial court denied the petition, and the court of appeals denied Jennison's petition for review. In 1986, Jennison filed a second Rule 32 petition, which the trial court denied. The Arizona Supreme Court denied his petition for special action.
4
On November 20, 1986, Jennison filed his federal habeas petition, raising the following six claims: (1) he was denied the right to be advised of the charges against him, (2) the trial court lacked jurisdiction, (3) his guilty plea was not knowing and voluntary, (4) he was denied effective assistance of trial counsel, (5) the trial judge was mentally incompetent, and (6) he was denied effective assistance of appellate and post-conviction counsel. The district court dismissed the petition for failure to exhaust state remedies because of Jennison's failure to seek review in the Arizona Supreme Court. We reversed and remanded for a determination of whether Jennison's claims were procedurally barred. Jennison v. Goldsmith, 940 F.2d 1308 (9th Cir.1991) (per curiam).
5
On remand, the district court found some of Jennison's claims procedurally barred because he did not raise them in the Arizona Court of Appeals either on direct appeal or in his Rule 32 petition. The district court denied Jennison's other claims on their merits.
Procedural Bar
6
Jennison contends that the district court erred by finding the following claims procedurally barred: (1) the trial court lacked jurisdiction, (2) he was denied effective assistance of counsel when his attorney failed to advise him of the charges against him, and failed to contest the presentence report, and (3) he was denied effective assistance of post-conviction counsel.
7
A federal habeas petitioner must exhaust state remedies by fairly presenting his claims to the state supreme court. Harmon v. Ryan, 959 F.2d 1457, 1460 (9th Cir.1992). "Where direct review is available in the state's highest court, failure to seek such review constitutes a procedural default even if review was afforded in the state's lower courts." Id. at 1461. Generally, the federal courts will not consider procedurally defaulted claims absent a finding of cause and prejudice. Id. When, however, "there is reason for confusion or uncertainty with respect to state procedures, a procedural default may be inadequate to bar federal habeas relief." Id. at 1462.
8
The Arizona Supreme Court's decision in State v. Shattuck, 684 P.2d 154 (Ariz.1984), created such confusion by erroneously instructing prisoners that state remedies were exhausted upon review by the Arizona Court of Appeals. Harmon, 959 F.2d at 1463; Jennison, 940 F.2d at 1311. Thus, prisoners who appealed to the court of appeals but failed to seek review in the state supreme court after Shattuck may obtain federal review of their claims. Harmon, 959 F.2d at 1463.
9
Jennison did not raise on direct appeal his claim regarding the trial court's jurisdiction, nor did he raise it in his first Rule 32 petition. In the Rule 32 petition, Jennison claimed that trial counsel was ineffective for failing to challenge the presentence report, but not for the same reason that he sets forth in his federal habeas petition. Accordingly, the Harmon exception does not apply as to these claims. Cf. id. Jennison raised the ineffective assistance of post-conviction counsel in his second Rule 32 petition, but the trial court found this claim barred, and the Arizona Supreme Court declined to accept jurisdiction over Jennison's petition for special action. The district court did not err by dismissing that claim as procedurally barred. See id. at 1461.1
10
We conclude, however, that Jennison raised the other part of the ineffective assistance of trial counsel claim in the Arizona Court of Appeals, and so his procedural default on that claim is excused. See id. at 1463. In his pro se supplemental direct appeal brief, Jennison claimed:
11
When Appellant asked his attorney what evidence they had against him, he was simply told "it's overwhelming", but he was never told what the evidence was. When Appellant asked his attorney how they could possibly have five counts against him, he was told, "They did it!" Appellant had no way of knowing what he was charged with on the last three counts, or what evidence there was against him on any charges, and could not possibly have understood the merits of his case.
12
We nonetheless affirm the denial of this claim on the basis that it lacks merit, as discussed below.
Charging Errors and Guilty Plea
13
Jennison contends that he was denied the right to be advised of the charges against him. If Jennison's guilty plea was valid, then this claim regarding a pre-plea constitutional violation is foreclosed. See Ortberg v. Moody, 961 F.2d 135, 137-38 (9th Cir.), cert. denied, 113 S.Ct. 225 (1992).
14
Jennison contends that his guilty plea was unknowing and involuntary because he was not informed of the charges to which he pleaded. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969) (to comport with due process, guilty plea must be voluntary and intelligent); see also Brady v. United States, 397 U.S. 742, 748 (1970) (defendant must be aware of nature and elements of charges). The transcript of the plea hearing refutes this contention. The trial court twice informed Jennison that he was charged with four counts of child molestation, and recited the specific allegations regarding Jennison's acts in connection with each count. Jennison testified that he committed each of the acts. See Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir.1986) (defendant's statements made in open court at time of plea are entitled to great weight).
Ineffective Assistance of Trial Counsel
15
Jennison contends that trial counsel provided ineffective assistance. This contention lacks merit.
16
To establish ineffective assistance of counsel, a defendant must establish the counsel's performance was deficient and the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption that an attorney's conduct fell within "the wide range of reasonable professional assistance." Id. at 689. To establish prejudice, the defendant must show that but for counsel's errors, the outcome of the proceedings would have been different. Id. at 687; see also Lockhart v. Fretwell, 113 S.Ct. 838, 844 (1993) (question is whether counsel deficient performance rendered proceeding fundamentally unfair). For claims in connection with guilty pleas, the defendant must show that but for counsel's errors, he would not have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 58 (1985).
17
Jennison contends that counsel was ineffective because he failed to advise Jennison of the charges against him. As discussed above, the trial court informed Jennison of the charges at his plea hearing. Thus, Jennison cannot establish prejudice. See Fretwell, 113 S.Ct. at 844; Hill, 474 U.S. at 48.
18
Jennison contends that counsel was ineffective because he failed to file a motion to suppress evidence and failed to investigate possible defenses. In his habeas petition, however, Jennison did not specify how any search was improper, nor did he explain what other defenses counsel should have discovered.
Trial Judge's Mental Competence
19
Jennison contends that the trial judge violated his constitutional rights because the judge had been confined to a mental institution. As the district court found, however, the record does not reveal any constitutional violations by the trial judge.
20
Ineffective Assistance of Appellate Counsel
21
Jennison contends that his direct appeal attorney was ineffective for filing a brief pursuant to Anders v. California, 386 U.S. 738 (1967). This contention lacks merit because Jennison has not identified any meritorious issues that counsel should have raised. See Strickland, 466 U.S. at 687, 689.
Appointment of Counsel
22
Finally, Jennison contends that the district court erred by denying his motion for appointment of counsel. This contention lacks merit. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983) (counsel appointed if interests of justice so require).
23
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Jennison contends that the district court failed to follow its order of June 28, 1993, which he reads as a decision to reach the merits of all of his claims. We disagree with this interpretation of the order
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Reversed and Remanded and Opinion filed May 22, 2003
Reversed and
Remanded and Opinion filed May 22, 2003.
In The
Fourteenth Court of Appeals
____________
NO. 14-01-01185-CR
____________
SHANTEE D. HAYWARD, Appellant
V.
THE STATE OF TEXAS, Appellee
___________________________________________
On Appeal from
the 262nd District Court
Harris County, Texas
Trial Court
Cause No. 890,357
___________________________________________
O P I N I O
N
Shantee D. Hayward appeals her conviction
for murder. We find the evidence legally sufficient to
support appellant’s conviction, but reverse the trial court’s judgment and
remand for a new trial because the trial court erroneously denied appellant’s
request for a jury instruction on assault as a lesser-included offense.
I. Factual and Procedural
Background
Police arrived at the complainant’s
apartment after receiving a suspicious-event call. Two sets of bloody footprints made a short
trail leading away from the front door of the apartment. Inside, police found the complainant’s body
in a hallway near the bathroom. Blood
marks on the wall suggested that the complainant’s body was dragged from the
living room to the hallway. The
complainant had been stabbed over fifty times, and there was blood throughout
the apartment. Although several knives
and broken glass were scattered on the living-room floor, there were no
fingerprints. A downstairs neighbor told
police she had heard a violent fight in the complainant’s apartment about an
hour before the police arrived.
Crime Stoppers tips and the
complainant’s caller-identification device led police to appellant, the
complainant’s estranged wife. They
arrested appellant on an unrelated parole violation after determining that she
was driving the same car the neighbor saw speed away from the murder scene. Appellant initially told police that she did
not know her husband’s whereabouts or when she last saw him. However, she later admitted she was at the
murder scene and eventually decided to make a videotaped statement about the
events surrounding the complainant’s death.
According to her statement,
appellant traveled to the complainant’s apartment with her boyfriend, Marcus
Hawkins, early one morning. The purpose
of the trip was to ask the complainant for money with which appellant could buy
crack cocaine. Appellant claims they saw
a third person, known only as “Chop,” as they were driving toward an open gate
at the complainant’s apartment complex.
To appellant’s purported surprise, Chop was also en route to the
complainant’s apartment so he entered the car and rode with Hawkins and
appellant until appellant parked the car.
Appellant and Chop exited the car together and walked to the
complainant’s apartment. Hawkins waited
in the car.
class=Section3>
Appellant said she and the
complainant began to wrestle when the complainant refused to give her any
money, and Hawkins came upstairs and also began to wrestle with the
complainant. According to appellant’s
statement, when the complainant escaped from Hawkins, Chop came running out of
the kitchen and began stabbing the complainant.
Appellant told police that she and Hawkins fled the scene after the
complainant collapsed behind the front door of the apartment. Appellant stated that Chop was the only one
who stabbed the complainant. The police
used computer databases to search for Chop but were unable to find him. They presented appellant with a photo array
of men who went by “Chop,” but appellant said none of them was the alleged
third person.
A jury found appellant guilty of
murder and assessed punishment at twenty-five years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice.
II. Issues Presented
Though we do not reach all
of them, appellant presents the following issues for review:
(1) Did the
trial court reversibly err by denying appellant’s oral motion for continuance?
(2) Was trial counsel ineffective in failing to preserve error on
the trial court’s denial of appellant’s motion for continuance?
(3) Was the evidence legally sufficient to support appellant’s
murder conviction?
(4) Was trial
counsel ineffective in failing to object to hearsay testimony?
(5) Was the
State erroneously allowed to mischaracterize the evidence during closing
argument?
(6) Did the
trial court reversibly err by denying appellant’s request for an instruction on
assault as a lesser-included offense?
III. Analysis and Discussion
A. Was the evidence legally sufficient to support appellant’s
murder conviction?
In her
third issue, appellant argues the evidence adduced at trial is legally
insufficient to prove she participated in the murder directly or as a
party. In evaluating a legal-sufficiency
challenge, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
The issue on appeal is not whether we, as a court, believe the State’s
evidence or believe that appellants’ evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.
Crim. App. 1984).
The verdict may not be overturned unless it is irrational or unsupported
by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.
Crim. App. 1991).
The jury, as the trier of fact, “is the sole
judge of the credibility of witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271
(Tex. Crim. App. 1999). The jury may choose to believe or disbelieve
any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
When faced with conflicting evidence, we presume the trier
of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt, we
must affirm. McDuff v. State,
939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
We must decide whether a rational trier of fact could have found beyond a reasonable doubt
that appellant: (1) intentionally[1] or
knowingly[2]
caused the death of the complainant or (2) intended to cause serious bodily
injury and committed an act clearly dangerous to human life that caused the
death of the complainant. See Tex.
Pen. Code §§ 19.02(b)(1) and (2).
Moreover, because the jury was charged on the law of parties it could
have reached its verdict by deciding that Hawkins and or Chop committed each
element of the offense and appellant, “acting with intent to promote or assist
the commission of the offense, . . . solicit[ed], encourage[d], direct[ed],
aid[ed], or attempt[ed] to aid the other person to commit the offense.” See
Tex. Pen. Code § 7.02(a).
class=Section4>
Circumstantial evidence may be used
to prove that one is a party to an offense.
Ransom v. State, 920 S.W.2d
288, 302 (Tex. Crim. App. 1994). Although presence at the scene of an offense
alone is insufficient to support a conviction, it is a circumstance tending to
prove guilt, which, combined with other facts, may suffice to show that the
accused was a participant. See id.
In determining whether the accused was a party, it is proper to look to
events occurring before, during and after the commission of the offense, and to
rely on actions of the defendant which show an understanding and common design
to do the prohibited act. Id. The standard of review on legal sufficiency
of the evidence is the same for both circumstantial and direct evidence. King
v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).
Moreover, it is not necessary that every fact point directly and
independently to appellant’s guilt; it is enough if the conclusion is warranted
by the combined and cumulative force of all the incriminating circumstances. See
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993).
In her videotaped statement,
appellant admitted she and Hawkins were at the complainant’s apartment when the
complainant was murdered. Appellant also
stated: (1) when the complainant refused to give appellant money, she and
Hawkins wrestled with him; (2) eventually, Hawkins restrained the complainant
so appellant could hit him; and (3) when the complainant got away from Hawkins,
a third person, Chop emerged from the kitchen and began stabbing the
complainant.
Although appellant said Chop was
coincidentally present and responsible for the murder, she did not know whether
Chop repeatedly stabbed the complainant with a knife or a piece of glass, or
what part of the body Chop stabbed. When
asked whether anyone at the scene wore socks or gloves over the hands,
appellant first answered, “No, I can’t recall.”
However, she then clarified that she and Hawkins did not cover their
hands, but said Chop may have covered his hands. Appellant said she and Chop were close and
indicated that she had known him for approximately two years. Nevertheless, she did not know Chop’s real
name, where he lived, with whom he associated, or any establishments he
frequented. Police officers were unable
to locate Chop after an extensive investigation, and two detectives testified
that they believed appellant invented Chop.
Detective Garretson also testified that appellant’s gestures indicating
her own hitting motions on the videotaped statement were consistent with
stabbing motions.
Physical evidence also supported the
State’s theory that two people were responsible for the murder because there
were two sets of bloody footprints outside the apartment. Moreover, although appellant cleaned her car
after the murder, there was blood in her car and on Hawkins’s shoes. Appellant said that the shoes and scrubs she
was wearing when she was arrested were the ones she wore at the murder scene. However, there was no blood on them, and
Detective Garretson testified, based on his training and experience, that they
could not be the same clothes because the absence of blood on them was
inconsistent with the large amount of blood at the crime scene. Detective Garretson also testified that an
informant told him appellant said she hid her bloody clothes at an abandoned
house.
The jury had the duty to resolve the
conflicting evidence in this case. See Anderson v. State, 701 S.W.2d 868, 872–73 (Tex. Crim. App. 1985).
“Simply because the jury found appellant’s evidence unconvincing is not
grounds for finding insufficient evidence to support the verdict.” Id. Detective
Garretson’s expert testimony discredited appellant’s statements that a third
person was present, that she hit the complainant (but did not stab him) and
that she was wearing the unstained clothes and shoes at the crime scene. See Barcenes v. State, 940 S.W.2d 739, 745 (Tex. App.—San
Antonio 1997, pet. ref’d) (holding evidence that
appellant tried to cover up his actions and expert medical testimony
discrediting appellant’s explanation of injuries was sufficient to sustain
murder conviction). If the jury believed
appellant attempted to fabricate evidence, it was entitled to regard this as
showing consciousness of guilt. See King, 29 S.W.3d at 565; Torres v. State, 794 S.W.2d 596, 598–600
(Tex. App.—Austin 1990, no pet.). From
this evidence, a rational trier of fact could
class=Section5>
have
concluded, beyond a reasonable doubt, that appellant intentionally or knowingly
caused the death of her husband or that she intended to cause serious bodily
injury and committed an act clearly dangerous to human life that caused the
death of her husband.
In the alternative, the evidence was
sufficient to show that Hawkins and appellant acted together. Hawkins and appellant traveled to the
complainant’s apartment together early in the morning to get money from
him. They both wrestled with the
complainant, and appellant said she was swinging at the complainant while
Hawkins restrained him. Appellant and
Hawkins also fled the scene together after appellant told Hawkins, “We need to
get out of here.” They went to Hawkins’s
mother’s house, chain smoked, and then cleaned the car. In her videotaped statement, appellant said
“we [appellant and Hawkins] wasn’t [sic] trying to kill him” and “things was
[sic] not supposed to happen like this.”
Therefore, there is also legally sufficient evidence to support
appellant’s conviction under the law of parties.
We find the cumulative force of all
the incriminating circumstances in this case was sufficient to allow the jury
to find appellant guilty beyond a reasonable doubt. See
Johnson, 871 S.W.2d at 186. Accordingly, we conclude the evidence was
legally sufficient to sustain the jury’s verdict, and we overrule appellant’s third
issue.
B. Did the trial court reversibly err by denying appellant’s
request for an instruction on assault as a lesser-included offense?
In her sixth issue, appellant argues
that the trial court reversibly erred by denying her request for a jury instruction
on assault as a lesser-included offense of murder. Under article 36.19 of the Texas Code of
Criminal Procedure we review alleged charge error by answering two
questions: (1) whether error actually
existed in the charge; and (2) whether sufficient harm
resulted from the error to result in a reversal. See
Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim.
App. 1998).
class=Section6>
In this
case, there was error in the charge if appellant was entitled to a jury
instruction on assault as a
lesser-included offense of murder.
Whether an offense is a lesser-included offense of the offense charged
is determined on a case-by-case basis by looking at the facts of the case and
the proof at trial. Bartholomew v. State, 871
S.W.2d 210, 212–13 (Tex. Crim. App. 1994). A defendant is entitled to a lesser-included
offense instruction when two conditions are met: (1) the lesser-included
offense is included within the proof necessary to establish the offense
charged; and (2) some evidence exists in the record that would permit a jury to
rationally find that if the defendant is guilty, she is guilty only of the
lesser offense. Id.
Under the first prong, article 37.09
of the Texas Code of Criminal Procedure governs whether a lesser offense is a
lesser-included offense. Ford v. State, 38 S.W.3d 836, 842 (Tex.
App.—Houston [14th
Dist.] 2001, pet. ref’d). Article 37.09 provides that an offense is a
lesser-included offense if:
(1) it is established by proof of the same or less
than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only
in the respect that a less serious injury or risk of injury to the same person,
property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental
state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise
included offense.
Tex. Code Crim. Proc. art. 37.09
(emphasis added). If none of the
subsections of article 37.09 applies, the lesser offense is not a
lesser-included offense as a matter of law, and the inquiry is over. Ford,
38 S.W.3d at 842. Each subsection of
article 37.09 defines the lesser-included offense in relation to the offense charged. This definition is required because a
lesser-included offense must be necessarily included within the greater offense
to satisfy requirements of due process and notice. Jacob
v. State, 892 S.W.2d 905, 907 (Tex. Crim. App.
1995). A defendant cannot
constitutionally be convicted of an offense not subsumed in the offense charged
but nevertheless shown by the evidence presented at trial because the State, in
proving the offense charged, also proved another offense. See id.
In this case the indictment alleged
in pertinent part that appellant did:
“. . . unlawfully intend to cause serious bodily injury to [the
complainant] and did cause the death of the Complainant by intentionally and
knowingly committing an act clearly dangerous to human life, namely by stabbing
the Complainant with a deadly weapon, namely a knife.
. . .
. . . [and appellant] did . . . unlawfully intend to cause serious bodily injury to [the complainant]
and did cause the death of the Complainant by intentionally and knowingly
committing an act clearly dangerous to human life, namely by stabbing the
Complainant with a deadly weapon, namely a piece of glass.”
1. Did the indictment require the State to
prove appellant assaulted the complainant?
A lesser-included offense determination
under article 37.09(1) is made by looking at (1) the elements of the offense
actually charged; (2) the statutory elements of the offense sought as a
lesser-included offense; and (3) the evidence presented at trial to prove the
elements of the charged offense. Jacob, 892 S.W.2d at 907–08. This means that, first, we conduct a
statutory, and then, a factual analysis, in light of the charged offense. Id. at 908. Next, we examine the elements of the offense
claimed to be a lesser-included offense to see if these elements are
functionally the same or less than those required to prove the charged
offense. Id. Then, we examine the proof or facts actually
presented to prove the elements of the charged offense to see if that proof
also shows the lesser-included offense. Id.
Applying article 37.09(1) to this
case, the “facts required to establish” the charged offense are that appellant
intended to cause serious bodily injury to the complainant and caused his death
by intentionally and knowingly stabbing him with a knife or a piece of glass.
class=Section7>
See Jacob, 892 S.W.2d at 908–09 (explaining
that in this context “facts required” means the evidence legally required to
prove the elements of the charged offense).
The offense of assault occurs when a
person:
(1)
intentionally, knowingly, or recklessly causes bodily injury to another,
including the person’s spouse; or
(2) intentionally or knowingly threatens another with imminent bodily injury,
including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the
person knows or should reasonably believe that the other will regard the
contact as offensive or provocative.
Tex. Pen. Code § 22.01(a). Comparing the statutory elements of assault
to the charged offense, assault is established by proof of the same or less
than all the facts required to establish that appellant committed murder as
charged in the indictment. See Tex.
Code Crim. Proc. art. 37.09(1); Jacob, 892 S.W.2d at 908–09. In proving
appellant intentionally and knowingly caused the complainant’s death by
stabbing him, the State was required
to prove appellant intentionally, knowingly, or recklessly caused bodily injury
to the complainant. See Tex. Pen. Code §
22.01(a)(1); Jacob, 892 S.W.2d at
908–09.
The State argues that appellant
cannot be guilty of assault because death is included in the definition of
“serious bodily injury” but not in the definition of “bodily injury.” However,
the plain language of the Penal Code shows death is a form of bodily injury. See
Sells v. State, No. 73,993, 2003 WL 1055328, at *9 (Tex. Crim. App. Mar. 12, 2003) (explaining appellate court
interprets statute in accordance with its plain language unless it is ambiguous
or conducive to absurd results the Legislature could not have intended). The Penal Code defines “bodily injury” as
“physical pain, illness, or any impairment of physical condition.” Tex.
Pen. Code § 1.07(a)(8). “Serious
bodily injury” is defined as “bodily injury that creates a substantial risk of
death or that causes death, serious permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or organ.” Tex.
Pen. Code § 1.07(a)(46). The
plain language of the statute therefore defines serious bodily injury in terms
of bodily injury; though some forms of bodily injury are not “serious bodily
injury,” all forms of “serious bodily injury” include bodily injury.
Moreover, death is also bodily
injury under the plain meaning of the Penal Code because it is an “impairment
of physical condition.” See Tex.
Pen. Code § 1.07(a)(8). In
proving appellant caused the complainant’s death, the State necessarily had to
prove that appellant caused bodily injury to the complainant. See Cumbie v. State 578 S.W.2d 732, 735 (Tex. Crim. App. 1979) (holding that death necessarily involves
bodily injury as defined in the Penal Code), overruled on other grounds by Almanza v. State, 686 S.W.2d 187 (Tex. Crim.
App. 1984); see also Nejnaoui
v. State, 44 S.W.3d 111, 119 (Tex. App.—Houston [14th Dist.]
2001, pet. ref’d).
Having determined assault, as
statutorily defined, is necessarily proven by the same or fewer than all of the
facts required to establish the charged offense, it is necessary to examine
whether the proof actually presented at trial showed assault. See
Jacob, 892 S.W.2d at 908. In making
its case, the State relied heavily on appellant’s videotaped statement in which
she blamed the murder on a third person named Chop. In the statement, appellant claimed she only
wrestled with the complainant, hit him with her hands, and swung at him. These facts are sufficient to show appellant
assaulted the complainant. See Bartholomew, 871 S.W.2d at 213 (finding speeding and racing
were lesser-included offenses of reckless driving when the State relied on
evidence of speeding and racing to establish offense of reckless driving); see also Letson
v. State, 805 S.W.2d 801, 806–07 (Tex. App.—Houston [14th Dist.] 1990, no
pet.) (holding kicking that caused pain sufficient to establish assault). Accordingly, under the facts of this case,
assault is a lesser-included offense of murder as charged in the
indictment. See Tex. Code Crim. Proc. Art. 37.09(1).
class=Section8>
2. Could a jury rationally find appellant
guilty of only assault?
As set forth above, appellant was
entitled to a jury instruction on assault as a lesser-included offense only if
evidence was presented that would allow a jury to rationally find that, if
appellant was guilty, she was guilty of only assault. See
Bartholomew, 871 S.W.2d at 212–13.
In determining whether an instruction on a lesser-included offense
should have been given, we may not consider the credibility of the evidence or
whether it conflicts with other evidence or is controverted. See Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995).
Here, if the jury believed appellant’s statement that Chop was
responsible for the murder, it rationally could have found that appellant only
assaulted the complainant. Appellant’s
contention that three people (in addition to the complainant) were present was
arguably corroborated by the downstairs neighbor’s testimony that after she
heard a thump like a head hitting the ground in the bathroom and two people
exit the apartment, she heard loud noise from the bedroom as if someone was in
the apartment searching for something.
The absence of marks on appellant’s body also arguably supports
appellant’s position that she did not stab the complainant. Based on these facts, the jury rationally
could have found that appellant was only guilty of assault. The trial court therefore erred when it
denied appellant’s request for an instruction on assault as a lesser-included
offense.
3. Did the charge error harm appellant?
Appellant preserved error in the
trial court. Thus, we consider whether
appellant suffered some harm because of the failure to include a jury
instruction on assault as a lesser-included offense. See Almanza, 686 S.W.2d at 171. The degree of actual harm suffered must be
determined by looking not just at the jury charge, but at “any other part of
the record as a whole which may illuminate the actual, not just theoretical,
harm to the accused.” Id. at 174; see also Marvis v. State, 36 S.W.3d 878,
880 (Tex. Crim. App. 2001) (stating the actual degree
of harm must be assayed in light of the entire jury charge, the state of the
evidence, including the contested issues and weight of probative evidence, the
argument of counsel,
class=Section9>
and
any other relevant information revealed by the record of the trial as a
whole). The record reveals that the jury
deliberated for more than a day and had a very difficult time reaching a
unanimous verdict. The record also
contains a jury note stating that, at one point in its deliberations, the jury
was split seven against five in favor of finding appellant not guilty. We find appellant was harmed because this
divided jury was not allowed to consider the lesser-included offense of assault
in connection with the charge of murder.
See Mitchell v. State, 807
S.W.2d 740, 742 (Tex. Crim. App. 1991). Based on this record, we hold the trial
court’s erroneous failure to charge the jury on assault as a lesser-included
offense was calculated to injure appellant’s rights and caused appellant some
harm. See id.; Almanza, 686
S.W.2d at 171. Accordingly, we sustain
appellant’s sixth issue and find this case must be remanded to the trial court
for a new trial. Having held appellant
is entitled to a new trial, we do not reach appellant’s first, second, fourth,
and fifth issues. See Tex. R. App. P. 47.1.
IV. Conclusion
The evidence in this case is legally
sufficient to sustain appellant’s conviction.
However, the trial court’s failure to instruct the jury on assault as a
lesser-included of murder is reversible error under the facts of this
case. Accordingly, we reverse the trial
court’s judgment and remand for a new trial.
/s/ Kem Thompson
Frost
Justice
Judgment
rendered and Opinion filed May 22,
2003.
Panel
consists of Justices Yates, Anderson, and Frost.
Publish — Tex. R. App. P. 47.2(b).
[1] A person acts intentionally with respect to the result of her
conduct when it is her conscious objective or desire to cause the result. See
Tex. Pen. Code § 6.03(a).
[2] A person acts knowingly with respect to the result of her
conduct when she is aware her conduct is reasonably certain to cause the
result. Tex. Pen. Code § 6.03(b).
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