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575 F.2d 1341
Simpsonv.Dennison
No. 77-1556
United States Court of Appeals, Seventh Circuit
3/17/78
1
S.D.Ind.
AFFIRMED
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43 B.R. 925 (1984)
In the Matter of ARMANDO GERSTEL, INC., Debtor.
EFRAIM ROSEN, INC., a corporation, Plaintiff,
v.
Jeanette E. TAVORMINA, etc., et al., Defendants.
GOODHART, ROSNER & GREEN, P.A., a Florida professional association, Counterclaimant/Crossclaimant,
v.
EFRAIM ROSEN, INC., Plaintiff,
and
Jeanette E. Tavormina, etc., et al., Defendants/Crossdefendants, and Additional Parties/Crossdefendants.
Bankruptcy No. 83-02044-BKC-JAG, Adv. Nos. 84-0231-BKC-JAG-A, 84-0217-BKC-JAG-A and 84-0231-BKC-JAG-A.
United States Bankruptcy Court, S.D. Florida.
October 24, 1984.
*926 *927 *928 Irving M. Wolff, Holland & Knight, Miami, Fla., for Goodhart.
Robert G. Hewitt, Harper & Hewitt, Miami, Fla., for Tavormina, trustee.
Britton, Cohen, Cassel, Kaufman & Schantz, P.A., Miami, Fla., for Efraim Rosen, Nachman Rosen, American Credit Indem. and Ba-Bar Diamond Co.
Jerry M. Markowitz, Miami, Fla., for Herris.
Maurice Rosen, N. Miami, Fla., for Public Ins. Consultants.
Hauser & Metsch, Miami, Fla., for Aquatic Co.
Richard Phillips, Schatzman & Schatzman, Coral Gables, Fla., for Evvco Enterprises, Inc.
Angelo Ali, Miami, Fla., for Lillian Kaufman and Bueche Girod Corp.
Phillips & Phillips, P.A., Paul S. Berger, Miami, Fla., for Florence R. Semet.
Tralins & Potash, N. Miami, Fla., for Michael Landy.
Billy Tarnove, Fort Lauderdale, Fla., for Irving Halpern.
Armando Oliveros, Jr., Miami, Fla., for Fausto Villar.
Lawrence Fuller, David Rosner, pro se.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
JOSEPH A. GASSEN, Bankruptcy Judge.
The above adversary proceedings involve numerous questions of fact and law regarding the amount, validity and priority of various claims to $1,500,000 plus accrued interest constituting the proceeds of settlement of a pre-bankruptcy lawsuit by the debtor against Jewelers Mutual Insurance Company ("Jewelers"). They were tried together on July 11, and 12, 1984 and have been effectively consolidated pursuant to Bankruptcy Rule 7042. Because of the effective consolidation and inseparability of the claims, these adversary proceedings are being formally consolidated by separate order, these Findings of Fact and Conclusions of Law are applicable to both adversary proceedings as so consolidated, and a single judgment is being entered separately hereupon.
The facts are not substantially disputed. On July 23, 1981 the jewelry business of the debtor, Armando Gerstel, Inc. ("Gerstel") was robbed by an armed assailant. The following day Gerstel hired the law firm of Goodhart, Rosner & Green, P.A. (formerly Goodhart & Rosner, P.A., "Goodhart"), Irving Herris, who is both an attorney and a certified public accounting service for the debtor ("Herris"), and Public Insurance Consultants, Inc., a public insurance adjusting firm ("Adjustors"). All three performed services in connection with Gerstel's claim for the robbery loss under its insurance policy with Jewelers and the police investigation of the robbery.
After a few weeks of preparation of the proof of loss, a claim was made with Jewelers for about $2,100,000.00, constituting the policy limits less the deductible. Jewelers denied Gerstel's claim on grounds that there was a material misrepresentation in the insurance application, that there was no actual robbery, and that the claim was excessive, so in October 1981 Goodhart filed suit for the debtor against Jewelers and its insurance agent, Michael Wexler ("Wexler"), seeking the policy limits, additional damages for essentially business interruption and bad faith, and statutory attorneys' fees under section 627.428, Florida Statutes.
In June 1983 as trial approached, Gerstel agreed to settle with Jewelers and Wexler for a combined amount of $1,500,000.00. *929 The state court approved the settlement on June 23, 1983, but because of various third party claims to the settlement proceeds, which claims form the substance of these adversary proceedings, the proceeds were placed in an escrow agreement under the state court's order and supervision.
On November 9, 1983, before any of the claims against the proceeds could be finally resolved by the state court, Gerstel commenced this case under Chapter 7 of the Bankruptcy Code. Jeanette E. Tavormina was appointed trustee ("trustee"), and on February 9, 1984 this Court directed that the settlement proceeds be delivered to the trustee, with all liens and claims against the proceeds to attach to the funds so transferred. These adversary proceedings require the determination of the amount, validity and priority of the various claims.
As to amount, none of the claims seems seriously disputed. Although some question was raised regarding the outstanding amount of the claim of Aquatic Company, N.V. ("Aquatic"), testimony at trial resolved to the satisfaction of the Court that the $200,000.00 sought under an assignment is unpaid and accordingly valid in amount.
As to validity and priority of the various claims, the resolution is not so simple. Myriad pleadings and arguments have been raised by the various parties. The Court has carefully considered each. Some require little or no discussion, but those that the Court finds require substantive treatment will be dealt with hereinafter in the context of each claim or type of claim.
The Goodhart Charging Lien
The foremost claim to be dealt with is that of Goodhart for an attorneys' charging lien. Goodhart commenced services for Gerstel on July 24, 1981, the day after the robbery, pursuant to a contingent fee contract calling for a fee of forty percent of any recovery. Once the claim was denied, the parties proceeded through the state court litigation based upon that contract. Accordingly the Court finds that the agreement was valid and enforceable according to its terms.
Unsurprisingly in view of the fact those terms result in a total fee of $600,000.00 based upon the $1,500,000.00 recovery, Goodhart's charging lien claim has been subjected to every conceivable kind of attack by the other claimants. Few of them merit serious discussion, and the Court does not find that Goodhart's conduct in representing the debtor against certain of the other claimants gives rise to any estoppel or equitable subordination. On the contrary, but for those services there may never have been a fund for the claimants to litigate over now. Rather than any conduct of counsel, the Court regards certain legal arguments as raising the principal issues concerning the Goodhart charging lien.
The first issue is the validity and effect of the lien itself. As to this issue, the Court finds the law clear and dispositive. The law to be applied is that of the State of Florida. In re Diplomat Electric, Inc., 499 F.2d 342 (5th Cir.1974); United States v. Transocean Air Lines, Inc., 356 F.2d 702 (5th Cir.1966). This Court has applied Florida law in similar circumstances in the past. In re Hanson Dredging, Inc., 15 B.R. 79 (Bkrtcy.S.D.Fla.1981).
Under Florida law, an express or implied contract that an attorney is to be paid out of recovery through prosecution of the client's claim creates an equitable lien upon the judgment and its proceeds. United States v. Transocean Air Lines, Inc., supra at 705; In re Hanson Dredging, Inc., supra at 82. Such equitable liens developed in order to avoid legal proceedings to collect the fee and to protect the confidential nature of the attorney-client relationship. See Worley v. Phillips, 264 So.2d 42 (Fla. 2d DCA 1972). See also Sinclair, Louis, etc. v. Baucom, 428 So.2d 1383 (Fla.1983).
Because the lien is based upon the common law rather than statute, the only apparent requirement to perfect the lien is timely notice. Sinclair, Louis, etc. v. Baucom, *930 Id. at 1385. Some claimants have argued that although Goodhart commenced the representation on July 24, 1981 pursuant to a written agreement that same date which expressly provided for a charging lien, because a written attorneys' charging lien was not actually filed of record in the state court proceedings until August 5, 1983, after approval of the settlement, it was not timely.
The Court disagrees. In the first place, under Florida law notice may be implied from public records which should lead a prudent man to inquire as to the extent of the attorneys' lien. Randall v. Archer, 5 Fla. 438, 444 (1854). Goodhart's filing of suit provided such notice in October 1981 at the latest. Further, virtually every claimant dealt with Goodhart as the debtor's attorney in some manner or another, thus providing them with actual notice of the representation. There is no suggestion that anyone was misled by any lack of actual knowledge, although indeed most if not all had such actual knowledge.
Regardless, the notice provision is concerned essentially with the time at which the lien is perfected and thus attaches to the fruits of the judgment. That can occur under Florida law at any time during the period that the funds and the parties are under the court's jurisdiction and control. Winn v. City of Cocoa, 75 So.2d 909 (Fla.1954); Scott v. Kirtley, 113 Fla. 637, 152 So. 721 (1933). See Webster v. Sweat, 65 F.2d 109 (5th Cir.1933). Once the lien attaches, however, it relates back in time and takes effect from the date of the attorney's first commencement of services. Matter of TLC of Lake Wales, Inc., 13 B.R. 593, 595 (Bkrptcy M.D.Fla.1981); Miles v. Katz, 405 So.2d 750, 752 (Fla. 4th DCA 1981).
Accordingly, the Court finds that there was ample notice of the Goodhart lien, actual and constructive, but that in any event the written filing of the claim of lien while the property was in custody of the state court was timely. The Goodhart charging lien attached and relates back to the commencement of services on July 24, 1981. Because no one claims a lien which could have attached prior to that date, Goodhart's attorneys' charging lien is in a first priority position.
The final issue as to the Goodhart lien is whether it is enforceable according to its terms, with the right to the agreed fee having vested, or whether this Court should now review the amount. As to this, there is an apparent split of authority. In Matter of TLC of Lake Wales, Inc., supra at 596, the Court assumed without citation of precedent the authority to determine the reasonableness of the fee, whereas in In re Beverly Mfg. Corp., 29 B.R. 513 (Bkrptcy S.D.Fla.1983), Judge Britton of this Court expressly disagreed. This Court finds Judge Britton's view and his authority, Matter of Innkeepers of New Castle, Inc., 671 F.2d 221 (7th Cir.1982), to be persuasive on this point. The attorneys' charging lien is contractual in nature and is to be based upon the amount agreed with the client, not an amount to be determined by the trial court. In re Hanson Dredging, Inc., supra at 83; cf. Alyea v. Hampton, 112 Fla. 61, 150 So. 242 (1933).
In the instant case Goodhart's fee contract was fully executed, the contingency had occurred, and the percentage fee had vested. Bankruptcy did not invalidate the lien. In re Beverly Mfg. Corp., supra; Matter of TLC of Lake Wales, Inc., supra at 595 (citations omitted). The fee contract was not unconscionable or otherwise unenforceable under Florida law. In fact, greater percentages have been upheld, e.g., Matter of Innkeepers of New Castle, Inc., supra; In re Beverly Mfg. Corp., supra, as has an identical fee under similar circumstances. See Milton Kelner, P.A. v. 610 Lincoln Road, Inc., 328 So.2d 193 (Fla. 1976). Indeed, even in Matter of TLC of Lake Wales, supra at 596, where the court redetermined the fee, the fee as redetermined was forty percent.
The Herris Charging Lien
Although the Goodhart charging lien is enforceable, the claim of Irving Herris *931 to a charging lien must be denied. Herris was employed by Gerstel shortly after the robbery and performed services for the debtor memorialized in a contract dated June 1, 1982 which called for a 5% contingent fee. Herris filed a charging lien in the state court action on August 8, 1983.
Herris testified that he performed legal rather than accounting services. Nonetheless, the record shows his services were performed more in the function of an accountant than a lawyer. His accounting firm had provided accounting services to Gerstel for years prior to the robbery. The services Herris provided in connection with the robbery were essentially of an accounting nature and lacked such indicia of legal services in connection with the lawsuit as could justify an attorney's charging lien herein.
The record does not establish that Herris referred the matter to Goodhart or that he had any responsibility for prosecution of the lawsuit. He was not consulted regarding settlement of the case. The fact that his contract with the debtor was on his attorney's stationery rather than his accounting stationery does not alter the conclusion that his function was as an accountant rather than as a lawyer handling or participating in the lawsuit as counsel of record. He simply did not have an enforceable attorneys' charging lien, and the absence of any assignment language in his contract, unlike Adjustors, leaves Herris with no enforceable right to the proceeds at all.
The Adjustors Claim
Adjustors likewise claims a charging lien upon the settlement proceeds. Adjustors was retained on July 24, 1981, the day after the robbery, to help prepare the proof of loss, pursuant to a written agreement of that date, and on August 9, 1983 it filed a "Notice of Charging Lien" in the state court action. There is, however, no statutory nor common law authority for such a lien. Accordingly it is unenforceable.
All is not lost for Adjustors, however. Although the Court holds that its claimed lien was uneffectual, the agreement between Adjustors and Gerstel was nonetheless effective as an absolute assignment of a portion of Gerstel's claim against Jewelers.
The Assignment Claims
As is true of Adjustors, a number of the claims herein are predicated upon assignments by Gerstel of amounts of money from its pending claim and lawsuit against Jewelers. These assignments were made to placate certain creditors whose claims were not able to be paid because of the loss suffered from the robbery. The Court finds that these assignments were absolute assignments of portions of Gerstel's claim against Jewelers and as such are enforceable because they were not subject to the filing requirements of the Uniform Commercial Code nor did they become property of the estate under 11 U.S.C. § 541. See In re Moskowitz, 14 B.R. 677 (Bankr.S.D.N.Y.1983).
Under section 679.104(7), Florida Statutes, the UCC does not apply to a transfer of an interest or claim under a policy of insurance, except as provided with respect to "proceeds" and "priorities in proceeds". The "proceeds" exception to the exclusion does not apply in the instant case because the insured property was not collateral as to which the insurance would substitute for and follow property covered by a security agreement. Compare, Paskow v. Calvert Fire Ins. Co., 579 F.2d 949 (5th Cir.1978); Beaver Crane Service, Inc. v. National Surety Corp., 391 So.2d 224 (Fla. 3d DCA 1980); Kahn v. Capital Bank, 384 So.2d 976 (Fla. 3d DCA 1980). In the instant case there was simply an assignment of an interest in an existing claim under the Jewelers policy, excluded from the UCC, as to which (like any other assignment) priorities are established according to notice to Jewelers. See Boulevard Nat'l Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla.1965); Oper v. Air Control *932 Products, Inc. of Miami, 174 So.2d 561 (Fla. 3d DCA 1965).
There were apparently seven assignments executed by the debtor. In the chronological order of the date of execution of the assignments these are: Adjustors (as noted above, for 10% of the recovery, or $150,000.00, on July 24, 1981); Irving Halpern, Inc. (for $200,000.00 on August 13, 1981); Florence R. Semet (for $187,025.00 on January 18, 1982); Fausto Villar (for $150,000.00 on May 13, 1982); Aquatic Company, N.V. (for $200,000.00 on August 20, 1982); Bueche Girod Corporation (for $170,000.00 on November 19, 1982); D'Esposito Brothers Jewelry, Inc. (for $7,831.29 on January 19, 1983); and the Estate of Charles Kaufman (for $60,000.00 on March 18, 1983). The total amount of these assignments is $1,124,856.20.
As to the dates of notice to Jewelers, the evidence is clear as to some of the assignees but not as to others. Adjustors is the earliest, with notice given on October 5, 1981 via a letter to the company adjusting the loss for Jewelers. Next is Halpern, which on August 25, 1982 moved to intervene in the lawsuit, followed by D'Esposito Brothers which served a notice of the assignment as a pleading in the lawsuit on January 19, 1983. Semet and Aquatic are next based upon interventions in the lawsuit on March 24, 1983 and March 30, 1983, respectively.
Villar, Bueche Girod and Kaufman, although they did establish notice to Jewelers during the pendency of the state court proceedings and prior to judgment, failed to prove the exact date. Although the date is not clear, Jewelers did have notice of the assignments prior to the filing of bankruptcy, so that the claim of the trustee is defeated. Accordingly, while they are entitled to enforce their assignments the Court holds that they are equal in priority, and to the extent funds remain to pay these assignments they will share pro rata. On a pro rata basis, Villar is entitled to $61,240.94, Bueche Girod to $69,406.39 and Kaufman to $24,496.38.
The Efraim Rosen Garnishment
The next claim against the settlement proceeds is that of Efraim Rosen, Inc. ("Rosen"), by virtue of a garnishment suit instituted against Jewelers. On November 19, 1982 Rosen obtained a judgment against Gerstel, and on January 18, 1983 Rosen obtained and subsequently served a writ of garnishment against Jewelers. Jewelers answered the garnishment by denying any indebtedness. Thereafter Jewelers settled Gerstel's suit against it by paying (along with $50,000.00 from Wexler) $1,450,000.00 into the state court created escrow. Before any judgment was entered in the garnishment writ, Gerstel filed in bankruptcy.
Generally, by a garnishment proceeding the garnishor [Rosen], who is a creditor of the primary debtor [Gerstel], sues a third party garnishee [Jewelers] seeking to use assets of the primary debtor to satisfy the garnishor's claim against the primary debtor. The garnishment statute applies to a "debt due" from the garnishee to the primary debtor or to "tangible or intangible property" of the primary debtor which is in the hands of the garnishee. See section 77.01, Florida Statutes.
In the instant case, Rosen urges that at the critical time (between service of the writ upon Jewelers and its answer) there was a "debt due" from Jewelers to Gerstel under the insurance policy. The trustee and other creditors argue that at that time there was only an unliquidated contract claim, itself the subject of another lawsuit, which cannot properly be garnished.
Under Florida law garnishment does not create an immediate lien in the garnishor's favor but rather is a statutory proceeding of an equitable nature by which the garnishor is subrogated to the primary debtor's right against the garnishee. Pleasant Valley Farms v. Carl, 90 Fla. 240, 106 So. 427 (1925). The garnishor gets no greater right than that of the primary debtor, Reaves v. Domestic Finance Co., 113 Fla. 672, 152 So. 718 (1934), nor is the garnishee by service of the writ to be *933 placed in any worse condition than had the primary debtor brought suit upon the claim. Reeves v. Don L. Tullis & Assoc., Inc., 305 So.2d 813, 816 (Fla. 1st DCA 1975). The garnishor merely steps into the primary debtor's shoes. Coyle v. Pam American Bank of Miami, 377 So.2d 213 (Fla. 3d DCA 1979). Judgment on the garnishment writ will create a lien, however, which relates back to service of the writ. See Florida East Coast Railway v. Consolidated Engineering Co., 95 Fla. 99, 116 So. 19 (1928).
Florida law requires that the obligation from the garnishee to the primary debtor, in order to be subjected to garnishment, not be contingent or uncertain. Chaachou v. Kulhanjian, 104 So.2d 23, (Fla.1958); West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209 (1918); Tomlin v. Anderson, 413 So.2d 79 (Fla. 5th DCA 1982). Nonetheless, there is authority that a noncontingent, fully performed contract obligation from the garnishee to the primary debtor may be sufficient if the contract amount can be so readily ascertained and reduced to writing that it is essentially liquidated in amount. See Alabama Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924).
In the instant case, Rosen sought to garnish Gerstel's claim against Jewelers while it was the subject of an existing lawsuit. At the operative time, i.e., between service of the writ of garnishment and Jeweler's answer, Gerstel's claim was being vigorously defended both as to liability and amount, making the claim both contingent and unliquidated.
Rosen's alternative suggestion that the garnishment should be sustained to the extent of Jewelers' offer to refund premiums cannot be accepted, since even if the amount of the tendered refund is considered liquidated, it was contingent. Just as Jewelers was contesting its obligation to pay under the policy, Gerstel was rejecting such a refund. It was conceivable that the jury could find the policy was valid but there was no loss, thus avoiding any liability on the part of Jewelers. Therefore, even the "liquidated" refund tender was contingent and accordingly not properly a subject of garnishment.
Rejection of Rosen's attempt to garnish the unliquidated contract claim of Gerstel versus Jewelers is reinforced by Florida Steel Corp. v. A.G. Spanos Enterprises, Inc., 332 So.2d 663 (Fla. 2d DCA 1976). In Spanos the court held that a judgment on an unliquidated claim, unlike a liquidated claim, could not be garnished even during a pending appeal, there being no enforceable debt until the judgment is final. If a judgment on an unliquidated claim cannot be the subject of a garnishment until it is final, a fortiori a claim not yet ripened into judgment cannot be garnished.
Unfortunately, the procedure suggested in Spanos to preserve the garnishor's priority against subsequent garnishors staying the garnishment proceedings until the appeal could be determinedcannot be utilized here. In Spanos there was an existing judgment and a supersedeas bond upon which the garnishor could collect if the appeal were affirmed. Here, Rosen did not seek to intervene and proceed in the same action against the potential judgment or settlement proceeds, which it could have done under Florida law. See Leatherman v. Gimourginas, 192 So.2d 301, 302 (Fla. 3d DCA 1966). Instead Rosen sued independently and eschewed intervention.
The difficulty with Rosen's having brought an independent garnishment action under the present circumstances is that when Gerstel and Jewelers agreed to a settlement pursuant to court approval, the settlement proceeds were placed in escrow. Those funds were in custodia legis under Kusens v. Johannesburg, 182 So.2d 468 (Fla. 3d DCA 1966). As such they could not be garnished. Id.; see also Leatherman v. Gimourginas, supra. Thus not only was there not a debt due Gerstel at the time of Rosen's garnishment, the chose in action being contingent and unliquidated, but also the funds ultimately resulting *934 from Gerstel's claim never became subject to garnishment.
Other Claims
Various other creditors have been joined as having judgments or other potentially secured claims against the settlement funds. The Court finds that none of them have established any priority over the attorneys' charging lien and assignments. Accordingly the claims of Michael Landy, Inc., Nachman Rosen, Inc., Ba-Bar Diamond Company, Inc., American Credit Indemnity Co. of N.Y., as Assignee, and Evvco Enterprises, Inc., are disallowed as secured claims or as having rights in the settlement proceeds superior to those of the trustee, whose rights also are inferior to the rights of Goodhart and the assignees. In view of the insufficiency of the settlement proceeds to pay even the charging lien and the assignments, however, these claims would appear to be moot. Lawrence A. Fuller, Esquire, and David Rosen, Esquire, the state court appointed escrow agents, have disclaimed any fee for their services as escrow agents, and for that reason have waived any claims to the settlement proceeds.
Interest
Under Matter of Innkeepers of New Castle, Inc., supra, 671 F.2d at 231, Goodhart and the assignees are entitled to interest upon their claims. Under section 687.01, Florida Statutes, the applicable rate is twelve percent. Ordinarily, interest on contractual claims commences to run at the time the debt becomes due. Brooks v. School Board of Brevard County, 419 So.2d 659 (Fla. 5th DCA 1982); Bryan & Sons Corp. v. Klefstad, 265 So.2d 382 (Fla. 4th DCA 1972). Because Goodhart's lien and the assignments were all payable out of the settlement proceeds, all became payable at the same time and insofar as their entitlement to interest is concerned are of equal dignity. Therefore Goodhart and each assignee is entitled to interest, pro rata, at the actual rate earned in the escrow fund up to twelve percent. In the event there is a surplus of interest earned over the statutory twelve percent rate, such surplus shall be retained by the trustee as part of the estate.
Pursuant to Bankruptcy Rule 9021(a) a separate final judgment is being entered hereon.
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691 F.Supp. 1377 (1988)
JUPITER WRECK, INC., Plaintiff,
v.
The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL, her tackle, armament, apparel, and cargo located within 1,000 yards of a point located at coordinates 26° 56.4' North Latitude, 80° 04.15' West Longitude, Defendant.
STATE OF FLORIDA; Board of Trustees of the Internal Improvement Trust Fund; the Department of Natural Resources; Department of Environmental Regulation; and The Division of Historic Resources, Florida Department of State, Plaintiffs,
v.
JUPITER WRECK, INC., Defendant.
Nos. 87-8548-CIV, 87-8619-CIV.
United States District Court, S.D. Florida.
July 15, 1988.
*1378 *1379 *1380 David Paul Horan, Key West, Fla., for Jupiter Wreck, Inc.
Eric J. Taylor, Asst. Atty. Gen., State of Fla., Tallahassee, Fla., for the State, et al.
ORDER GRANTING IN PART AND DENYING IN PART PRELIMINARY INJUNCTIVE RELIEF IN CASE NO. 87-8548-CIV-MARCUS; FINAL ORDER GRANTING MOTION FOR REMAND IN CASE NO. 87-8619-CIV-MARCUS
MARCUS, District Judge.
THIS CAUSE is before the Court on Jupiter Wreck, Inc.'s ("JWI") Motion for Entry of Preliminary Injunction filed in case 87-8548-CIV-MARCUS (the "in rem action"), and the Plaintiffs' Motion to Remand filed in case 87-8619-CIV-MARCUS (the "removed action"). These cases center on the remains of a Spanish Galleon which sunk off the coast of Florida sometime in the late seventeenth century. The "vessel" now lies beneath the shallow water in the Jupiter Inlet, about 100 yards from the beach. JWI seeks to uncover the artifacts from this site for their historical and monetary value. The State of Florida, and various departments of the State, have sought to prevent the excavation of the remains of the vessel by JWI because, as the holder of title to the land where the vessel is located, it has enacted licensing procedures with which JWI must comply in order to conduct the intended salvage activity. Moreover, the State legislature has enacted statutes which vest title of the artifacts in State agencies.
The status of historical shipwrecks located on State territory has generated significant controversy over the years. Courts presented with questions similar to those before us have produced divergent results based on conflicting rationale. Recognizing the "confusion over the ownership and authority to manage abandoned historic shipwrecks" in State waters, H.R.Rep. No. 100-514(I), 100th Cong., 2d Sess. 2, reprinted in 1988 U.S.Code Cong. & Ad. News 365, 366, Congress has recently enacted the Abandoned Shipwreck Act of 1987, Pub.L. No. 100-298, 102 Stat. 432 (1988), which vests title to certain abandoned shipwrecks located on state lands in the respective States. Section 7(c) of this Act specifically states that it shall "not affect any legal proceeding brought prior to the date of enactment...." Since the in rem action was filed before that law was enacted it has no application to this suit.[1]
We believe that the two cases before this Court starkly present fundamental issues of federalism framed by the direct collision between federal admiralty jurisdiction and the immunity from suit afforded the State of Florida by the Eleventh Amendment, between federal salvage law and the State's police power, and finally between the power of federal courts and state courts.[2] Since we conclude that the Eleventh *1381 Amendment bars the resolution of the issue of title to the res, a preliminary injunction may not issue in the in rem action. Further, since the Complaint in the removed action is based solely on state law, that cause must be remanded to state court. JWI's prayer for a salvage award need not be resolved on the motion for preliminary injunction and remains an open issue in this action.
I. PROCEDURAL HISTORY
1. On July 27, 1987 a complaint in rem was filed by JWI[3] against the Unidentified, Wrecked and Abandoned Vessel, her tackle, armament, apparel and cargo located within 1,000 yards of a point located at coordinates 26° 56.4' North Latitude, 80° 04.15' West Longitude (the "vessel"). The Court assumed jurisdiction pursuant to 28 U.S.C. § 1333. A warrant of arrest was issued that day and JWI was appointed substitute custodian. In the Complaint, JWI sought the following: to be declared salvor of the vessel; to be put in possession of the vessel; that title and/or full possession be confirmed against all claimants and all the world; a full and liberal salvage award; and finally attorney's fees and costs.
2. On August 11, 1987 an enforcement action was brought by the State of Florida, the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees"), the Department of Natural Resources ("DNR"), Department of Environmental Regulation ("DER"), and the Division of Historic Resources, Florida Department of State ("DHR") (collectively the "State") against JWI in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. In a four count complaint the State sought to enjoin JWI from trespassing, damaging, or using State sovereignty submerged lands without first obtaining the required consent of the Board of Trustees, DER and DHR; civil penalties of $10,000 per day for each day of each violation of Chapters 253 and 403 of the Florida Statutes; an order requiring JWI to turn over to DHR all artifacts recovered from state-owned submerged lands; and money damages for damage to state-owned submerged lands and historic artifacts. An Order was entered that same day by the Circuit Court granting the injunctive relief sought by the State.
3. On August 21, 1987 JWI moved, in the in rem action, for a preliminary injunction seeking an order enjoining the officers, agents and employees of the State of Florida as well as all other persons, firms and corporation from interfering with JWI in its right to salvage.
4. JWI removed the state court action to federal court on August 24, 1987 and thereafter the two actions were consolidated before this Division. [Order of Transfer, September 22, 1987].
5. On August 26, 1987 the State moved to remand the removed action to state court and also moved for an Order preliminarily enjoining JWI from working the wrecksite until the motion to remand had been resolved or until the proper permits had been issued.
6. Eric J. Taylor, Assistant Attorney General for the State of Florida filed a notice of appearance in the in rem case on behalf of the State and its departments "for the sole purpose of answering the Plaintiff's Motion for Preliminary Injunction. These parties do not appear in this Court for any other purpose in this case." [Notice of Limited Appearance, August 28, 1987].
7. An evidentiary hearing was held before this Court on September 14 and 16, 1987. The matters have been fully briefed *1382 and argued, and we make the following findings of fact and conclusions of law.
II. FINDINGS OF FACT
1. JWI is a Florida Corporation and the Plaintiff and Substitute Custodian in the in rem action, and the Defendant in the removed action.
2. An unidentified, wrecked and abandoned vessel, her tackle, armament, apparrel and cargo located within 1,000 yards of a point located at coordinate 26° 56.4' North Latitude, 80° 04.15' West Longitude was arrested by Order of this Court dated July 27, 1987.
3. The wreck is believed to be that of a Spanish galleon that sank in the late seventeenth century. It is located approximately 100 yards offshore under approximately 10 to 20 feet of water in the Jupiter Inlet, Jupiter Beach, Florida. The wreck exists in an active marine environment which means that "the materials are covered and uncovered by storm action, they are in a surf zone where the water is reoxygenated continuously." [Transcript of Hearing before the Honorable Stanley Marcus, September 14, 1987 at 52.]
5. The vessel was located by JWI on or about July 13, 1987, and the salvage of artifacts began at that time. Various objects have been recovered including gold and silver coins, and other objects including one canon and two anchors. Other large artifacts remain embedded in the ground.
6. Some artifacts lie on the surface of the ground while others are buried under the sand at depths of six inches to several feet. [Id. at 62-63]. They are subject to deterioration but "not at a very fast rate." [Id. at 62].
7. The beach along the Jupiter Inlet is subject to constant erosion, and "at least once every two years ... a dredge outfit or the Army Corp of Engineers ... will dredge through inside of the inlet and pump the soil out onto Jupiter Beach. So, Jupiter Beach basically is constantly eroded and filled in by dredge." [Id., September 16, 1987 at 28].
8. On July 29, 1987 Florida Marine Patrol Officers instructed divers associated with JWI that all diving was to cease and no one was to be allowed near the wrecksite. After being informed that the salvage activity was being performed under the jurisdiction of this Court, the Patrol Officers stated that their earlier instructions could be disregarded. [Interim Status/Salvage Report August 6, 1987 at 3].
9. The parties entered into a Stipulation, approved by the Court, which allowed JWI to conduct remote sensing and mapping surveys of the wrecksite and that the salvage operation could be conducted without major digging or excavation of the wrecksite. "Hand-fanning" was allowed while site-mapping, and JWI was allowed to recover small objects that could be lost if left at the wrecksite.
10. The artifacts removed from the remains of the vessel are listed in an inventory filed with the Court on January 15, 1988.
11. The remains of the vessel claimed by JWI are objects of antiquity which are of archeological interest.
12. Jupiter has neither applied for nor received a permit from the State to remove the artifacts of the defendant vessel.
13. Carl J. Clausen, associate professor at the University of Miami and formerly Chief Archeologist for Florida and Texas, has worked with the salvors to develop an archeological research design in order to document the artifacts recovered from the wrecksite [Plaintiff's Exhibit 1]. Plaintiff has conducted the salvage with due regard for the historical importance of the site and the preservation of the artifacts.
14. The res is in "marine peril."
III. CONCLUSIONS OF LAW
A. Preliminary Injunction
1. JWI seeks a preliminary injunction "enjoining all persons, firms and corporations including governmental agencies of the State of Florida, their agents and attorneys from interfering with the Plaintiff in his right to continued salvage on the subject vessel." [Plaintiff's Motion for Preliminary Injunction at 4]. Four elements must *1383 be present in order for a court to enter a preliminary injunction. There must exist:
(1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest.
Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974) (citations omitted). The Plaintiff has the burden of persuasion as to each of these elements. The failure to sustain this burden with regard to any one of the prerequisites is fatal to the motion. See United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983); Canal Authority, 489 F.2d at 573.
Here, we conclude that a preliminary injunction may not issue because JWI cannot sustain its burden of demonstrating the existence of all four prerequisites. "[R]egardless of the balance of relative hardships threatened to the parties, the granting of a preliminary injunction would be inequitable if the the plaintiff has no chance of success on the merits." Canal Authority, 489 F.2d at 576. Based on Florida's immunity from suit under the Eleventh Amendment, the Plaintiff is without any possibility of success in gaining title or full possession of the res in this forum, without the consent to suit by the State.
2. The first, and in our view, critical hurdle faced by JWI, is the likelihood of success on the merits of its claim. The Complaint seeks title to and possession of the vessel as well as a liberal salvage award. Accordingly, in order for JWI to be entitled to a preliminary injunction, it must be able to demonstrate that there is a substantial likelihood that it is entitled to title or full possession of the vessel. The claim for a salvage award, if proper in this case, would not require the entry of a preliminary injunction because that relief is directed only toward the reward of efforts actually expended and compensated for the property recovered. Accordingly, with regard to the claim for a salvage award, unlike the possession claim, there is no need to maintain the "status quo" until a resolution on the merits.
3. While it is well-settled that a suit against a State in federal court is barred by the Eleventh Amendment absent its consent, the instant action does not clearly present such a circumstance. Facially, JWI is attempting to assert its rights as a salvor under federal maritime law. Therefore, an in rem action was brought against the subject property. The State is not named as a defendant, and no relief is sought directly against the State or its agents. Absent the State's restricted appearance in this matter, we would have no occasion to consider the Eleventh Amendment issue. Further, the appearance by the State is not for the purpose of obtaining any specific form of relief. Rather, it has appeared only to oppose the motion for injunctive relief by asserting its claim of title to the res. However, the State, unlike the Plaintiff, has not sought from the Court a decree awarding it title or possession of the vessel. Accordingly, the posture of this case does not require us to determine whether the State or JWI actually owns the vessel. Instead, we must only analyze JWI's likelihood of success in its claim of ownership or entitlement to full possession. Based on the Supreme Court decision in Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) and its progeny, we conclude that the Plaintiff is without any likelihood of success in obtaining title or full possession to the res, in this Court, absent consent to suit by the State.
4. The Eleventh Amendment has been interpreted consistently by the Supreme Court to mean "that an unconsenting State is immune from suit brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974) (citations omitted). In Treasure Salvors, supra, the Court found that an action by a salvor to secure property held by state officials without *1384 a colorable claim to title was not barred by the Eleventh Amendment. However, the Court determined that the federal court "did not have power, ... to adjudicate the State's interest in the property without the State's consent." Treasure Salvors, 458 U.S. at 682, 102 S.Ct. at 3313; see also id. at 703 & n. *, 102 S.Ct. at 3323 & n. * (White, J. concurring in the judgment and dissenting in part) (eight Justices agree that court without power to determine State's ownership of artifacts). There, it was "undisputed that the property was not found on state land...." Id. at 696, 102 S.Ct. at 3320. In the present in rem case, the property was found on land owned by the state, see infra, and Florida has not consented to be sued in this forum.
The Treasure Salvors Court relied, in part, on the decision of In re New York, No. 2, 256 U.S. 503, 41 S.Ct. 592, 65 L.Ed. 1063 (1921). The plurality decision written by Justice Stevens interpreted that case as standing for the proposition that "an action otherwise barred as an in personam action against the Statecannot be maintained through seizure of property owned by the State." Treasure Salvors, 458 U.S. at 699, 102 S.Ct. at 3322. Justice White read In re New York, No. 2 as holding that "sovereign immunity bars process against a res in the hands of state officers." Treasure Salvors, 458 U.S. at 709, 102 S.Ct. at 3327; see also Welch v. Texas Department of Highways and Public Transportation, ___ U.S. ___, 107 S.Ct. 2941, 2954-55 & n. 21, 97 L.Ed.2d 389 (1987). More recently, a plurality of the Court in Welch, stated that the Court in In re New York, No. 2 "held that a private citizen may not bring an admiralty action in rem against a vessel owned by a State." Welch, 107 S.Ct. at 2954.
The in rem action here does not fit neatly within the constructs of these precedents. This action against the vessel is not an in personam action against the State disguised by the seizure of certain property. It is a legitimate salvage action commenced pursuant to established admiralty principles. Further, unlike Treasure Salvors, the res here is not in the hands of state officers. Moreover, this action was not brought against a vessel indisputably owned by Florida. We recognize only that Florida has asserted a colorable claim to title of the res and has not consented to suit in this forum. However, under Treasure Salvors, we cannot conclude that Florida does in fact own the res, and therefore the action itself is not barred; but we can only conclude that JWI cannot succeed on its claim to ownership or full possession because the ownership status of the State must remain unresolved.
In a case strikingly similar to the one at bar the First Circuit Court of Appeals affirmed a decision of the District Court to dismiss an in rem admiralty action where a wreck was discovered one quarter mile off the coast of Massachusetts, and the salvor sought title, possession and a salvage award. The Commonwealth of Massachusetts filed a restricted appearance solely for the purpose of asserting an Eleventh Amendment defense. Relying on Treasure Salvors, and recognizing that Massachusetts was the Plaintiff's "principal opponent," although not a named defendant, see Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945), the First Circuit held "that when a state, asserts title to antiquities lodged within the seabed under its authority, the Eleventh Amendment bars federal adjudication of the state's interest, absent its consent." Maritime Underwater Surveys, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F.2d 6, 8 (1st Cir.1983); see also Florida v. Treasure Salvors, Inc., 689 F.2d 1254, 1256 (5th Cir.1982) (Treasure Salvors III); Subaqueous Exploration & Archeology, Ltd. v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597 (D.Md. 1983); cf., Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 898-901 (5th Cir.) (waiver of Eleventh Amendment immunity), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Riebe v. Unidentified, Wrecked and Abandoned 18th Century Shipwreck, 691 F.Supp. 923, 926 (E.D.N.C.1987); Chance v. Certain Artifacts Found and Salvaged *1385 from the Nashville, 606 F.Supp. 801, 803-04 (S.D.Ga.1984) (waiver of Eleventh Amendment immunity), aff'd, 775 F.2d 302 (11th Cir.1985).
5. In light of this authority, JWI has challenged the basis on which the State has asserted title to the property. JWI contends that the law relied upon by the State is pre-empted by federal maritime law. Specifically, Plaintiff relies on Cobb Coin Co. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 525 F.Supp. 186 (S.D.Fla.1981) (Cobb Coin I), for the proposition that "Florida's licensing scheme and the criminal penalties imposed for noncompliance therewith conflict impermissibly with federal maritime principles...." Id. at 200.
JWI's invocation of the pre-emption doctrine must fail for two reasons. First, under controlling precedent in this Circuit, the resolution of a claim to ownership and full possession of an historic shipwreck must be based on the application of the common law of finds. Second, even assuming arguendo that the law of finds does not apply here, the state regulatory scheme would not be preempted by federal maritime principles.
6. As stated by the First Circuit, "there is a generic question as to when the law of finds ... applies to property retrieved from the ocean floor, and when the law of salvage pertains.... [T]he better-reasoned authorities agree that the law of finds may appropriately be utilized." Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir.1987) (citations omitted). The former Fifth Circuit Court of Appeals has held that it is appropriate to apply the law of finds rather than the law of salvage for two general reasons. First, the court recognized that salvage law is premised on the notion that the owner of property abandoned at sea has not been divested of title. Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336 (5th Cir.1978) (Treasure Salvors I); see also Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir.1985); Chance, 606 F.Supp. at 804; Subaquaeous Explorations, 577 F.Supp. at 611; Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F.Supp. 1562, 1565 (S.D.Fla.1983), aff'd, 758 F.2d 1511 (11th Cir.1985). Yet, it found that "[d]isposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths." Treasure Salvors I, 569 F.2d at 337. Second, application of the laws of finds and salvage do not produce inconsistent results. If the owner of the vessel is actually in existence a salvage award is meant to fully compensate the salvor for his efforts, and "may include the entire derelict property." Id. at 337 (footnote omitted). But, if the property has actually been abandoned by the owner, then the law of finds rewards the first finder with title and possession.
Courts have applied the law of finds to cases concerning historic shipwrecks where the res lay outside of state territorial waters, see Klein, 568 F.Supp. 1562, 1565-68 (S.D.Fla.1983), aff'd, Klein, 758 F.2d at 1514; Treasure Salvors, Inc. v. Abandoned Sailing Vessel Believed To Be The Nuestra Senora de Atocha, 408 F.Supp. 907, 909 (S.D.Fla.1976), aff'd, 569 F.2d 330, 337 (5th Cir.1978), or when the state has waived its Eleventh Amendment immunity. See, e.g., Chance, 606 F.Supp. at 804-08. Accordingly, the present case presents a somewhat different factual scenario because the res is on state territory and there has been no waiver. Nonetheless we remain convinced that even if the Eleventh Amendment did not bar adjudication of title in this case, by application of the law of finds, JWI has no likelihood of success on its claim for title or full possession.
7. The State's claim to title of the res is based on federal and state statutes, as well as the Florida Constitution. The Florida Constitution delineates the State boundaries and declares that "[t]he title to lands under navigable waters, within the boundaries of the state, ... is held by the state, ... in trust for all the people." Fla. Const. *1386 Art. 10 § 11, see also Fla. Const. Art. 2 § 1. Also, under the Submerged Lands Act, 43 U.S.C. § 1301 et seq., title to "the lands beneath navigable waters within the boundaries of the ... States ... and the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be ... vested in and assigned to the respective States...." 43 U.S.C. § 1311(a). Section 1312 of Title 43 of the United States Code sets the seaward boundaries of States at a distance of three geographic miles. See also F.S.A. §§ 253.03, 253.12. It is indisputable that the res lies within the boundary of Florida.
8. Under the common law of finds, ownership of abandoned property is generally assigned
without regard to where the property is found. Two exceptions to that rule are recognized: First, when the abandoned property is embedded in the soil, it belongs to the owner of the soil; Second, when the owner of the land where the property is found (whether on or embedded in the soil) has constructive possession of the property such that the property is not `lost,' it belongs to the owner of the land.
Klein, 758 F.2d at 1514 (citations omitted). Here, there can be little doubt that under the embeddedness exception to the common law of finds, JWI does not have a likelihood of success on the merits as to its claim to title and possession of the res. While perhaps only some of the artifacts may be buried or partially buried, it is established
that property need not be totally buried to satisfy the embeddedness requirement. What is affixed to the land belongs to the owner of that land.... [W]here a portion of a find is firmly affixed to the land, then even though other portions of it lie in loose surface soil, title to the entire find nevertheless rests with the land owner.
Chance, 606 F.Supp. at 806-07. Clearly, the res is embedded in soil which is owned by the state. Given this conclusion, it is unnecessary for the resolution of the pending motion to determine whether Florida has the power and intention to exercise dominion and control over the res so that constructive possession may be inferred. See Klein, 758 F.2d at 1514.
9. Assuming arguendo, that the Eleventh Amendment does not bar the adjudication of title in this action, and the law of finds is inapplicable, we consider JWI's preemption argument. Pursuant to its assertion of ownership Florida has enacted various statutes in furtherance of the management of its natural and historic resources. Florida Statute section 403.913(1) states that "[n]o person shall dredge ... on, or over surface waters without a permit from the [Department of Environmental Regulation]...."[4]See also F.S.A. § 253.04 (duty of Board of Trustees to protect state lands); F.S.A. § 253.77 (permission of Board of Trustees required in order to excavate land in which title has been vested in Board of Trustees); F.S.A. § 403.161(1)(b) (failure to obtain required permit creates civil liability under F.S.A. § 403.141). Also,
[i]t is ... declared to be the public policy of the state that all treasure trove, artifacts, and such objects having intrinsic or historical and archeological value which have been abandoned on state-owned lands or state-owned sovereignty submerged lands shall belong to the state and the title thereto vested in the Division of Historical Resources of the Department of State for the purposes of administration and protection.
F.S.A. § 267.061(1)(b). Accordingly, the State requires that permits be obtained for the research of historic sites on state lands, F.S.A. § 267.12(1), and the specimens collected by such research "belong to the state with the title vested in the [DHR] for the purpose of administration and protection." F.S.A. § 267.12(3). See also *1387 § 267.13 (penalties for violation of permit requirement). JWI contends that this statutory scheme impermissibly interferes with federal salvage law.
10. The basis of Plaintiff's contention is that these statutes work to prevent the salvage of the res arrested pursuant to this Court's admiralty jurisdiction and therefore impermissibly conflict with federal salvage law. "In its simplest form salvage can be described as a service voluntarily rendered in relieving property from an impending peril at sea or other navigable waters by those under no legal obligation to do so." M. Norris, Law of Salvage § 2, at 2 (1958); see also G. Gilmore & C. Black, The Law of Admiralty § 8-1 (1975). The law of salvage can be "traced to the Rhodian laws ...," M. Norris, supra, § 1, at 1, has been recognized throughout our history, see, e.g., Andrews v. Wall, 44 U.S. (3 How.) 568, 11 L.Ed. 729 (1844), and is codified in the Salvage Act of 1912.[5] 37 Stat. 242 (1912) (codified at 46 U.S.C. §§ 721-727 & §§ 729-731). In its pre-emption argument JWI relies on the caselaw which has established salvage actions as within the exclusive province of the federal courts, see e.g., Cobb Coin I, and the Salvage Act of 1912, specifically 46 U.S.C. section 722,[6] as well as 43 U.S.C. section 1301, and 19 U.S.C. section 1310[7]. Read as a whole, JWI contends that under the Supremacy Clause, these federal laws render the Florida licensing scheme nugatory.
11. Recently, in California Federal Savings and Loan Assn. v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), the Supreme Court summarized the three different ways in which state laws may be pre-empted under the Supremacy Clause. Initially, it was noted that "[i]n determining whether a state statute is preempted by federal law ... our sole task is to ascertain the intent of Congress." Id. at 107 S.Ct. 689 (citations omitted). The Court then stated that pre-emption of state law may be explicit in the Act of Congress. Id. (citing e.g., Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)). In the present case there is no suggestion that the law of salvage expressly preempts state regulation of the use of its land.
"Second, congressional intent to preempt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress `left no room' for supplementary state regulation." Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). As a third alternative, state law may be pre-empted where Congress has not completely displaced state regulation but "a conflict occurs either because `compliance with both federal and state regulations is a physical impossibility,' or because the state law stands `as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress.'" Id. (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963) and Hines v. Davidowitz, 312 U.S. 52, 67, 61 *1388 S.Ct. 399, 404, 85 L.Ed. 581 (1941)) (other citations omitted). It is important to note that "[p]re-emption of state law by federal statute or regulation is not favored `in the absence of persuasive reasonseither that the nature of the regulated subject matter permits no other conclusion, or the Congress has unmistakably so ordained.'" Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981) (quoting Florida Lime & Avocado Growers, Inc., 373 U.S. at 142, 83 S.Ct. at 1217).
12. There can be little doubt that the federal law of salvage is not meant to implicitly pre-empt the state power to regulate the use of its lands by establishing permit and licensing requirements. The Supreme Court has stated that "[e]ven though Congress has acted in the admiralty area, state regulation is permissable, absent a clear conflict with federal law." Askew v. American Waterways Operators, Inc., 411 U.S. 325, 341, 93 S.Ct. 1590, 1600, 36 L.Ed.2d 280 (1973). In Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941), the Supreme Court recognized that
a State, in the exercise of its police power, may establish rules applicable on land and water within its limits, even though these rules incidentally affect maritime affairs, provided that the state action "does not contravene any acts of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations."
Id. at 389, 61 S.Ct. at 692 (quoting The City of Norwalk, 55 F. 98, 106 (S.D.N.Y. 1893)); see also Askew, 411 U.S. at 338-40, 93 S.Ct. at 1598-99; Subaqueous Exploration and Archeology, Ltd., 577 F.Supp. at 610 (quoting Askew and collecting cases). Of course, the Florida statutes affect JWI's ability to conduct a salvage operation. Accordingly, we must determine whether the state regulatory scheme presents a clear conflict with or necessarily prohibits compliance with federal law, or otherwise works to interfere with a characteristic feature of the application of maritime law.
13. As we have observed, supra, the law of salvage is based on the premise that the owner of property abandoned at sea has not been divested of title. The law works to create an incentive for the rescue of imperiled property by granting an award for its salvage.
The performance of salvage services, like the furnishing of other services to a ship, gives rise to a maritime lien. Thus, a salvor may assert his right to a salvage award either in an in rem proceeding against the salved vessel or cargo or in an in personam proceeding against the owner of the salved property. Awards for performance of salvage services are not limited to a strict quantum meruit measure of the value of the services performed. Rather, the award is calculated to include a bounty or premium based upon the risk involved in the operation and the skill with which it was performed.
Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560, 567 (5th Cir.1981) (citations omitted) (Treasure Salvors II); see also G. Gilmore & C. Black, supra, § 8-1, at 532 (no similar incentive exists "on land" to save another's property or life). The statutes that vest title of the res with the State of Florida do not conflict with federal law because the law of salvage specifically comtemplates that the vessel's owner remains in existence. While the effect of these statutes may be to alter the ultimate determination of the identity of the owner of the abandoned property, they do not alter the manner in which salvage law operates. The basic underlying premise of salvage lawthe fiction of ownershipis not disturbed by the statutory scheme. From the assumption that the owner of this abandoned vessel is in existence, cf. Treasure Salvors I, 569 F.2d at 337 (absurd to assume that the owner of an historic shipwreck is in existence, and therefore law of finds should be applied), the conclusion necessarily follows that the "owner" may control the manner in which the property is *1389 salved. See Platoro Ltd., Inc., 695 F.2d at 901. Accordingly, the state statutory scheme does not work to conflict with characteristic features of salvage law, such as the incentive to rescue and the availability of reward; rather the statutes must be viewed as simply reflecting the "owner's" will with regard to the disposition of its property.[8]
JWI's reliance on the Cobb Coin cases is not persuasive. In Cobb Coin I, the court found that
[t]he Florida statute is inconsistent with the paramount maritime law of salvage in at least three respects: (1) it limits the right to explore navigable waters to search for salvageable sites to its licensees; (2) it permits `salvors' to work a sight exclusively notwithstanding a lack of diligence or success; and (3) it provides a fixed method of compensation in contrast to admiralty's flexible method of remuneration based on risk and merit.
Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F.Supp. 540, 553 (S.D.Fla.1982) (Cobb Coin II) (citing Cobb Coin I at 203-08). Generally, these cases found that the state statutes were pre-empted by federal law because the licensing requirements gave the state the power to determine who may act as a salvor, and the manner of compensation effectively destroying the "incentive" feature of salvage law. While it must be recognized that the rights of potential salvors may be limited by the statutory scheme, at best these rights must be viewed as inchoate until an abandoned vessel is actually found and a salvage action commenced. Even at that point, however, the owner is not divested of its interest in the vessel. It retains title to the res subject only to a maritime lien for the salvage services. G. Gilmore & C. Black, supra § 8-2, at 535-36 & n. 11. Also, an owner may refuse salvage services, id., § 8-2, at 536 & n. 12, and "[a] salvage award may be denied if the salvor forces its services on a vessel despite rejection of them by a person with authority over the vessel." Platoro Ltd., Inc., 695 F.2d at 901 (citations omitted); see also Klein, 758 F.2d at 1515. Accordingly, "potential salvors" do not have any inherent right to save distressed vessels. Their activities must be subject to the owner's acquiesence.
Recognition of the fiction of ownership which underlies salvage law, and Florida's colorable claim to title, compels the conclusion that rather than conflicting with federal law, the state licensing requirements are consonant with the purposes of salvage law. A finding that the state statutes are pre-empted would be to subordinate the rights of the "owner" to those of the "salvor." Such a result is not contemplated by the federal law. While we need not reach the merits of the ownership claim or the appropriateness of a salvage award, in this context we cannot find that the State of Florida must allow the property salved. While the State statutory scheme undoubtedly restricts one's ability to search for wrecks and recover their bounty, we cannot find that it removes any essential feature of salvage law or interferes with its uniform application. The State statute limits the utility of salvage law when the res is located in state waters. However, the police power of Florida to regulate the use of its land by establishing licensing requirements for dredging on state lands and for the research of historic artifacts on its lands has not been taken away from the State by federal salvage law. The principles of salvage law, as developed through the cases and by statute, have not stripped the State of the fundamental power to administer the use of its land.
Moreover, in the Cobb Coin cases the court was not squarely faced with the Eleventh Amendment issues as framed in the instant action. The ruling on the motion for preliminary injunction, in Cobb Coin I, *1390 was made without the benefit of the Supreme Court's decision in Treasure Salvors, supra. Then, in Cobb Coin II, while the court determined that the Eleventh Amendment did not bar the action because it was an in rem action and because the state statutes were preempted by federal law, Cobb Coin II, 549 F.Supp. at 551-52, that ruling was also based on the rationale that "Florida has consented to a determination of its rights by intervening in this lawsuit and subjecting its ownership claim for the Court's adjudication." Id. at 554. Here, we have no similar waiver of sovereign immunity.
Further, we agree with Judge Ramsey "that there is no comprehensive federal statutory scheme regulating the recovery of marine antiquities from state submerged lands...." Subaqueous Exploration, 577 F.Supp. at 610. Florida Statute section 267.061, which vests title in the state to historical artifacts is not in direct conflict with the Antiquities Act, 16 U.S.C. §§ 431-433, the Abandoned Property Act, 40 U.S. C. § 310, or the Marine Protection, Research, and Sanctuaries Act, 16 U.S.C. §§ 1431-1434. See id.
14. Our determination that JWI is without the likelihood of success on the merits of its claim to title and full possession precludes the entry of a preliminary injunction. "[I]t is [therefore] unnecessary to address the other prerequisites to such relief." Jefferson County, 720 F.2d at 1519. However, in order to create a full record we shall briefly consider the other elements.
15. The consideration of irreparable injury is, of course, inextricably bound with the question of ownership. Absent an ownership interest, the ultimate fate of the treasure is without any import to JWI, and its loss would not amount to an irreparable injury to that party. For the purposes of this analysis, however, we recognize that the vessel is in "marine peril." "Marine peril includes more than the threat of storm, fire, or piracy to a vessel in navigation.... Even after discovery of the vessel's location it is still in peril of being lost through the actions of the elements." Treasure Salvors I, 569 F.2d at 337 (footnote and citation omitted); see also Klein, 758 F.2d at 1516 (Kravitch, J., specially concurring in part and dissenting in part); Platoro, Ltd., Inc., 695 F.2d at 901 & n. 9; Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1055 & nn. 8 & 9 (5th Cir.), cert. denied, 449 U.S. 901, 101 S.Ct. 272, 66 L.Ed.2d 131 (1980); Cobb Coin II, 549 F.Supp. at 557; cf. MDM Salvage, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 631 F.Supp. 308, 312-13 (S.D.Fla.1986). Therefore, the theoretical loss to JWI by the State's prevention of the salvage activity would be irreparable. The historical value and the unknown quantity of coins made of precious metals, as well as other artifacts, makes it evident that monetary damages could not possibly make whole a party ultimately entitled to these antiquities for their loss. See Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir.1983) ("An injury is `irreparable' only if it cannot be undone through monetary remedies.").
16. The final two considerations for preliminary injunctive relief require a court to weigh the relative injury to the parties as well as any public harm. As stated at the outset, this case presents fundamental questions of federalism. To the extent we find that the application of the Eleventh Amendment controls this case, considerations of comity prevent this Court from determining that the interests of the State of Florida are either outweighed by any threatened harm to JWI, or are inconsistent with "public policy."
B. Motion to Remand
17. The complaint in the removed action avers that the State of Florida has title to and control of the subject lands pursuant to the Florida Constitution, Article 10, Section 11, and Florida Statutes sections 253.03, 253.12, 370.03. Accordingly, the State asserted that under Florida Statute section 253.04 "[n]o person may trespass, damage or cause depredation upon the lands owned by the State of Florida." [Complaint ¶ 16], and that before submerged lands owned by the State may be used, a permit must be *1391 granted by the Board of Trustees. [Id. at ¶ 17]. Further, the complaint asserts that JWI's excavation constitutes dredging, F.S.A. § 403.911(2), and that in order to engage in such activity a permit is required. F.S.A. § 403.913(1). Finally, the Complaint asserts that pursuant to Fla. Stat. § 267.061, the State has asserted title to the treasure trove located within the state-owned submerged lands, and that a permit is required to look for and excavate historic artifacts on state owned land. F.S. A. § 267.12. The State asserts that JWI is in violation of these statutes and that injunctive relief and the imposition of civil penalties is appropriate.
On August 24, 1987 JWI removed the action to federal court. 28 U.S.C. § 1441. The jurisdictional basis for removal was the assertion that the salvage activity is being carried out within the exclusive admiralty jurisdiction of the United States District Court. U.S. Const. Art. III § 2; 28 U.S.C. § 1333. JWI further contends that under the pre-emption doctrine, and the precedent of the Cobb Coin litigation, see Cobb Coin II, supra; Cobb Coin I, supra, admiralty or federal question jurisdiction is present. See 46 U.S.C. § 721 et seq.; 43 U.S.C. § 1301; 19 U.S.C. § 1310.
18. Title 28 U.S.C. § 1441 provides that actions brought in a State court may be removed by the defendant to the District Court of the United States when the District Court has original jurisdiction over the matter. Therefore, in order for removal to be proper, there must exist an independent basis for this Court to assert subject-matter jurisdiction. We will examine each purported basis of jurisdiction in turn.
B(1) Admiralty Jurisdiction
19. Article III, section 2, clause 1 of the Constitution contains a specific jurisdictional grant to the federal courts to "all cases of admiralty and maritime jurisdiction." The implementing legislation of that grant, 28 U.S.C. section 1333, provides:
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.
We must determine whether the state court complaint implicates the federal court's exclusive jurisdiction over admiralty cases.
It is patent that underlying the complaint in the removed action is the conduct of a party who has properly invoked the federal court's admiralty jurisdiction in the in rem action. The question is whether the State of Florida can in essence "end run" this Court's jurisdiction and contest JWI's conduct in state court; or whether an enforcement action, related to a salvage action can properly be heard in a federal forum.[9]
20. As noted by one commentator "the `exclusiveness' of the admiralty jurisdiction was, from the beginning, somewhat illusory." 7A Moore's Federal Practice ¶ .210, at 2201 (2d ed. 1988). Federal admiralty jurisdiction is concurrent with the state's where
[t]he "savings to suitors" clause leaves state courts competent to adjudicate maritime causes of action in proceedings in personam and means that "a state `having concurrent jurisdiction, is free to adopt such remedies and to attach to them such incidents, as it sees fit' so long as it does not attempt to [give in rem remedies or] make changes in the `substantive maritime law.'"
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222, 106 S.Ct. 2485, 2495, 91 L.Ed.2d 174 (1986) (quoting Madruga v. Superior Court, 346 U.S. 556, 560-61, 74 *1392 S.Ct. 298, 300-01, 98 L.Ed. 290 (1954) (quoting Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582 (1924))); see also Romero v. International Terminal Operating Co., 358 U.S. 354, 373-74, 79 S.Ct. 468, 480-81, 3 L.Ed.2d 368 (1959). The case commenced in state court is an in personam action. Therefore, the question of the presence of exclusive federal admiralty jurisdiction presents a two-pronged inquiry: first, whether the remedy sought is one in rem; or second, whether enforcement of the state law works to alter maritime law.
Of course, when looking behind the complaint we see the res which is the subject of the in rem action and must acknowledge that it is bound to the removed action. Madruga, supra, provides some guidance as to whether the fact that the res is the object of the state action means that the action actually is one in rem. In Madruga, an action for the sale and partition of a vessel was originally brought in state court. The defendant challenged the court's jurisdiction on the ground that only United States District Courts, sitting in admiralty, could assert jurisdiction in such a case. In construing the "savings to suitors clause," the Court stated that
Admiralty's jurisdiction is `exclusive' only as to those maritime causes of action begun and carried on as proceedings in rem.... But the jurisdictional act does leave state courts `competent' to adjudicate maritime causes of action in proceedings in personam, ...
Magdura, 346 U.S. at 560, 74 S.Ct. at 300 (citation omitted). There, the Court found that since the state court proceedings affected only the interests of the parties in the vessel and not the world at large,[10] the state court had appropriately exercised jurisdiction over the cause. Magdura, 346 U.S. at 561, 74 S.Ct. at 301.
In the present case, as noted above, the action was brought in personam, and affects only the parties to the suit. That is, the State's remedy, if appropriate, would prevent only JWI from excavating the submerged lands owned by the State. While it will also have the ancillary effect of preventing salvage of the wreck, we find that under Magdura, this factor alone cannot confer subject-matter jurisdiction upon this Court because the state court remedy would be in personam.
21. Further, we do not find that we may assume jurisdiction pursuant to 28 U.S.C. § 1333 because the state laws effectively alter federal maritime law. "Critical to a complete understanding of the interplay of state and federal law in admiralty is the crucial recognition that maritime law seeks to respect and accomodate the regulatory powers of the States...." Comind, Companhia de Seguros v. Sikorsky Aircraft Division of United Technologies Corp., 116 F.R.D. 397, 425 (D.Conn.1987) (citing Romero, 358 U.S. at 373-74, 79 S.Ct. at 480-81). Accordingly, state remedies and rules that take effect within the context of maritime cases have been upheld in a wide variety of contexts. See generally, Romero, 358 U.S. at 373 & nn. 34-40, 79 S.Ct. at *1393 480 & nn. 34-40. However, "state law must yield to the needs of a uniform federal maritime law...." Id. at 373, 79 S.Ct. at 480.
We have found that the state statutes are not pre-empted by salvage law. Specifically, the characteristic features of continued ownership of the distressed vessel, an incentive for rescue, and the availability of a salvage award remain intact. However, our recognition that the State may assert ownership in the vessel by virtue of its dominion over the territory in which the res rests, necessarily indicates that the State may control the manner in which the res is salved. Accordingly, the salvage of an historic vessel may proceed on differing courses depending on whether the res is found in State waters or the high seas. That result, rather than indicating that salvage law is being applied inconsistently because of the state statutes, is merely a recognition that when the identity of the owner is known, that entity can effectively interfere with one's "right" to salvage. We are therefore unconvinced that an enforcement action based upon a state licensing scheme, such as we have here, encroaches on any existing federal admiralty policy. See also pre-emption discussion supra.
Considerations of comity militate against federal courts asserting jurisdiction because an admiralty issue may be implicated. Under the savings to suitors clause of 28 U.S.C. § 1333 the removed action does not state a claim of which the district court has exclusive jurisdiction. "[F]ederal district courts are bound to refuse jurisdiction to maritime claimants, who do not invoke the district court's admiralty jurisdiction, unless there is an independent ground of federal jurisdiction, such as diversity or some specific statutory grant...." 7A Moore's Federal Practice ¶ .210, at 2209. Here, JWI has not invoked this Court's admiralty jurisdiction in the removed action.
B(2) Federal Question Jurisdiction
22. Alternatively, Plaintiff contends that removal is appropriate here because the complaint filed in state court presents a federal question. We disagree. It is axiomatic that for federal question jurisdiction to exist, the federal question must appear on the face of a well-pleaded complaint. See, e.g., Gully v. First National Bank in Meridian, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936). Moreover, federal jurisdiction may not be founded upon a defense based on federal law, Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908), or because the cause of action raised in the complaint is preempted by federal law. Franchise Tax Board of State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed. 2d 420 (1983). The complaint filed in the removed action relies solely on state law for the remedies sought. To the extent JWI asserts that the Complaint rests on substantive admiralty law, removal is nonetheless inappropriate. First, we have rejected, supra, the contention that the federal district court has exclusive admiralty jurisdiction over the action. Second, to the extent JWI may be implying that admiralty jurisdiction is a subset of federal question jurisdiction, and therefore removal is appropriate because subject matter jurisdiction exists pursuant to 28 U.S.C. section 1331, the Supreme Court rejected that argument long ago in Romero, supra.
"Of Course, all cases to which `judicial power' extends `arise,' in a comprehensive, non-jurisdictional sense of the term, `under this Constitution.'" Romero, 358 U.S. at 368, 79 S.Ct. at 478. However, after an exhaustive survey of the relationship between admiralty jurisdiction and federal question jurisdiction, id. at 359-380, 79 S.Ct. at 473-85, Justice Frankfurter, writing for the Court, concluded in Romero that they were separate and distinct jurisdictional grants. This decision was based, in part, on the recognition that
[n]ot only would the infusion of general maritime jurisdiction into the Act of 1875 disregard the obvious construction of that statute. Important difficulties of judicial policy would flow from such an *1394 interpretation, an interpretation which would have a disruptive effect on the traditional allocation of power over maritime affairs in our federal system.
Thus the historic option of a maritime suitor pursuing a common-law remedy to select his forum, state or federal, would be taken away by an expanded view of § 1331, since saving-clause actions would then be freely removable under § 1441 of Title 28.
Id. at 371-72, 79 S.Ct. at 479-80 (footnotes omitted). Accordingly, JWI's contention that federal question jurisdiction exists because of the underlying admiralty action must fail.
Finally, Defendant contends that federal statutes, 46 U.S.C. section 722, 19 U.S.C. section 1310, and 43 U.S.C. section 1301 control the disposition of this case. However, it is evident from the face of the complaint the Plaintiff's cause of action does not arise from these federal laws. They simply do not appear in the Complaint. Even if these laws were to provide a defense or preempt state law, they still would not form a basis for the removal of the action. The complaint in the state action simply does not arise under federal law. See, e.g., Gully, supra; Mottley, supra, Osborn v. Bank of the United States, 22 U.S. (9 Wheat) 738, 6 L.Ed. 204 (1824); T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir.1964). Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:
1. JWI's motion for preliminary injunction in case 87-8548-CIV-MARCUS is GRANTED to the extent that JWI seeks relief as against any persons or entities other than the State, and DENIED to the extent that JWI seeks relief as against the State.
2. The State's motion for remand in case 87-8619-CIV-MARCUS is GRANTED.
NOTES
[1] On May 23, 1988 JWI filed a Motion To Allow Salvage To Proceed. Therein the salvor claimed that the federal assertion of title under section 6(a) of the Abandoned Shipwreck Act of 1987, and the transfer of title to the state under section 6(c) of that Act, makes clear that prior to the enactment of this law title to the res was not held by the State. JWI contends that if the State held title there would have been no need to enact this legislation, and that this Court is compelled to construe this Act so that it has some meaningful effect.
We decline to adopt such a view. First, this case does not require us to interpret this law. Second, assuming arguendo that this legislation is instructive as to the ownership of the res, we find that it is not dispositive here. The purpose of this Act was to eliminate the confusion over ownership of historic shipwrecks in State waters. To that end, we view the legislation as supplanting existing law on the subject. Section 7(a) states explicitly that "[t]he law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 6 of this Act applies." Accordingly, to the extent that this Act may be informative as to the state of the law which operates as to this case, it underscores our conviction that we must apply the law of finds and the law of salvage to these facts. We reject the notion that it dispositively establishes that the State of Florida does not have a colorable claim to title of the res here.
[2] The particular facts of this case highlight these conflicts. While the State maintains that theoretically the licensing procedures afford salvors the opportunity to ply their trade after obtaining the requisite permits, here any attempts by JWI to gain the state's permission will be futile. The State has represented that under the circumstances of this case, JWI cannot get a permit to salve this wreck even if a permit application was made. [See Transcript of Hearing Before the Honorable Stanley Marcus, September 14, 1987 at 33-35].
[3] The in rem action was originally filed by Dominic Addario, Jr. Also, Dominic Addario, Jr. was the original Defendant in the removed action. On September 14, 1987 this Court entered an Order substituting Jupiter Wreck, Inc. for Dominic Addario, Jr. as a party in both actions. For purposes of clarity we shall refer to Jupiter Wreck, Inc. as though it has appeared as a party throughout these proceedings.
[4] Florida Statute § 403.911(2) states:
The term `dredging' means excavation, by any means, in waters. It also means the excavation, or creation, of a water body which is, or is to be, connected to waters, directly or via an excavated water body or series of excavated water bodies.
[5] Section 724 of Title 46 U.S.C. concerns the licensing of "wreckers" on the coast of Florida. It has been held that
The business of searching for and recovery from the bottom of the sea, treasure and artifacts lost centuries ago is not the business of saving property shipwrecked and in distress and is, therefore, not the business contemplated by the Act requiring a license.
In re Andrews, 266 F.Supp. 162, 165 (M.D.Fla. 1967).
[6] Section 722 of Title 46 U.S.C. states:
All property, of any description whatsoever, which shall be taken from any wreck, from the sea, or from any of the keys and shoals, within the jurisdiction of the United States, on the coast of Florida, shall be brought to some port of entry within the jurisdiction of the United States.
[7] Section 1310 of Title 19 U.S.C. states:
Whenever any vessel laden with merchandise, in whole or in part subject to duty, has been sunk in any river, harbor, bay, or waters subject to the jurisdiction of the United States, and within its limits, for the period of two years and is abandoned by the owner thereof, any person who may raise such vessel shall be permitted to bring any merchandise recovered therefrom into the port nearest to the place where such vessel was so raised free from the payment of any duty thereupon, but under such regulations as the Secretary of the Treasury may prescribe.
[8] Again, we emphasize that we make no finding as to the issue of the State's ownership of the res. For the purposes of JWI's pre-emption argument, we merely recognize that the operation of the State's statutes that vest ownership of the land and property with the State are consistent with the fundamental premise in salvage law that an owner of the res exists. In testing the validity of the statutes, we are simply assuming arguendo that they would work to give the State title, and do not make any determination in that regard.
[9] The Florida licensing requirements are meant, in part, to prevent unauthorized dredging of State lands. The Supreme Court has noted that "[h]istorically, damages to the shore or to shore facilities were not cognizable in admiralty." Askew v. American Waterways Operators, Inc., 411 U.S. 325, 340, 93 S.Ct. 1590, 1599, 36 L.Ed.2d 280 (1973) (citations omitted). While Congress has extended the boundary of admiralty jurisdiction "it hardly follows ... that we must sanctify the federal courts with exclusive jurisdiction to the exclusion of powers traditionally within the competence of the States." Id. at 341, 93 S.Ct. at 1600.
[10] An interpretation of the state court proceeding in Madruga which would have supported JWI's position here simply did not win the support of a majority of the Supreme Court. In dissent, Justice Frankfurter forcefully argued that the Court should look behind the pleadings to the realities of the controversy.
If this is not an action against a thing, in the sense in which that has meaning in the law, then the concepts of a res and an in rem proceeding have an esoteric meaning which I do not understand. From the terms of the complaint for partition through the opinion of this Court authorizing the State court to grant it, there is not the remotest suggestion that we are dealing with a remedy to enforce a separate underlying personal claim. Here the ship's the thingnot a claim outside the ship for which an ancillary remedy against the ship is sought. Cf. Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 [20 S.Ct. 824, 44 L.Ed. 921 (1900)]. Is it to be doubted that if California procedure required the proceeding to be brought by name against the Oil Screw Vessel Liberty, Official No. 256332, or if the action had in fact been so entitled, it would inescapably be deemed an action in rem? To make the existence of State power depend on such tenuous formalities is to make questions of jurisdiction in matters maritime, as between federal and State courts, turn on distinctions much too frail.
Madruga, 346 U.S. at 564-65, 74 S.Ct. at 303 (Frankfurter, J., dissenting). Of course, we are bound to follow the bright-line rule adopted by a majority of the Supreme Court.
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85 F.3d 633
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED MORTGAGE & LOAN INVESTMENT CORPORATION, Appellee,v.Patrick C. MAHONEY; Veronica G. Mahoney; Charles F.Mahoney; Delcie Mahoney; Defendants,Leonard MINOR; Mary L. Minor; Appellants,UNITED STATES of America; Arkansas Department of Financeand Administration, Defendants.
No. 95-3153.
United States Court of Appeals, Eighth Circuit.
Submitted: May 3, 1996.Filed: May 13, 1996.
Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
PER CURIAM.
1
Leonard and Mary Minor appeal from the district court's1 grant of summary judgment in favor of United Mortgage Loan & Investment Company in this diversity action arising out of a foreclosure on real property. Having carefully reviewed the parties' briefs and submissions, we conclude the judgment of the district court was correct. Accordingly, we affirm. See 8th Cir. R. 47B.
1
The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas
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154 B.R. 346 (1993)
In re James R. McATEE, Debtor.
Bankruptcy No. 92-05244.
United States Bankruptcy Court, N.D. Florida, Pensacola Division.
April 21, 1993.
*347 Charles Hoskin, Pensacola, FL, for creditor.
James R. McAtee, pro se.
Ronald A. Mowrey, Tallahassee, FL, trustee.
ORDER DENYING OBJECTION TO EXEMPTION
LEWIS M. KILLIAN, Jr., Bankruptcy Judge.
THIS CAUSE was heard by the Court on the objection of a creditor, Don Lanier, to the debtor's claim that a leasehold interest in a residence on Santa Rosa Island is exempt as homestead property. Upon the consideration of written submissions and the oral argument of counsel, the Court finds that the subject leasehold interest is exempt from the estate as homestead property, and accordingly, denies the creditor's motion objecting to the claimed exemption.
The facts upon which the outcome of the present controversy turns may be simply stated. The debtor filed a Chapter 7 petition with the Court on November 16, 1992. Schedule C lists the debtor's one-third interest in a residence subject to a ground lease and located on Santa Rosa Island as property exempt from the estate pursuant to the state's constitutional homestead provision.
The ground lease in question was entered into on March 15, 1968 by the Santa Rosa Island Authority (the "Authority"), an agency of Escambia County, Florida, as lessor and Hillard and Jean Peavy as lessee. The debtor and his then wife assumed the lease by assignment on August 7, 1979. The lease has an initial term of 99 years, and calls for an annual rental of $40.00 plus a maintenance and development fee of $25.00 payable in advance. Among its many terms and conditions, the lease limits the use of the land to a single family residential dwelling, and requires the lessee to rebuild the dwelling in the event of its destruction. The lease expressly provides that it may be assigned, mortgaged, pledged, or transferred without the prior approval of the Authority.
The objecting creditor argues that a leasehold interest in real property is classified as chattel real and regarded as personal property under Florida law. As such, the debtor would be limited to a $1,000 exemption for personal property. The creditor makes no argument that the debtor's leasehold interest is defective in any manner, nor that the debtor would not be entitled to the homestead exemption if the ground interest was in fee simple rather than a leasehold. Thus the sole issue before the Court is whether an otherwise eligible debtor may claim a homestead exemption for a residence subject to a leasehold interest of this nature.
Florida has opted out of the federal exemption scheme pursuant to Section 522(b), Fla.Stat.Ann. § 222.20 (West 1989), and instead makes available to its residents a state statutory exemption scheme. The Florida Constitution provides for a homestead exemption from forced sale, and states in relevant part:
"There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, . . . the following property owned by a head of family . . . a homestead [and] personal property to the value of one thousand dollars." Fla. Const. Article 10, Section 4 (amended 1984).
The Court's analysis of the problem begins with the observation that the state has a long and well established history of liberally construing and applying its homestead exemption. See, e.g., Hill v. First National Bank of Marianna, 79 Fla. 391, 84 So. 190 (1920). This is so because the homestead law furthers important public policy considerations such as promoting the stability and welfare of the state by encouraging *348 property ownership and the independence of its citizens by preserving a home where a family may live beyond the reaches of economic misfortune. In re Ehnle, 124 B.R. 361, 363 (Bankr.M.D.Fla. 1991).
The creditor urges the Court to adopt an interpretation of the term "owned" in the state homestead provisions which essentially equates ownership with only those having title in fee simple absolute. The creditor argues that because the debtor here has only a leasehold interest in his residence he can claim a homestead exemption of only $1,000 for personal property. Fla. Const. Article 10, Section 4(a)(1) (amended 1984).
The Court finds the Florida Supreme Court decision in Williams v. Jones, 326 So.2d 425 (Fla.1975), especially important to the resolution of the instant case. The Williams case involved a question of whether property on Santa Rosa Island under lease from the Authority could be properly taxed as real estate. In discussing the nature of the lessee's property interest, the Supreme Court noted:
Turning to the law on the subject of ownership interest by the lessee, we find that, in the law of real property, it is well established that a valid lease for a term of years is a conveyance of an interest in land. A lessee's interest in a leasehold estate is thus stated: `During the life of a lease, the lessee holds an outstanding leasehold estate in the premises, which for all purposes is equivalent of absolute ownership. The estate of the lessor during such time is limited to his reversionary interest, which ripens into perfect title at the expiration of the lease.'
Williams, 326 So.2d at 433. (citations omitted) (quoting State Road Dept. v. White, 148 So.2d 32 (Fla.App. 2nd 1962), cert. discharged, 161 So.2d 828 (Fla.1964)).
The court, in deciding the ad valorem taxation of leased public property as real estate was constitutional, also drew upon statutory language which indicated the legislature's desire to limit exemptions from real property taxation for those private uses on leased government land utilizing state sponsored tax exempt bonds. Section 196.199 which addresses tax exemptions for government property provides in part:
"Property which is originally leased for 99 years or more, exclusive of renewal options, shall be deemed to be owned for purposes of this section." Fla.Stat.Ann. § 196.199(7) (West 1971) (as amended 1976).[1]
Thus, both the Florida Supreme Court and Legislature have characterized long term leasehold interests as a real property interest rather than a personal property interest. The Court concludes the state's courts would recognize a forced sale homestead exemption under the present circumstances.
The creditor argues that the considerations underlying the taxation homestead exemption are not relevant to the forced sale homestead exemption. The creditor cites In re Duque as standing for the proposition that the taxation homestead exemption decisions are not necessarily relevant to forced sale exemption decisions. 33 B.R. 201, 202 (Bankr.S.D.Fla.1983). The Court dismisses the Duque case because it, and the cases discussed within it, deal only with those situations arising from a forced sale homestead exemption claimed on shareholder possessed, but corporately owned property. None of the situations involved in Duque dealt with long term leasehold interests. Thus, the cited Duque language arose because its court was concerned with distinguishing between differing decisions involving debtors with a simple possessory interest. Moreover the Court finds the state characterization of the property interest held by the debtor here to be entirely relevant to the present dispute. The Florida Supreme Court's finding in Williams, supra, that a long term lease on Santa Rosa Island granted by the Authority was in the nature of real property for taxation purposes is directly relevant and highly *349 influential to a determination of whether the debtor in this case is entitled to a forced sale homestead exemption.
The Court likewise finds unpersuasive the creditor's other cited authorities which hold that more than a possessory interest in land is needed for finding a property exempt from forced sale. Neither Bowers v. Mozingo, 399 So.2d 492 (Fla. 3rd D.C.A. 1981) nor McCall v. Barnett Bank, 74 B.R. 666 (Bankr.M.D.Fla.1987) involved a party who constructed and maintained a residential dwelling at their own cost under a long-term lease from a governmental agency. In re Tenorio, 107 B.R. 787 (Bankr. S.D.Fla.1989) did involve a written lease, but simply held that a year-to-year lease on a condominium unit constructed and held in fee simple by a third party was insufficient to give rise to the requisite ownership interest.
The creditor asks the Court to adopt an interpretation that would deny the protection of the forced sale homestead exemption to potentially thousands of homeowners merely because their residences are situated on public lands under long term leases. The Court finds unfathomable given the historically liberal application of the homestead exemption that the state would compel the lessee to construct and maintain a single family residence during the term of the lease at his own risk and value the resulting property as real property for taxation purposes, and then not extend the lessee the protection offered by the homestead exemption from forced sale.
The Court finds that the debtor's leasehold interest is an ownership interest sufficient to satisfy the requirements of the state homestead exemption to forced sale. Accordingly, it is
ORDERED and ADJUDGED that the creditor's objection to the debtor's claimed exemption be, and hereby is denied.
DONE AND ORDERED.
NOTES
[1] In 1980, Section 196.199(7) was amended to provide that leases for terms of 100 years or more, exclusive of renewal options, were deemed to be owned for purposes of the taxation exemption.
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372 F.Supp. 223 (1974)
I-291 WHY? ASSOCIATION, on behalf of itself and its members
v.
Joseph B. BURNS, as Connecticut Commissioner of Transportation, et al.
Civ. No. H-229.
United States District Court, D. Connecticut.
February 7, 1974.
*224 *225 *226 Haynes N. Johnson, and Alphonse R. Noë, Stamford, Conn., for plaintiff.
Robert K. Killian, Atty. Gen., Clement J. Kichuk, Asst. Atty. Gen., Samuel Kanell, Special Asst. Atty. Gen., Stewart H. Jones, U. S. Atty., Henry S. Cohn, *227 Asst. U. S. Atty., Hartford, Clifford R. Oviatt, Jr., Bridgeport, Conn., Andrew S. Aharonian, New Britain, Conn., for defendants.
RULING ON MOTION FOR PRELIMINARY INJUNCTION
BLUMENFELD, Chief Judge.
Plaintiff is an unincorporated association of persons aggrieved by present plans for the construction of the southwest quadrant of I-291, a multilane, controlled access, divided highway which would run for about 7.6 miles through Rocky Hill, Wethersfield, Newington, New Britain, and Farmington, Connecticut, linking I-91 south of Hartford, Connecticut, with I-84 west of Hartford. This quadrant was originally planned as only part of an entire circumferential beltway around metropolitan Hartford. The southwest quadrant (Rocky Hill to Farmington) of this beltway is the only portion thereof which is nearing construction, and is the only portion thereof which is directly in issue in this action. For convenience I will refer hereinafter to this southwest quadrant by its family name, "I-291."
Plaintiff, whose standing to bring this action has not been challenged, has filed a complaint seeking injunctive and declaratory relief. Plaintiff asserts that this Court has jurisdiction over the action under 28 U.S.C. §§ 1331, 1337, 1361, 1391, 2201 and 2202. Alleged as separate causes of action are defendants'[1] breach of four federal statutes.[2] In moving for a preliminary injunction to halt construction of I-291, plaintiff has by agreement with defendants restricted its attack to its first cause of action: defendants' alleged breach of the duties imposed on them by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4331 et seq.[3] Plaintiff enumerates *228 in five counts defendants' alleged failure to comply with NEPA, four of the five counts touching directly or indirectly on the adequacy of the Environmental Impact Statement (EIS) on I-291 prepared by defendants. The first count alleges that the air pollution and noise generated by I-291, as indicated by defendants' own studies made after completion of the EIS, will be so great as to violate the substantive mandate of section 101(b)(3) of NEPA, 42 U.S.C. § 4331(b)(3), directing federal agencies to act so as to "attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." The second count accuses defendants of failing to act in accordance with the "continuing responsibility" for environmental problems required of federal agencies by section 101(b) of NEPA, insofar as they failed to incorporate air and noise pollution data obtained by them after completion and approval of the original EIS, into a supplemental EIS duly circulated among and approved by responsible public agencies. The third count alleges that the original EIS was not prepared in accordance with pertinent Federal Highway Administration (FHWA) guidelines, and count four alleges that the EIS lacked the adequacy and good faith preparation required by NEPA, and that the EIS was not prepared "by the responsible official" as directed by NEPA. The fifth count asserts that defendants violated their duty of "continuing responsibility" under NEPA by failing to file a supplemental EIS once it became apparent that the southwest quadrant of I-291 would be the only portion of the entire Hartford metropolitan beltway to be *229 constructed in the foreseeable future. Issue was joined on these five counts at a hearing of several days' duration on plaintiff's motion for a preliminary injunction.
I.
BACKGROUND
The general location for an expressway such as I-291 has been under consideration for some twenty years.[4] Public hearings on possible routes to be used were held in 1959 and 1961.[5] Public hearings on the design of the highway were held in 1969, 1970, and 1971.[6] The proposed highway was divided into two projects of roughly equal length, designated Conn. Projects Nos. 93-74 and 51-130. Design study reports on these projects were submitted to the FHWA, together with a request for design approval, in August, 1970,[7] and were resubmitted in revised form in December, 1970.[8] At this time the cost of constructing I-291 was estimated to be $31,500,000.[9] If I-291 is constructed as part of the federal interstate highway system, 90 per cent of the cost will be borne by the federal government, and 10 per cent by Connecticut. See 23 U.S.C. § 120(c).
It has not been disputed that FHWA supervision and funding of the planning and construction of I-291 by the FHWA constitutes "a proposal for major federal action" within the purview of section 102(C) of NEPA, which became effective January 1, 1970. Thus on February 1, 1971, the FHWA Division Engineer for Connecticut advised the Commissioner of the Connecticut Department of Transportation (CONNDOT) that an EIS would be required for I-291.[10] Personnel of CONNDOT's Bureau of Highways accordingly prepared a rough draft of an EIS.[11] This rough draft was reviewed in February, 1971, by David Densmore, a field employee of the Connecticut division of the FHWA.[12] Defendant George Koch, then Chief of Design for the CONNDOT Bureau of Highways (until March, 1971), supervised preparation of a preliminary draft EIS based on the earlier rough draft and Densmore's comments thereon.[13] During the preparation of the preliminary draft, Densmore and two other FHWA engineers spoke almost daily, in person or by telephone, with CONNDOT personnel concerning the draft EIS.[14] Defendant Koch testified that the resulting preliminary draft was based more on his experience and knowledge of the *230 project than on empirical data.[15] This preliminary draft was filed with the FHWA in June, 1971,[16] and circulated among other federal agencies,[17] including the Council on Environmental Quality (CEQ), but not including the Environmental Protection Agency (EPA).
After comments from these agencies on the preliminary EIS were received by the FHWA and CONNDOT, and after a multi-disciplinary team of experts in environmental problems had reviewed the draft EIS at the regional office of the FHWA, see Conservation Society of Southern Vermont v. Secretary of Transportation, 362 F.Supp. 627, 630 (D.Vt.1973) (Circuit Judge Oakes), the final EIS was written by CONNDOT personnel in cooperation with Densmore and other FHWA employees.[18] Also contributing to the final EIS was defendant A. J. Siccardi, who upon transfer from another state became the FHWA Division Engineer for Connecticut on June 26, 1971.[19] The final EIS[20] was submitted to the FHWA's divisional office on February 24, 1972.[21] This office forwarded the final EIS to the FHWA's regional office on February 28, 1972, with a cover letter noting that the EIS had been prepared in conformance with FHWA guidelines and recommending the EIS's acceptance.[22] After acceptance by the regional and Washington offices of the FHWA and the office of the Secretary of Transportation, the final EIS was filed with the CEQ on September 18, 1972.[23]
On or about October 4, 1972, public notice was given by newspaper publication that the EIS would be available for inspection for thirty days thereafter.[24] Shortly after the expiration of this thirty-day period, defendant Siccardi granted formal design approval for I-291 on November 6, 1972.[25] On that same day, however, defendant Siccardi requested CONNDOT to give "further consideration" to the noise and air quality impacts of I-291, to reflect advances in noise and air quality evaluation techniques since preparation of the I-291 EIS and design study reports.[26]
*231 CONNDOT personnel completed a noise impact evaluation for I-291 in February, 1973.[27] When it sent this report to defendant Siccardi on March 6, 1973, CONNDOT noted that the report showed one area of open space to be noise sensitive, and recommended construction of a mound ten feet in height to attenuate this noise.[28] Defendant Siccardi's office concurred in this recommendation on April 4, 1973.[29]
CONNDOT commissioned an air quality study by The Research Corporation of New England (TRC),[30] which was forwarded to defendant Siccardi on June 8, 1973.[31] This report showed that projected 1990 traffic along I-291 would, under "worst-case" meteorological and traffic conditions, cause the level of hydrocarbons in the air to exceed EPA standards at three points near the expressway.[32] On June 14, 1973, defendant Siccardi approved CONNDOT's "plans, specifications, and estimates" (P.S.&E.) for the first two miles of I-291 from I-91 to the Newington-Wethersfield town line.[33] This P.S.&E. approval committed the United States to paying its 90 per cent share of the cost of the construction outlined in the P.S. &E. See 23 U.S.C. § 106(a). See generally Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1328 (4th Cir. 1972), cert denied sub nom. Fugate v. Arlington Coalition on Transportation. 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261. In the same letter in which he approved the P.S.&E. for this project, defendant Siccardi also authorized CONNDOT to solicit bids for the construction of the first two miles of I-291.[34] On *232 September 6, 1973, a $10,996,216.92 contract for this construction was awarded to Arute Brothers, Inc. (Arute).[35] Arute began work under the contract on September 19, 1973.[36] Its operations to the date of the hearing consisted of grading, clearing, and drainage work, and the construction of temporary approaches.[37]
On October 12, 1973, defendant Siccardi notified CONNDOT that his office was accepting "without reservation the Air Quality Study as submitted."[38] A memorandum of the same date from FHWA field engineer Densmore to Siccardi[39] noted that reevaluation of the study had been prompted by the circulation on August 31, 1973, of an FHWA "Notice of Air Quality," a document not part of the record in this case but apparently concerned with air quality standards for federally funded highways.[40] The Densmore memorandum accepted the conclusion of the TRC study that I-291 would not cause significant air quality problems, and recommended no further delay in "future P.S. &E. approvals for the remaining projects on this section [of I-291] due to air quality considerations."[41]
II.
LACHES
The defendant state and federal officials as well as the Connecticut Construction Industries Association (as amicus curiae) have asserted laches as an affirmative defense to plaintiff's action. Comprehensive consideration of this defense is necessary because of the differing significance regarding laches, individually or in various combinations, of the alleged failures of defendants to comply with NEPA and the hardships threatened by plaintiff's claims for relief as to each such failure. The essence of defendants' laches claim is that plaintiff was on notice of the contents of the final EIS for I-291 once the EIS was made available for public inspection on or about October 4, 1972, and for thirty days thereafter. Thus defendants contend that it was unreasonable for plaintiff to wait until November 12, 1973, to file its complaint challenging the adequacy of the EIS. Defendants claim prejudice because in the intervening thirteen months the design of I-291 was given final FHWA approval (November 6, 1972), the P.S.&E. for the initial segment was approved (June 14, 1973), bids were solicited and a contract for the initial segment awarded (September 6, 1973), and construction had begun (September 19, 1973).
Defendants rely primarily on Clark v. Volpe, 342 F.Supp. 1324 (E.D.La.1972), aff'd 461 F.2d 1266 (5th Cir. 1972), in which laches was held to bar a suit to stop an interstate highway for, among other reasons, the failure of federal officials to file an EIS. Federal P.S.&E. approval[42] of the highway was granted *233 in May, 1971; construction began in July, 1971; plaintiffs filed suit in February, 1972. Assuming, arguendo, that the May, 1971, P.S.&E. approval date was the crucial date for determining the applicability of laches, the Clark court concluded that plaintiffs had delayed unreasonably in waiting to bring their action, since at the time of the hearing on laches, one month later, the contested construction was 25-30 per cent complete.
"It is inconceivable that plaintiffs, charged with knowledge of approximately fifteen years of publicity concerning the highway, were not on notice as of May 25, 1971 that actual construction would soon proceed unless legal action was promptly initiated. Nevertheless, plaintiffs stood idly by during the remaining months as bulldozers and chain saws stripped and leveled the land and as vast sums of public money were expended on highway construction. Finally, after the area had been laid barren of trees or grass, and after several million dollars had been spent for highway development, plaintiffs, on February 24, 1972, belatedly filed suit to halt construction. The Court holds that, under the circumstances of this particular case, plaintiffs' delay in filing suit, during which delay the very acts of which they complain were being performed, was unreasonable, and defendants and intervenors would be substantially prejudiced if plaintiffs were allowed injunctive relief." Clark v. Volpe, supra, 342 F.Supp. at 1329.
Plaintiff does not dispute the validity of Clark's statement of the law of laches, and is content to distinguish Clark on its facts. Plaintiff invokes the equitable nature of the doctrine of laches, and from this perspective stresses what it considers to have been inequitable aspects of defendants' conduct. Thus plaintiff emphasizes that the best evidence of the possible inadequacy of the I-291 EISthe air and noise pollution studies requested by the FHWA on the same day as design approval for the project was grantedwas not made known to the public.[43] Plaintiff also notes that the two mile segment on which construction was started was not separated from the rest of the I-291 project and slated for early construction until after design approval. See p. 236, infra. Plaintiff contends that once it became apparent that this first segment would be constructed in advance of the rest of the project, it advised Arute and state and federal officials in September, prior to the start of construction, of its continuing objection to construction of I-291.[44] Plaintiff retained counsel on October 25, 1973, and it was apparently not until counsel's inspection of CONNDOT's files on October 31, 1973, that the supplemental air and noise pollution studies were made known to plaintiff.[45] On these facts plaintiff contends it was duly diligent, and that Arute and state and federal officials were put on notice that their failure to agree to a moratorium on construction might expose them to the risk of an injunction after commencement of construction.
Defendants' view of the facts stresses the prejudice which would be suffered by their agents should construction of I-291 be enjoined. Defendant Koch has estimated Arute's per diem expenses while construction is in progress to be $27,200.[46] Some of this expense would *234 continue, and new expenses of storage and protection of materials would be incurred, should an injunction issue.[47] Koch also estimates the cost of restoring destroyed vegetation to be in excess of $100,000.[48] Land acquisition and design of the expressway have been largely completed by the state; Koch estimates Connecticut's expenses in these regards to be $15,000,000.[49]
It must be noted preliminarily that this lattermost figure for Connecticut's general expenses in connection with I-291 cannot fairly be weighed against plaintiff in considering the applicability of laches. Connecticut has been planning and preparing for a highway such as I-291 since the 1950's. Only a fraction of the expenses thus incurred by Connecticut could have been avoided or postponed had plaintiff brought suit as soon as its cause of action under NEPA accrued, and defendants have made no showing as to what this fraction might be. In this regard, it is important to remember that what is in issue here is not the state's decision to build an expressway but rather the federal government's decision to participate in the construction of that expressway by approving its design, incorporating it within the interstate highway system, and accordingly underwriting 90 per cent of its cost. Plaintiff had no right, let alone obligation, to bring suit until the FHWA's sponsorship of I-291 reached the point of a "proposal for . . . major Federal action" within the ambit of section 102(2) (C) of NEPA, 42 U.S. C. § 4332(2)(C), and whatever the consideration to which the state's prior expenditures might be entitled in this Court's weighing of the equities of granting injunctive relief, these prior expenditures are not material to the issue of laches.
Because of the many stages at which FHWA approval is required if a state highway project is to be funded as an interstate highway, see generally Arlington Coalition on Transportation v. Volpe, supra, 458 F.2d at 1328, neither the record of this case nor prior law conclusively establishes any single FHWA decision as the crucial one which transformed I-291 from a tentative project into a proposal for major federal action which plaintiff could attack through NEPA. Apportionments among the states of available federal highway funds are made each fiscal year, under 23 U.S.C. § 104. After receiving notice of their apportionments, the states are to submit programs of proposed projects to be funded by the apportioned moneys. 23 U.S.C. § 105. Approval of a state's program under 23 U.S.C. § 105 is a prerequisite to submission of P.S.&E. for approval under 23 U.S.C. § 106. But 23 U.S.C. § 128, requiring public hearings on proposed interstate highways' locations, and reports of consideration given to objections to proposed interstate highways' locations and designs expressed at such hearings, has been interpreted by the FHWA as requiring the additional steps of "location approval" and "design approval" before P.S.&E. approval. Thus FHWA Policy and Procedure Memorandum (PPM) 20-8, "Public Hearings and Location Approval," promulgated January 14, 1969,[50] sets up a "two-hearing procedure" for compliance with 23 U.S.C. § 128.[51] A "corridor public hearing" must be held to consider the location of a proposed highway project, and a transcript of this hearing transmitted to the FHWA, before the FHWA division engineer may approve the route location and authorize design engineering.[52] After "location approval," a "highway design public hearing" must be held to provide "a full opportunity for presenting views on major highway design features, including the social, economic, environmental, and other effects of alternate designs," before the FHWA division engineer can *235 grant "design approval."[53] P.S.&E. approval cannot precede design approval.[54]
The FHWA has established location approval as the stage at which a state highway project proposed in contemplation of federal funding must be the subject of an EIS. Thus PPM 90-1,[55] which evolved from the FHWA's November 24, 1970, interim guidelines on compliance with NEPA,[56] requires that a draft EIS be circulated among appropriate agencies and be made available to the public in advance of the location (i. e., corridor) public hearing prescribed by PPM 20-8.[57] The FHWA may not grant location approval until at least thirty days after the final EIS has been filed with the CEQ and made available to the public.[58] However, the FHWA has also designated design approval as the crucial stage, at least where location approval but not design approval had been granted prior to February 1, 1971. "In such instances the environmental statement . . . or negative declaration shall be prepared and processed during the design studies. The final environmental statement or negative declaration for such highway sections shall be furnished to FHWA before or with the request for design approval."[59]
The overall thrust of the FHWA's procedures seems to be that while location approval is a preferable stage for preparation of an EIS, allowing more time for accommodation of problems raised in an EIS, design approval is the stage at which NEPA affirmatively requires preparation of an EIS.[60] While recognizing the significance of design approval, courts have nevertheless been reluctant to assign design approval talismanic value, so as to exempt absolutely from NEPA highway projects which had received design approval prior to the January 1, 1970 effective date of NEPA. Thus the Fourth Circuit, having held "that Section 102(C) [NEPA's EIS requirement] is applicable to a project until it has reached the state of completion where the costs of abandoning or altering the proposed route would clearly outweigh the benefits therefrom," concluded that "[m]anifestly the date of design approval alone does not measure whether [an interstate highway project] has reached the crucial stage, and determining the applicability of Section 102(C) by this standard alone would be arbitrary and capricious agency action and an abuse of administrative discretion." Arlington Coalition on Transportation v. Volpe, supra, 458 F.2d at 1332. However, it appears that while a balancing-of-the-factors approach is required to determine if an EIS is required of a highway project which had received FHWA design approval before 1970, such an approach cannot work in reverse to exempt from the EIS requirement a highway project which received design approval after January 1, 1970. Conservation Society of Southern Vermont v. Volpe, 343 F. Supp. 761, 766-767 (D.Vt.1972) (Circuit *236 Judge Oakes); Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731 (D.Conn. 1972). Of course, equitable consideration of the extent of completion of a highway project which did receive design approval after January 1, 1970, might still influence the decision whether or not an injunction should issue because of the failure to comply with NEPA. Committee to Stop Route 7 v. Volpe, supra, 346 F.Supp. at 738.
I conclude that plaintiff herein could have challenged defendants' compliance with NEPA once defendant Siccardi granted design approval to I-291 on November 6, 1972, at which point I-291 became a proposal for major federal action. This does not necessarily mean, however, that the entire year from that date until plaintiff's complaint was filed on November 12, 1973, must be counted against plaintiff in considering for the purpose of laches if plaintiff delayed unreasonably. As was stated in the very case on which defendants principally rely for their argument in favor of invoking laches:
"Laches is not merely a question of time; it is a question of diligence as well. [Citation omitted.] There is no certain period of time within which a plaintiff may reasonably delay before filing suit; that `reasonable' period varies upon the circumstances of each case. . . . [¶] Laches is an equitable doctrine and will be applied where it would be inequitable to permit plaintiffs to proceed." Clark v. Volpe, supra, 342 F.Supp. at 1328.
It is true that prior to the November 6, 1972, design approval of I-291, the final EIS on I-291 had been available for public inspection, and hence plaintiff had had an opportunity to assess the adequacy of the EIS and so determine if defendants' compliance with NEPA should be tested by litigation. But this fact alone will not support the conclusion that plaintiff had to attack the EIS forthwith or forever hold its peace. Plaintiff has emphasized that it did not regard the I-291 EIS as inadequate enough to warrant litigation until it became aware of the air and noise studies requested by defendant Siccardi contemporaneously with his grant of design approval. Moreover, although this design approval established I-291 as a proposal for major federal action within the purview of NEPA, it did not leave the FHWA irrevocably committed to funding I-291. This commitment is not made until the stage of P.S.&E. approval is reached. 23 U.S.C. § 106(a). At the time of design approval, P.S.&E. approval was still some distance away. Indeed, it was not until June 14, 1973, that P.S.&E. approval was granted, and even then only for the initial two-mile segment of I-291, Project No. 159-121, which segment did not even exist until November 9, 1972, when it was broken out of Project No. 93-74, one of the two original projects forming I-291, given a separate project number and scheduled for completion "at least one (1) year before the second section, and possibly much longer."[61]
Had plaintiff filed suit during the seven months between the granting of design approval and the P.S. & E. approval of the initial two-mile segment of I-291, the prejudice attributable to a suspension of work by Arute could indeed have been avoided. But this Court is chary of forcing on those in plaintiff's position at the time of design approval the choice between filing a suit without a good faith belief in its merits or losing the opportunity to sue later should new facts come to light raising substantial questions as to the adequacy of the EIS upon which design approval was originally granted. The better position, as suggested in Clark v. Volpe, supra, 342 F.Supp. at 1328-1329, is to allow one opposed to a proposed federally-funded highway to presume, in *237 the absence of evidence to the contrary, that public officials will properly fulfill their statutory obligations until such time as P.S.&E. approval makes the commencement of actual construction imminent. Once P.S.&E. approval issues, a potential plaintiff must decide if there is sufficient reason to warrant suspicion of non-compliance. If such suspicion is justified, the plaintiff must then act diligently to develop its case and, if this results in a good faith belief in non-compliance with pertinent statutes, file its complaint.
Applying these principles to the instant case, it must be noted that the seven month period from November, 1972, to June, 1973, was the very time in which defendant Siccardi was awaiting CONNDOT's compliance with his request for air and noise pollution studies. Had Siccardi's concern over the adequacy, under current standards, of the air and noise pollution studies underlying the EIS been made a matter of public record at the time of his grant of design approval, plaintiff might now be held accountable in equity for not having promptly challenged the grant of design approval. Lacking any such evidence to overcome the presumption that defendants had complied fully with NEPA before deciding to go forward with I-291, plaintiff was not so obliged to commence litigation in November, 1972. Not until the P.S.&E. approval of June 14, 1973, was plaintiff affirmatively on notice that, barring litigation, I-291 would be constructed as planned. It was then no longer reasonable for plaintiff to presume that any necessary modifications in the I-291 EIS and consequent reconsideration of I-291 would be undertaken by defendants, on their own initiative and in advance of commencement of construction of I-291, in recognition of their "continuing responsibility" under section 101(b) (3) of NEPA "to improve and coordinate Federal plans, functions, programs and resources to the end that the Nation may . . . attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." 42 U.S. C. § 4331(b)(3).
By moving promptly after the P.S.& E. approval of June 14, 1973, plaintiff might still have minimized the prejudice to defendants, and it is for the five months' delay between June 14, 1973, and November 12, 1973, that plaintiff stands in real risk of laches. It is at this point that plaintiff's special status as essentially a public interest litigant seeking to vindicate public rights under NEPA must be considered. Environmental litigation is complex and costly; even the decision when to seek counsel with a view toward litigation is difficult, since the posture of a public works project is inevitably obscured by the mists of bureaucracy. With few exceptions environmental action groupsespecially those such as plaintiff organized in ad hoc response to a particular project lack the resources affording access to legal advice in advance of a decision to litigate. The interests of the members of such groups are generally inchoate and decentralized until action is galvanized and funds are mobilized by some startling disclosure which awakens the public to the possibly dire consequences of an imminent intrusion on the environment. Yet dozens of cases have demonstrated that absent the advocacy of such groups, the procedural rights and protections enshrined in NEPA stand in jeopardy of being ignored with impunity. See, e. g., Monroe County Conservation Council v. Volpe, 472 F.2d 693 (2d Cir. 1972); Arlington Coalition on Transportation v. Volpe, supra; Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Comm., 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); Committee to Stop Route 7 v. Volpe, supra; Conservation Society of Southern Vermont v. Volpe, supra.
This Circuit has joined others which have recognized in NEPA a Congressional mandate for scrupulous official conduct when environmental impacts are in the offing, and have seen the forcefulness of this mandate as authorizing *238 special judicial solicitude of those who seek pro bono publico to ensure that the Government and its agents live up to NEPA. The call for vigorous judicial enforcement of NEPA was first sounded by the District of Columbia Circuit. Courts dealing with NEPA litigation were said to have the duty "to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy." Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Commission, supra, 449 F.2d at 1111. The Calvert Cliffs' court emphasized that the procedural provisions of NEPA "establish a strict standard of compliance," 449 F.2d at 1112, and that "[c]onsiderations of administrative difficulty, delay or economic cost will not suffice" to excuse non-compliance with NEPA. 449 F.2d at 1115. The Second Circuit has since accorded explicit approval to Calvert Cliffs' construction of NEPA. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 420 (2d Cir. 1972), cert. denied 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90. "[W]e can only add our voice to that of the District of Columbia Circuit in Calvert Cliffs': Delay is a concomitant of the implementation of the procedures prescribed by NEPA . . . . `It is far more consistent with the purposes of the Act to delay operation at a stage where real environmental protection may come about than at a stage where corrective action may be so costly as to be impossible.' [Calvert Cliffs', 449 F.2d] at 1128." Greene County Planning Board v. Federal Power Commission, supra, 455 F.2d at 422-423.
Subsequent to both Calvert Cliffs' and Greene County, the Fourth Circuit declined to invoke the doctrine of laches to bar a suit to halt an interstate highway, even though the plaintiffs-appellants therein had caused considerable prejudice to the defendants-appellees by failing to institute litigation promptly once NEPA had granted them a cause of action. From the very first words of its opinion, the court emphasized the special status of environmental litigation, and then proceeded to justify its refusal to honor the claim of laches by express reference to that status.
"This is an ecology case. It is the declared public policy of the United States to protect and preserve the national environment `to the fullest extent possible.' National Environmental Policy Act of 1969, 42 U.S.C.A. § 4332 (NEPA). The NEPA is a value judgment by the Congress that in order to `foster and promote the general welfare' each generation of Americans must, beginning now, act `as trustee of the environment for succeeding generations.' 42 U.S.C.A. § 4331. We hold that even essential highway construction must yield to the congressionally structured priority.
* * * * * *
We conclude that the federal statutes invoked by appellants are applicable to Arlington I-66 and must be complied with before further steps may be taken towards construction of this highway. Compliance means not only reconsideration of the proposed location of Arlington I-66 in the light of environmental, social, and economic policies set forth in the statutes; it means also suspension of work on Arlington I-66 pending this reconsideration. Further investment of resources by appellees in the proposed route would render alteration or abandonment of the proposed route increasingly costly and, therefore, increasingly unwise. If appellees were thus allowed to limit their options during their reconsideration of the location of Arlington I-66, reconsideration would be a hollow gesture. See Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F. 2d 1109, 1128 (1971).
* * * * * *
[A]ppellees claim that appellants' suit should be barred by laches. Appellees as representatives of the general public and specific interest *239 groups will be prejudiced by appellants' delay in bringing suit if the proposed route for Arlington I-66 is altered or abandoned. Most of the right-of-way for the proposed route has been acquired; Arlington County's planning with respect to zoning, traffic, and location of utilities has been based upon the route; and the location of numerous businesses has been chosen in reliance upon the route. Appellants could have brought suit earlier to minimize or avoid this harm; all of the relevant statutes were in effect by January 1, 1970, but appellants did not file suit until February 19, 1971. Nevertheless, we decline to invoke laches against appellants because of the public interest status accorded ecology preservation by the Congress. [Footnote omitted.] We believe that Arlington I-66 has not progressed to the point where the costs of altering or abandoning the proposed route would certainly outweigh the benefits that might accrue therefrom to the general public. In their reconsideration of the proposed route, the Secretary of Transportation and the Commissioner of the Virginia Department of Highways may decide, of course, that the costs do outweigh the benefits. If the opposite conclusion is a reasonable possibility, however, as it is here, the congressional declaration of policy in the relevant statutes of the importance of the benefits that might accrue demands that the merits of the question be considered by the appropriate agencies." Arlington Coalition on Transportation v. Volpe, supra, 458 F.2d at 1326, 1327, 1329-1330 (emphasis in original).
Accord, Environmental Defense Fund v. Tenn. Valley Auth., 468 F.2d 1164, 1182-1183 (6th Cir. 1972).
Besides the special status of plaintiff, the conduct of defendants must also be considered in assessing whether plaintiff was properly diligent after June 14, 1973. Defendants did not make public the post-EIS air and noise pollution studies, even though these studies revealed that more substantial air and noise pollution impacts than were discussed in the EIS might result from I-291. While the studies offered no conclusive evidence of the advisability vel non of building I-291, they at least made the advisability of proceeding with I-291 a question upon which, in the light of the two studies, reasonable men could disagree. These reports were sure fuel for any environmentalists opposed to I-291; had they been made public plaintiff might now reasonably be held accountable for failing to bring its action shortly after defendant Siccardi's grant of P.S.&E. approval. In the absence of disclosure of the reports, only the actual commencement of construction prodded plaintiff into actively condering litigation. Counsel were retained in late October, 1973; once plaintiff gained through counsel access to the documentary record of defendants' decision making, plaintiff's suit was promptly filed.
The "unconscionable delay" requisite for successful assertion of the defense of laches "can occur only after a party discovers or by the exercise of reasonable diligence could have discovered the wrong of which he complains." Ward v. Ackroyd, 344 F.Supp. 1202, 1212 (D.Md.1972). In the instant case, as in Ward v. Ackroyd (where FHWA compliance with 23 U.S.C. § 128 and PPM 20-8 was in issue), "there is no evidence that plaintiffs knowingly sat on their rights and delayed bringing suit." Id. (Emphasis in original.) While I certainly find no evidence whatsoever of bad faith on the part of defendants in keeping the post-EIS air and noise pollution reports off the public record, and do not doubt that the reports would have been disclosed much earlier had plaintiff been aware of the proper inquiries to make,[62] the fact remains that environmental *240 litigants generally do not have legal counsel at their fingertips, and depend on public disclosure of the details of proposals for major federal actions in order to determine if the threat to their interests is sufficiently grave to warrant organized political and legal opposition.
Also pertinent to the significance in equity of plaintiff's delay is the extent of the construction of I-291 which has already taken place. Unlike Clark v. Volpe, supra, the interstate highway project here in issue is nowhere near 25 to 30 per cent complete, even as to the initial two-mile segment.
In view of all the circumstances of the case, and especially the special status accorded litigants such as plaintiff, I rule that plaintiff's delay in bringing suit was not so unreasonable, nor its consequences so unconscionable, as to constitute laches as a bar to temporary relief. As Judge Friendly has written: "The tardiness of the parties in raising the issue cannot excuse compliance with NEPA; primary responsibility under the Act rests with the agency." City of New York v. United States, 337 F.Supp. 150, 160 (E.D.N.Y. 1972) (three-judge court).
III.
SUBSTANTIVE AND PROCEDURAL REVIEW UNDER NEPA
Before commenting and ruling on plaintiff's broad-ranging attack on defendants' compliance with NEPA, the role of this Court in NEPA litigation should be considered. NEPA confers no jurisdiction on this Court to review the wisdom of federal financing of a proposed expressway. See, e. g., Committee to Stop Route 7 v. Volpe, supra, 346 F.Supp. at 739. Of course, arbitrary decisions concerning federal highway monies may be set aside under the Administrative Procedure Act, which permits judicial invalidation of administrative decisions which are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. § 706(2)(A). Under this standard, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. [Citations omitted.] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). The passage of NEPA has yet to be shown by authoritative construction to have broadened this limited grant of power to the judiciary to review the substantive merits of agency action. See City of New York v. United States, 344 F.Supp. 929, 939-940 (E.D.N.Y.1972) (opinion of Circuit Judge Friendly) (three-judge court). However, the Administrative Procedure Act's narrow standard of substantive review does not preclude judicial "inquiry . . . whether the . . . action followed the necessary procedural requirements." Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 417, 91 S.Ct. at 824 (emphasis added). It is in the area of procedural *241 review that NEPA has indisputably opened wide judicial vistas, which were explored in detail in Calvert Cliffs'.
"[T]he general substantive policy of the Act is a flexible one.[63] It leaves room for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances. However, the Act also contains very important "procedural" provisionsprovisions which are designed to see that all federal agencies do in fact exercise the substantive discretion given them. These provisions are not highly flexible. Indeed, they establish a strict standard of compliance.
. . . Perhaps the greatest importance of NEPA is to require the Atomic Energy Commission and other agencies to consider environmental issues just as they consider other matters within their mandates. This compulsion is most plainly stated in Section 102. There, `Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act * * *.' Congress also `authorizes and directs' that `(2) all agencies of the Federal Government shall' follow certain rigorous procedures in considering environmental values. [Footnote omitted.]
* * * * * *
Of course, all of these Section 102 duties are qualified by the phrase `to the fullest extent possible.' We must stress as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not make NEPA's procedural requirements somehow `discretionary.' Congress did not intend the Act to be such a paper tiger. Indeed, the requirement of environmental consideration `to the fullest extent possible' sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts.
Unlike the substantive duties of Section 101(b), which require agencies to `use all practicable means consistent with other essential considerations,' the procedural duties of Section 102 must be fulfilled to the `fullest extent possible.' [Footnote omitted.] . . . .
* * * * * *
We conclude, then, that Section 102 of NEPA mandates a particular sort of careful and informed decisionmaking process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factorsconducted fully and in good faithit is the responsibility of the courts to reverse." 449 F.2d at 1112, 1114, 1115 (emphasis in original).
Calvert Cliffs' thus contemplated the use of two different standards of review of agency actions subject to NEPA: a "strict" standard for reviewing compliance with NEPA's "rigorous" procedural duties, a lenient standard for reviewing compliance with NEPA's "flexible" substantive duties. The reviewing court can properly demand strict compliance with NEPA's procedural requirements for gathering and discussing information on the environmental consequences of a proposed *242 project in advance of a decision by the agency to proceed with the project. The agency's preparation of an EIS cannot be a cursory exercise of filling in blanks. "NEPA requires that an agency mustto the fullest extent possible under its other statutory obligationsconsider alternatives to its actions which would reduce environmental damages. That principle establishes that consideration of environmental matters must be more than a pro forma ritual." Calvert Cliffs', supra, 449 F.2d at 1128 (emphasis in original). Cf. Nat'l Helium Corp. v. Morton, 486 F.2d 995, 1001-1002 (10th Cir. 1973); Conservation Society of Southern Vermont v. Secretary of Transportation, supra, 362 F.Supp. at 632-636.
Although the Second Circuit has yet to pass on this exact issue, it appears that if the EIS survives this strict scrutiny, the reviewing court cannot extend its strict scrutiny to the agency's substantive decision to proceed with the project despite the impacts considered in the procedurally adequate EIS. Under both the Administrative Procedure Act, as explicated in Overton Park, and section 101 of NEPA, as explicated in Calvert Cliffs', an agency's decision to proceed with a project may be set aside upon review of its merits only when the decision is arbitrary or capricious or an abuse of discretion, as when the decision displays such callous disregard of the environmental considerations expressed in the EIS as to support an inference of bad faith on the part of the agency in deciding nonetheless to proceed with the project. See, e. g., Sierra Club v. Froehlke, 486 F.2d 946, 951-953 (7th Cir. 1973); Silva v. Lynn, 482 F.2d 1282, 1283 (1st Cir. 1973); Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 298-300 (8th Cir. 1972), injunction denied, 409 U.S. 1072, 93 S.Ct. 1072, 34 L.Ed.2d 661; Sierra Club v. Froehlke, 359 F.Supp. 1289, 1332-1334 (S.D.Tex. 1973); City of New York v. United States, supra, 344 F.Supp. at 939-940. Cf. Scenic Hudson Preserv. Conf. v. Federal Power Commission, 453 F.2d 463, 468, 481 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1971).[64]
IV.
DEFENDANTS' COMPLIANCE WITH NEPA
Plaintiff has attacked defendants' compliance with NEPA on many fronts. *243 Besides challenging on its merits defendants' substantive decision to proceed with I-291, plaintiff contends that many procedural aspects of defendants' preparation for that decision failed to comport with NEPA. The Court finds merit in three of plaintiff's contentions of defendants' noncompliance with NEPA's procedural mandates. Each of these contentions relates to the adequacy of the I-291 EIS: the authorship of the EIS, its discussion of alternatives, and its discussion of the impact of I-291 on the air quality and sound levels of land adjacent to the expressway.
Authorship of the EIS
The title page of the final I-291 EIS states "PREPARED BY THE CONNECTICUT DEPARTMENT OF TRANSPORTATIONBUREAU OF HIGHWAYSOFFICE OF DESIGN." This accurate representation of the actual authorship of the EIS reflects adherence to the FHWA's November 24, 1970, interim guidelines on compliance with NEPA, see note 56, supra. These guidelines directed state highway departments to prepare both draft and final EIS's where such were required by NEPA as a condition to FHWA funding of a highway.[65] PPM 90-1, which superseded the interim guidelines, also leaves preparation of EIS's to state highway departments.[66]
Plaintiff contends that the FHWA, by leaving the writing of the EIS to CONNDOT, failed to comply with the explicit statutory command of NEPA's section 102(2)(C) directing "all agencies of the Federal Government" to include in reports on proposals subject to NEPA "a detailed statement by the responsible official," whom section 102(2)(C) also refers to as "the responsible Federal official." 42 U.S.C. § 4332(2)(C) (emphasis added).[67] Were plaintiff's contention to present a question of first impression, the Court might be free to view the previously catalogued, extensive cooperation of FHWA personnel with CONNDOT personnel in the preparation of the draft and final I-291 EIS's as constituting sufficient compliance with the statutory mandate that the EIS be prepared by personnel of the federal agency charged with compliance with NEPA. But previous case law in this Circuit compels this Court to demand strict compliance with the letter as well as the spirit of NEPA as regards authorship of an EIS.
In Greene County Planning Board v. Federal Power Commission, supra, the Second Circuit ruled that the Commission had "abdicated a significant part of its responsibility by substituting the statement of [a state agency] for its own. The Commission appears to be content to collate the comments of other federal agencies, its own staff and the intervenors and . . . to act as an umpire. The danger of this procedure, and one obvious shortcoming, is the potential, if not the likelihood, that the [state agency's] statement will be based upon self-serving assumptions." 455 F. 2d at 420 (footnotes omitted). The court noted that NEPA made consideration of environmental values the "primary and nondelegable responsibility" of the Commission; thus, the court concluded, NEPA required of the Commission "the preparation by its staff of its own impact statement . . . ." Id. at 420, 422 (footnote omitted, emphasis in original).
In Committee to Stop Route 7 v. Volpe, supra, Judge Newman of this Court held that Greene County squarely controlled the precise issue here considered. PPM 90-1's provision for state preparation of the final as well as the draft EIS for a federally funded highway *244 was held to be in irreconcilable conflict with NEPA. Judge Newman noted that Greene County did allow state preparation of the draft EIS. "But as to the final version of the detailed statement required by § 102(2)(C), the Court of Appeals ruled unequivocally that this must be prepared by the F.P.C. itself, with the actual work to be done by the agency's own staff." Committee to Stop Route 7 v. Volpe, supra, 346 F. Supp. at 741. The FHWA's regulations thus had to give way to "the plain wording of NEPA," id., and federal officials were directed to prepare the final version of the EIS there required.
Another analogous case, Conservation Society of Southern Vermont v. Secretary of Transportation, supra, also considered "the very fundamental question whether FHWA procedures requiring preparation of an EIS by the local state highway agency, with communication from and [the] cooperation of the regional FHWA [office], followed by review by an FHWA `task force' at the regional level complies with NEPA and more particularly NEPA as construed by the Second Circuit Court of Appeals in [Greene County]." 362 F.Supp. at 630. Judge Oakes found that the state highway department there concerned was under a legislative mandate to build the highway in issue, and therefore was prone to "self-serving assumptions" in preparing an EIS, as contemplated by Greene County. 362 F.Supp. at 631. Judge Oakes termed the FHWA's review of the final EIS "merely perfunctory, the equivalent of an agency rubber stamp," id., and found the FHWA's role in the preparation of the EIS to have consisted of only "informal chats touching upon the subject, together with [a] field trip and subsequent `review.'" 362 F.Supp. at 632. Judge Oakes accordingly ruled that the EIS there in issue had not genuinely been "prepared by the responsible federal agency, to wit, the FHWA." 362 F.Supp. at 639.
The facts of the instant case are arguably distinguishable in two respects from the situation confronted by Judge Oakes. Here, the extent of the communication and consultation between CONNDOT and the FHWA seems to have gone beyond the level of informal chats. See pp. 229-230, supra. Subordinates of the FHWA Division Engineer were in fairly constant contact with CONNDOT, did do some editing of the preliminary draft, and this draft was reviewed in detail by the regional office of the FHWA. FHWA personnel continued to monitor CONNDOT's preparation of the final EIS. Nevertheless, the actual writing of the final EIS was clearly done by CONNDOT personnel, not FHWA personnel, see p. 230, supra.[68] Moreover, there was no *245 apparent final "draft" stage which would allow substantive review or editing of CONNDOT's draft of a final EIS by other than the divisional office of the FHWA. The final EIS submitted to the FHWA Division Engineer on February 24, 1972, and forwarded to the regional office four days later, was indeed in final formalready printed and bound. While the divisional office of the FHWA had apparently reviewed a draft of the final EIS before it was printed up,[69] the regional office of the FHWA first saw the final EIS in printed form, and thus found itself in a "take it or leave it" posture, with no options other than approval in toto or rejection in toto. This atmosphere is hardly conducive to the detailed review which would be required to transform the CONNDOT final "draft" into the FHWA's own final EIS, and in fact the FHWA regional office's review of the final EIS in the instant case was limited to approval without any alteration.
It must be remembered in this regard that it is the regional, not the divisional level, at which the FHWA has the capability to undertake multi-disciplinary review of an EIS, see p. 230, supra. Moreover, PPM 90-1, in effect for over six months before the printed final I-291 EIS was sent to the regional FHWA office, explicitly provides: "FHWA review and acceptance of the final environmental statement shall be the responsibility of the Regional Federal Highway Administrator."[70] Yet the regional office received the final I-291 EIS in so final a form as to allow only complete rejection or "rubber stamp" approval. Thus, in no real sense can the final EIS be said to have undergone such searching review by the FHWA as to make the EIS the FHWA's own product. Rather than resulting from a synthesis of CONNDOT's draft and the FHWA's rigorous review, the final I-291 EIS was written by CONNDOT and merely ratified by the FHWA.
A second arguable distinction between the instant case and Southern Vermont is the apparent lack of any legislative requirement that CONNDOT proceed with I-291. But this does not mean that CONNDOT is necessarily disinterested in whether the FHWA agrees to fund I-291. Federal funding for I-291 would serve to reimburse CONNDOT for 90 per cent of the cost of CONNDOT's acquisition of rights of way and other preliminary expenses, see, e. g., 23 U.S.C. §§ 106-108, 120, 124, amounting to several million dollars, see pp. 233-234 supra. Moreover, CONNDOT's preparation of the I-291 EIS was primarily the work of highway design engineers, who might well have personal interests in promoting the FHWA's approval of a highway they had already designed, and which they were understandably anxious to see constructed.[71] Thus CONNDOT's perspective may well be far different *246 from that demanded of an EIS by Congress, which in passing NEPA was "intent upon requiring the agencies of the United States government, such as the defendants here, to objectively evaluate all of their projects, regardless of how much money has already been spent thereon and regardless of the degree of completion of the work." Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 728, 746 (E.D.Ark.1971). In sum, CONNDOT is just as likely to lard an EIS with "self-serving assumptions" as were the state highway department in Southern Vermont and the state power authority in Greene County.
I conclude, in accord with Route 7 and Southern Vermont, that PPM 90-1's delegation to state highway departments of primary responsibility for the preparation and writing of EIS's for highway projects proposed for FHWA funding, cannot be squared with Greene County's construction of NEPA as requiring that the federal agency charged with compliance with NEPA itself prepare the final EIS.[72] Since the final I-291 EIS was *247 prepared in accordance with the PPM 90-1 policy of state authorship, there appears to be a strong probability that defendants would be found in non-compliance with NEPA on this point at a trial on the merits of plaintiff's complaint.
Alternatives
In assessing whether the I-291 EIS adequately complies with the procedural mandates of NEPA, the Court has the benefit of the Second Circuit's own capsulization of the relevant inquiry, framed in the identical context of an FHWA highway funding decision: "The primary purpose of the impact statement is to compel federal agencies to give serious weight to environmental factors in making discretionary choices . . . . It is, at the very least, `an environmental full disclosure law' . . . for agency decision makers and the general public. In light of this, the Secretary of Transportation was bound fully to comply with the requirements of the statute, and mere token efforts in that direction do not suffice." Monroe County Conservation Council v. Volpe, supra, 472 F.2d at 697 (citations omitted). There are many aspects to the adequacy of an EIS, of course, but the "requirement for a thorough study and a detailed description of alternatives," see §§ 102(2)(C)(iii), 102(2)(D) of NEPA, 42 U.S.C. §§ 4332(2)(C)(iii), 4332(2)(D), "is the linchpin of the entire impact statement." Monroe County Conservation Council v. Volpe, supra, 472 F.2d at 697-698 (footnote omitted).
Of the 28 pages of the I-291 EIS, one quarter fall under the section headed "Alternatives." Even these seven pages represent a seven-fold increase over the discussion of alternatives in the preliminary draft of the EIS,[73] which in a single page asserted that since I-291 "is an entirely new project" its traffic service could not be provided by modernization of existing streets and highways, hence "our alternates [sic] are either to build the facility or not to build it at all."[74] The preliminary draft went on to dismiss not building I-291 as "not a reasonable and prudent alternate" because it would result in increasing traffic congestion in the area and lead to economic loss.[75] The preliminary draft concluded that even after the construction of I-291 traffic growth would exceed its capacity; however, I-291 would then be useful as a medium for mass transit by motorized buses through establishment of exclusive bus lanes.[76]
The preliminary draft's one-page section on alternatives was criticized by both the division office of the FHWA[77] and the Connecticut Office of State Planning.[78] Yet the seven-page section *248 on alternatives in the final EIS retains many of the flaws of its predecessor. The final EIS does follow the FHWA's suggestion that material from the "4(f)" statements required under section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), relating to alternatives to the taking of publicly-owned open space, be incorporated in the I-291 EIS. Thus four of the seven pages discuss various alternative routes within the same general corridor, justifying the rejection of these alternatives on the basis of economic cost, displacement of housing or businesses, other important existing land uses, and safety factors.[79] Another page notes that the location of the general corridor for I-291 has been a matter of "general public knowledge" since "the late 1950's," and hence "existing development patterns precluded anything but minor adjustments to the original concept."[80] It is apparently on this premise that, aside from the four-page discussion of "minor adjustments," the EIS considers only three alternatives to I-291 as currently proposed.
Like the preliminary draft, the final EIS dismisses in a conclusory paragraph the alternative of improving existing streets: "It is unrealistic to believe that modernizing the existing network could greatly improve traffic flow. The high development of lands adjacent to these roads, the numerous side road intersections, the devious routes followed and the extremely high cost make this alternative impractical."[81] No data whatsoever is produced to support these conclusions.
The alternative of abandoning plans for construction of I-291, termed the "do-nothing" alternative by the EIS, is given even shorter shrift, again echoing the criticized preliminary draft: "This could only lead to increased congestion on the highways through Newington in particular and to some degree in the other affected Towns. Since this congestion would cause increased economic loss to the Towns and to all potential users of the facility this does not appear to be a reasonable and prudent alternate."[82] No data is offered as to existing or projected traffic congestion, or as to economic loss.
The final alternative considered is mass transit. The need for mass transit facilities is admitted, but from two statistics on projected travel patterns along I-291[83] the EIS concludes that it "can readily be seen" that the origins and destinations of traffic along I-291 will be so diffuse as to require the "extreme flexibility" of I-291 as opposed to "any mass transit system."[84]
NEPA's requirement for discussion and consideration of alternatives "seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular *249 project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. Moreover, by compelling a formal `detailed statement' and a description of alternatives, NEPA provides evidence that the mandated decision making process has in fact taken place and, most importantly, allows those removed from the initial process to evaluate and balance the factors on their own." Calvert Cliffs', supra, 449 F.2d at 1114. The Second Circuit has built on Calvert Cliffs' to read NEPA as demanding, as part of the aforementioned "thorough study and a detailed description of alternatives," that "[c]onsideration . . . must . . . be given to the feasibility and impact of the abandonment of the project." Monroe County Conservation Council v. Volpe, supra, 472 F.2d at 697, 698 (emphasis added). Mere "passing mention of possible alternatives to the proposed action . . . in . . . a conclusory and uninformative manner" renders an EIS fatally inadequate. Id. at 697. In a similar vein, the First Circuit has indicated that in its discussion of alternatives "the agency must go beyond mere assertions and indicate its basis for them." Silva v. Lynn, supra, 482 F.2d at 1287.
Even as to the alternatives it does discuss, the I-291 EIS falls far shorton its face, as it wereof the required "thorough study and . . . detailed description." No reasoned decision could be made on the basis of the EIS that departure from the expected corridor is precluded by speculative development, that modernization of existing highways is too costly, that mass transit is too inflexible to serve public needs, or that abandonment of the project is impractical. These difficult judgments have been committed by NEPA to the informed discretion of the FHWA and ultimately the Secretary of Transportation yet rather than provide information, the EIS provides only "generalities and heavy-handed self-justifications." Brooks v. Volpe, 350 F.Supp. 269, 278 (W.D.Wash.1972). The EIS treats the crucial decision to proceed with federal funding of I-291 not as an impending choice to be pondered, but as a foregone conclusion to be rationalized.
In addition to its conclusory treatment of the alternatives which it does mention, the I-291 EIS also suffers from a failure to articulate at all at least two plausible alternatives to I-291 as presently conceived.
The first of these alternatives, as explained by Mr. Robert L. Morris, a traffic engineer and transportation planning consultant who testified as an expert for plaintiff, would be to use existing State Routes 9 and 72 as the basis for linking I-91 with I-84.[85] State Route 9 is an expressway which presently proceeds from exit 69 of the Connecticut Turnpike (I-95) near the mouth of the Connecticut River northwesterly through Middletown to join I-91 at exit 22-S, approximately three miles south of the proposed intersection of I-291 and I-91. CONNDOT has tentative plans, State Project 33-83, to construct an extension of Route 9 approximately four miles west of I-91 to join Route 72 at the Berlin Turnpike. There already exist at the junction of I-91 and Route 9 the ramps and landscaping necessary to transform the junction into an interchange by which Route 9 crosses I-91 and continues on to the west. Route 72 has previously been improved into an expressway from its intersection with the Berlin Turnpike west to the New Britain city limits. Mr. Morris suggested that construction through New Britain of a further two or three miles of expressway would connect Route 72 to the New Britain Expressway, a spur off of I-84, and hence complete an expressway link from I-91 to I-84 roughly parallel to, and three to five miles south of, the *250 proposed route of I-291. Such a connection of the Route 72 expressway to the New Britain Expressway is apparently already under contemplation by CONNDOT, since the present plans for I-291 show an interchange with a "Route 72 connector" which would, it seems, proceed south from I-291, near the New Britain-Newington boundary, through an interchange with the New Britain Expressway, to link up with the present end of Route 72 as an expressway at the New Britain city limits.[86]
The second unmentioned alternative to I-291 as presently conceived was proposed by defendant Siccardi himself. In a memorandum dated Oct. 7, 1971 to Mr. G. D. Love, defendant White's predecessor as Regional Administrator of the FHWA, defendant Siccardi noted that the FHWA had relegated I-291 to an indeterminate status pending approval of the preliminary draft "4(f)" statements required under 49 U.S.C. § 1653(f) for the taking of open space for I-291's right-of-way, and because of uncertainty as to the location of I-291 north of I-84.[87] I-291 was originally supposed to be a circumferential beltway from I-91 south of Hartford clockwise through I-84 west of Hartford and I-91 north of Hartford to I-86 northeast of Hartford, but political opposition to the proposed route of I-291 north of I-84 had raised the prospect that I-291 would be confined to a link between I-84 and I-91. Defendant Siccardi thus wrote in his October 7th memorandum:
"As I view the situation, it appears to me that if I-291 were not constructed north of I-84 the indirection of I-291 as a circumferential, particularly between I-84 and the New Britain Expressway, raises a question as to whether or not this segment should be Interstate. A more reasonable routing would be I-84-New Britain Expressway I-291 through Newington to I-91. A review of the traffic data supports the need for I-291 as a relief for I-84 which is currently operating over capacity. Furthermore, if the State is going to meet the dates included in the 1970 Highway Act some steps are going to be necessary to permit the State to proceed with design and acquisition of critical sections.
Accordingly, I am recommending the following courses of action:
1. That FHWA approve the section of I-291 from the New Britain Connector eastward to I-91. This would permit the options of continuing I-291 northward if the location problems are ultimately resolved, tying into the New Britain Expressway and ultimately I-84 in a more realistic Interstate alignment for the Southern circumferential, or, as a last resort, serve as a spur connection [to] I-91 in this highly urbanized area.
2. That FHWA take actions necessary to have the Churchill Park 4(f) released which would permit this office to advance this segment of the project. This 4(f) is not controversial in fact the Town has submitted a letter wherein they urge rapid progress on the construction of the route."[88]
*251 It is true that a "rule of reason is implicit" in NEPA's requirement that an EIS describe and discuss alternatives to proposed agency action. Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 at 834. While this "rule of reason" was originally formulated in reference to NEPA's requirement of discussion of the environmental effects of stated alternatives, especially "when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities," id., at 838, it has since been applied to the more basic question whether certain alternatives had even to be described in an EIS, let alone discussed. See Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973).
Even under this broad view of the "rule of reason" under NEPA, however, the omission of any mention in the I-291 EIS of the Route 9-Route 72 and *252 the Siccardi alternatives clearly constitutes non-compliance with NEPA. Certainly the FHWA in reviewing the EIS knew or should have known of each alternative, since one was proposed by the Division Engineer himself,[89] and the other is immediately suggested by a glance at CONNDOT's own Connecticut highway map which is available to the public without charge and which shows the proposed and already constructed portions of the entire Route 9-Route 72-New Britain Expressway link between I-91 and I-84.[90] Neither alternative appears to be so prima facie unreasonable as to warrant its exclusion from the EIS. The Route 9-Route 72 alternative would seem to be technically feasible, since part of that proposed link between I-84 and I-91 has already been built, and much of the remaining portion is already at the design stage. The same holds true of the Siccardi proposal. It may be that each alternative would serve primarily the single purpose of linking I-84 to I-91, while I-291 ostensibly serves other purposes besides linking I-84 to I-91providing a part in the circumferential beltway around metropolitan Hartford, and relieving traffic congestion in Newington and surrounding areas.[91] But "single purpose" alternatives must nevertheless be described and discussed in the EIS for a multi-purpose project, at least where the single purpose served is significant. See Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 749, 762 (E.D.Ark. 1971).
Of course, it does not follow that because each alternative is reasonable, it is therefore preferable to I-291 as presently proposed. There may well be major disadvantages to implementation of either alternative. What NEPA demands is that the EIS be sufficiently inclusive and informative in its description and discussion of alternatives to I-291 to allow the Secretary of Transportation and his delegates to make an informed choice to proceed with I-291 vel non.[92] Rather than inform federal decision *253 makers, by objectively listing the alternatives facing them regarding I-291 and supplying facts sufficient for them to judge the merits of each alternative, this EIS usurps the Secretary's decision making role by framing its discussion of alternatives so that, based on the EIS alone, only one decision is possible to proceed with I-291 as presently planned. Thus the EIS caters to just the sort of tendentious decision making that NEPA seeks to avoid.
I conclude that there is a strong probability that plaintiff would prevail at a trial on the merits of its contention that the I-291 EIS is inadequate in its description and discussion of alternatives.[93]
Noise and Air Quality Impacts
To be discussed under this heading are the adequacy of the consideration given to noise and air quality impacts in the original I-291 EIS, the adequacy of the post-EIS noise and air quality studies as remedies for any defects in the original I-291 EIS, and whether defendants' consideration of the post-EIS studies was in accord with the procedural and substantive mandates of NEPA.
The treatment of noise and air quality impacts in the I-291 EIS is both cursory and conclusory. Only two out of the 28 pages in the EIS dealt with noise pollution, but a single paragraph with air pollution. The EIS notes that embankments and other landscaping features have been designed into the highway to reduce visual and noise pollution in sensitive areas,[94] then states that "[a] summarization in advance of the actuality of I-291 can only be, at best, careful examination and projection,"[95] but nevertheless provides no data whatsoever on the expected volume of traffic along I-291 and the noise expected to be generated thereby. Rather, the EIS sums up its consideration of noise pollution with this unabashedly justificatory passage: "A high-type highway occupying a new corridor will obviously introduce a new character and level of sound. Accordingly, this report would conclude that the sound emanation along I-291 would not be of a magnitude sufficient to be noisome to those near enough to hear it. *254 Considerable detail to abate sound reflection along sections of I-291 give the proposal merit by way of designed-in ways to attenuate the sound factor."[96]
The consideration in the EIS of the impact of I-291 on air quality consisted entirely of this paragraph: "No highway in itself can reduce air pollution from vehicle emissions. There is no question that some of the areas of the town traversed will have the intrusion of heavier traffic. Considering the region as a whole, however, it is within the realm of reason that a completed highway system will greatly reduce traffic volumes in other critical pollution areas. It is a fact that efficiently moving traffic emits far less pollutants than the same number of vehicles slowly moving on congested streets."[97] Unlike the noise pollution portion of the EIS, which was added at the time the final draft of the EIS was prepared, and which was based at least in part on CONNDOT traffic projections for I-291,[98] the air pollution portion was carried over verbatim from the unresearched rough draft of the preliminary EIS.[99] The author of that rough draft, defendant Koch, admitted at the hearing on plaintiff's motion that this draft was written "off the top of my head" without the support of any empirical data.[100]
As was noted in Brooks v. Volpe, supra, 350 F.Supp. at 276, the CEQ has itself declared that "[t]he environmental impact study may not `be used as a promotional document in favor of the proposal, at the expense of a thorough and rigorous analysis of environmental risks.'" In the same case the court ruled that an EIS for an interstate highway was inadequate, because of "a serious lack of detail" and reliance "on conclusions and assumptions without reference to supporting objective data." Id. at 277. As an example of such defects, the court quoted the EIS's discussion of air and noise pollution, which was somewhat more detailed, at least in respect to air pollution, than the I-291 EIS. See id. at 277-278, n. 34. In Lathan v. Volpe, 350 F.Supp. 262, 266 (W. D.Wash.1972), the same court invalidated another freeway EIS for, inter alia, "inadequately describ[ing] the detrimental effects of air pollution on people (e. g., residents and drivers) in the vicinity of the corridor" and "fail[ing] to back up its conclusions on noise pollution with scientific data or reference to specific studies . . . ." In yet another freeway case in which no EIS at all had been prepared, the court held that "failure to closely examine the effect of the proposed freeway on air pollution was an egregious omission," and *255 also demanded a "thorough examination . . . of the relationship between the freeway and noise pollution." Keith v. Volpe, 352 F.Supp. 1324, 1334, 1335 (C. D.Cal.1972), partially rev'd on other grounds sub nom. Keith v. California Highway Commission, No. 72-3072 (9th Cir., Dec. 3, 1973).[101]
Defendant Siccardi testified that he regarded the EIS's discussion of noise and air quality impacts as qualitative rather than quantitative. However, this qualitative characteristic caused him "[n]o dissatisfaction . . . whatever" with the EIS.[102] As indicated in his memorandum requesting additional noise and air quality studies, he based his request on advances in air quality and noise evaluation technology since the writing of the EIS. See note 26, supra.
Even assuming that substantial technological progress did occur between the time of CONNDOT's submission of the *256 final EIS to the FHWA in February, 1972, and defendant Siccardi's granting of design approval in November, 1972, this cannot excuse the complete lack of quantitative data in the EIS. For one thing, it has already been noted that the air pollution paragraph of the EIS was derived verbatim from the initial rough draft written by defendant Koch during or before February, 1971. If technological progress was occurring, it should have been reflected by revision of the EIS in the year between its rough draft and its submission in final form. Even more important, whatever the state of the art in February, 1972, or even February, 1971, it was not so primitive as to allow only the superficial consideration accorded air pollution by the EIS. A purely qualitative discussion of air pollution simply does not constitute compliance with NEPA. "As long as some information on air pollution was available, NEPA and the [CEQ's] guidelines obligated the federal defendants to prepare a Section 102(2)(C) statement examining with as much precision as was possible at the time, the impact of the proposed freeway on air quality . . . ." Keith v. Volpe, supra, 352 F.Supp. at 1335. It is indisputable that at least "some information on air pollution was available" to the authors of the EISon April 30, 1971, the EPA published in the Federal Register copious air quality standards and details of measurement techniques. 36 Fed.Reg. 8186 et seq.
I conclude, at least on the evidence before me on plaintiff's motion for a preliminary injunction, that the I-291 EIS gave inadequate consideration to the potential noise and air quality impacts of I-291. It remains to consider whether there is merit in defendants' contention that any such inadequacy of the EIS was cured by the subsequent air quality and noise analyses.
Such a cure appears to be possible. Citizens for Mass Transit v. Brinegar, 357 F.Supp. 1269 (D.Ariz.1973), concerned several portions of a proposed interstate highway. Plaintiffs asserted that the July, 1971 EIS for one portion was inadequate for lack of specific detail, particularly in its discussion of the demographic and air quality impacts of the proposed freeway, and in its treatment of alternative alignments. In response to the plaintiffs' attack, the defendants prepared a supplemental EIS. Since the plaintiffs failed to make any "specific allegation of a deficiency in the final Supplement to the EIS," the court declined to decide "[w]hether the specific deficiencies alleged by plaintiffs for the original EIS in fact cause an insufficiency of detail for that statement . . . . That question is moot by reason of the supplemental statement, and therefore this Court holds that no violation of NEPA has occurred . . . ." 357 F.Supp. at 1275.
The crucial point in Citizens for Mass Transit is that the supplemental EIS there concerned was just thata supplemental EIS which was prepared in prima facie compliance with NEPA and PPM 90-1, and hence was circulated in draft form for comment by federal, state, and local agencies before being submitted in final form for FHWA review and ultimate approval by the Secretary of Transportation.[103] Even assuming, *257 arguendo, that the post-EIS studies of I-291's impacts on air quality and sound levels were prepared by the FHWA itself, as required of an EIS in this circuit, see pp. 243-247, supra, these studies were handled entirely outside of the channels established by NEPA and PPM 90-1 for processing an EIS, despite the express mandate of PPM 90-1 that "A supplemental statement is to be processed in the same manner as a new environmental statement."[104] They were not circulated in draft form for comment by interested agencies, nor were they ever sent for review and approval, in draft or final form, to even the regional office of the FHWA, let alone the Washington office of the FHWA and the office of the Secretary of Transportation. The post-EIS I-291 noise and air quality studies were never regarded by the FHWA as anything but an individual initiative of defendant Siccardi.[105]
While this initiative on the part of defendant Siccardi is most commendable, and is a token of the good faith which the Court finds manifest in all the actions of defendants in regard to the issues sub judice, defendants cannot at the last moment transform this initiative into a remedy for the inadequacies of the underlying original EIS. The requirements of circulation for comment and forwarding for "front office" review of an EIS, supplemental or otherwise, are no mere technicalities. The circulation and review requirements are critical features of NEPA's effort to insure informed decision making by providing procedural inputs for all responsible points of view on the environmental consequences of a proposed major federal action. Thus NEPA requires *258 not only the solicitation of comments, but also the attachment of such comments to the EIS itself, which must accompany the proposal through the federal agency's decision making process.
"Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes . . . ." Section 102(2)(C), 42 U.S.C. § 4332(2)(C).
The circulation of the draft EIS for inter-agency comments guards against objective errors or excessive bias in an EIS;[106] the forwarding of the final EIS for intra-agency review guarantees that those ultimately responsible for agency decisions have a factual basis for their review of their subordinates' recommendations.
Had the post-EIS I-291 noise and air quality studies been circulated for comment as a draft supplemental EIS, then under PPM 90-1 they would have been disclosed to the public,[107] thereby changing the entire posture of this case, particularly in regard to laches. See pp. 233, 237, 239-240, supra. In Citizens for Mass Transit, by contrast, the plaintiffs therein were not only aware of the draft supplemental EIS, but were also given the opportunity to comment thereon, and to have their comments included in the final supplemental EIS.[108] Moreover, the circulation for comment of the post-EIS air quality and noise studies as a draft supplemental EIS would have brought I-291 to the attention of the EPA, thereby curing the original EIS of an additional alleged defect secondary to its lack of quantitative detail.[109]
*259 Had the post-EIS studies been treated as a supplemental EIS and thus been forwarded for review to the regional office of the FHWA, their data could have been evaluated by the multi-disciplinary task force maintained there purposely to allow a more sophisticated technical review of EIS's than is possible at the division office level. Indeed, just at the time that defendant Siccardi decided unilaterally in June, 1973, that the post-EIS studies warranted no further delay *260 in P.S.&E. approval, the regional office to which he is responsible acquired the capability of expert review of such studies.[110]
Prior case law supports the Court's refusal to treat the uncirculated and unreviewed noise and air quality studies as a supplemental EIS possibly curative of the defects in the original EIS. In Natural Resources Defense Council v. Morton, 337 F.Supp. 170 (D.D.C.1972), the court was concerned with a proffered "addendum" or supplement to the EIS which had been declared inadequate by the court in Natural Resources Defense Council v. Morton, 337 F.Supp. 167 (D. D.C.1971), aff'd 458 F.2d 827, supra.
"The Court believes that Section 4332(2)(C) of NEPA has not been complied with, since the addendum, which is essentially a draft statement, has not been submitted for comment and review by any other Federal agencies, nor have the comments and views of the `appropriate Federal, State, and local agencies' been solicited with regard to this addendum. . . . As was explained by Government counsel, the normal procedure is to prepare the Final Impact Statement and to circulate this statement for comment and review by appropriate Federal, State, Local and other interested agencies. In the case at bar the original Final Impact Statement was circulated for comment and review, however, this statement did not contain the proper discussion of the alternatives as is required by NEPA. Following the decision of the Court of Appeals, the addendum, which included the required discussion of alternatives, was prepared by the Department of Interior. This addendum has to date never been circulated to other Federal agencies, nor has it been sent to the appropriate State and local agencies or other parties who might be interested in the proposed lease sale. If this addendum is to be considered a part of the Final Impact Statement, then it must be subjected to the same comment and review procedures outlined by Section 4332(2)(C) of NEPA, as was required for the original Final Impact Statement which did not contain the addendum when it was first circulated.
. . . While it is quite conceivable that none of the alternatives . . . are feasible at this time, this fact does not mean that those Federal, State and local agencies interested should not be given the opportunity to comment on the Addendum to the Final Impact Statement as required by Congress. Whether or not the comments will be valuable in the end is not the question before this Court. The Court must only determine whether the opportunity for comment as required by Section 4332(2)(C) was afforded. The Court finds that the opportunity was not afforded in this instance with respect to the addendum, which was an important part of the Final Impact Statement." National Resources Defense Council v. Morton, supra, 337 F.Supp. at 172-173.[111]
Compliance with Substantive Duties
The final contention of plaintiff which bears discussion is that irrespective *261 of the procedural adequacy of the I-291 EIS and the subsequent noise and air quality studies, defendants have violated their substantive duties under NEPA by proceeding with I-291 despite the evidence in the post-EIS studies that I-291 would result in significant deterioration of the present air quality and noise levels in areas adjacent to the proposed route of I-291. Plaintiff claims that defendants' "continuing responsibility . . . to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs and resources to the end that the Nation may . . . attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences," section 101(b)(3) of NEPA, 42 U.S.C. § 4331(b)(3), required them to forego construction of I-291 absent modifications to mitigate the adverse impacts revealed by the post-EIS studies.
In light of the Court's conclusion that defendants appear to have failed to comply in several respects with NEPA's procedural requirements, plaintiff's substantive claim could properly be disregarded. However, since the issue may arise again in further proceedings before the Court, the interests of justice will better be served by at this time giving the parties the benefit of the Court's views on the matter.
The air quality study predicted the amounts of three pollutants which will be present at selected "receptor points" along I-291 in 1990 during "worst-case" conditions of stagnant air and 8-9 a. m. rush-hour traffic and during "normal-case" conditions of more dispersive wind and the relatively light traffic of the 1-2 p. m. noonday rush hour.[112] The study found that even under "worst-case" conditions federal air quality standards for carbon monoxide (CO) will not be approached, let alone exceeded, at any of the 14 receptor points.[113] Federal standards for nitrogen dioxide (NO2) will also not be exceeded.[114] However, I-291 alone will generate between 20 and 70 per cent of the NO2 allowed under federal standards at nine of the 14 receptor points.[115] In addition, at four of these nine receptor points, existing stationary sources of pollution can be expected to add another 20 per cent of the total NO2 allowed under federal standards.[116] At two of these four critical points, the combined emissions of NO2 by present sources and I-291 traffic in 1990 will result in NO2 concentrations reaching 90 per cent of that allowed under federal standards.[117] The air quality study concluded from these figures that "the proposed Route I-291 traffic emissions of nitrogen oxide use much of the air resource in many areas immediately adjacent to the highway. Thus, land use development and commerce, which through combustion of large quantities of fuel would also be large emitters of NO2, should be discouraged in these areas along the highway, since there is little remaining `air resource.' The air resources are almost all `committed' to highway use in those areas up to 400 feet from the highway."[118]
The study also found problems with hydrocarbon (HC) levels. At three of the 14 receptor points federal standards will be exceeded during "worst-case" *262 conditions.[119] These points, located respectively 200, 450, and 300 feet from the highway, can be expected to have "worst-case" meteorological conditions respectively 9.0, 2.5, and 9.0 per cent of the time.[120] However, the actual incidence of "worst-case" pollution will be "somewhat" lower since "[t]here is no indication, other than the usual diurnal wind patterns for Connecticut, that worst case meteorology always coincides with the heaviest traffic load."[121] Since HC (as well as CO) emissions "from stationary sources are negligible along the proposed route," the projected HC pollution problem is not expected to be aggravated by non-automotive emissions.[122]
The noise study found that noise created by projected 1990 traffic on I-291 will exceed FHWA standards at two of 21 receptor points. One of these points lies near the junction of I-291 and I-91; the study suggested that should I-291 not be built the point would experience much the same noise from the increased traffic which I-91 would bear in the absence of I-291.[123] The other point where FHWA standards will be exceeded by noise from I-291 is located in the Eagle Lantern Village open space area of Newington.[124] Construction of a sound barrier was recommended for this area. See p. 231 & note 28, supra. At 18 out of the total of 21 receptor points, the noise to be created by I-291 alone will exceed the present ambient noise levels.[125] The study made no attempt to estimate what noise level will be created at the receptor points by the combination of the projected noise from I-291 and noise from sources other than I-291.[126]
The noise and air pollution problems broached in the post-EIS studies are certainly significant. But they appear to be nowhere near so drastic as to permit the Court to conclude, under the narrow standard of substantive review previously discussed, see pp. 240-242, supra, that defendants' decision to proceed with construction of I-291 was arbitrary or capricious. Moreover, although plaintiff produced expert testimony attacking the methodology of the air and noise pollution studies, plaintiff produced no empirical evidence of its own that the noise and air pollution impacts of I-291 would be even greater than the post-EIS studies suggested. I accordingly conclude that there is no reasonable probability that plaintiff would prevail at a trial on the merits of its substantive claim under section 101(b)(3) of NEPA, 42 U.S.C. § 4331(b)(3).
V.
CONCLUSION
The familiar principles governing the granting of a preliminary injunction have been succinctly summarized by Professor Moore. "[I]n actions in which only private interests are involved the trial court may, in the exercise of its discretion, properly grant an interlocutory injunction when it is satisfied that there is a probable right and a probable danger and that the right may be defeated, unless the injunction is issued; that the plaintiff is in substantial need of protection; and that the damage to him, if the injunction is denied, plainly outweighs any foreseeable harm to the defendant." 7 J. Moore, Federal Practice ¶ 65.04[1], at 65-39 (2d Ed.1973). However, these principles are qualified by the policy that "Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved." Virginian Ry. *263 Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937). Thus equitable doctrines conditioning injunctive relief on a balancing of equities "do not militate against the capacity of a court of equity as a proper forum in which to make a declared policy of Congress effective." United States v. City and County of San Francisco, 310 U.S. 16, 31, 60 S.Ct. 749, 757, 84 L.Ed. 1050 (1940). NEPA is clearly a declaration of Congressional policy which depends greatly for its effectiveness on judicial enforcement through injunctive relief. Lathan v. Volpe, 455 F. 2d 1111, 1116-1117 (9th Cir. 1971). Accord, Environmental Defense Fund v. Tennessee Valley Auth., 468 F.2d 1164, 1183-1184 (6th Cir. 1972). As has been said in an FHWA-NEPA case, "unless the plaintiffs receive now whatever relief they are entitled to, there is danger that it will be of little or no value to them or anyone else when finally obtained." Lathan v. Volpe, supra, 455 F. 2d at 1117 (emphasis in original). See also Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033, 1037 (8th Cir. 1973): "We recognize that the injunction is the vehicle through which the congressional policy behind NEPA can be effectuated, and that a violation of NEPA in itself may constitute a sufficient demonstration of irreparable harm to entitle a plaintiff to blanket injunctive relief."
Of course, the fact that important public policies are at stake when it appears that an expressway is being constructed in violation of NEPA does not preclude altogether the Court's balancing of the equities in deciding upon an application for injunctive relief. But the foregoing cases do establish that where injunctive relief as a remedy for non-compliance with NEPA is in issue, "the burden should be upon those urging that non-compliance should be excused." Committee to Stop Route 7 v. Volpe, supra, 346 F.Supp. at 738.
Under this standard, if "construction were now nearly completed, the equities would not favor an injunction." Id. While construction of the initial two-mile segment of I-291 west from I-91 has been underway since September, 1973, it was still in the preliminary stage at the time of the hearing on plaintiff's motion for a preliminary injunction. Presumably it has progressed further since that hearing, but even assuming, arguendo, that post-hearing construction should be considered in balancing the equities, it does not appear that construction of even the initial segment of I-291 is anywhere near complete.
While considerable expense will indeed be involved in halting work on I-291, it is better for this expense to be incurred in serving NEPA than to risk the illegal expenditure, in contravention of NEPA, of much more substantial sums. Moreover, the point of injunctive relief is to preserve realistic options for federal decision makers, including the option of abandonment of the project. Defendants are not entitled to assume that full compliance with NEPA "will have no effect whatever on the decision whether or not to build." Committee to Stop Route 7 v. Volpe, supra, 346 F.Supp. at 738-739. It is cheaper to halt construction now and proceed later, if this is decided upon, than to continue to construct even more of a project which may ultimately be abandoned and perhaps even dismantled. Thus I must agree with the position taken by Chief Judge Reynolds in the analogous case of Northside Tenants' Rights Coalition v. Volpe, 346 F. Supp. 244, 249 (E.D.Wis.1972):
"I have found above that there is a substantial probability that NEPA is applicable to the freeway at issue here today. And `It is far more consistent with the purposes of the Act to delay operation at a stage where real environmental protection may come about than at a stage where corrective action may be so costly as to be impossible.' Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1128 (1971). Failure *264 to grant a preliminary injunction at this time would allow further investment of resources into Park Free-way-West, making its abandonment or alteration in light of environmental concerns increasingly costly and increasingly difficult. Indeed it might even cost plaintiffs their case, for if construction continues it might well reach the stage where NEPA would be inapplicable. See Arlington Coalition v. Volpe, 458 F.2d 1323, (4th Cir. 1972)."
Finally, I turn to the assertion of the amicus that a cessation of construction will probably result in a loss of jobs. There has been no showing, however, of the extent to which alternative employment is unavailable to those currently employed on I-291. In any case, Congress passed NEPA despite that body's acute sensitivity to legislation productive of economic dislocation. Nothing in NEPA authorizes according the environment any less solicitude than employment. Where, as here, the impact of an injunction on individuals' employment is far less severe than the impact of a denial of an injunction on the environment, the Congressional value judgment must be honored.
The Court's jurisdiction over this action under 28 U.S.C. § 1331 has not been disputed, and the Court concludes that it has such jurisdiction. For the reasons recited in the foregoing opinion, which shall serve as the Court's findings of fact and conclusions of law, Fed.R.Civ.P. 52(a), a preliminary injunction shall issue enjoining defendants, their officers, agents, servants, employees, and attorneys from any further acts or expenditures for the construction of I-291 until further order of the Court.
A nominal bond being appropriate compliance in these circumstances with Fed.R.Civ.P. 65(c), see Sierra Club v. Froehlke, supra, 359 F.Supp. at 1385 & n. 452, plaintiff shall post security in the amount of $100. The Court will entertain a motion to dissolve the injunction (1) after trial on the merits of plaintiff's complaint; or (2) upon presentation to the Court, after filing with the CEQ, of a revised final EIS prepared in conformity with this opinion.
So ordered.
NOTES
[1] The five defendants are the Connecticut Commissioner of Transportation, his Deputy Commissioner in charge of the Connecticut Bureau of Highways, the Division Engineer for Connecticut, the Northeastern Regional Administrator of the Federal Highway Administration, and the Secretary of the United States Department of Transportation.
[2] The four allegedly violated statutes are the National Environmental Policy Act, as amended, 42 U.S.C. § 4331 et seq.; the Intergovernmental Cooperation Act, as amended, 42 U.S.C. § 4231 et seq.; The Clean Air Act, as amended, 42 U.S.C. § 1857 et seq.; and section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f).
[3] Section 101 of NEPA, 42 U.S.C. § 4331, provides in pertinent part:
"(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
(b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;
(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. . . ."
Section 102 of NEPA, 42 U.S.C. § 4332, provides in pertinent part:
"The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;
(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources . . . ."
[4] "The basic concept of a connector from west of the Berlin Turnpike to New Britain evolved from survey plans prepared in April. 1955. The Newington Expressway, as it was called, provided for a multiple lane facility, grade separation structures and interchanges at major crossings with other roads. The expressway was to be included in the State Trunk Line Highway System. In accordance with section 969C of the 1953 supplement to the General Statutes, maps were prepared showing the location of the base line and the proposed taking lines in 1954 and 1956." "Final Environmental/Section 4(f) Statement, Interstate Route 291, Conn. Projects 93-74 & 51-130, January 1972" (I-291 EIS), Plaintiff's Exhibit 23, at p. 19.
[5] Affidavit of defendant George S. Koch, Defendants' Exhibit H, ¶¶ 4-5.
[6] Id., ¶¶ 6-8.
[7] Memorandum of J. F. Shugrue, Chief Engineer, CONNDOT Bureau of Highways, to George R. Turner, Jr., FHWA Division Engineer, August 19, 1970, Plaintiff's Exhibit 4.
[8] Memorandum of J. F. Shugrue to George R. Turner, Jr., December 8, 1970, Plaintiff's Exhibit 5.
[9] Revised Interstate 291 Design Study Report (attached to Plaintiff's Exhibit 5, Shugrue-Turner Memorandum of December 8, 1970, supra note 8), at p. 5.
[10] Letter of George R. Turner, Jr., to George J. Conkling, February 1, 1971, Plaintiff's Exhibit 8.
[11] Undated "Environmental Statement," Defendants' Exhibit F.
[12] Testimony of David H. Densmore, Nov. 28, 1973.
[13] Testimony of George S. Koch, Nov. 28, 1973.
[14] Densmore testimony, supra note 12.
[15] Koch testimony, supra note 13.
[16] "Draft Environmental Impact Statement for Interstate Route 291," with cover letter dated June 3, 1971, Plaintiff's Exhibit 10.
[17] A list of these agencies was attached to the cover letter of the draft EIS, Plaintiff's Exhibit 10, supra note 16.
[18] Testimony of Donato Altobelli, Director of Office of Environment & Design, FHWA Region 1, Nov. 28, 1973; testimony of Arthur Taylor, Senior Highway Engineer, CONNDOT, Nov. 30, 1973.
[19] Testimony of A. J. Siccardi, Nov. 27, 1973.
[20] I-291 EIS, Plaintiff's Exhibit 23, supra note 4.
[21] Cover letter for I-291 EIS from T. H. Sellew, Assistant Chief Engineer, CONNDOT Bureau of Highways, to A. J. Siccardi, Feb. 24, 1972, Plaintiff's Exhibit 22. See also Chronology of I-291 Environmental Submissions, attached to CONNDOT "Status Report" on EIS's, Feb. 25, 1972, Plaintiff's Exhibit 25.
[22] Letter from Ernest W. Harris, Assistant Division Engineer, to Gerald D. Love, Regional Federal Highway Administrator, Feb. 28, 1973, Plaintiff's Exhibit 26.
[23] Memorandum from Rex I. Wells, Chief, Environmental Development Division, FHWA, to Russell E. Train, Chairman, CEQ, Sept. 18, 1972, Plaintiff's Exhibit 28.
[24] Memorandum from T. E. Cressey, CONNDOT, to W. E. Keish, CONNDOT, Oct. 3, 1973, requesting immediate publication of an attached legal notice concerning the filing with the CEQ and the release for public inspection of the I-291 EIS, Plaintiff's Exhibit 29.
[25] Letter from A. J. Siccardi to CONNDOT Commissioner A. Earl Wood, Nov. 6, 1972, Plaintiff's Exhibit 30.
[26] "We have evaluated the noise and air impacts contained in the environmental statement and design study report for the subject highway. However, the noise and air evaluations were done some time ago when the `state of the art' was not as advanced as it is today. For this reason, we request that as design progresses the following items be given further consideration:
(1) If additional noise sensitive areas are found, they should be fully evaluated to insure that all practical steps are taken to minimize impact.
(2) Recognizing that CONNDOT now has available technical assistance and equipment to perform more detailed air quality surveys, it is suggested that the `before' conditions relative to air quality be reevaluated between now and PS & E submissions. This additional information should provide a better base on which to predict the after effects of this highway on the surrounding environment."
Memorandum from A. J. Siccardi to CONNDOT Commissioner A. Earl Wood, Nov. 6, 1972, Plaintiff's Exhibit 31.
[27] "Noise Analysis for Project No. 51-130 and 93-74, I-291 Farmington to Rocky Hill," with cover memorandum from J. Drake, CONNDOT, to W. Ginter, CONNDOT, Feb. 16, 1973, Plaintiff's Exhibit 36.
[28] Cover memorandum for I-291 Noise Analysis from S. T. Bothwell, CONNDOT, to A. J. Siccardi, March 6, 1973, Plaintiff's Exhibit 37, stating in pertinent part:
"As a result of the analysis, one area has been defined as being noise sensitive. The Eagle Lantern Village Open Space area (Station # 19 in the analysis) would be subjected to a predicted L10 sound level of 72 dBA when the volumes on S.R. 523 reach the levels predicted. The possibility of placing an attenuation mound between S.R. 523 and the open space area has been investigated. It has been predicted that an attenuation of 13 dBA could be expected if a 10' high mound were constructed. A mound can be accommodated within the right-of-way for the highway ensuring no encroachment into the remaining open space area. It is proposed that a mound be placed adjacent to the Eagle Lantern Open Space area and continued adjacent to the State-owned property that is proposed as replacement land in the Section 4(f) Statement."
[29] Memorandum from Ernest W. Harris, Assistant Division Engineer, FHWA, to A. Earl Wood, Commissioner of CONNDOT, April 4, 1973, Plaintiff's Exhibit 38.
[30] "Air Quality Study of Proposed Interstate I-291, Rocky Hill to Farmington, Connecticut," May, 1973, Plaintiff's Exhibit 39.
[31] Cover memorandum from R. W. Gubala, CONNDOT, to A. J. Siccardi, June 8, 1973, Plaintiff's Exhibit 40.
[32] the results indicate compliance with federal air quality standards for the transportation pollutants within 200 feet of the highway, with the exception of one pollutant (hydrocarbons) at three specific locations where receptors up to a distance of 450 feet from the highway would be affected if the worst combination of traffic and meteorological conditions occurred simultaneously." Id.
[33] Letter from A. J. Siccardi to A. Earl Wood, Commissioner of CONNDOT, June 14, 1973, Plaintiff's Exhibit 41. This initial two-mile segment of I-291 was split out of one of the two original projects comprising I-291, project no. 93-74, and assigned its own project number, 159-121. See p. 236, infra.
[34] Siccardi-Wood letter of June 14, 1973, Plaintiff's Exhibit 41, supra note 33.
[35] Affidavit of George S. Koch, Defendants' Exhibit H, supra note 5, ¶ 14.
[36] Id., ¶ 15.
[37] Id.; Brief of the Connecticut Construction Industries Association (Amicus Curiae) at p. 4; Affidavit of Plaintiff's Counsel Alphonse R. Noë, Plaintiff's Exhibit 50, ¶ 9.
[38] Letter from A. J. Siccardi to defendant Joseph E. Burns, Commissioner of CONNDOT, Oct. 12, 1973, Plaintiff's Exhibit 47.
[39] Memorandum from D. H. Densmore, FHWA Field Operations Engineer, to A. J. Siccardi, Oct. 12, 1973, Plaintiff's Exhibit 46.
[40] Siccardi testimony, supra note 19.
[41] Densmore-Siccardi memorandum of Oct. 12, 1973, supra note 39.
[42] P.S. & E. approval is not specifically mentioned anywhere in the Clark opinion. I assume the court was referring to P.S. & E. approval when it declared: "On May 25, 1971, the Secretary of Transportation gave final approval to the I-610 federal-aid highway project. On that same date highway contractors were invited to bid on the section of land parallel to the railroad tracks in City Park. Intervenor, Boh Brothers, was the successful bidder and a construction contract was signed on July 14, 1971. Boh Brothers was authorized to begin construction on July 19, 1971." 342 F.Supp. at 1327. The court had already indicated that "design approval" had occurred in 1966, 342 F.Supp. at 1326, so its term "final approval," after which the receipt of contract bids and the commencement of construction followed in rapid succession, must refer to P. S. & E. approval. Moreover, it appears to be customary for P.S. & E. approval and FHWA authorization of solicitation of bids for the construction contract to be issued simultaneously. See Siccardi-Wood letter of June 14, 1973, Plaintiff's Exhibit 41, supra note 33.
[43] Koch testimony, supra note 13.
[44] Noë affidavit, supra note 37, ¶ 34.
[45] Id., ¶¶ 34-36.
[46] Koch affidavit, Defendants' Exhibit H, supra note 5, ¶ 16.
[47] Id.
[48] Id.
[49] Id., ¶ 21.
[50] Plaintiff's Exhibit 2.
[51] PPM 20-8, ¶ 1.b.
[52] PPM 20-8, ¶¶ 4.a, 10.d.1.
[53] PPM 20-8, ¶¶ 4.b, 10.d.2.
[54] PPM 20-8, ¶ 10.d.2; PPM 90-1, infra note 55, ¶ 5.3.1.
[55] FHWA "Guidelines for Implementing Section 102(2) (C) of the National Environmental Policy Act of 1969 [and other acts]," Aug. 24, 1971, Plaintiff's Exhibit 12.
[56] FHWA "Interim Guidelines for Implementation of Section 102(2) (C) of the National Environmental Policy Act of 1969," Nov. 24, 1970, circulated Nov. 30, 1970, attached to Defendants' Exhibit A.
[57] PPM 90-1, ¶ 6.c.
[58] PPM 90-1, ¶ 6.1.2.b.
[59] PPM 90-1, ¶ 6.h.
The FHWA has purported to declare NEPA's EIS requirement altogether inapplicable to highway projects which had received design approval prior to February 1, 1971. PPM 90-1, ¶ 5.a. Judge Newman of this Court has already ruled that "[t]his attempt to postpone the effective date of NEPA by thirteen months is contrary to the words and spirit of the legislation and cannot be permitted to stand." Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731, 737 (D. Conn.1972).
[60] Cf. Committee to Stop Route 7 v. Volpe, supra note 59, 346 F.Supp. at 736, n. 3: "PPM 20-8 established `design approval' as a formal step in the long gestation period of highway creation."
[61] Memorandum from R. M. Williston, CONNDOT, to F. J. Thompson, CONNDOT, Jan. 22, 1973, submitted by plaintiff on Dec. 28, 1973, after the hearing on the instant motion, in clarification of ¶ 33 of the affidavit of Noë, supra note 37.
[62] Cf. Noë affidavit, supra note 37, ¶¶ 38, 40:
"In connection with my review of documents at the Connecticut Department of Transportation, I had to request the Connecticut Deputy Commissioner of Transportation to instruct Mr. Taylor to permit me to look at the file which underlay the environmental statement. Later, as I was reviewing the file, I asked Mr. Taylor if I might have copies and he informed me that he had been instructed by his Superior, Mr. Cressy [sic], to permit me to make notes only. In addition, when I requested other material pertaining to the I-291 Southwest Quadrant and the I-291 belt route, I was referred to other departments with vague instructions.
* * * * *
I do not suggest that defendants were obstructionist or that I was given a "run around". However, it appears to me that inherent bureaucratic delay and the understandable reluctance of FHWA and Conn. DOT personnel to furnish files without extensive approval can best be overcome by obtaining discovery formally in this action."
[63] Calvert Cliffs' characterized the "basic substantive policy" of NEPA as requiring "that the federal government `use all practicable means and measures' to protect environmental values. Congress did not establish environmental protection as an exclusive goal; rather, it desired a reordering of priorities, so that environmental costs and benefits will assume their proper place along with other considerations." 449 F.2d at 1112.
[64] Scenic Hudson held only that agency action already subject to a "substantial evidence" standard of review (under the Federal Power Act, § 313(b), 16 U.S.C. § 825l(b)) was not subject to a stricter standard of review under NEPA.
In considering what standard of review to employ for review of an agency's threshold determination that no EIS was required because a proposal for major federal action by the agency would not significantly affect the quality of the human environment within the meaning of section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), the Fifth Circuit has relied on Overton Park to support its fashioning of a "reasonableness" standard of review which is stricter than the "arbitrary or capricious" standard. Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973). Accord, Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1249 (10th Cir. 1973). The Kreger court noted, however, that Overton Park did mandate use of the "arbitrary or capricious" standard for review of the merits of an agency's substantive decision to proceed with a project despite the adverse impacts predicted by a procedurally adequate EIS. "[T]he [Overton Park] Court made it clear that the ultimate merit decision based upon a weighing of these environmental considerations should be reviewed under the arbitrary, capricious, or abuse of discretion standard . . . ." 472 F.2d at 466. The Second Circuit and the Seventh Circuit, by contrast, have refused to use anything stricter than an "arbitrary or capricious" standard in reviewing an agency's threshold decision that proposed action is not within the purview of NEPA. Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S. Ct. 2290, 36 L.Ed.2d 974 (1973). Accord, First Nat'l Bank of Chicago v. Richardson, 484 F.2d 1369, 1381 (7th Cir. 1973). See also Town of Groton v. Laird, 353 F.Supp. 344 (D.Conn.1972).
[65] Interim Guidelines, attached to Defendants' Exhibit A, supra, note 56, ¶¶ 5.c, 6.a, 6.c.
[66] Plaintiff's Exhibit 12, supra note 55, ¶¶ 6.b, 6.i.
[67] For the complete text of § 102(2)(C) of NEPA, see note 3, supra.
[68] The limited scope of the FHWA's supervision of CONNDOT's writing of the EIS is well illustrated by defendant Siccardi's responses during cross-examination as to his knowledge of CONNDOT data on I-291's generation of new trafficdata which went unmentioned in the EIS.
"Q. I show you Plaintiff's Exhibit 17 and the attachment, Plaintiff's Exhibit 18, and ask you if that document was brought to your attention, at any time?
That is the document that estimates the 40 percent increase in generated traffic and quotes from the Interstate Traffic Manual.
A. I can only say inWell, of course, it's November 4th of 1971. I do not know whether I saw this document or not. I really don't.
Q. Don't you think that's a factor that should have been brought to your attention?
A. Well, it's difficult to say, you know. I have a lot of people in my office who to whom this kind of thing is brought to the attention. Now, this doesn't indicate in fact that it ever came to our office so
Q. Didn't you testify that you were working rather closely with the state on the preparation of this impact statement?
A. Closely, but certainly not holding their hand on everything they do.
Q. Not so closely that you'd find a projection that said there was going to be a 40 percent increase in traffic?
A. I simply cannot answer your question. I do not know about this particular document."
Siccardi testimony, supra note 19, Reporter's Transcript of Selected Excerpts at 3-4. See also CONNDOT's Chronology of I-291 Environmental Submissions, attached to Plaintiff's Exhibit 25, supra note 21, which contains references such as:
"7-23-71 Following suggestion of FHWA (Turner) preparation of Final ES is begun, based on comments and following the Guidelines in the Federal Register. . . . 8-25-71 Designer starts revisions to Final ES to conform to PPM 90-1. . . . 12-17-71 Designer starts revisions of Final ES to conform to latest instructions from FHWA. (12-16-71 letter from FHWA) [Plaintiff's Exhibit 20]."
[69] The I-291 EIS was apparently received in final form by the division office of the FHWA on Feb. 2, 1972, where it was reviewed by a team of three employees of that office, headed by Mr. D. R. Billings. A form bearing the Feb. 2, 1972 "Logged In" date and the initials of the review team also bears the following hand-written comment over Mr. Billings' initials: "Called Art Taylor [of CONNDOT, supra note 18] 2/10/72 told him to proceed with printing after checking on the status of the Convalescent home [see I-291 EIS, Plaintiff's Exhibit 23, supra note 4, at 10]." Defendants' Exhibit G.
[70] PPM 90-1, Plaintiff's Exhibit 12, supra note 55, ¶ 6.j.
[71] In a memorandum of January 18, 1973 to Mr. R. W. Gubala of CONNDOT, attached to Plaintiff's Exhibit 35 (see infra), Mr. T. E. Cressey of CONNDOT wrote:
". . . I wish to state the imposition that the present environmental process is placing upon the Design function.
* * * * *
With the imminence of preparing environmental statements for all State funded projects in addition to Federally funded projects, it is considered essential that the role of environmental statement production be removed from the basic design team and placed in the hands of specialist personnel, properly qualified, working as a special service unit. To not respond in such a fashion is the alternative of the intolerable lengthening of the period of the design process, obviating all recent advances in design technology. In short, I am asking that the designer be allowed to fulfill his first functionthat of preparing construction plans, specifications and estimates."
In a subsequent memorandum to Mr. Gubala, Mr. Cressey again addressed the problem of using design engineers as EIS authors:
"I reiterate that the designer cannot continue to be held responsible for the assembly and preparation of environmental statements without serious consequence. The field of highway design and the field of environmental affairs are too complex and changing too rapidly to be properly absorbed and applied by a person who already carries his full and fair share of responsibility.
The position of crew chief or designer was intended to be occupied by an engineer trained and skilled in highway design to be responsible for the design and coordination of highway projects. To expect him, suddenly and demandingly, to become an environmental writer skilled in the environmental arts and sciences and to keep up to date in the manifold phases of the two disciplines is asking too much."
Memorandum from T. E. Cressey to R. W. Gubala, Feb. 9, 1973, Plaintiff's Exhibit 35.
[72] Greene County has been tendentiously distinguished by some courts which have permitted federal agencies to delegate the writing of an EIS so long as the delegate has been subject to continuing federal supervision and control. Life of the Land v. Brinegar, 485 F.2d 460, 467-468 (9th Cir. 1973); National Forest Preservation Group v. Volpe, 352 F.Supp. 123, 127 (D.Mont. 1972). Other courts have simply ignored Greene County in cursorily approving the delegation of EIS authorship. Citizens Environmental Council v. Volpe, 484 F.2d 870, 873 (10th Cir. 1973); Finish Allatoona's Interstate Right, Inc. v. Volpe, 355 F.Supp. 933, 937-938 (N.D.Ga.1973).
This Court is, of course, not as free as courts beyond the Second Circuit to play fast and loose with the literal language of Greene County. In any event, I am not persuaded that FHWA supervision and control of state EIS writers is sufficiently amenable to judicial review to make case-by-case evaluation of the FHWA's influence on an EIS preferable to Greene County's per se rule of invalidation of a state-authored EIS. The per se rule, if applied by all circuits, would lead to appropriate agency regulations on EIS authorship and would shift the initial burden of monitoring compliance with this aspect of NEPA to the agencies themselves, while facilitating ultimate judicial evaluation of such compliance. Since the case-by-case approach requires judicial findings in every case as to the degree of federal agency control over state authors, it tends to encourage even more NEPA litigation, while at the same time increasing the chance that a legally insufficient EIS might for lack of litigation become the basis for federal decisions made in ignorance of potentially disastrous environmental consequences. The prevalency of Greene County's "self-serving assumptions" in the I-291 EIS, see pp. 248-249, 252-254, infra, suggests that any delegation of authorship of an EIS to state officials is likely to sabotage the Congressional goal of an objectively written EIS. Thus the per se approach of Greene County seems more consistent with the intent of Congress than the case-by-case approach of courts in other circuits, as well as being more consistent with the text of NEPA, and more conducive to efficient administrative and judicial enforcement.
[73] Plaintiff's Exhibit 10, supra note 16.
[74] Id. at 10.
[75] Id. at 11.
[76] Id.
[77] is our feeling that the draft statement could have been strengthened by a better discussion of the alternative locations studied and the reasons why the proposed alignment was selected over those discarded. This weakness has been noted in many of the draft EISs prepared by other States as well. In this instance the 4(f) statements contain excellent discussions of alternative locations complete with maps. We feel that a condensed version of this information should be included in the final EIS with reference to the availability of the 4(f) statement should anyone seek more complete information."
Memorandum from A. J. Siccardi to A. E. Wood, Commissioner of CONNDOT, July 21, 1971, I-291 EIS, Plaintiff's Exhibit 23, supra note 4, Appendix I.
[78] to the proposed action. Without finding fault with the proposed design for I-291, I think a fair interpretation of the National Environmental Policy Act (1969) would warrant more than one page to a discussion of alternatives. To say, as the Statement goes, that `our alternatives are either to build the facility or not to build it at all' is, in my opinion, totally inadequate. Section 102(2)(D) of that Act requires the responsible agency to `study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.' This applies to I-291 quite clearly; a description of real alternatives should be added to the draft."
Memorandum from Bill Cox, Connecticut Office of State Planning (OSP), to George Kiefer, OSP, July 29, 1971, I-291 EIS, Plaintiff's Exhibit 23, supra note 4, Appendix I.
[79] I-291 EIS, Plaintiff's Exhibit 23, supra note 4, at 20-24.
[80] Id. at 19-20.
[81] Id. at 19.
[82] Id. at 24.
[83] of auto travel patterns on segments of Interstate 291 shows that eighty-three per cent of the traffic on the Interstate 291 segment between the New Britain Connector to Interstate 91 interchange in Rocky Hill has at least one trip end within the following towns: Newington, New Britain, Berlin, Rocky Hill and Wethersfield. Twenty-one per cent of traffic using this section have both origin and destination in adjacent towns (Newington, New Britain, Berlin, Rocky Hill and Wethersfield)."
Id. at 25.
[84] Id.
[85] Testimony of Robert L. Morris, Nov. 30, 1973.
[86] See, e. g., I-291 EIS, Plaintiff's Exhibit 23, supra note 4, Figure 2. See also the references to a "New Britain Connector" in note 83, supra, and to a "Route 72 Connector" in note 92, infra.
[87] Defendants' Exhibit C. This memorandum is also attached to Plaintiff's Exhibit 15, a memorandum from J. M. O'Connor of the Washington office of the FHWA to Mr. Love as Regional Federal Highway Administrator, Oct. 13, 1971.
[88] Defendant Siccardi's proposal arose from concern in the office of the Secretary of Transportation that an EIS should be prepared for the entire proposed I-291 beltway from I-91 all the way to I-86. In a memorandum of July 29, 1971 [attached to Plaintiff's Exhibit 11, infra], to G. R. Turner, who had by that date already left his post as the FHWA Division Engineer for Connecticut, Herbert DeSimone, the Assistant Secretary of Transportation for Environment and Urban Systems, noted his office's receipt of the preliminary draft EIS and 4(f) statements for I-291. Because of the "highly controversial" nature of I-291 north of I-84, Mr. DeSimone indicated that his office would take no action on the draft EIS and 4(f) statements until they were expanded to include all of I-291, north as well as south of I-84. In response to the DeSimone memorandum, the regional office of the FHWA wrote a memorandum dated Aug. 6, 1971, to Mr. M. Lash of the FHWA's Office of Environmental Policy in Washington.
"While we agree that it is generally desirable to have Environmental Impact Statements cover a complete route or a substantial portion of a route in rural area, this procedure is not practical in a complex urban area. In the particular case under discussion the limits for the EIS for I-291 were established on the basis of sections which could stand on their own merit. The section of I-291 through Newington from its interchange with I-84 (the construction of which has been completed) and I-91 is a route section which will provide valuable traffic service to the Hartford area. The utility of this section of highway does not depend on the approval of the remainder of I-291, also the approval of this section will have no influence on the location of I-291 through West Hartford or Bloomfield.
On this basis the Assistant Secretary for Environment and Urban Systems should proceed with the review and processing of the subject EIS and 4(f)." Plaintiff's Exhibit 11.
It was apparently in further response to Mr. DeSimone's memorandum that defendant Siccardi proposed proceeding just with the Route 72 ConnectorI-91 portion of I-291. Unbeknownst to defendant Siccardi, however, a further exchange of memoranda had taken place after the August 6th memorandum. On Aug. 25, 1971, the Washington office of the FHWA sent a memorandum to Mr. DeSimone [attached to Plaintiff's Exhibit 21, infra] repeating verbatim the rationale expressed by the regional office in its Aug. 6th memorandum to Mr. Lash, as to deciding on I-291 south of I-84 independently of I-291 north of I-84. This Aug. 25th memorandum resulted in the following memorandum [attached to Plaintiff's Exhibit 21, infra] dated Sept. 8, 1971, from Mr. DeSimone to the Washington office of the FHWA:
"Thank you for your memo of August 25, 1971, supplying our office with additional information on the portion of I-291 through Newington from its interchange with I-84 to I-91. The information is very helpful in clarifying the status of this controversial project.
Since you indicate that the approval of this section will not result in a commitment to a route location of I-291 through the West Hartford-Farmington-Bloomfield area, we shall proceed with our review process when we receive the final environmental impact statement and Section 4(f) findings for this project as a route which will, in itself, provide traffic service to the Hartford area."
Defendant Siccardi's Oct. 7th memorandum was forwarded to the Washington office of the FHWA by the Regional Administrator, G. D. Love, in a memorandum dated Oct. 13, 1971 [Plaintiff's Exhibit 15, supra note 87], together with a reference to his office's Aug. 6th memorandum to Mr. Lash and a further request that the Washington office expedite the processing of the preliminary draft EIS and 4(f) statements for I-291 south of I-84. In reply to his Oct. 13th memorandum, the Washington office of the FHWA sent Mr. Love a memorandum dated Dec. 17, 1971 [Plaintiff's Exhibit 21], attaching copies of the Aug. 25th and Sept. 8th memoranda exchanged by Mr. DeSimone and the Washington office of the FHWA, and indicating on the basis of these memoranda that Mr. Love could proceed with preparation of a final EIS/4(f) statement for I-291 as described in the preliminary draft EIS. Thus the Washington office of the FHWA made no response to defendant Siccardi's proposal to construct only the Route 72 ConnectorI-91 portion of I-291, and instead indicated its willingness based on the Aug. 25th and Sept. 8th memoranda to proceed with I-291 as originally proposed, at least insofar as the I-91 to I-84 segment was concerned.
[89] Since it was set forth in an intra-agency memorandum before the writing of the final EIS, the Siccardi proposal is arguably required for inclusion in the final EIS not only as an alternative to I-291 but also as an agency comment on the preliminary draft EIS which must "accompany the proposal through the existing agency review processes." Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). See Committee for Nuclear Responsibility v. Seaborg, 149 U.S. App.D.C. 385, 463 F.2d 788, 794 (1971).
[90] "Map of Connecticut," CONNDOT, Plaintiff's Exhibit 49.
[91] I-291 EIS, Plaintiff's Exhibit 23, supra note 4, at 4.
[92] Information on the Siccardi alternative was especially essential to an adequate I-291 EIS because implementation of that alternative would spare the threatened open space area in Eagle Lantern Village, which lies across the portion of I-291 from I-84 southeast to the Route 72 Connector. The I-291 EIS adverts to the taking of the Eagle Lantern Village open space as an "unavoidable adverse affect [sic]" of I-291, and refers to the 4(f) statement appended to the EIS. Neither the EIS nor the 4(f) statement mention the Siccardi alternative. That the Siccardi alternative would have been of considerable interest to those to whom the final I-291 EIS was circulated, is demonstrated by the following comments of the Department of Interior:
"This is in response to your letter of May 3, 1972, requesting the Department of the Interior's comments on the final environmental/Section 4(f) statement for the segment of I-291 between I-91 and I-84 in Hartford County, Connecticut.
Based on the information provided, there appears to be no feasible and prudent alternative to the proposed highway location. This conclusion has been reached by comparing the environmental effects of each alternative considered and the project sponsor's ability to minimize harm to the affected Section 4(f) lands.
This Department is concerned about two recreation areas involved in this project, the Eagle Lantern Open Space property and the Churchill Park. . . .
* * * * *
This project will include the construction of a Route 72 Connector. The inclusion of such a connector represents, in part, a decision in principle about the future construction of Route 72 and also will act as a control point for a portion of its alignment. Field contacts have indicated that Route 72 will be entirely State funded. Additionally, it appears that Route 72 has advanced through the design stage with no opposition based on environmental issues. Although this may be the case, the environmental statement was seriously inadequate in that it did not discuss such information. Under these circumstances, the environmental effects of the connector road should be discussed or the construction of ramp connectors should be deleted from the project."
Letter from W. W. Lyons, Ass't. Secretary of the Interior, to F. C. Turner, Federal Highway Administrator, June 15, 1972, attached to a handwritten memorandum on the letter initialed by defendant Siccardi and dated June 30 (1972), Plaintiff's Exhibit 27 (emphasis added).
In bypassing the Eagle Lantern Village open space, the Siccardi alternative would also eliminate the principal noise problem along I-291, see note 28, supra, as well as spare a small waterfall, the Barbour Road Falls, just south of the open space area. See generally Affidavit of Lauren Brown, Plaintiff's Exhibit 56.
[93] Plaintiff also claims that the EIS is inadequate for failing to reflect the controversy which has arisen regarding the construction of I-291 north of I-84. Plaintiff asserts that the EIS erroneously assumes that I-291 will indeed be constructed north of I-84, and hence presents I-291 south of I-84 in a false light as part of a circumferential beltway, a function which plaintiff argues is unlikely ever to be served by I-291. Plaintiff appears to concede that the beltway concept of I-291 was not shelved until after the preparation of the final I-291 EIS, and limits its claim on this point to the failure of defendants to supplement the EIS with a statement as to the current posture of I-291 north of I-84. Defendants appear to concede that the future of I-291 north of I-84 is uncertain, but argue that a supplemental EIS on this point is unnecessary in view of I-291's utility independent of the possibly defunct beltway. Since the prospects for I-291 north of I-84 must in any event be discussed in the revised EIS's consideration of the Siccardi alternative, I need not decide whether such a discussion might otherwise be required in order for the EIS to be in compliance with NEPA.
[94] I-291 EIS, Plaintiff's Exhibit 23, supra note 4, at 14-16.
[95] Id. at 16.
[96] Id.
[97] Id.
[98] Taylor testimony, supra note 18.
[99] Defendants' Exhibit F, supra note 11.
[100] Defendant Koch testified as follows during redirect examination by defendants:
"Q. Just one quick question, Mr. Koch.
There is an allegation in the complaint that the preliminary research for the draft was just done without any backup data; so to speak, off the top of your head. Can you comment on that?
A. Well, it all depends upon what you refer to as `off the top of my head'.
At the time I prepared this I had been doing highway engineering for some 25 years. I am well aware of the consequences of construction of highways.
As I said, I personally had conducted the public hearings on this. I knew every concern that had been expressed at those public hearings. I also met with every group that asked for a meeting in this particular area, reacted to the complaints or concerns that these people might have, and revised the project to meet the needs of the highway, the safety requirements of the highway, and to minimize the concerns of the people.
And from that background, yes, you can say I wrote it off the top of my head. But it was thorough and complete knowledge of this project from one end to the other.
Q. It's based on your research too, isn't it?
A. My experience, of course, in the 25 years is constant research because we are in a constantly changing climate in terms of all activities that impinge on the human environment." Koch testimony, supra note 13, Reporter's Transcript of Selected Excerpts at 7-8.
[101] Keith v. Volpe was especially concerned with the EIS's consideration of air pollution because "[a]ir pollution in the Los Angeles basin is particularly obnoxious, and the major cause of it is automobile emission." 352 F.Supp. at 1334. Hartford apparently has less air pollution than Los Angeles, primarily because of better dispersal by prevailing winds. Testimony of Dr. Robert R. Hippler, Nov. 28, 1973. Nevertheless, the post-EIS air quality study of which Dr. Hippler was the principal author, states: "The proposed highway is to be located in Farmington, New Britain, Newington, Wethersfield and Rocky Hill, a part of Connecticut's Hartford-New Haven-Springfield Interstate Air Quality Control Region. The AQCR is presently classified as Priority I by EPA for CO, NO2 and oxidants." Air Quality Study, Plaintiff's Exhibit 39, supra note 30, at 40. The State of Connecticut's Air Quality Implementation Plan, Defendants' Exhibit D, discloses that the AQCR in which I-291 is situated is classed as Priority I not only for the three pollutants mentioned above but also for particulates and sulphur dioxide. Connecticut Air Quality Implementation Plan at 51, Table 3-6. The Plan states that "Priority I regions are the most heavily polluted, with levels well above the national standards . . . ." Id. at 49.
[102] Defendant Siccardi testified as follows during cross examination by plaintiff:
"Q. Now, I understand from your testimony, Mr. Siccardi, that you did grant design approval
A. Yes sir.
Q. to this section of highway. And I believe your testimony was that you granted design approval on November 11, 1972?
A. Thereabouts. I'm not sure of the exact date.
Q. Now, at that time, according to your testimony, you were dissatisfied
A. No, I did not say that, I did not say I was dissatisfied.
Q. I believe you testified that the only noise and air studies that had been made had been qualitative, was that your word?
A. I did say that, yes.
Q. What does that mean to you?
A. It means that they're based upon experience, they're based upon other than quantitative data. They're qualitative in nature. They're perceptions, perhaps, of the writer. That's whatYes, that's right.
Q. All right. Now, you wished quantitative data, is that correct?
A. I knew that quantitative data could be gotten and, therefore, I requested that some quantitative data be obtained.
Q. And that request was made, if I understand correctly, on the same day that you approved the design approval?
A. Yes. And it was done purposely on the same day. But it was done in a separate document.
Q. May I ask why, if you felt there should be more quantitative data, you approved the design at that time?
A. You may. And I think I tried to answer that question. There is a period of time between design approval and the final plan specification and estimate in which additional work must be done on any project.
I viewed noise and air just the same as I would the curvature of a highway or anything else. I simply said qualitative data before me indicates that there is no adverse impact on air or noise.
I would like to see, before I approve the final plan specification and estimate, some quantitative data upon which I could base my judgment as to whether the qualitative data or the qualitative judgment is a good or not a good judgment.
Q. All right.
A. No dissatisfaction indicated whatever with the environmental impact statement." Siccardi testimony, supra note 19, Reporter's Transcript of Selected Excerpts at 1-3.
[103] the Fifth Amended Complaint in this case was filed on September 5, 1972, a draft supplement to the EIS was prepared by the Arizona Highway Department. This supplement purports to comply with the Department of Transportation PPM 90-1 (1971) which provides administrative guidelines for implementation of Section 102(2)(C) of NEPA, 42 U.S. C.A. § 4332(2)(C). The supplement was circulated for comment among some twenty-three federal, state, and local governmental and private agencies, and additional comments were received from six other groups or agencies. All these comments, including at least one by the chairman of plaintiff CMTAF, were included in the final supplement to the EIS. This supplement was approved by the Secretary of Transportation on February 14, 1973." Citizens for Mass Transit v. Brinegar, supra, 357 F.Supp. at 1274.
Of course, under the law of the Ninth Circuit the supplemental EIS was not invalid because it was prepared by the state rather than by the FHWA. See Life of the Land v. Brinegar, supra.
[104] PPM 90-1, supra note 55, ¶ 6.p.(2).
[105] Donato Altobelli of the regional office of the FHWA testified as follows during cross examination by plaintiff:
"Q. I would show the witness Plaintiff's Exhibits 36 [supra note 27] and 39 [supra note 30]. Were these environmental studies submitted to your task force for comment or were comments solicited with respect thereto?
A. No, they were not.
THE COURT: What you are talking about, 39?
[Plaintiff's counsel]: Plaintiff's Exhibit 36 is the noise analysis.
Plaintiff's Exhibit 39 is the air quality study.
THE WITNESS: I might add here that under our procedure these studies were not required. We were aware of them. They were not required. But Mr. Siccardi took the initiative that because of where we were and where we were at, at this time, he asked, and the state was agreeable, to make these studies, over and above what was required by the existing regulations.
Even at the time that the final environmental impact statement, even at the time that he complied with the CEQ guidelines, he was not required to make this air analysis or this noise study by any regulations or guidelines from us, when he took the initiative on his own with the state to decide to look at these things because of improvements.
Q. [By plaintiff's counsel] Would you say that they're purely gratuitious, then?
A. I'd say that they're exemplary of the fact that somebody continued to look at a problem, even though it wasn't required by any federal regulation or state regulation.
Q. If it was not required, may it be ignored by the Federal Highway Administration?
A. . . . .
No, I don't think it should be ignored or was it ignored.
Q. But it was not submitted to the regional office?
A. Because it really was not anything that had to go to the regional office.
Q. Although certain expertise with respect to environmental review exists there?
A. I might add that in the area that you're talking about were two areas that until very recently the regional office did not have expertise.
Q. How recent?
A. Say in the last six to nine months. We've had an extensive training effort to get people on my staff trained in air pollution and noise pollution. I've been sending people to school, civil engineers, to training sessions put on by EPA, put on by the California Highway Department, put on by seminar groups, to get them the expertise." Altobelli testimony, supra note 18, Reporter's Transcript of Selected Excerpts at 4-6.
[106] Only "excessive" bias is impermissible in an EIS, since "The test of compliance with § 102 [of NEPA, 42 U.S.C. § 4332,] . . . is one of good faith objectivity rather than subjective impartiality." Environmental Defense Fund v. Corps of Engineers, supra, 470 F.2d at 296. "The agency itself need not show `subjective impartiality,' i. e. it can have . . . a mandate to achieve certain goals which conflict with preservation of the environment. . . . In the case of the FHWA . . . that goal is, of course, to build highways. But it must be demonstrated by the agency that with regard to the specific project for which the EIS is prepared, the agency has weighed with `good faith consideration' the environmental impact of the project and that the agency will modify or drop the project if the environmental costs are sufficient to outweigh the benefits of the project." Conservation Society of Southern Vermont v. Secretary of Transportation, supra, 362 F.Supp. at 633 (emphasis in original).
[107] PPM 90-1, Plaintiff's Exhibit 12, supra note 55, ¶ 6.c.
[108] See note 103, supra.
[109] In addition to its other objections, plaintiff also maintains that the original EIS is invalid because as a preliminary draft it was not circulated for comment to the EPA. See p. 230, supra. Plaintiff would draw an inference of bad faith on the part of defendants from this circumstance. In fact, the failure to circulate a copy of the preliminary draft EIS to the EPA arose from administrative confusion as to procedures to be followed by state highway authorities in preparing draft EIS's for submission to the FHWA.
The preliminary draft I-291 EIS written by CONNDOT in conjunction with the division office of the FHWA, see p. 239, supra, was prepared by reference to the FHWA's interim guidelines for compliance with NEPA, supra note 56, a copy of which had been forwarded to CONNDOT on December 11, 1970 (see cover letter to George J. Conkling, Commissioner of CONNDOT, Defendants' Exhibit A), and to which CONNDOT's attention had expressly been directed by the FHWA Division Engineer's letter of February 1, 1971, requesting CONNDOT's preparation of an EIS. See p. 239 & note 10, supra. The interim guidelines required circulation of preliminary draft EIS's "to those Federal agencies (in all cases to HUD) with jurisdiction by law or special expertise (Appendix E) on an environmental impact for comment." Interim Guidelines, supra note 56, ¶ 6.b. Foremost among Appendix E's listings of agencies with expertise in or jurisdiction over air quality and air pollution control was the National Air Pollution Control Administration, an arm of the Environmental Health Service of the Department of Health, Education and Welfare.
Appendix E's list was taken verbatim from the identical list in the predecessor to the FHWA's interim guidelines, Department of Transportation Order 5610.1, promulgated Oct. 7, 1970, and attached to the interim guidelines as Appendix B. See Interim Guidelines, supra note 56, ¶ 3.d. Appendix B/DOT Order 5610.1 carefully noted that its "list of Federal agencies with their area of expertise, prepared by the CEQ, . . . should not be presumed to be all-inclusive." Interim Guidelines, supra note 56, Appendix B at 6, ¶ 7.e. This caveat was unfortunately not repeated in the reprinting of the list in Appendix E.
The preliminary draft I-291 EIS was accordingly circulated by CONNDOT to the agencies specified in Appendix E, including the National Air Pollution Control Administration. Upon the establishment of the EPA on December 2, 1970, however, the EPA had taken over the functions of the National Air Pollution Control Administration. Reorganization Plan No. 3 of 1970, 84 Stat. 2086, see Historical Note, 42 U.S.C.A. at 401 (1973 ed.).
In the wake of the creation of the EPA, the CEQ issued proposed revisions to its existing guidelines on federal agencies' compliance with NEPA; among the changes made was the listing of the Air Pollution Control Office of the EPA in the place of the National Air Pollution Control Administration as the primary federal agency with special expertise or jurisdiction over air quality. 36 Fed.Reg. 1398 et seq., Jan. 28, 1971. (The fact that the preliminary draft I-291 EIS was sent to the superseded National Air Pollution Control Administration belies the assertion in CONNDOT's chronology of the I-291 EIS preparation process, attached to Plaintiff's Exhibit 25, supra note 21, that the preliminary draft I-291 EIS was circulated on June 3, 1971 to a "[l]ist of agencies obtained from Federal Register dated January 28, 1971, in consultation with Area Engineer [a subordinate of the Division Engineer] FHWA." See also letter from George H. Hubbard, CONNDOT, to Mrs. Albert Magnoli, a member of plaintiff, Oct. 15, 1973, Plaintiff's Exhibit 48, stating that the Jan. 28, 1971 issue of the Federal Register is "the procedural document upon which the Draft Environmental Statement for Interstate 291 in Newington was based." These erroneous after-the-fact guesses as to the procedure employed in circulating the preliminary draft I-291 EIS are illustrative of the confusion prevalent in advance of the promulgation of PPM 90-1.)
The revised CEQ guidelines were published in final form on April 23, 1971, 36 Fed.Reg. 7725 et seq., but were expressly made applicable only to EIS's circulated after June 30, 1971. Revised CEQ Guidelines, ¶ 3(a), 36 Fed.Reg. 7725. The CEQ revisions are reflected in the final version of the FHWA guidelines on preparation of EIS's, which was circulated on August 24, 1971, as PPM 90-1, supra note 55, and which properly lists the EPA as an agency of special expertise and jurisdiction regarding air quality. But circulation of PPM 90-1 occurred nearly three months after completion of the preliminary draft EIS in the instant case.
I find on the basis of these confusing circumstances that the CONNDOT and FHWA personnel who worked on the preliminary EIS were unaware until they received PPM 90-1 of the existence, or at least the significance, of the change in the CEQ guidelines which added the EPA to the list of agencies to be sent EIS's. See Siccardi testimony, supra note 19. See also letter from Edward J. Conley, EPA, to Sherwood T. Bothwell, CONNDOT, December 2, 1971, Defendants' Exhibit B, indicating that as of at least Sept. 8, 1971after circulation of PPM 90-1 the EPA was receiving preliminary draft EIS's on proposed Interstate Highway projects from CONNDOT.
As it happened, when the regional director of the defunct National Air Pollution Control Administration was reassigned to the EPA on July 1, 1971, he brought the preliminary draft I-291 EIS with him in his files. But since the draft EIS had not been received by the EPA through official channels, no review of it, official or unofficial, was ever undertaken by the EPA. Affidavit of Wallace E. Stickney, Director of the Environmental Impact Office of the EPA, Region I, Dec. 5, 1973, submitted by defendants on Dec. 6, 1973.
[110] Mr. Altobelli of the FHWA's regional office testified on Nov. 28, 1973, that his multi-disciplinary EIS review team had acquired expertise in air pollution and noise pollution "Say in the last six to nine months." See note 105, supra. The post-EIS noise study was submitted to defendant Siccardi on March 6, 1973, see p. 231, supra less than nine months before Mr. Altobelli's testimony. The post-EIS air quality study was submitted to defendant Siccardi on June 8, 1973, see p. 231, supraless than six months before Mr. Altobelli's testimony.
[111] Cf. Environmental Defense Fund v. Froehlke, 368 F.Supp. 231 (W.D.Mo.1973), in which the court refused to order circulation of a supplemental EIS on the basis of its conclusion (albeit reached in part through its consideration of "the additions and amplifications contained in the Supplement to the final EIS") that "the final EIS is [itself] adequate under the circumstances of this case." At 237, 243.
[112] Air Quality Study. Plaintiff's Exhibit 39, supra note 30, at 2, 23.
[113] Id. at 30, 41-44.
[114] Id. at 30, 39, 43-44. Since federal NO2 standards are expressed in annual averages, only a "normal case" average was predicted by the study. Id. at 39, 44.
[115] See the figures listed in Table 5, id. at 43.
[116] Id. at 45.
[117] Compare the figures for NO2 emissions by stationary sources, supra note 116, with the projected emissions of traffic along I-291, as listed in Table 5, supra note 115.
[118] Air Quality Study, Plaintiff's Exhibit 39, supra note 30, at 47.
[119] Id. at 30, 42, 44.
[120] Id. at 42, 44-45.
[121] Id. at 41.
[122] Id. at 45.
[123] Noise Analysis, Plaintiff's Exhibit 36, supra note 27, at 2.
[124] Id.
[125] Id. at Fig. 2.
[126] Id. at 2.
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534 F.Supp. 749 (1982)
UNITED STATES of America
v.
Billy L. BALLARD and Gene Milton Hooks.
Cr. No. 81-84-N.
United States District Court, M. D. Alabama, N. D.
March 24, 1982.
John C. Bell, U. S. Atty., and Charles R. Niven, Asst. U. S. Atty., M. D. Alabama, Montgomery, Ala., for the U. S.
Edward W. Drinkard, Prattville, Ala., for defendant Ballard.
*750 ORDER
MYRON H. THOMPSON, District Judge.
The defendant Billy L. Ballard was convicted on January 15, 1982, of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), carrying a firearm during the commission of a felony, in violation of 18 U.S.C. § 924(c)(2), and possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C.App. § 1202(a). This cause is now before the Court on his motion for new trial and his motion for judgment of acquittal, both filed January 20, 1982, and amended January 22, 1982. A hearing was held on these two motions on February 1, 1982.
I. BACKGROUND
On August 11, 1981, two men, wearing face masks made out of women's hosiery, wearing long-sleeved shirts and blue jeans, and armed with a gun, entered an apartment belonging to a Jerry Guin, who was then present, and to another young man, who was not present. The two men immediately pushed Guin to the floor, taped his hands behind his back, and taped his eyes. After rummaging through the apartment, the men left, taking with them some marijuana purportedly owned by the other, absent occupant of the apartment. Guin quickly freed himself, untaped his eyes and ran to the apartment balcony where he saw one of the men, then without his stocking mask, get into the passenger side of a small blue sports car. Upon the arrival of the police, Guin gave them a description of the car as already noted, and a description of the robbers as two white males, one younger and one older and one darkhaired and one lighthaired. Shortly thereafter, Ballard and Gene M. Hooks were stopped in a small blue sports car by Prattville policemen who were on the look-out for the robbers. A search of the car revealed a gun and numerous small bags of marijuana.
Later the same day, Ballard, Hooks and several other men were presented to Guin in a lineup. Guin identified Hooks as one of the robbers, in particular, the one whom he later saw getting into the small sports car. Guin, however, was unable to identify Ballard.[1]
Approximately three weeks later, Guin identified Ballard as one of the robbers, but only after he saw Ballard at a series of state preliminary proceedings in a county courthouse. The evidence as to this identification is confusing and somewhat contradictory. There is some evidence that Ballard was in police custody at the county courthouse, and there is other evidence that he was not, at least, not noticeably so. However, more significantly, Guin's testimony itself is confusing and contradictory. For instance, at Ballard's jury trial in this Court, Guin testified that he "went to the [county] court about three times and never did anything but sit there, and I just got to looking, and just to recognizing him;" but at a later hearing in this Court on Ballard's motion for new trial, Guin testified he recognized Ballard immediately, the first time he saw him at the county courthouse.
At Ballard's jury trial this Court, over Ballard's objection, admitted Guin's identification of him.
II. MOTION FOR NEW TRIAL
Ballard contends, first of all, that he is entitled to a new trial because this Court improperly admitted Guin's identification of him.
At the trial of this cause this Court, employing a two-step analysis by which identification reliability is questioned only if first there is a finding that the identification procedures were unduly suggestive, United States v. Williams, 616 F.2d 759, 761 (5th Cir.) (per curiam), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1980), was of the opinion that unless the identification procedures were impermissibly suggestive *751 as a result of improper police or government conduct, the issues as to suggestiveness and reliability were for the jury exclusively, not for the Court. This Court then admitted Guin's identification of Ballard without addressing the issues of suggestiveness and reliability because there was no evidence that the government or the police played any deliberate and impermissible role in the encounters between Guin and Ballard, their encounters having been purely accidental.
After trial, this Court came across and brought to the attention of the parties the Ninth Circuit case of Green v. Loggins, 614 F.2d 219 (9th Cir. 1980). In this case, the appellate court, after noting that the police had not engaged in any culpable conduct in a jailhouse encounter between an identification witness and a defendant, observed that
the fact that most accidental encounters do not involve a significant degree of suggestiveness does not mean that every accidental encounter is automatically above constitutional scrutiny. Rather, a court is obligated to review every pre-trial encounter, accidental or otherwise, in order to insure that the circumstances of the particular encounter have not been so suggestive as to undermine the reliability of the witness' subsequent identification.
614 F.2d at 223. This Court has uncovered no former Fifth or new Eleventh Circuit cases expressly adopting this view of the law.[2] Nevertheless, a review of the relevant Supreme Court cases has convinced the Court that the Ninth Circuit's conclusion in Green v. Loggins is correct: any unduly suggestive pre-trial confrontation, even if not caused by improper government action, triggers constitutional scrutiny. Id.
The Supreme Court has repeatedly emphasized in its eyewitness identification decisions that "the primary evil to be avoided is a very substantial likelihood of ... misidentification." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972); see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). These cases reflect the Supreme Court's concern that, due to the inherent vagaries of eyewitness identifications and their unusually persuasive effect upon jurors, the jury should not hear eyewitness testimony unless the testimony first meets a minimum standard of reliability. See Manson v. Brathwaite, supra, 432 U.S. at 112, 97 S.Ct. at 2252; United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967). Thus, the Court has held that the unnecessarily suggestive confrontation itself does not violate due process; see, e.g., Manson v. Brathwaite, supra, 432 U.S. at 110-14, 97 S.Ct. at 2250-53; Neil v. Biggers, supra, 409 U.S. at 198, 93 S.Ct. at 382; rather, "[i]t is the likelihood of misidentification which violates a defendant's right to due process." Id., 409 U.S. at 198, 93 S.Ct. at 381-82.
As the Ninth Circuit in Green v. Loggins observed, this likelihood of misidentification arises whenever there has occurred an unnecessarily suggestive confrontation between an eyewitness and a suspect, regardless of whether the confrontation was deliberate or involved actions by the police. 614 F.2d at 222. Cf. United States v. Wade, supra, 388 U.S. at 228-29, 87 S.Ct. at 1933 ([s]uggestion can be created intentionally or unintentionally in many subtle ways."). Thus, improper police conduct is not the only circumstance which can render an encounter unnecessarily suggestive to a witness; Green v. Loggins, supra, 614 F.2d at 222; rather due process is violated by the admission of an eyewitness identification made after any unduly suggestive encounter, unless the identification is independently reliable. See, e.g., id. at 222-25.
Applying the above principles to the instant case, this Court must conclude that its admission into evidence of Guin's identification of Ballard was in error. First of all, the encounters between Guin and Ballard *752 were unduly suggestive. Guin clearly could not identify Ballard at the lineup on the day of the robbery, a point in time when the robbers' identities would have been fresh in Guin's mind. Instead, Guin was able to identify Ballard only after he had seen Ballard in a lineup and after they had both regularly appeared for a series of court proceedings involving the robbery, two circumstances which together were clearly and strongly suggestive to Guin that Ballard had become a prime suspect. See, e.g., Green v. Loggins, supra.
Nevertheless, step two of the due process analysis requires admission of an eyewitness identification if the identification is shown to have a reliable basis independent of a witness' observation at the suggestive confrontation. See, e.g., Manson v. Brathwaite, supra, 432 U.S. at 116, 97 S.Ct. at 2253; United States v. Williams, supra, 616 F.2d at 761. The factors to be considered in evaluating such reliability include (1) the opportunity of the witness to view the perpetrator at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the perpetrator, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Furthermore, a court must consider and weigh against these five factors the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382; McGee v. Estelle, 632 F.2d 476, 479 (5th Cir. 1981). Applying these factors to this case, there is little reason to believe that Guin's identification is independently reliable. Guin had little if any opportunity to view Ballard;[3] he was unable to identify Ballard in a lineup held immediately after the robbery; and there was substantial time between the robbery and when Guin identified Ballard as one of the robbers.
Having considered these indicators of reliability, the due process analysis finally calls for a weighing of these factors against "the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253. This presupposes, however, that the analysis of the identification up to this point has revealed "indicators of [the witness'] ability to make an accurate identification." Id., 432 U.S. at 116, 97 S.Ct. at 2254; Green v. Loggins, 461 F.Supp. 24, 34, (N.D.Cal.) aff'd, 614 F.2d 219 (9th Cir. 1980). As already noted, in this case the analysis of the five factors of reliability, rather than indicating that Guin's identification was independently reliable based upon his observations of the robber at the time of the crime, has shown that Guin was in fact unable to make an accurate identification.
The admission of Guin's eyewitness identification of Ballard therefore violated due process and requires a new trial for Ballard.[4]
As to the other contentions raised by Ballard in support of his motion for new trial, this Court need not consider them.
III. MOTION FOR JUDGMENT OF ACQUITTAL
The Court is of the opinion that Ballard's motion for judgment of acquittal is wholly without merit.
Accordingly, for the reasons stated above, it is ORDERED:
(1) That the defendant Ballard's motion for new trial be and it is hereby granted; and
(2) That the defendant Ballard's motion for judgment of acquittal be and it is hereby denied.
Furthermore, the government having already provided the defendant Ballard with the information requested in his motion for disclosure, filed January 26, 1982, it is ORDERED that this motion be and the same is hereby denied as moot.
NOTES
[1] Guin testified that he made a tentative identification of Ballard at this lineup, being unable to distinguish between Ballard and one other lineup participant. Bob White, a Prattville police officer who was present at the lineup testified that no such tentative identification was made in his presence.
[2] The new Eleventh Circuit has adopted as its precedent the case law of the former Fifth Circuit. Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc).
[3] In contrast, Guin briefly saw the other robber without a face mask on, and he was able to identify this man as Hooks at the initial lineup.
[4] The government does not argue that the admission of this testimony was harmless error beyond a reasonable doubt.
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SALAHAT V. KINCAID
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-399-CV
ESMAT SALAHAT AND APPELLANTS
MAY LYNN SALAHAT
V.
MICHAEL LYNN KINCAID APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
------------
OPINION
------------
I. Introduction
This is an appeal from a take-nothing summary judgment rendered against appellants Esmat and May Lynn Salahat in their personal injury suit against appellee Michael Lynn Kincaid. In their sole issue, appellants contend that the trial court erred by granting appellee’s summary judgment motion because a genuine issue of material fact exists concerning whether appellants’ claim was time barred by the applicable statute of limitations. We affirm.
II. Background Facts
On February 25, 2002, appellants and appellee were involved in an automobile collision. Appellants filed suit on February 26, 2004, asserting claims of negligence and negligence per se in connection with the collision. On July 27, 2005, appellee filed a motion for summary judgment alleging the affirmative defense of statute of limitations. The trial court granted appellee’s motion and signed a take-nothing summary judgment in favor of appellee, which appellants appeal.
III. Standard of Review
In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.
Tex. R. Civ. P.
166a(c);
Sw. Elec. Power Co. v. Grant,
73 S.W.3d 211, 215 (Tex. 2002);
City of Houston v. Clear Creek Basin Auth.
, 589 S.W.2d 671, 678 (Tex. 1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant.
Sw. Elec. Power Co.,
73 S.W.3d at 215.
When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.
Valence Operating Co. v. Dorsett
, 164 S.W.3d 656, 661 (Tex. 2005).
Evidence that favors the movant’s position will not be considered unless it is uncontroverted.
Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co.
, 391 S.W.2d 41, 47 (Tex. 1965).
The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant’s cause of action or defense as a matter of law.
Clear Creek Basin
, 589 S.W.2d at 678.
A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense.
Rhone-Poulenc, Inc. v. Steel
, 997 S.W.2d 217, 223 (Tex. 1999). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law.
Ryland Group, Inc. v. Hood,
924 S.W.2d 120, 121 (Tex. 1996). Questions of law are appropriate matters for summary judgment.
Rhone-Poulenc
, 997 S.W.2d at 222;
Westchester Fire Ins. Co. v. Admiral Ins. Co.
, 152 S.W.3d 172, 178 (Tex. App.—Fort Worth 2004, pet. filed) (op. on reh’g).
IV. Analysis
In their sole issue, appellants contend that the trial court erred by determining that the limitations period expired on February 25, 2004 rather than February 26, 2004 and by granting summary judgment based on that determination. The civil practice and remedies code requires a person to “bring suit for . . . personal injury . . . not later than two years after the day the cause of action accrues.”
Tex. Civ. Prac. & Rem. Code Ann
. §16.003(a) (Vernon Supp. 2005). Here, appellants do not dispute that their cause of action accrued on February 25, 2002; rather, they dispute the trial court’s method of calculating the two-year period under section 16.003(a).
Under the Code Construction Act, a year is defined as twelve consecutive months.
Tex. Gov't Code Ann.
§ 311.005(12) (Vernon 2005);
see also
Tex. Civ. Prac. & Rem. Code Ann.
§ 1.002 (Vernon 2002) (providing that Code Construction Act applies to civil practice and remedies code). To calculate a period of months under a statute, “from a particular day, the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun.”
Tex. Gov't Code Ann.
§ 311.014(c). Thus, in accordance with the above, two years, or twenty-four months, from February 25, 2002 is February 25, 2004. This method of calculating limitations comports with the method used by a majority of courts addressing this issue.
See
,
e.g.
,
Medina v. Lopez-Roman
, 49 S.W.3d 393, 397-99 (Tex. App.—Austin 2000, pet. denied);
Fisher v. Westmont Hospitality
, 935 S.W.2d 222, 225-26 (Tex. App.—Houston [14th Dist.] 1996, no writ);
Pitcock v. Johns
, 326 S.W.2d 563, 565 (Tex. Civ. App.—Austin 1959, writ ref’d);
(footnote: 1)
Segura v. Home Depot USA, Inc
., No. 04-99-00876-CV, 2001 WL 387995, at *5 (Tex. App.—San Antonio Apr. 18, 2001, no pet.) (not designated for publication).
(footnote: 2)
Appellants contend that Texas Rule of Civil Procedure 4 operates to extend the limitations period one day beyond the second anniversary of the date the cause of action accrued. Rule 4 provides that “[i]n computing any period of time prescribed or allowed by . . . any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included.”
Tex. R. Civ. P.
4. In support of their argument, appellants cite
Hughes v. Autry
, 874 S.W.2d 887 (Tex. App.—Austin 1994, no writ).
Appellants argue that we should apply rule 4 in the same way as the
Hughes
court, which would result in a reversal of the trial court’s judgment.
See id
. at 890.
In that case, Hughes suffered severe personal injuries in an automobile accident.
See id.
at 888. He timely filed an insurance claim, but on November 13, 1990, he received notice that his claim had been partially rejected.
See id.
On February 14, 1991, Hughes filed suit against the insurance company’s receiver, alleging negligent evaluation of his claim and failure to act in good faith in refusing the claim.
See id.
The trial court granted a take-nothing summary judgment against Hughes on the ground that Hughes’s claim was time-barred pursuant to former article 21.28, section 3(h) of the Texas Insurance Code.
See id.
Former article 21.28, section 3(h) provided that “[a]ction upon a [rejected insurance] claim . . . must be brought . . . within three (3) months after service of notice.”
(footnote: 3) To compute the three-month period in
Hughes
, the court applied rule 4 to its construction of the limitations period.
See id.
at 890
.
It held that November 13, 1990, the date of Hughes’s notice, constituted the “day of the act” for rule 4 purposes
, and as such, the statute of limitations did not begin to run until November 14.
See id
. Because Hughes filed suit on February 14, 1991, the court held that he did so within the time frame prescribed by former article 21.28, section 3(h).
See id.
The method of calculating limitations in
Hughes
is contrary to the method used by the majority of Texas courts, including the supreme court.
See
supra
pages 4-5 & note 2. Moreover, although the Austin Court of Appeals has never expressly overruled
Hughes
, it rejected its method of calculating limitations in a more recent case.
See Medina
, 49 S.W.3d at 398-99. And
Pitcock
, which has the precedential value of a supreme court case, has never been overruled. 326 S.W.2d at 565. Appellants would have us apply rule 4 to allow them one day beyond the statutory limitations period to file their claim. This result is clearly contrary to the language in section 16.003.
See Segura
, 2001 WL 387995, at *5 (holding same and also explaining that method of computing a number of months from a particular day as set forth in section 311.014(c) already incorporates rule 4‘s requirement that the first day of a period is not counted but the last one is). We hold that the trial court did not err by determining that the limitations period expired on February 25, 2004.
Appellants also contend that because there is a “split of authority” among the courts on this issue, a fact issue exists precluding summary judgment. As we have explained above, there is no split of authority on this issue;
Hughes
appears to be an anomaly. Furthermore, there are no facts in dispute; the only issue is whether to apply rule 4 in calculating the expiration date of the limitations period. Resolution of this issue by summary judgment is proper.
See, e.g., Fisher
, 935 S.W.2d at 226.
We hold that the trial court did not err by granting summary judgment in favor of appellee. Thus, we overrule appellants’ sole issue.
V. Conclusion
Having overruled appellants’ sole issue, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL B: LIVINGSTON, HOLMAN, and MCCOY, JJ.
MCCOY, J. filed a concurring opinion
DELIVERED: May 25, 2006
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-399-CV
ESMAT SALAHAT AND APPELLANTS
MAY LYNN SALAHAT
V.
MICHAEL LYNN KINCAID APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
------------
CONCURRING OPINION
------------
I concur with the opinion of the majority and write separately only to set forth examples that attempt to harmonize Texas Rule of Civil Procedure 4 and section 311.014 of the Code Construction Act.
Tex. R. Civ. P. 4;
Tex. Gov’t Code Ann.
§ 311.014 (Vernon 2005). Suppose written discovery is received on December 31, which has a thirty-day response time. Under rule 4, December 31 is “day 0,” January 1 is “day 1,” and the response is due on the thirtieth day, January 30.
(footnote: 4) In contrast, if discovery is received on December 31 and must be completed within
one month
, December 31 is “day 0,” January 1 is “day 1,” and the party has until January 31 to act; thus, the party has the entire month of January — January 1 through 31 — to act. Had the one-month triggering event occurred on January 1, then January 1 would be “day 0,” January 2 would be “day 1,” and the party would have until February 1 to act. Again, if there is a three-month period in which to act, and December 31 is “day 0,” then January 1 is “day 1,” and the party has the entire month of January, the entire month of February, and the entire month of March, or until March 31, to act. The same is true if the period of time is one year or a multiple of one year; December 31 is “day 0,” January 1 is “day 1,” and the final day to act is the last day of December, or the following December 31.
Turning to our friend, Black’s Law Dictionary, “computation” is cleverly defined as “[t]he act of computing.”
Black’s Law Dictionary
261 (5th
ed. 1979). I believe that “computing” begins the day the event occurs prompting the computation, which according to rule 4, is “day 0.” This affords a common sense understanding of the rule, the statute, and case law. The
Hughes
case, generously referred to as an “anomaly” by the majority, is erroneous in providing an extra day in which to act and would have, in our first example, not necessitated a one-month response until February 1.
Hughes v. Autry
, 874 S.W.2d 887 (Tex. App.—Austin 1994, no writ). Thus, it would have allowed the responding party the entire month of January plus the first day of February—clearly more than one month.
In this case, under the two-year statute of limitations, “day 0” for the Salahats was February 25, 2002; “day 1” was February 26, 2002; and the final day to act was two years later on February 25, 2002, which resulted in a full twenty-four months in which to act. Any other construction would have afforded two years and one day to act, contrary to the applicable statute of limitations. For these reasons, I respectfully concur in the result.
BOB MCCOY
JUSTICE
DELIVERED: May 25, 2006
FOOTNOTES
1:We note that by disposing of
Pitcock
with the designation “writ refused,” the supreme court adopted the court of civil appeals’s judgment and reasoning as its own.
See Hubenak v. San Jacinto Gas Transmission Co.
, 141 S.W.3d 172, 193 (Tex. 2004) (Jefferson, J., concurring).
2:See also Kirkpatrick v. Hurst
, 484 S.W.2d 587, 588-89 (Tex. 1972) (calculating limitations period according to same method from date plaintiff reaches age of majority);
James v. Gruma Corp
., 129 S.W.3d 755, 758 (Tex. App.—Fort Worth 2004, pet. denied) (noting, without addressing method of calculation, that limitations on claim that accrued May 18, 1999 would presumably run on or about May 18, 2001);
Cortinas v. Wilson
, 851 S.W.2d 324, 326 (Tex. App.—Dallas 1993, no writ) (calculating limitations by same method but without addressing issue).
3:Act of June 1, 1987, 70th Leg., R.S., ch. 1073, § 33, sec. 3, 1987 Tex. Gen. Laws 3610, 3647,
repealed by
Act of May 30, 2005, 79th Leg., R.S., ch. 995, § 9, 1987 Tex. Gen. Laws 3307, 3362.
4:All of these examples assume, as in this case, that the final day to act is not a Saturday, Sunday, or holiday.
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267 F.2d 840
Suzanne L. ADLER, on behalf of herself and all of the stockholders of Williams McWilliams Industries, Inc., similarly situated, Plaintiff-Appellee,v.W. Edward KLAWANS, Defendant Appellant, andWilliams-McWilliams Industries, Inc., Defendant.
No. 119.
Docket 25241.
United States Court of Appeals Second Circuit.
Argued January 15 and 16, 1959.
Decided May 4, 1959.
As Modified June 17, 1959.
COPYRIGHT MATERIAL OMITTED John L. Freeman, New York City (Wolf, Haldenstein, Adler & Freeman, New York City, on the brief), for defendant-appellant, W. Edward Klawans.
Aranow, Brodsky, Bohlinger, Einhorn & Dann, New York City, for defendant-appellant Williams-McWilliams Industries, Inc.
Stanley L. Kaufman, New York City (Kaufman, Taylor & Kimmel, New York City, on the brief), for plaintiff-appellee, Shephard S. Miller, New York City, of counsel.
Before MEDINA, LUMBARD and BURGER*, Circuit Judges.
BURGER, Circuit Judge.
1
This appeal presents for the first time the question whether Section 16(b) of the Securities Exchange Act of 19341 covers so called "insider profits" made on sales of the corporation's stock by the director of a corporation while holding such office but who was not a director when he purchased the stock less than six months earlier. We hold that such profits are covered by the statute.
2
Appellant also raises a subsidiary question, whether, if accountable for such profits, the director may offset losses in transactions in the same stock within the six month period covered by the statute. We hold that such losses may not be offset against profits. Smolowe v. Delendo Corp., 2 Cir., 136 F.2d 231, 148 A.L.R. 300, certiorari denied, 1943, 320 U.S. 751, 64 S.Ct. 56, 88 L.Ed. 446.
3
The statute controlling these issues provides in pertinent part:
4
"For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection."
5
Appellee Adler, a stockholder of Williams-McWilliams Industries, Inc., sued in the corporation's behalf under Section 16(b) to recover profits realized by appellant Klawans when the latter sold shares of the corporation which he had purchased before but sold after he became a director. Appellant moved for summary judgment asserting Section 16 (b) did not apply because he, Klawans, was not a director when he purchased the shares. Appellee by cross motion sought summary judgment urging that accountability for profits in these circumstances depends only on his being a director at the time of sale when the profit is realized. Judge Sylvester J. Ryan granted this cross motion fixing the profit realized at $20,748.36 unreduced by losses sustained by Klawans on sales of certain of the shares.
6
The pertinent facts are not in dispute. Appellant through another purchased 9900 shares of stock of Williams-McWilliams Industries, Inc., at various times between October 1, 1956 and January 17, 1957. This stock is listed and traded on the American Stock Exchange. Appellant's holdings amounted to less than 10% of the corporation's stock and he was neither a director nor officer between October 1, 1956 and January 17, 1957. He became a director on March 18, 1957 or about 60 days after the last purchase of the corporation's stock. He made no purchases of this stock after becoming a director. In five separate transactions within 10 days after his election as a director he sold 7900 shares at a profit. Thereafter he made other sales of the stock at a loss (between March and May 3, 1957), divesting himself of all the stock of the corporation purchased after October 1, 1956. However he remained a director of the company. From the outset of his term as director, commencing with the first meeting he attended — on the day he was elected — he was active in pressing for the payment of dividends both in cash and in stock.
7
I — Applicability of Statutes.
8
On the principal issue presented by this appeal appellant contends that, to give meaning to Section 16(b) in its entirety, the relationship of director or officer must exist both at the time of the purchase and at the time of the sale. Emphasizing the conjunctive "and" of the statute he argues that by its terms the law limits itself to "profit realized by him from any purchase and sale, or sale and purchase * * *" (Emphasis added.) To support his argument he refers to the language of a dissenting opinion in a case in this court, Stella v. Graham-Paige Motors Corp., 2 Cir., 1956, 232 F.2d 299, 305 (see footnote 3, infra). He recognizes that the dissenting view on which he relies touched on an issue not reached by the majority of the court in that case, since it involved a 10% beneficial owner rather than a director or officer.
9
Additionally appellant urges that Section 16(b) must be strictly construed because it is a penal statute; he also points to Rule X-16A-10 of the Securities and Exchange Commission and argues that since it exempts him from reporting the challenged sales it operates to take the transactions out of the reach of Section 16(b) by reason of the last sentence of the section which reads:
10
"This subsection shall not be construed to cover * * * any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection."
11
The objectives sought to be accomplished by Congress in adopting Section 16(b) are clear from the language of the statute without reference to the legislative history. They supply the key to the resolution of whatever ambiguity can be argued from other portions of the statute. The pertinent language is:
12
"For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, * * * of any equity security of such issuer * * * within any period of less than six months * * * shall inure to * * * the issuer * * *"
13
This makes plain the intent of Congress to reach a "purchase and sale" or "sale and purchase" within a six month period by someone within one of the proscribed categories, i. e., one who was a director, officer or beneficial owner at some time. The conventional rules of construction applied to this latter portion of the statute alone are not sufficient to resolve the issue. Appellant presents an arguable interpretation of the statute which would limit its reach to transactions in which the person is a director or officer at both ends of the transaction. If Congress had made such profits the subject of a criminal penalty — as presumably it could — appellant's argument would carry much weight for we would be obliged to construe it strictly. For reasons which will be developed more fully hereafter we construe this statute to be remedial, not penal, and hence subject to that interpretation most consistent with the legislative purpose as that can be discerned from the statute itself and by resort to its history if that be needed.
14
At most our task is, in Judge Cardozo's words, that of filling "the open spaces in the law."2 In addition to the intent and purpose of the legislation which we must glean from the statute as a whole rather than from isolated parts, we must consider the results which would flow from each of the two interpretations contended for. If we find one interpretation tends to carry out and the other to defeat the purposes of the statute, the resolution of the issue becomes simple.
15
The undoubted congressional intent in the enactment of § 16(b) was to discourage what was reasonably thought to be a widespread abuse of a fiduciary relationship — specifically to discourage if not prevent three classes of persons from making private and gainful use of information acquired by them by virtue of their official relationship to a corporation. The objective was not to punish but to deter the persons in these three categories — directors, officers, 10% beneficial owners — from making improper use of information gained in a representative capacity. The practices could not be prevented in toto but Congress sought to take the profit out of what it considered improper conduct. It is plainly a remedial step, as opinions of this court have indicated, even though in certain circumstances the remedy seems harsh. The statute channels the insider profits back into the corporation, not to an informant or person directly suffering a loss.
16
Unlike a criminal statute where intent would be an essential ingredient this statute renders the subject accountable for proscribed profits regardless of intent. Congress recognized, H.R.Rep. No. 1383, 73d Cong., 2d Sess. (1934), that § 16(b) would not correct all the practices thought to be evil; obviously the six month limitation alone "let many fish out of the net" since the tax laws tend to encourage a holding period longer than six months. Indeed it is not wholly accurate to characterize the operation of the statute as "harsh" or "crushing" without some qualification. Its bite is sharp only in the limited area of transactions it covers, see Gratz v. Claughton, 2 Cir., 187 F.2d 46, certiorari denied 1951, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353, but for the insider who waits six months and one day after purchase to avoid a short term gain there is no "bite" at all except as conscience calls the use of inside information on sales after six months as reprehensible as on sales within six months. One can speculate on whether the moral or ethical values are altered by the passage of 24 hours but the statute makes an honest if not honorable man out of the insider in that period.
17
Large areas of "insider" conduct were consciously left untouched by Congress for reasons dictated by practicalities rather than ethics or pure logic. A line had to be drawn somewhere by the lawmakers, as they must do in the laws of marriage, divorce, legitimacy, real estate, wills and a host of other subjects governed by statute. But the consciously limited scope of the statute is no reason for us to seek yet further limitations of what is remedial legislation.
18
The statute itself, independent of its legislative history, seems to treat directors and officers as one category of "insiders" and 10% beneficial owners as another. There is, of course, a logical and practical basis for distinction. Generally, although there are important exceptions in certain circumstances, officers and directors have more ready access to the intimate business secrets of corporations and factors which can affect the real and ultimately the market value of stock than does even so large a stockholder as a "10% beneficial owner." This is not to discount the potential influence of the latter but simply to acknowledge the basis for the different treatment accorded them by Congress. Moreover, a director or officer can usually stimulate more directly actions which affect stock values and have knowledge of factors which might depress values. Notwithstanding exceptions and variations these general propositions have a foundation in experience and furnish an adequate basis for a difference in treatment of 10% owners. Beyond doubt it was considerations of this character which led Congress to make a provision concerning 10% owners which was not made with respect to officers and directors. It is found in the language:
19
"This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of purchase and sale, or the sale and purchase, of the security involved * * *" (Emphasis added.)
20
Under the familiar canon of construction, expressio unius est exclusio alterius, the presence of this emphatic and unmistakable clause in the portion governing the one class demonstrates a clear legislative intent that no such provision applies to the other. See Loss, Securities Regulation 578 (1951); Cook and Feldman, Insider Trading Under the Securities Exchange Act, 66 Harv.L.Rev. 612, 632 (1953); Rubin and Feldman, Statutory Inhibitions Upon Unfair Use of Corporate Information by Insiders, 95 U.Pa.L.Rev. 468, 488 (1947).
21
While it is clear that actual reliance, motive and intent are not relevant in determining whether or not Section 16(b) is applicable to a given transaction, the potentialities as well as the actualities of a director's position are illustrated by what we find in the record in the instant case. On March 25, 1957, a week after a director's meeting at which Klawans moved a resolution that the corporation purchase 4800 shares of its own stock, he privately sold 9000 shares of this same stock. Purchases in these circumstances by the issuing company would, of course, have some tendency to support the market price in the face of substantial sales.
22
Although there is no case directly in point, cases in this circuit construing other aspects of this statute support the position we take here. Section 16(b) of the Securities Exchange Act has been considered in one phase or another by this court in three important prior opinions. Judge Clark's opinion in Smolowe v. Delendo Corp., supra, considered the statute's constitutionality, its legislative purpose, the method for computing profits, and certain other aspects. This was followed by Judge Hand's opinion in Gratz v. Claughton, supra, which, like the Smolowe case indicated that a construction of the statute as a remedial measure in favor of the corporation was the only means of giving full effect to the plain congressional intent.
23
Most recently in Stella v. Graham-Paige Motors Corp., supra,3 this court gave approval to the District Court's holding that the purchase which makes a person a 10% beneficial owner may be included notwithstanding the express proviso. All three of these cases underscored, either expressly or impliedly, Judge Clark's statement in the Smolowe case that:
24
"The statute is broadly remedial. Cf. Wright v. Securities and Exchange Commission, 2 Cir., 112 F. 2d 89. Recovery runs not to the stockholder, but to the corporation. We must suppose that the statute was intended to be thoroughgoing, to squeeze all possible profits out of stock transactions, and thus to establish a standard so high as to prevent any conflict between the selfish interest of a fiduciary officer, director, or stockholder and the faithful performance of his duty. Cf. Woods v. City Nat. Bank & Trust Co. of Chicago, 312 U.S. 262, 61 S. Ct. 493, 85 L.Ed. 820; In re Mountain States Power Co., 3 Cir., 118 F.2d 405; Otis & Co. v. Insurance Bldg. Corp., 1 Cir., 110 F.2d 333; In re Republic Gas Corp., D.C.S.D. N.Y., 35 F.Supp. 300." Supra, 136 F.2d at page 239. (Footnote omitted.)
25
In the Gratz opinion Judge Hand read into the statute the same high duty that applies to trustees generally:
26
"Nobody is obliged to become a director, an officer, or a `beneficial owner'; just as nobody is obliged to become the trustee of a private trust; but, as soon as he does so, he accepts whatever are the limitations, obligations and conditions attached to the position, and any default in fulfilling them is as much a `violation' of law as though it were attended by the sanction of imprisonment. * * *
27
"* * * When they [directors and officers] bought shares, they came literally within the conventional prohibitions of the law of trusts; yet the decisions [prior to the enactment of Section 16(b)] were strangely slack in so deciding." Supra, 187 F.2d at page 49.
28
Judge Hand emphasized this theme at another point, saying:
29
"The question is in substance the same as when a trustee's account is to be surcharged, for, as we have said, the statute makes the fiduciary a constructive trustee for any profits he may make." Supra, 187 F.2d at page 51.
30
These prior holdings do not answer the problem presented here, but they do show a pattern of this court's view that the purpose of the statute is remedial, rather than penal, and that it must be strictly construed in favor of the corporation and against any person who makes profit dealing in the corporation stock. Of course, the statute cannot be extended beyond the limits of its language, but as we have pointed out above, the language, given a rational interpretation is broad enough to cover appellant's transaction in this instance. Thus, we hold that Section 16(b) is applicable to a short swing transaction even though the person involved was a director only at the time of the sale and not at the time of the purchase.
31
On the primary issue of liability appellant Klawans finally argues that the Securities and Exchange Commission has exempted the transaction here under dispute from the coverage of Section 16 (b). Perhaps the Commission has the power to do so under the last clause of the subsection. Cf. Greene v. Dietz, 2 Cir., 1957, 247 F.2d 689, 692. We need not decide whether it does or not, however, since we find that it has not sought to exercise that power. In support of his argument that the exemption has been created, appellant points to Securities and Exchange Commission Rule X-16A-10, 17 C.F.R. § 240.16a-10 (1958 Supp.), which reads:
32
"Any transaction which has been or shall be exempted by the Commission from the [reporting] requirements of section 16(a) shall, in so far as it is otherwise subject to the provisions of section 16(b), be likewise exempted from section 16(b)."
33
He then argues that by Rule X-16A-1, 17 C.F.R. § 240.16a-1 (1949), and the forms prescribed thereunder, the Commission has rendered him exempt from reporting the transactions here under dispute. We agree that, if he is exempt from the Section 16(a) reporting requirement, he would be exempt under Rule X-16A-10 from the accounting requirements of Section 16(b). We believe, however, that he is not exempt from either the reporting or accountability.
34
Commission Rule X-16A-1(b), 17 C. F.R. § 240.16a-1(b) (1949), prescribes the rule for use of Form 4 and provides in pertinent part:
35
"Every person who at any time during any month has been * * * a director * * * of the issuer of such security, shall, if there has been any change during such month in his ownership of any equity security * * * file * * * a statement on Form 4 * * * indicating his ownership at the close of the calendar month and such changes in his ownership as have occurred during such calendar month." (Emphasis added.)
36
Appellant would have us read this rule as requiring a report only if there had been both a purchase and a sale of stock by a director while a director. We do not give it such a restricted interpretation. The Commission rule states in clear language that a director shall report all "changes in his ownership." This does not necessarily mean "ownership" which has been acquired by the director while a director. We therefore hold that appellant was required to report on Form 4 all sales of Williams-McWilliams stock made by him after March 18, 1957, even though the stock was purchased before he became a director. It follows that he is not relieved through the application of this rule of his obligations under Section 16(b).
37
II — Treatment of Losses.
38
The argument that losses and profits made by defendant on trading in Williams-McWilliams stock should be matched against each other to determine liability must be answered in the negative on the authority of Smolowe v. Delendo Corp., supra, and Gratz v. Claughton, supra. This result is consistent with the policy enunciated in the Smolowe case that "the statute was intended to be thoroughgoing, to squeeze all possible profits out of stock transactions." Supra, 136 F.2d at page 239. Both of these cases considered the problem of how "profits" under the statute should be calculated, and both concluded the highest sale price should be matched against the lowest purchase price and that there should be no offset for losses. Indeed, in the Gratz case this court affirmed a judgment of $300,000 against the insider defendant although, during the pertinent periods, he suffered a net loss of $400,000 on trading in the stock for which he was charged under Section 16(b). Judge Hand observed that while this result was "crushing * * * it should certainly serve as a warning, and may prove a deterrent." Supra, 187 F. 2d at page 52.
39
III — DIVIDENDS AS SECTION 16(b) PROFITS.
40
Appellees challenge4 Judge Ryan's refusal to include dividends in recoverable "profit realized" under Section 16(b). The question is thus presented as to whether, in the circumstances of this case, dividends received by appellant are includable in the "profit realized" by him from the "purchase and sale" of the Williams-McWilliams stock under the circumstances we have already considered.
41
Judge Ryan held the dividends were not includable, reasoning that the market price of a stock represents a "bargain" which includes and contemplates any dividends which may be paid. Hence, on this theory, the inclusion of dividends received in the calculation of "profit" under Section 16(b) would impose a double liability on appellant not provided for by the statute. So far as dividends which have been publicly announced before the purchase of stock by the insider and before he became such, we agree with Judge Ryan's reasoning.
42
The dividends fall into three categories which must be separately considered. On three different dates Williams-McWilliams declared dividends: December 6, 1955, December 10, 1956, and March 18, 1957. We shall refer to these as the 1955, 1956 and 1957 dividends. The 1955 dividend was payable on November 2, 1956; the 1956 on February 1, 1957; and the 1957 on May 1, 1957.
43
Appellant's first purchase of Williams-McWilliams stock that is in issue was made on October 1, 1956, long after the 1955 dividend was declared. At the time of his purchase it can reasonably be assumed that the forthcoming dividend was a matter of public knowledge. Appellant was in no different position with respect to this dividend from that of any other member of the stock buying public. In other words, appellant was not an "insider" either at the time he purchased the stock or at the time the dividend was declared. For this reason we think Judge Ryan correctly held appellant was not accountable for the 1955 dividend of $262.50.
44
When the 1956 dividend was declared, appellant was the owner of a substantial amount of Williams-McWilliams stock, but he was not then a director, an officer, nor the owner of 10 percent or more of the company's stock and hence had neither access to "inside" information nor influence over corporate action. He was therefore in no different legal position than was any other holder of less than 10 percent of the company's stock on the date when the critical action with respect to the 1956 dividend was taken. Hence Judge Ryan correctly held appellant was not accountable for the 1956 dividend of $2850. This is not inconsistent with our primary holding that a director need not be such both at the time of purchase and time of sale of stock in order to be accountable under Section 16(b). Our primary holding simply gives effect to the statutory mandate which presupposes that, at some moment before making a sale of stock, the insider was in an official position which he could have used to influence the sale price. (Supra, 267 F.2d 845.)
45
Appellant was a director when the 1957 dividend5 was declared and indeed he moved its declaration. His position as a director presents different problems with respect to this dividend, which amounted to $2362.50.6 He did not, however, receive this 1957 dividend with respect to any shares subsequently sold at a profit. Matching the purchases and sales in a manner most favorable to the corporation, the shares on which the 1957 dividends were declared and paid to appellant were sold by him at a loss of $8963.43, which was greater than the amount of the dividends.
46
Section 16(b) only makes an insider accountable for "any profit realized * * * from any purchase and sale," and the dividend received on a particular share can not logically be considered as profit separate and apart from the difference between purchase and sale price. In this situation we must evaluate the total result of the ownership of the particular shares, i. e., the net result of purchase, ownership benefits, and sale. This is not inconsistent with our holding, supra, that a profit on the sale of one share cannot be offset by a loss on the sale of another share.
47
It follows then, that in the circumstances shown by this record as to each of the three different categories of dividends there is no "profit realized" within the meaning of the statute. Situations may well arise relative to dividends where they are so inextricably connected with the "purchase and sale" of stock7 and possible manipulation by insiders for their own benefit and to the detriment of the corporation and the investing public as to compel the formulation of a rule on the subject under discussion in order to prevent the frustration of the statutory purpose described in the main part of this opinion. The resolution of these issues must await cases in which such issues are presented.
Notes:
*
Sitting by designation pursuant to 28 U.S. C.A. § 291 (a)
1
48 Stat. 897 (1934), 15 U.S.C.A. § 78p (b)
2
Cardozo, The Nature of the Judicial Process, in Selected Writings 154 (1947)
3
For the various steps in this case, see D.C.1952, 104 F.Supp. 957; D.C.1955, 132 F.Supp. 100; 2 Cir., 232 F.2d 299, certiorari denied 1956, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52; D.C.1957, 149 F. Supp. 390; 2 Cir., 1958, 259 F.2d 476
4
The record and docket page as certified to us by the District Court failed to show that appellees had taken a cross appeal, and we therefore originally held that appellees had no standing to ask for any relief. Counsel for appellees subsequently demonstrated to us that notice of a cross appeal had been properly filed and was apparently omitted from the record by inadvertence. We now revise our opinion to consider this issue
5
This was in reality two dividends: a $0.50 cash dividend and a 5% stock dividend
6
Cash dividends at $0.50 per share totaling $750 plus stock dividends of 75 shares (a 5% stock dividend) valued at $1612.50. Valuation of the stock dividend is based on the highest price received by appellant for any sale after the date the stock dividend was paid
7
Cf. Falco v. Donner Foundation, Inc., CCH Fed.Sec.L.Rep. ¶90,612 S.D.N.Y., reversed 2 Cir., 1953, 208 F.2d 600, 40 A.L.R.2d 1340
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349 F.2d 892
Charles L. RICKER, Appellant,v.B-W ACCEPTANCE CORPORATION, Appellee.
No. 8015.
United States Court of Appeals Tenth Circuit.
July 1, 1965, Rehearing Denied Aug. 16, 1965.
Eugene Klecan, Albuquerque, N.M. (Bingham & Klecan, Albuquerque, N.M., on brief), for appellant.
Eric D. Lanphere, Albuquerque, N.M. (Iden & Johnson, Bryan G. Johnson and James T. Paulantis, Albuquerque, N.M., on brief), for appellee.
Before PHILLIPS, LEWIS and HILL, Circuit Judges.
PHILLIPS, Circuit Judge.
1
Ricker has appealed from a summary judgment against him, individually, in favor of B-W Acceptance Corporation, on a written contract of guaranty. In opposition to the motion for summary judgment, Ricker filed an affidavit in which he admitted that he signed the written guaranty, but averred that he signed it in his representative capacity as President of Modern Furniture Company, a New Mexico corporation, and did not execute it as an individual guarantor.
2
The written contract in part here material reads as follows:
3
'Modern Furn. Albuquerque N.M.
June 10, 1958
4
'Blanket Guaranty 'To B. W. Acceptance Corporation Dallas, City Texas State
5
'In consideration of the purchase by you of any contract, mortgage, or commercial paper from Modern Furniture Co. * * * of Albuquerque, New Mexico * * * hereinafter called the Dealer and/or distributor * * * the undersigned hereby guarantees to you the performance and payment at maturity of any and all such contracts, mortgages, notes, trust receipts or commercial paper heretofore or hereafter purchased by you by all persons who may be obligated thereon in any capacity.
6
'Undersigned further agrees to pay you all costs and expenses, including reasonable attorney fees, incurred by you in endeavoring to obtain or enforce payment on such instruments.
7
'Undersigned further guarantees the faithful performance of any and all written agreements now existing or which may hereafter be entered into between you and dealer and/or distributor.
8
'This guaranty is unlimited in amount and continuing and to remain in force until written notice of the undersigned's withdrawal is served upon you at your office in Dallas, Texas. It is understood that any such withdrawal shall not be effective as regarding any transaction made prior thereto.
9
'Undersigned hereby waives notice of nonpayment, protest and demand. Undersigned waives notice of the acceptance of this guaranty. You may accept additional collateral, extend times of payment or otherwise vary the terms of any contract, mortgage, note, trust receipt or commercial paper without notice to the undersigned. Undersigned waives any demand upon dealer and/or distributor by you and any notice of non-performance or breach of any agreement. This guaranty shall not be discharged or affected by death; but it shall bind and its benefits shall accrue to, the respective heirs, executors, administrators, assigns and successors of the parties. The parties intend that the law of the State of New Mexico, shall govern this transaction, where the acceptance shall be deemed to have been given. If this guaranty is executed by two or more persons all obligations shall be joint and several.
10
'Chas. L. Ricker, Pres.'
11
Ricker's contention is that he was entitled to establish by parol evidence that he executed the written guaranty as President of Modern Furniture Company and not as an individual guarantor, and therefore no contract came into existence between the Acceptance Corporation and Ricker.
12
The contract of guaranty was made in New Mexico and expressly recited that it was to be governed by New Mexico law. Hence, in resolving the legal issues here presented, we must apply the law of New Mexico.
13
In Ellis v. Stone, 21 N.M. 730, 158 P. 480, at page 483, L.R.A.1916F, 1228, the court said:
14
'* * * Where a writing in the nature of a contract is signed by a person, and contains apt words to bind him personally, the fact that to such signature is added such words as 'trustee,' 'agent,' 'treasurer,' 'president,' and the like does not change the character of the person so signing, but is considered as merely descriptive of him. * * * The mere fact that a person sustains an agency relation to another does not prevent him from becoming personally liable on a contract with a third person, and, if it appears from the contract that he pledged his own credit or bound himself personally, the addition of such words as 'president' and the like will be considered as mere descriptio personae. * * *'
15
Thus, it appears New Mexico has adopted the well-settled general rule of descriptio personae.1
16
However, the court in the Stone case found the guaranty was so ambiguous it was impossible to determine whether it was intended to bind Stone, individually, or the bank of which he was president, and concluded that the trial court properly considered evidence aliunde the writing.
17
The name 'Modern Furniture Co.' appears in the body of the written guaranty, not as a contracting party or guarantor, but only in the capacity of a 'dealer and/or distributor,' and seller of the securities guaranteed, and at no place in the body of the guaranty is such company referred to other than in the two last-mentioned capacities.
18
By the first paragraph of the written guaranty, the 'undersigned' guarantees to the Acceptance Corporation 'the performance and payment at maturity' of any and all contracts, mortgages, notes, trust receipts or commercial paper purchased by the Acceptance Corporation 'from Modern Furniture Co. * * * hereinafter called the Dealer and/or distributor.'
19
By the third paragraph, the 'undersigned' guarantees the faithful performance of any and all written agreements 'now existing or which may hereafter be entered into between' the Acceptance Corporation and the Modern Furniture Company. Clearly, that paragraph manifests an intent to bind Ricker personally. Modern Furniture Company, as a party to such 'written agreements,' would be obligated to perform the same. The guarantee of such performance by Modern Furniture Company, by the written guaranty, would add nothing to its existing obligations as a party to such 'written agreements' and would serve no purpose.
20
In the last paragraph the clause, 'Undersigned waives any demand upon dealer and/or distributor by you' clearly differentiates the 'undersigned' from the 'dealer and/or distributor' and plainly shows the italicised words refer to different entities or parties, namely, Ricker, individually, and Modern Furniture Company, respectively.
21
The last paragraph also provides that the guaranty 'shall not be discharged or affected by death.' 'Death' is an appropriate term to use with respect to a natural person. The existence of a corporation ends with the termination of the period provided in its charter for its existence, or by its prior dissolution.
22
And, finally, the last paragraph also binds the respective 'heirs, executors, administrators' of the parties. Those are apt terms with respect to a natural person, but not to Modern Furniture Company, a corporation,2 and Ricker, individually, is the only natural person referred to in the guaranty to which they could apply.
23
The word 'undersigned' appears in the instrument eight times. The word 'undersigned' can only refer to Ricker, whose signature is affixed to the written guaranty. At no place in the body of the instrument does the context indicate it refers to the Modern Furniture Company, and in at least three instances the context clearly indicates the 'undersigned' refers to Ricker as a natural person and not in a representative capacity. Furthermore, at no place in the body of the instrument is there any language indicating Modern Furniture Company was a guarantor thereunder. The only basis for interpreting the guaranty as binding the Modern Furniture Company is the addition after Ricker's signature of the abbreviation 'Pres.'
24
Since the language of the instrument manifests a clear intent to bind Ricker, personally, the addition of 'Pres.' following his signature is only descriptio personae and does not render the instrument ambiguous.3
25
To construe the written guaranty as binding Modern Furniture Company and not Ricker, individually, would contradict and vary the language of the written instrument itself.
26
In Halliburton Company v. McPheron, 70 N.M. 403, 374 P.2d 286, the court held that parole evidence is admissible to show that the parties to a contract, prior to, or at the time it was made, entered into an agreement that such contract should become operative only on the occurrence of a particular condition or contingency, since such evidence would not vary or contradict the written instrument, but would only show that it never matured as a valid obligation. But the court also held that parol evidence of a conditional delivery of a written instrument is not admissible when it contradicts the terms of a written instrument, as where the contract by its terms excludes the possibility of a conditional delivery.4
27
Therefore, under the law of New Mexico, parol evidence is not admissible to establish that a written contract never came into existence, where such parol evidence would be inconsistent with and would contradict the terms of the written instrument.
28
Since there was nothing in the written guaranty manifesting an intent not to bind Ricker, individually, and the guaranty contained apt words to bind him personally, we conclude that evidence of an oral agreement that Ricker was not to be bound personally would contradict the terms of the written guaranty and violate the parol evidence rule.
29
It follows that Ricker's affidavit raised no material issue of fact and the trial court properly granted summary judgment for the Acceptance Corporation.
30
Affirmed.
1
Williston on Contracts, Third Edition, Jaeger, Vol. 2, 299, pp. 393, 394
2
See Norfolk County Trust Co. v. Green, 304 Mass. 406, 24 N.E.2d 12, 13
3
Bissonnette v. Keyes, 319 Mass. 134, 64 N.E.2d 926, 927; Inland Rubber Corp. v. Eskimo Kooler Corp., 337 Ill.App. 292, 85 N.E.2d 859; Gavazza v. Plummer, 53 Wash. 14, 101 P. 370, 371, 42 L.R.A.N.S., 1; Norfolk County Trust Co. v. Green, 304 Mass. 406, 24 N.E.2d 12, 13
4
See also Martin v. Cole, 104 U.S. 30, 31, 37, 38, 26 L.Ed. 647
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972 So.2d 196 (2008)
BLUNT
v.
STATE.
No. 4D06-1783.
District Court of Appeal of Florida, Fourth District.
January 16, 2008.
Decision without published opinion. Affirmed.
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57 F.3d 1063
Borkenhagenv.HHS
NO. 94-6253
United States Court of Appeals,Second Circuit.
May 08, 1995
Appeal From: D.Conn.94-cv-169
1
AFFIRMED.
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734 N.W.2d 488 (2007)
STATE
v.
BORING
No. 05-2054
Iowa Court of Appeals
April 11, 2007.
Decision Without Published Opinion. Affirmed.
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536 F.Supp.2d 1227 (2008)
James SHILLING, Plaintiff,
v.
Jackie CRAWFORD, James Schomig, Charles McBurney, William Knkoloia, Martha Sims, Cheryl Burson, Clarence King, Dave Casaleggio, Gary Friedman, Harold Clarke, Joseph Lehman, James Thatcher, Dean Mason, David Bailey, James Miller, and Ethan Earley, Defendants.
No. 2:05-CV-00889-PMP-GWF.
United States District Court, D. Nevada.
March 12, 2008.
*1228 James Shilling, Monroe, WA, pro se.
Sara J. Olson, State of Washington Office of the Attorney General, Olympia, WA, for David Bailey, Richard Clarke, Ethan Earley, Joseph Lehman, Dean Mason, James Miller and James Thatcher.
Jill Carol Davis, Attorney General's Office, Las Vegas, NV, for C. Burson, Dave Casaleggio, Jackie Crawford, Clarence King, William Kuloloia, Charles McBurney, James Schomig and Martha Sims.
ORDER
PHILIP M. PRO, District Judge.
Presently before the Court are State of Nevada Defendants' Motion for Summary Judgment (Doc. # 187) and Washington DOC Defendants' Motion for Summary Judgment on Plaintiffs RLUIPA Claim and Memorandum in Support Thereof (Doc. # 186), both filed on October 11, 2007. Plaintiff filed a Response (Doc. # 195) on November 19, 2007. Washington *1229 DOC Defendants filed a Reply (Doc. # 194) on Nov. 19, 2007.
I. BACKGROUND
On May 13, 2003, the Washington Department of Corrections (Washington DOC") and Nevada Department of Corrections ("Nevada DOC") entered a contract ("Housing Contract") wherein Nevada DOC agreed to house Washington inmates at its facilities. (Washington DOC Defs.' Mot. for Summ. J., "Wash. Defs.' First Mot." [Doc. # 144], Ex. 2, Attach. A.) Plaintiff James Shilling is a Washington State prisoner currently housed in the Washington State Reformatory in Monroe, Washington. (Id., Ex. 1, Attach. A; Shilling Decl.) On May 17, 2003, Plaintiff was transferred to High Desert State Prison ("HDSP") in Indian Springs, Nevada under the Housing Contract's terms. (Wash. Defs.' First Mot., Ex. 1, Attach. A.) Plaintiff was transferred back to Washington in November 2004.(Id.)
Under Washington DOC policy, inmates housed in Washington facilities who want to receive religious accommodations, including religious diets, must fill out a religious preference form and a religious diet request form and submit the forms to the' prison chaplain. (Id., Ex. 6, Attach.A.) On February 18, 1993, Plaintiff completed and submitted a religious preference form, marking his religious preferences as Catholic and Protestant. (Id., Ex. 7, Attach.A.) On May 9, 1993, Plaintiff completed and submitted another religious preference form indicating his religious preference was Lutheran. (Id., Attach.B.) On. April 11, 1997, Plaintiff filled out another religious preference form stating that his religious preference was Buddhist. (Id., Attach.C.) Washington DOC Defendants state this was the last religious preference form Plaintiff submitted prior to his transfer to HDSP in 2003. (Wash. Defs.' First Mot. at 4) Plaintiffs exhibits, however, contain a copy of a religious preference form bearing a date of July 17, 1997, wherein Plaintiff indicated his religious preference was Judaism. (Shilling Decl. and Exs. attached thereto, Ex. 58.) Nowhere on Plaintiffs form, however, did Plaintiff request a religious diet. (Id.) Upon transferring back to Washington in November 2004, Plaintiff completed another religious preference form declaring himself an Orthodox Jew. (Wash. Defs.' First Mot., Ex. 7, Attach D.)
Shortly after Plaintiff arrived at HDSP in May 2003, he completed two Inmate Request Forms directed to the HDSP Chaplain and Kitchen Supervisor requesting a kosher diet (Shilling Decl. and Exs. attached thereto, Ex. 22.) The record contains no evidence the chaplain or kitchen services supervisor answered Plaintiffs request. Plaintiff did not file another request or grievance until November 20, 2003, when he directed another Inmate Request form to the "Jewish Chaplain" seeking a kosher diet. (Id.) On December 12, 2003, Plaintiff filled out another Inmate Request form addressed to the Inmate Kitchen Supervisor requesting a kosher diet and requesting a response. (Id.)
On December 22, 2003, Plaintiff submitted an informal grievance stating he was being denied kosher food consistent with his Jewish beliefs and practices. (Id., Ex. 12.) On or about December 30, 2003, Defendant Dave Casaleggio ("Casaleggio"), the HDSP Prison Chaplain, interviewed Plaintiff to discuss Plaintiffs request for a religious diet. (Nevada Defs. Mot. for Summ. J., "Nev. Defs.' First Mot." [Doc. # 145], Ex. C, Aff. of Father Dave Casaleggio.)
Nevada DOC procedures regarding religious diet participation provide that the chaplain must evaluate whether an inmate is eligible for a religious diet by considering a "hereditary or social connection to the religious practice, or substantial philosophical *1230 understanding, of the religion and its dietary practices." (Shilling Decl. and Exs. attached thereto, Ex. 21-C at 2.) Nevada DOC procedures regarding inmates' access to religious programs further provide that "[s]ome religions or Faith Groups require proof of ethnicity, parentage, conversion, or membership before an inmate is recognized by the church authority. Inmates who cannot produce the required proof will not be permitted to participate in holiday or Holy Day events or special meals of that religion or Faith Group." (Id., Ex. 21-B at 2.)
Under these procedures, as chaplain, Casaleggio is responsible for interviewing inmates who request religious diets to determine if they qualify for such diets. (Nevada Defs.' Mot. for Summ. J., Ex. C, Aff. of Father Dave Casaleggio.) During the interview, Casaleggio asks the inmate about his religious history and current religious beliefs and practices and makes a determination as to whether the inmate is entitled to a religious diet based on the inmate's responses. (Id.) Casaleggio initially approved Plaintiff to receive a religious diet and prepared a memorandum to the Culinary Food Manager notifying him of Plaintiffs dietary request. (Id.; Nev. Defs.' First Mot., Ex. D.)
However, to understand the requirements of the Orthodox Jewish faith, Casaleggio contacted Defendant Gary Friedman ("Friedman"), President of Pidyon Shevuyim, N.A., who contracted with Washington DOC to provide Jewish services to inmates housed in Washington. (Nev. Defs.' First Mot., Ex. C, Aff. of Father Dave Casaleggio; see also Mot. to Dismiss by Def. Gary Friedman [Doc. # 27], Decl. of Gary Friedman.) After learning more about the Orthodox Jewish faith and, its membership requirements, Casaleggio conducted a second interview with Plaintiff during which he learned that Plaintiff was not born of a Jewish, mother and had neither initiated nor completed the conversion process to become an Orthodox Jew. (Nevada Defs.' First Mot., Ex. C, Aff. of Father Dave Casaleggio.) Consequently, Casaleggio withdrew his approval for Plaintiff's kosher diet. (Id.)
On February 19, 2004, Plaintiff received a response to his informal grievance, signed by caseworker Defendant Cheryl Burson and grievance coordinator Defendant Martha Sims stating that Plaintiffs request for a religious diet was "passed on to the culinary food manager" and therefore the grievance was "resolved." (Shilling Decl. and Exs. attached thereto, Ex. 12.) That same day, Plaintiff appealed the informal grievance response and filed a First Level Grievance claiming that he still was not receiving a kosher diet consistent with his religious beliefs. (Id.) On April 13, 2004, Plaintiff received a response to his First Level Grievance explaining that HDSP does not offer kosher diets, but that Ely State Prison ("ESP") provides kosher diets to inmates. (Id.) That same day, Plaintiff appealed the First Level Grievance and filed a Second Level Grievance arguing that as a "Receiving Institution," HDSP should provide religious meals to offenders requiring such meals under their religious practices and beliefs. (Id.) In response to Plaintiffs Second Level Grievance, Plaintiff was told that he had been submitted to ESP for a transfer to accommodate his request for a kosher diet. (Id.) According to Plaintiff, ESP is a higher security facility than HDSP. (Nev. Defs.' First Mot, Ex. A, Shilling Dep. at 44.)
On or about April 4, 2004, Washington DOC Defendants. Ethan Earley ("Earley") and James Miller ("Miller") were informed Plaintiff was an Orthodox Jew requesting a kosher diet. (Wash. Defs.' First Mot., Ex. 3, Decl. of James Miller ["Miller Decl."]; Ex. 5, Decl. of Ethan Earley ["Earley Decl."].) Earley and, Miller are *1231 both Washington DOC employees who worked on-site at HDSP to resolve "Issues regarding inmates who had transferred from Washington under the Housing Contract. (Id., Ex. 3, Miller Decl.; EN 5, Earley Decl.) Soon after receiving information regarding Plaintiffs situation, Miller and Earley met with Plaintiff to, discuss his request for a kosher diet and offered to have Plaintiff transferred to ESP to accommodate his request. (Id., EL 3, Miller Decl., Ex. 5, Earley Decl.) Because Plaintiff stated he did not want to go to ESP, Earley and Miller recommended that Plaintiffs transfer to ESP, be cancelled. (Id., Ex. 3, Miller Decl., Ex. 5, Earley Decl.)
Approximately three weeks later, Earley and Washington DOC Defendant David Bailey ("Bailey"), the on-site contract manager. at HDSP, conducted another, meeting with Plaintiff. (Id., Ex. 4, Decl. of David Bailey ["Bailey Deer], Ex. 5, Earley Decl.) Earley and Bailey informed Plaintiff that HDSP does not offer a kosher diet and that if Plaintiff "wanted to, pursue receiving a kosher diet he would have to transfer to ESP because ESP was the only Nevada facility that had an existing kosher kitchen and could accommodate his request. (Id., Ex. 4, Bailey Decl.) According to Defendants, Plaintiff reiterated he did not want to go to ESP. (Id.) Plaintiff indicates he expressed concerns about transferring to ESP when prison officials discussed the option with him. (Compl. [Doc. # 9] at 5.) Plaintiff believed transferring to the maximum security facility would require him to give up some of his possessions. (Nev. Defs.' Mot. for Stitmn. J., Ex. A at 43-44.) Plaintiff viewed a transfer to a higher security facility as a punishment. (Id.)
In November 2004, Plaintiff was transferred back to Washington. (Wash. Defs.' First Mot., EL 1.) On January 26, 2005, Plaintiff filed a grievance with the Washington DOC alleging his rights were violated during his incarceration at HDSP because he did not receive a kosher diet. (Id., Ex. 11, Attach.B.) In response, the Washington DOC explained to Plaintiff that the issue was "non-grievable" because the incident occurred at HDSP in Nevada and therefore "should have been addressed at that time, at that facility." (Id.)
Plaintiff filed suit in this Court against Nevada DOC and Washington DOC Defendants, alleging § 1983 claims for violation of his. Free Exercise and Equal Protection rights and claims for violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). This Court previously granted summary judgment in Defendants' favor regarding Plaintiff's § 1983 claims. (Order [Doc. # 182].) Defendants now move for summary judgment on Plaintiffs claim under RLUIPA.
II. LEGAL STANDARD
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" demonstrate "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law defines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry' of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A dispute over a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Where a party fails to offer evidence sufficient to establish an element essential to its case, no genuine issue of material fact *1232 can exist, because "a complete, failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The party moving for summary judgment bears the initial burden, of showing the absence of a genuine issue of material fact. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir.2000). The burden then shifts to the non-moving party to go beyond the pleadings and set forth specific facts demonstrating there is a genuine issue for trial. Id.; Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001). All justifiable inferences must be viewed in the light most favorable to the non-moving party. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001). "When the moving party also bears the burden of persuasion at trial, to prevail on summary judgment it must show that the evidence is so powerful that no reasonable jury would be free to disbelieve it." Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir.2008) (internal quotation omitted).
III. MOTION FOR SUMMARY JUDGMENT
A. RLUIPA Claim
RLUIPA provides, in relevant part:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a)(1)-(2) (2000). Claims brought under RLUIPA are subject to a strict scrutiny standard, which replaces the reasonableness standard employed in cases involving constitutional violations. See Henderson v. Terhune, 379 F.3d 709, 715 n. 1 (9th Cir.2004).
RLUIPA broadly defines "religious exercise" as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief.'" Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir.2005)"(quoting 42 U.S.C. § 2000cc-2(a)). RLUIPA is "to be construed broadly in favor of protecting an inmate's right to exercise his religious beliefs." Id. at 995 (citing 42 U.S.C. § 2000cc-3(g)). The plaintiff bears the initial burden of demonstrating a prima facie claim that the prison's policies or actions constitute a substantial burden on the exercise of his religious beliefs. Id. at 994. If the plaintiff meets this burden, the prison bears the burden of persuasion to prove that the substantial burden both furthers a compelling government interest and employs the least restrictive means. Id. at 995.
1. Substantial Burden
Defendants argue they are entitled to summary judgment because Plaintiff has not established a prima facie case that Defendants substantially burdened the exercise of his religious beliefs. Defendants argue their offer to transfer Plaintiff to another prison to accommodate his request for a kosher diet did not burden Plaintiffs religious exercise. Plaintiff argues Defendants' failure to provide him with a kosher diet at RDSP constituted a substantial burden.
RLUIPA does not define what constitutes a substantial burden. See 42 U.S.C. § 2000cc-4; San Jose Christian Coll v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004). The United States Court of Appeals for the Ninth Circuit has held that "a substantial burden on religious exercise must impose a significantly great *1233 restriction or onus upon such exercise." Warsoldier, 418 F.3d at 995 (citing San Jose. Christian Coll., 360 F.3d at 1084) (internal quotation omitted).
A prison policy that, pressures an inmate to abandon his religious beliefs imposes a substantial burden. Shakur, 514 F.3d at 889 (citing Warsoldier, 418 F.3d at 996). An inmate need not be prevented from participating in the exercise to be substantially burdened; conditioning a benefit on an inmate's abandonment of the religious conduct is sufficient. Warsoldier, 418 F.3d at 996. For instance, an inmate demonstrated a substantial burden where his refusal, to comply, with a regulation that conflicted with his religious belief resulted in confinement to his cell, additional duty hours, restricted privileges, and the reduced ability to purchase items from the prison store. Warsoldier, 418 F.3d at 996.
Defendants offered Plaintiff the choice of transferring to a higher security facility and receiving kosher meals, or remaining at HDSP with no kosher meals: Plaintiff viewed a transfer from a medium to a maximum security facility as a punishment because he would be required to give up some of his possessions and lose privileges he currently enjoyed. Defendants conditioned Plaintiffs receipt of a kosher meal on his relinquishment of the benefits of diving in a lower-security facility. Because conditioning Plaintiffs receipt of a benefit on his abandoning the request for a kosher diet constitutes substantial burden en Plaintiff's religious exercise, Plaintiff has met his initial burden and Defendants are not entitled, to summary judgment on this basis. The burden therefore" shifts to Defendants to demonstrate their policy serves, a compelling government interest and uses the least, restrictive means.
2. Compelling Interest
"[M]aintain[ing] good order, security and discipline, consistent with consideration of costs and limited resources," is a compelling government interest. Cutter v. Wilkinson, 544 U.S. 709, 722, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Avoiding prohibitive expense qualifies as a compelling interest. Shakur, 514 F.3d at 889. The parties do not dispute that cost concerns are a compelling government interest; they dispute only whether transferring Plaintiff was the least restrictive means.
3. Least Restrictive Means
To prevail on summary judgment, Defendants must establish no genuine issue of material fact remains that its policy of not serving kosher meals at HDSP is the least restrictive means to avoid prohibitive expense. See 42 U.S.C. 2000cc-1(a); 42 U.S.C. § 2000cc2-(b). Defendants argue the Court should defer to its judgment that providing kosher diets at multiple facilities would jeopardize their ability to meet the nutritional needs of the inmate population as a whole.
A prison "`cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.'" Shakur, 514 F.3d at 890 (quoting Warsoldier, 418 F.3d at 996). "[C]onclusory affidavits that do not affirmatively show personal knowledge of specific facts are insufficient.'" Id. (quoting Casey v. Lewis, 4 F.3d 1516, 1527 (9th Cir.1993)). The government must produce competent evidence as to the additional cost of providing the special diet. Id. Likewise, assertions that a practice is the least restrictive means do not suffice. Id.
*1234 Defendants have not demonstrated the absence of a genuine issue of material fact as to whether transferring inmates to another location rather than providing them a kosher diet at HDSP is the least restrictive means of providing kosher meals to Jewish inmates. Defendants have offered no evidence they, considered alternatives to a transfer, such as providing pre-packaged or frozen kosher meals. Defendants also have not offered any concrete evidence of the costs of alternatives they may have considered. Rather, Defendants only assert that providing kosher meals at HDSP is cost effective and argue the Court should defer to that assessment. Because Defendants have not provided any evidence they considered various means of providing kosher diets to Jewish inmates at HDSP, or evidence supporting their claims of cost concerns, Defendants have not met the burden of demonstrating their policy is the least restrictive means to avoiding prohibitive expense and Defendants therefore are not entitled to summary judgment on this basis.
B. Qualified Immunity
Defendants assert they are entitled to qualified immunity on Plaintiffs RLUIPA claim. Plaintiff argues Defendants are not entitled to qualified immunity because they violated his clearly established rights under RLUIPA.
1. The Application of Qualified Immunity to RLUIPA
Whether RLUIPA allows suits against officials in their individual capacities is unsettled. And, because qualified immunity is relevant only to individual capacity claims, whether qualified immunity has any application to RLUIPA claims also is uncertain. RLUIPA states, in relevant part, that "[a] person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). This provision creates a private cause of action, but limits the source of relief to a "government." Id. RLUIPA broadly defines "government" to include governmental entities created under the authority of a state, an official of a government entity, or "any other person acting under color of state law." Id. § 2000cc-5.
Despite a plaintiffs apparent ability to sue any person acting under color of state law, the United States Court of Appeals for the Eleventh Circuit recently held RLUIPA does not permit claims against officials in their individual capacities because construing RLUIPA to allow such suits would raise serious constitutional concerns. Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir.2007). The Eleventh Circuit noted that Congress passed RLUIPA pursuant to its under Article I of the Constitution. Id. at 1272. The Court reasoned that federal statutes enacted under the spending power, which condition receipt of federal funds on a state's adherence to certain conditions, cannot subject a non-recipient of federal funds, such as a state official acting in his individual capacity, to private liability for damages. Id. at 1273. Thus, the Court reasoned that, as spending power legislation, RLUIPA cannot reach state officials in their individual capacities. Id. at 1273, 1275. Because only suits against individuals in their personal capacities implicate qualified immunity, the Eleventh Circuit held that qualified immunity would have no application to RLUIPA claims. Id. at 1275 n. 11.
The Eleventh Circuit is the only Circuit Court of Appeals that squarely has addressed this issue. Other Circuit Courts of Appeals have assumed without discussion that RLUIPA permits suits against state officials in their personal capacities. See Shakier, 514 F.3d 878 (9th Cir.2008) (reversing grant of summary judgment in *1235 case involving several defendants sued in their individual capacities); William v. Bitner, 455 F.3d 186, 194 (3d Cir.2006) (assuming personal capacity suits are proper under RLUIPA and qualified munity would apply to RLUIPA, but did not apply because the plaintiff sought, only injunctive relief); Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir.2006) (assuming without discussion qualified immunity applies to RLUIPA claims); Lovelace v. Lee, 472 F.3d 174, 196-97 (4th Cir.2006) (applied qualified immunity analysis to RLUIPA claim).
Plaintiff has sued Defendants in their official and individual capacities. No law in this jurisdiction directly addresses Plaintiff's ability to sue Defendants in their individual capacities under RLUIPA.[1] Under the Eleventh Circuit's analysis, Plaintiff would have no individual capacity claim. The Court need not decide this novel issue here, however, because even if Plaintiff could bring an individual capacity claim under RLUIPA, Defendants would be entitled to qualified immunity.
2. Defendants' Entitlement to Qualified Immunity
Officials of the Executive Branch exercising discretionary functions generally enjoy qualified immunity for actions within the scope of their official duties. Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity applies unless a defendant's conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 752 (2002) (internal quotation omitted). To determine whether a government official is entitled to qualified, immunity, a court first must address whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant violated a statutory or constitutional right. See Resnick v. Adams, 348 F.3d 763, 766-67 (9th Cir. 2003). Plaintiff has alleged Defendants violated his statutory rights under RLUIPA, as this Court already has addressed.
If "a violation could be made out" the court next must decide whether the right was clearly established. Id. "The plaintiff bears the burden of showing that the right he alleges to have been violated was clearly established." Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir.1996). A clearly established right is one Whose "contours . . . must be, sufficiently clear that a reasonable official would understand what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The right is clearly established if "it would be clear to a reasonable offer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The exact action need not have been held unlawful, but "in light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. 3034 (internal citations omitted). This evaluation must be "in light of the specific, context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. An objective standard applies. Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727. Additionally, the right must be *1236 clearly established at the time of the allegedly impermissible conduct. Camarillo v. McCarthy, 998 F.2d 638 (9th Cir.1993).
That an inmate has a constitutional right to "food sufficient to sustain them in good health that satisfies the dietary laws of their religion" is clearly established in the Ninth Circuit. See Ashelman v. Wawrzaszek, 111 F.3d 674, 677 (9th Cir.1997); Ward v. Walsh, 1 F.3d 873, 876 (9th Cir.1992); McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.1987). The issue here is whether Plaintiff had a clearly established right under RLUIPA to a kosher diet at HDSP, such that requiring him to transfer to a higher security prison to obtain the diet violated his clearly established right. Defendants offered Plaintiff a kosher diet at ESP in April 2004. Plaintiff has identified no law supporting the existence of a clearly established right to a dietary accommodation at a particular institution. Plaintiff also has failed to identify any controlling law as of April 2004 indicating Defendants' attempt to satisfy Plaintiff's request for a kosher diet by transferring him was unlawful under RLUIPA.
In light of the lack of legal precedent on this issue, it would not have been clear to a reasonable official in April 2004 that offering Plaintiff a transfer to a higher security prison to accommodate his religious diet would violate Plaintiffs rights under RLUIPA. Defendants therefore are entitled to qualified immunity from Plaintiffs RLUIPA claim. Even if Plaintiff properly can assert a Claim against Defendants in their individual capacities under RLUIPA, Defendants are entitled to qualified immunity. This Court therefore will grant summary judgment in Defendants' favor.
IV. CONCLUSION
IT IS THEREFORE ORDERED that State of Nevada Defendants' Motion for Summary Judgment (Doc. # 181) is hereby GRANTED.
IT IS FURTHER ORDERED that Washington DOC Defendants' Motion for Summary Judgment on Plaintiffs RLUIPA Claim and Memorandum in Support Thereof (Doc. # 186) is hereby GRANTED.
NOTES
[1] Neither party has addressed specifically Plaintiff's claims against Defendants in their official capacities. RLUIPA permits suits against state officials in their official capacities for injunctive relief. Mayweathers v. Newland, 314 F.3d 1062, 1069-70 (9th Cir.2002). Because Plaintiff already has been transferred out of NDOC's custody, any claim for injunctive relief would be moot. See Rhodes v. Robinson, 408 F.3d 559, 566 n. 8 (9th Cir. 2005). Absent any claim for injunctive relief, Plaintiff has no surviving claim against a state official in his official capacity, so Plaintiff has no surviving claims against Defendants in their official capacities.
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FILED
NOT FOR PUBLICATION APR 24 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50133
Plaintiff-Appellee, D.C. No. 3:05-cr-01972-H
v.
MEMORANDUM*
HERMAN WILLIAM RAEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Herman William Rael appeals pro se from the district court’s order denying
his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Rael contends that he is entitled to a sentence reduction under Amendment
782 to the Sentencing Guidelines. We review de novo whether a district court has
authority to modify a sentence under section 3582(c)(2). See United States v.
Wesson, 583 F.3d 728, 730 (9th Cir. 2009). Rael was sentenced as a career
offender under U.S.S.G. § 4B1.1. Thus, his sentence was not “based on” a
Guideline that was lowered by Amendment 782. See 18 U.S.C. § 3582(c)(2);
Wesson, 583 F.3d at 731. Further, insofar as Rael contends that the district court
erred when it determined that he was a career offender, this claim is not cognizable
in a section 3582(c)(2) proceeding. See Dillon v. United States, 560 U.S. 817, 831
(2010) (alleged sentencing errors are “outside the scope of the proceeding
authorized by § 3582(c)(2)”).
AFFIRMED.
2 16-50133
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FILED
NOT FOR PUBLICATION MAR 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TERESA DE JESUS LOSADA, No. 04-76512
Petitioner, Agency No. A023-452-545
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Teresa De Jesus Losada, a native and citizen of Colombia, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order denying her
motion to remand. We have jurisdiction under 8 U.S.C. § 1252. We review for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
abuse of discretion the denial of a motion to remand, Romero-Ruiz v. Mukasey, 538
F.3d 1057, 1062 (9th Cir. 2008), and we deny the petition for review.
The BIA did not abuse its discretion by denying Losada’s motion to remand
on the ground that she failed to submit evidence showing prima facie eligibility for
cancellation of removal. See id. at 1063-64 (motion to remand must be
accompanied by proof of prima facie eligibility for the relief sought).
PETITION FOR REVIEW DENIED.
2 04-76512
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670 F.2d 791
Roy Travis DOUGLAS, Executor of the Estate of Ada Clayborn,deceased, Appellant,v.UNITED STATES TOBACCO COMPANY, Appellee.
No. 81-1596.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 11, 1981.Decided Feb. 10, 1982.
Gregory G. Smith (argued), Pryor, Robinson, Taylor & Barry, Fort Smith, Ark., for appellant.
Alston Jennings, Little Rock, Ark., and Edwin J. Jacob, New York City, for appellee.
Before HEANEY and McMILLIAN, Circuit Judges, and REGAN,* Senior District Judge.
McMILLIAN, Circuit Judge.
1
Roy Travis Douglas appeals from a summary judgment entered in the District Court1 for the Western District of Arkansas based on a general release executed by appellant's decedent, Ada Clayborn.
2
For reversal appellant argues that the district court erred (1) in finding that the release complies with the provisions of Ark.Stat.Ann. § 34-1001 et seq. (Uniform Contribution Among Tortfeasors Act) so as to discharge appellee United States Tobacco Co., and (2) in not allowing appellant to introduce parol evidence to prove that the parties to the release did not intend to discharge appellee. In response appellee argues that the general release barred any action against it and also that the terms of the release are unambiguous. For the reasons discussed below, we affirm the district court.
3
The original claim by appellant's decedent, Clayborn, was a malpractice action against the estate of Dr. Manley alleging that he failed to properly diagnose and treat Clayborn's oral cancer. In February 1973, Clayborn settled and dismissed the suit for the consideration of $5,000 and executed the following general release discharging:
4
Mary B. Manley, as Administratrix of the Estate of R. H. Manley, Deceased, and his, her, their, or its agents, servants, successors, heirs, executors, administrators, and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any growing out of any and all known and unknown, forseen and unforseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the day of , 1971, at or near Clarksville, Johnson County, Arkansas.
5
Clayborn subsequently initiated a negligence action against appellee based on its failure to warn snuff users of the potential carcinogenic effect of snuff.2 Clayborn died in 1977 and her executor, appellant, was substituted as plaintiff. On May 13, 1981, appellee first learned of the release and filed an amended answer asserting the affirmative defense of accord and satisfaction and also filed a motion for a summary judgment.
6
The parties agreed that the applicable law was Arkansas' Uniform Contribution Among Tortfeasors Act (Uniform Act), Ark.Stat.Ann. § 34-1001 et seq., which provides in relevant part:
34-1002
7
(1) The right of contribution exists among joint tortfeasors.
8
(2) A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.
9
(3) A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.
34-1004
10
A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release.... (emphasis supplied)
11
The district court granted appellee's motion finding that the release was unambiguous and that the language of the release discharging "all other persons, firms, corporations ..." satisfied the language of § 34-1006 of the Uniform Act providing that other tortfeasors are discharged "if the release so provides." Douglas v. United States Tobacco Co., No. FS-76-72-C (W.D. Ark. May 21, 1981). In support of its holding the district court reasoned that under § 34-1002(2) of the Uniform Act appellee could not have proceeded against the estate of Dr. Manley until it had discharged the common liability or paid more than its pro rata share. Therefore, the release would not limit Dr. Manley's exposure unless it also limited the total exposure of all joint tortfeasors. The court further reasoned that under § 34-1002(3) of the Uniform Act a joint tortfeasor is not entitled to recover from a second joint tortfeasor whose liability has not been extinguished by settlement. Therefore, Dr. Manley or his estate could not have contribution from appellee unless appellee was also a beneficiary of the release and the entire claim of Clayborn was settled.
12
In further support of its holding the district court cited Morison v. General Motors Corp., 428 F.2d 952 (5th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 142, 27 L.Ed.2d 141 (1970), in which the Fifth Circuit held that a general release discharging "all other persons" was sufficient under § 34-1004 of Arkansas' Uniform Act to release joint tortfeasors who were not parties to the release.
13
On appeal appellant first argues that the district court erred, as a matter of law, because the Arkansas Supreme Court has held that a joint tortfeasor is discharged only if specifically named in a release, citing Smith v. Tipps Engineering & Supply Co., 231 Ark. 952, 333 S.W.2d 483 (Ark.1960) (Smith ), and Allbright Brothers Contractors v. Hull-Dobbs Co., 209 F.2d 103 (6th Cir. 1953) (Allbright ), which was relied upon in Smith. We disagree with appellant's interpretation of those cases and conclude that they are distinguishable from the present case.
14
In Smith the sole issue before the court was whether a judgment in a friendly suit barred a subsequent action against a joint tortfeasor. The case is based upon § 34-1003 of the Uniform Act, which provides for the effect of a judgment against one tortfeasor and is not at issue here. In addition, the release in that case provided: "(W)e hereby covenant that no release has been or will be given to or settlement or compromise made with any third party who may be liable for any damages to us...." 333 S.W.2d at 484. Therefore, in contrast to the release before us, the release in Smith explicitly provided that no other persons were to be or had been discharged.
15
Allbright is similarly distinguishable on the basis that the release in that case did not release anyone but the named tortfeasor. 209 F.2d at 103. In addition, the issue for decision in Allbright, like Smith, was not the language of a release. The case involved judgments entered upon a settlement agreement in which only the paying joint tortfeasor was named. The judgments that were paid did not purport to discharge the common liability of the other joint tortfeasors nor did they purport to discharge the other joint tortfeasors from liability to the injured parties.3
16
We conclude that neither Smith nor Allbright support appellant's argument. In addition, our research indicates that there are no Arkansas or Eighth Circuit cases construing the words "unless the release so provides" which deal with a release of "all other persons, firms, or corporations, etc."
17
The majority of cases from other jurisdictions have held that language releasing any and all persons in addition to the named parties satisfies the requirement of the Uniform Act "unless the release so provides." Morison v. General Motors Corp., supra, 428 F.2d 952; Doganieri v. United States, 520 F.Supp. 1093 (N.D.W.Va.1981); Stefan v. Chrysler Corp., 472 F.Supp. 262 (D.Md.1979), aff'd, 622 F.2d 587 (4th Cir. 1980); Fuls v. Shastina Properties, Inc., 448 F.Supp. 983 (N.D.Cal.1978); Bonar v. Hopkins, 311 F.Supp. 130 (W.D.Pa.1969), aff'd, 423 F.2d 1361 (3d Cir. 1970); Dorenzo v. General Motors Corp., 334 F.Supp. 1155 (E.D.Pa.1971); Peters v. Butler, 253 Md. 7, 251 A.2d 600 (1969); Johnson v. City of La Cruces, 86 N.M. 196, 521 P.2d 1037 (1974); Hasselrode v. Gnagney, 404 Pa. 549, 172 A.2d 764 (1961). We agree with this construction as announced in these cases.4
18
The Fifth Circuit in Morison v. General Motors Corp., supra, 428 F.2d 952, explains the policy reasons for allowing an unnamed defendant to have the benefit of a general release, especially in light of the Uniform Act. The defendant who originally procures the release gains nothing if the plaintiff can sue other joint or concurrent tortfeasors. In such a case, the original defendant is left open to claims for contribution and/or indemnity and may wind up having to litigate the case anyway.
19
We believe that Morison is a carefully considered opinion based upon sound reasoning. Also, we note that it was decided in 1970, and the legislature of the State of Arkansas has had ample opportunity to act if it thought that the Morison decision was inconsistent with Arkansas law. The legislature has not acted. Nor has any litigant sought to have an Arkansas appellate court overturn the Morison ruling. In addition, we note that Morison is consistent with the majority position. Therefore, in the absence of any indication that Arkansas would not follow the majority position, we affirm the district court.
20
Appellant next argues that the insertion of the date "1971" in the release, which was executed in 1973, demonstrates the parties' intent to release only Dr. Manley's estate or, alternatively, creates an ambiguity so that parol evidence should have been admitted.5 Appellant also argues that the Arkansas Supreme Court would, if presented with the issue, hold that a party to a release could introduce parol evidence in a suit against a stranger. In response appellee argues that, under Arkansas law, when a contract is unambiguous, evidence of intent of the parties is inadmissible to vary the agreement. Appellee further argues that the Arkansas rule allowing a stranger to the contract to introduce parol evidence is inapplicable here because appellant's predecessor in interest was a party to the release. We agree with appellee.
21
The law in Arkansas is that "whenever parties to a contract express their intention in clear and unambiguous language in a written instrument, it is the court's duty to construe the writing in accordance with the plain meaning of the language employed...." Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89, 91 (1978), citing C & A Construction Co. v. Benning Construction Co., 256 Ark. 621, 509 S.W.2d 302 (1974), and Miller v. Dyer, 243 Ark. 981, 423 S.W.2d 275 (1968). When the contract is unambiguous, evidence of intent of the parties is inadmissible to vary the agreement. C & A Construction Co. v. Benning Construction Co., supra, 509 S.W.2d at 304. Also, the language of a contract should be construed as a whole to make apparently conflicting provisions reasonable and consistent if it is possible to do so. Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532, 538 (Ark.1974).
22
Here, the release explicitly discharges not only the estate of Dr. Manley, but extends to "all other persons, firms, corporations, associations or partnerships" and discharges them from "any and all claims, actions, causes of action ... which the undersigned now has/have or which may hereafter accrue...." It must be assumed that the parties intended what is expressed in their writing. The language could be no more forceful.
23
Appellant asserts that the insertion of the date "1971" is inconsistent with the release of all persons, thus rendering the release ambiguous. However, this argument ignores the fact that in an earlier adjudication it was determined that there was a "single wrong-one injury-the cancerous condition which arose from an 'interlocked series of transactions,' ..."6 Because there was only a "single wrong" and "only one injury," the release of Dr. Manley's estate and "all other persons" from "any and all claims" could only relate to the consequences of the sole injury. Therefore, construing the language of the release as a whole, we conclude that the insertion of the date "1971" does not render the release ambiguous.
24
Finally, appellant cannot benefit from the Arkansas law that a stranger to a contract can introduce parol evidence to vary a written contract. Appellant is not the stranger to this release because his predecessor in interest was a party to the release. Further, appellant has not cited us to any cases indicating that Arkansas might be leaning towards an extension of this exception to the parol evidence rule.
25
The judgment of the district court is affirmed.
*
The Honorable John K. Regan, United States Senior District Judge for the Eastern District of Missouri, sitting by designation
1
The Honorable Bruce M. Van Sickle, United States District Judge for the District of North Dakota, sitting by special designation for the Western District of Arkansas
2
Initially Clayborn instituted a malpractice action against Dr. W. H. Lane, Jr., based on his failure to properly diagnose and treat her oral cancer and also for his prescribing the drug "Feminone." Dr. Lane then filed a third-party complaint against Upjohn Co., manufacturer of Feminone. Clayborn then amended her complaint to assert a claim against Upjohn and also joined appellee
On February 22, 1975, Clayborn and Lane's complaints against Upjohn were dismissed upon motion and stipulation of the parties.
On April 8, 1976, the action against Dr. Lane was dismissed, pursuant to a settlement Clayborn made with Dr. Lane for $2,500. The form of the release executed between Clayborn and Lane did not discharge anyone else.
Appellee, the sole remaining defendant, then removed the case to the federal district court.
3
See also Lindsey, Documentation of Settlements, 27 Ark.L.Rev. 27, 33 n.30 (1973), indicating that Smith and Allbright can also be distinguished from Morison on the basis that Smith and Allbright both involved minors and that the court in Smith opted for the view that all possible precautions must be taken to free the settlement from attack where such is the situation
4
Appellant cites several cases from Florida which have reached the opposite result. However, Florida law differs from Arkansas law in an important respect. Under Arkansas law a release by the injured person of one joint tortfeasor does not relieve the released joint tortfeasor from liability to make contribution to another joint tortfeasor unless any liability to the plaintiff of the other joint tortfeasor has been discharged or unless the release provides for a pro rata release of all other tortfeasors. In contrast, under Florida law a release of one tortfeasor does relieve him from liability to make contribution to any other joint tortfeasor. See Fla.Stat. § 768.31(5)
The other cases cited by appellant are not from jurisdictions which have adopted the Uniform Contribution Among Tortfeasors Act.
5
Appellant also argues that there was a mistake of material fact by the parties to the release as to the effect of a release. However, the only mistake alleged is that appellant's decedent did not intend to release appellee. This is not a mistake of fact but rather a misconception of the legal effect of the language in the release. Under Arkansas law "(m)ere mistake of a party as to the legal effect of an instrument does not vitiate the instrument or afford grounds for reformation." Clampitt v. Ponder, 91 F.Supp. 535, 543 (W.D.Ark.1950) (citation omitted)
6
See note 4 supra. Appellee attempted to remove the action to federal district court on December 26, 1973, asserting diversity jurisdiction and contending that the cause of action against it was a separate, independent claim. Clayborn filed a motion to remand the action to state court contending that the action was not separable as to appellee and that the defendants were joint tortfeasors. The district court remanded the case to state court based on the finding that Clayborn had "alleged a single wrong ...." Clayborn v. United States Tobacco Co., Civil No. FS-73-C-103 (W.D.Ark. filed Mar. 20, 1974) (Hon. Paul X Williams)
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187 S.E.2d 355 (1972)
14 N.C. App. 163
Doris Burton BECK
v.
Henry Clay BECK.
No. 7222DC22.
Court of Appeals of North Carolina.
March 29, 1972.
George W. Saintsing, Thomasville, for plaintiff appellee.
William H. Steed, Thomasville, for defendant appellant.
GRAHAM, Judge.
Defendant contends that in order to be entitled to a divorce a plaintiff must show that a marital separation for the statutory period was by mutual agreement or under a decree of court. This was true prior to 1937. In that year the divorce statute was amended so as to remove this requirement. Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902. During the past 35 years a husband and wife have been deemed to live separate and apart within the meaning of the divorce statute when: (1) they live separate and apart physically for an interrupted period *356 of time at least as long as the time required by the divorce statute; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation. See Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525; Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 and cases cited.
Affirmed.
CAMPBELL and BRITT, JJ., concur.
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125 F.3d 1282
80 A.F.T.R.2d 97-6540, 97-2 USTC P 50,671,97 Cal. Daily Op. Serv. 7412,97 Daily Journal D.A.R. 11,973
UNITED STATES of America, Plaintiff-Appellee,v.Harold H. UCHIMURA, Defendant-Appellant.
No. 94-10579.
United States Court of Appeals,Ninth Circuit.
Argued Jan. 9, 1996.Submission Deferred April 4, 1996.Submitted Sept. 11, 1996.Filed Feb. 25, 1997.Opinion Withdrawn Sept. 17, 1997.Decided Sept. 17, 1997.
1
Arthur E. Ross, Elizabeth A. Fisher, Honolulu, HI, for defendant-appellant.
2
Craig H. Nakamura, Assistant United States Attorney, Honolulu, HI, for plaintiff-appellee.
3
Appeal from the United States District Court for the District of Hawaii; Alan Cooke Kay, District Judge, Presiding. D.C. No. CR 92-01579 ACK.
4
Before: SCHROEDER and TROTT, Circuit Judges, and REED,* District Judge.
ORDER
5
Appellee's petition for rehearing is granted. The opinion filed February 25, 1997, and published at 107 F.3d 1321, is withdrawn and the attached opinion is filed in its place.
OPINION
REED, District Judge:
6
Appellant Harold H. Uchimura ("Uchimura") appeals his conviction for filing a materially false tax return in violation of 26 U.S.C. § 7206(1). The question presented is whether the trial court committed reversible error by ruling that "materiality" in the context of 26 U.S.C. § 7206(1) is a question of law for the court. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.1
FACTS AND PROCEEDINGS BELOW
7
Until his retirement in 1991, Appellant was a police officer with the Honolulu Police Department. From 1983 to 1991, he worked in the Narcotics Vice Division, and in 1988 he began selling cocaine and crystal methamphetamine with two drug dealers he had arrested. On his 1990 tax return, Uchimura reported a 1990 joint taxable income of $32,416. Based on his expenditures, though, the IRS calculated Uchimura's true 1990 joint taxable income as $136,163.
8
Uchimura was charged with, among other things, filing a materially false tax return (count 8) in violation of 26 U.S.C. § 7206(1). On June 9, 1994, the jury found him guilty, and on November 28, 1994, he was sentenced to 36 months for count 8 and longer concurrent terms for the other counts. Uchimura timely appealed.2
DISCUSSION
I. Materiality
9
Section 7206(1) makes it a crime for a person to file a tax return "which he does not believe to be true and correct as to every material matter." Uchimura argues that the district court erred by refusing to submit materiality to the jury. As of June 1994, when the jury was charged, whether a statement on a tax return was a "material matter" was a question of law for the court. U.S. v. Flake, 746 F.2d 535, 537 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1220, 84 L.Ed.2d 360 (1985). After trial, however, the Ninth Circuit decided U.S. v. Gaudin, 28 F.3d 943 (9th Cir.1994) (en banc), which was affirmed by the Supreme Court on June 19, 1995. 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Gaudin holds that materiality in the context of 18 U.S.C. § 1001 is a mixed question of law and fact for the jury to decide. 28 F.3d at 951, 515 U.S. at 52224, 115 S.Ct. at 2320. The application of Gaudin in the context of 26 U.S.C. § 7206(1) is a question of first impression in this Circuit.
A. Gaudin
10
In Gaudin, the defendant had been convicted of making false statements on Department of Housing and Urban Development loan documents, in violation of 18 U.S.C. § 1001. The trial court, as in the instant case, instructed the jury that materiality was a question of law for the court. The Supreme Court, in rejecting this holding, employed the following syllogism:
11
The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; [the defendant] therefore had a right to have the jury decide materiality.
12
515 U.S. at 511, 115 S.Ct. at 2314.
13
Materiality is also one of the essential elements of 26 U.S.C. § 7206(1). U.S. v. Marabelles, 724 F.2d 1374, 1380 (9th Cir.1984). Uchimura therefore also had a right to have a jury decide materiality.
14
Indeed, the Supreme Court's reasoning applies with equal potency to every crime of which materiality is an element. Accordingly, in every post-Gaudin perjury-type case where we have reached the issue this Court has ruled that materiality, if an element, must be submitted to the jury. U.S. v. Keys, 95 F.3d 874, 880 (9th Cir.1996) (en banc), vacated on other grounds, --- U.S. ----, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997) (18 U.S.C. § 1623 (Perjury)); Fecht v. Price Company, 70 F.3d 1078, 1080 (9th Cir.1995), cert. denied, 517 U.S. 1136, 116 S.Ct. 1422, 134 L.Ed.2d 547 (1996) (15 U.S.C. § 78j(b) (Civil Securities Fraud)). But see U.S. v. Nash, 115 F.3d 1431, 1436 (9th Cir.1997) (holding that materiality is an element of 18 U.S.C. § 1344 (Bank Fraud) but declining to decide whether it is a jury matter); Hervey v. Estes, 65 F.3d 784, 789 n. 4 (9th Cir.1995) (Gaudin not applicable to civil cases). We have also limited Gaudin to its syllogism; if materiality is not an element of the crime charged, then the jury need not consider it. Nash, 115 F.3d at 1435 (18 U.S.C. § 1014 (False Statement to FDIC)); U.S. v. Taylor, 66 F.3d 254, 255 (9th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 1105, 137 L.Ed.2d 307 (1997) (18 U.S.C. § 287 (False Claims Against the U.S.)).
15
B. Materiality--A Mixed Question of Law and Fact
16
The government nonetheless argues that Gaudin is distinguishable because the respective definitions of materiality in 18 U.S.C. § 1001 and 26 U.S.C. § 7206(1) are different; "material" in 18 U.S.C. § 1001 means having "a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed." Gaudin, 28 F.3d at 948 (quotation omitted). Such a definition "almost always necessitates a factual inquiry." Appellee Br. at 30. By contrast, argues the government, the test for materiality in the present case was so clearly met that materiality was established as a matter of law.
17
This argument is, at first glance, beside the point. The Supreme Court's syllogism renders the fact/law distinction irrelevant-the only pertinent inquiry is whether materiality is an essential element of the crime. Gaudin, 515 U.S. at 510-12, 115 S.Ct. at 2314. Nevertheless, two other Circuits have reached this issue and have split on its resolution.3 U.S. v. DiRico, 78 F.3d 732, 736 (1st Cir.1996) (using the Gaudin definition of "material" in Section 7206(1) cases, materiality is a mixed question of law and fact for the jury to decide); U.S. v. Randazzo, 80 F.3d 623, 631 (1st Cir.1996) (same); U.S. v. Klausner, 80 F.3d 55, 60-61 (2d Cir.1996) ("material" means "essential to the accurate computation of ... taxes;" under such a definition, "no ... factual questions needed to be resolved by the jury in the present case").4 In addition, this Court addressed the same argument when we applied Gaudin to the perjury statute, 18 U.S.C. § 1623. Keys, 95 F.3d at 878 (the Supreme Court's syllogism applies "because materiality contains a 'factual component' " (quoting Gaudin, 28 F.3d at 949)). We must therefore determine whether materiality has a factual component in this case, as well.
18
This Circuit has never explicitly defined "material" in § 7206(1), although our Model Jury Instructions for § 7206(2) define it as "something necessary to a determination of whether income tax was owed." Ninth Circuit Model Jury Instructions: Criminal 9.06E (1995). The definitions applied by other Circuits, and by at least one of our Districts, employ similar language. Klausner, 80 F.3d at 60 ("essential to the accurate computation of ... taxes"); Aramony, 88 F.3d at 1384 ("in order that the taxpayer estimate and compute his tax correctly"); U.S. v. Warden, 545 F.2d 32, 37 (7th Cir.1976) (same); U.S. v. Rayor, 204 F.Supp. 486, 491 (S.D.Cal.1962) (same). We now hold that information is material if it is necessary to a determination of whether income tax is owed.
19
Despite our adoption of a materiality definition similar to the one in Klausner, we cannot agree with the Second Circuit. The logic that must be employed (whether by a judge or by a jury) to deduce that a false statement is material renders materiality a "mixed question of law and fact." Under 18 U.S.C. § 1001, deciding whether a statement is material requires the determination of "at least two subsidiary questions of purely historical fact: (a) 'what statement was made?'; and (b) 'what decision was the agency trying to make?'." Gaudin, 515 U.S. at 512, 115 S.Ct. at 2314. Under 26 U.S.C. § 7206(1), deciding whether a statement is material surely requires a similar determination of (a) "what statement was made?"; and (b) "what information was necessary in this case to a determination of whether income tax was owed?".
20
The government correctly notes that the answer to (b) is spelled out in detail in the Internal Revenue Code and Regulations. Appellee Br. at 31. The answer to (b) in Section 7206 cases is therefore not "purely" a matter of historical fact. But each case is different, and the answer to (b) in each case is necessarily different. For example, a taxpayer is required to report her Social Security number on her tax return. But willfully falsifying one's Social Security number, while it may hinder the IRS' record keeping, normally does not affect a determination of whether income tax is owed. As a more cogent example, if one's legitimate deductions exceed one's true gross income, taxable income will be zero. Failure to report all income will thus have no effect on taxes owed, at least for that year, and unreported income therefore may not be necessary to a determination of whether income tax is owed.5
21
Under most circumstances, this Court's pre-Gaudin statement that "any failure to report income is material" is one with which most juries would agree, since any failure to report income usually affects a determination of whether tax is owed. U.S. v. Holland, 880 F.2d 1091, 1096 (9th Cir.1989). But just because a jury usually would agree with such a statement does not mean that a jury must agree with it, as a matter of law. Even if any failure to report income is material in most circumstances, it is not necessarily material in all circumstances, since the materiality of an underreporting of income necessarily depends on the facts of each case. The materiality of other false statements on a tax return, such as deductions, is surely just as fact-dependent. For this reason, we cannot agree with the Klausner court's observation that a false statement is "material" merely because it renders the return "inaccurate." Klausner, 80 F.3d at 61.6
22
C. Materiality Should Have Been Submitted to the Jury
23
In short, we conclude that Gaudin overturns our holding in Flake, and that materiality under 26 U.S.C. § 7206(1) is a mixed question of law and fact that must be submitted to the jury. Our holding today is based on a fact-sensitive definition of materiality, but even so, the Supreme Court's syllogism is inescapable. Indeed, the Supreme Court has held, in contexts other than 18 U.S.C. § 1001, that materiality is not a purely "legal" question. Gaudin, 515 U.S. at 510-14, 115 S.Ct. at 2314-15 (citing TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 2132-33, 48 L.Ed.2d 757 (1976) (securities fraud), and McLanahan v. Universal Ins. Co., 26 U.S. (1 Pet.) 170, 188-89, 191, 7 L.Ed. 98 (1828) (false statements in insurance applications)). Because Uchimura is entitled to the benefit of the law prevailing at the time of his appeal, including new rules such as this one, the district court's instruction removing the element of materiality from the jury's consideration was erroneous. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987); Keys, 95 F.3d at 877.
II. Plain Error
24
Uchimura faced at trial a "solid wall of circuit authority" holding that materiality was a question of law. Flake, 746 F.2d at 537; Keys, 95 F.3d at 878. As a result, he did not object to Instruction 35, which removed the element of materiality from the jury's consideration. In Keys we held that review for plain error under such circumstances "would be unconscionable," and that we would instead review for harmless error. Keys, 95 F.3d at 879; Fed.R.Crim.P. 52(a). We also held that where the trial court so removes proof of an element from the jury's determination, thus precluding the jury from considering whether the element existed at all, the error is "structural" and cannot be "harmless," since there can be no inquiry into what evidence the jury considered to establish that element. Keys, 95 F.3d at 880.
25
The Supreme Court vacated and remanded Keys in light of Johnson v. U.S., --- U.S. ----, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). U.S. v. Keys, --- U.S. ----, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997). The facts of Johnson closely parallel those of the present case: the defendant was tried for perjury (18 U.S.C. § 1623); materiality under 18 U.S.C. § 1623 at the time of trial was clearly a question of law for the court; the trial court therefore instructed the jury that the defendant's statements were material, to which instruction the defendant did not object; after trial, but before decision of the appeal, materiality became a question of fact for the jury; and the Eleventh Circuit reviewed the erroneous instruction for plain error. Johnson, --- U.S. at ---- - ----, 117 S.Ct. at 1547-48. The Eleventh Circuit found no plain error, and the Supreme Court affirmed, rejecting the "structural error" principle in the context of direct review of federal criminal cases. Id. at ----, 117 S.Ct. at 1548.
26
We ordered supplemental briefing on the issues raised by Johnson. The parties agree that plain error is the proper standard of review.7 Under Federal Rule of Criminal Procedure 52(b), plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Before an appellate court can correct such an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. Johnson, --- U.S. at ----, 117 S.Ct. at 1549 (citing U.S. v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993)). If these three conditions are met, an appellate court may then exercise its discretion to notice a "forfeited" error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Johnson, --- U.S. at ----, 117 S.Ct. at 1549. Uchimura failed to object because he was "unaware of a right that [was] being violated," and the present error therefore constitutes a "forfeiture." U.S. v. Perez, 116 F.3d 840, 846 (1997). Had he instead intentionally relinquished or abandoned a known right, his failure to object would constitute a "waiver" and we would lack discretion to notice it. Id. at 845.
27
Clearly, the first element of this test is satisfied, since we have determined above that there was error. We need not determine whether that error was plain or affected substantial rights, however, since Uchimura's arguments on the fourth element do not persuade us. Previous cases teach that where the evidence of materiality is "overwhelming," or where the evidence shows that the defendant "grossly understated" his income, failure to submit materiality to the jury does not call into question the fairness, integrity, or reputation of judicial proceedings. U.S. v. Knapp, 120 F.3d 928, 932 (9th Cir.1997); Nash, 115 F.3d at 1437.
28
In this case the circumstances are similar. Because the government employed the "indirect expenditures" method of proving an understatement of taxable income, the jury necessarily found that Uchimura's true income was "substantially in excess" of his reported income. Instruction 29 (ER 323). That is, the government persuaded the jury beyond a reasonable doubt that Uchimura substantially understated his taxable income; surely this omitted income was necessary to a determination of whether income tax was owed. Under such circumstances, "it would be the reversal of a conviction such as this which would ... seriously [affect] the fairness, integrity or public reputation of judicial proceedings." Perez, 116 F.3d at 848 (internal quotation omitted and emphasis added).
29
AFFIRMED.
*
Honorable Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, sitting by designation
1
In a separate, unpublished memorandum we affirm Uchimura's conviction and sentence for counts of conspiracy, distribution of drugs, and unlawful structuring of currency transactions
2
We deferred submission of Uchimura's appeal pending this Court's en banc rehearing of U.S. v. Keys, 67 F.3d 801 (9th Cir.1995). See infra Part II. We then postponed consideration of the parties' petitions for rehearing pending the Supreme Court's decision in Johnson v. U.S., --- U.S. ----, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)
3
Six Circuits altogether have heard post-Gaudin Section 7206(1) cases. The Fourth Circuit did not reach the issue of whether materiality should go to the jury. U.S. v. Aramony, 88 F.3d 1369, 1383 (4th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997) (assuming that materiality is a matter for the jury, reversal inappropriate because error was harmless). The Sixth Circuit hinted that materiality should go to the jury, but did not unequivocally reach the issue. U.S. v. Tandon, 111 F.3d 482, 489 (6th Cir.1997) (holding that defendant had invited any error). The Fifth and Seventh Circuits held that materiality is a matter for the jury, but did not address the question of whether Section 7206 materiality is fundamentally different from 18 U.S.C. § 1001 materiality. U.S. v. McGuire, 99 F.3d 671, 672 (5th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 2407, 138 L.Ed.2d 174 (1997) (materiality should have been submitted to the jury, but no harm since defendant acquitted of Section 7206 charge); U.S. v. DiDomenico, 78 F.3d 294, 303 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996) (materiality should have been submitted to the jury, but conviction affirmed since error was not plain)
4
Klausner is actually about Section 7206(2), but the Second Circuit uses the same definition of materiality for Section 7206(1). Klausner, 80 F.3d at 60 n. 4
5
We do not mean by this example that to satisfy the materiality element of § 7206 the government must show that additional tax is owed. U.S. v. Marashi, 913 F.2d 724, 736 (9th Cir.1990) (tax deficiency is not required by § 7206); Marabelles, 724 F.2d at 1380 (same). That no additional tax is owed of course has a bearing on materiality, but the question is ultimately one for the jury to decide
6
The Second Circuit also noted that "the determination of materiality in the present case involved purely a question of law and was suitable for resolution by the district court ... [because] no ... factual questions needed to be resolved by the jury." Klausner, 80 F.3d at 60-61 (emphasis added). This reasoning bears upon plain error analysis, but it is inappropriate in determining whether materiality should be submitted to the jury. Case-by-case determinations of whether materiality is a question of law or fact are clearly foreclosed by Gaudin
7
We need not consider Appellant's additional assertion that the instructional error in this case worked a "constructive amendment" of the Indictment. Appellant's Supp. Br. at 14-23. This argument is not addressed to the issues raised in Johnson, it is therefore not in compliance with our order regarding supplemental briefing, and in any event the point could have been raised initially but was not
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1301
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RENE L. LUCAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 03 CR 62—Rudy Lozano, Judge.
____________
ARGUED SEPTEMBER 23, 2005—DECIDED NOVEMBER 29, 2005
____________
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. After her plea of guilty to obstruc-
tion of correspondence was rejected by the district court,
Rene Lucas was convicted by a jury of conspiracy to commit
identity theft and of obstruction of correspondence. The
court then sentenced her to concurrent terms of two years’
probation on each charge, six months’ home detention, a
special assessment of $200 and restitution in the amount of
$3,344.32. Ms. Lucas now submits that the district court
abused its discretion in refusing to accept her tendered
guilty plea to the obstruction of correspondence charge. For
the reasons set forth in the following opinion, we affirm the
judgment of the district court.
2 No. 05-1301
I
BACKGROUND
A.
Ms. Lucas had known her neighbor Tanisha Myricks
for approximately four years. One day, Myricks approached
Ms. Lucas and asked her if she would be willing to give
Myricks cash in exchange for merchandise that Myricks
would purchase by credit card over the internet. Ms. Lucas
agreed. The Citibank credit card used by Myricks to pur-
chase the merchandise had been issued in the name of
Kathleen Pulkowski, Myricks’ former manager. While
working for Pulkowski, Myricks had stolen information
from Pulkowski’s files and had used this information to
obtain the credit card.
Several days after Ms. Lucas and Myricks agreed to
the exchange, packages containing Wal-Mart merchan-
dise arrived at Myricks’ residence. When the delivery
service driver found that no one was present to accept the
packages, she asked Ms. Lucas, who lived across the
street, to accept delivery and to sign for the packages. The
packages were addressed to Kathleen Pulkowski. Ms. Lucas
signed for the delivery, and left the packages inside
Myricks’ home with a note on the door to indicate their
arrival. Later that evening, Myricks arrived at Ms. Lucas’
home with the packages. Myricks opened them and sold the
contents to Ms. Lucas.
Subsequently, Ms. Lucas was arrested and charged with:
conspiring to commit identity theft,1 see 18 U.S.C. § 371;
1
Title 18, § 1028A imposes criminal penalties on anyone
who, in the course of committing one of several enumerated
(continued...)
No. 05-1301 3
trafficking in an unauthorized access device, see id.
§ 1029(a)(2)2; and obstruction of correspondence, see id.
§ 1702.3
B.
At Ms. Lucas’ arraignment on June 12, 2003, she en-
tered a plea of not guilty. On July 31, 2003, however, she
petitioned to change her plea to guilty. On August 14, 2003,
an amended petition to enter a change of plea was filed.
This amended petition contained a plea agreement be-
tween Ms. Lucas and the Government under which she
agreed to plead guilty to the charge of obstruction of
correspondence. In exchange, the Government agreed to
1
(...continued)
felonies relating to theft and fraud, “knowingly transfers,
possesses, or uses, without lawful authority, a means of identifi-
cation of another person.”
2
Section 1029(a)(2) makes it a crime “to knowingly and with
intent to defraud traffic[] in or use[] one or more unauthorized
access devices during any one-year period, and by such con-
duct obtain[] anything of value aggregating $1,000 or more
during that period.” 18 U.S.C. § 1029(a)(2).
3
Section 1702 provides: “Whoever takes any letter, postal card,
or package out of any post office or any authorized depository for
mail matter, or from any letter or mail carrier, or which has been
in any post office or authorized depository, or in the custody of
any letter or mail carrier, before it has been delivered to the
person to whom it was directed, with design to obstruct the
correspondence, or to pry into the business or secrets of another,
or opens, secretes, embezzles, or destroys the same, shall be fined
under this title or imprisoned not more than five years, or both.”
18 U.S.C. § 1702.
4 No. 05-1301
seek leave of court at sentencing to dismiss the other two
charges and to make certain non-binding sentencing
recommendations. Specifically, the Government agreed
to recommend the minimum sentence possible under the
applicable guidelines, as well as the maximum sentence
reduction for Ms. Lucas’ acceptance of responsibility.
During the ensuing plea hearing, the district court
engaged Ms. Lucas in a lengthy colloquy regarding her
participation in the charged criminal conduct. Through-
out the hearing, the district court expressed skepticism that
her statements established a factual basis of guilt. In particu-
lar, the court was doubtful that Ms. Lucas knew, at the time
she accepted the package, that it would never end up in the
hands of Pulkowski or that Pulkowski had not authorized
the transaction. One illustrative exchange consisted of the
following:
THE COURT: At [the time you accepted the
package,] did you know who
Kathleen Pulkowski was?
THE DEFENDANT: Not upon the arrival of the—
THE COURT: Do you know whether she was
a friend of Tanisha [Myricks] or
not a friend?
THE DEFENDANT: Not at the point of the delivery,
no, sir.
THE COURT: At that point did you know
anything was improper?
THE DEFENDANT: Yes, I knew Tanisha had
ordered these things and she
was going to sell them to me
later.
No. 05-1301 5
THE COURT: Did you know whether she had
authority at that point to get
anything from Kathleen
Pulkowski?
THE DEFENDANT: No, I don’t know anything
about the authority part.
THE COURT: So you didn’t know anything
about whether Kathleen was
involved in this or not involved
in this or what agreement
Tanisha may have had or not
had with Kathleen Pulkowski,
is that correct?
THE DEFENDANT: That’s correct, your Honor.
Tr. at 54-55. Ms. Lucas also told the court that, when she
asked Myricks why the packages were addressed to
Pulkowski, Myricks responded that Pulkowski was
Myricks’ godmother. Ms. Lucas then told the court that
she had asked Myricks nothing further about why
Pulkowski’s name appeared on the package. Ms. Lucas
testified that she merely had paid Myricks for the mer-
chandise.
Reluctant to accept Ms. Lucas’ statements as admissions
of guilt to the charge of obstructing correspondence, the
district court ordered the parties to submit memoranda
in support of accepting the plea. In those memoranda,
both parties supported the acceptance of Ms. Lucas’ guilty
plea. Nevertheless, in an order dated September 3, 2003, the
district court rejected the plea; it determined that Ms. Lucas’
“proffered factual basis at the change of plea hearing does
not establish the necessary element that she acted willfully
with design to obstruct correspondence.” R.33 at 2.
6 No. 05-1301
Ms. Lucas then proceeded to trial. At its conclusion, a jury
found her guilty of conspiracy to commit identity theft and
of obstruction of correspondence.4 On January 20, 2005, the
court sentenced her to concurrent terms of two years’
probation on each charge, six months’ home detention, a
special assessment of $200 and restitution in the amount of
$3,344.32.
II
DISCUSSION
Ms. Lucas submits that the district court abused its
discretion in rejecting Ms. Lucas’ guilty plea. The basic
principles that govern our evaluation of such a conten-
tion are well-settled. A defendant has “no absolute right
to have a guilty plea accepted,” and a trial court may “reject
a plea in [the] exercise of sound judicial discretion.”
Santobello v. New York, 404 U.S. 257, 262 (1971). Rule 11 of
the Federal Rules of Criminal Procedure governs the
disposition of pleas in the United States district courts. More
specifically, Rule 11(f) requires that, before accepting a plea,
the district court find a factual basis for a criminal defen-
dant’s plea before accepting it. The purpose of this require-
ment is to “protect a defendant who is in the position of
pleading voluntarily with an understanding of the nature of
the charge but without realizing that his conduct does not
actually fall within the charge.” Fed. R. Crim. P. 11(f)
advisory committee’s notes to the 1966 Amendments. This
factual basis is most easily established when a defendant
4
On Ms. Lucas’ motion, the court dismissed as jurisdictionally
deficient the original Count II of the indictment, trafficking in
an unauthorized device.
No. 05-1301 7
“describe[s] the conduct that gave rise to the charge” in the
indictment. Santobello, 404 U.S. at 261. Despite a trial court’s
broad discretion in this area, it cannot act arbitrarily in
rejecting a plea, and must articulate a “sound reason” for
the rejection. United States v. Kraus, 137 F.3d 447, 453 (7th
Cir. 1998).
Ms. Lucas submits that the district court’s reason for
rejecting her plea was not sound. The offense of obstruc-
tion of correspondence, as defined by 18 U.S.C. § 1702,
requires that a defendant intercept a package with the intent
to obstruct delivery to its rightful recipient. Ms. Lucas
submits that her testimony at the plea colloquy established
that she prearranged with Myricks to pay her for the items
purchased from Wal-Mart. At the plea colloquy, Ms. Lucas
also testified that, upon signing for the package, she saw
from its shipping label that the package was addressed to
Pulkowski, but that it also contained the merchandise that
she had arranged to buy from Myricks. This testimony,
according to Ms. Lucas, established that, at the time she
signed for the package, she knew that Pulkowski never
would receive the package addressed to her and that,
instead, Ms. Lucas would keep the merchandise after
paying Myricks. This testimony, Ms. Lucas contends,
established a factual basis to infer the requisite mental state.
The Government invites our attention to a number of
Ms. Lucas’ statements during the plea colloquy that sug-
gested that her mental state was something “less than the
knowledge and willfulness required to establish guilt.”
Appellee’s Br. at 15. Among the more telling statements
were Ms. Lucas’ admission that she took the package “out
of ignorance and duress and stress” and her remark that she
“wasn’t thinking” when accepting the package. Id. The
inconsistency of Ms. Lucas’ statements, contends the
8 No. 05-1301
Government, gave the district court adequate grounds
to question her mens rea and, ultimately, to refuse to ac-
cept her plea.
We believe that the district court acted within its sound
discretion in refusing to accept Ms. Lucas’ plea. The court’s
painstaking colloquy with Ms. Lucas, followed by a direc-
tion that the parties submit memoranda on the issue,
establishes that the court engaged in a reasoned “exercise of
sound discretion” before rejecting Ms. Lucas’ plea. United
States v. Kelly, 312 F.3d 328, 330 (7th Cir. 2002) (quoting
Santobello, 404 U.S. at 262). These two factors
also distinguish this case from the rare instances in which
district courts have been found to have abused their discre-
tion in rejecting pleas. See, e.g., United States v. Delegal, 678
F.2d 47, 50-51 (7th Cir. 1982) (holding that it was an abuse
of discretion for the district court to refuse to accept a guilty
plea solely because one aspect of the agreement, though it
was understood by both parties, was not contained in the
written document submitted to the court); see also, e.g.,
United States v. Washington, 969 F.2d 1073, 1077 (D.C. Cir.
1992) (“The trial court incorrectly focused on the words in
the indictment rather than on the offense charged in the
indictment.”).
Ms. Lucas contends that her admission to the district court
that she knew that Myricks was going to sell her the con-
tents of the misaddressed package established that
she necessarily meant to obstruct its delivery. However, Ms.
Lucas also said that she was confused about wheth-
er Myricks was authorized to accept a package for
Pulkowski. Read in its entirety, Ms. Lucas’ testimony at
the plea hearing certainly permitted the district court
to conclude that she did not seem to know whether
Pulkowski had given Myricks permission to use her
No. 05-1301 9
credit card, accept merchandise purchased in Pulkow-
ski’s name, and sell it to Ms. Lucas in exchange for rent
money. Were Pulkowski indeed Myricks’ godmother, as Ms.
Lucas admitted to being told, the possibility that Myricks
was acting with Pulkowski’s permission certainly would be
an even more plausible scenario. Therefore, because of Ms.
Lucas’ evident uncertainty regarding Myricks’ authority to
accept a package for Pulkowski, the district court had
adequate grounds to doubt that Ms. Lucas had acted with
the “design to obstruct” required by 18 U.S.C. § 1702.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-29-05
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936 N.E.2d 1233 (2007)
371 Ill. App.3d 1216
HESS
v.
JONES.
No. 3-05-0832.
Appellate Court of Illinois, Third District.
January 25, 2007.
Rev'd in pt.
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203 S.E.2d 145 (1974)
Earl HALL, Administrator, etc.
v.
NELLO TEER COMPANY, a corporation.
No. 13342.
Supreme Court of Appeals of West Virginia.
Submitted January 29, 1974.
Decided March 12, 1974.
*147 Bachmann, Hess, Bachmann & Garden, John B. Garden, R. Noel Foreman, Lester C. Hess, Jr., Wheeling, for appellant.
Schrader, Miller, Stamp & Recht, Arthur M. Recht, Wheeling, Madden & Hughes, G. Charles Hughes, Moundsville, for appellee.
*146 BERRY, Justice:
This is an appeal instituted by Nello Teer Company, the defendant below and hereinafter referred to as the defendant, from a final judgment of the Circuit Court of Marshall County entered April 24, 1972 which overruled the defendant's motion to set aside the jury verdict and award it a new trial. The jury returned a verdict in favor of Earl Hall, the administrator of the estate of Gregory Hall, hereinafter referred to as the plaintiff, in the amount of $11,150.74 as a result of the plaintiff's action for wrongful death. This Court granted the defendant's appeal on March 5, 1973 and on January 29, 1974 the case was submitted for decision upon the arguments and briefs on behalf of the respective parties.
The defendant was a general contractor under a contract with the State Road Commission of West Virginia to relocate West Virginia Route 2 in Marshall County. As part of the contract, the defendant was required to "terrace" or "bench" the hillside to the east of the proposed highway. "Benching" is the process of cutting away the hillside at various intervals starting at the top and is used to prevent rock or dirt slides from blocking the highway.
The plaintiff's decedent was an employee of Stegman & Schellhase, Inc., which was an engineering firm employed by the defendant. It is undisputed that Stegman & Schellhase, Inc. was an independent contractor as far as its relationship with the defendant was concerned. The engineering firm was responsible for determining whether the defendant was performing the excavation in accordance with plans and specifications and for marking various places on the benches for blasting. The plaintiff's decedent, who was seventeen years of age at the time of his death, was hired by Stegman & Schellhase on August 11, 1966. The plaintiff's decedent was a rodman and was involved in the placing of construction layout stakes in the area of the new roadway and setting grade stakes in the area where the benches were being constructed. He had been warned by his supervisor of the danger of falling rocks while working at the base of the high walls which comprised the backs of the benches.
On October 6, 1966 the plaintiff's decedent was one of four employees of the engineering firm sent to the construction site to take various measurements. The plaintiff's decedent was working with a fellow employee, one Louis Wojcicki, on the second bench from the top. Their job was to place stakes in the appropriate locations on the benches so that the drilling rigs could come in later to drill holes for blasting. Wojcicki testified that shortly before the accident he was operating the survey transit about 40 or 50 feet west of the wall of the bench. The plaintiff's decedent was placing stakes and holding the level rod for elevation measurements at the base of the wall. Wojcicki testified he walked over to the base of the wall to assist the plaintiff's decedent in placing a stake in the ground with a small sledge hammer. After *148 the stake was in place, Wojcicki stood up and began to turn to his right when a large rock, weighing approximately 4700 pounds, fell on both men, seriously injuring Wojcicki and killing plaintiff's decedent. The rock fell from the face of the wall at a point about 18 or 20 feet above the bench.
Albert Chieffalo, an employee of the defendant at the time of the accident, testified on behalf of the plaintiff that he had observed a large rock protruding three to four feet from the face of the wall on the second bench when he was working as a flagman near the place of the accident. However, Chieffalo also stated that he had not been working in the area of the accident for approximately 13 days prior to the accident. He testified that he considered this situation dangerous and had made a point to pass by the base of the wall at a safe distance. Chieffalo also testified that on one occasion he observed a front-end loader tap the rock three or four times and then drive away. Although Chieffalo considered the situation dangerous, he never informed anyone of the condition even though all employees of the defendant attended safety meetings every Monday and were encouraged to report any dangerous conditions on the work site. Chieffalo testified he felt that someone else would remedy this dangerous condition.
However, Wojcicki, the injured co-worker, testified he did not observe anything unusual about the face of the wall on the day of the accident. Paul Roberts, an employee of the State Road Commission, was sitting in a truck about 50 feet from the decedent and Wojcicki when the rock fell. He testified that a front-end loader was operating about 100 yards from him and two or three drilling rigs were operating about 100 feet away and were causing a considerable amount of vibration. He stated that he did not observe anything wrong with the face of the bench. However, Roberts testified he noticed that small pieces of coal or "fines" were falling on plaintiff's decedent while the decedent was working at the base of the wall. Roberts testified that Wojcicki, who was about 50 feet away from the wall at the transit, "hollered something at the Hall boy" and pointed above the plaintiff's decedent's head. The plaintiff's decedent looked up and went back to work. Roberts testified that shortly thereafter Wojcicki joined the plaintiff's decedent at the base of the wall. Roberts testified the rock looked as if "it just busted through" the face of the wall.
Although Chieffalo also testified he had observed coal or sand sifting down from the face of the wall on various occasions some thirteen days prior to the accident, Wojcicki testified he had not noticed any "fines" at the base of the wall. John Schellhase, the supervisor of the crew from the engineering company, testified that he did not notice anything unusual about the face of the wall on the second bench as he went by it on the morning of the accident. Schellhase also testified as to the strata of the wall. He stated that the bottom layer was soft, gray, sandy shale followed by a layer of medium hard, gray shale. Above this was a layer of soft black coal followed by a layer of medium hard, dark gray shale limestone. This latter layer was the one from which the rock fell.
Charles C. Waller, the general superintendent on the job for the defendant, testified for the defendant that he inspected the walls several times a day checking for unsafe conditions and that he had not observed any rock protruding from the face of the wall on the second bench. He also stated that the men operating the front-end loaders or dozers had been instructed to knock down any loose rocks from the face of the walls if any were observed by the men.
Waller was asked on direct examination by counsel for the defendant what, in his opinion, based on his inspection of the scene, had caused the rock to fall. The court refused to allow Waller to answer this question after the opposing counsel objected. On proffer of testimony out of the presence of the jury, Waller stated *149 that the rock had worked loose as a result of a mud seam behind the rock which was not observable. The defendant contends that Waller should have been allowed to tell the jury why, in his opinion, the rock fell, because Waller was qualified to give his opinion. However, this evidence was later allowed to go to the jury in another context.
Defendant further contends that under the facts of this case, it was entitled to a directed verdict either at the close of plaintiff's evidence or at the close of all the evidence. Furthermore, the defendant contends the court erred in giving plaintiff's instructions 1 and 2.
The principal contention of the defendant on this appeal is that it was error for the trial court to refuse to direct a verdict in favor of the defendant. Although there has been considerable confusion in the past with regard to the liability on the part of the owner of the premises or the general contractor in connection with injuries to an employee of an independent contractor, it now appears to be firmly established in the law that a general contractor or the employer of an independent contractor has the duty to exercise ordinary care for the safety of an employee of the independent contractor, and to furnish such employee a reasonably safe place in which to work. Roberts v. Kelly Axe & Tool Co., 107 W.Va. 236, 148 S.E. 70; Ferguson v. R. E. Ball & Co., 153 W.Va. 882, 173 S.E.2d 83; Summers v. Crown Construction Company, 4 Cir., 453 F.2d 998. It was held in point 2 of the syllabus of the Ferguson case that: "An independent contractor who works on premises where his contract requires him to be is an invitee, and while thus engaged he is entitled to the protection of ordinary care on the part of the owner or occupier of the premises, and such invitee must be furnished a reasonably safe place in which to work."
The defendant cites the case of Chenoweth v. Settle Engineers, Inc., 151 W.Va. 830, 156 S.E.2d 297, as authority to support his contention that a directed verdict should have been granted in favor of the defendant in the case at bar. In the Chenoweth case the City of Elkins retained no control over the work of the contractor and the Court held that because soil conditions varied greatly throughout the city where ditches were being dug and work conditions were constantly changing, the city was not liable for the death of the contractor's employee in the cave-in of a ditch. This case is clearly distinguished from the instant case, because the defendant, the general contractor, retained control over the safety of the work being done on the entire work project involved, and there was no evidence of constantly changing conditions at the place the plaintiff's decedent was working. The evidence in the instant case is conflicting as to whether or not a dangerous situation existed which was known or should have been known by the defendant. A witness for the plaintiff, Albert Chieffalo, testified that some time before the accident he observed a rock at the place where the accident occurred protruding some three or four feet from the wall above the bench and that it constituted a dangerous situation. He did not report this condition to the defendant although the men held weekly safety meetings with regard to such matters. It is true that four witnesses for the defendant testified that they did not observe a rock protruding at the place of the accident, but this conflict in the evidence made the case one for jury determination. Jones v. Riverside Bridge Co., 70 W.Va. 374, 73 S.E. 942; French v. Sinkford, 132 W.Va. 66, 54 S.E.2d 38; Summers v. Crown Construction Company, supra. It was held in point 2 of the syllabus of the French case that: "Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong." Point 4 of the syllabus of the case of Young v. Ross, W.Va., 202 S.E.2d 622 (decided by this Court February 19, *150 1974), quotes the recent case of Skeen v. C and G Corporation, W.Va., 185 S.E. 2d 493, in the following language: "It is the peculiar and exclusive province of a jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed." It therefore appears the contention of the defendant that the trial court should have directed a verdict in its favor is not well taken.
The contention of the defendant that it was error for the trial court to refuse to allow the general superintendent of the defendant to testify as an expert witness giving his opinion as to why the rock fell from the wall is also not well taken.
It would appear from the evidence that a proper foundation was not laid for the testimony of this witness. No questions were directed to this witness as to his knowledge of geology. The question of the qualifications of a witness to testify as an expert witness and give his opinion, rests in the discretion of the trial court, and its ruling on such matter will not ordinarily be disturbed unless it appears there has been an abuse of discretion by the trial court. 31 Am.Jur.2d Expert and Opinion Evidence § 26. Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113; Overton v. Fields, 145 W. Va. 797, 117 S.E.2d 598. It was held in point 5 of the syllabus of the Overton case that: "Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused."
The contention that it was error for the trial court to give instructions 1 and 2 offered by the plaintiff over the objection of the defendant will not be considered by this Court, because the objection is not germane to the instructions and does not specifically point out any error in the instructions offered. The objection to these instructions, which is the same in each case, was as follows: "I don't think it correctly states the law. Our position is that Nello Teer was not under a duty to notify an invitee such as Hall of any defect or danger which Hall, himself, should have known." Neither instruction mentioned any duty on the part of the defendant to warn the plaintiff's decedent of any danger or defect.
It has been repeatedly held by this Court that only specific grounds of objection to an instruction will be considered by it. Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736; Shaw v. Perfetti, 147 W.Va. 87, 125 S.E.2d 778; Fortner v. Napier, 153 W.Va. 143, 168 S.E. 2d 737; Lambert v. Great Atlantic & Pacific Tea Co., W.Va., 184 S.E.2d 118. Rule 51, R.C.P. also requires such specific objection and the pertinent part relative thereto reads as follows: "* * * No party may assign as error the giving or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly, as to any given instruction, the matter to which he objects and the grounds of his objection; * * *."
It was held in point 2 of the syllabus of the Lambert case that: "The general rule is that no party may assign as error the giving of or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly the matter to which he objects and the grounds of his objections and ordinarily this Court, in the exercise of its appellate jurisdiction, will consider only objections which have been made in this manner."
For the reasons stated herein, the judgment of the Circuit Court of Marshall County is affirmed.
Affirmed.
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390 F.3d 661
UNITED STATES of America, Plaintiff-Appellee,v.Timothy Dean SMITH, Defendant-Appellant.
No. 03-30533.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 13, 2004.
Filed December 3, 2004.
Craig E. Weinerman, Assistant Federal Public Defender, Eugene, Oregon, for the defendant-appellant.
Frank R. Papagni, Jr., Assistant United States Attorney, Eugene, Oregon, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding. D.C. No. CR-02-60101-1-ALA.
Before: WALLACE, GOULD and BEA, Circuit Judges.
WALLACE, Senior Circuit Judge.
1
Smith appeals from his sentence because of the enhancement imposed by the district court pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He contends the district court improperly relied on statements made at a no contest plea hearing in concluding that an earlier state burglary conviction qualifies as a "violent felony" for purposes of the ACCA. In addition, Smith asserts that the district court engaged in fact-finding which violated the constitutional principle established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
I.
2
A federal indictment charged Smith with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and alleged that he qualified for a sentence enhancement as an Armed Career Criminal due to at least three prior burglary convictions in California. Smith pleaded guilty and admitted he had been convicted of the alleged prior offenses, but he reserved the right to challenge the constitutional, statutory, or factual validity of his prior convictions at sentencing.
3
The government submitted documentation regarding Smith's prior convictions for two burglaries in Placer County in 1984, two burglaries in Orange County in 1985, and a burglary in Sacramento County in 1993. The district court concluded that Smith's convictions in Sacramento County and Placer County qualified as "violent felonies" under 18 U.S.C. § 924(e)(2)(B)(ii). As provided by section 924(e)(1), the court imposed the mandatory minimum sentence of fifteen years. Smith does not dispute the applicability of section 924(e)(2) to the two Placer County convictions. Therefore, the main issue addressed in this appeal is whether the Sacramento conviction qualifies as a violent felony.
4
For the Sacramento conviction, the government submitted the transcript of the plea hearing and the abstract of judgment. The judgment indicates that Smith was convicted of burglary in the first degree, in violation of California Penal Code § 459. The state court transcript establishes that at the change of plea hearing, the prosecutor stated the factual basis for the burglary charge:
5
With regard to 92F07246, on the date set forth in the Complaint, in the County of Sacramento, the defendant willfully and unlawfully entered an inhabited dwelling occupied by Jennifer Smith located at 3624 Ronk, R-O-N-K, Way. Once inside he did take personal property belonging to her.
6
After the magistrate asked Smith's counsel if she "wish[ed] to comment on [the] factual basis," his counsel replied:
7
No. The only comment is that he entered his former occupant [sic]. He entered his former home which he considered to be his current home. He had only been away for two days. The codes were changed. He went in and retrieved some of his personal items, all of which were still at his home, all personal items and toiletry of four years duration in that home. He did, however, take some things he should not have that did not belong to him.
8
The magistrate then questioned Smith to ascertain whether he understood the consequences of his plea. After finding there was a factual basis for the plea, the magistrate found Smith guilty of first degree burglary.
9
We review de novo whether a conviction is a predicate felony for purposes of the ACCA. United States v. Bonat, 106 F.3d 1472, 1474 (9th Cir.1997). We also review de novo whether the district court violated the constitutional rule articulated in Apprendi. United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir.2003).
II.
10
The ACCA requires a fifteen year minimum sentence for any person who violates the felon-in-possession prohibition of 18 U.S.C. § 922(g) and has three prior convictions for a "violent felony." 18 U.S.C. § 924(e)(1). The term "violent felony" is defined to include burglary offenses which are punishable by more than one-year imprisonment. Id. § 924(e)(2)(B).
11
In Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court established a generic definition of burglary for purposes of section 924(e)(2)(B): "[1] unlawful or unprivileged entry into, or remaining in, [2] a building or structure, [3] with intent to commit a crime." A court generally must apply a categorical approach at sentencing to determine whether a defendant was convicted of conduct which included these three elements of generic burglary. That is, it may "look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. 2143.
12
In this case, we first apply the Taylor categorical analysis to Smith's no contest plea. See Bonat, 106 F.3d at 1476 ("It is well accepted that the Taylor analysis applies not only to convictions resulting from a jury finding of guilt, it also applies when the defendant has pled guilty"). California Penal Code § 459 provides in part that "[e]very person who enters any ... building ... with intent to commit grand or petit larceny or any felony is guilty of burglary." This definition expressly requires that a defendant have entered with the intent to commit a crime. See United States v. Alvarez, 972 F.2d 1000, 1005 (9th Cir.1992) (per curiam) (stating that a conviction pursuant to section 459 requires that "the defendant had, at the time of entry, the intent to commit a crime"). Therefore, the fact of Smith's conviction pursuant to section 459 establishes the intent element of generic burglary.
13
Section 459 does not, however, require that the entry be unlawful, nor does it require that the entry be into a building. See Taylor, 495 U.S. at 591, 110 S.Ct. 2143 (stating that "California defines `burglary' so broadly as to include shoplifting and theft of goods from a `locked' but unoccupied automobile" and citing California Penal Code § 459); United States v. Franklin, 235 F.3d 1165, 1169 (9th Cir.2000) ("We have previously and unequivocally held that California Penal Code section 459 is far too sweeping to satisfy the Taylor definition of generic burglary"). Thus, applying a categorical analysis, these elements of generic burglary are not satisfied.
14
Yet, "in a narrow range of cases" where a factfinder "was actually required to find all the elements of generic burglary," a court may apply a modified categorical approach and look "beyond the mere fact of conviction." Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Although the court may not inquire into the underlying facts of the conviction, Bonat, 106 F.3d at 1475, it may examine "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes." United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc) (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir.1999)). The record must "unequivocally" establish that the defendant was convicted of the generic crime. United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc).
15
The record here consists of the transcript of the plea hearing and the abstract of judgment. In Bonat, we held that "examining the plea transcript was not an impermissible factual inquiry" by the district court. 106 F.3d at 1474. We reasoned that considering an oral admission that was later transcribed entailed no more of a factual inquiry than examining a signed plea statement, which was permitted in United States v. Sweeten, 933 F.2d 765, 769 (9th Cir.1991) (per curiam). Bonat, 106 F.3d at 1477. We have also allowed a court to consider a judgment of conviction. E.g., United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1248 (9th Cir.2003). Therefore, although courts are "limited to consulting a narrow and carefully specified set of documents" when applying the modified categorical approach, United States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir.2004), the documents in the record here are clearly appropriate for review. See Franklin, 235 F.3d at 1170 n. 5 (listing documents which a sentencing court may consider).
16
In determining that this record clearly established the elements of generic burglary, the district court reasoned that the factual basis for the charge, as set forth by the prosecutor at the change of plea hearing, expressly stated that Smith "unlawfully entered an inhabited dwelling." Furthermore, when specifically asked to comment, defense counsel did not object to this statement; rather, she explained that Smith had entered his "former home" where the "codes were changed." We conclude that these statements unequivocally establish that Smith was convicted of unlawfully entering a building.
17
Smith argues that the lack of a charging document in the record prevents consideration of the change of plea transcript. Although the various combinations of documents identified as permissible in Corona-Sanchez, 291 F.3d at 1211, all included a charging document, we do not read our opinion as establishing a per se requirement. We have "interpreted Taylor's edict to include examination of `documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes[,] such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.'" Rivera-Sanchez, 247 F.3d at 908 (alteration in original) (emphasis added) (quoting Casarez-Bravo, 181 F.3d at 1077). Indeed, we have held that a court errs if it fails to consider such documentation. See Franklin, 235 F.3d at 1170.
18
Moreover, although the district court in Bonat considered the Information and the Sentence of Imprisonment from the defendant's prior burglary convictions in Arizona, it "primarily relied on [the defendant]'s statements from the ... change of plea proceedings." Bonat, 106 F.3d at 1476. Without the change of plea transcript, the record was insufficient because neither of the other documents established the requisite "intent" element. Id. Here, the district court reviewed both the abstract of judgment and the plea transcript, and it properly relied primarily on the latter to establish the elements of (1) unlawful entry (2) into a building. See also United States v. Hernandez-Hernandez, 387 F.3d 799, 805 (9th Cir.2004) ("[The district court] did no more than we previously have allowed by looking at the plea colloquy transcript ...; it relied on readily available facts to which both sides expressly stipulated that clearly fit within the statutory definition of a crime of violence"). A charging instrument in this particular case is simply unnecessary.
19
Alternatively, Smith argues that the district court erred in relying on the stated factual basis because he entered a "no contest" plea rather than a guilty plea. However, in United States v. Williams, 47 F.3d 993, 995 (9th Cir.1995), the defendant pleaded nolo contendere—or "no contest"—to charges that he "`did willfully and unlawfully enter [a] residence,'" and we held that "[w]hen a defendant pleads guilty (or as here, pleads nolo contendere) to facts stated in the conjunctive, each factual allegation is taken as true." See also United States v. Stephens, 237 F.3d 1031, 1033-34 (9th Cir.2001) (two burglary convictions entered pursuant to the defendant's nolo contendere pleas qualified as "violent felonies" pursuant to the ACCA, even though the state's definition of "burglary" did not require entry into a building, because the "indictments clearly refer[red] to burglaries of `buildings' within the scope of the definition of `burglary' provided by Taylor"); CAL. PENAL CODE § 1016 ("The legal effect of [a nolo contendere] plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes").
20
Although in Williams the defendant pleaded nolo contendere to a charging instrument and the record here does not include such an instrument, the district court may rely on the undisputed factual basis as stated at the plea hearing to support the ACCA enhancement. In United States v. Palmer, 68 F.3d 52, 53 (2d Cir.1995), the Second Circuit considered whether a conviction entered pursuant to a nolo contendere plea constituted a "crime of violence" within the meaning of U.S.S.G. § 4B1.2(1). The Information merely stated, "without elaboration," that the defendant had committed "the crime of intimidation based on bigotry and bias ... in violation of General Statute No. 53a-181b." Id. at 56. However, the court held that "the plea proceeding includes a lucid description of the conduct for which Palmer was convicted, that conduct manifestly constitutes a `crime of violence'..., and Palmer's on-the-record agreement to the description of his conduct proffered by the prosecuting attorney results in the functional equivalent of a plea agreement with respect to that conduct." Id. at 59; see also United States v. Etimani, 328 F.3d 493, 503-04 (9th Cir.2003) (holding that the record did not establish that a prior conviction was for a "sexual act" for purposes of the 18 U.S.C. § 2241(c) sentence enhancement, but remarking that "a transcript of Etimani's plea of no-contest might have clarified the exact nature of his prior conviction, but none was provided").
21
The reasoning in Palmer is persuasive. As applied to this case, the factual basis stated by the prosecutor clearly establishes that Smith "unlawfully entered an inhabited dwelling," and Smith conceded this fact through his counsel, who did not object when asked to comment. On the contrary, Smith's counsel confirmed this fact when she stated that Smith had entered his "former home" even though the "codes were changed." Smith is bound by his counsel's statement. See Hernandez-Hernandez, 387 F.3d at 806 ("There is no authority to support the proposition that when Hernandez-Hernandez's attorney stipulated to the factual basis supporting the plea agreement the defendant was not bound by the facts contained in that stipulation. In fact, we have repeatedly held that criminal defendants are bound by the admissions of fact made by their counsel in their presence and with their authority.").
22
Thus, we hold that this record unequivocally establishes that Smith's conviction by plea encompassed the three elements of the Taylor definition of generic burglary.
III.
23
Smith argues the district court's examination of his prior convictions violated the rule established in Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348.
24
However, we have repeatedly rejected Apprendi challenges to the ACCA. See United States v. Keesee, 358 F.3d 1217, 1220 (9th Cir.2004) (citing Summers and summarily rejecting claim that Apprendi entitled Keesee to a jury trial to determine whether prior convictions qualified as predicate offenses under the ACCA); United States v. Summers, 268 F.3d 683, 689 (9th Cir.2001) (rejecting facial challenge to ACCA based on Apprendi); see also United States v. Tighe, 266 F.3d 1187, 1191 (9th Cir.2001) (rejecting facial challenge to ACCA based on Apprendi).
25
Smith, however, contends that the district court determined more than the "fact of a prior conviction" in his case because it employed the modified categorical approach. But, Taylor prohibits "inquiry into the underlying facts of the conviction," even when applying the modified categorical approach, Bonat, 106 F.3d at 1475, and the district court did not run afoul of this mandate. We therefore reject this argument.
26
Finally, the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), does not undermine the Apprendi exception for sentence enhancements triggered by "the fact of a prior conviction." As we recently explained in United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004), "Blakely does nothing to upset this well-settled rule."
IV.
27
For the reasons stated above, we conclude that the district court did not err in determining that Smith's conviction for the burglary in Sacramento qualifies as a "violent felony" for purposes of the ACCA enhancement. We also conclude that the district court did not find facts in violation of the Apprendi rule. We therefore affirm the sentence imposed by the district court.
28
AFFIRMED.
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702 F.2d 1221
10 Ed. Law Rep. 29
Virgie Lee VALLEY, et al., Plaintiffs-Appellees,United States of America, Intervenor-Appellee,v.RAPIDES PARISH SCHOOL BOARD, et al., Defendants-Appellants,andClyde Holloway, et al., Intervenors-Appellants.
No. 81-3462.
United States Court of Appeals,Fifth Circuit.
March 30, 1983.
John F. Ward, Jr., Robert L. Hammonds, Baton Rouge, La., for Rapides Parish School Bd.
Christopher Roy, Alexandria, La., Paul R. Baier, Baton Rouge, La., for Clyde Holloway et al.
Louis Berry, Alexandria, for Valley et al.
Franz R. Marshall, Gen. Litigation Section, Civil Rights Div., Dennis J. Dimsey, William Bradford Reynolds, Brian K. Landsberg, Appellate Section, Civ. Rights Div., Dept. of Justice, Washington, D.C., for the U.S.
Appeals from the United States District Court for the Western District of Louisiana.
Before CLARK, Chief Judge, POLITZ and RANDALL, Circuit Judges.
POLITZ, Circuit Judge:
1
For the sixth time we review an aspect of the litigation, initiated in 1965, involving the desegregation of the public schools in Rapides Parish, Louisiana. In Valley v. Rapides Parish School Board, 646 F.2d 925 (5th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 650 (1982) (Rapides I ), we affirmed the finding and conclusion by the district court1 that the vestiges of a state-imposed dual school system had not been fully eradicated, sanctioning most components of the remedial program fashioned by the district court. We reversed in part and remanded in order that the district court might reconsider and, if re-imposed, explain in greater detail that portion of its order directing the closure of Lincoln Williams, a predominantly black K-8 school in Cheneyville, and the closure of the predominantly white K-8 school in Forest Hill, coupled with the transfer of students from these two schools to an elementary and middle school in Lecompte, a community located midway between Cheneyville and Forest Hill.
2
Following a post-remand evidentiary hearing, the district court reviewed and rejected various alternatives proposed by the parties and readopted its original plan. On appeal, the school board and Forest Hill intervenors2 focus their attack on the court's refusal to reopen the Forest Hill Elementary School. Concluding that the remedy imposed was commensurate with the constitutional violation, we affirm.
Background Facts
3
A detailed exposition of the factual and procedural history of this protracted litigation is set forth in our earlier opinion, reported at 646 F.2d 945. Our review today focuses on the legality of the district court's solution to the thorny problem presented by the continued existence of Lincoln Williams as a virtually all-black school (92.9%). In its earlier assessment, the district court found no white students available in the Cheneyville area to desegregate Lincoln Williams, and elected to close the school and reassign its pupils to Lecompte Elementary (K-3) and Carter Raymond Junior High (4-8), both in Lecompte. 499 F.Supp. 490. At the same time the court determined to reassign the student population of Forest Hill, with a minority enrollment of 8.3%, to the two Lecompte schools. Aside from Lecompte's central location, the district court cited no supportive reasons for the transfer of Forest Hill students to Lecompte and concomitant closure of that educational facility.3
4
In directing the district court to consider the various alternatives to the dismantling of Lincoln Williams and Forest Hill, and, in the event the court adhered to its 1980 decision, to explain the bases for rejecting such alternatives, we stated:
5
We cannot lend our sanction so easily, however, to those portions of the plan involving pupils and facilities in Wards 3 and 4. Here, as we have described, the district court elected to close a predominantly white rural school, Forest Hill, and a predominantly black school, Lincoln Williams, equidistant in different directions from the town of Lecompte, and to transfer their pupils to Lecompte schools. As far as we can determine, the only justification for closing Lincoln Williams was its predominance of black pupils. The court admitted that Forest Hill is more modern than Lecompte Elementary, but described the latter as having "much better location for purposes of integration," in terms of distance for busing of reassigned pupils. Alternatives are only sparingly mentioned.
6
These findings are an insufficient factual basis on which to approve the closing of Forest Hill and Lincoln Williams. Equally effective alternatives may exist which would avoid the closing of a modern facility and the intercommunity transfer of kindergarten pupils. These should be explored on remand and, if the district court adheres to its present plan, specific reasons for their rejection should be given. We cannot ignore the district court's disregard of neighborhood considerations for rural schools in this context.... Specific desegregation measures in southeastern Rapides Parish should be re-examined in light of the full range of mitigating equitable considerations.
7
646 F.2d at 940-41.
8
On remand, the district court received additional evidence from the Forest Hill intervenors, reviewed the various proposals submitted, and reinstated the student assignments for the Poland, Cheneyville, Lecompte and Forest Hill communities.4 The trial judge reiterated his conviction that the dismantling of Lincoln Williams and the assimilation of its pupils into the Lecompte schools was the only reasonable alternative to perpetuation of Lincoln Williams as a racially identifiable school. Determined to effect an equitable distribution of the burden of desegregation, the district court remained convinced that Forest Hill's students should also be assigned to the Lecompte schools.
9
Having previously decided in Rapides I that the constitutionally mandated goal of educational unitization has not been achieved in Rapides Parish,5 we need only address the appropriateness of the remedy ordered.
Guidons
10
Failure on the part of school authorities to implement a constitutionally prescribed unitary school system brings into play the full panoply of the trial court's remedial power. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Rapides I. To discharge this weighty responsibility, the court is obliged to expunge from the public schools all vestiges of unlawful segregation. Swann; Lee v. Macon County Board of Education, 616 F.2d 805 (5th Cir.1980); United States v. DeSoto Parish School Board, 574 F.2d 804 (5th Cir.), cert. denied, 439 U.S. 982, 99 S.Ct. 571, 58 L.Ed.2d 653 (1978).
11
When reviewing a trial court's desegregation remedy, we are limited to ascertaining whether the court abused its discretion. See Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Swann. We are mindful that "the scope of a district court's equitable power to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann, 402 U.S. at 15, 91 S.Ct. at 1276. See United States v. DeSoto Parish School Board. Although "free to re-assess the district court's conclusions of law, its findings of fact must be accepted unless they are clearly erroneous." Ross v. Houston Independent School Dist., 699 F.2d 218, 226 (5th Cir.1983), (citing Pullman-Standard v. Swint, --- U.S. ----, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)).
12
A trial judge's insight into local conditions is to be accorded substantial deference. While the remedy fashioned by the court "may be administratively awkward, inconvenient, and even bizarre" in some cases, "and may impose burdens on some ... all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems." Swann, 402 U.S. at 28, 91 S.Ct. at 1282.
13
Appellate review of the district court's exercise of its broad discretion in formulating a desegregation plan is guided by the tripartite analysis set forth in Milliken. Consistent with Milliken 's teachings, a remedial order must be carefully tailored to correct the constitutionally infirm condition, restore the victims of segregation to the positions they would have enjoyed absent the proscribed conduct, and, where congruent with constitutional precepts, accommodate the interest of school officials in administering their affairs without judicial interference.
Lincoln Williams
14
It is axiomatic that the existence of a few racially homogeneous schools within a school system is not per se offensive to the Constitution. Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); United States v. DeSoto Parish School Board; United States v. Seminole County School District, 553 F.2d 992 (5th Cir.1977). The retention of all-black or virtually all-black schools within a dual system is nonetheless unacceptable where reasonable alternatives may be implemented. United States v. DeSoto Parish School Board; Lemon v. Bossier Parish School Bd., 566 F.2d 985 (5th Cir.1978). See Price v. Denison Indept. School Dist., 694 F.2d 334 (5th Cir.1982).
15
Various plans approved by the district court over the long history of this litigation did not realize one of their primary goals: desegregation of the Cheneyville schools. The court's attempt in 1975 to accomplish this objective by closing the majority white Cheneyville High School (K-12), and assigning all children residing in Cheneyville to Lincoln Williams proved unsuccessful because of an exodus of white pupils. On original hearing, and again on remand, the district court concluded that this constitutionally impermissible condition could not be remedied by pairing or clustering with the school in Poland, the only accessible "white" school.6 Absent a pool of available white students, the court opted to reassign students living east of Cheneyville to Poland, which was reduced to a K-6 facility, and to transfer Poland's seventh and eighth grade students to Jones Street School. These assignments increased Poland's black student population from 9.6% to 36.8%. The district court was obviously persuaded, both before and after remand, that the only viable alternative to a segregated education for the remaining K-6 students in Cheneyville was to reassign them to the schools in Lecompte.
16
Nothing in the record attests to the presence of geographic or demographic barriers, insuperable distances, excessive travel times, or other factors which might militate against the court's resort to busing, a "normal and accepted tool of educational policy," Swann, 402 U.S. at 29, 91 S.Ct. at 1282. Indeed, Cheneyville is approximately nine miles south of Lecompte and is connected by a major highway, a portion of which is multi-laned. There is nothing to indicate that transportation of the former Lincoln Williams students to Lecompte presented any kind of logistical difficulty. Student busing over substantial distances is commonplace in the southeastern portion of Rapides Parish, where the population is diffused and some families live many miles from school facilities. Absent the desegregation wrinkle, busing has traditionally been warmly received as a welcome public service, particularly by families living in rural areas.
17
The record reflects that the efforts to desegregate Poland were progressing well. The court's obvious reluctance to disrupt this part of the total parish plan was eminently reasonable. See United States v. Stout; United States v. School District of Omaha, 521 F.2d 530 (8th Cir.) cert. denied, 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280 (1975). Because Lecompte Elementary and Carter Raymond were approximately 60% black, use of pairing or clustering techniques to transfer white students to Lincoln Williams would have served only to further skew the percentage of black pupils in these schools. However, both Lecompte schools could physically absorb the relatively small number of Lincoln Williams students. All relevant factors considered, we conclude that the decision to close Lincoln Williams and to reassign its students to Lecompte was within the ambit of the district court's expansive remedial authority.7
Forest Hill
18
Once having confected an antidote for Cheneyville's segregative ills, the court was confronted with yet another dilemma--the projected increase in minority enrollment in the Lecompte schools occasioned by the influx of students from Lincoln Williams. This ineluctably led to the court's consideration of the predominantly white student body at Forest Hill, approximately nine miles west of Lecompte. Viewing the Cheneyville, Forest Hill and Lecompte schools as integral elements of a single educational network,8 the court resolved to eradicate all traces of unconstitutional segregation by dismantling Forest Hill's K-8 facility and shifting its students to Lecompte. The Forest Hill intervenors and the school board challenge the court's conclusion that the assignment of all elementary and middle school pupils within the tri-community region to Lecompte schools, accompanied by the closing of Forest Hill, offered the most reasonable prospect of successful desegregation, contending that the proposals they submitted would function more effectively to remedy the discrimination found to exist.
19
None of the parties take issue with the district court's unequivocal rejection of the school board's initial suggestion that Lecompte Elementary be closed and its students transported to Forest Hill. Among the factors influencing this decision were the adequacy of Lecompte Elementary's facilities, its central location, and the relative ease of busing Forest Hill students to Lecompte. Given the lack of a feasible alternative to Lincoln Williams' closure, the court was impelled to seek out, within practical limitations, an equitable allocation of the burden of desegregation by declining to close a second majority black school. Arvizu v. Waco Independent School District, 495 F.2d 499 (5th Cir.1974); Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir.1972) (en banc), cert. denied, 413 U.S. 920, 93 S.Ct. 3053, 37 L.Ed.2d 1041 (1973). See Brice v. Landis, 314 F.Supp. 974 (N.D.Cal.1969) (when minority school being closed has adequate facilities and white students not bused, closing unjustified).
20
Other suggestions urged on remand were eliminated by the court for similar reasons. One series of suggestions called for the selective busing of a specified number of black children from Lecompte or Woodworth to Forest Hill (Forest Hill plans 1, 2 and 4). Another suggestion advocated maintenance of Lincoln Williams and Forest Hill as K-8 schools, and Lecompte Elementary as a K-4 school, with black pupils from Lecompte grades K-4 bused to Forest Hill, and white pupils from Lecompte grades 5-8 bused to Lincoln Williams. Under this suggestion, Lecompte grade 4 would become almost all white, and Lincoln Williams grades 1-4 all black (School Board plan 1). Yet another series of suggestions sought the establishment of specific grade configurations at Forest Hill and Lecompte through the closure of Lincoln Williams, and the creation of K-5 schools at Forest Hill and Lecompte, a 6-8 school at Carter Raymond, and a K-6 school at Poland (School Board plans 2 and 3), anticipating the transportation of 78 and 108 Lecompte children to Forest Hill, respectively.
21
None of the plans suggested by the school board or the Forest Hill intervenors adequately insure a fair reconciliation of the competing interests involved. Some of the proposals would have unfairly burdened minority students. Others would in all probability have precipitated a reversion to the impermissible status quo--the perpetuation of Lincoln Williams as an essentially one-race school. None would spread equally the burden of desegregation.
22
By way of contrast, the plan developed by the court, with precious little of the assistance it had a right to expect from the parties, envisions the equidistant transportation of an equivalent number of white and black students in the same age bracket. The court's plan anticipates an even-handed distribution of the travails of desegregation. See United States v. Texas Education Agency, 467 F.2d 848 (5th Cir.1972) (en banc). See also Mitchell v. McCunney, 651 F.2d 183, 189 (3d Cir.1981) ("school board has an obligation to implement a student reassignment plan that will not dislocate black students significantly more than white students"). Plans submitted by the school board and the intervenors would not achieve the measure of desegregation realistically attainable. Thus their rejection by the district court did not constitute error or an abuse of discretion. See Davis v. Board of School Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971).
23
Perhaps the most problematic of all proposals evaluated and rejected by the district court concerns the survival of both Lincoln Williams and Forest Hill as racially identifiable K-3 institutions. Pursuant to this proposal, first suggested by the private plaintiffs and later espoused by the Forest Hill intervenors, children in the early elementary grades would attend schools within their neighborhoods. While the court's opinion provides no guidance as to the rationale underlying its disallowance of neighborhood schools, our independent examination of the record persuades us of the appropriateness of the court's position.
24
Though mindful of the worthy community values inherent in a neighborhood school, the maintenance of such values may not serve to supersede the constitutional imperative of desegregation. See Swann; Rapides I. We need hardly remind of that mandate at this point, nearly three decades after Brown v. Board of Education.9 Federal courts are obliged to "make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." Davis, 402 U.S. at 37, 91 S.Ct. at 1292. This constitutionally erected barrier to the operation of segregated schools applies to all children within the school system, including those in elementary grades. Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, Tenn., 687 F.2d 814 (6th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983); Adams v. United States, 620 F.2d 1277 (8th Cir.), cert. denied, 449 U.S. 826, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980). See Lee v. Macon County Board of Education; Anderson v. Dougherty County Board of Education, 609 F.2d 225 (5th Cir.1980); United States v. Board of Education of Valdosta, Ga., 576 F.2d 37 (5th Cir.), cert. denied, 439 U.S. 1007, 99 S.Ct. 622, 58 L.Ed.2d 684 (1978); Mills v. Polk County Board of Education, 575 F.2d 1146 (5th Cir.1978). Since "desegregation plans cannot be limited to the walk-in school," Swann, 402 U.S. at 30, 91 S.Ct. at 1283, courts must explore the feasibility of a variety of remedial methods before lending their judicial imprimatur to the propagation or maintenance of one-race elementary schools. Tasby v. Estes, 572 F.2d 1010 (5th Cir.1978), cert. dism. sub nom Estes v. Metropolitan Branches of the Dallas NAACP, 444 U.S. 437, 100 S.Ct. 716, 62 L.Ed.2d 626 (1980). See Swann; Lee v. Macon County Board of Education. See also Davis v. East Baton Rouge Parish School Bd., 570 F.2d 1260 (5th Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 57 L.Ed.2d 72 (1979) (elementary, middle and high schools).
25
Student transportation, one of the "desegregation tools" approved by the Supreme Court, cannot be discounted as a valid alternative to the education of elementary school children in a segregated environment unless the record demonstrates that "the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process." Swann 402 U.S. at 30-31, 91 S.Ct. at 1283; United States v. Texas Educ. Agency, 532 F.2d 380 (5th Cir.1976), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979). As we observed in Rapides I, the acceptable length and time of travel will perforce vary with the age of the children and the risk posed to their health. 646 F.2d at 939.
26
To buttress their contention that the court's plan would impose an excessive burden on Forest Hill K-3 students, the intervenors offered evidence that: (1) some children would travel approximately one hour each direction, (2) buses traveling between Forest Hill and Lecompte must traverse a railroad track, and (3) the Forest Hill school embodied the most treasured characteristics and qualities of the surrounding community. Photographs were offered to show the condition of the Forest Hill school buildings.
27
We are impressed with the sincerity and depth of feeling displayed by the Forest Hill parents. The record attests to the fine quality of the citizenship of these intervenors. They are law-abiding and supportive of our Constitution and laws. Balancing the equities when dealing with their small children is a particularly arduous task. Our painstaking review of the record nevertheless discloses no evidence to contradict the district court's finding, with respect to the children residing within 2.5 miles of the heart of Forest Hill or along the highway to Lecompte,10 that "the burden of busing others into Forest Hill is far greater than busing Forest Hill students to Lecompte."
28
The proposals advanced by the school board and intervenors contemplate the transportation of black students from Lecompte to Forest Hill over the same highway as is claimed to be dangerous and overly long for the transportation of Forest Hill students to Lecompte. We are not persuaded that the burdens and risks of travel vary depending on the direction of travel and the complexion of the travelers.
29
We note further, as did the district court, that the older students have been riding the school bus to Lecompte for a number of years. High School students from the Forest Hill area have been bused to Lecompte voluntarily since the 1966-67 school year, and seventh and eighth graders must also now be bused from Forest Hill. The burden of busing the elementary school children is minimized by the previous establishment of busing for the older children. As the district court stated: "The elementary students simply get on buses already loaded with their older brothers and sisters."
30
Finally, the district court found Carter Raymond and Lecompte Elementary to be structurally sound and capable of accommodating all students assigned.11 Accordingly, upon consideration of all of the foregoing factors, we must concur in the district court's judgment that the intervenors' legitimate interest in preserving their neighborhood school must, in this instance, yield to the constitutional requirement that all children in the parish, black and white, share in a desegregated educational experience.
31
We thus conclude that the district court's decision to assign Forest Hill students to the Lecompte schools and to close Forest Hill school was a reasonable exercise of its equitable discretion. The record in this case supports the court's conviction that of all the proposals offered, its plan can best be expected to achieve the mandated conversion to a unitary system.
32
AFFIRMED.
CLARK, Chief Judge, dissenting:
33
I respectfully dissent. The mandate of this court's prior panel, 646 F.2d 925, controls this panel just as it did the district court. Although the majority starts its reasoning by quoting a crucial paragraph from that mandate, it has not applied its letter or spirit to the district court's order on remand which is before us for review today.
34
Specifically, the prior mandate vacated the order closing the Lincoln Williams and Forest Hill schools and required the district court to: (1) give regard to neighborhood considerations for rural schools, 646 F.2d at 944; (2) take into consideration such equitable factors as "[t]he length and time of travel ... in light of the age of the children, and the risk to health and probable impingement on the educational process," id. at 939; (3) only employ the "harsh remedy" of closing rural schools "if absolutely necessary to achieve the goal of a unitary system after all other reasonable alternatives have been explored;" id. at 940; (4) "explicitly state its justification for ordering a school closed" id. at 940; and (5) reexamine its closing of Lincoln Williams and Forest Hill schools "in light of the full range of mitigating equitable considerations" (id. at 941) because the district court's findings that Lincoln Williams had a predominance of black pupils and that Lecompte Elementary was older than Forest Hill but was "much the better location for purposes of integration" formed an insufficient basis to sustain the closings, id. at 940.
35
On remand, the district court wrote a new, longer opinion in which it changed and added words but I cannot find in them even one change of any substance to show that court complied with these commands.
36
On this appeal the majority has impermissibly substituted its present approval for the prior panel's rejection of the same schools closing edict on the same basic district court findings and erroneous premises. The net result is that this court has now affirmed a district court order that failed to tailor its remedy to the constitutional wrong identified in this case. The consequences are that innocents suffer and the law is brought into disrepute. The judgment should have been vacated again and the cause remanded, this time with explicit directions to limit relief to an appropriate remedy.
37
Of course a court's equitable powers to remedy past constitutional wrongs are very broad. Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275-76, 28 L.Ed.2d 554 (1971). Of course all reasonable methods to achieve this end are available. North Carolina State Bd. of Education v. Swann, 402 U.S. 43, 46, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971). These are basic premises of school desegregation law. The Supreme Court and this court have often held that courts pursuing this goal may bus children, reshuffle faculty, cluster, pair, rezone and close schools. But a court's powers in this type of case are not unlimited. Rather, they are confined to proper objectives. In the case at bar, the court's task was not, as it declared, to achieve an integrated student body in every school, or even to remedy every problem of racial imbalance that may exist within the school system. Swann, supra 402 U.S. at 24, 91 S.Ct. at 1280. Rather, it was limited to eradicating segregation cause by past school board practices. Ross v. Houston Independent School District, 699 F.2d 218, 227-28 (5th Cir.1983). In school desegregation cases the court's unnatural role becomes that of a super school board and temporary school administrator. It is a role which must be played with circumspection and care for the damage which overbroad remedial bans do to children, parents and communities who have offended no one.
38
The existence of great power does not permit its fullest exercise in every case. Because the court has limited objectives and a limited role, the scope of the remedy it devises must be tailored to fit the nature and extent of the constitutional violation found. Hills v. Gautreaux, 425 U.S. 284, 293-94, 96 S.Ct. 1538, 1544-45, 47 L.Ed.2d 792 (1976). The prior panel mandate required the district court to reexamine that portion of its order closing Lincoln Williams and Forest Hill in light of the full range of mitigating equitable circumstances it described. It required the district court, not this appellate court, to explore all other reasonable alternatives before it reinstated the "harsh remedy" of "closing a facility built and maintained at the expense of local taxpayers." Not a single one of the "full range of mitigating, equitable circumstances" (and there were many) required to be considered was discussed or distinguished or applied. The district court really did no more than put the wine of new words in the old skin of school closings because it saw no other remedy to integrate Lincoln Williams.
39
When the district court reordered the closing of the Forest Hill and Lincoln Williams schools, these two communities lost their only schools. Children from both communities must now be bussed many miles from their homes. Expert evidence placed in this record on remand established that closing a town's only school, especially one located in a small settlement, traumatizes the whole town. The greatest costs are to the families that include school-aged children, but hurtful repercussions extend throughout the community.
40
Parents in both "burdened" communities, one predominately white, the other predominately black, asked the court to leave their schools open, at least for their youngest children. Their petitions were ignored. These children, ranging in age from kindergarten through early elementary grades, must rise early, board buses, drive past their community school houses and go into a distant town and then reverse the journey in the evenings. Some will spend two hours a day on the school bus. Their names are not recorded. Their family situations are not detailed. Their needs, their hopes, their rights are dashed without discussion. If a five-year-old gets sick or forgets her coat or her lunch and wants to contact her parents she must make a long distance telephone call to reach her home. It seems small solace for the majority to suggest that some such children may have high school-aged siblings who will be on the bus with them part of the way. Much more remarkable, I think, is the fact that the children, parents, and communities who are so damaged did not cause or contribute in any way to the conceived constitutional wrong the court sought to remedy. Indeed, the district court and the majority both state that the people of Forest Hill have been altogether law-abiding and free of guilt.
41
Why then have they been put to this grief? For integration, the district court said. It saw no other reasonable prospect to integrate Lincoln Williams because its prior order paring Lincoln Williams had been defeated by white flight. But the Cheneyville students and parents who now plead to keep their school did not leave it. Why must their plea to keep their school open go unheeded? At the opposite base of this triangle, the pleas of the Forest Hill students and parents who also want to keep their school were equally ignored. Why? Why must the "harsh remedy" be imposed on them without weighing the "full range of mitigating equitable considerations" they brought forward? "[T]o effect an equitable distribution of the burden" the majority says. I can see that the punishment inflicted on the citizens of Forest Hill is comparable to the punishment inflicted on Cheneyville, but I cannot detect a spark of equity in heaping the coals of sorrow on the heads of either community. The record shows without contradiction that the Forest Hill area became predominantly white because of a change in the community's economic-industrial conditions which had nothing to do with schools. Cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 436, 96 S.Ct. 2697, 2704-05, 49 L.Ed.2d 599 (1967). Neither the Lincoln Williams nor the Forest Hill school was constructed or maintained to evade desegregation. The school board has never used either school for racial purposes. The punishment of these innocents fits no crime of their or the district's making.
42
For eighteen years this school district has been under the injunctive edicts of federal courts. It has not violated one. The fault for any perceived shortcomings in the district, lies at the doorstep of the federal courts, not the school district, its staff or patrons. Moreover, courts delude no one but themselves when in the name of justice they make wholesale adjustments to the intimate, individual and differing rights of hundreds of citizens. If this latest edict proves nothing else, it will prove again that courts are a totally inadequate institution to resolve with broad injunctions the numerous, complex, interrelated rights which comprise a "school case."
43
The district court accepted as its "principal purpose ... the adoption of a plan which achieves the greatest amount of integration." This was wrong. Integration is not a constitutional command. One race schools which are not the result of past segregation do not keep a school district from being unitary. Swann, supra, 402 U.S. at 25-26, 91 S.Ct. at 1280-81. This false premise led the district court to close Lincoln Williams to its patrons. As errors are prone to do, it, in turn, caused the further error of closing Forest Hill to bring misery company. The two wrongs do not make a right.
44
More's the pity. Even accepting the district court's erroneous premise of a duty to integrate, its plan for achieving theoretical integration was not the best remedy available. A less disruptive solution was identified by the parties. Under the school board's third plan, children from predominantly black zones in the Lecompte areas could have been bussed to Forest Hill. This plan could have been supplemented in the manner suggested by a group of Cheneyville citizens who proposed that the Lecompte elementary schools be closed. If this approach had been used, that community could have retained a seventh and eighth grade school and four-year high school for their own children as well as those from Cheneyville and Forest Hill. Children from predominantly white areas in the Lecompte region could have been bussed to Lincoln Williams. Instead of closing the only schools in two communities, just one of the three Lecompte area schools would have been closed. Carter Raymond and Lecompte High could have continued to serve the area. Instead of bussing children from two communities, only children from one area would have had to be bussed. As the court aptly observed, the road mileage between these communities is no greater in one direction than the other. Statistically, the desired racial mixture could have been achieved in both schools.
45
The assumption of the district court and the majority that there was no alternative to closing Lincoln Williams was erroneous. The threat of flight by white children to be bussed from Lecompte to Lincoln Williams does not justify rejection of this plan any more than the threat that pupils from Forest Hill won't go to Lecompte Elementary or the threat that blacks from Cheneyville will not follow the court's plan. Of course the court was not required to ignore a likelihood of pupil flight. It had happened before. In a free country it may happen again. A court's school order can mandate county officials in the performance of their duties, it can map zone boundaries and it can fence in schools, but it cannot command a single student to go to a single school for a single day.
46
But just as United States v. Scotland Neck City Bd. of Education, 407 U.S. 484, 491, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1972) establishes that flight cannot be accepted as a reason for achieving anything less than complete uprooting of the dual school system, it cannot be accepted as a reason for reaching past the wrong to be remedied when a less disruptive, equally effective plan is available. It cannot do so because a remedy that exceeds the wrong to be righted violates clear precedent of the Supreme Court and this court. It cannot do so here because the district court's order disobeys the controlling mandate of the prior panel. The court did not demonstrate that its plan was more likely to be effective than the possible plan that would close only one of Lecompte's schools. Indeed, the record indicates quite to the contrary.
47
In thirteen years on this court I have participated in the affirmance of a number of public school desegregation plans. Most have been, as most are, successful in theory only. I nevertheless remain readily obedient to my obligation to follow precedent. But that does not keep me from knowing what everyone knows--zones, pairs, clusters and bussing are workable remedies for school desegregation only in extreme cases. When the problem is reduced to dealing with people of good will who have done no wrong, maximum use of the neighborhood school is the key to assuring equal educational opportunity. That equality of opportunity is the constitutional lodestar. In some cases, precedent and prior school district actions will proscribe the maximum preservation of neighborhood schools. This is clearly not such a case. The prior panel established that the district court should have followed its mandate. So should we.
1
499 F.Supp. 490 (W.D.La.1980), aff'd in part, rev'd in part and remanded, 646 F.2d 925 (5th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 650 (1982)
2
We earlier affirmed the district court's denial of the Forest Hill residents' motion to intervene. 646 F.2d at 941-42. On remand, the district court reconsidered the reasons underlying its initial ruling and granted the Forest Hill residents leave to intervene. The intervenors participated in the hearing on remand and in briefing and oral argument before this court
3
Since 1966, all high school students in this southeast portion of Rapides Parish have voluntarily attended the desegregated Rapides High School in Lecompte
4
In Rapides I we described the relevant features of the district court's original plan for desegregating several Rapides Parish schools, and the conditions the plan was designed to ameliorate:
Before promulgation of the plan the Ward 3 town of Lecompte contained three schools, Lecompte Elementary, Carter Raymond, and Rapides High School. Lecompte Elementary and Carter Raymond each served pupils in grades K-8 under earlier orders. Each school had a majority of black pupils in the range of approximately 60 per cent. The Lincoln Williams School in Cheneyville, some 10 miles to the southeast of Lecompte, served all area pupils in grades K-8. The school was ... approximately 93% black, and is the "spur" for additional relief in this area of the parish. About the same distance to the west of Lecompte is the community of Forest Hill, which contained a K-8 school with a black attendance percentage of only 8.3. High school students from both communities went on to Rapides High School in Lecompte. Northeast of Lecompte in Ward 2 is the community of Poland, which had a K-12 school with 9.6 percent black pupils in attendance.
The plan provided for Lecompte Elementary to become a K-3 facility, and for Carter Raymond to serve grades 4-8. Lincoln Williams was closed, and its K-8 pupils were transferred to the Lecompte schools. Forest Hill was also closed, with its pupils transferred to Lecompte Elementary and Carter Raymond. Pupils from the Poland School in grades 9-12 were shifted to Rapides High School.
646 F.2d at 933. All major provisions of this plan, together with certain minor amendments, were incorporated in the framework of the court's 1981 remedy.
5
That this action remains in the remedial phase distinguishes it from Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), where a unitary system had been achieved, and subsequent racial imbalances were precipitated by demographic changes rather than the acts or omissions of the school board. See United States v. Board of Education of Valdosta, Georgia, 576 F.2d 37 (5th Cir.), cert. denied, 439 U.S. 1007, 99 S.Ct. 622, 58 L.Ed.2d 684 (1978)
6
In arriving at this conclusion in 1980, the court took into consideration the likely recurrence of the "white flight" phenomenon if Lincoln Williams and Poland were clustered or paired. This rationale was reaffirmed in the court's post-remand decision. No objection has been interposed to the court's finding in this regard
Generally speaking, community opposition to desegregation which takes the form of white flight will not justify a district court's failure to compel the total elimination of a non-unitary school system. United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972). We have nonetheless held that the trial judge, in choosing among permissible plans, may select one calculated to minimize white boycotts. Stout v. Jefferson County Board of Education, 537 F.2d 800 (5th Cir.1976). Accord, Ross v. Houston Independent School Dist. (in seeking reduction in the number of one-race schools, the district court could not ignore diminished white enrollment attributable to "white flight"); United States v. DeSoto Parish School Board (a court need not ignore a likely danger of an exodus of white children from a school system). See Parents Assn. of Andrew Jackson High School v. Ambach, 598 F.2d 705 (2d Cir.1979); Higgins v. Board of Education of the City of Grand Rapids, 508 F.2d 779 (6th Cir.1974). Cognizant as we are of the deference to which the trial court's on-the-spot knowledge of this complex situation is entitled, Swann, we cannot gainsay its judgment that pairing or clustering with Poland would "in practice produce not more but less desegregation." Stout, 537 F.2d at 802.
7
Invoking a formidable array of Fifth Circuit precedent, the school board contends that Lincoln Williams could not be closed for reasons relating to its racial character. See Arvizu v. Waco Independent School District, 495 F.2d 499 (5th Cir.1974); Ellis v. Board of Public Instruction of Orange County, Florida, 465 F.2d 878 (5th Cir.1972), cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973); Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir.1971); Mims v. Duval County School Board, 447 F.2d 1330 (5th Cir.1971); Bell v. West Point Municipal Separate School District, 446 F.2d 1362 (5th Cir.1971); Gordon v. Jefferson Davis Parish School Board, 446 F.2d 266 (5th Cir.1971); Wright v. Board of Public Instruction of Alachua Co., Fla., 431 F.2d 1200 (5th Cir.1970); Robertson v. Natchitoches Parish School Board, 431 F.2d 1111 (5th Cir.1970); Hilson v. Ouzts, 431 F.2d 955 (5th Cir.1970); Carr v. Montgomery County Board of Education, 429 F.2d 382 (5th Cir.1970)
This line of authority prohibits a school board's closure of schools racially identifiable as "black" for discriminatory purposes, as well as judicial approval thereof, but does not diminish the district court's traditional authority to dismantle one-race schools as a palliative for segregation. See e.g., Swann; Morgan v. McDonough, 689 F.2d 265 (1st Cir.1982); Lemon v. Bossier Parish School Board. See also Mitchell v. McCunney, 651 F.2d 183 (3d Cir.1981) (closure of homogeneous black and white schools approved). It follows that the court's utilization of school closure as a remedial device, rather than as a means of perpetuating a dual system, did not, in contradistinction to the argument advanced by counsel for Forest Hills, function to deprive pupils of either school of their right to equal protection of the law.
8
We approved the district court's implementation of a parish-wide remedy in Rapides I, based on evidence that "[t]he entire parish operated as a dual segregated system in the past, and ... that the vestiges have not been eradicated 'root and branch' as required." 646 F.2d at 938. Once a constitutional violation of this dimension had been shown, the court was empowered to embrace Poland, Cheneyville, Lecompte and Forest Hill within a single remedial plan
9
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)
10
The intervenors attack the court's inclusion in its decree of the estimated 50 students who live in the Mill Creek, Bennett Bay and Blue Lake Road areas, to the west and south of Forest Hill. The government concedes that "the time and distance of busing these students would be considerable." As intervenors point out, no findings were made by the district court on the transportation burden, if any, sustained by these children. Forest Hill's evidence in this regard affords us little assistance, inasmuch as the bus drivers' trip tickets do not distinguish between elementary, junior high and high school children, all of whom ride the same buses. Nor does the map submitted provide a sufficient premise for evaluating the nature and extent of the burden imposed on the children vis-a-vis either their age, the putative health risks or any potentially deleterious effects upon the educational process. The testimony on this issue served only to describe the routes traveled by children living in the outlying environs of Forest Hill. In light of the paucity of evidence pertaining to the time and distance of travel for younger children residing in the foregoing areas, we cannot assess the equities of their assimilation in the court's tripartite desegregation program. Upon proper motion, however, the court may wish to reconsider its assignment of students from these remote localities to Lecompte schools
11
According to the intervenors, the district court's inspection of the Lecompte schools was an abuse of discretion. We are not persuaded. Forest Hill residents do not dispute the court's findings as to the adequacy of these schools, which findings are in fact corroborated by the proffered photographs. If Lecompte Elementary and Lincoln Williams were in disrepair or presented a palpable risk of harm, we are certain that the school board would not subject children to such hazards. Lemon v. Bossier Parish School Board
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805 S.W.2d 649 (1991)
305 Ark. 109
Billy R. REVELS, Appellant,
v.
Phillip B. KNIGHTON and Lenora A. Knighton, his Wife, Appellees.
No. 91-41.
Supreme Court of Arkansas.
March 25, 1991.
*650 William Randal Wright, Hope, for appellant.
Charles M. (Marc) Honey, Prescott, for appellees.
GLAZE, Justice.
The Hempstead County Circuit Court, sitting as a jury, found that the appellant destroyed trees on property owned by appellees. The court held the appellant's acts violated Ark.Code Ann. § 18-60-102 (1987), and under the authority of that statute, it awarded appellees treble damages in the amount of $5,220.00. Appellant appeals the lower court's decision, contending the court erred in awarding replacement costs of the trees as damages and in trebling the damages awarded.
At trial, the parties offered damage evidence regarding the appellant's removal of some large pine and oak trees growing on the appellees' property. Appellees' expert, over appellant's objection, was allowed to testify to the replacement costs of those trees (as shade trees), saying that the oaks were worth $200.00 to $700.00 and the pines bore a value of $300.00 to $600.00. Appellant's expert gave a value of $25.00 per tree based upon the trees' commercial or area sawmill prices. The parties' witnesses generally agreed that three to four oaks and three to four pines had been destroyed and removed. The trial court awarded appellees $1,500.00 in damages before trebling the amount under § 18-60-102. The court added $720.00 for costs the appellees apparently incurred for removing brush left from the appellant's bulldozer work in removing the trees. The $720.00 amount is not questioned in this appeal.
In the recent case of Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991), we adopted the rule that where ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees. Here, appellees offered evidence reflecting that they intended to use the property, bearing the oak and pine trees that were removed, as a trailer park, and their expert opined that the trees, as shade trees, were a plausible use for such a park.
The Worthington case did not involve § 18-60-102the statute relied on by appelleesbut that distinction requires no different result. Section 18-60-102(a) provides that if any person injures or destroys any tree growing or placed for the use of shade or timber on the land of another in which such person has no right or interest, the person so trespassing shall be liable to the injured party for treble the value of the "thing so damaged" with costs. While appellant argues that the only proper damages in this case should be the diminution in value to the property resulting from the damage, we have not read § 18-60-102 so narrowly.[1] In Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979), this court stated that there are two elements of recovery allowable under the statute (then Ark.Stat. Ann. § 50-105 (Repl.1971)). According to Stoner, a party can recover either the value of the trees or the damage to the market value of the land, i.e., diminution in value. See also Laser v. Jones, 116 Ark. *651 206, 172 S.W. 1024 (1915). Further, this court has also stated that, when considering damages under the statute, it is proper to consider any use to which the damaged property may be adapted. See Floyd v. Richmond, 211 Ark. 177, 199 S.W.2d 754 (1947); Laser, 116 Ark. 206, 172 S.W. 1024. Consistent with our understanding of the law and the facts in this case, we believe the trial court was clearly correct in awarding replacement costs for the trees destroyed by the appellant.
Appellant next questions the treble damages awarded by the trial court. Although § 18-60-102(a) provides for treble damages, appellant directs our attention to § 18-60-102(c) which, in essence, provides that if the defendant (appellant here) had probable cause to believe the land on which the trespass occurred was his own, then the plaintiff (appellees) shall recover single damages only. In construing this statutory language, we have said that our cases make clear that a necessary element to justify treble damages is intent of wrongdoing, though such intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Callaway v. Perdue, 238 Ark. 652, 385 S.W.2d 4 (1964).
In considering appellant's intent as it bears upon appellees' entitlement to treble damages, we review the evidence and all reasonable inferences therefrom in the light most favorable to the appellees and reverse only if the trial judge's decision is clearly erroneous. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). In doing so, the record reflects that the appellant hired a bulldozer owner to clear appellant's land. During his clearing the land, the owner of the bulldozer, Weldon McDowell, realized that, in following appellant's directions, he was going to cross appellees' property line, so he asked appellant to consult appellees concerning the exact line location. When appellant discussed the matter with appellees, appellees told appellant that he was "getting over on [appellees'] property," and asked him if he would wait two or three days so a survey could be taken to resolve any questions. Appellant declined, saying he spent all of the money on surveys and clearing that he was going to spend. Although appellant apparently had obtained an earlier survey of this property, he never referred to it before instructing McDowell to continue with the work.
In sum, appellees and McDowell had informed appellant that, if McDowell continued to clear the brush and trees as appellant directed, McDowell would be working on appellees' property. Confronted with this information and warnings, appellant still had McDowell complete the work as instructed. On these facts, the trial court, in trebling damages, found the appellant had been fully apprised of the property line claim of appellees before the damages were incurred, yet he proceeded to have his bulldozer operator cross the line to clear property anyway. We are unable to say the trial court was clearly erroneous.
We affirm.
NOTES
[1] There was some evidence that the appellees purchased the property with the trees for $150.00 and the property after the trees' removal was worth $600.00. In other words, appellant claims the appellees' market value of the property has actually increased and appellees bore no loss from the appellant's actions.
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309 F.2d 167
Geither HORN, Appellant,v.N. J. BAILIE, Arthur Greenwood, Marvin Carnahan, and The United States Fidelity & Guaranty Company, a corporation, Appellees.
No. 17731.
United States Court of Appeals Ninth Circuit.
October 11, 1962.
David J. Danelski, Stuart K. Nielsen, and Maurice Kadish, Seattle, Wash., for appellant.
Peterson, Taylor & Day, and Stanley D. Taylor, Pasco, Wash., for appellees.
Before MERRILL, BROWNING and DUNIWAY, Circuit Judges.
MERRILL, Circuit Judge.
1
The question in this civil rights action is simply whether under Washington law the statute of limitations has been tolled. The district court held that it had not and that the statute barred recovery. The action was dismissed. We conclude that this was error.
2
It is alleged that appellees, defendants below, are police officers who coerced appellant by trickery into confessing the commission of a murder in 1935, which murder he had not in fact committed. Appellant was tried, found guilty and sentenced to life imprisonment. He remained in prison at Walla Walla, Washington, until July 20, 1959, when he was released by writ of habeas corpus on order of the United States District Court for the Western District of Washington. On July 21, 1961, appellant brought this action for damages resulting from alleged violation of his constitutional rights.
3
The Civil Rights Act has provided no statute of limitations and accordingly state law is used. Holmberg v. Armbrecht, 1946, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743. Under Washington law the statute permits three years for the bringing of such an action as this. The action was brought within three years from appellant's discharge from prison and the question is whether the statute was tolled during his imprisonment.
Washington law provides, R.C.W. 4.16.190:
4
"Statute tolled by personal disability. If a person entitled to bring an action mentioned in this chapter * * * be at the time the cause of action accrued either under the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution under the sentence of a court for a term less than his natural life, the time of such disability shall not be a part of the time limited for the commencement of action."
5
Appellee contends and the district court ruled that since appellant had been imprisoned "in execution under the sentence of a court" for life, the statute was not tolled.
6
Appellant contends that since by the determination of the federal district court in habeas corpus, the sentencing court had been without jurisdiction, the sentence was void; that his imprisonment therefore was not in execution of a sentence but was "on a criminal charge" and that the statute was tolled.
7
With this we agree.
8
Appellee protests that the sentence was not void on its face but, under the general rules relating to judgments, was only voidable; that until that sentence was set aside by court action it remained valid and enforceable.
9
In our view, such distinctions are inappropriate here. Whether its invalidity appeared on its face or not, it is now well recognized that a sentence obtained through violation of constitutional rights is a nullity. See Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.
10
Reversed and remanded with instructions that the judgment of dismissal be set aside and for further proceedings.
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944 A.2d 810 (2007)
MAITLAND
v.
MAITLAND.
No. 2195 WDA 2006.
Superior Court of Pennsylvania.
November 27, 2007.
Affirmed, Reversed and Remanded.
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511 F.2d 448
167 U.S.App.D.C. 210
U. S.v.Hammond
74-1703
UNITED STATES COURT OF APPEALS District of Columbia Circuit
3/11/75
1
D.C.D.C.
AFFIRMED
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NUMBER 13-10-00051-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
NAOMI C. CARDONA, RUTH C. REYES,
AND EDWARD DINN, Appellants,
v.
EVITA GARCIA, INDIVIDUALLY AND
AS PERSONAL REPRESENTATIVE
OF ADAN CASTILLO CUEVAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
This is an appeal from a summary judgment (2009 Judgment) entered in a bill of
review and declaratory judgment action filed by appellee Evita C. Garcia, individually and
as personal representative of Adan Castillo Cueva (the Garcias). The trial court granted
summary judgment in favor of the Garcias. Through the 2009 Judgment, the trial court
vacated and set aside a judgment rendered on April 24, 2007 (2007 Judgment) that
denied the Garcias' request to partition the family home. Additionally, the trial court
declared that the Garcias' rights to the property had not been affected by the 2007
Judgment and that they had not been divested of any rights to that property.
Appellants Naomi C. Cardona, Ruth C. Reyes, and Edward Dinn (the Cardonas)
appeal the 2009 Judgment. By six issues, which we consider as five, the Cardonas
contend that (1) the Garcias failed to present summary judgment evidence in the bill of
review proceeding that they were without fault in failing to present a meritorious defense
in the 2007 proceeding, (2) the Garcias failed to present summary judgment evidence in
the bill of review proceeding that they exercised due diligence in pursuing their legal
remedies after the 2007 Judgment was entered against them, (3) the summary judgment
was improper because the Garcias' claim of judicial mistake does not qualify as an official
mistake for bill of review relief, (4) the Garcias' claims of fraud are based on events in the
2007 litigation and are thus claims of intrinsic fraud which do not support summary
judgment on this equitable bill of review claim, and (5) a declaratory judgment action may
not be used to collaterally attack or to interpret a prior final judgment. We reverse and
remand.
I. BACKGROUND1
A. THE 2007 PARTITION SUIT2
In 2007, the Garcias filed suit against their siblings, Cardona, Reyes, and Zulema
1
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
2
The 2007 partition suit, trial court cause number 07-163-B, was filed in the 117th Judicial District
Court of Nueces County, Texas.
2
C. Rios, to partition, by sale, the family home3 of the parties' parents, Eva C. and Manuel
Cuevas. The Garcias claimed that an undivided interest in the property passed to them
after their mother died intestate in 1975. However, the parties' father, who died testate in
1992, left the property to one child, Rios.4
The defendants in the 2007 partition suit filed a motion for summary judgment
alleging that (1) neither the Garcias nor the defendants had an interest in the real property
because it was sold on November 11, 2006; and (2) in the alternative, the Garcias were
not entitled to a partition of the property because they did not inherit their mother's
one-half interest of the community property in 1975, rather their father did. The Garcias
did not file a response and did not attend the April 24, 2007 hearing. 5 Following the
hearing, without stating the basis for its ruling, the trial court granted the motion which, in
effect, denied the Garcias' partition request. The Garcias timely filed a motion for
rehearing asking the trial court to set aside the April 24, 2007 judgment and to reset the
case for trial. The motion was overruled by operation of law. The Garcias did not
appeal from the 2007 Judgment.
B. THE 2009 BILL OF REVIEW AND DECLARATORY JUDGMENT SUIT6
In 2009, the Garcias filed a petition for bill of review seeking to set aside the 2007
3
The legal description of the family home is Lot Sixteen (16), Block Seven (7), Inwood Village Unit
One (1), a subdivision of the City of Corpus Christi, Nueces County, Texas. The street address is 4614
Vestal, Corpus Christi, TX 78416. It is undisputed that the property is no longer owned by any of the
parties.
4
Rios died during the course of the proceedings. Her son, Edward Jones Dinn, was named a
defendant in the 2009 proceeding and is a named party in this appeal.
5
The Garcias acknowledged receipt of notice of the April 24, 2007 hearing in their motion for
rehearing.
6
The 2009 suit was filed in the 117th District Court in Nueces County, Texas, as trial court cause
number 09-351-B.
3
Judgment. The petition alleged that, at the time the partition suit was filed, all siblings
were the undivided interest owners and heirs of their mother's one-half interest in the
community property. The petition claimed that the 2007 judgment was granted
erroneously because the Cardona defendants, acting by and through their attorney's
misrepresentation and fraud without any fault or negligence of the Garcias, sought
summary judgment based on section 45 of the Texas Probate Code that was effective
September 1, 1993, and not on the applicable section 45 of the code from 1975 that
vested interest in the Garcias upon their mother's death. In the alternative, the Garcias
sought a declaration that the statute applicable to their mother's estate was section 45 of
the Texas Probate Code, effective January 1, 1956 to September 1, 1993. The Garcias
also requested "a declaratory judgment to determine the rights and interest of the parties"
with regard to their mother's property.
The Garcias filed a motion for summary judgment claiming entitlement to a bill of
review because: (1) they had proven their meritorious defense to the 2007 Judgment,
i.e., that the trial court erred when it applied the wrong law; (2) the Cardonas engaged in
extrinsic fraud; and (3) the Garcias were not at fault. The motion did not, however,
address due diligence.
In the motion, the Garcias also requested that summary judgment be granted on
their declaratory judgment action, should the trial court deny their bill of review. The
Garcias stated that the basis for such declaratory relief was that "there [was] no issue of
fact that [their] partition suit did not determine the interest rights of [the Garcias]." In their
motion, the Garcias asserted that no request for a determination of ownership of the
property was made in the original answer to the partition suit, and therefore, if the bill of
4
review was denied, the trial court should "grant them a summary judgment for a
declaratory judgment that the order on the summary judgment did nothing to [a]ffect the
ownership interest rights of [the Garcias] and they [were] free to claim an interest on the
property of the [estate of their mother]."7 The Cardonas did not file a response to the
Garcias' motion for summary judgment and did not offer any evidence or attend the
hearing on the motion.
The trial court granted summary judgment on the Garcias' petition for bill of review
and set aside and vacated the original 2007 Judgment. It also granted summary
judgment on the Garcias' request for declaratory relief, declaring that the Garcias'
inheritance rights through their mother on the property in question had not been affected
by the 2007 Judgment and that they had not been divested of any property rights they had
or may have had in that property. The Cardonas appeal from the 2009 Judgment.
II. STANDARD OF REVIEW AND APPLICABLE LAW
When a trial court grants summary judgment in a bill of review proceeding, we
review the summary judgment using the ordinary summary judgment standards of review.
See Boaz v. Boaz, 221 S.W.3d 126, 130 (Tex. App.–Houston [1st Dist.] 2006, no pet.).
Declaratory judgments decided by summary judgment are also reviewed under the same
standards of review that govern summary judgments generally. See TEX. CIV. PRAC. &
REM. CODE ANN. § 37.010 (Vernon 2008); Ski River Dev., Inc. v. McCalla, 167 S.W.3d
121, 133 (Tex. App.–Waco 2005, pet. denied); In re Estate of Schiwetz, 102 S.W.3d 355,
7
The language in the Garcias' motion appears to be responsive to a proceeding brought in County
Court at Law Number 3, trial court cause number 45594-4, by Santa I. Gonzales, the current owner of the
real property at issue in this case. In that proceeding, Gonzales filed an application to determine heirship.
In her affidavit filed in support of her application, Gonzales claimed that "because the district court already
made the determination of the ownership of said Property, it would be res adjudicata [sic] to re-litigate this
matter."
5
365 (Tex. App.–Corpus Christi 2003, no pet.).
A trial court's grant of summary judgment is reviewed de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a traditional summary
judgment motion, the movant must "show that except as to the amount of damages, there
is no genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law on the issues expressly set out in the motion .…" TEX. R. CIV. P. 166a(c);
see Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
In the absence of a response to a traditional motion for summary judgment, as in
this case, a trial court may not grant a summary judgment motion by default when the
movant's summary judgment proof is legally insufficient; the motion must stand or fall on
its own merits. TEX. R. CIV. P. 166a(c); Rhone-Paulenc, Inc. v. Steel, 997 S.W.2d 217,
223 (Tex. 1999); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.
1993). And, when the nonmovant fails to respond, its grounds for appeal are limited to a
challenge of the legal sufficiency of the moving party's motion and supporting evidence.
McConnell, 858 S.W.2d at 343; see City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979); Shih v. Tamisiea, 306 S.W.3d 939, 944 (Tex. App.–Dallas
2010, no pet.); Tello v. Bank One, 218 S.W.3d 109, 118-19 (Tex. App.–Houston [14th
Dist.] 2007, no pet.). On appeal, however, "the movant still bears the burden of showing
that there is no genuine issue of material fact and that the movant is entitled to judgment
as a matter of law." Rhone-Poulenc, Inc., 997 S.W.2d at 223 (citing Nixon v. Mr. Prop.
Mgt. Co., 690 S.W.2d 546, 548 (Tex. 1985)).
"A bill of review is an equitable proceeding brought by a party seeking to set aside
a prior judgment that is no longer subject to challenge by a motion for new trial or appeal."
6
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam); King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Because the bill of review procedure
conflicts with the fundamental policy that judgments must become final, the grounds on
which a bill of review can be obtained are narrow. Chapman, 118 S.W.3d at 751 (citing
Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950)); Temple v.
Archambo, 161 S.W.3d 217, 222 (Tex. App.–Corpus Christi 2005, no pet.). "The rules
are not to be relaxed merely because it may appear in some particular case that an
injustice has been done." Alexander, 226 S.W.2d at 998; see Wembley Inv. Co. v.
Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam).
Traditionally, a bill of review requires proof of three elements: (1) a meritorious
defense to the underlying cause of action; (2) that was not asserted due to fraud,
accident, or wrongful act of an opponent, or official mistake; (3) unmixed with any fault or
negligence of the movant. Ross v. Nat'l Ctr. for the Employment of the Disabled, 197
S.W.3d 795, 797 (Tex. 2006) (per curiam); Caldwell v. Barnes, 975 S.W.2d 535, 537
(Tex. 1998). As part of the burden to obtain relief by bill of review, petitioners are also
required to prove that they used due diligence to protect their legal rights after judgment.
Wembley Inv. Co., 11 S.W.3d at 927; Barnes, 975 S.W.2d at 537; Mowbray v. Avery, 76
S.W.3d 663, 682 n.28 (Tex. App.–Corpus Christi 2002, pet. denied). "If legal remedies
were available but ignored, relief by equitable bill of review is unavailable." Wembley
Inv. Co., 11 S.W.3d at 927 (citing Barnes, 975 S.W.2d at 537); Rizk v. Mayad, 603 S.W.2d
773, 775 (Tex. 1980); Garza v. Atty. Gen. of Tex., 166 S.W.3d 799, 817-18 (Tex.
App.–Corpus Christi 2005, no pet.).
7
III. BILL OF REVIEW ANALYSIS
By their second issue, the Cardonas contend, in part, that the Garcias' failure to
present summary judgment evidence that established due diligence in pursuing their
legal remedies after the 2007 Judgment was entered against them is fatal to their claim
for relief through a bill of review proceeding. Under the facts of this case, this challenge
to the legal sufficiency of the Garcias' motion and supporting evidence to establish due
diligence is a proper ground for appeal, and we will review it accordingly. See
McConnell, 858 S.W.2d at 343.
Without addressing due diligence in their motion for summary judgment, the
Garcias concede that they "defaulted in the [2007] summary judgment proceeding."
Now, on appeal, they claim that they did, in fact, timely avail themselves of available
means to contest the 2007 Judgment when they filed their motion for rehearing. They
argue that by doing so they exercised due diligence, due diligence which allowed them to
proceed with a bill of review.8
As bill of review petitioners, the Garcias were "required to exercise due diligence in
pursuing all adequate legal remedies against a former judgment." Wembley Inv. Co., 11
S.W.3d at 927. As movants for summary judgment in this equitable bill of review
proceeding, the Garcias also had the burden to show, as a matter of law, that they
8
The Garcias also summarily respond that because the trial court applied an incorrect version of
section 45 of the probate code, the 2007 order granting summary judgment is void and not merely voidable;
therefore, due diligence was not necessary to attack a void judgment and did not preclude them from filing
a bill of review. See McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-11 (Tex. 1961) (explaining
when and how void judgments may be attacked). However, this responsive argument, without citation to
authority or to the record, is made for the first time on appeal, and we will not consider it. See Stiles v.
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) ("[A] summary judgment cannot be affirmed on
grounds not expressly set out in the motion.…"); see also TEX. R. APP. P. 38.1(i) (providing that an appellate
court will only consider contentions that are supported by clear and concise arguments with appropriate
citations to authorities and to the record).
8
diligently pursued all available legal remedies. See TEX. R. CIV. P. 166a(c); Wembley
Inv. Co., 11 S.W.3d at 927. In other words, the Garcias were required to prove, through
the summary judgment evidence, that they did not ignore any available legal remedies
but rather undertook to protect their legal rights. See Wembley Inv. Co., 11 S.W.3d at
927.
Considering the facts of this case and the heavy burden placed on the Garcias
because the grounds on which a bill of review can be obtained are narrow, see Chapman,
118 S.W.3d at 751, we cannot conclude that the Garcias established, as a matter of law,
that they diligently pursued all available remedies against the 2007 Judgment. The
record reveals that on May 23, 2007, after the trial court denied the Garcia's request for
partition, the Garcias timely filed a motion for rehearing. This motion was overruled by
operation of law. Although the Garcias were aware of the 2007 Judgment, as shown by
the filing of the motion, the record does not show what inquiries, if any, the Garcias made
regarding the status of the motion for rehearing or the need for a hearing on the motion.
The record does not show what other actions, if any, the Garcias took to pursue the relief
requested in their pending motion. Neither does the record establish whether the
Garcias filed an appeal in an effort to protect their legal rights after the 2007 Judgment
became final. Therefore, we conclude that a fact issue exists regarding due diligence.
The Garcias failed to meet their summary judgment burden to show that there is no
genuine issue regarding whether they used due diligence to protect their legal rights after
judgment and were entitled to a bill of review. See TEX. R. CIV. P. 166a(c); Provident Life
and Acc. Ins. Co., 128 S.W.3d at 216; Wembley Inv. Co., 11 S.W.3d at 927. We
conclude the trial court erred in granting summary judgment in favor of the Garcias
9
because they failed to conclusively establish each required element of their bill of review.
We sustain the Cardonas' second issue.9
IV. DECLARATORY JUDGMENT ANALYSIS
By their fifth issue, the Cardonas complain that the declaratory judgment action
may not be used to collaterally attack or interpret a prior final judgment; thus, summary
judgment was improper. This appellate challenge is not reviewable because the
Cardonas did not respond to the Garcias' motion for summary judgment and their
grounds for appeal are limited to challenges of legal sufficiency. See McConnell, 858
S.W.2d at 343. However, the Garcias must still show that there is no genuine issue of
material fact and that they are entitled to judgment as a matter of law. See TEX. R. CIV. P.
166a(c); Rhone-Paulenc, Inc., 997 S.W.2d at 223. Therefore, we will determine, by this
issue, whether the Garcias are entitled to judgment as a matter of law on their request for
declaratory relief.
In their motion for summary judgment on their declaratory judgment action, the
Garcias urged, in relevant part, that their motion should be granted "because there is no
issue of fact that the [2007] partition suit did not determine the interest rights of [the
Garcias]." The sole argument presented in support of this statement follows:
The … original answer to [the Garcias'] original suit to partition real property
did not ask for a determination of ownership of the property in question.…
Therefore, if [the Garcias'] request for bill of review is denied, [the Garcias]
are requesting that this Honorable Court grant them a summary judgment
for a declaratory judgment that the [2007] order on the summary judgment
did nothing to [a]ffect the ownership interest rights of [the Garcias] and they
are free to claim an interest on the property of the Estate of Eva C. Cuevas.
9
Having determined that fact issues remain regarding due diligence, we need not address the
Cardonas' additional issues that challenge the remaining elements necessary to a bill of review. See TEX.
R. APP. P. 47.1.
10
The only exhibit attached to their summary judgment motion which the Garcias claim
supports this argument is a copy of the original answer filed by defendant Rios. Our
review of the record, however, reveals no evidence supporting this generally stated
proposition.
Without more, we cannot conclude that the Garcias established, through their
summary judgment evidence, that there was no issue of fact that the 2007 partition suit
did not determine their interest rights. Therefore, without determining whether the
declaratory action was properly brought in the alternative to the bill of review proceeding,
we conclude that the Garcias' motion for summary judgment requesting declaratory relief
does not stand on its merits and was granted in error. We, therefore, sustain the fifth
issue on this basis.
V. CONCLUSION
Accordingly, we reverse the trial court's judgment vacating and setting aside the
2007 Judgment that denied the Garcias' request to partition the family home and
declaring that the Garcias' rights to the property had not been affected by the 2007
Judgment and that they had not been divested of any rights to that property and remand
for further proceedings consistent with this opinion.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
17th day of March, 2011.
11
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867 P.2d 12 (1993)
WESTERN GROUP NURSERIES, INC., an Arizona corporation, Plaintiff-Appellee,
v.
Alan J. POMERANZ; Estate of Alan C. Jacobsen; Larry P. Blinder; Bernard R. O'Donnell; R. James Nicholson; Gordon L. Cox; and Vaughn & Potter 84 Trees, Ltd., Defendants-Appellants.
Nos. 91CA1626, 91CA1978.
Colorado Court of Appeals, Div. V.
April 22, 1993.
Rehearing Denied June 10, 1993.
Certiorari Denied February 7, 1994.
*13 Berenbaum & Weinshenk, P.C., Martin D. Buckley, Denver, Treon, Strick, Lucia & Aguirre, Anthony R. Lucia, Phoenix, AR, for plaintiff-appellee.
David L. Honeck, Englewood, for defendants-appellants Alan J. Pomeranz, Estate of Alan C. Jacobsen, Larry P. Blinder and Bernard R. O'Donnell.
McKenna & Cuneo, I. Thomas Bieging, Stephen B. Shapiro, Denver, for defendant-appellant R. James Nicholson.
Robert Lynn New, Denver, Beigel & Sandler, Leigh R. Lasky, Diane J. Kliebard, Chicago, IL, for defendants-appellants Gordon L. Cox and Vaughn & Potter 84 Trees, Ltd.
Opinion by Judge METZGER.
Defendants, Alan J. Pomeranz, Estate of Alan C. Jacobson, Larry P. Blinder, Bernard R. O'Donnell, R. James Nicholson, Gordon L. Cox, and Vaughn & Potter 84 Trees, Ltd. (Colorado limited partners), appeal from the summary judgment entered in favor of plaintiff, Western Group Nurseries, Inc. (Western Group). We affirm.
This case involves a two-step transaction for the sale of nursery stock and other assets. In the first part of the transaction, Western United Nurseries, Inc. (Western United) sold nursery stock and other assets to World Nurseries, Inc. (World) for $22.1 million. The purchase price was payable as follows: $3 million in cash upon closing, a non-recourse promissory note of approximately $17 million, and the balance of $2.1 million to be paid out of the ongoing sale of certain nursery assets.
In the second part of the transaction, which occurred virtually contemporaneously with the closing on the first sale, World sold the assets to Arizona World Nurseries Limited Partnership (Arizona World) for approximately $33 million. The purchase price was payable as follows: $6.5 million payable in cash upon closing and a promissory note (the wraparound note) of $26.5 million. The wraparound note provided that each limited partner of Arizona World "shall be personally liable to the extent of $260,000 per unit of limited partnership interest...." It did not contain any restrictions on the right to sue the limited partners personally.
The non-recourse note given by World to Western United in the first transaction was secured by various assets pursuant to a security agreement (the World Security Agreement). The World Security Agreement granted Western United a security interest in World's rights in the nursery assets and the wraparound note.
*14 The World Security Agreement also provided in pertinent part:
To secure the timely payment of the Purchase Price ... [World] shall, and hereby does, grant, convey, assign, pledge and transfer to [Western United], a purchase money security interest in and to the [Nursery Assets] and the wraparound note except that [Western United] shall not have the right to sue the Limited Partners or General Partners of [Arizona World] personally thereon other than to the extent of payments made to them by [Arizona World] ... and agrees that such security agreement attaches upon the Closing of the Purchase Agreement. (emphasis added)
A supplemental agreement which actually pre-dated the World Security Agreement provided that the World Security Agreement:
[W]ill be amended ... to make clear that upon occurrence of an event of default under the Security Agreement, [Western United] shall only have the right to proceed against the limited partners of the maker [Arizona World] of the wraparound note (as defined in the Security Agreement) for cash distributions made to them which are not made from cash flow ... from sales of nursery stock and other plant materials in the ordinary course of business or from payments received on sale made pursuant to Sections 15 of the Purchase Agreement.
World then assigned and transferred the partnership agreement and wraparound note to Western United.
In February 1986, World defaulted on its obligations to Western United. Western United filed an action in Arizona against World and Arizona World, seeking to recover sums due under the wraparound note. The court granted Western United's motion for partial summary judgment, allowing it to foreclose its security interest in the wraparound note. The judgment also allowed Western United to request a Writ of Special Execution directing the sheriff to conduct a foreclosure sale of all the collateral described in the World Security Agreement.
Pursuant to the Writ of Special Execution, the Arizona sheriff took possession of the wraparound note and scheduled a sale for December 2, 1986.
On December 1, 1986, Western Group was formed. It was comprised of shareholders of Western United and its affiliates. The president of Western Group was also the president of Western United. Although Western United had requested the foreclosure sale, Western United did not purchase the interest of the judgment debtor (World) at the sale. Rather, Western Group purchased all of World's interest in the wraparound note at the foreclosure sale.
Western Group then filed suit against Arizona World and its limited partners in Arizona to enforce the wraparound note. The suit was dismissed without prejudice for lack of personal jurisdiction. Eventually in July 1989, the Arizona court accelerated the entire balance of the wraparound note and entered judgment in favor of Western Group and against Arizona World.
Western Group then sued the limited partners throughout the country for their purported pro rata liability on the wraparound note with differing degrees of success.
The existing action is a consolidation of the actions against the Colorado limited partners.
The Colorado limited partners each moved for summary judgment contending they had no liability to Western Group on the wraparound note. More specifically, the limited partners contended that under provisions of Article 3 of the Uniform Commercial Code (U.C.C.), the World Security Agreement and supplemental agreement restrict their liability.
Western Group filed a cross-motion for summary judgment contending that, under Article 9 of the U.C.C., it acquired World's interest and World had no restriction against suing the limited partners.
The trial court granted Western Group's motion for summary judgment finding that Article 9 of the U.C.C. governed this action and that, therefore, Western Group was not precluded from suing the limited partners. *15 The court then entered judgment in favor of Western Group.
I.
The Colorado limited partners first contend that Western Group was collaterally estopped from bringing this action and that, therefore, the court erred in granting plaintiff's motion for summary judgment. We disagree.
Collateral estoppel bars re-litigation of issues if: (1) the issue is identical to an issue actually and necessarily adjudicated at a prior proceeding; (2) the party against whom estoppel is asserted is a party or in privity with a party in the prior proceeding; (3) there was a final judgment on the merits; and (4) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Denver v. Block 173 Associates, 814 P.2d 824 (Colo.1991).
However, collateral estoppel is an equitable doctrine and need not be applied in every case. Thus, collateral estoppel need not be applied when a judgment is inconsistent with another judgment. See Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281 (1965).
Here, it is true that the court in Hauser v. Western Group Nurseries, Inc, 767 F.Supp. 475 (S.D.N.Y.1991), addressed the same issue presently before this court and decided the issues in favor of the limited partners.
In Hauser, plaintiffs, a limited partner and a general partner of Arizona World, filed a declaratory judgment action against Western Group seeking a determination of their liability under the wraparound note. The issue presented was whether Western Group could enforce the wraparound note against the limited partners to the extent of each limited partner's pro rata liability. And, there, as here, plaintiffs contended that the unambiguous language of the World Security Agreement precluded Western Group from proceeding against them.
Western Group raised several of the same contentions that it now raises before this court and the court rejected them, granting plaintiffs' motion for summary judgment. In doing so, the court found, inter alia, that the language of the Security Agreement clearly and unambiguously indicated the parties' intent to insulate the limited partners from personal liability. The court also found that Western Group was not a holder of the wraparound note and that, even if it was, it could not be a holder in due course. Finally, the court found, Western Group took the wraparound note with actual notice of the limited partners' defenses to the enforcement thereof.
In Western Group Nurseries, Inc. v. Henin, (N.Y.Sup.Ct. Index No. 3623-90, March 22, 1991), however, a New York Court reached a totally contrary result from that reached in Hauser, and entered judgment against the limited partners and in favor of Western Group.
Given these inconsistent results and the differing judgments by at least two courts of competent jurisdiction, we conclude that the trial court did not err in refusing to grant defendants' motions for summary judgment based upon collateral estoppel.
II.
Defendants next contend that the trial court erred in relying on Article 9 of the U.C.C. rather than on Article 3 of the U.C.C. in finding them personally liable under the wraparound note. We disagree.
Any transaction intended to create a security interest in personal property or fixtures, including instruments and general intangibles, is a security interest and is governed by Article 9 of the U.C.C. Section 4-9-102(1)(a), C.R.S. (1992 Repl.Vol. 2). See Colorado Leasing Corp. v. Borquez, 738 P.2d 377 (Colo.App.1986). Article 9 also applies to security interests created by contract, including pledge or assignment. Section 4-9-102(2), C.R.S. (1992 Repl.Vol. 2). A security interest is an interest in property which secures payment or performance of an obligation. Section 4-1-201(37), C.R.S. (1992 Repl.Vol. 2). Thus, the transfer of a note for security purposes is governed by Article 9. See Colorado Leasing Corp. v. Borquez, supra.
Section 4-9-504, C.R.S. (1992 Repl.Vol. 2) provides:
*16 (1) A secured party after default may sell, lease, or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing ...
(4) When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor's rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto.
Here, the World Security Agreement clearly expresses the parties' intent to create a security interest in the wraparound note in favor of Western United. In addition, the Arizona court ordered the wraparound note to be sold at a foreclosure sale. See § 4-9-501, C.R.S. (1992 Repl.Vol. 2). Thus, we perceive no error in the trial court's conclusion that the transactions created a security interest and that the provisions of Article 9 governed.
Nor did the trial court err in concluding that Western Group took the wraparound note free of the restriction against suing the limited partners. That restriction was a limitation on Western United, not on World. Under the plain language of § 4-9-504, the sale transferred all of World's rights in the wraparound note to Western Group and discharged Western United's security interest. Since the note did not restrict World from suing the limited partners, Western Group also was not restricted from suing them. Thus, the court did not err in granting Western Group's motion for summary judgment.
In reaching this conclusion, we reject defendants' contention that the court erred in not resolving this issue under Article 3 of the U.C.C.
While it is true that Article 3 governs the status of ownership and rights of persons in possession of negotiable instruments, it does not address the debtor's or creditor's interest in negotiable instruments acquired at foreclosure sales, nor does it address the effect of a foreclosure sale on the security interest.
Moreover, § 4-3-103, C.R.S. (1992 Repl. Vol. 2) (Official Comment 2) provides:
In the case of a negotiable instrument which is subject to ... article 9 because it is used as collateral, the provisions of ... [Article 3] continue to be applicable except insofar as there may be conflicting provisions in the ... Secured Transactions Article.
Thus, the provisions of Article 9 govern and defendants' contentions to the contrary are without merit.
III.
We also reject defendant Cox's contention that the issue of Western Group's fraud precluded the court from entering summary judgment.
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, or admissions together with any affidavits, establish there is no genuine issue of material fact and the movant is entitled to judgment as matter of law. See Peterson v. Halsted, 829 P.2d 373 (Colo.1992).
Here, defendant Cox contends that the trial court erred in granting Western Group's motion for summary judgment because a genuine issue of material fact exists as to his affirmative defense of fraud. To support this contention, Cox submitted a New York trial court's opinion in a case similar to the one before us, in which other limited partners had sued Western Group. In that opinion, the New York court denied Western Group's motion to dismiss several of the limited partners' claims, including the limited partners' fraud claim. Cox argues that, since the limited partners' fraud claim survived the motion to dismiss in the New York case, a genuine issue of material fact exists here so as to preclude the entry of summary judgment.
Upon reviewing the record, we reject Cox's contention and conclude that the court did not err in granting Western Group's motion for summary judgment. The New York court's order involved different limited partners and, therefore, was insufficient to substantiate Cox's fraud claim asserted in the case before us.
Moreover, Cox failed to file any affidavits or introduce any evidence of Western Group's alleged fraud as it relates to the limited partners involved in this proceeding in its summary judgment submissions. Cf. Goldman v. Union Bank & Trust, 765 P.2d *17 638 (Colo.App.1988) (genuine issue precluding summary judgment must be raised by specific factual allegations showing actual controversy). Accordingly, summary judgment was proper.
IV.
Finally, relying on the undisputed fact that the Colorado limited partners did not sign the note, defendant Nicholson contends that the trial court erred in concluding that privity of contract existed between him and Western Group on the wraparound note. However, Nicholson did not argue lack of privity of contract at trial, and accordingly, we decline to address it here. See First National Bank v. Union Tavern Corp., 794 P.2d 261 (Colo. App.1990).
In light of these conclusions, we need not address defendants' remaining contentions.
The judgment is affirmed.
RULAND and BRIGGS, JJ., concur.
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673 F.2d 1315
Petersonv.State of North Carolina
81-8152
UNITED STATES COURT OF APPEALS Fourth Circuit
2/2/82
1
E.D.N.C.
CPC DENIED--DISMISSED
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4653
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL RAMOND KELLY, a/k/a Michael Raymond Kelly,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:15-cr-00054-NCT-1)
Submitted: April 25, 2016 Decided: January 26, 2017
Before AGEE, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Terry M.
Meinecke, Assistant United States Attorney, Winston Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Ramond Kelly pled guilty, pursuant to a plea
agreement, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012). The district court
sentenced Kelly to a within-Guidelines sentence of 300 months’
imprisonment. Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal but questioning whether the
district court procedurally erred in declining to grant Kelly a
three-level downward adjustment for acceptance of responsibility
and whether Kelly’s sentence is substantively reasonable. Kelly
was advised of his right to file a supplemental brief, but he
did not do so. We ordered supplemental briefing on whether
Kelly’s North Carolina convictions for assault with a deadly
weapon inflicting serious injury, assault with a deadly weapon
with intent to kill, and voluntary manslaughter were properly
classified as violent felonies under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e) (2012). We affirm.
We review a sentence for reasonableness under a deferential
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Berry, 814 F.3d 192, 194-95 (4th
Cir. 2016). This review requires consideration of both the
procedural and substantive reasonableness of the sentence.
Gall, 552 U.S. at 51. In determining whether a sentence is
2
procedurally reasonable, we consider, among other factors,
whether the district court properly calculated the defendant’s
advisory Sentencing Guidelines range. Id. Only after
determining that a sentence is procedurally reasonable will we
consider its substantive reasonableness, “tak[ing] into account
the totality of the circumstances.” Id. “Any sentence that is
within or below a properly calculated Guidelines range is
presumptively [substantively] reasonable. Such a presumption
can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.) (citation omitted), cert. denied, 135 S. Ct. 421 (2014).
We turn first to the propriety of Kelly’s armed career
criminal designation. The parties agree that Kelly’s prior
North Carolina convictions for assault with a deadly weapon with
intent to kill qualify as violent felonies under the ACCA’s
force clause. See 18 U.S.C. § 924(e)(2)(B)(i). They also agree
that, because Kelly “has three previous convictions” for this
offense, “committed on occasions different from one another,” 18
U.S.C. § 924(e)(1), he qualifies as an armed career criminal.
We deem arguments not raised by the parties waived and limit our
review to the arguments raised in the parties’ briefs. Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009). Accordingly, we express no opinion on the designation of
3
Kelly’s other prior convictions as violent felonies and will not
disturb the district court’s decision to sentence Kelly as an
armed career criminal.
Next, we review the district court’s “acceptance-of-
responsibility determination for clear error.” United States v.
Burns, 781 F.3d 688, 692 (4th Cir.), cert. denied, 135 S. Ct.
2872 (2015). Under the Guidelines, a defendant is eligible for
a two-level reduction if he “clearly demonstrates acceptance of
responsibility for his offense.” U.S. Sentencing Guidelines
Manual § 3E1.1(a) (2014). And, if his offense level is greater
than 16, he is eligible for an additional 1-level reduction upon
the Government’s motion. USSG § 3E1.1(b). When determining
whether a defendant is deserving of the acceptance of
responsibility reduction, a court considers, among other
factors, whether the defendant voluntarily terminated or
withdrew from criminal conduct or associations. USSG § 3E1.1
cmt. n.1(B). Moreover, absent extraordinary circumstances, a
defendant is ineligible for the reduction when he receives an
enhancement for obstructing justice. USSG §§ 3C1.1, 3E1.1 cmt.
n.4; see United States v. Knight, 606 F.3d 171, 175 (4th Cir.
2010).
Here, Kelly did not terminate or withdraw from criminal
conduct or associations after his arrest. Instead, he and his
fellow inmates brutally attacked the same person who had been
4
the victim of the shooting that resulted in Kelly’s arrest for
the instant offense. This assault on a material witness
resulted in an offense-level enhancement for obstruction of
justice. Although Kelly insisted that he and the others
attacked the victim in self-defense, the video footage and an
email he sent the day after showed that the attack was revenge-
motivated and that Kelly was not remorseful for his conduct.
Because the obstruction of justice enhancement was warranted and
Kelly did not terminate or withdraw from criminal conduct or
associations, we conclude that the court did not clearly err in
determining that Kelly did not deserve a downward adjustment for
acceptance of responsibility.
We further conclude that Kelly has not rebutted the
presumption that his within-Guidelines sentence is substantively
reasonable. The court reasonably rejected Kelly’s assertion
that he is a changed man in light of his long history of using
firearms to terrorize and injure people and his recent
orchestration of the revenge-motivated attack on the victim.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Kelly, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Kelly requests that a petition be filed, but
5
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Kelly. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
6
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650 S.W.2d 561 (1983)
279 Ark. 183
James SURRIDGE, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 82-105.
Supreme Court of Arkansas.
May 9, 1983.
Rehearing Denied June 13, 1983.
*562 Harkey, Walmsley, Belew & Blankenship by John M. Belew, Batesville, for appellant.
Steve Clark, Atty. Gen. by William C. Mann, III, Asst. Atty. Gen., Little Rock, for appellee.
GEORGE ROSE SMITH, Justice.
Russell Ratliff, 61, had been a resident of Pine Bluff for some time before he disappeared on December 4, 1980. More than a month later his badly decomposed body was found by police officers on the Surridge property in Desha County, over 50 miles from Pine Bluff. James Surridge, the appellant, was charged with capital murder in the course of robbery. He was found guilty of first-degree murder and was sentenced to a 50-year term, to run concurrently with a commuted life sentence for murder from which he was on parole at the time of Ratliff's death. For reversal it is argued that the State's evidence was insufficient to present a jury question and that certain hospital records and x-rays should not have been considered by the medical examiner in identifying Ratliff's body.
First, the sufficiency of the evidence. The State's proof was entirely circumstantial in that there was no eyewitness testimony about the shooting. The jury was correctly instructed that circumstantial evidence must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. AMCI 106. On appeal, however, the judgment must be affirmed if the verdict is supported by substantial evidence. "Substantial evidence is that which is more than a scintilla and must do more than create a suspicion of the existence of the fact to be established; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). Evidence is not substantial if it leaves the fact finders "only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gives rise to a suspicion." Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979).
There is no possible doubt about Ratliff's having been murdered. There is no possible doubt that some person committed the murder by shooting Ratliff twice in the back of his head. The issue is simple: Was the evidence so evenly balanced that the jury had to resort to guesswork in finding that the crime was committed by Surridge rather than by someone else? No. We have no doubts about the sufficiency of the proof. In fact, we think the evidence clearly establishes Surridge's guilt to the exclusion of any other reasonable conclusion.
For several months before Ratliff's disappearance on December 4, he and Surridge, age 74, both living alone, had lived across the hall from each other in an 8-unit apartment house in Pine Bluff. During that fall Surridge made several inquiries about obtaining a gun, for protection and squirrel hunting. Some weeks before Ratliff's disappearance Surridge acquired a rifle with a detachable scope (telescopic sight). He showed the rifle to three persons who testified at the trial: Russell Ratliff's brother; the owner of the apartments; and the greatgrandson of Mrs. Jewell Cook, a lady whom Surridge was seeing about every day.
*563 In October, Russell Ratliff received $1,619 in a personal injury settlement. For a time he left the money with his lawyers for safekeeping, but in November he obtained the money from them and deposited the check in a bank.
Russell Ratliff, who had a drinking problem, called his brother, W.E., apparently in late November, and asked him to get a lawyer to defend Russell on a public drunkenness charge. W.E. went to Russell's apartment on December 1 and had to wait a few minutes until Surridge and Russell drove up in Surridge's pickup truck, saying they had been to the bank. In Surridge's presence Russell took two rolls of bills from his pockets and from one of the rolls handed W.E. two twenties and a ten to pay the lawyer's $50 fee.
On December 4, the day of Russell's disappearance, he called W.E. early in the morning and asked W.E. to take him to see a doctor. W.E. was unable to do so. Russell said he would get Surridge to take him. Russell did not have a car, and Surridge had often furnished him transportation. The State proved that Russell did go to the doctor that morning and was given three prescriptions, which he had filled at a pharmacy at about 11:00 a.m. There is no proof that he was ever seen alive again.
A day or two later W.E. went to Russell's apartment, but he was not there. W.E. visited with Surridge, who said that on Thursday (December 4) he had taken Russell to a doctor's office, a drugstore, and a grocery, where Russell had bought beer. Surridge said that when they got back to the apartment house there were two black men waiting in a gray pickup truck. Ratliff joined the two men, after telling Surridge that one of them had worked for him in the past.
W.E. continued to worry about Russell's absence and came to see Surridge daily until Surridge began to dodge him. On December 9, W.E. reported to the police that Russell was missing and gave them the information Surridge had supplied. A week or so later the police found Surridge, at Mrs. Cook's house. He talked freely, telling the police the same story he had told W.E. and adding that after dropping Ratliff near the apartment house he had himself gone to the Senior Citizens Center for lunch.
Eventually Surridge became the principal suspect. Among the incriminating facts discovered by the police and later disclosed to the jury were three in particular. One, Surridge's tale about Ratliff's having recognized one of the two black men was quite improbable. Ratliff himself had been unemployed for more than ten years, so it was hardly likely that his former employee, after that length of time, would turn up to renew Ratliff's acquaintance at the very moment when Surridge needed someone to blame for Russell's disappearance. Two, the Senior Citizens Center kept records which indicated that Surridge had not come for his meal on December 4. Third, Surridge had openly displayed his .22 rifle when he had no motive for murder, but after Ratliff's disappearance Surridge denied to the police that he had owned or possessed a rifle. It is a familiar rule that a defendant's false and improbable statements explaining suspicious circumstances against him are admissible as proof of guilt. Jones v. State, 61 Ark. 88, 101, 32 S.W. 81 (1895); see also Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982).
On January 6, 1981, Desha County officers and Pine Bluff officers searched the Surridge property. It is deserted and remote from any town. It is reached by traveling 1.5 miles east from Rohwer to the Mississippi River levee and then 4.4 miles south along the road on the levee. The Surridge property is next to the levee. The house, 439 feet west of the levee, had once been occupied by Surridge's brother, but it had been vacant for almost 20 years. The land had grown up in weeds and bushes. The police found Ratliff's body 84 feet north of the house. The weeds were over six feet high and so thick that one had to be "almost on top of the body" to see it. Owing to the cold there was very little odor. The body was clothed, with nothing in the pockets. Next to the body were a half-used matchbook and a beer can half full. The *564 only witness for the defense testified that fingerprints on the can were not Surridge's. Whether they were Ratliff's is not shown; the medical examiner's assistants could not raise fingerprints from the decomposed body.
Surridge was arrested on January 7 and readily consented to a search of his apartment, saying he had nothing to hide. In the apartment the officers found a Glenfield scope for a .22 rifle, on the floor under a dresser. They also saw some matchbooks, the significance of which they did not then realize. A week later they went back and got the matchbooks, which were of an unusual design that matched the one found by Ratliff's body.
There was expert testimony that death was caused by two .22-rifle shots into the back of Ratliff's head, at such close range that the weapon was in contact with the skin. The fragments of the bullets could have been fired from a Glenfield rifle or any one of three other makes. The date of death was fixed as having been between December 3 and December 10.
No possible suspect except Surridge himself is shown to have been familiar with the Surridge property. Mrs. Cook and Surridge went to Desha County twice in the fall to visit Surridge's friends who lived five or six miles from the Surridge land, but they did not go to the Surridge property on those trips. Mrs. Cook testified they went back on New Year's Day, but spent only about 15 minutes there looking at the house, which Surridge talked about repairing if the two of them should marry. Surridge also took Ratliff to Desha County in about October, but there is no indication that they visited or had any reason to visit the deserted Surridge property.
We need not narrate the proof in complete detail. It was argued to the jury and again here that the unidentified black men may have murdered Ratliff, but that argument rests only on Surridge's unsworn statements and fails for want of any indication that either the men or Ratliff could somehow have found the way to the Surridge property, for no apparent reason.
By contrast, the State proved that Surridge had robbery as a possible motive, that he was the last person known to have seen Ratliff alive, that he had a rifle similar to the one that was used, that he denied that incriminating fact, that he had the opportunity to commit the crime, that he alone was familiar with the Surridge property over 50 miles from Pine Bluff, and that the telltale scope and matchbooks were in his apartment. The defense stresses the fact that the weapon was never found, but that argument cuts both ways. In the fall Surridge wanted to own a rifle and openly displayed it. But after the murder it would have been incriminating and could readily have been disposed of as Surridge drove homeward along the river for more than four miles. To say that the jury was confronted with a choice between two equally reasonable explanations of the murder appears to us, as it did to the jurors, to be a wholly untenable position. In fact, any attempt to construct an alternative theory, such as that the black men somehow went to the Surridge property and killed Ratliff, necessarily involves unfounded speculation and conjecture.
The appellant's other point for reversal questions the trial judge's action in permitting Dr. Malak, the state medical examiner, to identify the body by comparing x-rays taken during the autopsy with x-rays of Russell Ratliff that Dr. Malak had obtained from St. Vincent Hospital in Little Rock. The argument is that under Uniform Evidence Rule 803(6), Ark.Stat.Ann. § 28-1001 (Repl.1979), the custodian of the hospital x-rays should have been called to identify them as records made in the usual course of business. That rule, however, has been modified by Act 255 of 1981, which permits hospital records to be authenticated by an affidavit of the custodian with the same effect as if the custodian were present and testified to the matters stated in the affidavit. Ark.Stat.Ann. § 28-935 to -943 (Supp.1981). That statutory procedure was followed in this case; so Dr. Malak's comparison of the two sets of x-rays, which he showed to be identical, was proper. Moreover, *565 Uniform Evidence Rule 703 provides that an expert witness may base his opinion upon facts or data not admissible in evidence if of a type reasonably relied upon by experts in the particular field. The St. Vincent records and x-rays were not introduced in evidence, but they were marked for identification and are in the record. They, together with the medical examiner's testimony, form an adequate basis for the identification of the body.
Affirmed.
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NO. 07-05-0131-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 31, 2006
______________________________
RUDY BYRON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 49,447-E; HON. APE LOPEZ, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Rudy Byron (appellant) pled guilty to the offense of possessing over 50 pounds of
marijuana. He challenges his conviction by contending the trial court erred in denying his
motion to suppress. We overrule his issue and affirm the judgment.
Background
Appellant was stopped by a trooper on Interstate 40 for a traffic violation. After
issuing appellant warning tickets, the officer asked for consent to search appellant's
vehicle. When appellant refused, the officer detained him an additional eight minutes to
wait for a drug detection dog to be brought to the scene and sniff the vehicle. Upon its
arrival, the dog sniffed the vehicle and indicated the presence of drugs. Fifty-three pounds
of marijuana subsequently were found in it.
Law and Its Application
We review the trial court's ruling on a motion to suppress under the standard
announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Thus, we give
almost total deference to the trial court's findings of historical fact and review de novo its
application of the law to the facts. Id. at 89.
Appellant does not challenge the legality of the initial stop but contends that his
continued detention for the canine officer once he had received the warning tickets was
unjustified. A temporary detention to allow an olfactory inspection by a police dog trained
to detect the odor of illegal narcotics does not violate the Fourth Amendment when based
on reasonable suspicion that narcotics are present. Crockett v. State, 803 S.W.2d 308,
311 n.7 (Tex. Crim. App. 1991). After an initial traffic stop, an officer is entitled to rely on
all of the information obtained during the course of his contact with the driver in developing
the articulable facts that justify a continued detention. Razo v. State, 577 S.W.2d 709, 711
(Tex. Crim. App. 1979); Powell v. State, 5 S.W.3d 369, 377 (Tex. App.-Texarkana 1999,
pet. ref'd), cert. denied, 529 U.S. 1116, 120 S.Ct. 1976, 146 L.Ed.2d 805 (2000).
Furthermore, he is entitled to request a driver's license, insurance papers, information on
the ownership of the vehicle, the driver's destination, and the purpose of the trip. Powell
v. State, 5 S.W.3d at 377; Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.-Fort Worth
1998, pet. ref'd); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.-Tyler 1996, no pet.). It
is also reasonable to check for outstanding warrants. Powell v. State, 5 S.W.3d at 377;
Smith v. State, 840 S.W.2d 689, 692 (Tex. App.-Fort Worth 1992, pet. ref'd); Petty v.
State, 696 S.W.2d 635, 639 (Tex. App.-Dallas 1985, no pet.).
We believe that from the totality of the circumstances, the officer had a reasonable
basis to detain appellant here. The only witness at the suppression hearing was Officer
Steve Davis. He recited the reasons which caused him to suspect that contraband might
be found in the vehicle. They included 1) appellant rapidly exiting the highway when Davis'
vehicle approached appellant's, 2) appellant claiming he had done so because he needed
to purchase gas though his gas tank was three-quarters full, 3) appellant being "unduly
nervous," i.e. sweating even though it was approximately 7:00 a.m. on a cool March day,
4) appellant, 70 and retired, claiming to have left his home in Indiana on March 4 to see
his daughter in a basketball game in Arizona on March 6th, 5) appellant later claiming that
he went to Arizona because his daughter was hurt in a basketball game, 6) evidence that
the car purportedly used to travel to Arizona was actually rented on March 7th or a day after
the alleged game, 7) the absence of appellant's name on the car rental agreement as
either the lessee or a designated driver, and 8) the generally confusing or "nonsensical"
nature of appellant's answers to the officer's questions. From the totality of these
circumstances, we believe the officer had a reasonable suspicion upon which to detain
appellant for the additional eight minutes. See Estrada v. State, 30 S.W.3d 599, 603 (Tex.
App.-Austin 2000, pet. ref'd) (holding that there was reasonable suspicion to detain when
the officer observed the presence of carpet cleaner and air freshener which are used to
hide the odor of drugs, the driver and passenger were nervous, and the statements of the
driver as to where he had been and where he was going were confusing, contradictory, and
inconsistent with those of the passenger); Powell v. State, 5 S.W.3d at 378-79 (holding that
the officer had a reasonable suspicion of criminal activity based on the defendant's
nervousness, the conflicting stories of the defendant and his passenger about the details
of their trip, the defendant's statement that he had never been arrested when the officer
found out by computer that he had, and the lack of registration of the car to either
occupant).
To the extent that appellant relies on McQuarters v. State, 58 S.W.3d 250 (Tex.
App.-Fort Worth 2001, pet. ref'd) to contend otherwise, we find the case distinguishable.
Unlike the circumstances here, those present in McQuarters did not include the officer
catching the detainee in a lie; that missing indicia was of import to the McQuarters court.
Id. at 257. And, it is present here. Nor is Wolf v. State, 137 S.W.3d 797 (Tex. App.-Waco
2004, no pet.), another case cited to us by appellant, controlling. There, the only indicia
present were nervousness and extreme cooperation. Id. at 804. We have more here,
such as deception by appellant and a vehicle rented by some third party without
designating appellant as a driver. (1)
Accordingly, we overrule appellant's issue and affirm the judgment.
Brian Quinn
Chief Justice
Do not publish.
1. Evidence of deception and contradictory stories were also lacking in Davis v. State, 947 S.W.2d 247
(Tex. Crim. App. 1997) and Veal v. State, 28 S.W.3d 832 (Tex. App.-Beaumont 2000, pet. ref'd.), other of
appellant's cases.
854, 858 (Tex.App.-Houston [1st Dist.] 1991, no writ) (on
remand). In setting child support payments, a trial court is accorded broad discretion and,
absent a clear abuse of discretion, the trial court's order will not be disturbed on appeal.
See DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.), and In the
Interest of P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.). In deciding
whether a trial court has abused its discretion, we must first determine whether the court
acted without reference to any guiding rules or principles, in other words, arbitrarily or
unreasonably. DuBois, 956 S.W.2d at 610. In making that decision, we must view the
evidence in a light most favorable to the court's action and indulge every legal presumption
in favor of the judgment. Id. If some probative and substantive evidence supports the
judgment, the trial court did not abuse its discretion. Id.
We do not agree with Derek's contention that the additional support for the minor
disabled child and the retroactive child support orders were improper because that relief
was not specifically requested and therefore he had no notice of either claim. The trial
court acted within the guidelines set out in the Family Code. With regard to the additional
support of the disabled minor, Texas law generally allows a court to order periodic child
support payments in an amount other than those established by the guideline if the
evidence rebuts the presumption that their application is in the best interest of the child
and justifies a departure from the guidelines. Tex. Fam. Code Ann. § 154.123 (Vernon
1996). One of the enumerated factors the trial court may consider is any special or
extraordinary educational, health care, or other expenses of the parties or of the child. Id.
There was evidence here that the child was mentally retarded and requires special care.
The trial court did not abuse its discretion in awarding additional support for the disabled
minor child.
Likewise, the trial court did not abuse its discretion in awarding the retroactive child
support. The Family Code provides that when determining retroactive child support, the
court shall consider whether the obligor has provided actual support or other necessities
before the filing of the action. Tex. Fam. Code Ann. § 154.131(b)(4) (Vernon 1996). At
trial, Alice presented evidence that Derek had failed to provide support for the seven
months preceding trial. Under this circumstance, the trial court did not abuse its discretion
in awarding retroactive child support. Derek's third issue is overruled.
In sum, all of Derek's issues are overruled and the judgment of the trial court is
affirmed.
John T. Boyd
Chief Justice
Johnson, J., concurs.
Do not publish.
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622 F.2d 807
CIUDADANOS UNIDOS DE SAN JUAN et al., Plaintiffs-Appellants,v.HIDALGO COUNTY GRAND JURY COMMISSIONERS et al.,Defendants-Appellees.Robert CABALLERO et al., Plaintiffs-Appellants,v.Dellis PRATER et al., Defendants-Appellees.
Nos. 77-3321, 78-1394.
United States Court of Appeals,Fifth Circuit.
July 31, 1980.
James C. Harrington, San Juan, Tex., Bruce J. Ennis, Joel M. Gora, American Civil Liberties Union, New York City, for plaintiffs-appellants.
Nancy M. Simonson, Ed Idar, Jr., Asst. Attys. Gen., Austin, Tex., for defendants-appellees.
Appeals from the United States District Court for the Southern District of Texas.
Before GOLDBERG, FAY and ANDERSON, Circuit Judges.
GOLDBERG, Circuit Judge:
1
Almost 800 years ago, the Magna Charta proclaimed, "No free man shall be . . . imprisoned . . . or in any way destroyed, except by the lawful judgment of his peers or (and) by the law of the land."1 From this seed planted in the early spring of English legal culture has grown our "very idea of a jury . . . a body of men composed of the peers or equals of the persons whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status as that which he holds." Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). And in its transplanted soil, this growth has flourished; our courts have recognized its crucial importance to our system of justice, beyond the rights of any particular criminal defendant: "For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it, but is at war with our basic concepts of a democratic society and a representative government." Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940). See generally Labat, supra, 365 F.2d at 711.
2
Almost three years ago, the Supreme Court applied these principles to reverse the conviction of a criminal defendant in Hidalgo County, Texas, on the ground that Mexican-Americans had been unconstitutionally excluded from the grand jury that indicted him. See Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). The cases before us require that we again trek to Hidalgo County with a stop, as well, in neighboring Willacy County in vindication of our "very idea of a jury." Appellants in the cases before us filed civil actions seeking to establish that the grand juries convened in those counties were composed in contravention of the Constitution's requirements because four identifiable groups in the community Mexican-Americans, women, young people and poor people had been excluded from consideration for service. The district court dismissed their complaints on the ground that they presented no justiciable controversy. From these dismissals, appellants in both cases seek our review. Because we find the cases justiciable, we reverse.
I.
3
A. The courts have on numerous previous occasions described and evaluated the operation of the Texas system of grand juror selection. See, e. g., Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966), cert. denied, 386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135 (1967). Because a major issue in the cases before us is the amenability of the Texas system to injunctive relief and because the system was modified in some respects in 1979, we again must look closely at how it functions.2 Prior to September 1, 1979, and at the time this action was filed, Texas employed exclusively the "key man" method of grand juror selection, "which relies on jury commissioners to select prospective grand jurors from the community at large." Castaneda, supra, 97 S.Ct. at 1275 (footnote omitted). See Tex.Crim.Proc.Code Ann. Art. 19 (Vernon 1977). In 1979, however, Texas amended its selection laws to make the use of this method optional with the state district judge. See Tex.Crim.Proc.Code Ann. Art. 19.01(b) (Vernon Supp.1980).3 In lieu of use of the key man system, the state district judge may use the same random selection system used for selection of jurors in civil cases in Texas. See note 3 supra. Since the challenges here are directed solely to alleged abuses occurring in the use of the key man system in the Texas counties of Hidalgo and Willacy, we focus on the manner in which that system operates.
4
The state district judge initiates the process by appointing three to five persons to serve as grand jury commissioners. See Tex.Crim.Proc.Code Ann. Art. 19.01 (Vernon 1977).4 The commissioners in turn choose "not less than 15 nor more than 20 persons from the citizens of different portions of the county to be summoned as grand jurors." Tex.Crim.Proc.Code Ann. Art. 19.06 (Vernon 1977).5 The statutes nowhere specify the manner in which the jury commissioners are to select the names of potential grand jurors to be placed on the grand jury "list,"6 nor are the jury commissioners required to use any particular source for names to be placed on their list.7 The mode of selection of potential grand jurors is thus left entirely to the discretion of the jury commissioners.
5
For a description of the remainder of the relevant selection procedures, we quote from Castaneda, supra, 97 S.Ct. at 1275:
6
When at least 12 of the persons on the list appear in court pursuant to summons, the district judge proceeds to "test their qualifications." Art. 19.21. The qualifications themselves are set out in Art. 19.08: a grand juror must be a citizen of Texas and of the county, be a qualified voter in the county, be "of sound mind and good moral character," be literate, have no prior felony conviction, and be under no pending indictment "or other legal accusation for theft or of any felony." Interrogation under oath is the method specified for testing the prospective juror's qualifications. Art. 19.22. The precise questions to be asked are set out in Art. 19.23, which, for the most part, tracks the language of Art. 19.08. After the court finds 12 jurors who meet the statutory qualifications, they are impaneled as the grand jury. Art. 19.26.8
7
B. We next examine the allegations of the complaints in the two cases. In Ciudadanos de San Juan v. Hidalgo County Grand Jury Commissioners (the Hidalgo County case), No. 77-3321, the appellants, plaintiffs below,9 brought suit individually and as class representatives to obtain monetary,10 injunctive and declaratory relief to redress the systematic exclusion or underrepresentation of four classes of qualified individuals from Hidalgo County grand juries: Mexican-Americans (or those bearing Spanish-surnames); women; young people (those between the ages of 18 and 28); and poor people (those having incomes below the government designated poverty level).11 Appellants allege that a pattern and practice of systematic exclusion or underrepresentation of the four named groups is established by statistics showing the actual operation of the grand juror selection process over the past ten years and that this pattern and practice will continue. They allege further that this systematic exclusion or underrepresentation directly harms appellants and the classes they represent by denying them equal consideration "for grand jury service solely because of their sex, age, income, or national origin," and conclude that this injury amounts to a denial of due process and equal protection of the laws under the fourteenth amendment to the United States Constitution. Named as parties defendant are the jury commissioners of Hidalgo County, in their individual and official capacities, and the judge of the 93rd Judicial District of Texas in his official capacity.12 Appellants also seek relief against the successors in office of all defendants.
8
The complaint in Caballero v. Prater (the Willacy County case), No. 78-1394, differs in only a few noteworthy respects from that in the Hidalgo County case. While the named plaintiffs13 and the alleged statistical disparities are, of course, different, this complaint alleges a similar continuing, ten-year pattern of systematic exclusion or underrepresentation of the same four classes of individuals from consideration for grand jury service. For present purposes, the most significant difference between the two complaints is that, in this case, appellants did not name the state district judge as a defendant; rather they sued only the jury commissioners of Willacy County in their individual and official capacities.14 The relief sought is essentially similar to that requested in the Hidalgo County case, although there is here no request for monetary damages.15 Appellants in this case also sought relief against appellees' successors.
9
Because of the close similarities between the complaints, they may, for most purposes, be treated together in our consideration of these cases. Indeed, the district court dismissed the Willacy County case sua sponte on the basis of its opinion in the Hidalgo County case.
10
C. The district court did not find that the facts alleged, if proven, would be inadequate to establish a prima facie case of discriminatory exclusion from grand jury service in Hidalgo and Willacy Counties; rather, it held that for a number of reasons the cases were not appropriate for resolution in the federal courts. The district court indicated that, in its opinion, "the most important aspect" of these cases was that, in order for a case to be justiciable, it "must present a set of circumstances which will allow the Court to fashion a remedy, and it is this Court's opinion that this case does not present a controversy which lends itself to 'specific relief through a decree of a conclusive character,' " quoting Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). The district court suggested that plaintiffs faced an initial obstacle by virtue of their lack of standing, because they actually sought relief for present and prospective criminal defendants, not for themselves. More fundamentally, however, the district court declared that it was "unable to formulate and supervise an injunction which would be an effective response to Plaintiff's request that this Court enjoin the Defendant Jury Commissioners and their successors from excluding any cognizable class or group from grand jury service." This holding rested upon the court's belief that the discretion inherent in the Texas grand juror selection process rendered it unamenable to injunctive relief, especially since the statutory scheme had been held facially constitutional. See note 2 supra. Because it thought any relief it might attempt to institute would too greatly intrude upon the state's management of its affairs, the court also suggested that some form of abstention might be appropriate.16
11
Appellees have attempted in this court to buttress the district court's conclusions, and they suggest, in addition, that no case or controversy presently exists because, for various reasons, the appellants' claims are either moot or not ripe. After carefully considering all these contentions, we must disagree with the holdings of the district court and the arguments of appellees. We think appellants in both cases have presented a justiciable controversy appropriate for resolution in the federal courts.
II.
12
A. Appellees' first argument that no justiciable claims are presented derives primarily from their contention that the complaints on their face fail to show a live controversy between the appellants and appellees. First, appellees suggest appellants are not the proper parties to maintain these suits. Then, relying primarily on the Supreme Court's decisions in O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), and Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974), appellees argue that appellants' only allegations are of past exposure to illegal conduct in the administration of the grand juror selection scheme and that the complaints provide no basis for inferring that this illegal conduct does now or will hereafter persist. Appellants' subjective fears of continued discrimination, appellees assert, cannot create a live case or controversy. Correlatively, appellees contend that any discrimination practiced in the past was personal to the previous jury commissioners and thus gives rise to no inference that the present commissioners or their successors will continue these practices. We find that these contentions misrepresent the allegations of the complaints, particularly when these allegations are read in light of the Texas statutory scheme. Properly construed, the complaints present a live case or controversy between appellants and appellees within the meaning of Article III of the Constitution.
13
We turn first to O'Shea, supra, the case relied upon by appellees, for a digest of the relevant constitutional requisites for a viable case or controversy. There the Court stated:
14
Plaintiffs in the federal courts "must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction." Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). There must be a "personal stake in the outcome" such as to "assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Nor is the principle different where statutory issues are raised. Cf. United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973). Abstract injury is not enough. It must be alleged that the plaintiff "has sustained or is immediately in danger of sustaining some direct injury" as the result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923). The injury or threat of injury must be both "real and immediate," not "conjectural" or "hypothetical." Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); United Public Workers v. Mitchell, 330 U.S. 75, 89-91, 67 S.Ct. 556, 564-565, 91 L.Ed. 754 (1947). Moreover, if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class. Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550-551, 7 L.Ed.2d 512 (1962); Indiana Employment Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973). See 3B J. Moore, Federal Practice, P 23.10-1, n.8 (2d ed. 1971).
15
Id. at 675 (footnotes omitted). From this concatenation of principles, we derive the two basic constitutional requisites that a plaintiff must meet before invoking the jurisdiction of the federal courts: the plaintiff must show that the controversy is a "live" one and that he possesses a legally cognizable interest which gives him a "personal stake" in the outcome.17
16
1. Assuming arguendo for the moment that appellants' claims were presented in the context of a live case or controversy, we think it clear that the named appellants, and therefore the classes they claim to represent, see O'Shea, supra, 94 S.Ct. at 675, have the kind of legally cognizable interest that gives them a personal stake in the outcome.18 Our inquiry here is, in essence, whether appellants are proper parties to bring these suits.
17
The district court concluded that the proper parties to bring these suits were not those who had been discriminatorily excluded from consideration for grand jury service, but were those who had been indicted by unconstitutionally composed grand juries. As a proposition of law, this is simply incorrect. In Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), and Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), the Supreme Court expressly held that civil suits like those before us could be maintained by the victims of the state's exclusionary practices. In Carter, the Court stated:
18
Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion. Surely there is no jurisdictional or procedural bar to an attack upon systematic jury discrimination by way of a civil suit such as the one brought here. The federal claim is bottomed on the simple proposition that the State, acting through its agents, has refused to consider the appellants for jury service solely because of their race. Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise. Once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria . . . .
19
Id., 90 S.Ct. at 523 (footnotes omitted). Further, the Court recently emphasized in a habeas corpus action that suits by the classes discriminatorily excluded were the preferred mode of attacking grand jury discrimination. See Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 3001, 61 L.Ed.2d 739 (1979); id. at 3009 (Stewart, J., concurring in the judgment); id. at 3014 (Powell, J., concurring in the judgment). Finally, this court has on numerous occasions allowed suits of this nature with classes founded on both race and sex to proceed without objection to nature of the action. See, e. g., Porter v. Freeman, 577 F.2d 329 (5th Cir. 1978); Berry v. Cooper, 577 F.2d 322 (5th Cir. 1978); McGhee v. King, 518 F.2d 791 (5th Cir. 1975); Foster v. Sparks, 506 F.2d 805 (5th Cir. 1975); Thompson v. Sheppard, 490 F.2d 830 (5th Cir. 1974), cert. denied, 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d 666 (1975); Broadway v. Culpepper, 439 F.2d 1253 (5th Cir. 1971); Ford v. White, 430 F.2d 951 (5th Cir. 1970); Raiford v. Dillon, 430 F.2d 949 (5th Cir. 1970); Preston v. Mandeville, 428 F.2d 1392 (5th Cir. 1970); Black v. Curb, 422 F.2d 656 (5th Cir. 1970); Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969); Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968); Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) (en banc), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1967).
20
Faced with this jurisprudence, appellees now argue in addition that even if the action can be maintained for discrimination on the basis of sex and national origin, the classes of young people, defined in the complaints as including individuals between the ages of 18 and 28, and of poor people, defined as including individuals with below poverty-level incomes, are not legally cognizable. At the pleading stage of this litigation, we must reject this contention.
21
In Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), the Court recognized that systematic exclusion of Mexican-Americans from grand jury service violated the Constitution. In so holding, it wrote:
22
Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a "two-class theory" that is, based upon differences between "white" and Negro.
23
Id. at 670. See Castaneda, supra, 97 S.Ct. at 1280; White v. Regester, 412 U.S. 755, 767, 93 S.Ct. 2332, 2340, 37 L.Ed.2d 314 (1973). From Hernandez, we conclude that, when a plaintiff alleges that he is a member of a group founded upon an identifiable and distinct characteristic and that members of that group are treated differently solely because they bear that characteristic, and not because the difference in treatment is reasonably related to a legitimate state objective, then the plaintiff is entitled to attempt to prove that there exists such an identifiable and distinct class in the community and that it is subject to the discrimination alleged. As this court has written in a similar context, "(t)he equal protection clause prohibits a state from making arbitrary and unreasonable classifications," and an exclusionary classification of potential jurors based on factors which have "no relationship to their competency as jurors" or other legitimate state objectives is unreasonable. Labat v. Bennett, 365 F.2d 698, 723 (5th Cir. 1966) (en banc), cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967).
24
Our formulation of these principles derives support from the decisions in Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946) and in Labat, supra, which held that the exclusion of daily wage earners from consideration for jury service was impermissible. In Thiel, supra, which was based primarily on the Court's supervisory power over the federal courts, the Court stated:
25
The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury. * * * This exclusion of all those who earn a daily wage cannot be justified by federal or state law. Certainly nothing in the federal statutes warrants such an exclusion. And the California statutes are equally devoid of justification for the practice. * * * Wage earners, including those who are paid by the day, constitute a very substantial portion of the community, a portion that cannot be intentionally and systematically excluded in whole or in part without doing violence to the democratic nature of the jury system. Were we to sanction an exclusion of this nature we would encourage whatever desires those responsible for the selection of jury panels may have to discriminate against persons of low economic and social status. We would breathe life into any latent tendencies to establish the jury as the instrument of the economically, and socially privileged. That we refuse to do.
26
Id. at 985-987. Labat established that the principle of Thiel has constitutional foundations in the due process and equal protection clauses of the fourteenth amendment. Labat, supra, 365 F.2d at 722-723.19
27
In the cases before us, certain of the appellants contend that they have been discriminated against because of either their age or their economic status. They have alleged that the population between the ages of 1820 and 28 in both Hidalgo and Willacy Counties is 16 percent of the total population and that 50 percent and 57 percent of the population of Hidalgo and WILLACY COUNTIES, RESPECTIVELY, HAVE INCOMeS below The government-designated poverty levels. They have alleged further that virtually no members of these groups have been called for grand jury service over the past ten years. Under these allegations, we refuse to hold as a matter of law that these groups are not legally cognizable. Both groups are clearly defined in the complaint and comprise significant proportions of their counties, and the degree of exclusion alleged certainly lends credence to their claim that they have been "identified" in their communities. Under Hernandez, supra, the representatives of these groups are entitled to present evidence to the district court to show that the groups, as defined in the complaint, are sufficiently "identifiable."21 See id., 74 S.Ct. at 670. The burden is theirs. Id.22
28
This result is no less than commonsensical. Our constitutional rights are personal. An individual citizen should not be, and under the Constitution cannot be, deprived of individual equality under the law solely because he belongs to an identifiable segment of society against which official discrimination has been leveled. An individual's youth or poverty bears no relation to his competency for grand jury service, and an exclusionary classification based on those criteria is unreasonable. If identifiable groups based on these criteria are proven, both common sense and the Constitution indicate that, if they prove they have suffered discrimination, they are entitled to a remedy. We thus conclude that, as members of groups of Mexican-Americans, women, the young between the ages of 18 and 28, and the poor with incomes below the "poverty level," appellants are, at this stage of the litigation, proper parties to bring these actions.23
29
2. Appellees' claims that the complaints fail to allege a live case or controversy are founded upon two unique aspects of the Texas grand juror selection scheme. First, appellees argue that each compilation of the fifteen to twenty member grand juror list is a discrete event. The acts taken by the jury commissioners in choosing any particular grand jury list have no impact on the choice of grand jurors for the next list, for the next set of jury commissioners has full discretion to go about the selection process in its own way.24 Each set of grand jurors in Texas is thus, as Judge Wisdom has observed, "handpicked." See Brooks, supra, 366 F.2d at 29 (concurring opinion). Relying on O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1979), appellees contend that allegations of past discrimination are insufficient to create a live case or controversy and that, since the selection of each list is a distinct act, the complaint affords no basis, other than appellants' subjective fears, for concluding that the discrimination will continue.
30
In O'Shea, the complainants charged a county judge and magistrate in Cairo, Illinois, with discrimination in bondsetting, sentencing, and other official activities, and sought injunctive relief. While some of the complainants claimed to have been injured by these practices in the past, none claimed that, at the time of filing the complaint, he was serving an illegal sentence, on trial or awaiting trial before the defendants. Even though complainants contended that the practices continued, the Court found that, under all the circumstances, the complaint did not present a viable case or controversy under Article III. It held that "(p)ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, . . . if unaccompanied by any continuing, present adverse effects." 94 S.Ct. at 676. And while it did recognize that, "(o)f course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury," id., it held that the facts alleged did not support the existence of such a threat with respect to these complainants. Complainants did not allege that any state law was unconstitutional on its face or as applied or that any of the complainants had been or would be improperly charged. As the Court summarized the situation,
31
Apparently the proposition is that if respondents proceed to violate an unchallenged law, and if they are charged, held to answer and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed.
32
Id. Thus, the holding in O'Shea was not premised on the fact that the allegations were insufficient to establish that the defendants would continue their allegedly unlawful conduct if the opportunity arose, as appellees have argued; rather, it was premised on the fact that, as to the named plaintiffs, the opportunity was not sufficiently likely to arise. For this reason, the threat of injury to the complainants was "simply too remote" to establish a viable case or controversy. Id. at 677.
33
O'Shea does not control the disposition of these cases. Appellees correctly assert that the allegations of past illegal conduct, which is concededly without continuing impact, do not in themselves establish a live controversy. These allegations are, however, evidence sufficient to give rise to a strong inference that the injury will be repeated in the future. Each compilation of a grand juror list is concededly a discrete act. Nevertheless, the complaints alleged that over ten years these discrete acts have consistently produced grand juror lists upon which the classes to which appellants belong have been substantially underrepresented. With this pattern as their factual predicate, the complaints allege that the selection statutes have been and will continue to be discriminatorily and unconstitutionally applied by the incumbent jury commissioners and their successors.
34
Under these allegations, the threat of future injury is palpable. Unlike the contingency-riddled complaint in O'Shea, the complaints here claim an injury that turns on a single contingency: that the jury commissioners will act exactly as they have for the past ten years. Unlike O'Shea, where the prospect of future injury turned on the plaintiffs' violation of valid laws and their being properly charged under those laws, appellants' injury here depends solely upon the actions of the appellees. Again unlike O'Shea, appellants here contend that appellees have applied and will continue to apply the relevant laws in an unconstitutional manner. Further, the very nature of the Texas selection scheme gives substance to appellants' allegations that the injury to them established in the past will continue. By placing an essentially ungoverned discretion in the hands of the jury commissioners when they compile the lists, the scheme creates ample opportunity for discrimination; as the Supreme Court has recently iterated, this scheme is "highly subjective" and "susceptible to abuse as applied." Castaneda, supra, 97 S.Ct. at 1281. For all these reasons, appellants' allegations of a continuing controversy meet the concerns of O'Shea.
35
The second aspect of the Texas selection scheme upon which appellees rely to argue that there is no live case or controversy with regard to the jury commissioners is the fact that each grand juror list is compiled by a separate set of jury commissioners. See Tex.Crim.Proc.Code Ann. Art. 19.01 (Vernon 1977). Basing their arguments on Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974), appellees contend that any past discrimination was personal to the former commissioners and that, even though appellees were sued in their official capacities, the complaints afford no basis for concluding that the appellee commissioners or their successors will continue these practices. For reasons quite similar to those set out above, this argument, too, must fail.
36
In Spomer, a companion case to O'Shea, the complainants sought injunctive relief against the state's attorney in Cairo, one Berbling, for "an alleged practice of willful and malicious racial discrimination." Spomer, supra, 94 S.Ct. at 689. After the court of appeals decided the case adversely to Berbling, he was succeeded in office by W. C. Spomer, and Spomer filed a petition for review of the decision in the Supreme Court.25 In remanding the case to the court of appeals for a determination whether the dispute alleged had expired by virtue of the change of defendants, the Court observed:
37
The wrongful conduct charged in the complaint is personal to Berbling, despite the fact that he was also sued in his then capacity as State's Attorney. No charge is made in the complaint that the policy of the office of State's Attorney is to follow the intentional practices alleged, apart from the allegation that Berbling, as the incumbent at the time, was then continuing the practices he had previously followed. . . . Nor have respondents ever attempted to substitute Spomer for Berbling after the Court of Appeals decision, so far as the record shows, or made any record allegations that Spomer intends to continue the asserted practices of Berbling of which they complain. The plain fact is that, on the record before us, respondents have never charged Spomer with anything and do not presently seek to enjoin him from doing anything.
38
Id. at 689 (citation and footnotes omitted). In later cases, the solute concerns of Spomer were crystallized into a simple principle: where the plaintiff claims prior patterns of discrimination by a government official, but there has been a change in the occupant of that office, the plaintiff must establish some basis to believe that the successor will continue the practices of his predecessor before the issuance of prospective coercive relief against the successor is warranted. See Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 1334, 39 L.Ed.2d 630 (1974); Network Project v. Corporation for Public Broadcasting, 561 F.2d 963, 966-68 (D.C.Cir.1977), cert. denied, 434 U.S. 1068, 98 S.Ct. 1247, 55 L.Ed.2d 770 (1978); Sarteschi v. Burlein, 508 F.2d 110, 114 (3d Cir. 1975). In the context of a motion to dismiss, therefore, the burden is on the plaintiff "to allege that the misconduct was the policy of the office or that the successor intended to continue the unlawful practices." 3B Moore's Federal Practice P 25.09(3), at 25-109, 25-110 (2d ed. 1980). Appellants in these cases have satisfied this burden.
39
Appellants have alleged a pattern of discrimination by the predecessors of the appellee jury commissioners, spanning a ten-year period. During this period, the occupants of the office of jury commissioner in both Hidalgo and Willacy Counties have, of necessity, changed several times, since Texas law specifies that jury commissioners shall serve for one term of court and that no person shall act as jury commissioner more than one time in any year. See Tex.Crim.Proc.Code Ann. Art. 19.01 (Vernon 1977). Appellants have alleged further that the incumbent jury commissioners will follow the practice of their predecessors, have sought relief against the successors of the incumbents and have moved this court for an order substituting the successors of the jury commissioners named in the complaints. They have thus met their burden of establishing a controversy with the jury commissioners named in the complaint and, indeed, with their successors. They have not only alleged that the dispute will continue with appellees, but also supplied factual allegations from which the continuation of the dispute is a reasonable inference. Appellants must therefore be permitted to attempt to prove their allegations.26
40
A closer and slightly different question arises with regard to the judge of the 93rd Judicial District, a defendant in the Hidalgo County case.27 At the time the complaint in that case was filed, Judge Magus Smith held that office and was sued only in his official capacity. Shortly thereafter, he resigned and was replaced by Judge Joe A. Cisneros. We note that appellants have alleged a continuing pattern of discrimination, sought relief against the successors of all defendants, and argued in the lower court that substitution is proper for all defendants. Further, Judge Cisneros has made no record allegation that he will not continue Judge Smith's practices. Thus, we conclude that, under the principles of Spomer, the controversy between appellants and the judge of the 93rd Judicial District also remains a live one. It will be open to Judge Cisneros, as it will be to all appellees, to refute these allegations at trial.28
41
In assessing the threat of future injury to appellants, particularly in light of the shuttling in and out of the state officials allegedly responsible for that injury, it is of paramount importance to bear in mind the one constant factor (one is tempted to say "actor") in these cases: the Texas selection system. That system provides only the most rudimentary objective guidelines and virtually no formal procedures to direct the jury commissioners in making their selections for grand jury service.29 As this court has previously observed, it relies "at no stage on random choice or the laws of chance." Brooks, supra, 366 F.2d at 4. Because it is "highly subjective" and "susceptible to abuse as applied," Castaneda, supra, 97 S.Ct. at 1281, it invites discrimination of the type of which appellants complain, as is evidenced by the numerous successful challenges to its operation raised in the context of criminal proceedings. See, e. g., Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Muniz v. Beto, 434 F.2d 697 (5th Cir. 1970); Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966), cert. denied, 386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135 (1967). Against this backdrop and in light of the history of discrimination alleged in the complaints, one cannot easily discount appellants' allegations of impending injury. It would be ironic, indeed, if appellees could rely on the discreteness of the choices made and the inherent turnover of the occupants of the crucial positions to establish that no justiciable controversy exists. If these arguments were credited, the operation of the Texas selection system would be effectively insulated from federal equitable relief to protect those in appellants' situation from denial of their constitutional rights. Appellees appear to seek a license in perpetuity to continue their old ways. This they may not have.30
42
B. In their next attack on the existence of a live case or controversy, appellees argue that the dispute was mooted by the 1979 amendments to the Texas selection system. Insofar as they are relevant here, those amendments, passed while these appeals were pending, give the state district judge the option of using either the old key man system or a new random selection system, see Tex.Crim.Proc.Code Ann. Art. 19.01 (Vernon Supp.1980),31 and provide that, in the event that the key man system is utilized, "the commissioners shall, to the extent possible, select grand jurors who (sic ) the commissioners determine represent a broad cross-section of the population of the county, considering the factors of race, sex, and age." See Tex.Crim.Proc.Code Ann. Art. 19.06 (Vernon Supp.1980).32
43
These amendments do not, on their face, moot these actions. The amendment to Article 19.06, in fact, is without effect on them. Its requirement that the grand jury list reflect a broad cross-section of the community does no more than mirror the constitutional requirements for the composition of grand juries, as discussed below.33 The complaints allege that defendants have violated these constitutional requirements; we cannot conclude that the simple incorporation of these standards into state law will end the practices of which appellants complain.
44
Further, the creation of an option, vested in the state district judge, to use a random selection system in lieu of the key man system does not on its face moot this action. First, the amendment does not require that the random selection system be used. The state district judge remains free to continue to use the key man system, and, under the allegations of the complaints, the threat of injury persists as long as that system is used. In those cases in which a statutory amendment has been held to moot a controversy arising under the prior version of the statute, the amendment has generally been one which completely eliminated the harm of which plaintiffs complained. See, e. g., Kremens v. Bartley, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1978); International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 815-16 (5th Cir. 1979).34 Nor do the records in these cases contain any allegations by appellees or other Hidalgo and Willacy County officials that they intend to switch to the random selection system. At this stage of the litigation, therefore, we must conclude that the controversy persists.
45
Should appellees wish to present evidence at the trial of these cases that use of the key man system has been abandoned, they will be free to do so, and, if they succeed in establishing its abandonment, that may be an end to these cases to the satisfaction of all the parties. We note, however, that even this voluntary cessation of the complained-of practices would not necessarily moot the controversy. As Judge Tuttle has recently written for the ninth circuit,
46
There is a long-standing rule of equity that a case does not become moot as to the specific petitioner in a case, even if the complained-of conduct has ceased, "if there is a possibility of a recurrence which would be within the terms of a proper decree." See Bator, Mishkin, Shapiro and Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 110 (1973). As stated in United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), an antitrust case in which the defendant had voluntarily ceased the allegedly illegal conduct:Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. . . . A controversy may remain to be settled in such circumstances . . .. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion . . . For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right . . .. The courts have rightfully refused to grant defendants such a powerful weapon against public law enforcement. (Citations omitted.)
47
Id. at 632, 73 S.Ct. at 897.
48
Lyons v. City of Los Angeles, 615 F.2d 1243, 1248 (9th Cir. 1980). See, e. g., Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); NLRB v. Raytheon Co., 90 S.Ct. 1547 (1970); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944).
49
Nevertheless, the action may be moot under W. T. Grant, supra, "if the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated.' The burden is a heavy one." 73 S.Ct. at 897 (footnote omitted). We thus caution the district court that it must carefully assess the bona fides of any claimed total (no less will do) abandonment of the key man system in Hidalgo and Willacy Counties. Appellees cannot be allowed to avoid suit by a mere temporary change of practice, after which they would be "free to return to (their) old ways." Id.35
50
C. Appellees' last contention that no justiciable case or controversy exists is that it will be impossible for the district court to formulate a remedy, even if appellants' claim of discrimination is proven. While the court below accepted this argument and we recognize that the formulation of an effective remedy may not be an easy matter, this argument seriously underestimates both the equitable powers and duties and the creative imagination of federal district judges in remedying proven constitutional violations.
51
We note first the requirements placed upon the states by the fourteenth amendment in their selection of grand jurors. In one of the early cases considering the functioning of the Texas system, Justice Black wrote:
52
It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.
53
Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940) (emphasis added).36 As this court has made clear, the Constitution permits neither tokenism nor strict proportionalism but requires rather that the grand jurors be chosen from a "fair cross section" of those eligible for grand jury service, and that, to the extent the state relies on the key man system for grand juror selection, "to attain that cross section, jury selectors must become acquainted with (the) community's human resources, which is to say, significant elements . . . of that community." See Brooks, supra, 366 F.2d at 14. In a similar vein, the Supreme Court has recently emphasized that the Constitution is violated not only by the absolute exclusion of an identifiable group, but also by the substantial underrepresentation of such a group, if that result is intentional. See Castaneda, supra, 97 S.Ct. at 1279. From the perspective of potential grand jurors, these requirements translate into a simple rule: the selection system must ensure them equal consideration for grand jury service, without regard to their membership in any identifiable group. See Carter, supra, 90 S.Ct. at 523.
54
When a violation of these constitutional mandates is proven, the federal courts have not merely the power, but also the duty, to remedy it. This obligation is not one easily to be denigrated. Certainly the restructuring of the operation of a state institution may be a difficult even demanding duty, but it is not a task with which the federal courts are unfamiliar. In keeping with the principle that, when violations of the equal protection component of the fourteenth amendment are proven, the federal courts have " 'not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future,' " Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 529, 24 L.Ed.2d 549 (1970) (emphasis added), quoting Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965), the federal courts have undertaken the task of ensuring that state schools, see, e. g., Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); prisons, see, e. g., Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); voter registration procedures, see, e. g., Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965); and even grand jury selection processes, see, e. g., Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), are operated in consonance with constitutional principles. Indeed, the Supreme Court has given strong utterance to the scope of the federal courts' equitable powers in the face of proven discrimination in grand juror selection:
55
The federal courts are not incompetent to fashion detailed and stringent injunctive relief that will remedy any discriminatory application of the statute at the hands of the officials empowered to administer it.
Carter, supra, 90 S.Ct. at 527.37
56
Against the backdrop of these principles, we consider the district court's conclusion that it could not fashion effective relief to bring the operation of the Texas grand juror selection system within constitutional parameters. The district court recognized that the courts had sanctioned equitable relief in similar cases brought in Alabama and Georgia,38 but found those cases of "limited value" for its assessment of the task of remedying the discriminatory application of the Texas statutes. It emphasized that in the Alabama and Georgia selection schemes, the jury commissioners were required to compile a master list of qualified potential jurors from which a venire was randomly chosen. Discrimination in the compilation of a master list could relatively easily be remedied by an order to compile a new list by non-discriminatory means. The district court emphasized that in Texas, on the other hand, the jury commissioners were required merely to select a group of twenty persons to be summoned as potential grand jurors. Because the Texas statute left the method for choosing this small group to the jury commissioners' discretion and because the Supreme Court had upheld the facial validity of the Texas system, the district court believed it could not interfere with the subjectivity of the choices made by the jury commissioners. Thus, it considered only one mode of relief an injunction that stated " 'do not discriminate by excluding a certain class' " and found that such an injunction was not a viable remedy. Whether or not the court's conclusion regarding the viability of such relief alone was correct a point upon which we express no opinion we find that it was error to dismiss the complaint for the reasons given in both these cases.
57
First of all, it is generally error in cases like these to order dismissal on the pleadings because the court could not from the outset define an appropriate remedy. As we have pointed out, the Texas statutes do not structure the process by which the jury commissioners select the jury list which forms the basis for selection of the panel. Appellants allege that the system has operated and continues to operate systematically to exclude or underrepresent several identifiable elements in Hidalgo and Willacy Counties. It is possible that, at trial, it will be established that certain procedures adopted and used consistently by the jury commissioners were responsible for that result. Certainly the district court would then be able to enjoin these practices. In cases in which it appears that an unconstitutional result has consistently been produced by the operation of a state institution and it is not immediately apparent how that result has come about, a court has at a minimum an obligation to conduct an inquiry into how the system actually operates before concluding that the system is not amenable to equitable relief. Anything less is an abdication of the court's duty to remedy proven discrimination " 'so far as possible.' " Carter, supra, 90 S.Ct. at 529. Moreover, as the seventh circuit has stated,
58
Difficulty of formulating a remedy if a complaint is proved following a trial cannot be grounds for dismissing the complaint ab initio. We cannot so easily belittle the powers of a court of equity nor the ability of district judges who have grappled with difficult remedies before, e. g., school desegregation orders, railroad reorganizations.
59
Littleton v. Berbling, 468 F.2d 389, 415 (7th Cir. 1972), rev'd on other grounds sub nom. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Thus, in this case, it was error for the district court to dismiss these cases on the pleadings.39
60
It is likely that this error arose from the district court's failure to examine the problem of remedy in these cases within the framework established by the Supreme Court for devising remedies for constitutional violations by the states. In Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), the Supreme Court reviewed and outlined its three basic principles. It held, first, that the nature of the remedy is
61
to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. (1), at 16, 91 S.Ct. (1267), at 1276, (28 L.Ed.2d 554), The remedy must therefore be related to "the condition alleged to offend the Constitution. . . ." Milliken I, supra, 418 U.S. (717), at 738, 94 S.Ct. (3112), at 3124, (41 L.Ed.2d 1069). Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible "to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Id., at 746, 94 S.Ct., at 3128. Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution. In Brown II (Brown v. Board of Education of Topeka, Kansas), the Court squarely held that "(s)chool authorities have the primary responsibility for elucidating, assessing, and solving these problems. . . ." 349 U.S. (294), at 299, 75 S.Ct. (753), at 756, 99 L.Ed. 1083 (Emphasis supplied.) If, however, "school authorities fail in their affirmative obligations . . . judicial authority may be invoked." Swann, supra, 402 U.S., at 15, 91 S.Ct., at 1276. Once invoked, "the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies."
62
Id. at 2757 (footnotes omitted).40 Under these principles, it is again apparent that the question of the nature of the remedy required is generally not to be addressed until the nature and scope of the constitutional violation is established and it is further established exactly what relief is necessary to place the subjects of the state's discriminatory practices in the position they would occupy absent such practices.
63
The third principle, that the interests of state and local authorities in managing their own affairs should be taken into account by the federal district court in formulating its decree, provides the district court a clue to an effective way of formulating relief in cases such as these. It may prove desirable, if appellants prove their claims of discrimination at trial, to order the jury commissioners themselves to devise a plan to bring the operation of the selection system within constitutional parameters.41 This course of action appears particularly appropriate in these cases, since the Texas statutes leave such wide discretion to the jury commissioners in their selection of the grand jury list.42 It appears to be within their discretion, for example, themselves to institute a random method of selection of potential grand jurors from a representative list, such as perhaps the county's voter registration lists.43 In the case of a particular grand jury, after selecting in this manner a sufficient number of potential grand jurors, the jury commissioners might apply the statutory qualifications, if indeed they are required to do so.44 The district court might then require that they file reports revealing how their basic source was compiled, how and why certain individuals were removed from the randomly selected list, and so forth.
64
Certainly other types of plans might be devised by the jury commissioners, and we by no means imply that the one described above must be adopted. Indeed, this court has held that, given the peculiarities of the Texas selection system, it is not impermissible purposefully to include members of identifiable groups which have previously been unconstitutionally excluded in order to ensure a "fair cross section" in the composition of the grand jury. See Brooks, supra.45 In fact, the jury commissioners have the benefit of guidance from a number of federal court decisions discussing what may, or may not, constitutionally be done within the confines of the Texas system.46
65
In sum, the district court erred in dismissing the complaints because it thought it could not formulate an effective remedy.47 Not only was dismissal on the pleadings in these cases an inappropriate response to its fears regarding its ability to devise an effective injunction, but, if discrimination is proven, it appears quite clearly that by ordering the jury commissioners to formulate a plan, the court can devise a remedy in keeping with its constitutional duties and limitations. Moreover, it must be kept in mind that if a plan is required and the jury commissioners fail in their affirmative duty to devise an adequate plan to remedy any proven violations, the court may itself exercise its broad equitable powers to formulate effective relief. See Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 2572, 57 L.Ed.2d 522 (1978); Milliken, supra, 97 S.Ct. at 2757; Carter, supra, 90 S.Ct. at 529 n. 46.48 The equitable powers of the federal courts are ample to remedy any constitutional violations proven in the trial of these cases.49
IV.
66
In these cases we have merely resolved the parties' preliminary skirmishings, and, from appellees' side, have detected more smoke than fire. The battle lines now etched, however, we withdraw from the field and leave the parties to mount their attacks and counterattacks in the trial courts. In doing so, we must note that appellees have in their possession a new weapon capable of resolving or perhaps even averting the conflict: the authorization to utilize a random selection system. While utilization of this system would not necessarily end the controversy, see pp. 824-825 supra, it may well provide a key to the settlement of these cases, a veritable truce flag. As the Supreme Court noted in Castaneda, supra, use of a random selection system "would probably avoid most of the potential for abuse found in the key-man system." See id., 97 S.Ct. at 1281 n. 18.
67
For the reasons given in this opinion, the judgments of the district court are REVERSED and the cases are REMANDED, and appellants' motions for substitution of parties and for judicial notice are also REMANDED to the district court.
68
REVERSED and REMANDED.
1
Chap. 39, quoted in Labat v. Bennett, 365 F.2d 698, 711 (5th Cir. 1966) (en banc), cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967)
2
The facial constitutionality of the Texas statutes has recently been reaffirmed, see Castaneda, supra, 97 S.Ct. at 1281, although the Court noted that "the system is susceptible to abuse as applied." Id. Both sets of appellants here limit their attacks on the statutes to the constitutionality of their application
3
This article provides:
In lieu of the selection of prospective jurors by means of a jury commission, the district judge may direct that 20 to 50 prospective grand jurors be selected and summoned, with return on summons, in the same manner as for the selection and summons of panels for the trial of civil cases in the district courts. The judge shall try the qualifications for and excuses from service as a grand juror and impanel the completed grand jury in the same manner as provided for grand jurors selected by a jury commission.
The procedure for selection of jurors in civil cases is set out in Tex.Rev.Civ.Stat.Ann. Arts. 2094-2116d (Vernon 1964 & Supp.1980).
The effect on this action of this and other amendments, see note 5 infra, are discussed in Part II(B) infra.
4
This article provides
The district judge, at or during any term of court, shall appoint not less than three, nor more than five persons to perform the duties of jury commissioners, and shall cause the sheriff to notify them of their appointment, and when and where they are to appear. The district judge shall, in the order appointing such commissioners, designate whether such commissioners shall serve during the term at which selected or for the next succeeding term. Such commissioners shall receive as compensation for each day or part thereof they may serve the sum of Ten Dollars, and they shall possess the following qualifications:
1
Be intelligent citizens of the county and able to read and write the English language;
2
Be qualified jurors in the county;
3
Have no suit in said court which requires intervention of a jury;
4
Be residents of different portions of the county; and
5
The same person shall not act as jury commissioner more than once in the same year
The 1979 amendments recodified this section as Article 19.01(a). See Tex.Crim.Proc.Code Ann. Art. 19.01(a) (Vernon Supp.1980).
5
A 1979 amendment to this section added the requirement that "(t)he commissioners shall, to the extent possible, select grand jurors who (sic ) the commissioners determine represent a broad cross-section of the population of the county, considering the factors of race, sex, and age."
As amended, the section in its entirety provides:
The jury commissioners shall select not less than 15 nor more than 20 persons from the citizens of the county to be summoned as grand jurors for the next term of court, or the term of court for which said commissioners were selected to serve, as directed in the order of the court selecting the commissioners. The commissioners shall, to the extent possible, select grand jurors who the commissioners determine represent a broad cross-section of the population of the county, considering the factors of race, sex and age.
Tex.Crim.Proc.Code Ann. Art. 19.06 (Vernon Supp.1980).
6
The fifteen to twenty persons chosen by the jury commissioners as potential grand jurors shall be referred to in this opinion as the jury "list" to distinguish them from the twelve actually chosen from their number to serve on the "panel."
7
Tex.Crim.Proc.Code Ann. Art. 19.04 (Vernon 1977) provides that, upon the jury commissioners, retirement to choose the list of potential grand jurors, the clerk of the court "shall furnish them . . . the last assessment roll of the county." It does not require, however, that all persons chosen must be from that list
8
It is not clear from the statutes whether the jury commissioners themselves are required or permitted to pass on the ability of the persons on the list to meet the statutory qualifications. In Castaneda, the Court interpreted the statute to permit the testing of qualifications to be delayed until the persons on the list appeared in the district court. See 97 S.Ct. at 1276 n. 8. Tex.Crim.Proc.Code Ann. Art. 19.03 (Vernon 1977), however, requires the jury commissioners to swear to an oath, stating, inter alia, "that you will not knowingly elect any man as a juryman whom you believe to be unfit and not qualified." This court has read this oath to require the jury commissioners to evaluate an individual's ability to meet the statutory qualifications before his name is placed on the grand jury list. See Brooks v. Beto, supra, 366 F.2d at 4-5. While this matter may be important to the proof to be presented at trial, see Castaneda, supra, 97 S.Ct. at 1276 n. 8, and should be considered in the formulation of a remedy should the claims of discrimination be proven, it is not relevant to the question at hand; i. e., whether the complaints state justiciable causes of action
9
They are described in the complaint as follows:
CIUDADANOS UNIDOS DE SAN JUAN and CIUDADANOS UNIDOS DE DONNA are community organizations dedicated to developing the political rights and responsibilities of San Juan and Donna residents respectively, including more effective use and assertion of their members' voting rights. Members of both community organizations are almost entirely Mexican-American, many of whom are poor persons, women, and young people. ARTURO GUAJARDO, JUAN MALDONADO, PABLO MARTINEZ, JESUS RAMIREZ, JESUS JOEL SOLIS, LALO ARCUATE, ROBERTO F. LOREDO, CONRADA ARCAUTE, APOLONIA S. MENDOZA, ANTONIO M. GARCIA, AND JUANA VALDEZ COX are citizens of Hidalgo County.
They allege that, although all individual appellants were qualified for grand jury service, only Jesus Ramirez has ever been called.
10
Appellants have abandoned their request for monetary damages in this appeal. This claim was premised on 42 U.S.C. § 1985
11
Jurisdiction in this suit was premised on 28 U.S.C. §§ 1343, 1331, 1332, 2201, and 2202. The claims before us are founded upon 42 U.S.C. §§ 1981 and 1983
12
It is not clear from the complaint in this case whether appellants intended to challenge the operation of the selection process in Hidalgo County as a whole or only in the 93rd Judicial District of Hidalgo County. While the complaint names the Jury Commissioners of Hidalgo County as defendants, it names the judge of only the 93rd Judicial District. There is some indication in the record of this case that appellants considered the judge of the 93rd Judicial District to be the official responsible for the selection of jury commissioners for the whole county. Appellees indicated in affidavits submitted to the court below, however, that the judges of the three other judicial districts in Hidalgo County the 92nd, the 139th, and the 206th are responsible for the naming of jury commissioners to select other groups of potential grand jurors. For purposes of this appeal, we read the complaint as claiming discrimination in only the 93rd Judicial District. If appellants intended to challenge the operation of the system in the other judicial districts as well, they should be permitted on remand, in light of the information regarding the selection process submitted by appellees, to amend their complaint to include the judges of the other districts. This amendment, if it is made on this basis, will affect none of the questions decided on this appeal
13
The plaintiffs were described in the complaint as follows:
Robert Caballero, Rafael Cantu, Yolanda Castaneda, Eloy Castaneda, Angelita Reyna, Sylvia Caballero, Justino Fonseca, Jr., and Abelardo Fonseca are all citizens and residents of Willacy County. Each Plaintiff, except Eloy Castaneda and Rafael Cantu, is under the age of 30. Rafael Cantu is retired and receives Social Security benefits.
They allege that, although all were qualified for grand jury service, only Robert Caballero has ever been called.
14
The jurisdictional bases for this suit are identical to those alleged in the Hidalgo County case. See note 11 supra. The claim here is stated under 42 U.S.C. § 1983
15
Thus, in neither of the cases in this appeal do we face the question whether monetary damages are appropriate. See note 10 supra
16
The district court also held that the state judge in the Hidalgo County case and the jury commissioners in both cases were immune from a suit for damages. Appellants do not now press any claims for damages, and appellees have no immunity from equitable or declaratory relief. See, e. g., Slavin v. Curry, 574 F.2d 1256, 1264, vacated as moot, 583 F.2d 779 (5th Cir. 1978); Person v. Association of Bar, 554 F.2d 534, 537 (2d Cir. 1977), cert. denied, 434 U.S. 924, 98 S.Ct. 403, 54 L.Ed.2d 282 (1977). Therefore, no question of official immunity remains in these cases
In addition, we note that, while both the district court and the parties have treated the dismissals as falling under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, they actually fall under Fed.R.Civ.P. 12(b)(1) since the court found that it lacked jurisdiction to hear the cases. For purposes of this motion to dismiss, we take the allegations of the complaints as true and construe them favorably to appellants. See Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2206-2207, 45 L.Ed.2d 343 (1975).
17
These basic constitutional principles cut across the boundaries of many of the subcategories of justiciability doctrine. For example, the Supreme Court has recently written that "mootness has two aspects: 'when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.' " U. S. Parole Commission v. Geraghty, --- U.S. ----, ----, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). O'Shea itself has been characterized as involving a blend of standing, ripeness and mootness considerations. See Lyons v. City of Los Angeles, 615 F.2d 1243, 1246 n.5 (9th Cir. 1980); 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3529 n.21. (1975). In O'Shea, however, the Court did not label the complex questions it faced in terms of these subcategories; instead, it straight forwardly applied the constitutional principles it enunciated. In these cases, we follow the same approach. As one commentator has observed, "There is no reason to demand a final expression in terms of standing, ripeness, mootness, or political question doctrine, if the court is able to conclude that there is no sufficient need for deciding the issues tendered without relying on the frequent question begging terminology of any single concept." Id. at 147
Of course, justiciability doctrine encompasses more than the question whether the court has power under Article III to decide the case. Often, prudential considerations militate against the use of judicial power even when its constitutionality is established. See, e. g., Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). See generally Wright, Miller & Cooper, supra, at § 3529. We consider the "prudential" considerations raised in these cases as notes 23 & 49 infra.
18
It is true, of course, that this "personal stake," which is the heart of the standing doctrine, see Warth, supra, 95 S.Ct. at 2205, cannot exist where the controversy between plaintiffs and defendants has expired, see Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 1215-16, 51 L.Ed.2d 376 (1977), or where the existence of the controversy is purely a matter of speculation and conjecture; i. e., where the controversy is not "ripe." See, O'Shea, supra, 94 S.Ct. at 676-77. Our inquiry here is simply whether appellants have a legal right to complain of their exclusion from grand jury service. The existence of a live controversy which allows them to litigate their exclusion is considered below
19
Labat suggested that perhaps only total exclusion of daily wage earners would offend the Constitution. Id. at 721. It is now well-established, however, that "substantial underrepresentation of the (identifiable) group constitutes a constitutional violation as well, if it results from (intentional) discrimination." Castaneda, supra, 97 S.Ct. at 1279. This conclusion is only logical. Purposeful underrepresentation is merely exclusion in another form. The victims of the discriminatory practices are excluded from those positions to which fair representation would entitle them
20
One must be 18 to qualify for grand jury service in Texas. See Tex.Crim.Proc.Code Ann. Art. 19.08 (Vernon 1977)
21
For fourteenth amendment purposes, the inquiry into whether a group is "identifiable" is directed toward determining whether the group is viewed by the community as a whole, or at least by the relevant state officials, as a group sufficiently distinct from the remainder of the community to be a credible target for the exercise of community prejudices. Evidence that the community recognizes the distinctness of the group, see Hernandez, supra, 74 S.Ct. at 671, or that the group has been subjected to special disadvantages in the community, see Castaneda, supra, 97 S.Ct. at 1280, may be used to establish its distinctness
Further, it is significant that, in both Thiel and Labat, the defendants admitted that they had singled out daily wage earners for disparate treatment. See Thiel, supra, 66 S.Ct. at 986; Labat, supra, 365 F.2d at 713-716. This admission of discrimination was apparently enough alone to establish that daily wage earners were a cognizable group since the court inquired into no other indicia of group identification. Similarly, in these cases, appellants have claimed a virtually total exclusion of the young and the poor, as defined in the complaint. Proof of such extensive exclusion of these groups when other economic or age groups are not subjected to the same treatment would certainly be strong evidence that these groups have been "identified" by the relevant state officials. Further, evidence of exclusion of this magnitude may be particularly relevant where the selection procedures are non-neutral with regard to the allegedly excluded group. Because, under the Texas selection system, the jury commissioners may know both the age and economic status of the persons they select since these individuals are "handpicked," see Brooks, supra, 366 F.2d at 29 (Wisdom, J., concurring), the selection system must be regarded as non-neutral with regard to the groups of the young and the poor. Cf. Castaneda, supra, 91 S.Ct. at 1280 (Texas selection system is non-neutral with regard to Mexican-Americans).
Finally, it has been settled in other areas of equal protection analysis that an individual discriminated against because of his age or economic status suffers a legal injury. See generally L. Tribe, American Constitutional Law §§ 16-29, 16-33 to 16-35 (1930). The question we face is whether appellants have established, under the rule laid down by Hernandez, an adequate predicate for the litigation of their age- and economic status-based claims. For the reasons set forth, we think they have. Appellants do, however, bear the burden of proving that the definitional bases for the groups alleged in the complaint are sufficient to give content to the otherwise amorphous groups of the young and the poor. That is, appellants must prove that the criteria for group membership that they have alleged adequately differentiate these groups from the remainder of the community or that these criteria adequately define the groups against which the alleged discrimination has been levelled. See generally Gewin, An Analysis of Jury Selection Designs, reprinted as appendix to Foster v. Sparks, 506 F.2d 805, 823-25 (5th Cir. 1975).
22
Appellees rely on United States v. Kleifgen, 557 F.2d 1293 (9th Cir. 1977), for the proposition that the young and the poor are not cognizable groups. Kleifgen, however, lends them little aid. First of all, Kleifgen did not actually involve a claim of exclusion of the poor. That case involved claims of exclusion of inter alia, non-high school graduates and non-working people; the court held that these groups were "by no means synonymous" with the poor. Id. at 1296 n.6
While Kleifgen did hold that "the young" was not a cognizable group, that holding is of little persuasive value here. Hernandez v. Texas, supra, held that it was a question of fact whether a group allegedly unlawfully excluded constituted a cognizable group within the relevant community. See id., 74 S.Ct. at 670. The fact that the record in one case failed to establish that the young constitute a cognizable group within the community does not mean that, in this case, appellants will also fail to meet their burden.
More fundamentally, Kleifgen was a challenge based on the federal jury selection statutes, 28 U.S.C.A. § 1861 et seq. (West Supp.1979). As such, it was one of a series of cases holding that various groupings of young people did not comprise cognizable groups for purposes of claims by litigants that the juries involved were illegally composed under those statutes. See, e. g., United States v. Potter, 552 F.2d 901 (9th Cir. 1977); United States v. Test, 550 F.2d 577 (10th Cir. 1976) (en banc); United States v. Ross, 468 F.2d 1213 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973). But see United States v. Butera, 420 F.2d 564 (1st Cir. 1970) (Coffin, J.) (age group, 21-34, is cognizable). In the cases rejecting the claims of exclusion of the young, the courts attempted to protect the federal statutory "right of all litigants to have grand (and, of course, trial) juries selected from a fair cross section of the local community." Potter, supra, 552 F.2d at 901. See 28 U.S.C.A. § 1861 (West Supp.1979). The courts have relied heavily on a supposed lack of internal cohesion in the groups of the young, and a corresponding lack of a distinctive viewpoint, to support their holding that these groups were not cognizable; these factors, they hold, establish that these groups add nothing to the "fair cross section" guaranteed the litigant. See, e. g., Potter, supra, 552 F.2d at 904-905. But while these factors may be relevant to group identification for purposes of protecting the parties' rights under the federal selection statutes, a point upon which we express no opinion, they are not necessary to group identification for purposes of protecting an individual's right to equal consideration for jury service under the fourteenth amendment, the right which forms the foundation for this lawsuit. If an individual is denied equal consideration because of his group membership and if the group meets the cognizability requirements of Hernandez, supra, then the fourteenth amendment has been violated.
23
Assuming that a case or controversy exists, the appellant organizations in the Hidalgo County case, see note 9 supra, are entitled to bring this action as representatives of their members who, it is alleged, belong to the four named classes. See, e. g., Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2211-12, 45 L.Ed.2d 343 (1975). Because the claims stated and the relief sought are class-wide, the individual participation of each injured party is not indispensable to the proper resolution of the cases. See id. at 2212
It is appropriate here to respond to two other arguments raised by appellees as they seek to establish that appellants are not entitled to bring these actions. First, because the Constitution guarantees a right to equal consideration for grand jury service, see Carter, supra, 90 S.Ct. at 523, and because appellants have alleged a denial of their right to equal consideration, appellants' cases neither fall, nor bleed, upon the thorns of a "but for" argument raised by appellees. Appellees argue that no one individual has a right actually to serve on a particular grand jury, and thus that appellants cannot claim that "but for" appellees' actions they would actually have served. From this premise, appellees argue, relying on Warth v. Seldin, supra, 95 S.Ct. at 2208-2209, that appellants are unable to maintain their actions since no relief granted could ever force the appellees to select for jury service any particular one of their number.
Appellees have chosen the wrong "but for." Appellants claim that "but for" appellees' actions they would have received equal consideration for grand jury service. To this consideration they have a right and any relief granted will be directed to its achievement.
Second, relying on Finch v. Mississippi State Medical Ass'n, 585 F.2d 765 (5th Cir. 1978), appellees argue that appellants lack any particularized injury that entitles them to maintain their actions. In Finch, the court held that a female plaintiff lacked particularized inquiry where she claimed that she, as representative of classes of poor citizens and of women, had been denied equal consideration for appointment to the Mississippi Medical Board. Id. at 771. Without questioning the correctness of this holding, we conclude that Finch is distinguishable. Whatever rights there may be to be considered for a state medical board, Carter and Turner establish that one who is denied equal consideration for service on grand juries and, indeed, on school boards, see Turner, supra, 90 S.Ct. at 541 on the basis of his membership in an identifiable group has suffered a legally cognizable injury.
24
The Texas selection system thus differs from the Alabama system considered in Carter, supra. In Alabama, the jury commissioners compiled a "master list" of potential jurors that was used for years afterward. Id. 90 S.Ct. at 520-22. The past acts of discrimination there thus had effects which continued to the time of the litigation of the case
25
Spomer was substituted for Berbling in the case pursuant to Supreme Court Rule 48(3), an analog to Fed.R.Civ.P. 25(d). See Spomer, supra, 94 S.Ct. at 689 n.9. Rule 25(d) is reprinted in note 26 infra
26
As noted above, appellants have submitted to this court in each case a motion to substitute the successors in office of the appellee jury commissioners, pursuant to Fed.R.Civ.P. 25(d), and a motion for judicial notice of the identity of those successors. Rule 25(d) provides:
(1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
(2) When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added.
Because we have determined that the complaints allege a dispute which will continue with appellees' successors, substitution is appropriate. See Spomer, supra, 94 S.Ct. at 689 n. 9. These cases fall well within the principle stated in the Advisory Committee Notes to Rule 25(d): "In general, it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office." See 3B Moore's Federal Practice P 25.09(3), at 25-403, 25-404 (2d ed. 1980). Nevertheless, since it is possible that the identity of appellees' proper successors may change again before the case comes to trial, we REMAND these motions to the district court.
27
See note 12 supra
28
One could conceivably read Spomer, supra, more strictly than we have here and conclude that it requires a plaintiff explicitly to contend at some point that the specific successor of a named defendant intends to continue the complained of activities. See id. at 689 & n. 10. It would, however, disserve the purposes of both the liberalized pleading rules and Fed.R.Civ.P. 25(d) to do so, as this case illustrates. Appellants alleged that the harm is a continuing one and found it necessary to seek relief against all defendants' successors in order to secure effective relief. Further, the facts alleged, as has been demonstrated, give credence to the contention that there is a continuing controversy with all defendants, and the successors of appellees have made no record allegations that they intend to abandon the practices of their predecessors. Under these circumstances, if automatic substitution is to be truly "automatic," the controversy present on the face of the complaint should be honored and no further specific pleadings or "contentions" required. Otherwise, we will have reverted both to an older form of substitution by motion, see 3B Moore's Federal Practice P 25.01(1) (2d ed. 1980), and to a more rigid and impractical set of pleading rules. We must remember that we deal here with pleadings which entitle a plaintiff to present his claims in court. They do not guarantee him an ultimate victory on the merits, nor do they condemn a defendant to ultimate defeat and liability upon the basis of unfounded charges. Subject to the limited effects given a "voluntary cessation" of illegal practices, discussed below, appellees' successors may be able to prove either that the systems did not operate in a discriminatory manner or that they have reformed the grand juror systems of Hidalgo and Willacy Counties and therefore that relief against them is inappropriate. We interpret Spomer to require no more than is contained in these complaints. And defendants, too, will have their day in court
29
See pp. 811-812 supra
30
In Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966), the court held, in a case involving a persistent pattern of violations of the fourth amendment rights of black citizens by city police, that the replacement of the defendant Police Commissioner by a new official did not affect the vitality of the dispute. As one considers the features of the Texas selection system described above, Judge Soboloff's words in Lankford are apt:
Our concern is not with the person who happens to hold the office at a particular time, but with the office. The named defendant is only a nominal party, and the real aim of the proceeding is not to reach the Commissioner individually but to forbid an evil practice that has long and notoriously persisted in the Police Department.
Id. at 205 n. 9.
31
This article, as amended, is reprinted in notes 3 & 4 supra
32
This article, as amended, is reprinted in note 5 supra
33
See pp. 825-826 infra
34
Thus, in Kremens, supra, the statutory amendments "completely repealed and replaced the statutes challenged below . . . ." Id. 97 S.Ct. at 1715
35
If the district court determines that the Willacy County case should continue even if Willacy County has shifted to the random selection option, it should allow the appellants the opportunity to amend their complaint to name as defendant the state district judge for their county since in that circumstance there may be no one holding the office of jury commissioner. Both actions may thus conceivably proceed against the state district judges alone; any relief ordered, see Part II(C) infra, may run against the state district judges, who in turn may be directed to order the jury commissioners to implement it in the event that the judges return to the key man system
36
While most of the early jury discrimination cases involved discrimination on racial grounds, the courts have also recognized that discrimination against other identifiable groups violates the fourteenth amendment. See pp. 816-819 supra
37
Justice Brennan described the duty and power of the federal courts to remedy state-imposed segregation of its schools in the following terms:
A judicial decree to accomplish this result must be formulated with great sensitivity to the practicalities of the situation, without ever losing sight of the paramount importance of the constitutional rights being enforced. The District Court must be mindful not only of its "authority to grant appropriate relief," . . . but also of its duty to remedy fully those constitutional violations it finds. It should be flexible but unflinching in its use of its equitable powers . . ..
Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 2777, 53 L.Ed.2d 851 (1977) (concurring opinion).
38
The district court cited as examples of such cases in Alabama, Carter, supra; Black v. Curb, 464 F.2d 165 (5th Cir. 1972); Preston v. Mandeville, 428 F.2d 1392 (5th Cir. 1970); Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969); and Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) (en banc ), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1967); and, in Georgia, Thompson v. Sheppard, 490 F.2d 830 (5th Cir. 1974), cert. denied, 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d 666 (1975); and Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968). Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), also arose in Georgia
39
The Supreme Court has pointed out on several occasions that, while the Texas statutes are constitutional on their face, the great discretion left to the jury commissioners renders them "susceptible to abuse as applied." Castaneda, supra, 97 S.Ct. at 1281. See Hernandez, supra, 74 S.Ct. at 671. It would be ironic in the extreme if this same potential for subjectivity which creates opportunities for constitutional violations would also insulate the system from equitable relief
40
Although the Supreme Court phrased these principles in terms of the school desegregation remedy which was before it, it indicated that the desegregation remedy was in principle "like other equitable remedies." Id. In Berry v. Cooper, 577 F.2d 322, 323 n. 3 (5th Cir. 1978), this court recognized the applicability of the Milliken principles to the civil action before it, which involved a claim of jury discrimination
41
This procedure has, of course, been applied regularly in formulating school desegregation orders. See generally Milliken, supra. Furthermore, the court may require those bringing suit to submit counterproposals and/or to critique the plans submitted by the jury commissioners. In any case the district court has final authority for instituting a decree. A similar procedure to that outlined here was followed by the district court in the Milliken proceedings, see id., 97 S.Ct. at 2752-55, and it was the remedy devised through this method that the Supreme Court reviewed
Once a plan is approved by the district court, subsequent sets of jury commissioners could simply abide by it and avoid further involvement with the federal courts. Should they decide that they are dissatisfied with the plan, however, any proposed changes should be submitted to the district court, and the procedures outlined above repeated.
42
By these means the discretion allowed the jury commissioners may be utilized to aid in the remediation of the abuses it has fostered
43
Any list which forms the basis for a selection system like that suggested here must itself be shown to represent the constitutional "fair cross section" of the community. See Brooks, supra, 366 F.2d at 23. As the Supreme Court stated in Carter, supra, "Our duty to protect federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty." Id., 90 S.Ct. at 525, quoting Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 416, 97 L.Ed. 469 (1953)
44
See note 8 supra
Judge Brown has suggested that, in a system like that outlined above, much constitutional difficulty may be avoided if the jury commissioners delay exclusions on the basis of subjective statutory qualifications until after a group of potential jurors has been selected from the basic list. See Broadway v. Culpepper, 439 F.2d 1253, 1259 n. 19 (5th Cir. 1971).
45
Judge Wisdom, who concurred in the result of Brooks, did so only because, as he viewed the operation of the Texas scheme, "the jury commissioners had no alternative. They could provide representative grand juries only by intentionally including Negroes." 366 F.2d at 29 n. 7. As we have indicated, we think there may be other ways to remedy the Texas scheme if any violations are proven. Nevertheless, Brooks clearly indicates the latitude left to the jury commissioners and the court in devising a remedy
We add one final cautionary note regarding the purposeful inclusion of previously excluded groups. As the court stated in Brooks,
(T)his must never, simply never, be done as the means of discrimination. It must never, simply never, be applied to secure proportional representation. It must never, simply never, be applied to secure a predetermined or fixed limitation.
Id. at 24.
46
See, e. g., cases listed at p. 810 supra. Of particular relevance is Judge Brown's extensive discussion in Brooks, supra, 366 F.2d at 22-24
47
As we have indicated, appellants in both cases sought declaratory as well as injunctive relief from the district court. That court gave no additional reasons for its dismissal of the claims for declaratory relief. Since we hold that, if appellants prove their cases, injunctive relief is appropriate, it follows that declaratory relief may also be granted. See generally Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)
48
In Carter, the Court noted with approval the decree entered by then District Judge Johnson in Mitchell v. Johnson, 250 F.Supp. 117, 123-124 (M.D.Ala.1966), that, after instructing that the old jury roll was to be abandoned and a new one compiled in a non-discretionary manner, provided:
"Failure on the part of defendants to comply immediately and in good faith with the requirements of this opinion and order will necessitate the appointment by this Court of a master or panel of masters to recompile the jury roll and to empty and refill the * * * jury box." (Footnotes omitted.)
Carter, supra, 90 S.Ct. at 529 n. 46.
49
Appellees have also argued here that principles of equitable restraint, based on notions of federalism and comity and derived from cases such as Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); and Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), make it inappropriate for the federal courts to order injunctive relief in these cases. This contention fails for several reasons. First, Younger, O'Shea and Juidice held that federal intervention was inappropriate because there it would interfere with pending judicial proceedings in the state courts. In these cases, the relief is directed to a time prior to the initiation of any actual judicial proceedings; appellants' compliance with the district court's order can be fully accomplished and evaluated before any actual proceedings are commenced before even the grand jury's consideration of any indictments. These cases are thus outside the equitable restraint principle. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975). Second, the decision in Carter v. Jury Commission, supra, indicates that no such obstacle to federal injunctive relief exists. The Court succinctly and definitively rejected the notion that there were any barriers to injunctive relief in a civil suit such as that before it. See id., 90 S.Ct. at 523-24. As we have shown, the relief sought in Carter was not significantly different from that which may be required here. Finally, in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), in which the Supreme Court disputed vigorously the availability of federal habeas corpus relief from grand jury discrimination and in which the majority concluded that this relief was not inconsistent with our notions of federalism, see id. at 3003, the Justices on both sides of the question agreed that relief from grand jury discrimination could be obtained by means of civil suits like the two we consider here. See id. at 3001 (majority opinion); id. at 3009 (Stewart, J., concurring the judgment); id. at 3014 (Powell, J., concurring in the judgment). In view of the fact that these opinions were all concerned with the cost of considering grand jury discrimination on federal habeas review, and that these opinions all view civil suits as a more appropriate and less intrusive remedy, it is not a little ironic that the state officials now argue that these same civil actions are barred by principles of federalism and comity
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178 Ariz. 319 (1993)
873 P.2d 657
STATE of Arizona, Appellee,
v.
Jesus Benjamin VARELA, Appellant.
No. 1 CA-CR 91-0646.
Court of Appeals of Arizona, Division 1, Department E.
October 5, 1993.
Reconsideration Denied November 17, 1993.
Review and Cross-Petition for Review Denied May 17, 1994.
*321 Grant J. Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Div., and Jon G. Anderson, Asst. Atty. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by Carol A. Carrigan, Deputy Public Defender, Phoenix, for appellant.
OPINION
VOSS, Presiding Judge.
We hold in this opinion that a person who is neither a licensed psychologist nor medical doctor is not qualified as an expert witness for the admissibility of prior bad act evidence to show "emotional propensity" in a sex crimes case. However, we hold that the prior bad act evidence was otherwise properly admitted; therefore we affirm.
Jesus Benjamin Varela (defendant) was convicted by a jury of four counts of sexual exploitation of a minor, Ariz. Rev. Stat. Ann. ("A.R.S.") section 13-3553 (1989), class 2 felonies, and two counts of solicitation of child molestation, A.R.S. sections 13-1002, -1410 (1989 and Supp. 1992), class 3 felonies. Defendant was sentenced to eighteen and one-half years each on the exploitation charges and eleven and one-half years each on the solicitation charges. All sentences were ordered to run consecutively, as required by law. See A.R.S. § 13-604.01(J) (1989).
Defendant raises four issues on appeal:
(1) Whether the trial court erred in admitting evidence of a prior bad act for the purpose of showing "emotional propensity" to commit the crimes charged?
(2) Whether the trial court erred in permitting testimony concerning the theory of "Child Sexual Abuse Accommodations Syndrome"?
(3) Whether the trial court erred in permitting testimony concerning "paraphilia"?
(4) Whether the instruction given by the trial court defining reasonable doubt constitutes fundamental error?
FACTS
Defendant sold ice cream from a vending truck. In early July, 1990, while selling ice cream at a park, defendant met two nine-year-old girls whom we will call R and Y. Defendant asked the girls to work with him on his truck for $5.00 per day. They agreed and worked with him for several afternoons.
The fourth day the girls worked for him, defendant took them to a pizza parlor for lunch. Afterward, he took them to a store, gave them each $5.00, and instructed them to buy white underwear for themselves. He then took the girls to his apartment. When they arrived at defendant's apartment, defendant locked the door and blocked it with stereo speakers. Defendant then requested that the girls allow him to photograph them in their new underwear. Defendant told the girls that if they did not cooperate a "gang would get them, and that they would kill them and their families."
The girls testified about the nature of the photographs taken by defendant. Some of the photographs showed the girls in their new panties with their legs spread. Defendant photographed R with her panties down to her ankles. In another, R held her "private" open. Y also was photographed with her clothes down to her ankles and legs spread. Defendant had Y photograph defendant with R sitting on his lap with his hand on her thigh by her "private." R then photographed Y and defendant similarly positioned. Defendant asked both girls if he could touch their "privates" and offered $50.00 to do so. The girls refused. Defendant exhausted his film supply and, at $5.00 per photo, paid each girl approximately $90.00. The defendant returned the girls to the park, where they were released.
The police were called that evening after the girls' mothers became aware of the money. The girls initially told their mothers other stories about how they obtained the money, but upon further questioning, both girls reported the facts set forth above. Defendant was arrested, and his apartment and vehicle were searched. The searches disclosed two cameras, empty film packages, *322 store bags, receipts, and girls' white underwear, but no photographs were found.
Defendant admitted the girls worked for him and that he took them to his apartment so he could change his clothes, but denied taking any photographs of the girls or engaging in any improper sexual conduct. He further testified that money was missing from his apartment, and he believed the girls stole it.
DISCUSSION
By a pre-trial motion in limine, the state sought to introduce evidence that defendant had previously molested his stepdaughter. The state asserted that evidence of this alleged sexual misconduct was probative of defendant's intent and common scheme or plan and that it evidenced defendant's continuing "emotional propensity" toward sexually aberrant behavior.
At the propensity hearing on the motion, the state called Robert Emerick as an expert witness. At the time of the hearing, Emerick was the program director of the Phoenix Memorial Hospital sexuality and addictions programs. His education includes a Bachelor of Science degree in chemistry and psychology, a Masters degree in education, and pursuit of a doctoral degree in counseling and psychology. His prior experience included directing an agency that developed treatment programs for convicted, adult sex offenders and providing pre-disposition assessments to adult and juvenile probation departments. In addition, he was involved in training programs for various courts and enforcement and correctional agencies.
Emerick testified that he reviewed police reports regarding both the charged incident and the situation involving defendant's stepdaughter. It was his opinion that defendant had an emotional propensity to commit sexually aberrant acts. At the conclusion of his testimony, the court allowed the testimony of the stepdaughter. Concerning its relevancy, the court stated:
And I think that the State has demonstrated today that there is very substantial evidence to find that all of these alleged acts do share substantial common features and factors which demonstrate the relevancy of the prior alleged acts against [the victims].
EXPERT MEDICAL TESTIMONY
Defendant first argues that the prior bad act testimony should not be received because Emerick's testimony was not "expert medical testimony" as required by State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977). We agree as to Emerick.
Emerick was not qualified to present the reliable "expert medical testimony" necessary for the admission of prior sexual misconduct by defendant with his stepdaughter. In State v. Bailey, 166 Ariz. 116, 800 P.2d 982 (App. 1990), we addressed the issue of whether expert testimony from a psychologist met the Treadaway standard. We held that a psychologist was qualified because sexual propensity is a "mental health question" and a psychologist is recognized as a "mental health expert." Id. at 117, 800 P.2d at 983. See Ariz.R.Crim.P. 11.3(b). Although Emerick has vast experience working with sexual abusers and their victims, there was no showing he is licensed or certified in either the medical or mental health areas.
In Treadaway, our supreme court observed that the relevancy of prior sexual acts involves "complicated questions of sexual deviancy in a sophisticated area of medical and scientific knowledge." 116 Ariz. at 167, 568 P.2d at 1065. The licensing and certification of doctors and psychologists ensures the training and experience necessary to practice appropriately in the medical and psychological fields. See 1991 Ariz. Sess. Laws 119 (purpose of the act licensing psychologists is to protect public from unqualified and incompetent practitioners).
In light of the supreme court's comments concerning the necessity of "expert medical testimony," we decline to find the expertise required to prove "emotional propensity" present in this case. Evidence that a witness has worked with child abusers and their victims, regardless of the length of that experience, is simply not sufficient to permit the witness to render an opinion on this complex subject without an appropriate showing of recognized training, study, and certification. *323 Emerick's expertise was insufficient to satisfy the Treadaway "expert medical testimony" standard.
OTHER ACTS NEAR IN TIME AND SIMILAR
The state argues alternatively that even if the required medical testimony of "emotional propensity" was not properly provided, the evidence was nevertheless admissible for two independent reasons. First, the state asserts that evidence of defendant's misconduct with his stepdaughter is admissible for a purpose other than to prove character, and thus, is not violative of Rule 404(b), Arizona Rules of Evidence. Second, the state contends no expert testimony is required for the admission of the misconduct involving defendant's stepdaughter because the conduct is both sufficiently similar and near in time to the charged acts. State v. McFarlin, 110 Ariz. 225, 228, 517 P.2d 87, 90 (1973). Because we agree with the state's second point, we do not discuss the first.
This court will affirm the trial court's admission of prior act evidence if it is sustainable on any ground. See State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987); cf. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). A trial court's ruling on evidence will not be reversed absent a clear abuse of discretion. State v. Stanley, 156 Ariz. 492, 494, 753 P.2d 182, 184 (App. 1988).
In McFarlin, the supreme court held that in crimes involving sexual deviancy, proof of "similar acts near in time to the offense charged" may be admitted as evidence of the accused's propensity to commit such acts. 110 Ariz. at 228, 517 P.2d at 90.
Treadaway qualified McFarlin by requiring expert medical testimony to establish the relevancy of bad acts which are remote in time and dissimilar. Treadaway, 116 Ariz. at 167, 568 P.2d at 1065. However, Treadaway did not displace McFarlin. "Reliable expert medical testimony is not always required before a prior act may be admitted pursuant to the emotional propensity exception." State ex rel. LaSota v. Corcoran, 119 Ariz. 573, 577, 583 P.2d 229, 233 (1978). In those cases in which the prior bad act is similar and near in time, its admissibility is governed by McFarlin not Treadaway. Id.
The difference between Treadaway and McFarlin is clear. When a prior sexual act is near in time and reasonably similar, the act speaks for itself and provides the basis for the exercise of a judge's discretion in determining relevancy. However, with the passage of time or where the acts are dissimilar, the predictive value of the prior act diminishes and the need for the "expert medical testimony" of Treadaway applies.
Because we do not have remoteness or lack of similarity problems here, the failure of Emerick's testimony to satisfy the expert medical testimony requirement of Treadaway is not fatal to the admission of the testimony regarding defendant's stepdaughter.
In concluding that the prior bad acts and the instant offense were similar, the trial court was specific:
The grooming was very similar, involved alleged acts of voyeurism, the common thread of the initiation being the undergarments, the voyeurism, the later viewing through the mirror, the photography, the touching or request to touch and then ultimately the threats that were used against each of the victims.
Our search of the record confirms the trial court's observations in the following particulars:
1. The stepdaughter was molested from age seven through thirteen.
Here, the victims were nine years old.
2. The defendant promised or gave gifts to his stepdaughter to facilitate exploitation.
Here, the defendant paid the two girls for each act, each picture.
3. Defendant asked his stepdaughter to pose in lingerie.
Here, the defendant had the girls purchase panties and pose in them.
4. With his stepdaughter, the defendant initially watched her touch herself. This ultimately escalated into inappropriate touching by the defendant.
*324 Here, the defendant was a voyeur and took pictures; his requests to escalate his involvement to touching were rejected.
5. The defendant focused on his stepdaughter touching and manipulating herself.
Here, the defendant had the girls touch themselves and had one of the girls manipulate herself.
6. The defendant threatened that his stepdaughter would be killed by a hired gang if she did not cooperate or if she told anyone.
Here, the defendant told the girls that a gang would kill them and their families if the girls did not cooperate or told.
There is an abundance of evidence supporting the state's argument that the prior acts which involved the stepdaughter and the acts involved in the instant offenses are similar.
The second requirement of McFarlin is temporal proximity. Here, the defendant's activities leading to his conviction occurred on July 6, 1990. Defendant's stepdaughter testified that she was molested by defendant from age seven through age thirteen. The last molestation occurred in late December of 1988, when defendant forced his stepdaughter to physically manipulate herself while he watched through a hole in the wall to her bedroom.
The stepdaughter told her mother about defendant's actions and they left defendant. On April 10, 1989, just before the stepdaughter's fourteenth birthday, she received a letter from defendant demanding she meet him. Defendant's seven-page letter repeatedly threatened the stepdaughter if she did not meet him as ordered.
You will be followed at all times. And soon as they get a chance you will be killed, maybe you'll be poisoned, drowned, burned to death or maybe tortured or crippled. Imagine being unable to walk (in a wheelchair with an acid burned face) all because you refuse to meet with me....
After all, he continued, "It's not like you've never been with me before."
The letter was received by the stepdaughter fifteen months prior to the molestation and solicitation of the victims here. We believe that Treadaway does not require an actual sexual contact to be a prior bad act which indicates an emotional propensity. The occurrence only has to satisfy the requirement that the act reflect the "propensity" of the "accused ... to commit such perverted acts." McFarlin, 110 Ariz. at 228, 517 P.2d at 90. Defendant molested his stepdaughter continually for approximately seven years. When she and her mother finally left defendant, he wrote a letter demanding that she meet him. If she did not, defendant advised her that she would be tortured and killed. We believe this is clearly evidence which satisfies the emotional propensity test. The letter is physical evidence. Such evidence is possibly weightier than the victim's account of events because physical contact, by its very nature, is done out of the view of others, which often leads to a dispute as to what occurred. Here defendant's own handwriting reveals his aberrance. Because the letter was received fifteen months before the subject molestations and solicitations, and because of the continuous and protracted nature of the molestation of the stepdaughter, we do not believe that this occurrence is remote in time. Even if the letter was not an "act" authorized by Treadaway, the last actual contact with the stepdaughter occurred only eighteen months before the subject offenses. Standing alone, we believe that the defendant's continuous contact with his stepdaughter defeats the remoteness argument.
The molestations of the stepdaughter are both similar and near in time to the crimes for which the defendant stands convicted; therefore admissibility is governed by McFarlin, not Treadaway. The failure to provide reliable expert testimony on the emotional propensity issue is not fatal to the admissibility of the prior bad acts. They are sufficiently similar and near in time to provide their own relevance.
CHILD SEXUAL ABUSE ACCOMMODATIONS SYNDROME
Defendant next argues that the court erred by allowing Emerick to testify at trial *325 concerning the Child Sexual Abuse Accommodations Syndrome ("CSAAS"). In particular, defendant argues: Emerick was not a qualified expert; the CSAAS was not a proper subject for expert testimony; a Frye[1] hearing was required; and the prejudicial effect of Emerick's testimony outweighed the probative value.
Our supreme court stated clearly that qualification as an expert is a discretionary call of the trial court. State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983). Rule 702, Arizona Rules of Evidence, only requires that the witness possess "specialized knowledge [which] will assist the trier of fact...." The trial court's ruling on expert testimony will not be disturbed on appeal absent a clear abuse of discretion. Stanley, 156 Ariz. at 494, 753 P.2d at 184.
In State v. Lindsey, 149 Ariz. 472, 473, 720 P.2d 73, 74 (1986), our supreme court reviewed the admission of expert testimony concerning "behavior patterns of victims of `in-home incestuous-type molesting.'" The court affirmed the admission of such evidence and concluded:
The trial judge has discretion to allow such expert testimony where it may assist the jury in deciding a contested issue, including issues pertaining to accuracy or credibility of a witness' recollection or testimony. [Citations omitted.] The trial judge may exercise this discretion where there is a reasonable basis to believe that the jury will benefit from the assistance of expert testimony that explains recognized principles of social or behavioral science which the jury may apply to determine issues in the case.
Id. "We cannot assume that the average juror is familiar with the behavioral characteristics of victims of child molesting. Knowledge of such characteristics may well aid the jury in weighing the testimony of the alleged child victim." Id. at 473-74, 720 P.2d at 74-75.
Although we concluded that Emerick was not a qualified medical expert pursuant to Treadaway, because of his extensive experience in working with sexual abusers and their victims, he qualifies as an expert under Rule 702 to testify about recognized general characteristics of child sexual abuse victims. We conclude that the trial court did not err in allowing Emerick to generally and objectively describe CSAAS.
Defendant's argument that a Frye test was required before allowing testimony concerning CSAAS also lacks merit. While Arizona follows Frye for certain types of evidence, not all expert testimony is subjected to a Frye analysis. State v. Richards, 166 Ariz. 576, 804 P.2d 109 (App. 1990). Under Frye, the proponent of scientific evidence must show the evidence's reliability by showing it has gained general scientific acceptance and recognition. Id. at 577, 804 P.2d at 110.
We are not aware of any Arizona cases discussing a Frye requirement in a CSAAS context. California, however, ruled that a Frye analysis is not required for similar testimony. See People v. Stoll, 49 Cal.3d 1136, 265 Cal. Rptr. 111, 783 P.2d 698 (1989). In Stoll, defendants were convicted of lewd and lascivious conduct against young children. The California Supreme Court allowed a defense witness to describe psychological test results and an asserted "profile" before concluding that the defendant showed no signs of deviance. Id.
Declining to require the Frye test, the Stoll court concluded:
The testimony and the matter upon which it is based also meet traditional standards for competent expert opinion, without need for additional screening procedures applicable to new, novel, or experimental "scientific" evidence not previously accepted in court. We conclude the trial court erred in using Kelly[2]/Frye to exclude the testimony....
Id. 265 Cal. Rptr. at 127, 783 P.2d at 714.
The conclusion of the California court applies here. The testimony concerning general characteristics of child sexual abuse victims is not "new, novel or experimental scientific evidence" and therefore does not require *326 the additional screening provided by Frye. Again, the admission of expert testimony in this area is a discretionary call and we do not believe the trial court abused its discretion.
PARAPHILIA
Defendant argues that the admission of Emerick's testimony concerning paraphilia was error. Emerick simply defined paraphilia and listed several examples such as voyeurism, fetishism, and pedophilia. Emerick was objective in his testimony and did not involve the facts of the case or defendant in his description. We believe this information from an individual with "specialized knowledge" would aid the jury in deciding an issue before it. Rule 702. We do not believe the trial court clearly abused its discretion by allowing Emerick's testimony concerning paraphilia.
REASONABLE DOUBT
Defendant argues the court committed fundamental error by giving the jury the following definition of reasonable doubt:
The term reasonable doubt means doubt based upon reason. This does not mean an imaginary or possible doubt. It is a doubt which may arise in your minds after a careful and impartial consideration of all the evidence or from the lack of evidence.
See Rudolph J. Gerber, Recommended Arizona Jury Instructions Criminal, State Bar of Arizona, No. 5 (1989).
Defendant did not request a modification nor object to the instruction given by the trial court. Defendant's failure to object to the jury instruction waives any challenge on appeal absent fundamental error. Ariz. R.Crim.P. 21.3(c); e.g., State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).
Two separate panels of this court analyzed an instruction identical to the one in issue. State v. Duzan, 176 Ariz. 463, 469, 862 P.2d 223, 229 (App. 1993) (charge defining reasonable doubt does not constitute fundamental error); but see, State v. Chavarria, 145 Ariz. Adv.Rep. 61 (App. Aug. 1993) (definitional instruction is harmless error). We adopt the analysis of Duzan.
We find no error.
Affirmed.
LANKFORD, J., concurs.
GERBER, Judge, concurring.
I write specially because I reach the same conclusion as the majority on the "prior bad act" issue but for a different reason. The stepdaughter's testimony shows molestations almost continuously over an eight-year period prior to the acts charged here. Though these prior molestations go well beyond the three-year period in Treadaway, there really is no remoteness problem because essentially the same conduct spans the eight years up to the charged offenses. Apart from a short sojourn to Mexico, there never was a significant break in this pattern, which continued until the charged crimes occurred. Under this circumstance, no remoteness problem arises, no medical testimony was needed at all, and the entire span of prior acts was properly admitted. For similar facts, see State v. Spence, 146 Ariz. 142, 704 P.2d 272 (1985).
Secondly, while I concur in the "similarity" conclusion, I do not agree that the act of writing the threatening letter of April 10, 1989 is similar to any act of molestation. Nor, in my view, is that narrow analysis of similarity of specific acts required or even possible. Rather, in a broader view, the similarity consists in the defendant's common method of repeatedly using homicidal threats to induce his victims' submission.
While I concur completely with the majority's analysis that Emerick was unqualified, it needs be underscored that no medical expert was necessary at all because the prior acts were both similar and proximate (because of continuity) to the charged acts, thus obviating in principle the need for the Treadaway approach.
NOTES
[1] Frye v. United States, 293 F. 1013 (D.C. Cir.1923).
[2] People v. Kelly, 17 Cal.3d 24, 130 Cal. Rptr. 144, 549 P.2d 1240 (1976).
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304 F.2d 13
Luis BLANCO, Libellant, Appellee,v.PHOENIX COMPANIA DE NAVEGACION, S. A., Respondent, Appellant.
No. 8558.
United States Court of Appeals Fourth Circuit.
Argued April 3, 1962.
Decided May 23, 1962.
Walter B. Martin, Jr., Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellant.
Sidney H. Kelsey, Norfolk, Va. (Ralph Rabinowitz, Newport News, on brief), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
SOBELOFF, Chief Judge.
1
The principal question raised on this appeal is whether a ship and her owner may limit liability to a seaman under the General Maritime Law by stipulating in the contract of employment the maximum monetary recovery for scheduled personal injuries. A subsidiary question is whether, aside from such a contractual limitation, the present libellant's recovery is excessive.
2
On September 29, 1960, Luis Blanco, an able-bodied seaman of Spanish nationality, was working aboard the S.S. Fenix which flies the Liberian flag. She had taken on a load of coal at Hampton Roads, and while the No. 2 starboard boom was being lowered to its cradle preparatory to going out to sea, a defective gooseneck pin, which attached the heel of the boom to the mast table, broke. The boom was thus dislodged and caused to fall and strike the libellant across the legs. The right side of his body and right leg were crushed between the boom and an edge of a cable spool. After being pinned for forty minutes he was finally freed and removed to the hospital, but because all the nerves and main blood vessels and all but one muscle of his right leg had been severed, the leg could not be saved and was amputated four inches below the hip joint. Infection set in and a long period of drainage followed, but after three months in the hospital the seaman was sufficiently recovered to be put on out-patient status. In addition to losing his leg, the seaman suffered injury to his genitals.
3
Because of the high amputation it was necessary to equip him with a prosthesis which is strapped to his body. With crutches, Blanco is able to move about, but stump irritation prevents him from wearing the twenty pound, plastic and metal leg for more than three hours at a time. He can, of course, no longer do seaman's work, and the prospects of his finding other work in Spain are negligible. Now thirty-seven years old, he lives with his wife and child in a Spanish village whose inhabitants engage chiefly in farming and fishing. He could be trained to do work that requires no standing or walking, but the availability of such opportunities at his place of residence is doubtful. The nearest industry is located forty miles away.
4
Seeking indemnity for his injuries, the seaman filed in the admiralty court a libel in rem against the ship and in personam against her owner, Phoenix Compania de Navegacion, S.A. He claimed the benefits of the Jones Act, 46 U.S.C.A. § 688, and the General Maritime Law, and made the usual averments of negligence and unseaworthiness. Further, the seaman alleged that, while the owner was ostensibly a Liberian corporation, it was in fact controlled by United States citizens. To establish this, interrogatories were propounded to the owner which, rather than reveal the facts as to ownership, admitted that the libellant was entitled to the benefits of the statutory law of the United States.1
5
After taking depositions of members of the crew, which showed that Blanco's injuries were caused by the breaking of a defective gooseneck pin, the libellant moved for summary judgment on the issues of unseaworthiness and causation.2 The shipowner did not resist, and the motion was granted.3 There followed a hearing on the issue of damages, and an award was entered for $101,809.00.
6
On this appeal the contention is made that the judge erred in declining to enforce a provision of the ship's articles, which constituted the seaman's contract of employment, whereby the monetary recovery for the loss of a leg was limited to $1800.00.
7
"From time immemorial, seamen have been called the `wards of admiralty,'"4 and perhaps no other group is provided the protective care that courts of admiralty traditionally extend to them.5 In Mr. Justice Story's classic statement:
8
"They are considered as placed under the dominion and influence of men, who have naturally acquired a mastery over them; and as they have little of the foresight and caution belonging to persons trained in other pursuits of life, the most rigid scrutiny is instituted into the terms of every contract, in which they engage. If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable." Harden v. Gordon, 11 Fed.Cas. 480, 485 (No. 6047) (C.C.Me.1823).
9
Again, Mr. Justice Story has emphasized: "Whenever * * * any stipulation is found in the shipping articles, which derogates from the general rights and privileges of seamen, courts of admiralty hold it void * * * unless two things concur: First, that the nature and operation of the clause is fully and fairly explained to the seamen; and secondly, that an additional compensation is allowed, entirely adequate to the new restrictions and risks imposed upon them thereby." Brown v. Lull, 4 Fed. Cas. 407, 409 (No. 2018) (C.C.Mass. 1836).6
10
The ship argues, however, that these principles, authoritatively laid down over a century ago, should not be enforced. It urges that conditions have changed and that modern seamen no longer need the extraordinary protection afforded them in times past. The answer is twofold. First, the Supreme Court has shown not the slightest inclination to forsake these principles. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Garrett v. Moore-McCormack Co., 317 U.S. 239, 246-249, 63 S.Ct. 246, 87 L.Ed. 239 (1942).7 Second, while there may be cogent reasons for enacting a compensation law for seamen, Congress has not seen fit to adopt such legislation or to interfere with the Supreme Court's interpretation of the law for the protection of seamen.8
11
On examination of the contract in the present case, its inequity is manifest. In return for the absolute right to recover negligible damages, the seaman surrendered his substantial right to recover full indemnity for any loss or damages suffered in consequence of the unseaworthiness of his ship. An admiralty court would be derelict in its duty were it to honor this agreement. We hold it invalid as a matter of law.
12
Moreover, certain decisions go further, strongly indicating that any attempt whatever by a ship to limit its liability to a seaman under the General Maritime Law is against public policy and ipso facto void, irrespective of the fairness of the terms of the agreement. This is the express holding of W. J. McCahan Sugar Refining & Molasses Co. v. Stoffel, 41 F.2d 651, 653-654 (3d Cir. 1930) (post-accident agreement that state workman's compensation shall be the seaman's sole remedy);9 Schellenger v. Zubik, 170 F.Supp. 92, 93 (W.D.Pa. 1959) (agreement to accept state workman's compensation); Vitco v. Joncich, 130 F.Supp. 945, 950-952 (S.D.Cal.1955) (contract providing that seaman's right to wages ended if he became ill during the voyage; excellent collection of cases); Lakos v. Saliaris, 116 F.2d 440, 443-444 (4th Cir. 1940) (agreement modifying seaman's right to full wages at the end of the voyage contrary to United States statutory law);10 Retzekas v. Vygla S.S. Co., 193 F.Supp. 259 (D.R.I.1960) (contract providing that personal injury claims of seamen shall be governed by Greek Law).11
13
These authorities are not without support in the Supreme Court. In Cortes v. Baltimore Insular Lines, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368 (1932), Justice Cardozo, after discussing the duty imposed by the law upon a ship to provide, as an incident of the employment, maintenance and cure to a seaman who falls ill during a voyage and to indemnify him for loss or damage caused by an unseaworthy condition, states categorically: "[G]iven the relation, no agreement is competent to abrogate the incident." Again, in Lauritzen v. Larsen, 345 U.S. 571, 589, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), though holding that the application of foreign law was proper in a suit between a foreign seaman and a foreign ship, the Court said: "We think a quite different result would follow if the contract [of employment] attempted to avoid applicable law * *."12
14
Literally interpreted, these cases suggest that the private compensation agreement in the present case would be unenforceable even if it afforded the seaman an adequate allowance for his concession. Here, however, we need not go so far, having concluded that the agreement is unenforceable for want of sufficient consideration.
15
The second issue raised by the appeal is that the damages awarded for pain, suffering, embarrassment and mental anguish are excessive and clearly erroneous and should not be permitted to stand under Rule 52(a), Fed.R.Civ.P., 28 U.S.C.A. Of the total award of $101,809.00, the sum of $75,000.00 was to compensate for this element of damages. The ship advances the argument that the cost of living is lower in Spain than in the United States, and, therefore, the award, though it might not be excessive if made to an American, greatly overcompensates the Spanish seaman. No comparative figures have been submitted; at all events we cannot say that this seaman has been overcompensated for the excruciating agony he endured while crushed against the cable spool, the pain and anguish of three months of hospitalization, and the discomfort, humiliation and emotional suffering resulting from his being disfigured and crippled for life.
16
Affirmed.
Notes:
1
This admission foreclosed any problem as to whether this seaman is entitled to the benefits of the Jones Act. Compare Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Southern Cross S. S. Co. v. Firipis, 285 F.2d 651 (4th Cir. 1960)
2
Summary judgments in admiralty are authorized by a recent amendment of the Admiralty Rules, Rule 58, 28 U.S.C.A. (Supp. 1962)
3
It is well settled that a latent defect in a ship's equipment renders her unseaworthy. See, e. g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 545-549, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L.Ed. 561 (1944)
4
Harris v. Pennsylvania R. Co., 50 F.2d 866, 868 (4th Cir. 1931)
5
For an excellent, short discussion of this development of the admiralty law, see, Norris, The Seaman as Ward of the Admiralty, 52 Mich.L.Rev. 479 (1954)
6
See also, The David Pratt, 7 Fed.Cas. 22, 24 (No. 3597) (D.C.Me.1839)
7
And see cases collected in Norris, The Law of Seamen 538-555 (1951)
8
While the day of "wooden ships and iron men" may have passed, this is no reason to impose on seamen the rigid and harsh rules of the common law. See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-409, 74 S.Ct. 202, 98 L.Ed. 143 (1953). For a contrary view, see, Lovitt, Things Are Seldom What They Seem: The Jolly Little Wards of the Admiralty, 46 A.B. A.J. 171, 174 (1960); but see, Standard, Are the Admiralty's "Jolly Little Wards" Really So Privileged?, 46 A.B.A.J. 1323 (1960)
9
Cf. The Henry S. Grove, 22 F.2d 444, 446 (D.C.Md.1927); but cf. Bay State Dredging & Contracting Co. v. Porter, 153 F.2d 827, 832-833 (1st Cir. 1946) (criticizing the holding of the Third Circuit)
10
See Glandzis v. Callinicos, 140 F.2d 111, 114 (2d Cir. 1944)
11
See Southern Cross S. S. Co. v. Firipis, 285 F.2d 651, 653-655 (4th Cir. 1960); Voyiatzis v. National Shipping & Trading Corp., 199 F.Supp. 920, 923-925 (S.D. N.Y.1961); Zielinski v. Empresa Hondurena de Vapores, 113 F.Supp. 93 (S.D. N.Y.1953)
12
See also, 45 U.S.C.A. § 55, made applicable to seamen's claims by 46 U.S.C.A. § 688. This section provides that: "Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void * * *." Although it is arguable that the section would not prevent a limitation of liability under the General Maritime Law, as opposed to statutory liability, still the section does indicate that Congress, like the courts, is concerned about the inequality in bargaining of employer and employee
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Case: 17-11360 Date Filed: 01/29/2018 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11360
Non-Argument Calendar
________________________
D.C. Docket No. 6:12-cr-00166-GKS-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY V. WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 29, 2018)
Before WILLIAM PRYOR, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Anthony White appeals his 180-month sentence, imposed on resentencing,
for possessing with intent to distribute 28 grams or more of cocaine base and being
Case: 17-11360 Date Filed: 01/29/2018 Page: 2 of 12
a felon in possession of a firearm. On appeal, White argues that the district court
erred in resentencing him under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), because his Florida conviction for resisting an officer with
violence under Fla. Stat. § 843.01 does not qualify as a “violent felony” under the
ACCA’s elements clause. After careful review, we affirm.
I. PROCEDURAL BACKGROUND
A. Original Conviction and Sentencing
In July 2012, a grand jury indicted White on one count of possession with
intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii) (Count 1), one count of being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1) (Count
2), and one count of possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (Count 3). White later pled guilty to
Counts 1 and 2 of the indictment, and the district court dismissed Count 3 at the
government’s request.
At the time of White’s plea and original sentencing proceeding, both parties
and the district court agreed that White was an armed career criminal subject to the
ACCA’s 15-year mandatory minimum sentence. In determining that White was an
armed career criminal, the presentence report (“PSR”) listed the following five
Florida convictions:
2
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(a) Unlawful Sale, Manufacture or Delivery of a Controlled Substance
within 1000 Feet [o]f a Church, Volusia County Circuit Court,
Case No. 01CF-30133, a felony controlled substance offense,
sentenced on June 9, 2003;
(b) Unlawful Sale/Delivery of a Controlled Substance (Two Counts),
Volusia County Circuit Court, Case No. 01CF-35118, a felony
controlled substance offense, sentenced on June 9, 2003;
(c) Possession of Cocaine and Flee/Attempt to Elude an[] Officer
Volusia County Circuit Court, Case No. 04CF-37692, a felony
crime of violence, sentenced on May 11, 2005;
(d) Resisting Arrest with Violence, Volusia County Circuit Court,
Case No. 08CF-31971, a felony crime of violence, sentenced on
September 21, 2010; and
(e) Flee/Attempt to Elude, Volusia County Circuit Court, Case No.
10CF-30751, a felony crime of violence, sentenced on September
21, 2010. 1
The district court sentenced White to the mandatory minimum (180 months),
and White did not file a direct appeal.
B. White’s 28 U.S.C. § 2255 Motion to Vacate
In June 2016, following the Supreme Court’s decision in Samuel Johnson v.
United States, __ U.S. __, 135 S. Ct. 2551 (2015), invalidating the ACCA’s
residual clause, White filed a counseled 28 U.S.C. § 2255 motion to vacate his
sentence, arguing that he no longer qualified as an armed career criminal because
his prior Florida convictions for resisting an officer with violence and fleeing or
attempting to elude no longer qualified as violent felonies. Due to some confusion
regarding amended judgments that were issued as to two of White’s state
1
Count 2 of the indictment likewise listed these offenses, as well as one additional June 9,
2003 conviction for unlawful possession of a controlled substance.
3
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convictions since his original federal sentencing, 2 the government initially agreed
that White no longer qualified for an ACCA sentence, and the parties filed a joint
stipulation stating that White’s § 2255 motion should be granted and he should be
resentenced without the ACCA enhancement. Accordingly, the district court
granted White’s § 2255 motion, vacated the judgment in his criminal case, and
directed the U.S. Probation Office to prepare an updated guidelines calculation.
C. Resentencing Proceedings
Upon reviewing White’s prior convictions in accordance with the district
court’s order, the probation officer determined that White still qualified for the
ACCA enhancement based on the following Florida convictions:
(a) Unlawful Sale, Manufacture or Delivery of a Controlled Substance
within 1000 Feet of a Church, Volusia County Circuit Court, Case
No. 01-CF-30133, a felony controlled substance offense, sentenced
on June 9, 2003;
(b) Unlawful Sale/Delivery of a Controlled Substance (two counts),
Volusia County Circuit Court, Case No. 01-CF-35118, a felony
controlled substance offense, sentenced on June 9, 2003; and
(c) Resisting Arrest with Violence, Volusia County Circuit Court,
Case No. 08-CF-31971, a felony crime of violence, sentenced on
September 21, 2010.
The district court directed the parties to respond to the probation officer’s
recommendation. The government agreed with the probation officer’s assessment
2
It appears that the state court merely corrected clerical errors in the case numbers
associated with the two cases, but did not substantively alter White’s convictions in any way.
Initially, however, the government mistakenly believed that the state court had only amended
White’s resisting an officer with violence conviction to a fleeing and eluding conviction. As a
result, the government initially believed that, after Johnson, White had only two qualifying
predicate offenses—his two sale of a controlled substance offenses.
4
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that White remained an armed career criminal. In relevant part, the government
argued that White’s conviction for resisting an officer with violence under Fla.
Stat. § 843.01 categorically qualifies as violent felony under the ACCA’s elements
clause, citing this Court’s decisions in United States v. Hill, 799 F.3d 1318 (11th
Cir. 2015), and United States v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012),
both of which held that a conviction under § 843.01 involves the requisite degree
of force to qualify as an offense that “has as an element the use, attempted use, or
threatened use of physical force.” 18 U.S.C. § 924(e)(2)(B)(i).
White contended that his resisting an officer with violence conviction did
not qualify as an ACCA predicate under the elements clause. White asserted that
Romo-Villalobos had been abrogated by the Supreme Court’s subsequent decisions
in Moncrieffe v. Holder, 569 U.S. 184, 133 S. Ct. 1678 (2013), and Descamps v.
United States, 570 U.S. 254, 133 S. Ct 2276 (2013). Although Hill was decided
after Moncrieffe and Descamps, White argued that Hill failed to consider
Moncrieffe or Descamps, and as such, need not be followed. White maintained
that, applying the appropriate analysis, convictions under § 843.01 do not qualify
as ACCA predicates under the elements clause because: (1) the “violence” element
of the offense could be satisfied by a de minimis use of force; and (2) the statute
requires only general intent to commit the actus reus of the offense (resisting an
officer) and does not require a specific intent to apply violent force.
5
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At the resentencing hearing, White first argued that the government should
be bound by its initial stipulation that he was no longer an armed career criminal.
White then reiterated his arguments as to why his § 843.01 conviction did not
qualify as an ACCA predicate under the elements clause. The government
responded that it should not be bound by the stipulation because it was made based
on incorrect facts and that Hill controlled the outcome of this case. See Hill, 799
F.3d at (holding, after Moncrieffe and Descamps, that a conviction under § 843.01
categorically qualifies as a violent felony under the ACCA’s elements clause).
The district court agreed with the government that it was bound by Hill and
concluded that White still qualified as an armed career criminal. Accordingly, the
district court resentenced White to the same 180-month sentence he originally
received and issued an amended judgment to that effect. White now appeals from
that amended judgment.
II. DISCUSSION3
Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) is
subject to a mandatory minimum sentence of 15 years (180 months) if he has three
prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C.
§ 924(e)(1). A “violent felony” is any crime punishable by a term of imprisonment
exceeding one year that:
3
We review de novo whether a prior conviction is a violent felony within the meaning of
the ACCA. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014).
6
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(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.
18 U.S.C. § 924(e)(2)(B). The first prong is referred to as the “elements clause,”
while the second prong contains the “enumerated crimes” and the “residual
clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). In Samuel
Johnson, the Supreme Court struck down the ACCA’s residual clause as
unconstitutionally vague, but did not call into question the validity of the ACCA’s
enumerated crimes or elements clause. 135 S. Ct. at 2563. Under the elements
clause, “the phrase ‘physical force’ means violent force—that is, force capable of
causing physical pain or injury to another person.” Curtis Johnson v. United
States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010).
Florida law provides that anyone who “knowingly and willfully resists,
obstructs, or opposes any [law enforcement] officer . . . by offering or doing
violence to the person of such officer . . . is guilty of a felony of the third degree.”
Fla. Stat. § 843.01. Under Florida law, resisting an officer with violence is a
general intent crime, meaning that the defendant must have a general intent to
knowingly and willfully impede an officer in the performance of his or her duties,
and need not have the specific intent of doing violence. Polite v. State, 973 So. 2d
1107, 1112 (Fla. 2007); Frey v. State, 708 So. 2d 918, 920 & n.2 (Fla. 1998). In
7
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other words, to be convicted under § 843.01, the defendant must deliberately
engage in the violent conduct with the purpose of resisting or obstructing a law
enforcement officer. See Polite, 973 So. 2d at 1112-13 (explaining that the words
“knowingly” and “willfully” require a defendant to act with “awareness or
understanding . . . intending the result which actually comes to pass”).
Furthermore, “violence is a necessary element of the offense” of resisting an
officer with violence. Rawlings v. State, 976 So. 2d 1179, 1181-82 (Fla. Dist. Ct.
App. 2008); accord Walker v. State, 965 So. 2d 1281, 1284 (Fla. Dist. Ct. App.
2007) (“One of the elements of resisting arrest with violence under section 843.01
is either offering to do violence or actually doing it.”). And Florida courts have
held that “[o]ffering to do violence plainly involves the threat of physical force or
violence[,] while actually doing violence involves the use . . . of physical force or
violence.” Harris v. State, 5 So. 3d 750, 751 (Fla. Dist. Ct. App. 2009) (internal
quotation marks omitted) (third alteration in original); see also Walker, 965 So. 2d
at 1284. Furthermore, in analyzing Florida’s own violent career criminal
sentencing statute, the Florida Supreme Court has interpreted the phrase “involving
the use or threat of physical force or violence” to require more than de minimis or
slight force. See State v. Hearns, 961 So. 2d 211, 218-19 (Fla. 2007).
In sum then, to be convicted of resisting an officer with violence under
§ 843.01, a defendant must intentionally resist or obstruct a law enforcement
8
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officer in the performance of his duties by conduct that involves either the
threatened use or actual use of more than de minimis force against the officer. As
we previously explained in Romo-Villalobos and Hill, this “is sufficient for
liability under the [elements clause] of the ACCA.” Romo-Villalobos, 674 F.3d at
1251 (internal quotation marks omitted); Hill, 799 F.3d at 1322-23.
Moreover, in Romo-Villalobos, this Court considered and rejected the very
same arguments that White raises here. See Romo-Villalobos, 674 F.3d at 1249-
51. White argues on appeal, as he did in the district court, that convictions under
§ 843.01 cannot qualify under the elements clause because (1) the “doing violence”
element of the offense can be satisfied by de minimis force, and (2) the offense
requires only a general intent to commit the actus reus, and not a specific intent to
use violent force.
With regard to his first argument, White relies on State v. Green, 400 So. 2d
1322, 1323-24 (Fla. Dist. Ct. App. 1981), in which the Fifth District Court of
Appeal (“DCA”) reversed the trial court’s dismissal of a § 843.01 charge based on
the defendant’s contention that he had merely “wiggled and struggled” when
officers attempted to arrest him. As we explained in Romo-Villalobos, however,
the Fifth DCA did not hold that de minimis contact was sufficient to satisfy the
“doing violence” element of § 843.01. Romo-Villalobos, 674 F.3d at 1249.
Rather, the Fifth DCA concluded that the defendant’s description of his conduct
9
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was ambiguous and, viewed in the light most favorable to the state, a factual issue
existed for trial as to whether the defendant had engaged in conduct sufficient to
satisfy the “doing violence” element. Id.; Green, 400 So. 2d at 1323-24. In any
event, as explained above, under Florida law “doing violence” requires the use or
threatened use of physical force that is more than slight or de minimis. See
Hearns, 961 So. 2d at 218-19; Harris, 5 So. 3d at 751.
As for his second argument, White contends that because § 843.01 does not
require the specific intent to use violent force, a defendant may be convicted for
conduct that is merely reckless, and reckless conduct does not satisfy the elements
clause’s “use of force” requirement. Like his first argument, White’s
characterization of Florida law regarding general intent crimes is incorrect. In
Romo-Villalobos, this Court explained that the Florida Supreme Court has never
equated the general intent required for commission of an offense under § 843.01
with recklessness, and Florida courts have distinguished general intent crimes,
which prohibit either “a specific voluntary act or something that is substantially
certain to result from the act,” from accidental or strict liability crimes. Romo-
Villalobos, 674 F.3d at 1250-51 (internal quotation marks omitted). This analysis
is consistent with our discussion above, which shows that to be convicted of an
offense under § 843.01, a defendant must deliberately engage in conduct that
actually involves the use or threatened use of violent physical force for the purpose
10
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of impeding an officer in his duties. See Polite, 973 So. 2d at 1112-13; Harris, 5
So. 3d at 751; Hearns, 961 So. 2d at 218-19.
Finally, in an effort to avoid the binding force of Romo-Villalobos and Hill,
White argues that this Court need not follow our prior panel precedent rule in this
case because (1) Romo-Villalobos has been abrogated by the Supreme Court’s
decisions in Moncrieffe and Descamps, and (2) in following Romo-Villalobos, Hill
failed to consider the impact of those decisions. See United States v. Archer, 531
F.3d 1347, 1352 (11th Cir. 2008) (“Under [the prior panel precedent] rule, a prior
panel’s holding is binding on all subsequent panels unless and until it is overruled
or undermined to the point of abrogation by the Supreme Court or by this court
sitting en banc.”). In support of his position, White cites Tucker v. Phyfer, 819
F.2d 1030, 1035 n.7 (11th Cir. 1987), in which a panel of this Court declined to
follow the reasoning of a prior panel because the prior panel had not considered
relevant Supreme Court precedent.
We disagree with White’s assertions that Romo-Villalobos has been
abrogated by Moncrieffe and Descamps and that the Hill panel erred in relying on
Romo-Villalobos without explicitly addressing those decisions. 4 Even if we
agreed with White’s position, however, Hill would still bind us, Tucker
4
White is of the opinion that the Hill Court’s failure to mention Moncrieffe and
Descamps in analyzing § 843.01 reflects a failure to consider those decisions. We think it more
likely that the Hill Court simply saw no need to discuss those decisions because they had no
impact on the accuracy of Romo-Villalobos’s reasoning.
11
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notwithstanding. This Court sitting en banc has since reiterated that “[u]nder our
prior precedent rule, a panel cannot overrule a prior one’s holding even though
convinced it is wrong.” United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.
1998) (en banc) (emphasis added). Moreover, this Court repeatedly has rejected
the argument that there is an exception to the prior panel precedent rule where a
prior panel allegedly failed to address relevant Supreme Court precedent. See, e.g.,
United States v. Fritts, 841 F.3d 937, 942 (11th Cir. 2016) (“Under this Court’s
prior panel precedent rule, there is never an exception carved out for overlooked or
misinterpreted Supreme Court precedent.”); Smith v. GTE Corp., 236 F.3d 1292,
1303 (11th Cir. 2001) (“[I]f there ever was an exception to the prior precedent rule
such as that expressed in Tucker, it did not survive the pronouncement of the en
banc Court in [Steele] . . . .”).
In sum, given Romo-Villalobos and Hill, White’s challenge to his ACCA
sentence fails, and the district court did not err in resentencing him as an armed
career criminal based on his conviction for resisting an officer with violence under
Fla. Stat. § 843.01. Accordingly, we affirm.
AFFIRMED.
12
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207 P.3d 149 (2009)
NEIGHBORS FOR RESPONSIBLE GROWTH, a non-profit unincorporated association; Preserve Our Rural Communities, a non-profit unincorporated association; Kootenai Environmental Alliance, Inc., a non-profit corporation; Norbert and Beverly Twillman; Greg and Janet Torline; Susan Melka; Merlyn and Jean Nelson, Plaintiffs,
v.
KOOTENAI COUNTY, a political subdivision of the State of Idaho acting through the Kootenai County Board of Commissioners; S.J. "Gus" Johnson, Chairman; Elmer R. "Rick" Currie and Katie Brodie, Commissioners, in their official capacities; and Katie Brodie, personally and individually, Defendants, and
Powderhorn Communities LLC and Heartland LLC, Intervenors,
Coeur d'Alene Land Company and H.F. Magnuson, Intervenors-Appellants.
Neighbors for Responsible Growth, a non-profit unincorporated association; Preserve Our Rural Communities, a non-profit unincorporated association; Kootenai Environmental Alliance, Inc., a non-profit corporation; Norbert and Beverly Twillman; Greg and Janet Torline; Susan Melka; Merlyn and Jean Nelson, Plaintiffs-Respondents,
v.
Kootenai County, a political subdivision of the State of Idaho acting through the Kootenai County Board of Commissioners; S.J. "Gus" Johnson, Chairman; Elmer R. "rick" Currie and Katie Brodie, Commissioners, in their official capacities; and Katie Brodie, personally and individually, Defendants, and
Powderhorn Communities LLC, and Heartland LLC, Intervenors-Appellants, and
Coeur d'Alene Land Company and H.F. Magnuson, Intervenors.
Nos. 34591, 34592.
Supreme Court of Idaho, Boise, February 2009 Term.
April 6, 2009.
*150 John F. Magnuson, Coeur d'Alene, for appellants, Coeur d'Alene Land Company and H.F. Magnuson.
Lukins & Annis, P.S., Coeur d'Alene, for appellants, Powderhorn Communities, LLC and Heartland LLC. Mischelle Fulgham argued.
Scott W. Reed, Coeur d'Alene, for respondents.
HORTON, Justice.
This is an appeal from the district court's judgment vacating and remanding a decision by the Kootenai County Board of Commissioners (the Board) to amend the Kootenai County Comprehensive Plan (the Plan). Heartland, LLC, acting on behalf of Powderhorn Communities, LLC, (collectively referred to as Powderhorn), filed an application requesting that the Board amend the Plan, which the Board approved. Respondent Neighbors for Responsible Growth (Neighbors) filed a petition seeking judicial review of the Board's decision. The district court granted review, vacated the Board's decision, and remanded the matter for further proceedings. Powderhorn, along with Coeur d'Alene Land Company and H.F. Magnuson (Magnuson), (collectively referred to as Appellants) intervened below and now appeal the district court's decision.
*151 I. FACTUAL AND PROCEDURAL BACKGROUND
On December 16, 2005, Powderhorn filed an application on behalf of all landowners in the geographic area known as the Powderhorn Peninsula requesting that the Plan be amended to designate the peninsula as a rural residential area. The Kootenai County Planning Commission (the Commission) prepared a staff report and held a public hearing on the matter on April 27, 2006. The Commission recommended denial of the application. Powderhorn subsequently amended its application and requested that the peninsula be designated as rural, rather than rural residential. On September 14, 2006, the Board conducted a public hearing on the application, and on September 25, 2006, the Board visited the peninsula. Neighbors alleged that a member of the Board had improper contact with a Powderhorn representative during the visit, and as a result the Board re-opened public testimony and held another public hearing on the matter on October 4, 2006. On November 9, 2006, the Board entered an initial order granting the request for an amendment to the Plan, which it subsequently revised into a final order approving the amendment. The Board's final order was issued November 16, 2006.
On November 15, 2006subsequent to the Board's initial order but prior to its final orderNeighbors filed a petition for review of the Board's decision with the district court. Neighbors later filed a motion to stay proceedings related to requests for zoning changes made by the peninsula landowners, and the district court set a hearing on the motion for December 18, 2006. Powderhorn intervened in the proceedings and opposed the motion to stay; however, the motion was granted by the district court without imposition of terms or a bond. Powderhorn then filed a motion to dismiss Neighbors' petition for judicial review, based in part on the fact that Neighbors had not timely appealed the Board's final order. Neighbors subsequently filed an amended petition seeking review of the Board's final order.
The amended petition also added a claim for declaratory relief based upon alleged improper ex parte communications and conflicts of interest during the proceedings before the Board. The district court denied Powderhorn's motion to dismiss the initial petition, and Powderhorn then moved to strike the amended petition on the basis of alleged improper procedure. At this point, Magnuson intervened and joined Powderhorn in objecting to Neighbors' amended petition. In response, Neighbors filed an alternative motion to amend its petition. At a hearing on May 31, 2007, the district court indicated that it would allow Neighbors to go forward with its petition for review of the Board's final order and would not dismiss Neighbors' claim for declaratory relief, but that it would not hear argument on the claim for declaratory relief at a hearing on the merits of the Board's decision scheduled for June 5, 2007.
At the June 5 hearing, the district court sua sponte raised the issue of the applicability of I.C. § 67-6509(b) and Price v. Payette County Bd. of County Comm'rs, 131 Idaho 426, 958 P.2d 583 (1998), to the facts of this case. The district court postponed a decision in order to allow the parties to submit briefing on the issue of whether the Board complied with public hearing requirements, as set out in I.C. § 67-6509(b) and explained in Price. Finally, on July 25, 2007, the district court vacated and remanded the Board's decision, based on the fact that the Board failed to hold a public hearing in violation of I.C. § 67-6509(b) after announcing that it would amend the Plan despite the recommendation of the Commission that the Plan should not be amended. The district court awarded costs to Neighbors. Appellants timely appealed to this Court.
On March 27, 2008, we published Giltner Dairy, LLC v. Jerome County, 145 Idaho 630, 181 P.3d 1238 (2008), holding that Giltner was not entitled to judicial review of Jerome County's decision to amend its comprehensive plan map and that Giltner must pay the attorney fees of both the county and a third-party intervenor in the case. Upon reading Giltner, counsel for Neighbors decided that the decision is "totally dispositive" of the instant case and therefore, on April 22, 2008, asked this Court to suspend this appeal, pursuant to I.A.R. 13.2, and remand the matter to the district court, under I.A.R. *152 13.3, with instructions to the district court to dismiss Neighbors' petition for review with prejudice. Neighbors asserted that no costs or attorney fees should be awarded to any party in this case.
Initially, we ordered that Neighbors be dismissed from the case and that Appellants alone be allowed to proceed on the sole issue of attorney fees. After Neighbors moved for reconsideration and requested oral argument, we withdrew our initial order and allowed all parties to present oral argument on the issue of attorney fees.
II. STANDARD OF REVIEW
"The Supreme Court in its decision on appeal shall include its determination of a claimed right to attorney fees...." I.A.R. Rule 41(c). When an award of attorney fees depends on the interpretation of a statute, the standard of review for statutory interpretation applies. BECO Const. Co., Inc. v. J-U-B Engr's, Inc., 145 Idaho 719, 726, 184 P.3d 844, 851 (2008). The interpretation of a statute is a question of law over which this Court exercises free review. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001).
III. ANALYSIS
A. The district court's judgment must be vacated and this matter remanded with instructions to dismiss the petition for review.
Neighbors has conceded that it has no right to petition for review of the Board's decision in light of this Court's recent decision in Giltner Dairy v. Jerome County, 145 Idaho 630, 181 P.3d 1238 (2008). Appellants agree that Giltner, which was released after Appellants brought this appeal, is "totally dispositive" of the substantive issues in this matter.
In Giltner, Giltner Dairy sought judicial review of the county commission's decision to amend its comprehensive plan map to reflect that the land belonging to Giltner's neighbor, Golf Ranch, is an area transitioning from agricultural to urban use, rather than an area of strictly agricultural use. Id. at 631, 181 P.3d at 1239. Giltner argued that the district court had jurisdiction to review the commission's decision under I.C. § 67-6521, which grants the right to judicial review in accordance with the Idaho Administrative Procedure Act to "[a]n affected person aggrieved by a decision." Id. at 632, 181 P.3d at 1240. This Court noted that I.C. § 67-6521(1)(a) defines "affected person" as "one having an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing the development." Id. We held that because the county's amendment to its comprehensive plan map was not a permit authorizing development, Giltner was not an "affected person" and was therefore not authorized by I.C. § 67-6521 to file a petition for review of the amendment. Id. at 634, 181 P.3d at 1241.
Neighbors, like Giltner, petitioned for review pursuant to I.C. § 67-6521. The Board's amendment to the Plan designating the peninsula as a rural area, like the amendment by the Jerome County commissioners, is not a permit authorizing development. Neighbors, like Giltner, is thus not an "affected person" and is not entitled to judicial review of the Board's decision under I.C. § 67-6521. We therefore vacate the district court's judgment and remand with instructions to dismiss the petition for review. We turn now to the question of attorney fees.
B. Appellants are not entitled to attorney fees.
Appellants did not address the issue of attorney fees below in their opening briefs, and thus we decline to address the same. McVicker v. City of Lewiston, 134 Idaho 34, 38, 995 P.2d 804, 808 (2000) (citing I.A.R. 35(a)(6)). Appellants also failed to ask for attorney fees on appeal under I.C. § 12-121 in their opening briefs, and thus we decline to address this issue as well.[1]Id. *153 Appellants did, however, request attorney fees on appeal pursuant to I.C. § 12-117 in their opening briefs, and we now examine whether they are entitled to the same.
Idaho Code § 12-117 states in relevant part that:
Unless otherwise provided by statute, in any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the prevailing party reasonable attorney's fees, witness fees and reasonable expenses, if the court finds that the party against whom the judgment is rendered acted without a reasonable basis in fact or law.
The dispositive phrase is "involving as adverse parties ... a county ... and a person." We read this phrase to mean that in order for Appellants to receive an award under I.C. § 12-117, they must be adverse to Kootenai County. This interpretation is in keeping with our recent decision in Galli v. Idaho County, 146 Idaho 155, 191 P.3d 233 (2008). In Galli we held that because the Gallis were not adverse to the county they were not entitled to an award of attorney fees under I.C. § 12-117. Id. at 161, 191 P.3d at 239. The county's only involvement in Galli was to object to attorney fees; it did not participate in the merits of the appeal. Id. Similarly, the county in this case is not adverse to either party. The county's only involvement in this appeal was to waive any objection to Neighbors' motion to dismiss and to waive any claim to attorney fees. Furthermore, Appellants are intervenors on the side of the countyperhaps the most obvious indicator that the two are not adverse. Thus, because Appellants are not adverse to the county, they are not entitled to an award of attorney fees under I.C. § 12-117.
This holding may appear to conflict with our decision in Rural Kootenai Org., Inc. v. Bd. of Commr's, 133 Idaho 833, 845, 993 P.2d 596, 608 (1999). In that case, a developer intervened on the side of the county, and the county lost on appeal. We stated that, pursuant to I.C. § 12-117, "[the intervenor] shall share the burden of appellate costs with the County." Id. at 846, 993 P.2d at 609. This holding suggests that, since we levied costs against an intervenor who was not adverse to the county under I.C. § 12-117, we may also logically make an award of attorney fees to Appellants under that same provision. In Rural Kootenai, this Court was explicit, however, that it was only awarding costs and not attorney fees against the intervenor pursuant to I.C. § 12-117. Because costs are awarded to a prevailing party on appeal as a matter of course pursuant to I.A.R. 40, our reference to I.C. § 12-117 as a basis for the award of costs is mere dicta. Thus, we conclude that our decision in Rural Kootenai does not control our decision regarding Appellants' request for attorney fees under I.C. § 12-117.
Furthermore, our holding today is in line with the legislative evolution of I.C. § 12-117. When initially enacted in 1984, I.C. § 12-117 allowed only for an award of attorney fees to be levied against a state agency in favor of a person. 1984 Idaho Sess. Laws, ch. 204, § 1, p. 501. Ten years later, the statute was expanded to include cities, counties and taxing districts. 1994 Idaho Sess. Laws, ch. 36, § 1, p. 55. However, the statute continued to provide that only the person, not the governmental entity, was entitled to an award of attorney fees. In 2000, the statute was amended to create a "two-way street," authorizing an award of attorney fees to either the governmental entity or to the person in the event "that the party against whom the judgment is rendered acted without a reasonable basis in fact or law." 2000 Idaho Sess. Laws, ch. 241, § 1, p. 675. The statute has never been amended, however, to provide for an award to a person who is not adverse to the governmental entity. We decline to infer that the Legislature intended that one person might recover from *154 another person under I.C. § 12-117 solely because of the presence of a governmental entity in the litigation.
Appellants' request for an award of attorney fees under I.C. § 12-117 fails because they are not adverse to the county.[2] Appellants are the prevailing party, however, and as such they are entitled to costs on appeal pursuant to I.A.R. 40.
IV. CONCLUSION
Our decision in Giltner is dispositive of this appeal, and thus we vacate the district court's judgment and remand with instructions to dismiss Neighbors' petition for judicial review. Appellants are awarded costs but not attorney fees on appeal.
Justices BURDICK, J. JONES, W. JONES and Justice Pro Tem TROUT concur.
NOTES
[1] Appellants did ask for attorney fees under I.C. § 12-121 in their reply briefs. This belated request appears to be in response to the release of Giltner Dairy, in which we awarded attorney fees to intervenor Golf Ranch under that provision. Giltner Dairy, 145 Idaho at 634, 181 P.3d at 1242. We take this opportunity to observe that the award to Golf Ranch was improvidently granted. Idaho Code § 12-121 states in relevant part that: "In any civil action, the judge may award reasonable attorney's fees to the prevailing party...." (Emphasis added). Giltner came before us on appeal from a petition to review county action. In Lowery v. Bd. of County Commr's for Ada County, 117 Idaho 1079, 1082, 793 P.2d 1251, 1254 (1990), we held that where a case is before an appellate court on petition for judicial review of county action, such a matter is not a civil action because it does not commence with the filing of a complaint as required by I.R.C.P. 3(a). Thus, we held that it was error to award attorney fees pursuant to I.C. § 12-121 in connection with a petition for judicial review. Id.
[2] In Galli, this Court stated two reasons for not awarding attorney fees to the Gallis under I.C. § 12-117: that the county and the Gallis were not adverse and that "no judgment [had] been rendered." 146 Idaho at 161, 191 P.3d at 239. The latter statement is dicta. A "judgment" is "[a] court's final determination of the rights and obligations of the parties in a case. The term judgment includes a decree and any order from which an appeal lies." BLACK'S LAW DICTIONARY 846 (7th ed. 1999). Clearly, a court's decision regarding a petition for judicial review may be a "judgment."
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867 P.2d 551 (1994)
126 Or. App. 86
In the Matter of the Adoption of Baby Boy Hylland/Ohnemus.
Mark A. HYLLAND, Appellant,
v.
John and Jane DOE, adoptive parents of Baby Hylland/Ohnemus, Respondents.
920114L1, CA A76369.
Court of Appeals of Oregon.
Submitted on Record and Briefs April 15, 1993.
Decided January 19, 1994.
Review Denied March 22, 1994.
*553 Mark A. Hylland filed the briefs pro se.
John Chally, Sandra L. Hodgson, Bouneff and Chally, Portland, and Colette Boehmer, Medford, filed the brief for respondents.
Before WARREN, P.J., and EDMONDS and LANDAU, JJ.
LANDAU, Judge.
In this proceeding to vacate an adoption decree, the putative father (father) appeals from a judgment entered after the trial court granted summary judgment for the adoptive parents. We affirm.
On August 2, 1991, mother gave birth to a child in Oregon. Both mother and father resided in California when the child was conceived. Sometime before August, 1991, mother had moved to Oregon without telling father where she would be. Father unsuccessfully tried to find her. On August 8, he filed a filiation proceeding in California to establish paternity and to obtain custody of the child. Mother was unaware of the filiation proceeding and, on August 9, she executed a consent for adoption to a licensed adoption agency, which immediately placed the child for adoption with adoptive parents. Adoptive parents took physical custody of the child the next day. Since then, the child has lived with them in Oregon.
On September 4, 1991, adoptive parents filed a petition for adoption in Jackson County Circuit Court, alleging, among other things, that
"[t]he birth father's name is unknown. Paternity of the child has not been judicially established, nor has anyone claiming to be the birth father filed a declaration of paternity with the Department of Vital Statistics / see attached exhibit "D". The birth father's right to object is barred by ORS 109.096(3)."
The same day, the adoption court signed an order appointing adoptive parents as legal guardians of the child. On October 4, after a hearing, the court entered the adoption judgment, finding:
"No person has been legally established as the father of [the child]. To the best of [adoptive parents'] knowledge, no person has initiated any legal proceedings to establish his parental rights regarding [the child]. Notice of the adoption proceedings to the natural father of the named minor child is waived as he has not initiated or filed notice of initiation of filiation proceedings as provided by ORS 109.096(3) * * *."
On November 5, 1991, the Oregon Department of Vital Statistics received a letter from father stating that he had filed proceedings on August 8, 1991, in California to establish paternity and to obtain custody. On November 19, 1991, a hearing was held before the Los Angeles Superior Court, and on December 9, a judgment of paternity by default was entered, granting father sole custody of the child.
On December 20, 1991, father initiated this action to vacate the Oregon adoption judgment. He argued that the adoption was void because the Oregon court lacked jurisdiction to enter it. Both father and adoptive parents moved for summary judgment. The trial court granted adoptive parents' motion and denied father's. This appeal followed.
Father argues that the trial court erred in granting summary judgment for adoptive parents because, under Oregon's Uniform Child Custody Jurisdiction Act (UCCJA),[1] the adoption court lacked jurisdiction.[2] ORS 109.730 provides, in part:
"(1) A court of this state which is competent to decide child custody matters has *554 jurisdiction to make a child custody determination by initial or modification decree if:
"(a) This state is the home state of the child at the time of commencement of the proceeding * * *."
ORS 109.710(5) defines "home state" as
"the state in which the child, immediately preceding the time involved, lived with the parents of the child, a parent, or a person acting as parent, for at least six consecutive months, and, in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned."
Adoptive parents argue that Oregon is the "home state" because the child was born in Oregon; at the time of the adoption, the child was less than six months old; and the child has lived in Oregon since birth with persons acting as his parents. Father argues that, because the adoption agency had legal custody of the child before he was adopted, the child has not lived from birth with a "person acting as parent." We disagree with father. "Person acting as parent" means "a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody." ORS 109.710(9). (Emphasis supplied.) When the child was born, he lived with his birth mother until August 9, 1991, when she executed a consent for adoption. The next day, the child was placed in adoptive parents' physical custody and care, and has since lived with them. Although adoptive parents had not then been awarded legal custody, they had a colorable claim to custody, because mother had consented to the adoption. See ORS 109.316; ORS 418.270; Rogers v. Platt, 199 Cal. App.3d 1204, 1212-13, 245 Cal.Rptr. 532 (1988). After they were appointed legal custodians of the child on September 4, 1991, their right to custody was clearly established. We conclude that Oregon is the child's "home state" within the meaning of ORS 109.710(5), and the adoption court had jurisdiction.[3]
Father next argues that, even if the adoption court had jurisdiction, it erred in exercising that jurisdiction because adoptive parents failed to provide that court with certain information required by the UCCJA. ORS 109.790 requires a person petitioning for adoption to state "in the first pleading" or in an affidavit attached to that pleading, information concerning the child's address, the places where the child has lived during the preceding five years and the names and addresses of those with whom the child lived during that time. Also required is a declaration under oath whether
"[t]he party has information of any custody proceeding concerning the child pending in a court of this or any other state * * *." ORS 109.790(1)(b).
Although father does not identify precisely what information adoptive parents failed to provide, his contention appears to be that adoptive parents should have informed the adoption court of the pending California filiation proceeding. However, it is undisputed that adoptive parents did not know about the California proceeding until after the Oregon adoption was granted. The UCCJA requires the parties initiating the adoption proceeding to declare whether they know of other pending proceedings. Adoptive parents did that.
Father also argues that the adoption court erred in exercising jurisdiction, because the California filiation proceeding was filed before the adoption proceeding, and the California courts retained exclusive jurisdiction. Father relies on ORS 109.760(1), which provides:
"A court of this state shall not exercise its jurisdiction * * * if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state * * *." *555 However, that statutory provision must be read in context. PGE v. Bureau of Labor & Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993). The balance of ORS 109.760 reads:
"(2) Before hearing the petition in a custody proceeding, the court shall examine the pleadings and other information supplied by the parties under ORS 109.790 and shall consult the child custody registry established under ORS 109.860 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
"(3) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with ORS 109.890 to 109.920. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum."
When read in context, it is clear that ORS 109.760(1) requires the adoption court to refrain from exercising jurisdiction if it is made aware of the pendency of a custody proceeding elsewhere. Nothing in the statute provides that a final adoption decree may later be set aside because, unbeknown to the court or the parties to the adoption proceeding, there was at that time a pending proceeding in another state. See, e.g., Matter of Marriage of Nasica, 12 Kan.App.2d 794, 797, 758 P.2d 240 (1988). In this case, father concedes that the adoption court had no information about any pending proceedings. Moreover, there is nothing in the record indicating that the adoption court could have known about such a proceeding had it consulted the child custody registry. Father did not send notice of the California filiation proceeding until nearly a month after the adoption became final.
Father's argument that the California court had exclusive jurisdiction is equally unavailing. California's child custody jurisdiction statute is virtually identical to ORS 109.730(1). The California statute provides:
"(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met:
"(a) This state is * * * the home state of the child at the time of commencement of the proceeding * * *;
"(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships." Cal Civ Code § 5152(1).
California cannot assert jurisdiction under section 5152(1)(a), because that state is not the "home state" of the child. Oregon is. Nor can California assert jurisdiction under section 5152(1)(b), because there is no evidence that the child, having lived exclusively in Oregon, has any connection with California. In re Marriage of Arnold, 222 Cal. App.3d 499, 503, 271 Cal.Rptr. 624 (1990); Allison v. Superior Court of Los Angeles County, 99 Cal.App.3d 993, 998, 160 Cal. Rptr. 309 (1979).
Father next argues that the adoption court erred in exercising jurisdiction because father had not consented to the adoption. In support of his argument, father relies on Eder v. West, 312 Or. 244, 260, 821 P.2d 400 (1991), in which the Supreme Court held that consent to adoption by parents is a prerequisite to the exercise of jurisdiction, unless there is a statutory exception that applies. *556 Adoptive parents argue that father's consent was not required because ORS 109.092 provides just such a statutory exception. ORS 109.092 provides, in part:
"When it is determined that a woman is pregnant with a child, the woman and any man to whom she is not married and with whom she engaged in sexual intercourse at approximately the time of conception have an obligation to recognize that the man may be the other person responsible for the conception. * * * If after the birth of the child the mother decides to surrender the child for adoption and paternity has not been acknowledged as provided in ORS 109.070(5) or the putative father has not asserted his rights in filiation proceedings, the mother has the right without the consent of the father to surrender the child as provided in ORS 418.270 or to consent to the child's adoption."
Father responds that, by filing his filiation proceeding in California first, he had "asserted" his rights and his consent was, therefore, necessary before the child was surrendered for adoption. To determine whether father "asserted" his rights within the meaning of ORS 109.092 merely by filing the California filiation proceeding, we must consider not only the text of the statute, but also its context, PGE v. Bureau of Labor & Industries, supra, 317 Or. at 611, 859 P.2d 1143, which includes other provisions of the same statute as well as other related statutes. Therefore, we must examine ORS 109.092 in conjunction with ORS 109.225, the statute governing filiation proceedings, and ORS 109.096, the statute governing notice to putative fathers.
ORS 109.225[4] provides a mechanism for putative fathers to protect their rights in Oregon. It provides that "after filing the filiation proceeding" the putative father must cause a notice to be filed with the Oregon Vital Statistics Unit concerning that proceeding. ORS 109.096(3) provides one consequence of failure to comply with ORS 109.225 by putative fathers who have not established their paternity:
"The putative father shall be entitled to reasonable notice in a proceeding for the adoption of the child if notice of the initiation of filiation proceedings as required by ORS 109.225 was on file with the Vital Statistics Unit of the Health Division of the Department of Human Resources prior to the child's being placed by an authorized agency in the physical custody of a person or persons for the purpose of adoption by them. If the notice of the initiation of filiation proceeding was not on file at the time of the placement, the father shall be barred from contesting the adoption proceeding." (Emphasis supplied.)
Thus, the relevant statutes make clear that failure to file notice of filiation proceeding in Oregon will bar a putative father not only from receiving the notice of adoption, ORS 109.096(4), but also from contesting the adoption proceeding. It necessarily follows that an "assertion" of a putative father's rights under ORS 109.092 must include filing notice of the filiation proceeding. Otherwise, the putative father would be allowed to contest an adoption proceeding without having complied with ORS 109.225. In this case, because father had not filed notice of the California filiation proceeding at the time of the adoption, he had not timely "asserted" his *557 rights under ORS 109.092. His consent, therefore, was not required.
Father further argues that the trial court erred in exercising jurisdiction because he had not been given notice under ORS 109.096(1)(b). That statute provides, in part:
"(1) When the paternity of a child has not been established under ORS 109.070, the putative father shall be entitled to reasonable notice in adoption, juvenile court, or other court proceedings concerning the custody of the child if the petitioner knows, or by the exercise of ordinary diligence should have known:
"* * * * *
"(b) That the putative father repeatedly has contributed or tried to contribute to the support of the child during the year immediately preceding the initiation of the proceeding, or during the period since the child's birth if the child is less than one year old when the proceeding is initiated."
It requires the adoptive parents to provide notice of the adoption proceeding only if they knew, or should have known, that the putative father "repeatedly has contributed or tried to contribute to the support of the child" following the child's birth. Hiskey v. Hamilton, 111 Or.App. 39, 46, 824 P.2d 1170, rev. den. 313 Or. 299, 832 P.2d 455 (1992); Vanlue v. Collins, 98 Or.App. 140, 146, 779 P.2d 163, mod. 99 Or.App. 469, 782 P.2d 951 (1989), rev. den. 309 Or. 334, 787 P.2d 888 (1990). There is no evidence that father contributed or tried to contribute to the child's support. In his briefs, father asserts that he wrote two checks to mother, but the record contains no evidence of the existence of those checks or that they were for the support of the child.[5] Father failed to demonstrate that he was entitled to notice under ORS 109.096(1)(b).
Father also contends that his constitutional rights were violated. Although he does not identify precisely the target of his constitutional challenge, he appears to argue that allowing the adoption without notice or consent violated his rights to due process. We have previously addressed and rejected similar arguments. Burns v. Crenshaw, 84 Or.App. 257, 262, 733 P.2d 922, rev. den. 303 Or. 590, 739 P.2d 570 (1987); P and P v. Children's Services Division, 66 Or.App. 66, 673 P.2d 864 (1983).
We have considered father's other assignments of error and arguments, and they do not warrant discussion.
Affirmed.
NOTES
[1] Father also mentions the federal Parental Kidnapping Prevention Act of 1980 (PKPA), 28 USC § 1738 et seq, to support his argument, although he does not identify any particular provisions that are applicable. Because the jurisdictional provisions in the PKPA are substantially similar to those in UCCJA, we do not address the PKPA separately.
[2] The UCCJA applies to adoption proceedings. State ex rel. Torres v. Mason, 315 Or. 386, 392, 848 P.2d 592 (1993); Stubbs v. Weathersby, 113 Or.App. 501, 505, 833 P.2d 1297 (1992).
[3] ORS 109.730(1)(b) provides that an Oregon court has jurisdiction if
"[i]t is in the best interest of the child that a court of this state assume jurisdiction because the child and the parents of the child, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships."
Because we conclude that the adoption court had jurisdiction under ORS 109.730(1)(a), we do not decide whether it had jurisdiction under ORS 109.730(1)(b).
[4] ORS 109.225 provides:
"(1) After filing the petition [of filiation proceeding], the petitioner shall cause the Vital Statistics Unit of the Health Division of the Department of Human Resources to be served by mail with a notice setting forth the court in which the petition was filed, the date of the filing therein, the case number, the full name and address of the child, the date and place of the child's birth, or if the child is not yet born, the date and place of the child's conception and the probable date of the child's birth, the full names and addresses of the child's alleged parents, and the names and addresses of the petition and of the respondents in the proceedings.
"(2) The Vital Statistics Unit shall file immediately the notice, or a copy thereof, with the record of the birth of the child or in the same manner as its filing of records of birth if the unit does not have a record of the birth. The unit shall only provide the information contained in the notice to persons whose names appear in the notice or to persons or agencies showing a legitimate interest in the parent-child relationship including, but not limited to, parties to adoption, juvenile court or heirship proceedings."
[5] In support of his motion for summary judgment on this issue, father offered photocopies of two checks written to the child's mother before the birth. The trial court ruled the documents inadmissible, and father does not assign error to that ruling.
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205 Va. 349 (1964)
LEON S. GRIFFIN
v.
W. K. CUNNINGHAM, JR., SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY.
Record No. 5754.
Supreme Court of Virginia.
June 15, 1964.
Evans B. Brasfield, for the plaintiff in error.
Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the defendant in error.
Present, All the Justices.
1. Griffin in December of 1955 was found guilty on two indictments charging statutory burglary. He was sentenced to ten years on each charge, with sentence suspended on the first upon condition he be of good behavior and violate no law. On the second the suspension was on the additional condition he disclose where the stolen articles were. In March of 1956 the suspension of both sentences was revoked because Griffin had not revealed the location of the stolen property. This was obviously error as to the first sentence because disclosure was not there made a condition to the suspension. Therefore, since Griffin had served the sentence imposed in the second charge he was given his freedom in habeas corpus proceedings. When a convicted person has complied with the conditions specified in the suspension of his sentence it may not be revoked.
2. Griffin's sole remedy was not an appeal from the order of March, 1956, revoking the suspension. He could by habeas corpus proceeding raise the issue of deprivation of his constitutional right.
Writ of error to an order of the Circuit Court of Hanover county. Hon. Leon M. Bazile, judge presiding. The opinion states the case.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
This is an appeal from an order of the Circuit Court of Hanover *350 county, wherein a petition for writ of habeas corpus filed by Leon S. Griffin, sometimes called the petitioner, against W. K. Cunningham, Jr., Superintendent of the Virginia State Penitentiary, sometimes referred to as respondent, was denied and dismissed.
Five trials in the Circuit Court of Hanover county are involved. No evidence produced in any of those trials has been made a part of the record. Consequently, all questions of fact resolved by the trial court must be accepted as conclusive. A recital of each stage in the proceedings, as disclosed in the record before us, will be set out herein in some detail.
Griffin was indicted by a grand jury in the Circuit Court of Hanover county in September, 1955, for two separate offenses of statutory burglary. One indictment charged him with feloniously breaking and entering the store of the Atlantic & Pacific Tea Company in Ashland in the night-time of January 9, 1955, and stealing cigarettes and groceries therefrom valued at $275.00. This will be referred to as the A. & P. case. In the other indictment, he was jointly charged with Edward Lee Burley with feloniously breaking and entering into the Ashland Camera and Jewelry Store in the night-time of March 18, 1955, and stealing therefrom six pistols, some jewelry and watches, valued at $1,000.00. This will be referred to as the Ashland Camera case.
Trials on each of the indictments were held and concluded on December 20, 1955. The judgment order in the A. & P. case entered on that day, recites that:
Griffin [alias Frank Williams and Frank Smith] "was led to the bar in the custody of the Sheriff of this County. And it appearing to the Court that the accused is not represented by counsel, the Court, before accepting any plea of the accused, doth appoint J. Enos Ray an able and competent attorney at law, practicing before the bar of this Court, to defend him."
"Whereupon the accused, after private consultation with his counsel, stated that he was ready for trial and desired to be tried on this day, Thereupon the accused was duly arraigned and after being advised by his counsel pleaded guilty to the indictment, which plea was tendered by the accused in person, and the Court being of the opinion that the accused fully understood the nature and effect of his plea, proceeded to hear and determine the case without the intervention of a jury as provided by law, and having heard the evidence doth find the accused guilty of Statutory Burglary as *351 charged in the indictment, and ascertains his punishment to be Ten (10) years in the penitentiary."
Sentence was pronounced against him accordingly.
The order continued: "Upon recommendation of the Attorney for the Commonwealth execution of sentence in this case is suspended for a period of Forty (40) years upon the condition that the said Leon Sylvester Griffin (alias Frank Williams and Frank Smith) be of good behavior and not violate any of the laws of this Commonwealth." (Emphasis added.)
In the Ashland Camera case, the order of conviction, entered on the same day, contained the same recitals as to the appointment of counsel to represent Burley and Griffin, their pleas of guilty, the proceedings thereupon, the finding of guilt, and the fixing of punishment of each at confinement for ten years in the penitentiary. It then recited that:
"Upon recommendation of the Attorney for the Commonwealth, execution of sentence in this case is suspended for a period of forty (40) years upon the condition that the said Edward Lee Burley [Alias James Timberlake] and Leon Sylvester Griffin [Alias Frank Williams and Frank Smith] be of good behavior and not violate any of the laws of this Commonwealth and upon the further condition that they disclose to the officers where the pistols and jewelry, which were stolen, now are." (Emphasis added.)
In each case, the defendants were ordered to be returned to the penitentiary. At the time of his trial, Griffin was serving a three-year sentence imposed on him in the Hustings Court of the city of Richmond for "unauthorized use of auto."
On March 19, 1956, both Griffin and Burley were returned from the penitentiary to the Circuit Court of Hanover county, under orders of that court, to show cause why the suspension of their sentences on December 20, 1955, should not be revoked. Each defendant was given a hearing.
In the A. & P. case, the order entered on March 19, 1956, after giving the reason for the hearing, stated that Griffin's sentence in that case had been suspended upon the condition that "he be of good behavior and not violate any of the laws of this Commonwealth and upon the further condition that he disclose to the officers where the pistols and jewelry, which were stolen, were, and it having been reported to the Court that he has violated the condition of his suspended sentence." (Emphasis added.) [The judgment order of December 20, 1955, suspending Griffin's sentence was not conditioned *352 upon his disclosure of the location of the pistols and jewelry, which were charged to have been stolen in the Ashland Camera case.]
After hearing the evidence, the court revoked the suspension of the sentence in the A. & P. case, and directed that Griffin be remanded to the penitentiary to serve the ten-year sentence imposed on him on December 20, 1955, that term not to run concurrently with any other sentence imposed upon him by that court.
In the Ashland Camera case, also heard on the same day, the court revoked suspension of the sentences imposed on Burley and Griffin on December 20, 1955, because of their violation of the precise terms of the conditions contained in the suspension order, in that they had not disclosed to the police the location of the pistols and jewelry charged in that case to have been stolen by them.
On April 26, 1962, Griffin, in his own proper person, filed a petition in this Court for a writ of habeas corpus, alleging that he was unlawfully held and detained in the penitentiary in violation of the due process of law and of his constitutional rights by virtue of "two unlawful judgment orders" entered by the Circuit Court of Hanover county on December 20, 1955 and March 19, 1956. He alleged that he was not represented by counsel at the trials held on the above dates, and that he had not violated any of the conditions for the suspension of his sentences in either of the cases mentioned. He prayed that he be allowed to proceed in forma pauperis.
We issued a writ on October 3, 1962, directing the Superintendent of the penitentiary to have the body of Griffin before the Circuit Court of Hanover county for a determination of the matters set forth in the said petition. The respondent complied with the writ and filed his answer in the circuit court on December 18, 1962. A hearing was held, at which Griffin was represented by counsel of his own choosing.
In a written opinion dated December 26, 1962, and in an order dated March 8, 1963, directed to be entered nunc pro tunc as of December 26, 1962, the circuit court denied the writ.
The record shows no further steps taken by counsel who represented Griffin at the hearing.
On February 25, 1963, Griffin filed his assignment of errors in his own proper person. On October 14, 1963, we awarded this writ of error, and on the following day we granted him leave to proceed in forma pauperis, and appointed his present counsel to represent him in this proceeding.
Griffin, by his court-appointed counsel, assigns three errors to the *353 action of the trial court in denying him relief. He asserts: (1) that the order revoking suspension in the A. & P. case was void, because the court based it on an act not constituting a violation or breach of any condition of the suspension in that case; (2) that the revocation of the suspension of his sentences in the burglary cases was void because he was not represented by counsel in the proceedings therefor; and (3) that the appointment of counsel for him on the day of his trials for statutory burglary did not allow sufficient time for counsel to prepare his defense.
I
Griffin, in order to preserve his suspension of sentence in the A. & P. case, was required "to be of good behavior and not violate any of the laws of this Commonwealth." "Good behavior" has been defined as meaning "conduct conforming to the law."
The requirement of disclosure of the location of the pistols and jewelry in the Ashland Camera case was not a part of the condition for suspension in the A. & P. case. The circuit court, in stating the conditions of suspension in the December 20, 1955 judgments, made clear the distinction between them. It specifically stated in the judgment order in the Ashland Camera case that suspension was based "upon the further condition" of the disclosure of the property stolen in that case.
There is no claim, or evidence, that Griffin breached the condition of the suspension order in the A. & P. case by failing to be of good behavior or for violation of any law. As a matter of fact, he was, all during the time between December 20, 1955 and March 19, 1956, an inmate of the State Penitentiary.
In his written opinion, dated December 26, 1962, the trial judge said, with reference to the denial of Griffin's petition for a writ of habeas corpus, that:
"The accused did not furnish the officers with the information as to where the stolen property was and he was brought before the Court on the charge of violating the terms of his probation and his probation was revoked and he was sentenced to serve the term theretofore imposed upon him."
It thus appears that the reason assigned for the revocation of the suspension of sentence in each case was the failure of Griffin and Burley to disclose the location of the stolen pistols and jewelry, made a condition of suspension in the Ashland Camera case. It is obvious *354 from the opinion of the trial judge that he thought such disclosure was a condition of the suspension in the A. & P. case.
It is not questioned that a trial judge may suspend the execution of a sentence, in whole or in part, if there be circumstances in mitigation of the offense, or if it appears compatible with the public interest, and place a defendant upon probation "during good behavior for such time and under such conditions of probation as the court shall determine." Code, | 53-272; * Dyke Commonwealth, 193 Va. 478, 69 S.E.2d 483.
Furthermore, "The court may for any cause deemed by it sufficient revoke the imposition of sentence and any probation if the defendant be on probation * * *." | 53-275. *
* Code, || 53-272 and 53-275 have each been amended since 1955; but the amendments are not relevant here.
A court which has ordered a suspension of sentence undoubtedly has the power to revoke it when the defendant has failed to comply with the conditions of the suspension. However, when the accused has complied with conditions specified, he has a right to rely upon them, and the suspension will stand. The action of the court should not, under any circumstances, be arbitrary. Marshall Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270.
In Slayton Commonwealth, 185 Va. 357, 366, 38 S.E.2d 479, we said that: "Since the revocation of a suspension deprives the probationer of his liberty, he is entitled to a judicial hearing thereon." This means a hearing in accordance with familiar principles governing the exercise of judicial discretion.
In Dyke Commonwealth, supra, 193 Va., this is said at page 483:
"It [the order of the lower court] suspended the execution of the sentence for all time, but upon the condition that the defendant keep the peace and not violate the law for one year. If the defendant had kept that condition, then the court was bound by that condition and could not after that year of good behavior have revoked the suspension and required the defendant to serve the sentence."
The rule is aptly expressed in State Robinson, 248 N.C. 282, 103 S.E.2d 376, 378, 379:
"Where a sentence in a criminal case is suspended upon certain valid conditions expressed in the sentence imposed, the prisoner has a right to rely upon such conditions, and so long as he complies therewith the suspension should stand. In such a case he carries the keys to his freedom in his willingness to comply with the court's sentence." *355
The same principles are stated in Guest State, 87 Ga.App. 184, 73 S.E.2d 218; City of Lima Beer, 90 Ohio App. 524, 107 N.E.2d 253; Blusinsky Commonwealth, 284 Ky. 395, 144 S.W.2d 1038; State Zolantakis, 70 Utah 296, 259 P. 1044; Hollandsworth United States, 34 F.2d 423, 428, [4th Cir. 1929]; 24 C.J.S., Criminal Law, | 1618(11), pages 899-900.
Counsel for respondent in his brief does not undertake to refute or rebut the above principles.
The revocation of the suspension in the A. & P. case was invalid and void; and, therefore, the order of March 19, 1956, in that case, directing Griffin to be remanded to the penitentiary to serve the term of ten years imposed upon him on December 20, 1955 must be vacated.
II
The prison record of Griffin, filed with the response of the Superintendent of the penitentiary, shows that he has served the three years imposed upon him by the Hustings Court of the city of Richmond, has served one of the ten-year sentences imposed upon him by the Circuit Court of Hanover county, and is now being held to serve the other ten-year sentence imposed on him by the same court.
In view of the foregoing situation, and of the conclusion which we have reached with respect to the first assignment of error, we deem it unnecessary to discuss the remaining assignments.
III
We find no merit in the suggestion of respondent that petitioner is not entitled to bring this habeas corpus proceeding, but instead should have appealed from the March 19, 1956 judgment of the circuit court. It is well settled that the deprivation of a constitutional right of a prisoner may be raised by habeas corpus. Lacey Palmer, (1896) 93 Va. 159, 163, 24 S.E. 930; Fitzgerald Smyth, (1953) 194 Va. 681, 74 S.E.2d 810; Smyth Holland, (1957) 199 Va. 92, 97 S.E.2d 745.
We may add that court-appointed counsel for petitioner has filed an excellent brief on behalf of his client, citing many cases in support of his position on the issues raised.
For the reasons stated, the March 19, 1956 order of the circuit court of Hanover county revoking the suspension of the ten-year sentence of March 19, 1956 imposed on him on December 20, 1955, in the A. & P. case is vacated and set aside. The petitioner having *356 served the other ten-year term imposed upon him on December 20, 1955, and reimposed on March 19, 1956, it is ordered that he be released from the custody under which he is held by the Superintendent of the Virginia State Penitentiary by virtue of the March 19, 1956 orders of the Circuit Court of the county of Hanover.
Reversed and writ of habeas corpus awarded.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2982
___________
Billy Darrell Thomas, *
*
Movant/Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
United States of America, *
*
Respondent/Appellee. * [PUBLISHED]
___________
Submitted: April 18, 1997
Filed: April 25, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, FAGG and MURPHY, Circuit Judges.
___________
PER CURIAM.
Billy Darrell Thomas pled guilty to four counts of a five count
indictment involving drugs and guns. One of the counts of conviction was
for using or carrying a gun in relation to a drug offense. 18 U.S.C. §
924(c). After his convictions, but before his sentencing hearing, the
Supreme Court decided Bailey v. United States, 116 S. Ct. 501 (1995).
Thomas then filed a motion to withdraw his guilty plea for violating §
924(c). The motion was denied and Thomas did not appeal. Later he brought
a 28 U.S.C. § 2255 motion claiming the evidence was insufficient to support
a conviction, his counsel was ineffective, and the sentencing court erred
by denying his motion to withdraw his guilty plea to the
§ 924(c) charge. Thomas now appeals from the denial of this motion.
Since Thomas did not file a direct appeal, his motion is procedurally
barred unless he can show cause excusing his default and prejudice
resulting from the errors. See Bousley v. Brooks, 97 F.3d 284, 287 (8th
Cir. 1996). In his plea agreement, Thomas admitted that he was engaged in
drug trafficking and that along with methamphetamine, he carried a Colt .38
revolver "because he wanted to protect himself from being 'ripped off by
bandits who wanted his methamphetamine.'" At the hearing in which Thomas
sought to withdraw his plea to the § 924(c) charge, he admitted that he
possessed a firearm while he was carrying drugs he intended to distribute.
This is sufficient evidence to support a conviction under § 924(c). Bailey
examined the use prong of § 924(c), not the carrying prong, and Thomas'
admitted conduct warrants conviction. He therefore cannot show prejudice,
and we need not examine whether there was cause for his default. See
United States v. White, 81 F.3d 80, 83 (8th Cir. 1996). His motion is
procedurally barred.
Even if his motion were not procedurally barred, however, he would
not prevail. The evidence was sufficient to support his conviction. Since
he did not show prejudice, he cannot make out an ineffective assistance of
counsel claim. He has not demonstrated there was a reasonable probability
the result would have been different but for his counsel's advice not to
file an appeal from the denial of his motion to withdraw his plea. See
Wharton-El v. Nix, 38 F.3d 372, 377 (8th Cir. 1994). Furthermore, in light
of the evidence supporting his conviction, Thomas did not show a fair and
just reason to withdraw his guilty plea, and the sentencing
-2-
court did not abuse its discretion by denying that motion.1 See United
States v. Capito, 992 F.2d 218, 219 (8th Cir. 1993).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
Thomas' claim that the government had to prove he both used
and carried a firearm since he was indicted for use and carrying
is without merit. The use of the conjunctive in the indictment
does not require the government to prove both violations; proof
of either will generally sustain a conviction. See United States
v. Vickerage, 921 F.2d 143, 147 (8th Cir. 1990).
-3-
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4658
MICHAEL WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-17)
Submitted: May 10, 2000
Decided: June 6, 2000
Before MICHAEL and TRAXLER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Sandra J. Hairston, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michael Williams pleaded guilty to one count of distribution of
crack cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (West Supp.
2000). He now appeals his 151-month sentence. We dismiss the
appeal.
Williams' sole argument on appeal is that the district court erred
when it denied his motion for downward departure. Williams con-
tends that the presentence report over-represented his criminal his-
tory, which consisted of a number of relatively minor offenses
committed at a young age. A district court's decision not to depart
from the sentencing guidelines is not subject to appellate review
unless the refusal to depart is based on the mistaken belief that the
court lacked the authority to depart. See United States v. Bayerle, 898
F.2d 28, 30-31 (4th Cir. 1990). The sentencing transcript reflects that
the district court clearly recognized that it could depart, but declined
to do so for a number of reasons. Therefore, under Bayerle, we dis-
miss Williams' appeal for lack of jurisdiction.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
2
00000<ss2,BF> 00000<ss3,RO> 00000<ss4,BF> 00000<ss5,RO> 00000<ss6,RO> 00000<ss7,IT> 00000<ss8,RO> 00000<ss9,RO>
01980<ss10,BF> 00000<ss11,RO> 00000<ss12,RO> 00000<ss13,BF> 00000
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NO. 07-05-0468-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 26, 2006
______________________________
DEXTER DEUWAN MITCHELL,
(footnote: 1) APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47
TH
DISTRICT COURT OF POTTER COUNTY;
NO. 48,922-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Dexter Deuwan Mitchell,
appeals from a judgment revoking community supervision and imposing sentence pursuant to a conviction for attempted aggravated assault. Appellant’s counsel has filed a brief in compliance with
Anders v. California
, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and
Gainous v. State
, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). We affirm.
Appellant entered a plea of guilty to attempted aggravated assault on September 8, 2004. The
trial court judge found that the evidence substantiated appellant’s guilt, accepted the plea, found appellant guilty, and sentenced appellant to confinement for 10 years in the Institutional Division of the Texas Department of Criminal Justice
. The confinement portion of the sentence was suspended and appellant was placed on community supervision for five years.
The State filed an amended motion to revoke appellant’s community supervision which was heard on December 7, 2005. Appellant pled not true to three of the nine alleged violations of community supervision but pled true to the remaining six violations. After hearing testimony, the trial judge found that appellant had committed six violations of his community supervision
,
revoked the order placing appellant on community supervision, and ordered that appellant serve the confinement portion of his sentence in the State Jail Division of the Texas Department of Criminal Justice. Appellant filed a notice of appeal.
Appellant’s counsel has filed a brief, in compliance with
Anders
and
Gainous
, stating that she has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error upon which an appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous. Counsel’s brief discusses why, under the controlling authorities, there is no reversible error in the trial court proceedings and judgment.
See
High v. State
, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).
Counsel has attached an exhibit showing that a copy of the
Anders
brief has been forwarded to appellant and that counsel has appropriately advised appellant of his right to review the record and file a
pro se
response to counsel’s motion and brief. The clerk of this court has also advised appellant by letter of his right to file a response to counsel’s brief. Appellant has not filed a response.
We have made an independent examination of the record to determine whether there are any non-frivolous grounds upon which an appeal could arguably be founded.
See
Penson v. Ohio
, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988);
Stafford v. State
, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds.
Appellant’s counsel has moved for leave to withdraw.
See
Johnson v. State
, 885 S.W.2d 641, 645 (Tex.App.–Waco 1994, writ ref’d). We carried the motion for consideration with the merits of the appeal. Having done so and finding no reversible error, appellant’s counsel’s motion to withdraw is granted and the trial court’s judgment is affirmed.
Mackey K. Hancock
Justice
Do not publish.
FOOTNOTES
1: This Court will follow the spelling of appellant’s name as it appears in the trial court records.
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742 F.2d 1466
118 L.R.R.M. (BNA) 2752
*Sussmanv.News-Journal Corp.
84-3186
United States Court of Appeals,Eleventh Circuit.
8/30/84
1
M.D.Fla.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 11th Cir.R. 23.
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502 F.3d 781 (2007)
UNITED STATES of America, Plaintiff, and
Department of Toxic Substances Control, State of California, Plaintiff-Appellant,
v.
BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, as successor in interest to the Atchison, Topeka & Santa Fe Railway Company; Union Pacific Transportation Company, as successor in interest to the Southern Pacific Transportation Company; Shell Oil Company, Defendants-Appellees. *782
United States of America, Plaintiff-Appellant, and
Department of Toxic Substances Control, State of California, Plaintiff,
v.
Burlington Northern & Santa Fe Railway Company, as successor in interest to the Atchison, Topeka & Santa Fe Railway Company; Union Pacific Transportation Company, as successor in interest to the Southern Pacific Transportation Company; Shell Oil Company, Defendants-Appellees.
United States of America; Department of Toxic Substances Control, State of California, Plaintiffs-Appellees,
v.
Burlington Northern & Santa Fe Railway Company, as successor in interest to the Atchison, Topeka & Santa Fe Railway Company; Union Pacific Amending Transportation Company, as successor in interest to the Southern Pacific Transportation Company, Defendants, and
Shell Oil Company, Defendant-Appellant.
Nos. 03-17125, 03-17153, 03-17169.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 12, 2005.
Submission Withdrawn September 14, 2005.
Resubmitted and Filed March 16, 2007.
Amended September 4, 2007.
*788 Aaron P. Avila, Department of Justice, Washington, DC, argued the case for appellant EPA; Kelly Johnson, Acting Assistant Attorney General, David C. Shilton, James R. MacAyeal, and John T. Stahr, Department of Justice, Environment and Natural Resources Division, Washington, DC, Allyn Stern, Office of Regional Counsel, EPA, were on the briefs for appellant EPA.
Reed Sato, Deputy Attorney General of the State of California, Sacramento, CA, argued the case and was on the briefs for appellant California Department of Toxic Substances Control; Bill Lockyer, Attorney General of the State of California, Tom Greene, Chief Assistant Attorney General, and Theodora P. Berger, Senior Assistant Attorney General, Sacramento, CA, were on the briefs for appellant California Department of Toxic Substances Control.
John F. Barg, San Francisco, CA, argued the case for appellees Burlington Northern & Santa Fe Railway Company and Union Pacific Transportation Company; Marc A. Zeppetello, San Francisco, CA, was on the briefs for the appellees.
Michael K. Johnson, San Francisco, CA, argued the case for appellee-cross-appellant Shell Oil Company; Randall J. Heldt, *789 Shell Oil Company, Houston, TX, was on the briefs for appellee-cross-appellant Shell.
Before: B. FLETCHER, JOHN R. GIBSON,[*] and MARSHA S. BERZON, Circuit Judges.
ORDER
The opinion filed March 16, 2007, slip op. 3209, and published at 479 F.3d 1113 (9th Cir.2007) is hereby amended as follows:
1. Replace with in the second sentence of footnote 30 on page 3250 of the slip opinion, 479 F.3d at 1139.
2. In the last paragraph of the opinion, on page 3256 of the slip opinion, 479 F.3d. at 1142, replace with 32>
3. Add the following text as footnote 32:
The petition for rehearing and petition for rehearing en banc remain pending.
OPINION
BERZON, Circuit Judge:
A now-defunct company, Brown & Bryant, Inc. (B & B), owned and operated a facility at which toxic chemicals were stored and distributed. Part of the land on which the chemical operation was located was owned by two railroad companies (the Railroads), and some of the chemicals used by B & B were supplied and delivered to the facility by Shell Oil Company (Shell). Because toxic chemicals remaining at the facility threatened groundwater and may continue to do so in the future, the United States Environmental Protection Agency (EPA) and the State of California's Department of Toxic Substances Control (DTSC) spent a considerable amount of money to clean up the site and may need to spend more in the future. The two agencies sought to recover these response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601, 9675[1] (CERCLA), but the district court held the Railroads and Shell liable for only a minor portion of the total cleanup costs. B & B was defunct by that time, and so could not contribute to the cleanup costs. The agencies were thus left holding the bag for a great deal of money.
Seeking to hold the Railroads and Shell jointly and severally liable for the entire judgment, the agencies appeal. *790 Shell cross-appeals, claiming that it was not an "arranger" under CERCLA, § 9607(a)(3), and therefore is not a party on whom any cleanup liability can be imposed. We reverse the portion of the judgment that declined to impose full joint and several liability on the Railroads and Shell and affirm the portion of the judgment that imposed liability on Shell as an arranger.[2]
I. Background
Beginning in 1960, B & B operated an agricultural chemical storage and distribution facility in Arvin, California on a 3.8-acre parcel of land (the B & B parcel). In 1975, B & B's agricultural chemical distribution business outgrew that parcel, and B & B began leasing a 0.9-acre parcel of land adjacent to its own parcel. The 0.9-acre parcel (the Railroad parcel) was jointly owned by the Railroads Atchison, Topeka & Santa Fe Railroad Co., the predecessor in interest to Burlington Northern & Santa Fe Railway Co., and Southern Pacific Transportation Co., the predecessor in interest to Union Pacific Transportation Co. B & B used the Railroad parcel principally to park fertilizer rigs.
The Railroad parcel comprised the western portion of the Arvin site.[3] Directly to the east of the Railroad parcel sat B & B's warehouse. The Railroad parcel, like the rest of the Arvin site, was graded toward a drainage pond on the B & B parcel.
B & B used the Railroad parcel as an integral part of its overall agricultural chemical facility. From its facility B & B sold local growers agricultural chemical products produced by various manufacturers. In particular, B & B purchased, received delivery of, stored on the Arvin site, and distributed two Shell-produced agricultural chemicals: the soil fumigants D-D and Nemagon. D-D and Nemagon members of a class of chemicals called nematocides are designed to kill nematodes, microscopic worms that attack the roots of crops. Nematocides work by penetrating the soil and then dispersing. B & B also stored on the Arvin site dinitro (dinoseb) weed killer, purchased from Dow Chemical Company.
During the 1960s and 1970s, Shell strongly encouraged its customers, including B & B, to purchase D-D in bulk, a policy requiring customers to maintain large storage tanks. Shell delivered the bulk D-D to B & B "FOB Destination" via common carrier trucks.[4] When the trucks carrying D-D arrived at the Arvin facility, the contents of the trucks were transferred to B & B's large tanks by hoses. The process was quite messy, with frequent spills.
To apply D-D to growers' fields, B & B used rigs loaded with the chemical. The rigs were stored on the Railroad parcel, as were bulk containers of dinoseb and, occasionally, empty fertilizer cans. Chemicals *791 also reached the Railroad parcel through water flow from the B & B parcel.
In 1978, after a windstorm destroyed the bulk D-D storage tank used to store Shell D-D, B & B began using converted stainless steel milk trailers to store the bulk D-D. The chemical, which is highly corrosive and eats through steel, can cause leakage in steel tanks only a few years old. B & B kept these leak-prone tanks all over the Arvin facility, including on the Railroad parcel.
D-D, when it leaks, evaporates quickly if exposed to air but is highly soluble in water. When D-D infiltrates the ground, it moves through the soil by molecular diffusion, dispersing in all directions. A slight pull from gravity, however, makes the chemical a bit more likely to flow downward into groundwater than laterally through the soil. Dinoseb, similarly, tends to move to the groundwater table if there is water movement in that direction. No toxic chemicals can reach the groundwater level currently used as a source of drinking water because of an impermeable layer of soil. The next highest level, however, is a potential source of drinking water, and contamination can reach that level.
After more than twenty years of leakage and dissemination of hazardous materials, the DTSC in 1983 found B & B in violation of several hazardous waste laws. The EPA investigated separately and found evidence of substantial soil and groundwater contamination at B & B's Arvin facility. The EPA and DTSC (the Governments) began to remedy the contamination pursuant to their cleanup authority under CERCLA, incurring substantial remediation costs. In 1991, the EPA ordered the Railroads to take specific preventative steps on the Railroad parcel, including installing groundwater monitoring wells. None of the contamination requiring immediate remediation was on the Railroad parcel.
In 1992, the Railroads filed an action against B & B and certain of its principals for contribution for costs incurred in the EPA-ordered cleanup. Four years later, the Governments each filed CERCLA actions against B & B, the Railroads, and Shell for reimbursement of their investigation and cleanup costs.[5] The district court consolidated the three cases and, after a twenty-seven day bench trial, issued an exceedingly detailed 185-page Findings of Fact and Conclusions of Law, thereafter slightly amended.[6]
The district court found the Railroads liable as owners of the Arvin facility and as persons who "at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of." § 9607(a)(1), (2). Shell was held liable as a "person who. . . arranged for disposal . . . of hazardous substances." § 9607(a)(3). Turning to whether the Railroads and Shell were liable for all or only a portion of the cleanup costs, the district court found that the harm to the Arvin site was capable of apportionment and proceeded to apportion it. The Railroads and Shell had, by acknowledging no liability at all, taken what the district court termed a "`scorched earth,' all-or-nothing approach to liability," and so provided little assistance on the apportionment issue. The district court nonetheless proceeded to "perform the equitable apportionment analysis demanded by the circumstances of the case."
For the Railroads, the court multiplied three proportions: (1) the percentage of *792 the overall site that was owned by the Railroads, 19.1%;[7] (2) the percentage of time that the Railroads leased the parcel in relation to B & B's total operations, 45%;[8] and (3) the fraction of hazardous products attributable to the Railroad parcel, 66%.[9] This calculation resulted in a determination of 6% liability. Then, to account for any "calculation errors," the district court assumed 50% error and raised the Railroads' proportion of the total liability to 9%.
For Shell, the district court approximated the percentages of leakage from various activities attributable to Shell and multiplied them together to set Shell's proportion of the total liability at 6%.[10] Shell was also assigned, in the contribution action, 6% of the costs incurred by the Railroads in their cleanup effort.[11]
DTSC and the EPA timely appealed the district court's judgment. Shell timely cross-appealed the finding that it was liable as an "arranger" under CERCLA.
II. Standards of Liability Under CERCLA
CERCLA was enacted in 1980 to provide for effective responses to health and environmental threats posed by hazardous waste sites. See generally Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir.1986). Under CERCLA, state and federal governments can first begin the cleanup of toxic areas, see § 9604(a)-(d), and then sue potentially responsible parties (PRPs) for reimbursement, see § 9607(a). A key purpose of this scheme is "shift[ing] the cost of cleaning up environmental harm from the taxpayers to the parties who benefited from the disposal of the wastes that caused the harm." EPA v. Sequa Corp. (In the Matter of Bell Petroleum Servs., Inc.), 3 F.3d 889, 897 (5th Cir.1993) (citing United States v. Chem-Dyne Corp., 572 F.Supp. 802, 805-06 (S.D.Ohio 1983)).
In accord with this purpose, CERCLA is a "super-strict" liability statute. Under its provisions, parties can be liable for cleaning up toxic chemicals if they fit into one or more of the four PRP categories set out in § 9607(a):
(1) the owner and operator of . . . a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person . . ., and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities. . . .
*793 A "facility" is defined in § 9601(9)(B) as "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel."[12] The statute's basic liability provision, in turn, provides that "subject only to the defenses set forth in subsection (b) of this section [PRPs shall be liable for] (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan. . . ." § 9607(a). Thus, PRPs can be responsible for the costs of cleaning up hazardous waste sites without any finding that they were negligent or that they caused the contamination, unless they can make out the third-party defense set out in § 9607(b)(3).[13]
A. Validity of Apportionment
CERCLA does not address the question whether, as between PRPs who are liable for cleanup costs, liability is joint and several meaning that each PRP responsible for all cleanup costs at a facility is liable for such costs or severable meaning that cleanup costs at a single facility can be apportioned among PRPs on some basis.
In this circuit, liability is joint and several when the harm is indivisible. Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 945 (9th Cir.2002); see also Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 871 (9th Cir.2001) (en banc). Thus, a defendant "may be held fully liable for the entire clean-up costs at a site despite the fact that the defendant PRP was in fact responsible for only a fraction of the contamination." Fireman's Fund, 302 F.3d at 945.
We have also referred in general terms to the possibility of apportioning liability. See id. (noting the use of "federal common law principles" of apportionment); Carson Harbor Vill., 270 F.3d at 871 (stating that once liability has been found, "the defendant may avoid joint and several liability by establishing that it caused only a divisible portion of the harm"). Yet, in none of our cases has there been an actual dispute regarding whether liability should be apportioned among the liable PRPs.[14] This case squarely *794 presents that question. To determine whether the district court was correct to apportion liability in this case, we thus must address, initially, the general propriety of severability.[15] In line with every circuit that has addressed the issue, we hold that apportionment is available at the liability stage.
In so ruling we rely, as have the other circuits that have analyzed the issue, on a seminal case decided in 1983 in the Southern District of Ohio, Chem-Dyne. After reviewing the evolution of the statute, Chem-Dyne concluded that liability under § 9607(a) may be joint and several even though the statute does not expressly so provide. Chem-Dyne, 572 F.Supp. at 810. Suggesting that Congress intended to leave the matter to the usual common law rules, adjusted to CERCLA as necessary, Chem-Dyne held that courts should look to the Restatement (Second) of Torts, as well as to other indications of federal common law, for the principles of joint and several liability applicable under CERCLA. See id. at 809-10. Later, circuit court cases endorsed this approach. See Chem-Nuclear Sys., Inc. v. Bush, 292 F.3d 254, 259-60 (D.C.Cir.2002); United States v. Hercules, Inc., 247 F.3d 706, 717 (8th Cir.2001); United States v. Township of Brighton, 153 F.3d 307, 318 (6th Cir.1998); Bell Petroleum, 3 F.3d at 895-96; United States v. Alcan Aluminum Corp. (Alcan-PAS), 990 F.2d 711, 721-22 (2d Cir.1993); United States v. Alcan Aluminum Corp. (Alcan-Butler), 964 F.2d 252, 268-69 (3d Cir.1992); United States v. Monsanto Co., 858 F.2d 160, 171-72 (4th Cir.1988).
As Chem-Dyne persuasively recounts, the history of § 107(a) of CERCLA, 42 U.S.C. § 9607(a), indicates that although Congress declined to mandate joint and several liability, it did not intend by doing so "a rejection of joint and severable liability." Chem-Dyne, 572 F.Supp. at 808. Instead, recognizing the difficulties inherent "`in prescribing in statutory terms liability standards which will be applicable in individual cases,'" id. at 806 (quoting 126 CONG. REC. S14964 (Nov. 24, 1980) (remarks of Sen. Randolph)), Congress meant "to have the scope of liability determined under common law principles, where a court performing a case by case evaluation of the complex factual scenarios associated . . . will assess the propriety of applying joint and several liability on an individual basis," id. at 808. We agree with this account of Congress's intent and hold *795 that apportionment can be appropriate under CERCLA.
B. Standards for Apportionment
Because we hold that apportionment is available at the liability stage in CERCLA cases, we must determine the appropriate standards for determining when apportionment is available and, when it is, how to ascertain the proper division of damages among defendants. Again, we draw on the experience of our sister circuits.
The circuits that have addressed these questions have looked to common law principles of tort in general, and the Restatement in particular, for guidance as to when and how to impose joint and several liability under § 9607(a). We agree that this approach is proper and adopt it here. We also follow Chem-Dyne and all of the courts of appeals that have addressed the question in holding that the resulting standard must be a uniform federal rule. See, e.g., Aviall Servs., Inc. v. Cooper Indus., Inc., 312 F.3d 677, 684 (5th Cir.2002) (holding that apportionment of CERCLA liability "is . . . a matter of federal common law"), reversed on other grounds by 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004); United States v. Burlington N. R. Co., 200 F.3d 679, 697 (10th Cir.1999) (same); Township of Brighton, 153 F.3d at 329 (same); Monsanto Co., 858 F.2d at 172 (same). As Chem-Dyne noted, the legislative history of CERCLA supports such an approach, as does its policy favoring national uniformity so as to discourage "illegal dumping in states with lax liability laws." Chem-Dyne, 572 F.Supp. at 809.[16]
The question, then, is what the uniform federal law should be. Once again, all the circuits that have addressed this question have followed Chem-Dyne, holding that the appropriate source for a common law rule of apportionment is Section 433A of the Restatement of Torts. See Hercules, 247 F.3d at 716 & n. 9, 717 (noting that courts support the divisibility doctrine as borrowed from the Restatement); Bell Petroleum, 3 F.3d at 895 (relying on the Restatement); Chem-Dyne, 572 F.Supp. at 810 (establishing this method). We concur in this conclusion generally, although we borrow from the Restatement with two important caveats, as there are two areas where the Restatement approach is a somewhat poor fit and requires slight modifications to ensure that our approach comports with the liability and remediation scheme of CERCLA. First, there are important distinctions between causation as conceived in the Restatement and causation in the context of CERCLA. We describe these and import a nexus concept that relates to the particular PRP provisions at issue. And second, the concept of "harm" in the Restatement as actual injury does not correspond easily to *796 CERCLA's priorities. We conclude instead that contamination and the cost of remediation are both relevant for the "harm" analysis under CERCLA. The Restatement's fundamental reliance on objective rather than equitable considerations, however, does comport well with the "super-strict" nature of CERCLA and with the development of the statute, leaving us to conclude that equitable considerations have no role at this stage in the applicable standards.
1. Causation
Section 433A of the Restatement allows for apportionment of damages where "(a) there are distinct harms,[[17]] or (b) there is a reasonable basis for determining the contribution of each cause to a single harm."[18] RESTATEMENT (SECOND) OF TORTS § 433A(1) (1965) (emphasis added). CERCLA, however, does not require causation as a prerequisite to liability (except with regard to the third-party defense, see § 9607(b), not at issue here). Nonetheless, most of the leading cases on joint and several liability under CERCLA have addressed divisibility under § 433A(1)(b) and thereby incorporated a modified concept of causation.[19]See, e.g., Bell Petroleum, 3 F.3d at 902-03; Monsanto, 858 F.2d at 172; Chem-Dyne, 572 F.Supp. at 810.
Notably, these cases often dealt with simpler facts than those we confront. Chem-Dyne, for instance, assumed a case quite different from this one. There, the court stated that "[t]ypically . . . there will be numerous hazardous substance generators or transporters who have disposed of wastes at a particular site." 572 F.Supp. at 810. It was in that context that is, where the question was apportionment among defendants who all disposed of wastes themselves that Chem-Dyne determined that courts could follow the divisibility *797 principles of the Restatement and remain true to CERCLA. In a situation in which the several defendants are all polluters themselves, divisibility under the Restatement standard is indeed a relatively straightforward analysis, and one in which causation concepts are useful. If the court can estimate with some confidence the amount of waste that each defendant disposed of and has a basis for determining that the extent of contamination of the site is proportional to the amount of waste disposed of, then the Restatement approach to apportionment works nicely.
The situation here is different.[20] The three "responsible" parties are: the now-insolvent majority owner and operator of the site; the mostly absentee landlord of a portion of the site; and a seller of chemicals shipped to and stored at the site. Each party had an entirely different role in the contamination process, with overlapping effects, and not all "caused" contamination in any meaningful sense.
Most notably, PRP status premised on ownership of a facility does not require any involvement in the disposal of hazardous substances. Thus, to speak of a PRP "causing" contamination of its land simply by owning land on which someone else disposes of hazardous wastes is to indulge in metaphor. At the same time, to allow CERCLA defendants, especially landowner PRPs, to prove through traditional causation analysis that they were not entirely liable would be to undermine the premise on which the statute designated them as PRPs to begin with. CERCLA requires a connection for example, that the PRP be a landowner "at the time of disposal," see § 9607(a)(2) but no further causation. We therefore adjust the application of the Restatement principles to the current circumstance by abjuring the traditional "causation" principles and substituting a nexus concept that depends upon the particular PRP provision applicable. Where, as here, the pertinent PRP status is as landowner, the landowner can establish divisibility only by demonstrating that portions of the contamination are in no respect traceable to the portion of the facility that the landowner owned at the time of the disposal. The arranger nexus is more straightforward, with a focus not on ownership of the facility but rather on the relevant, arranged disposals in light of other contamination at the facility.
2. Harm
A second difficulty that results from relying on tort principles in a scheme not based on tort law concerns the application of the term "harm," used in the Restatement, as applied to CERCLA. See RESTATEMENT (SECOND) OF TORTS § 433A. The CERCLA cost recovery section does not focus on "harm," but rather on "costs of removal or remedial action" and "necessary costs of response."[21] § 9607(a). Thus, when applying the Restatement in the context of CERCLA, the question becomes: What is the "harm" that we are attempting to divide?
There are three possible kinds of "harm" in actions for remediation costs *798 under CERCLA: the initial disposal, the resulting contamination, and the costs of remediating the contamination. Actual injury to individuals or to property, the usual "harms" in a tort suit, are not a pertinent consideration; the statute is concerned with averting future injury by remediating contamination, not with compensation for past injuries.
If the harm were the disposal, then divisibility based on volume of discharge by operators or by parcel would always make sense, because disposal occurs in specific amounts at specific places. If the harm were contamination, then some attempt would have to be made either to justify a direct correlation between disposal and contamination under the specific circumstances or to separate out the leakage that remained as contamination from leakage that either evaporated, was adequately diluted, or for other reasons did not remain on the property in toxic form.[22] If the harm is the cost of remediation, then divisibility would have to be based on the pro rata cost of cleaning up each defendant's contribution to the contamination. That pro rata cost will sometimes differ from the proportion of contamination caused by each defendant, because the cost of removing contamination can vary with geographical considerations, degree of toxicity, the means of extraction used for different toxic substances, or other factors.
In light of a CERCLA liability suit's central purpose recovering the cost of eradicating contamination we conclude that it is most useful for purposes of determining divisibility to view the "harm" under CERCLA as the contamination traceable to each defendant. Disposal itself is not the focus of the statute, unless it results in contamination. And the cost of cleaning up the contamination is most analogous to the damages recovered in a tort suit, not to the injury on which liability is based.[23]
3. Equity
Because this case is one in which the harms are not distinct, apportionment must be under Restatement § 433A(1)(b) if it is to be allowed at all. That is, there must be a reasonable basis for determining the contribution of each PRP to the harm. While nothing in the statute directly addresses the question whether equitable factors are appropriate for purposes of apportioning liability among joint tortfeasors, all the other circuits that have addressed the issue have held that they are not. We again follow their lead.
Although CERCLA is not explicit on this issue, there is a statutory provision concerning the separate question of contribution actions among PRPs once liability to the plaintiffs seeking to recover cleanup costs has been determined. That provision, § 9613(f), added to CERCLA in 1986, is silent as to initial divisibility. It only describes, quite generally, the considerations applicable in a contribution action for determining whether one PRP can collect *799 from another a portion of the costs for which it has been held liable: "In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate." § 9613(f) (emphasis added).[24] In contrast, § 433A(1)(b) of the Restatement and the appended commentary concerning divisibility are silent as to equitable considerations.[25]
Although, as noted, this circuit heretofore has not addressed divisibility analysis, the implication from our cases deciding § 9613(f) contribution issues is that the proper time to focus on such factors is at the contribution phase, not the liability phase. See, e.g., Carson Harbor Vill., 270 F.3d at 871 (noting that the "contribution provision aims to avoid a variety of scenarios by which a comparatively innocent PRP might be on the hook for the entirety of a large cleanup bill"); Pinal Creek, 118 F.3d at 1301 ("A PRP's contribution liability will correspond to that party's equitable share of the total liability and will not be joint and several.").
Other circuits have been careful to delineate the difference between the equitable considerations pertinent under § 9613(f) and the objective considerations pertinent under § 9607(a). See Hercules, 247 F.3d at 718; Township of Brighton, 153 F.3d at 318; Bell Petroleum, 3 F.3d at 901. As the Sixth Circuit has noted, divisibility analysis has the potential to eviscerate the strict liability principles of CERCLA entirely, "because defendants who can show that the harm is divisible, and that they are not responsible for any of the harm" could whittle their liability to zero. Township of Brighton, 153 F.3d at 318. Additionally, as Township of Brighton also noted in rejecting a fairness-based approach, divisibility analysis is not an invitation to "split the difference" and come up with a "compromise amount." Id. at 319.
While it may seem unfair to hold a partial owner liable for all the contamination cleanup costs, that perceived unfairness is the result of the statutory "super-strict" liability scheme. Assuring fairness among PRPs is the proper subject of the contribution stage, not of apportionment at the liability stage. See United States v. Rohm & Haas Co., 2 F.3d 1265, 1280-81 (3d Cir.1993), overruled on other grounds by United States v. E.I. Dupont De Nemours & Co., 432 F.3d 161, 162-63 (3d Cir. 2005) (en banc). At the liability stage, CERCLA simply assigns liability to statutorily responsible parties so as to assure that, as between those with some connection to the contamination and who have, it may be assumed, benefited from the contamination-causing process and those with none, such as the taxpayers. Any court-created structure that would allow PRPs to whittle their share to little or nothing and leave the taxpayers holding the bag may seem more equitable to some *800 PRPs but would violate the basic structure of the CERCLA statutory scheme. Because of such concerns, courts have generally refrained from using an equity-based allocation analysis, so as not to weaken further the strict liability principle basic to CERCLA.
We agree that while joint and several liability need not be universally applied, see Bell Petroleum, 3 F.3d at 897, the inquiry as to whether such liability is appropriate must focus strictly on whether there is a reasonable basis for apportionment, see, e.g., id. at 901-04. Consequently, in an action under § 9607(a), a court is not to look to equitable considerations, such as relative fault, in determining whether liability is to be joint and several or apportioned.
III. Analysis of Railroads' and Shell's CERCLA Liability
We now proceed to apply these fairly straightforward principles to the circumstances of this case. Here, the Railroads were found to be PRPs under § 9607(a)(2), as the owners of a "facility at which . . . hazardous substances were disposed of," and Shell was found to be a PRP under § 9607(a)(3), as a person who "arranged for disposal . . . of hazardous substances owned or possessed by such person." The first question we address is whether the Railroads and Shell are liable for all the cleanup costs at the Arvin site, or, as the district court held, only some of them. The second question, addressed later, is whether Shell is liable for any of the harm, as an "arranger."
A. Apportionment of Liability
1. Standard of Review and Burden of Proof
Because we have not heretofore faced a CERCLA apportionment issue directly, there is no Ninth Circuit precedent concerning the standard of appellate review for such an issue. Three circuits have addressed the question, and two separate approaches have emerged.
The Fifth and Eighth Circuits look first to whether there is a reasonable basis for apportioning the harm, an inquiry they consider a question of law reviewed de novo. See Hercules, 247 F.3d at 718-19; Bell Petroleum, 3 F.3d at 896, 902. These two circuits then examine, as a question of fact reviewed under the clearly erroneous standard, precisely how damages are to be divided. See Hercules, 247 F.3d at 718 (holding that "actual apportionment" of damages is a question of fact); Bell Petroleum, 3 F.3d at 896 (same).
In contrast, the Sixth Circuit considers divisibility as a whole a factual matter of causation, reviewed entirely under the clearly erroneous standard. Township of Brighton, 153 F.3d at 318 n. 13. This view, however, disregards a distinction between conceptual divisibility and actual allocation that we find both persuasive and useful. The latter inquiry can involve the resolution of credibility issues and of conflicting evidence, while the former ordinarily does not.
We believe the most appropriate approach, and the one we therefore adopt here, is the one adopted in Hercules and Bell Petroleum, with a refinement suggested by Judge Parker's dissent in Bell Petroleum. Judge Parker thought that the majority confused the distinction between the "legal burden that the single harm at issue caused is of a type capable of apportionment, and the factual burden of proving the amount of harm attributable to a particular party." Bell Petroleum, 3 F.3d at 909 (Parker, J., concurring in part and dissenting in part). We are not sure that there was any such confusion. Rather, an aspect of clear error review is the legal determination whether the party with the burden of proof met that burden; if the *801 party did not and the district court nonetheless ruled for it, then the district court clearly erred. See Lloyd v. Schlag, 884 F.2d 409, 415 (9th Cir.1989) (reviewing "whether the district court committed clear error by holding that [plaintiff] had not met his burden of proof"). Thus, although the harm may be capable of apportionment, the harm may not actually be apportionable in the particular case as a factual matter, given the evidence produced, because the party advocating apportionment has not come forward with the minimum showing needed to meet its burden of proof as to the proper division of liability.
We therefore proceed as follows: We inquire, first, whether the particular harm at issue in the case is theoretically capable of apportionment i.e., whether it could ever be apportioned or whether it is, by nature, too unified for apportionment. That question is one of law, reviewed de novo. Cf. Taisho Marine & Fire Ins. Co. v. M/V Sea-Land Endurance, 815 F.2d 1270, 1274 (9th Cir.1987). Second, we review for clear error whether the defendant submitted evidence sufficient to establish a reasonable basis for the apportionment of liability, taking into account that the burden of proof is on the party seeking allocation, as well as the district court's actual division of liability.
There is no dispute here on the first, purely legal question whether the harm is capable of apportionment. See Bell Petroleum, 3 F.3d at 896; Chem-Dyne, 572 F.Supp. at 810. Some of the contamination on the B & B site occurred before the Railroads' parcel became part of the facility, and the original B & B site is distinct from the portion leased from the Railroads. Only some of the toxic substances were stored on the Railroads' parcel, and only some of the water on the facility washed over the Railroads' site. As to Shell, only some of the toxic substances spilled on the facility were sold by the company. The different toxic substances vary in their likelihood to leak and in the manner and speed in which they disseminate in ground water. So, conceptually, the contamination traceable to the Railroads and Shell, with perfect information, would be allocable, as would be the cost of cleaning up that contamination.
The questions, then, are whether the district court clearly erred in finding that the Railroads and Shell established a "reasonable basis" for apportionment, Bell Petroleum, 3 F.3d at 901, and whether, having so found, the district court properly apportioned the harm.
We recognize that the district court at one point stated that the Railroads failed to "meet their burden of proof" as to divisibility. But its overall ruling was necessarily to the contrary, as the court also stated that it "independently found [in the record] a reasonable basis for apportionment in spite of the parties['] presentations." Thus, while the district court rejected both defendants' theories as to divisibility, it used record evidence it found persuasive to determine apportionment. Whether the district court was correct in this regard is, as we have noted, part of the review of the factual decision regarding apportionment, discussed hereafter. The burden of proof issue thus melds with the merits of the apportionment issue, rather than barring us from considering it.
2. The Railroads
As we have established, if apportionment is to be allowed under the Restatement approach, there must be a reasonable basis for calculating the connection between the Railroads' PRP status and the relevant harms. Again, the harm we consider is the contamination on the Arvin site. Where, as for the Railroads, the *802 PRPs' responsibility under the statute derives solely from their status as landowner, the PRPs can establish divisibility by demonstrating that discrete portions of the contamination are in no respect traceable to land they owned at the time of the toxic disposal.
Here, the district court's severability analysis after 191 pages of an amended opinion that included over 80 pages of factual findings ultimately relied on the simplest of considerations: percentages of land area, time of ownership, and types of hazardous products. Although we do not fault the district court's factfinding its numbers are mostly correct its legal conclusion that these three factors alone suffice to support apportionment cannot stand.[26] We address each factor below to show why.
a. Land Area
The only court of appeals case that has fully addressed divisibility of landowner liability takes a relatively strict approach to apportionment on the basis of land area. In United States v. Rohm and Haas Co., 2 F.3d 1265 (3d Cir.1993), the most analogous CERCLA divisibility case to this one, the Third Circuit held, as do we, that "simply showing that one owns only a portion of the facility in question is [not] sufficient to warrant apportionment." Id. at 1280.
Like this case, Rohm and Haas concerned a landowner PRP and changes in landownership over time. Although the Third Circuit's divisibility analysis is fairly cursory, its reluctance to apportion landowner liability on the basis of land boundaries is informative. Rohm and Haas indicates that the mere percentage of land owned by one PRP relative to the entire facility cannot alone be a basis for apportionment, as it does not provide a minimally reliable basis for tracing the proportion of leakage, contamination, or cleanup costs associated with the entire parcel.
Contrary to Rohm and Haas, the district court's analysis gave star billing to the percentage of land ownership, even in a unified facility.[27] We agree with Rohm and Haas that this approach, seemingly straightforward though it is, fails in most circumstances to comport with the "reasonable basis" test, as the facts of this case illustrate.
The Arvin site was a single facility. CERCLA premises landowner liability on ownership of a facility, not on ownership of a certain parcel of land that is part of a facility. The operations on the site were dynamic, with fertilizer rigs stored on the Railroad parcel and filled up on the B & B parcel. Empty pesticide cans were stored on the Railroad parcel before they were crushed and disposed of. After the 1978 windstorm, tanks were stored all over the facility, including on the Railroad parcel. A simple calculation of land ownership does not capture any data that reflect *803 this dynamic, unitary operation of the single Arvin facility.
In addition, the synergistic use of different parts of the Arvin site makes division based on percentage of land ownership particularly untenable. The record shows that B & B leased the Railroad parcel to accommodate its expanding operations. The Railroad parcel added an unquantifiable and perhaps exponential amount to B & B's soil contamination. Were the Railroad parcel not part of the facility, there would have been less overall storage capacity. One can assume that a smaller amount of toxic chemicals would have been delivered to, and spilled on, the Arvin site. The fertilizer rigs, for example, were stored almost exclusively on the Railroad parcel. Had that parcel not been available, less fertilizer might have been delivered to and leaked onto the Arvin parcel. As these descriptions suggest, nothing in the record supports a conclusion that the leakage of contaminants that ended up on the B & B parcel occurred on each parcel in proportion to its size.
Instead, given the circumstances of this case, more pertinent comparisons would be the proportion of the amount of chemicals stored, poured from one container to another, or spilled on each parcel. For example, were adequate records kept, it would be possible to estimate the amount of leakage attributable to activities on the Railroad parcel, how that leakage traveled to and contaminated the soil and groundwater under the Arvin parcel, and the cost of cleaning up that contamination.
But none of this data is in the record. It may well be that such information is, as a practical matter, not available for periods long in the past, when future environmental cleanup was not contemplated. Unlike records concerning the amount of toxic chemicals produced by a given operator of a facility, records that separate out, with any precision, the amount of toxic chemicals stored on one part of a facility as opposed to another would have had little utility to B & B, the operator of the facility, and none to the Railroads, the owners of the parcel. This observation is true in spades for the more directly pertinent data, such as the amount of leakage on the Railroad parcel, the amount of that leakage that flowed onto the B & B parcel, and the amount of that residue that remained as contamination under the B & B parcel when the cleanup began.
So the failure to keep these records is quite understandable. But these practical considerations cannot justify a "meat-axe" approach to the divisibility issue, premised on percentages of land ownership, as a means of adjusting for the difficulties of proving divisibility with precision when PRP status is based on land ownership alone. Such an approach would be tantamount to a disagreement with the imposition of no-fault land ownership liability. Congress, however, created precisely such liability, placing the responsibility to pay for environmental cleanup on parties, such as the Railroads, that profited from the circumstances giving rise to the contamination so that the taxpayers are not left holding the tab. The risk of lack of adequate information for meaningful division of harm therefore must rest on the responsible parties, even when that information is extremely hard to come by.
b. Period of Ownership
Just as the district court's land area calculations did not correspond to the harms in this case, its simple fraction based on the time that the Railroads owned the land cannot be a basis for apportionment. The fraction it chose assumes constant leakage on the facility as a whole or constant contamination traceable to the facility as a whole for each time period; no evidence suggests that to be *804 the case. Again, if adequate information were available, it would make sense to eliminate the Railroads' liability for the period before B & B leased the Railroad parcel. See, e.g., Rohm and Haas, 2 F.3d at 1280. The evidentiary vacuum concerning the amount of contamination traceable to the pre-lease period, however, precludes any such calculation here.
c. Types of Hazardous Products
While many of the district court's calculations were factually correct but legally insufficient, its decision to assign a two-thirds fraction to represent the present types of hazardous products contains a basic factual error. All three chemicals were on the Railroad parcel at some time. There is no evidence as to which chemicals spilled on the parcel, where on the parcel they spilled, or when they spilled. Yet, there is evidence that there may well have been leakage on the Railroad parcel of D-D, the chemical the district court excluded in its calculations. Given the record, the district court clearly erred in its attempt to rely on the proportion of hazardous products present on the Railroad parcel.
d. Conclusion
It will often be the case that a landowner PRP will not be able to prove in any detail the degree of contamination traceable to activities on its land. A landowner PRP need not be involved at all in the disposal of hazardous chemicals and so will often have no information concerning that disposal or its impact. The net result of our approach to apportionment of liability, consequently, may be that landowner PRPs, who typically have the least direct involvement in generating the contamination, will be the least able to prove divisibility. And contribution "is not a complete panacea since it frequently will be difficult for defendants to locate a sufficient number of additional, solvent parties." O'Neil v. Picillo, 883 F.2d 176, 179 (1st Cir.1989).
While the result may appear to fault a landowner PRP for failing to keep records proving the minor connection of its land to the contamination on the facility as a whole, CERCLA is not a statute concerned with allocation of fault. Instead, CERCLA seeks to distribute economic burdens. Joint and several liability, even for PRPs with a minor connection to the contaminated facility, is the norm, designed to assure, as far as possible, that some entity with connection to the contamination picks up the tab. Apportionment is the exception, available only in those circumstances in which adequate records were kept and the harm is meaningfully divisible.
In sum, although most of the numbers the district court used were sufficiently exact, they bore insufficient logical connection to the pertinent question: What part of the contaminants found on the Arvin parcel were attributable to the presence of toxic substances or to activities on the Railroad parcel? We therefore reject the district court's apportionment calculation and hold that the Railroads have failed to prove any reasonable basis for apportioning liability for the costs of remediation.
3. Shell
Shell's contribution to the contamination of the Arvin site is easier to isolate than that of the Railroads', as it involved ascertainable pollutants entering the soil in a specific way. Shell thus had a greater prospect of succeeding on divisibility than did the Railroads, as there is some volumetric basis for comparing its contribution to the total volume of contamination on the Arvin site.
Nonetheless, the evidence actually produced was insufficient to allow even a rough approximation of the contamination remaining on the facility, either directly or *805 through the presumption that the pro rata cost of remediating contamination is likely to be equivalent to a PRP's pro rata share of contamination. Indeed, Shell produced only evidence concerning leakage.
Such leakage or disposal evidence cannot suffice in the present circumstances as a basis for apportioning the harm in question. As we have explained, contamination as distinct from leakage is the necessary consideration. Where there is disposal of multiple contaminants, courts have demanded a "showing [of] a relationship between waste volume, the release of hazardous substances, and the harm at the site." Monsanto, 858 F.2d at 172. Factors such as "relative toxicity, migratory potential, and synergistic capacity of the hazardous substances" are relevant to demonstrating this relationship. Id. at 172 n. 26. Alternatively, volumetric calculations of contaminating chemicals those remaining in the environment and requiring cleanup could be sufficiently specific for apportionment. See Hercules, 247 F.3d at 719; Bell Petroleum, 3 F.3d at 903. But Shell provided no evidence regarding such factors. It thus failed to prove whether its leaked chemicals contaminated the soil in any specific proportion as compared to other chemicals spilled at the site. See United States v. Agway, Inc., 193 F.Supp.2d 545, 549 (N.D.N.Y.2002) (noting that defendants whose products have become commingled in the soil "face an uphill battle in attempting to demonstrate that volumetric contribution is a reasonable basis for apportioning liability of a single harm").
To fill these evidentiary gaps, the district court assumed equal contamination and cleanup cost from all the chemicals' leakage. This methodology entirely failed to account for the possibility that leakage of one chemical might contribute to more contamination than leakage of another, because of their specific physical properties. Similarly, the cost of cleanup depends upon which contaminants are present; some contaminants are more expensive than others to extract from the soil.
Moreover, even as an approximation of leakage, the district court's calculations were too speculative to support apportionment. Chem-Nuclear is informative in this regard. In Chem-Nuclear, the defendant disposed of drums of hazardous waste at several facilities. 292 F.3d at 255. At least eighty drums found at a single site were attributable to the defendant. Id. The defendant could not prove, however, that it was responsible only for those eighty drums, and therefore was not entitled to apportionment. Id. at 259-61. Although the defendant provided evidence supporting inferences regarding where its drums went, the court refused to accept these inferences as sufficient proof. Id. at 260.
Here, the court estimated the volume of Shell's chemicals that leaked from each transfer based on data samples that do not readily extrapolate to total leakage over the entire twenty-three-year period that Shell supplied B & B with D-D. The court used figures from only six years of B & B's purchases of Shell D-D to calculate the average D-D transferred at the Arvin site each year, yet provided no basis for assuming equal purchases each year. The court then based its estimate of the amount of D-D spilled during each transfer on guesses by witnesses.[28] Also, although D-D was known to leak when sight gauges on D-D rigs broke, the court had no evidence of how much D-D leaked under *806 these circumstances and, therefore, did not add any quantity for sight gauge leakage into the calculation. Even if each of these estimates alone might have been reasonable, the resulting combined estimate is too speculative to serve as an accurate basis for ascertaining leakage, let alone contamination or the costs of cleaning up the contamination.[29]
Again, Shell's harm was capable of apportionment. Shell could have provided data showing the volume of chemicals shipped to B & B every year, or more precise estimates of the average volume of leaked chemicals during the transfer process. Data connecting the properties of the various chemicals leaked at the site to the likelihood that they contributed to the contamination could have been presented and considered. But the record before us provides none of that information, most likely because Shell put its eggs in the no-liability basket.
In the end, the district court's apportionment analysis with regard to Shell came closer to meeting the legal standard than the method it used with respect to the Railroads. We hold, nonetheless, that on the facts of this case as the district court found them, there was no reasonable basis for apportioning the pertinent harm caused by Shell.
B. "Arranger" Liability
Under CERCLA, "any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person" is liable. § 9607(a)(3). Shell claims that (1) the district court applied the wrong legal standard in determining whether Shell was an "arranger" under § 9607(a); (2) the "useful product" doctrine precludes imposition of "arranger" liability on Shell; (3) Shell lacked ownership and control over the chemicals at the time of the transfers and thus the district court could not find that it had arranged them; and (4) because D-D evaporates or disperses rather than remaining in toxic form in the soil, the district court erred when it determined that Shell contributed to the groundwater contamination. We reject these contentions and affirm the district court's ruling on the "arranger" issue.
We review the district court's interpretation of CERCLA to determine the legal standard for arranger liability as a question of law, reviewed de novo. Carson Harbor Vill., 270 F.3d at 870. We review the district court's factual determinations *807 regarding Shell's operations for clear error. W. Prop. Serv. Corp. v. Shell Oil Co., 358 F.3d 678, 685 (9th Cir.2004).
1. Requirements for "Arranger" Liability
CERCLA does not define "arrange[]." We have avoided giving the term "arranger" too narrow an interpretation to avoid frustrating CERCLA's goal of requiring that companies responsible for the introduction of hazardous waste into the environment pay for remediation. Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1081 (9th Cir.2006); Cadillac Fairview/Cal., Inc. v. United States, 41 F.3d 562, 565 n. 4 (9th Cir.1994) (per curiam) (citing with approval United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1380 (8th Cir.1989)); see also Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 694-95 (9th Cir.1992) (discussing Aceto, 872 F.2d at 1380). Accordingly, we have recognized, in addition to "direct" arranger liability, a "broader" category of arranger liability, see United States v. Shell Oil Co., 294 F.3d 1045, 1054-55 (9th Cir.2002), in which disposal of hazardous wastes is a foreseeable byproduct of, but not the purpose of, the transaction giving rise to PRP status.
"Direct" arranger liability also referred to as "`traditional' direct" arranger liability involves transactions in which the central purpose of the transaction is disposing of hazardous wastes. See id.; see, e.g., Cadillac Fairview, 41 F.3d at 563-65 (involving rubber companies that transferred contaminated styrene to Dow Chemical for reprocessing); Catellus Dev. Corp. v. United States, 34 F.3d 748, 749-50 (9th Cir.1994) (involving a company that sold used automotive batteries to a lead reclamation plant). In contrast, "broader" arranger liability involves transactions that contemplate disposal as a part of, but not the focus of, the transaction; the "arranger" is either the source of the pollution or manages its disposal. See Shell Oil, 294 F.3d at 1058. In the "broader" arranger liability cases, such as Shell Oil, we examined the connection between the alleged arranger transaction and the disposal and decided whether the transaction necessarily constituted an arrangement for disposal of hazardous substances, whatever immediate form it may have taken.
These broader arranger cases can involve situations, like the present one, in which the alleged arrangers did not contract directly for the disposal of hazardous substances but did contract for the sale or transfer of hazardous substances, which were then disposed of. See, e.g., Fla. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1315, 1318 (11th Cir.1990) (involving purchaser and recycler that sued manufacturer of transformers for cleanup costs from later disposal); Mathews v. Dow Chemical Co., 947 F.Supp. 1517, 1519-20 (D.Colo.1996) (involving neighbors of chemical company who sued manufacturer of paint thinner for contamination resulting from packaging paint thinner); Courtaulds Aerospace, Inc. v. Huffman, 826 F.Supp. 345, 347-48, 353-54 (E.D.Cal.1993) (involving neighbor of smelting plant who sued companies that contracted with plant for burning and smelting of copper wire for resulting contamination). There are no Ninth Circuit cases in this category.[30]
*808 The inclusion of such circumstances within the "arranger" concept, however, accords with the statutory language and structure as a whole. To be an "arranger," one must "arrange[] for disposal or treatment, or arrange[ ] with a transporter for transport for disposal or treatment, of hazardous substances . . . ." § 9607(a)(3). CERCLA's definition of "disposal," in turn, includes "the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or constituent thereof may enter the environment or be . . . discharged into any waters, including ground waters." § 6903(3) (referred to by § 9601(29)). That "disposal" includes such unintentional processes as "leaking" indicates that "disposal" need not be purposeful. See Carson Harbor Vill., 270 F.3d at 880 (holding that "leaking" may not "require affirmative. . . conduct" (internal quotation marks omitted) (quoting and adopting interpretation of United States v. CDMG Realty Co., 96 F.3d 706, 714 (3d Cir. 1996))). Thus, an entity can be an arranger even if it did not intend to dispose of the product. Arranging for a transaction in which there necessarily would be leakage or some other form of disposal of hazardous substances is sufficient.
2. "Useful Product" Doctrine
While adopting a generally expansive view of arranger liability, we have refused to hold manufacturers liable as arrangers for selling a useful product containing or generating hazardous substances that later were disposed of. See, e.g., 3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1362-65 (9th Cir.1990). As Stevens Creek and other "useful product" cases recognize, liability cannot extend so far as to include all manufacturers of hazardous substances, on the theory that there will have to be disposal of the substances some time down the line, after it is used as intended. See, e.g., Stevens Creek, 915 F.2d at 1362-65 (refusing to hold manufacturer liable for costs of removing asbestos from building); Fla. Power & Light, 893 F.2d at 1318-19 (refusing to hold manufacturer of transformers liable for subsequent release of chemicals upon disposal of transformers). Also, the asserted liability in "useful product" cases generally involved only the normal use of those chemicals. See, e.g., Jordan v. S. Wood Piedmont Co., 805 F.Supp. 1575, 1577 (S.D.Ga.1992) (involving the sale of chemicals to treat wood and the contamination from the wood treatment process); Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F.Supp. 651, 653 (N.D.Ill. 1988) (same).
The useful product cases have no applicability where, as here, the sale of a useful product necessarily and immediately results in the leakage of hazardous substances. In that circumstance, the leaked portions of the hazardous substances are never used for their intended purpose. See Zands v. Nelson, 779 F.Supp. 1254, 1262 (S.D.Cal.1991) (stating that "gasoline is no longer a useful product after it leaks into, and contaminates, the soil"); see also Aceto, 872 F.2d at 1381 (rejecting application of the useful product doctrine where "waste is generated and disposed of contemporaneously with the process" (emphasis added)).
Here, although Shell sold B & B a useful product, leakage of some of that product before B & B could use it was both inherent in the transfer process arranged by *809 Shell and contemporaneous with that process.[31] Shell arranged for delivery of the substances to the site by its subcontractors; was aware of, and to some degree dictated, the transfer arrangements; knew that some leakage was likely in the transfer process; and provided advice and supervision concerning safe transfer and storage. Disposal of a hazardous substance was thus a necessary part of the sale and delivery process.
Put another way, the district court did not assign arranger liability to Shell for contamination resulting from the application of Shell's useful products to the soil as fertilizers or fumigants, or for disposal of contaminated soil after the products were used. Instead, the district court assigned arranger liability on the portion of product that never made it to the fields for its intended use but was disposed of prior to use. Because Shell's liability here stems from the leaked chemicals rather than the fertilizer that was used as fertilizer, the useful product doctrine is not applicable.
3. Control and Ownership
Much of the district court's analysis relies on the factual determination that spills would necessarily occur during the transfer of Shell's chemicals to B & B. Shell maintains that this finding was inadequate, because Shell did not itself transport the chemicals or participate in transferring the chemicals to B & B's containers. Central to this contention is Shell's insistence that it lacked ownership and control of the chemicals at the time of transfer and so could not be an "arranger." We do not agree that the district court's findings about Shell's involvement were insufficient to support "arranger" liability.
There was evidence before the district court that: (1) Spills occurred every time the deliveries were made; (2) Shell arranged for delivery and chose the common carrier that transported its product to the Arvin site; (3) Shell changed its delivery process so as to require the use of large storage tanks, thus necessitating the transfer of large quantities of chemicals and causing leakage from corrosion of the large steel tanks; (4) Shell provided a rebate for improvements in B & B's bulk handling and safety facilities and required an inspection by a qualified engineer; (5) Shell regularly would reduce the purchase price of the D-D, in an amount the district court concluded was linked to loss from leakage; and (6) Shell distributed a manual and created a checklist of the manual requirements, to ensure that D-D tanks were being operated in accordance with Shell's safety instructions.
The parties vigorously dispute whether, given these facts, Shell owned the pesticide during the transfer and controlled the transfer process. Although the district court addressed these questions and resolved them against Shell, we do not enter this controversy. The text of the statute does not require that the arranger own the hazardous wastes, either at the time the "arranger" arranged for the transaction or at the time of transfer of ownership. See Pakootas, 452 F.3d at 1081. Indeed, to require ownership at the time of disposal "would make it too easy for a party, wishing to dispose of a hazardous substance, to escape by a sale its *810 responsibility to see that the substance is safely disposed of." Catellus, 34 F.3d at 752. Nor is control a statutory requirement, Cadillac Fairview, 41 F.3d at 565, although it has been viewed as a pertinent consideration in cases quite different from this one.
Where an owner of hazardous substances directly "arranges" for disposal by, for example, using a hazardous substance disposal company that owner is plainly an "arranger" even if it has nothing more to do with disposal. See, e.g., Catellus, 34 F.3d at 752. In "broader" arranger liability cases, however, we have tended to view control as a "crucial element" in determining whether the party arranged for disposal. Shell Oil, 294 F.3d at 1055. We also have viewed ownership of hazardous substances at the time of disposal as an important factor in nontraditional, indirect arranger liability cases. See Jones-Hamilton, 973 F.2d at 695 (relying on Aceto, 872 F.2d at 1380).
None of these cases, however, indicates that ownership or control at the time of transfer are the sine qua non of nontraditional arranger liability. Instead, ownership and control at time of disposal are useful indices or clues toward the end of "look[ing] beyond defendants' characterizations to determine whether a transaction in fact involves an arrangement for the disposal of a hazardous substance." Aceto, 872 F.2d at 1381. In Shell Oil, for example, the government never owned the chemicals before disposal occurred, so control over the substances was an important factor in determining whether or not the government could have "arranged" for disposal. Shell Oil, 294 F.3d at 1057-59.
Here, ownership at the time of disposal is not an informative consideration, and control is informative only in light of additional considerations. Unlike in Shell Oil, where the absence of any ownership or control was a clue concerning whether the sales transaction necessarily contemplated disposal as an inherent part of the transaction, Shell here owned the chemicals at the time the sale was entered into. The statute requires nothing more in terms of ownership. We therefore need not determine the precise moment when ownership transferred to B & B. As to the control question, the district court's findings, recited above, demonstrate that Shell had sufficient control over, and knowledge of, the transfer process to be considered an "arranger," within the meaning of CERCLA, for the disposal of the chemicals that leaked.
4. Groundwater Contamination
Shell, finally, contends that the court erred when it determined that it contributed to the groundwater contamination, maintaining that D-D evaporates or disperses rather than remaining in toxic form in the soil. The district court's analysis on this issue is factually complex and based on several weeks of testimony. The district court made specific findings that D-D can indeed enter groundwater. Those findings are based on the testimony of experts whom the court found persuasive. In light of the complexity of the science and the substantial expert evidence supporting the finding, the district court's determination was not clearly erroneous.
IV. Conclusion
The district court erred in determining that the harm in this case could be apportioned on this record. Given the district court's erroneous approach and the paucity of record evidence, there is no reasonable basis for apportioning the damages attributable to the Railroads' activity. Shell's liability is a closer call, but the evidence on the record in that regard is also insufficient to support apportionment.
The district court followed the proper analysis in finding that Shell is liable as an *811 arranger. Shell arranged for the sale and transfer of chemicals under circumstances in which a known, inherent part of that transfer was the leakage, and so the disposal, of those chemicals.
We therefore reverse as to the district court's finding on apportionment. We affirm the district court's findings regarding both the Railroads' and Shell's liability. The Railroads and Shell are jointly and severally liable for the harm at the Arvin site, except with regard to the so-called "Dinoseb hot spot."[32] We remand for further proceedings not inconsistent with this opinion.
REVERSED in part and AFFIRMED in part.
NOTES
[*] The Honorable John R. Gibson, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.
[1] Unless otherwise noted, all statutory citations are to Title 42 and the 2000 edition of the U.S. Code.
[2] The Railroads have requested judicial notice of the EPA proceedings concerning their suit for reimbursement from the government and of the stay of those proceedings pending the determination of joint and several liability in this case. These proceedings do not "`have a direct relation to matters at issue.'" United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) (citation omitted). We therefore deny the Railroads' request for judicial notice.
[3] We refer to the B & B and Railroad parcels together as the "Arvin site."
[4] "FOB Destination" means "free on board" and "when the term is F.O.B. the place of destination, the seller must at his own expense and risk transport the goods to that place and there tender delivery of them." U.C.C. § 2-319(1)(b) (2003).
[5] The relevant statutory sections covering contribution and reimbursement actions, § 9613(f) and § 9607, are quoted later in this opinion.
[6] Quotations from and discussion of the district court's ruling in this opinion concern the district court's Amended Findings of Fact and Conclusions of Law unless otherwise noted.
[7] 0.9 acres # 45 # 4.7 acres = 0.191 (19.1%).
[8] B & B began operations in 1960. The Railroad parcel was leased starting in 1975. In 1988, B & B ceased its operations at Arvin. Thus, the Railroad parcel was part of the Arvin site for 13 of 29 years, or 45% of the time B & B operated the facility.
[9] There were three pertinent chemicals: D-D, Nemagon, and dinoseb. The district court found that although there was some D-D contamination attributable to the Railroad parcel, that "slight contamination is offset by the fact that the [Arvin] Site is graded towards the southeast pond [on the B & B parcel] and the levels of chemical contamination on the B & B parcel are substantially higher than the reported detections on the Railroad parcel." On that reasoning, the district court removed all D-D from the equation.
[10] B & B, albeit insolvent, was assigned 100% joint and several liability.
[11] The Railroads do not challenge the percentage of liability assigned to Shell.
[12] The district court found that the entire Arvin site, including the Railroad parcel, was a single facility for the purposes of § 9607. The Railroads do not appeal that finding.
[13] Section 9607(b) reads:
There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by
. . .
(3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions.
(Emphasis added). Section 9607(b) also provides defenses for "an act of God" and "an act of war." § 9607(b)(1), (2).
[14] The major cases addressing division of PRP liability under CERCLA in the Ninth Circuit instead have been contribution cases among PRPs, decided after joint liability was established, see, e.g., Carson Harbor Vill., 270 F.3d at 871; Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir. 1997), or have addressed a different issue entirely, see, e.g., Fireman's Fund, 302 F.3d at 945 (analyzing the possibility that CERCLA preempts state laws).
[15] DTSC argues that the apportionment question is not properly before us because it was not properly raised in the pretrial order, but we do not agree. To preserve a claim, a party must put forward a position in the pretrial statement in a manner sufficient to put the opposing party on notice and allow the trial court to consider its merits. See Cripe v. City of San Jose, 261 F.3d 877, 886 n. 9 (9th Cir.2001) (refusing to hold that defendants had waived an affirmative defense by mislabeling it, because the court and plaintiffs were on notice of the real issue); Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir.1995) (noting that argument must be raised sufficiently for the court to rule on it). Notice to the district court is not an issue in this case, as the final decision addresses apportionment. While the Governments claim to have been unaware that they needed to address the apportionment issue, their assertion is not supported by the record. Both the Railroads and Shell directly addressed the apportionment issue in their pretrial orders. The Railroads "den[ied] that they are jointly and severally liable for the response costs claimed by the Government" but argued that, if liable, they should only be responsible for that fraction of the total mass of groundwater contamination proven to be traceable to their parcel. Shell noted that joint and several liability is not mandatory and cited cases regarding apportionment. As a result, we conclude that the issue of apportioning liability was not waived and is properly before us.
[16] The parties here have assumed that the apportionment standard must be one of uniform federal common law. As stated above, every federal circuit to address the issue, including those decided after O'Melveny & Myers v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994), and Atherton v. FDIC, 519 U.S. 213, 117 S.Ct. 666, 136 L.Ed.2d 656 (1997), has shared that understanding. Although Atchison, Topeka & Santa Fe Ry. Co. v. Brown & Bryant, Inc., 159 F.3d 358, 362-64 (9th Cir.1997), questioned whether O'Melveny & Myers and Atherton upset Ninth Circuit law with regard to the adoption of uniform federal common law regarding successor liability under CERCLA, very different considerations govern with respect to apportionment. In Atchison, resolution of the question of successor liability would resolve who was liable under CERCLA, an inquiry with roots in state corporate law. Here, the inquiry diverges from state law completely. As we explain in this section, the "super-strict" nature of CERCLA liability is sui generis, so there is no state law directly applicable. The resulting apportionment analysis therefore requires a similarly unique set of considerations, married to the statute's functions and purpose.
[17] Comment b of section 433A notes:
Distinct harms. There are other results which, by their nature, are more capable of apportionment. If two defendants independently shoot the plaintiff at the same time, and one wounds him in the arm and the other in the leg, the ultimate result may be a badly damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as separate injuries, and as distinct wrongs. The mere coincidence in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in the apportionment of some elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other.
[18] Comment d of section 433A notes:
Divisible harm. There are other kinds of harm which, while not so clearly marked out as severable into distinct parts, are still capable of division upon a reasonable and rational basis, and of fair apportionment among the causes responsible. Thus where the cattle of two or more owners trespass upon the plaintiff's land and destroy his crop, the aggregate harm is a lost crop, but it may nevertheless be apportioned among the owners of the cattle, on the basis of the number owned by each, and the reasonable assumption that the respective harm done is proportionate to that number. Where such apportionment can be made without injustice to any of the parties, the court may require it to be made.
[19] The sections of the Restatement that courts have used to establish the rules of joint and several liability under CERCLA are found in the negligence division of the Restatement. As these courts recognize, CERCLA is a strict liability statute. See, e.g., Hercules, 247 F.3d at 716; Township of Brighton, 153 F.3d at 318. Because there is no comparable divisibility rule in the strict liability portion of the Second Restatement, courts have adapted the negligence rules to strict liability by declining to rely on the portion of the Restatement section that places an initial burden as to causation on the plaintiff. Compare Hercules, 247 F.3d at 717, and Bell Petroleum, 3 F.3d at 896, with RESTATEMENT (SECOND) OF TORTS § 433B(1).
[20] One commentator has noted that trying to apply the Restatement to CERCLA in most cases is like "pushing a round peg through a square hole. Traditional tort law principles falter in the CERCLA context because CERCLA is so unlike a typical tort law cause of action." Lynda J. Oswald, New Directions in Joint and Several Liability Under CERCLA?, 28 U.C. DAVIS L. REV. 299, 360 (1995).
[21] The statute also mentions "damages for injury to, destruction of, or loss of natural resources" and "costs of any health assessment or health effects study." § 9607(a)(C), (D). These provisions may be informative with regard to the nature of the harm in other cases but are not here applicable.
[22] In many instances, of course as in Chem-Dyne the various polluters will dispose of the same substance in the same location, so there will be a basis for assuming that each polluter's pro rata share of the hazardous waste disposed of and of the resulting contamination is the same. See also Bell Petroleum, 3 F.3d at 903.
[23] The cost of cleanup of different toxic substances or in different areas of the facility will often be a useful measure of the proportion of the pertinent contamination allocable to each defendant. That cost will depend upon factors such as which contamination was serious enough to merit remediation and how thoroughly the soil was contaminated in various areas. Thus, the "harm" allocation analysis may in some instances usefully focus initially on the proportion of costs associated with remedying various aspects of the contamination.
[24] Among the equitable factors used in CERCLA contribution cases are the so-called "Gore factors." See Hercules, 247 F.3d at 718. Those factors are derived from the amendment that then-Representative Gore introduced in 1980 to alleviate the harshness of mandatory apportionment, which at that time was a part of the bill. See 126 CONG. REC. 26782 (1980) (statement of Rep. Gore). Although these factors are appropriate in contribution cases, they are not, for the reasons suggested in the text, appropriate considerations at the liability stage.
[25] The only mention of equity in Restatement § 433A is in comment h, regarding "[e]xceptional cases." Comment h suggests that in cases of insolvent defendants, when an "innocent plaintiff would be forced to bear the share of the loss due to the defendant from whom he could not collect damages," courts may refuse to allocate harm to avoid "injustice to the plaintiff." Because we determine that there is no reasonable basis for apportioning the defendants' harm, we do not reach the question of whether the considerations of comment h are applicable here.
[26] We emphasize that our conclusion does not rest simply on the fact that the district court's calculation of the Railroads' share of liability was, as the court recognized, "rough[]." It is neither unusual nor fatal to the validity of the resulting allocation that an apportionment determination includes estimates of contribution to contamination based on extrapolation of record facts, as long as the basis for the extrapolation is explained, is logical, and does not disregard other record facts.
[27] Judge Moore, concurring in the result in Township of Brighton, asserted that a court can never apportion liability for contamination at a single facility on the basis of geography. Township of Brighton, 153 F.3d at 331 n. 12 (Moore, J., concurring in result). We do not go as far as Judge Moore. We do note, however, that purely geographic apportionment of a single facility is unlikely to be appropriate if operations on the two portions are intertwined to the extent present in this case.
[28] For the quantity of D-D that spilled during transfer from Shell's carriers' trucks to the D-D rigs, for example, the court relied on estimates of witnesses that the spill was between a cup and a quart. It then calculated "3 cups × 23 years = 2,691 cups => 168 gallons of D-D."
[29] There is something of a circuit split on the degree of specificity of proof necessary to establish the amount of liability apportioned to each PRP. According to some courts, proving up the precise proportion attributable to each PRP is a "very difficult proposition," Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 934 n. 4 (8th Cir.1995), requiring "concrete and specific" evidence in support of any proposed apportionment, Hercules, 247 F.3d at 718. The defendant cannot rely on a "chain of possible inferences." Chem-Nuclear, 292 F.3d at 260. In contrast, other courts have permitted informal estimates or data rather than more exact calculations. See Bell Petroleum, 3 F.3d at 903-04 (allowing estimation of the proportion of contamination produced by each of a series of successive operators of a facility, where reliable approximations were simple because there was a single chemical produced by the successive operators each of whom operated the facility similarly); see also Hercules, 247 F.3d at 719 (relying on Bell Petroleum, 3 F.3d at 895-96, and holding that the defendant need not show that there was no possibility that it contributed to the harm, because certain approximations can suffice). Aside from noting, as we have, supra n. 27, that logical, supportable inferences from the record facts are, as always, permissible, we need not weigh in on this dispute, as the district court's extrapolations could not be upheld under even a forgiving standard.
[30] Although Shell Oil involved "broader" arranger liability, it concerned "arranger" liability of a customer, rather than a producer, of hazardous materials. 294 F.3d at 1056. There, the defendant oil companies sought to hold the United States liable as an "arranger" because the federal government had purchased large quantities of high octane fuel for military use; the process used by the oil companies to refine the fuel resulted in toxic waste that the oil companies later dumped at a site in California. Id. Because the United States was the end purchaser, never owned the intervening toxic products used in the refining process, and did not contract out the crucial, waste-producing intermediate step, we held that it was not an arranger under § 9607(a)(3). Id. at 1056-59.
[31] For this reason, we also reject Shell's argument that, because manufacturers are taxed to provide money for the Superfund, Congress could not, without more, have intended for them to be subject to liability as arrangers. See 26 U.S.C. §§ 4661, 4662. Shell's liability derives not from its role as a manufacturer of a useful product but rather from its role in leakage prior to use. The Superfund tax is wholly irrelevant to the latter imposition of liability and certainly does not bar it.
[32] The district court found that the "Dinoseb hot spot" was a discrete area contaminated by Dinoseb (a Dow product) as the result of a major spill in 1983, that Shell did not manufacture or ship that product, and that Shell thus bore no responsibility for any part of the $1.3 million cost of cleaning up this discrete spill. The governments did not challenge this finding on appeal. That finding therefore stands, and the district court should not include the $1.3 million dollar cleanup costs for the "Dinoseb hot spot" in the calculation of Shell's liability.
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Filed 11/2/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A147073
v.
DOUGLAS MACARTHUR CHENELLE, (Solano County
Super. Ct. No. VCR222448)
Defendant and Appellant.
INTRODUCTION
A jury convicted defendant Douglas Chenelle of committing a lewd act on a
dependant adult by a caretaker, a violation of Penal Code section 288, subdivision (c)(2).1
Defendant contends the trial court erred by refusing to instruct on simple battery (§ 242)
as a lesser necessarily included offense. We disagree, and affirm.
STATEMENT OF THE CASE
An information filed in Solano County charged defendant with four counts of
committing a lewd act on a dependent adult by a caretaker. (§ 288, subd. (c)(2).) A jury
acquitted defendant of three counts and convicted him of one (count 4, committed on
June 25, 2013). The trial court sentenced defendant to two years in state prison. Because
defendant’s custody and conduct credits exceeded the time imposed, the court ordered his
release. The court also ordered defendant to register as a sex offender. (§ 290.)
Defendant timely appeals.
1
Unless otherwise indicated, all further statutory references are to the Penal Code.
STATEMENT OF FACTS
T.P. has a moderate intellectual disability, with an IQ of 46, and cerebral palsy.
He functions at an elementary school child level or younger. Because of his cerebral
palsy, he needs a wheelchair to get around and has difficulty speaking. He also suffers
from urinary incontinence and needs assistance cleaning himself after bowel movements.
T.P. was 28 years old at the time of trial. He lives in Fairfield with his mother, but
for at least 10 years he has attended Milestones Development, a day program in Vallejo
for adults with developmental disabilities.
Defendant was hired by Milestones Development to teach ceramics in 1999.
Later, he was assigned client care responsibilities. He was assigned to care for T.P.
because T.P. expressed interest in ceramics. Defendant had worked with T.P. since 2004
or 2005.
Valerie Frazier was a supervisor at Milestones. T.P. was in her day program five
days a week for almost 10 years. On June 25, 2013, a staff member told Frazier T.P. was
in the ceramics room. Because she knew T.P. was not scheduled to be in the ceramics
room at that time, she went there to find him. The door was closed, contrary to standard
procedure. When she tried to open it, she found it was barred shut by a metal bar, which
clattered to the floor when she forced the door open. She saw defendant standing bent
over T.P., who was in his wheelchair, with “his hands down in [T.P.’s] pants, and he was
fondling with [T.P.’s] penis.” She wheeled T.P. to the office of Terri Rolland,
Milestone’s administrator. While Frazier waited with T.P. for Rolland to see them,
defendant approached and offered to take T.P. to the activity table. Frazier refused.
Frazier told Rolland she had seen defendant with his hands inside T.P.’s pants.
T.P. confirmed this. Rolland went to the ceramics room to confront defendant.
Defendant said he “was just fixing [T.P.’s] pants.” Rolland put defendant on
administrative leave while an investigation was conducted.
2
T.P. was interviewed by a police officer the next day at Milestones. T.P.
confirmed defendant had put his hand down his pants and “rubbed” his penis. Asked if
defendant had ever touched him before, T.P. said yes. At a followup interview on
July 22, 2013, T.P. repeated that defendant had touched him in the ceramics room.
Asked how defendant had touched his penis, T.P. “gripped the palm of his hand and was
moving it in an up-and-down stroking motion.” According to T.P., there was some
sexual talk in his ear while defendant was rubbing T.P.’s penis, and it made him feel
weird. T.P said he did not want defendant to rub his penis, and he asked defendant to
stop, but defendant did not stop. T.P. said it had happened two or three other times in the
men’s bathroom.
Police were unsuccessful in making contact with defendant at his residence on
least three occasions. He was arrested on a warrant in June 2014.
Before the ceramics room incident, Frazier saw defendant on his knees in a
bathroom stall with T.P. Defendant indicated he was assisting T.P. with “a number two,”
but T.P. said it was a “number one.” Another staff member testified she had seen
defendant in the bathroom stall with T.P. “about ten times.”
Another staff member testified for the defense that she had also seen defendant on
his knees in the bathroom stall. When she looked through a hole in the stall door she saw
defendant pulling toilet paper for T.P. and she did not see or hear “anything sexual”
going on. A family friend who had known defendant all his life testified she had never
known defendant to make unwanted sexual advances on anyone, and the current charges
did not change her good opinion of him.
T.P.’s trial testimony was equivocal about what happened, where it happened, how
many times it happened, and whether he wanted it to happen.
DISCUSSION
Prior to trial, defense counsel requested an instruction on simple battery (§ 242) as
a lesser necessarily included offense of the charged crimes. The prosecution opposed the
3
request, citing People v. Shockley (2013) 58 Cal.4th 400 (Shockley). The court heard
argument on whether Shockley precluded instruction on battery as a lesser necessarily
included offense of violating section 288, subdivision (c)(2). The court concluded there
was “not evidentiary support, nor legal authority[,] for the court to give the lessers.” We
agree.
“[A]n offense expressly alleged in an accusatory pleading may necessarily include
one or more lesser offenses. The definition of a lesser necessarily included offense is
technical and relatively clear. Under California law, a lesser offense is necessarily
included in a greater offense if either the statutory elements of the greater offense, or the
facts actually alleged in the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also committing the lesser.
[Citations.] [¶] When an accusatory pleading alleges a particular offense, it thereby
demonstrates the prosecution’s intent to prove all the elements of any lesser necessarily
included offense. Hence, the stated charge notifies the defendant, for due process
purposes, that he must also be prepared to defend against any lesser offense necessarily
included therein, even if the lesser offense is not expressly set forth in the indictment or
information. [Citations.] The statutory law of California explicitly provides that the
defendant may be found guilty ‘of any offense, the commission of which is necessarily
included in that with which he is charged.’ (§ 1159, italics added.) [¶] Consistent with
these principles, California decisions have held for decades that even absent a request,
and even over the parties’ objections, the trial court must instruct on a lesser offense
necessarily included in the charged offense if there is substantial evidence the defendant
is guilty only of the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117–118; People v.
Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) “ ‘Substantial evidence’ in this
context is “ ‘evidence from which a jury composed of reasonable [persons] could . . .
conclude[]” ’ that the lesser offense, but not the greater, was committed.” (Breverman, at
p. 162.)
4
“To ascertain whether one crime is necessarily included in another, courts may
look either to the accusatory pleading or the statutory elements of the crimes. When, as
here, the accusatory pleading incorporates the statutory definition of the charged offense
without referring to the particular facts, a reviewing court must rely on the statutory
elements to determine if there is a lesser included offense.” (People v. Robinson (2016)
63 Cal.4th 200, 207 (Robinson); Shockley, supra, 58 Cal.4th at p. 404.)
Using the statutory elements test, in Shockley, supra, 58 Cal.4th 400, our Supreme
Court analyzed whether simple battery is a necessarily included lesser offense of lewd
conduct with a child (§288, subd. (a)). “ ‘Any touching of a child under the age of 14
violates this section, even if the touching is outwardly innocuous and inoffensive, if it is
accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator
or the victim.’ ” (Shockley, at p. 404, quoting People v. Lopez (1998) 19 Cal.4th 282,
289.) Under section 242, a battery is “any willful and unlawful use of force or violence
upon the person of another.” “ ‘Any harmful or offensive touching constitutes an
unlawful use of force or violence’ under this statute. [Citations.] . . . ‘ “[T]he least
touching” may constitute battery. In other words, force against the person is enough; it
need not be violent or severe, it need not cause bodily harm or even pain, and it need not
leave a mark.’ ” (Shockley, at p. 404.)
The defendant in Shockley argued that every touching with lewd intent is
necessarily a harmful or offensive touching under section 242; the Attorney General
argued otherwise. The court declined to resolve this point. (Shockley, supra, 58 Cal.4th
at p. 405.) Instead, the court concluded that “when the elements of two offenses are
essentially identical, as when guilt of battery would be predicated on being guilty of lewd
conduct, neither is a lesser and included offense of the other.” (Id. at p. 406.)
Conversely, in the situation where a battery is committed without also committing lewd
conduct, “as when a person touches a child nonconsensually and harmfully but without
lewd intent[,] . . . an element of the battery, the unwanted use of force, would not be
5
included within the elements of lewd conduct. It would be a distinct requirement. For
this reason, in a given case, the prosecutor might choose to charge a defendant with both
lewd conduct and battery” and the defendant could be convicted of both offenses. (Id. at
pp. 405–406.) The court also concluded that allowing a jury to convict of battery when
there is no lewd intent would violate the defendant’s due process right to notice.
“Convincing the jury there was no lewd intent would be a complete defense to a lewd
conduct charge. Charging only lewd conduct would not provide the defendant with
notice of the need to defend additionally against a battery charge based on an offensive
touching not included within the elements of lewd conduct. [¶] For these reasons,
battery is not a lesser included offense of lewd conduct.” (Id. at p. 406.)
In Robinson, supra, 63 Cal.4th 200, our Supreme Court applied this reasoning to
find that misdemeanor sexual battery (§ 243.4 subd. (e)(1)) is not a lesser included
offense of sexual battery by misrepresentation of professional purpose, a felony.
(§ 243.4, subd. (c); Robinson, at pp. 205, 210–211.) The Robinson opinion reaffirmed
the principle announced in Shockley that when “the same evidence is required to support
all elements of both offenses, there is no lesser included offense. [Citation.] Each is its
own offense, based on different statutes that apply to the same conduct; neither can be
said to be a lesser of the other.” (Id. at p. 207, citing Shockley, supra, 58 Cal.4th at
pp. 405–406.)
Applying this same analysis to the crimes of lewd conduct with a dependent adult
by a caretaker (§ 288, subd. (b)(2)) and simple battery (§ 242) yields the same result. The
elements of lewd conduct with a dependent adult are: (1) the defendant was a caretaker
of a dependent person; (2) the defendant, while serving as a caretaker, willfully
committed a lewd or lascivious act on that person; and (3) the defendant committed the
act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual
desires of himself or the dependent person. “A lewd or lascivious act includes touching
any part of the person’s body, either on the bare skin or through the clothes the person is
6
wearing.” (§ 288, subd. (b)(2); CALCRIM No. 1060.)2 The elements of simple battery
are (1) the defendant willfully and unlawfully touched a person; and (2) the touching was
done in a harmful or offensive manner. (§ 242; see CALCRIM No. 960.) If lewd
conduct against a dependent adult is necessarily a harmful or offensive touching, then
battery predicated on lewd conduct is essentially the same offense as lewd conduct, not a
lesser included one. Conversely, if lewd conduct is not necessarily a harmful or offensive
touching, then battery predicated on a touching without lewd intent is not a lesser
included offense because it requires an element, the harmful or offensive nature of the
touching, that lewd conduct does not. Shockley teaches that regardless of whether lewd
conduct always amounts to battery, battery is not a lesser included offense of lewd
conduct.
Defendant argues this court should not extend Shockley’s reasoning about the
relationship between a lewd act on a child and battery to a lewd act on a dependent
person and battery, because Shockley’s focus was on “the particular ineluctable harm a
lewd and lascivious act causes a child under the age of 14” and “on the intent of the
perpetrator, irrespective of the mental state of the child” who, unlike dependent adults,
cannot legally consent to sexual acts with adults.
Defendant’s argument is not persuasive. In one sentence of the opinion, the
Shockley court observed: “By focusing on the defendant’s intent to sexually exploit a
child rather than on the nature of the defendant’s offending act, section 288 ‘assumes that
young victims suffer profound harm whenever they are perceived and used as objects of
sexual desire.’ ” (Shockley, supra, 58 Cal.4th at p. 404.) The same can be said of lewd
2
Compare CALCRIM No. 1110: “To prove that the defendant is guilty of
[violating § 288, subd. (a)] the People must prove that: [¶] [1A.] The defendant willfully
touched any part of a child’s body either on the bare skin or through the clothing; . . .
[¶] . . . [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of (himself/herself) or the child; [¶] AND
[¶] 3. The child was under the age of 14 years at the time of the act.”
7
act on a dependent adult by a caretaker under section 288, subdivision (b)(2). The
Legislature has chosen to locate this criminal act in section 288. The same intent to
sexually exploit the victim is required for violations of subdivision (a) and subdivision
(b)(2). The same type of act—any touching of any part of the person’s body, either on
the bare skin or through the clothes the person is wearing—violates both statutes, if done
with the requisite intent. In our view, the cognate wording of both statutes evinces a
legislative determination that both children under 14 and dependant adults who need
caretakers are particularly vulnerable to sexual exploitation by persons on whom they
depend for care. Whether or not a dependant adult can consent to a lewd act, giving rise
to a consent defense to a section 288, subdivision (a)(2) charge, is a distinct question
from whether simple battery is a necessarily included lesser offense of a section 288,
subdivision (b)(2) violation, and is not one raised by the facts in this case or on appeal.
We see no principled reason to distinguish Shockley from the situation before us,
especially in light of Robinson, which extends the Shockley rationale to an entirely
different set of sex offenses.
Finally, a battery instruction was not required here because there was no
substantial evidence from which a reasonable jury could have concluded that defendant
committed the lesser, but not the greater, offense. (People v. Ochoa (1998) 19 Cal.4th
353, 422; Breverman, supra, 19 Cal.4th at p. 162.) The evidence adduced at trial
included Frazier’s testimony she saw defendant with his hand inside T.P.’s pants fondling
T.P.’s penis, and T.P.’s statements to police officers on two different dates that defendant
rubbed his penis. In addition, during the second interview, when T.P. was asked to
demonstrate how defendant touched his penis, he gripped his own hand and moved it in
an up-and-down motion. Rubbing a person’s penis “is so inherently sexual in nature that
no reasonable jury would conclude that defendant lacked lewd intent if he did that act.”
(Shockley, supra, 58 Cal.4th at p. 411 (conc. & dis. opn. of Kennard, J.).) In addition,
T.P. told police that when defendant rubbed his penis, he said sexual things in T.P.’s ear
8
that made him feel weird. Also, Frazier testified the ceramics room was barricaded shut,
contrary to standard procedure, giving rise to the inference the acts taking place inside the
room needed to be kept secret from others.
Even if the jury believed defendant’s statement to Frazier he was merely fixing
T.P.’s pants, no battery instruction was required, because the jury would have been bound
to acquit. Accidentally touching a child’s or a dependent adult’s penis while adjusting
his or her pants in the course of normal caretaking is not a crime. Such innocent conduct
does not amount to a battery, i.e., an intentional touching done in a harmful or offensive
manner. “A trial court need not . . . instruct on lesser included offenses when the
evidence shows that the defendant is either guilty of the crime charged or not guilty of
any crime . . . .” (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.) Put differently, on
the facts of this case, defendant could not have been prejudiced by the omission of a
battery instruction. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
_________________________
DONDERO, J.
We concur:
_________________________
HUMES, P. J.
_________________________
BANKE, J.
9
Trial Court: Solano County Superior Court
Trial Judge: Hon. Ramona Joyce Garrett
Counsel:
First District Appellate Project, Law Office of Jeffrey S. Kross, Jeffrey S. Kross, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence,
Assistant Attorneys General, Eric. D. Share and Leif M. Dautch, Deputy Attorneys
General, for Plaintiff and Respondent.
10
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Matter of Golban v Zalmanov (2019 NY Slip Op 09263)
Matter of Golban v Zalmanov
2019 NY Slip Op 09263
Decided on December 24, 2019
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 24, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
RUTH C. BALKIN
HECTOR D. LASALLE
BETSY BARROS, JJ.
2019-03803
(Docket Nos. V-12244-16, V-12287-16)
[*1]In the Matter of Tatiana Golban, appellant,
vVadim Zalmanov, respondent. (Proceeding No. 1.)
In the Matter of Vadim Zalmanov, respondent,
vTatiana Golban, appellant.
Eiges & Orgel PLLC, New York, NY (Scott I. Orgel, Elizabeth C. Garvey, and Courtney E. Dinkins of counsel), for appellant.
Anthony A. Capetola, Williston Park, NY (Michael C. Barrows of counsel), for respondent.
Leslie S. Lowenstein, Woodmere, NY, attorney for the child.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Conrad D. Singer, J.), dated January 31, 2019. The order, after a hearing, granted the father's petition for sole legal and residential custody of the parties' child and denied the mother's petition for sole legal and residential custody of the child.
ORDERED that the order is affirmed, with costs.
The parties, who were never married, are the parents of one child, who was born in 2013. Both parties petitioned for sole legal and residential custody of the child. After a hearing at which the parties and nine other witnesses testified, the Family Court awarded the father sole legal and residential custody of the child, with parental access to the mother. The mother appeals.
"The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child" (Matter of Turcios v Cordero, 173 AD3d 1048, 1049, citing Eschbach v Eschbach, 56 NY2d 167, 171). "The factors to be considered in determining the custody arrangement that is in the child's best interests include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Matter of Wood v Lozada, 152 AD3d 531, 532 [internal quotation marks omitted]). " The court's determination depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents'" (Matter of Toro v Williams, 167 AD3d 634, 635, quoting Matter of Blanco v Corbett, [*2]8 AD3d 374, 374). "The credibility findings of the court are entitled to great weight and should not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Toro v Williams, 167 AD3d at 635, citing Eschbach v Eschbach, 56 NY2d at 173).
Here, the testimony adduced at the hearing established that, over the course of the proceedings, the mother engaged in conduct which tended to interfere with the father's access to the child, and demonstrated a disregard for court orders (see Matter of Plaza v Plaza, 305 AD2d 607, 607). Notwithstanding the mother's allegations that the father was an unfit parent, the record demonstrated that the father provided a safe and appropriate home environment for the child, ensured that the child was well-dressed and well-fed, and encouraged her participation in academic and extracurricular activities (see Bourne v Bristow, 66 AD3d 621, 622). Consequently, the Family Court's determination that the child's best interests would be served by awarding sole legal and residential custody to the father has a sound and substantial basis in the record and will not be disturbed (see Matter of Turcios v Cordero, 173 AD3d at 1049; Matter of Toro v Williams, 167 AD3d at 635-636). Moreover, the court's determination was supported by the recommendation of the court-appointed forensic expert which, while not determinative, is entitled to some weight (see Matter of Dante v Dante, 170 AD3d 829, 831).
The mother's remaining contention is without merit.
Accordingly, we agree with the Family Court's determination to grant the father's petition for sole legal and residential custody of the child.
DILLON, J.P., BALKIN, LASALLE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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United States Court of Appeals,
Eleventh Circuit.
Nos. 95-3233, 95-3367.
Rafael DOMINGUEZ, Plaintiff-Appellee,
v.
TOM JAMES COMPANY, Defendant-Appellant.
May 15, 1997.
Appeals from the United States District Court for the Middle District of Florida. (No. 94-324-CIV-
ORL-19), Patricia C. Fawsett, Judge.
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
CARNES, Circuit Judge:
Raphael Dominguez brought this suit under the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 621 et. seq., (the "ADEA"), alleging that the Tom James Company ("the
Company") fired him because of his age. After a trial, the jury returned a verdict in favor of
Dominguez. The district court denied the Company's motion for a judgment as a matter of law and,
alternatively, for a new trial. The Company appeals that denial. We affirm the judgment of the
district court. In the course of doing so, we apply our holding in Brown v. A.J. Gerrard
Manufacturing Co., 715 F.2d 1549 (11th Cir.1983) (en banc) (Title VII awards are not subject to
reduction by amount plaintiff received in unemployment compensation), to ADEA cases, and extend
that holding to encompass Social Security benefits as well.
I. FACTS AND PROCEDURAL POSTURE
The Company is a men's clothing retailer that provides tailoring services. Raphael
Dominguez worked for the Company as a tailor in its Orlando office until he was terminated from
that position. At the time of his termination, Dominguez was sixty-five years old and had worked
as a tailor his entire adult life. Dominguez began working for the Company in the early 1980's,
when he was around fifty-five years old. For the first six and one-half years of his employment with
the Company, all went well; Dominguez's tailoring work was entirely satisfactory.
In 1991, David Hester took over the management of the Company's Orlando office.
According to the Company, Hester learned when he took over that the quality of Dominguez's work
was becoming increasingly less satisfactory. However, Dominguez contends that he maintained a
very high quality of work, and that whenever mistakes occurred, he corrected them free of charge
and without complaint.
Hester discussed Dominguez's status with Sarah Morgan, the Operational Manager at the
Orlando office. According to Morgan, Hester asked her to tell Dominguez that he was too old to
be working and that he should retire. Morgan refused to do so based on her belief that such action
was "discrimination" and was "against the law." Nevertheless, Hester fired Dominguez.
One or two weeks after Dominguez was fired, Hester and Morgan received a phone call from
the Company's in-house counsel, Tom Harvey. Harvey called to investigate whether Dominguez
might have legal recourse against the Company because of his termination. During the course of
the conversation, Morgan repeated to Harvey the substance of her prior conversation with Hester.
Harvey told them he agreed with Morgan's assessment that firing Dominguez because of his age
would be illegal discrimination.
After his termination, Dominguez attempted to find other tailoring work. However, the
Company was the only employer in the area looking for a tailor. For about a month, Dominguez
worked busing tables in a small cafeteria owned by his sister, but he found that work to be
unsatisfactory. Unable to find anything in the tailoring field or other suitable work, Dominguez
retired and began receiving Social Security retirement benefits. Dominguez continues to perform
out of his home as much tailoring work as he can get, but it generates only a small income which
is not enough to affect his Social Security benefits.
After exhausting his administrative remedies, Dominguez filed an ADEA claim against the
Company. After a trial, the case was submitted to a jury which rendered a verdict in favor of
Dominguez and awarded him back pay in the amount of $65,000.00. Because the jury found that
the Company's action was a wilful violation of the ADEA, the court awarded Dominguez liquidated
damages in the same amount. Finding that reinstatement was not a realistic alternative for
Dominguez, the court instead awarded him $11,900.00 of "front pay." Including prejudgment
interest, Dominguez's total award was $151,264.00, plus costs. The district court rejected the
Company's request that it reduce the award by the amount of Social Security benefits Dominguez
had received following his termination.
After the verdict, the Company renewed its motion for a judgment as a matter of law and,
alternatively, for a new trial. The district court denied those motions, and this appeal ensued.
II. DISCUSSION
We review a motion for judgment as a matter of law de novo. Daniel v. City of Tampa, 38
F.3d 546, 549 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2557, 132 L.Ed.2d 811 (1995).
We review for abuse of discretion a district court's ruling on a motion for a new trial. F.D.I.C. v.
Stahl, 89 F.3d 1510, 1514 (11th Cir.1996).
The Company appeals the judgment of the district court on a number of grounds, including
the district court's actions: (1) admitting, over the Company's assertion of attorney-client privilege,
testimony concerning the conversation between Harvey, Hester, and Morgan; (2) awarding
liquidated damages; (3) awarding front pay instead of reinstatement; (4) failing to reduce
Dominguez's award because of his failure to mitigate damages; and (5) considering a late-filed
motion for attorneys' fees and costs. As for the admission of the conversation between Harvey,
Hester, and Morgan, any error was harmless. Most of that testimony was either cumulative of other
evidence proving essentially undisputed facts, or it had to do with indisputable propositions of law.
The little of the conversation that was not of that nature actually favored the Company. None of the
Company's other issues that we have listed above merit any further discussion.
The Company does raise one additional issue that deserves some discussion. The Company
contends that the district court erred in failing to deduct from Dominguez's award the amount of
Social Security benefits he has received since his termination. The district court held that Social
Security benefits should not be subtracted from an ADEA award. That holding presents us with an
issue of first impression which we review de novo, as we do with all questions of law. Jackson v.
Chater, 99 F.3d 1086, 1092 (11th Cir.1996).
In Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d 1549, 1550 (11th Cir.1983) (en
banc), we held that unemployment compensation benefits should not be deducted from Title VII
back pay awards. Given the analogous nature and purpose of Title VII and the ADEA, our holding
in Brown applies to ADEA cases as well as Title VII cases. See McKennon v. Nashville Banner
Pub. Co., 513 U.S. 352, ----, 115 S.Ct. 879, 884, 130 L.Ed.2d 852 (1995)("ADEA and Title VII
share common substantive features and also a common purpose: "the elimination of discrimination
in the workplace.' "); McKelvy v. Metal Container Corp., 674 F.Supp. 827, 831 (M.D.Fla.1987)
(declining to deduct unemployment compensation benefits from a back pay award in an ADEA case
in view of our rationale in Brown ). Because there are no significant, relevant differences between
Social Security benefits and unemployment benefits insofar as back pay awards are concerned, see
Maxfield v. Sinclair Int'l, 766 F.2d 788, 795 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct.
796, 88 L.Ed.2d 773 (1986), we extend our Brown decision and hold that Social Security benefits
are not to be deducted from ADEA awards.1
We are aware that several other circuits appear to have left to the discretion of the district
courts whether to deduct Social Security benefits from back pay awards in ADEA cases. See
Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202, 209 (5th Cir.1986) ("[T]he trial court did not abuse
its discretion for refusing to deduct social security"); EEOC v. Wyoming Retirement Sys., 771 F.2d
1425, 1432 (10th Cir.1985) ("We cannot say that the trial court abused his discretion in deducting
Social Security payments from the back pay awards in this case."). However, we agree with the
position of the Third Circuit in Maxfield, and "reject[ ] the argument that the decision whether to
offset should be left to the discretion of the district court, favoring instead to fashion uniform rules
to further statutory objectives." Id. at 793-95 (citations and internal quotations omitted).
In order to further the statutory objectives of the ADEA and to avoid a disparity of results,
we decline to leave to the discretion of the district courts the decision whether to deduct Social
Security from back pay awards in ADEA cases. As we explained in Brown, "A consistent approach
1
We do not foreclose the possibility that receipt of Social Security benefits may be evidence
that a plaintiff failed to use his best efforts to mitigate damages. Maxfield, 766 F.2d at 793.
However, in this case, the evidence supports a finding that Dominguez made every reasonable
effort to find suitable employment after he was wrongfully terminated by the Company.
to this legal question seems preferable to a virtually unreviewable discretion which may produce
arbitrary and inconsistent results." Brown, 715 F.2d at 1551. Consequently, the district court was
correct when it concluded that Social Security benefits should not be deducted from Dominguez's
damage award. It would have been incorrect to rule otherwise.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.2
2
We GRANT Dominguez's motion for attorney's fees as to entitlement and REMAND to the
district court for a determination as to the appropriate amount.
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541 U.S. 1010
JOHNSONv.BELL, WARDEN.
No. 03-1210.
Supreme Court of United States.
April 26, 2004.
1
C. A. 6th Cir. Certiorari denied. Reported below: 344 F. 3d 567.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
No. 74,533
RYAN HEATH DICKSON, Appellant
v.
THE STATE OF TEXAS
ON APPEAL
FROM POTTER COUNTY
Johnson, J., delivered the unanimous opinion of the Court.
O P I N I O N
On September 18, 2002, appellant was convicted of the capital murder of Marie Surace. Tex.
Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas
Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death.
Art. 37.071 § 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises five
points of error. We affirm.
In his first point of error, appellant claims that the trial court erred in denying his motion for new trial
based on his contention that juror Henderson withheld information during voir dire. Appellant claims that,
had he known Henderson was aware that appellant had been convicted of capital murder and sentenced
to death in another case, he would have used a peremptory strike to exclude Henderson from serving on
the jury.
Before the trial in this case, appellant was convicted of the capital murder of Carmelo Surace and
sentenced to death. Marie and Carmelo Surace were shot and killed during a robbery of their family-owned store. (2) At the beginning of voir dire, the trial judge asked the prospective jurors whether they knew
anything about this case. Several responded that they did, and the trial judge interviewed them individually.
Henderson did not indicate that he knew anything about the present case at that time. (3) However, at the
beginning of individual questioning, the following exchange occurred.
THE COURT: Do you know anything about this particular case?
HENDERSON: I - - I am vaguely familiar with it. I think I went to high school
with one of the sons of the Surace family.
THE COURT: Okay. All right.
HENDERSON: You know, what I've read in the papers and heard on the news.
THE COURT: Okay. So, you remember when it happened then, I guess?
HENDERSON: Yes. Uh-huh. Yes.
THE COURT: Okay. And have you from that or from any source, from hearsay or
otherwise, already pre-formed any opinions as to the guilt or the
innocence of the accused person in the case?
HENDERSON: Uh - - no.
The court then explained the process for individual questioning and Henderson's voir dire continued. Later,
the prosecutor asked the following:
THE PROSECUTOR: You stated that uh - - that you did know something about this case. Uh -
- did you know about this - - anything about this case prior to the - -
coming to the panel downstairs?
HENDERSON: Oh, I remember when it happened, and I mean - - nothing in
particular, just - - you know, what you see through the media.
And I recognized the names of the person I went to high school
with. I didn't know him well. I mean, I just knew the
circumstances - -
THE PROSECUTOR: Okay. And who was that?
HENDERSON: Vince Surace.
THE PROSECUTOR: Okay. You didn't know him well?
HENDERSON: I didn't. I just knew who he was.
THE PROSECUTOR: Okay. Was there any - - anything in those - - in that knowledge about
Mr. Surace that would - - that would sway you either way here?
HENDERSON: No.
THE PROSECUTOR: Okay. It wouldn't make you for him or against him?
HENDERSON: No.
At the motion for new trial hearing, Henderson testified that two of appellant's investigators
contacted him after the trial. As a result of their communication, Henderson signed an affidavit which stated
that, at the time of trial, he knew that appellant had been convicted of the capital murder of Carmelo Surace
and that he was on death row. He also knew that appellant's co-defendant had been sentenced to fifteen
years for his involvement in the crime but thought that he could have negotiated a better deal with the state
if he "had better counseling or played his cards right."
Appellant asked Henderson why he did not come forward with this information and Henderson
responded as follows:
HENDERSON: They asked me if I was familiar with the case, and I told him I
vaguely was through what I had heard in the media and read in the
newspaper, so ...
DEFENSE COUNSEL: Okay. That's right. But you didn't tell us that you knew that he
had received a capital murder conviction and sentence of death,
did you?
HENDERSON: I - - I don't know at that time I said that. I don't know that I was
asked exactly that way, I mean ...
DEFENSE COUNSEL: Did it not occur to you, Mr. Henderson, that we - - I guess
maybe both sides would - - certainly the Defense would have
been interested to know if you knew that Ryan was on death row
when we tried this case?
HENDERSON: I would assume if you wanted to know that you would have
asked me that.
DEFENSE COUNSEL: Okay. So for me to find out whether or not you knew that
information, I would have had to say, Mr. Henderson, are you
aware that Ryan is on death row? Is that the only way I could
have found that out?
HENDERSON: No. I mean, I believe from my answer, if I remember, you know,
vaguely about the case and what happened through the media and
the newspaper. If you read the newspaper or watch the media,
you would have known what happened at that point, I think. I
mean, I - - that makes common sense to me. Maybe I'm wrong.
Motion for New Trial
We review the trial court's ruling denying appellant's motion for new trial under an abuse of
discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App.), cert. denied, 534 U.S.
855 (2001). We do not substitute our judgment for that of the trial court, but simply determine whether
the trial court's ruling was arbitrary or unreasonable. Id.
A. Withheld Information
The record reflects that, when asked whether he knew anything about the case, Henderson replied
that he did and that he had learned about the case through the media. The record also reflects that
appellant did not ask any questions regarding what Henderson knew about the case, though he had ample
opportunity to do so. Only the state and the trial court posed those questions. If appellant wished
Henderson to elaborate on his answers, he could have asked him to do so during voir dire. Henderson
did not "withhold" material information during voir dire. Thus, the trial court did not abuse its discretion
in denying appellant's motion for new trial. Appellant's first point of error is overruled.
B. Outside Influence
In his second point of error, appellant claims that the trial court erred in denying his motion for new
trial based on his contention that the jury had "been subjected to outside influences in the form of contact
having been made with one or more jurors by a third party." Specifically, he claims that Carpenter, a juror
from his prior trial, improperly communicated with some or all of the jurors in this case.
At the motion for new trial hearing, Carpenter testified that he had attended the majority of the trial
in this case in order to determine whether the jury in the prior case had received all available information
and because he was very interested in the case. He stated that during the proceedings he sat on the "state's
side" of the courtroom near the victim's family and sat on the defense side only when the "state's side" was
full. Carpenter went on to say that on one or two occasions he spoke with jurors in this case while outside
smoking during a break in the proceedings. He maintained that he just made "chit-chat" with the jurors,
then testified as follows:
DEFENSE COUNSEL: Okay. Did you ever relate to any of the jurors that sat on the trial
during - - for the uh - - trial of September 2002, that you were a
juror in Ryan's first trial?
CARPENTER: I either said juror, or I was on the trial [sic] on the first trial. I
don't remember exactly the words.
DEFENSE COUNSEL: Well, would the implication, regardless of what the words were,
[be] that there was a prior trial involved?
CARPENTER: Yeah, I guess it would be.
DEFENSE COUNSEL: And did you indicate to them that you were involved in assessing
the death penalty against Ryan?
CARPENTER: No.
DEFENSE COUNSEL: Never?
CARPENTER: No.
DEFENSE COUNSEL: Did not do that?
CARPENTER: No, sir.
DEFENSE COUNSEL: How often did you talk to the folks that were on this panel?
CARPENTER: One time, or maybe twice. And then I was asked not to talk to
them again.
DEFENSE COUNSEL: Okay. And do you recall who asked you not to talk to them?
CARPENTER: The court reporter.
The court reporter testified that she had witnessed Carpenter attempting to get onto an elevator
with members of the jury and that she instructed him not to do so because he was not allowed to talk to
them. Carpenter then told her he could do anything he wanted, and she again instructed him not to speak
to the jurors. Henderson, the only juror to testify at the hearing on appellant's motion for new trial, related
that he was aware that Carpenter had spoken to a juror in the hallway and that the court reporter had
instructed him not to talk to the jurors. He noted that, while the jurors were aware that Carpenter had
served on the previous jury, Carpenter's presence had not influenced him, or to his knowledge, any of the
other jurors.
Appellant claims that he is entitled to a new trial pursuant to Rule of Appellate Procedure 21.3(f)
, which states a defendant must be granted a new trial "when, after retiring to deliberate, the jury has
received other evidence; when a juror has talked with anyone about the case; or when a juror became so
intoxicated that his or her vote was probably influenced as a result." Tex. R. App. P. 21.3(f).
Appellant has the burden of proving an allegation of juror misconduct. Hughes v. State, 24
S.W.3d 833, 842 (Tex. Crim. App.), cert. denied, 531 U.S. 980 (2000). "When a juror converses with
an unauthorized person, injury is presumed." Alba v. State, 905 S.W.2d 581, 587 (Tex. Crim. App.
1995), cert. denied, 516 U.S. 1077 (1996), citing Green v. State, 840 S.W.2d 394, 406 (Tex. Crim.
App. 1992). Therefore, a new trial may be warranted. Hughes, supra. However, the state may rebut
this presumption of harm by showing that the case was not discussed or that nothing prejudicial to the
accused was said. Id. We defer to the trial court's resolution of historical facts and its determinations
concerning credibility and demeanor, and we view the evidence in the light most favorable to the trial
court's ruling. Quinn v. State, 958 S.W.2d 395, 401-02 (Tex. Crim. App. 1997). When there is
conflicting evidence, there is no abuse of discretion if the motion is overruled. Hughes, 24 S.W.3d at 842.
As the state pointed out at the hearing on appellant's motion for new trial, "I think everybody would
feel a lot more comfortable" had Carpenter not come into contact with any of the jurors. Nevertheless,
the state's lack of comfort with the situation does nothing to rebut the presumed harm from Carpenter's
unauthorized communication with jurors. However, the record reflects that no particulars of the case were
discussed with Carpenter. It does not reflect that the jurors were influenced by the knowledge that
Carpenter had served on the previous jury. Thus, the trial court did not abuse its discretion in denying
appellant's motion for new trial. Appellant's second point of error is overruled.
Equal Protection Violation
In his third point of error, appellant claims that the trial court erred by denying his motion to exclude
the death penalty as a sentencing option because the Texas death-penalty scheme violates the equal
protection clause of the United States Constitution. Relying on Bush v. Gore, 531 U.S. 98 (2000), he
claims that the lack of statewide standards to determine the "death worthiness" of individuals charged with
capital murder leads to the disparate treatment of those individuals. We have previously rejected such
arguments. See, e.g., Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003); Ladd v. State,
3 S.W.3d 547, 574 (Tex. Crim. App. 1999); McFarland v. State, 928 S.W.2d 482, 510-11 (Tex. Crim.
App. 1996). Appellant's discussion of Bush v. Gore does not persuade us to overrule our previous
holdings regarding this issue. Appellant's third point of error is overruled.
Voir Dire
In his fourth point of error, appellant contends that the trial court erred in sustaining the state's
objection to two questions propounded by appellant to venire member Robinson. Appellant argues that
sustaining the objection to the questions regarding Robinson's ability to consider mitigating evidence served
to impermissibly limit the venire member's discretion in evaluating what he might consider to be mitigating
evidence. The following exchange occurred during the individual voir dire of Robinson:
DEFENSE COUNSEL: Now regarding this poorly worded issue of the mitigating
circumstance, would you agree with me that that's also not a
question dealing with the past, but it's also maybe an issue dealing
with a person's future, that maybe they can be rehabilitated, or
maybe they can come around? Would you agree with that?
ROBINSON: I would agree with that. I hadn't thought about it that way.
DEFENSE COUNSEL: Okay. Or that there is - - there is hope maybe. It's not just a - -
it's not just a quest [sic] dealing with a person's prior - -
THE PROSECUTOR: If it please the Court, I believe it's pretty clear that the definition talks
about a fact or circumstance which lessens or removes the moral
blameworthiness of the Defendant. That is in the statute. It doesn't say
anything about rehabilitation. It talks about a fact or circumstance
exhibiting, that reduces the moral blameworthiness. And I can read the
exact language, if the Court would wish.
THE COURT: You are correct.
THE PROSECUTOR: So we object to the suggestion that it has something to do with
rehabilitation.
THE COURT: Sustained.
DEFENSE COUNSEL: [To Robinson] I believe Mr. Murphy addressed this a little bit
with you. But what would be a mitigating circumstance, in your
mind?
THE PROSECUTOR: Well, I believe, Your Honor, that we're not allowed to pin them down.
THE COURT: Sustained.
The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93
S.W.3d 36, 38 (Tex. Crim. App. 2002). We leave to the trial court's discretion the propriety of a
particular question and will not disturb the trial court's decision absent a showing of an abuse of discretion.
Id.
A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry.
Id. Whether or not the first question was proper, appellant was afforded the opportunity to ask the
question and received an answer before the state objected. Thus, he is unable to show he was harmed
when the trial court sustained the state's subsequent objection. Tex. R. App. P. 44.2. With respect to the
second question, it was improper because it was so broad in nature as to constitute a global fishing
expedition. Id. at 39. We have also held that a defendant is not entitled to question venire members about
their consideration of particular types of mitigating evidence. Rosales v. State, 4 S.W.3d 228, 233 (Tex.
Crim. App. 1999), cert. denied, 531 U.S. 1016 (2000); Raby v. State, 970 S.W.2d 1, 3 (Tex. Crim.
App.), cert. denied, 525 U.S. 1003 (1998). Thus, the trial court did not err in sustaining the state's
objections. Appellant's fourth point of error is overruled.
Ineffective Assistance
In his fifth point of error, appellant argues that he received ineffective assistance of counsel.
Specifically, he claims that, during voir dire, his trial attorneys failed to object to the prosecutor's questions
which committed prospective jurors to the proposition that a single "no" vote would result in a life sentence,
failed to object to the prosecutor's "fishing expedition" questions, and failed to object to the prosecutor's
questions which committed the prospective jurors to disregard the parole instruction in the charge on
punishment. Appellant insists that such failure to object was detrimental to his ability to persuade the jury
to give full weight and effect to the substantial mitigating evidence presented at trial.
When reviewing a claim of ineffective assistance of counsel, this Court utilizes the two-prong test
set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong of the Strickland test,
appellant must show that counsel's performance was deficient. "This requires showing that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. Under the second prong of the Strickland test, appellant must
show that counsel's deficient performance prejudiced him. "This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466
U.S. at 687. In other words, appellant "must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There
is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional
assistance[.]" Id. at 689.
Counsel's reasons for not objecting to the prosecutor's questions do not appear in the record. In
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999), we explained that, in order to defeat the
presumption that counsel rendered effective assistance of counsel, "[a]ny allegation of ineffectiveness must
be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness."
Thompson at 813, citing McFarland , 928 S.W.2d at 500. Because the record is devoid of any
evidence that rebuts the presumption of effective assistance, we must presume that counsel's decision not
to object was reasonable trial strategy. Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001).
Appellant's fifth point of error is overruled.
We affirm the judgment of the trial court.
Johnson, J.
En banc
Delivered: October 13, 2004
Do Not Publish
1. Unless otherwise indicated, all references to articles refer to the Texas Code of Criminal Procedure.
2. Appellant's conviction and death sentence for the murder of Carmelo Surace was affirmed on direct
appeal. Dickson v. State, No. 73,044 (Tex. Crim. App., delivered April 26, 2000). His post-conviction application for
writ of habeas corpus challenging that conviction and sentence was denied in a written order. Ex parte Dickson, No.
47,314-01 (Tex. Crim. App., filed February 21, 2001).
3. Henderson did indicate in his juror questionnaire that he was familiar with some of the participants in this
case.
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569 P.2d 957 (1977)
91 N.M. 31
Ernest ORTEGA, Felipe Lucero, Mavis Gaillour, Catkin Marriott, Mary Russell, Joan Harrigan, Valerie Estes, Laura Douglas, Lucie Cardenas, Gail Stoehr, Nomi Harris, Emily Miksovic, and Beth Loveridge, Plaintiffs-Appellants,
v.
TRANSAMERICA INSURANCE COMPANY, Richard L. Shube, and Krohn Industries, Inc., Defendants-Appellees.
No. 2877.
Court of Appeals of New Mexico.
September 6, 1977.
*958 William D. Diaco, McCulloch, Grisham & Lawless, P.A., Albuquerque, for plaintiffs-appellants.
Richard C. Civerolo, Civerolo, Hansen & Wolf, Albuquerque, for Transamerica Ins. Co.
Thomas D. Schall, Jr., Albuquerque, for Richard Shube.
John A. Klecan, Klecan & Roach, P.A., Albuquerque, for Krohn Industries, Inc.
OPINION
LOPEZ, Judge.
Plaintiffs filed their complaint against defendants for injuries allegedly suffered in the course of employment. The complaint combined statutory claims under Workmen's Compensation and the Occupational Disease Disablement Act and common law claims based on tort and products liability. The trial court dismissed Counts I and II of the complaint which were based on the statutory claims of recovery. Plaintiffs appeal the dismissal of these two counts. We dismiss this appeal.
The issue on this appeal is whether the Court of Appeals has jurisdiction to review an order of the trial court dismissing two counts of plaintiffs' complaint without prejudice.
Plaintiffs' complaint was comprised of eight counts. The first two counts were based on the Workmen's Compensation Act, § 59-10-1 through § 59-10-7, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1, 1960) and the New Mexico Occupational Disease Disablement Law, § 59-11-1 through § 59-11-34, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1, 1960). The remaining counts alleged claims under the theories of tort and products liability. The plaintiffs filed a jury demand for the entire action.
Defendants moved to dismiss the complaint on various grounds, including improper joinder of statutory with common law claims.
The trial judge ordered the dismissal of Counts I and II without prejudice. The pertinent part of the order of dismissal from which this appeal is taken reads:
"IT IS FURTHER ORDERED that Count I under the Workmen [sic] Compensation Act and Count II under the Occupational Disease Act against RICHARD L. SHUBE and TRANSAMERICA INSURANCE COMPANY filed by ERNEST ORTEGA, et al and Count I under the Workmen [sic] Compensation Act and Count II under the Occupational Disease Act against RICHARD L. SHUBE and TRANSAMERICA INSURANCE COMPANY filed by DENISE WILCOX be, and the same are hereby, dismissed without prejudice."
The issues raised by the plaintiffs on appeal are the propriety of joinder of claims and parties in the complaint, and the impropriety of dismissal when the court should only have severed the statutory claims from the remaining causes of action.
The defendants raise as their first point the issue of the appealability of the trial court's order.
The dispositive issue in this case is whether the order of dismissal without prejudice is a sufficiently "final" order to allow this Court to exercise its jurisdiction.
Appealability of the Order of Dismissal
Two rules are applicable to this appeal. Section 21-12-3(a), N.M.S.A. 1953 (Repl. Vol. 4, Supp. 1975) states:
"[A]ny party aggrieved may appeal to the appropriate appellate court within thirty days after entry of
"(1) Any final judgment or decision;
"(2) Any interlocutory order or decision which practically disposes of the merits; ...
"(3) Any final order after entry of judgment which affects substantial rights ... ." [Emphasis added].
From the record it appears that this action involves multiple claims within the scope of Rule 54(b)(1) [§ 21-1-1(54)(b)(1), N.M.S.A. 1953 (Repl. Vol. 4, Supp. 1975.)]
"(b) Judgment upon multiple claims or involving multiple parties. ... [W]hen more than one [1] claim for relief is presented in an action, whether as a *959 claim, counterclaim, cross-claim, or third-party claim, the court may enter a final judgment as to one [1] or more but fewer than all of the claims only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, which adjudicates fewer than all the claims shall not terminate the action as to any of the claims and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims." [Emphasis added].
The question before this Court is whether the order of the district judge was a "final" order.
The first point to consider is what is contained in the order of the district judge. As was noted above, Counts I and II were dismissed "without prejudice." The effect of a dismissal without prejudice is that it ordinarily imports further proceedings. Chavez v. Chenoweth, 89 N.M. 423, 553 P.2d 703 (Ct.App. 1976). In Chenoweth, the original suit was against four defendants. The trial court granted summary judgment dismissing the claims against three of the defendants "without prejudice." The plaintiff in that case appealed and this Court in Cause No. 1813 dismissed for lack of an appealable order under Civil Procedure Rule 54(b)(1) [§ 21-1-1(54)(b)(1), N.M.S.A. 1953 (Repl. Vol. 4, Supp. 1975)]. Therefore, dismissal without prejudice is not a final order and is not appealable. Chavez v. Chenoweth, supra.
Secondly, the trial court did not direct the entry of a final judgment adjudicating plaintiffs' claims on Counts I and II in compliance with Rule 54(b)(1).
Rule 54(b)(1) requires that there be an "... express determination that there is no just reason for delay" if a final judgment is to be entered as to fewer than all of the claims. Carpenter v. Merrett, 82 N.M. 185, 477 P.2d 819 (1970); Mock Homes, Inc. v. Wakely, 82 N.M. 179, 477 P.2d 813 (1970); Voisen v. Kantor, 81 N.M. 560, 469 P.2d 709 (1970); Chronister v. State Farm Mutual Automobile Insurance Company, 67 N.M. 170, 353 P.2d 1059 (1960). This rule scrupulously recognizes the statutory requirement of a final decision before an appellate court can exercise its jurisdiction. Baca Land and Cattle Company v. New Mexico Timber Inc., 384 F.2d 701 (10th Cir.1967).
A judgment or order entered on fewer than all the claims asserted against a party, absent an express determination by the court that there is no just reason for delay, is not a final order and hence not appealable.
Since we dismiss this appeal for lack of jurisdiction, we do not reach the merits of whether the joinder of statutory and common law claims is proper.
The appeal is dismissed.
IT IS SO ORDERED.
HERNANDEZ, J., concurs.
SUTIN, J., dissents.
SUTIN, Judge (dissenting).
A dismissal of this appeal on jurisdictional grounds deprives plaintiffs of any claim for workmen's compensation or occupational disease benefits. The dismissal of plaintiffs' claim "without prejudice" in the trial court means without prejudice to the right to bring another suit as if no suit had been brought. Palmer v. Rucker, 289 Ala. 496, 268 So.2d 773 (1972); Chambreau v. Coughlan, 263 Cal. App.2d 712, 69 Cal. Rptr. 783 (1968). A dismissal without prejudice leaves the parties as if no action had been instituted. Taylor v. Slater, 21 R.I. 104, 41 A. 1001 (1898).
McCuistion v. McCuistion, 73 N.M. 27, 385 P.2d 357 (1963) involved a voluntary dismissal. The Court said:
The voluntary dismissal of a suit leaves a situation ... the same as though the suit had never been brought; and upon such voluntary dismissal, all prior proceedings and orders in the case are vitiated and annulled, and jurisdiction of the court is immediately terminated. [Emphasis added] [73 N.M. at 29, 385 P.2d at 358]
McCuistion was followed in Gonzales v. Oil, Chemical and Atomic Workers Int. U., 77 N.M. 61, 419 P.2d 257 (1966).
*960 The rule is the same whether the dismissal is made of a claim "without prejudice" by a court or a voluntary dismissal is made by a party. Under this rule, another claim can be made provided it is not barred by the statute of limitations.
Section 59-10-13.6, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1) of the Workmen's Compensation Act, and § 59-11-15.1, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1) of the Occupational Disease Disablement Law provide that claims shall be filed not later than one year after the failure or refusal of the employer or insurer to pay benefits. If the claim is not filed in time, it is forever barred.
If the plaintiffs file another suit for compensation or disease benefits, the limitation period remains a valid defense because dismissal without prejudice does not take away any defense. Taylor, supra, including the limitation defense. Keron v. Namer Investment Corporation, 4 Wash. App. 809, 484 P.2d 1152 (1971); Lighthouse v. Great Western Land & Cattle Corp., 88 Nev. 55, 493 P.2d 296 (1972).
Plaintiffs' claim arose in October, 1975. The statute of limitations has run.
I dissent, not to compliment plaintiffs' attorneys, but to assist fourteen plaintiffs.
Plaintiffs filed a complaint in eight counts. Counts I and II were claims for workmen's compensation and occupational disease benefits. Counts III and IV were against defendant Shube, the employee, for negligence. Court V was against defendant Transamerica Insurance Company, the employer's insurer, for negligence.
Defendants Shube and Transamerica Insurance Company filed a motion for dismissal of plaintiffs' complaint "with prejudice" for the following reasons:
(1) The complaint failed to state a claim under the Workmen's Compensation Act or the Occupational Disease Act.
(2) The complaint joins several causes of action.
(3) The complaint contains allegations against Krohn Industries and Shube that would entitle these defendants to a jury trial and same cannot be joined with a workmen's compensation or an occupational disease claim.
The trial court, without stating any reasons therefor, dismissed Counts I and II of plaintiffs' claim against these defendants "without prejudice". The trial court was evidently misled by defendants' arguments.
Plaintiffs' claims under the Workmen's Compensation Act and the Occupational Disease Act each alleged damages for "mental pain and anguish in the amount of One Million Dollars ($1,000,000.00)" for a total of $14,000,000.00. This is absurd. But it is clear to me that this allegation appeared in the first two claims to constitute a predicate for damages against these defendants and others in additional claims for personal injuries.
Plaintiffs' Counts I and II stated a claim for relief against these defendants for workmen's compensation or occupational disease. The only basis for defendants' motion for dismissal "with prejudice" was the joinder of several causes of action against the employer and the insurance company. This motion to dismiss called to the court's attention the necessity to sever the claims and not to dismiss the counts. "Any claim against a party may be severed and proceeded with separately." Section 21-1-1(21), N.M.S.A. 1953 (Repl.Vol. 4). A plaintiff can join as many claims as he may have against an opposing party. Section 21-1-1(18), N.M.S.A. 1953 (Repl.Vol. 4).
Dismissal "without prejudice" in this case is a final judgment because plaintiffs have no right to a claim for relief under the Workmen's Compensation Act or the Occupational Disease Act.
This case should be remanded to the district court to vacate the dismissal "without prejudice", and enter an order severing Counts I and II from the other counts and order the plaintiffs to proceed for a hearing on Counts I and II.
| {
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} |
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREG LANDERS, individually and on No. 12-15890
behalf of others similarly situated,
Plaintiff-Appellant, D.C. No.
2:11-cv-01928-
v. JCM-RJJ
QUALITY COMMUNICATIONS, INC.;
BRADY E. WELLS; ROBERT J. ORDER AND
HUBER, AMENDED
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
November 8, 2013—San Francisco, California
Filed November 12, 2014
Amended January 26, 2015
Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson,
and Ronald Lee Gilman*, Circuit Judges.
Order;
Opinion by Judge Rawlinson
*
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the
United States Court of Appeals for the Sixth Circuit, sitting by
designation.
2 LANDERS V. QUALITY COMMUNICATIONS
SUMMARY**
Labor Law
The panel affirmed the dismissal, pursuant to Rule 8 of
the Federal Rules of Civil Procedure, of an action under the
Fair Labor Standards Act, alleging failure to pay minimum
wages and overtime wages.
The panel held that under Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009), it is not enough for a complaint under the FLSA
merely to allege that the employer failed to pay the employee
minimum wages or overtime wages. Rather, the allegations
in the complaint must plausibly state a claim that the
employer failed to pay minimum wages or overtime wages.
Agreeing with the First, Second, and Third Circuits, the panel
held that detailed factual allegations regarding the number of
overtime hours worked are not required, but conclusory
allegations that merely recite the statutory language are not
adequate. A plaintiff asserting a claim to overtime payments
must allege that she worked more than forty hours in a given
workweek without being compensated for the hours worked
in excess of forty during that week.
The panel held that the complaint in this case did not state
a plausible claim because it did not allege facts showing that
there was a specific week in which the plaintiff was entitled
to but denied minimum wages or overtime wages.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LANDERS V. QUALITY COMMUNICATIONS 3
COUNSEL
Christian James Gabroy, Gabroy Law Offices, Henderson,
Nevada; Leon Greenberg and Dana Sniegocki (argued), Leon
Greenberg Professional Corporation, Las Vegas, Nevada, for
Plaintiff-Appellant.
Malani L. Kotchka (argued) and Steven C. Anderson, Lionel,
Sawyer, & Collins, Las Vegas, Nevada, for Defendants-
Appellees.
ORDER
The mandate is hereby recalled.
The opinion in the case of Landers v. Quality
Communications, Inc., No. 12-15890, filed November 12,
2014, is hereby amended as follows:
1. Slip Opinion, p. 15, first full paragraph, line 10 -
replace <specific week> with <given week>.
2. Slip Opinion, p. 17:
a. Line 5 - replace <specific workweek> with
<given workweek>.
b. Line 7 - replace <specific workweek> with
<given workweek>.
4 LANDERS V. QUALITY COMMUNICATIONS
c. Line 11 - replace <able to specify> with <able to
allege facts demonstrating there was>.
No further petitions for rehearing will be entertained.
OPINION
RAWLINSON, Circuit Judge:
Plaintiff-Appellant Greg Landers (Landers) appeals from
an order dismissing his complaint against Defendants-
Appellees Quality Communications, Inc. (Quality), Brady E.
Wells, and Robert J. Huber. Landers’ complaint alleged
violations of the Fair Labor Standards Act (FLSA).
Specifically, Landers alleged that Quality failed to pay
Landers and other similarly situated employees minimum
wages and overtime wages. The district court dismissed
Landers’s complaint pursuant to Rule 8 of the Federal Rules
of Civil Procedure, and Landers filed a timely appeal. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
I. BACKGROUND
Landers was employed by Quality as a cable services
installer. He brought suit, individually and on behalf of other
similarly situated persons, alleging that Quality failed to pay
him, and other similarly situated individuals, minimum wages
and overtime wages in violation of the FLSA.
In the complaint, Landers alleged that: (1) he was
employed by Quality in its cable television, phone, and
LANDERS V. QUALITY COMMUNICATIONS 5
internet service installation business; (2) his employment was
subject to the FLSA’s minimum wage and overtime pay
requirements; (3) he was not paid at the minimum wage; and
(4) he was subjected to a “piecework no overtime” wage
system, whereby he worked in excess of forty hours per week
without being compensated for his overtime.
In the alternative, Landers alleged that even if he were
paid some measure of overtime, the overtime payment was
less than that required by the FLSA. According to Landers,
Quality failed to compensate him for all of the overtime hours
he worked and/or the overtime rate at which he was paid was
calculated using an incorrect rate, resulting in an overtime
payment that was less than that required by the FLSA.
Quality moved to dismiss the complaint pursuant to Rules
8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure.
The district court granted the motion, concluding that Landers
failed to state a plausible claim for unpaid minimum wages
and overtime wages. The district court determined that the
complaint did “not make any factual allegations providing an
approximation of the overtime hours worked, plaintiff’s
hourly wage, or the amount of unpaid overtime wages. . . .”
Given these deficiencies, the district court concluded that the
allegations asserted in the complaint were “merely
consistent” with Quality’s liability, but fell “short of the line
between possibility and plausibility of entitlement to relief,”
under Rule 8, as construed in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009). Landers filed a timely appeal challenging the
dismissal.
6 LANDERS V. QUALITY COMMUNICATIONS
II. STANDARD OF REVIEW
“We review de novo the district court’s decision to grant
Defendants’ motion to dismiss under Rule 12(b)(6) . . . We
accept as true all well pleaded facts in the complaint and
construe them in the light most favorable to the nonmoving
party.” Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1167
(9th Cir. 2013) (citations and internal quotation marks
omitted).
III. DISCUSSION
This case presents an issue of first impression in this
circuit. Post-Twombly and Iqbal, this court has not addressed
the degree of specificity required to state a claim for failure
to pay minimum wages or overtime wages under the FLSA.
A. Rule 8 Pleading under Twombly and Iqbal
“The FLSA sets a national minimum wage[] . . . and
requires overtime pay of one and a half times an employee’s
hourly wage for every hour worked over 40 hours in a
week. . . .” Probert v. Family Centered Servs. of Alaska, Inc.,
651 F.3d 1007, 1009–10 (9th Cir. 2011) (citations omitted);
see also 29 U.S.C. § 206(a)(1) (minimum wage); 29 U.S.C.
§ 207(a)(1) (overtime). In determining whether a plaintiff
has stated a plausible claim under the FLSA, we look to Rule
8 of the Federal Rules of Civil Procedure. See, e.g., Eclectic
Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990,
995–97 (9th Cir. 2014).
Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires that each claim in a pleading be supported by “a
short and plain statement of the claim showing that the
LANDERS V. QUALITY COMMUNICATIONS 7
pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). Pre-
Twombly and Iqbal, the pleading requirement could be met by
a statement merely setting forth the elements of the claim.
See, e.g., AlliedSignal, Inc. v. City of Phoenix, 182 F.3d 692,
696 (9th Cir. 1999) (holding that dismissal under Rule 8 was
not warranted even though the plaintiff “failed to plead
specific facts in its complaint concerning the nature of the
City’s alleged negligence”). However, that state of affairs
changed when the Supreme Court clarified in Twombly that
to satisfy Rule 8(a)(2), a complaint must contain sufficient
factual content “to state a claim to relief that is plausible on
its face. . . .” 550 U.S. at 570. Under Twombly, a complaint
that offers “labels and conclusions, . . . a formulaic recitation
of the elements of a cause of action[,]” or “naked
assertion[s]” devoid of “further factual enhancement” will not
suffice. Id. at 555, 557.
This requirement of plausibility was reinforced in Iqbal.
See 556 U.S. at 678 (explaining that to satisfy Rule 8(a)(2),
“a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face”)
(citation and internal quotation marks omitted). A claim for
relief is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. . . .”
Id. (citation omitted). This standard does not rise to the level
of a probability requirement, but it demands “more than a
sheer possibility that a defendant has acted unlawfully. . . .”
Id. (citation omitted). In keeping with Twombly, the Supreme
Court held in Iqbal that “[w]here a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of
entitlement to relief.” Id. (citation and internal quotation
marks omitted).
8 LANDERS V. QUALITY COMMUNICATIONS
In evaluating whether a complaint states a plausible claim
for relief, we rely on “judicial experience and common sense”
to determine whether the factual allegations, which are
assumed to be true, “plausibly give rise to an entitlement to
relief.” Id. at 679.
B. Application of Twombly and Iqbal to Claims Brought
Under the FLSA
Pre-Twombly and Iqbal, a complaint under the FLSA for
minimum wages or overtime wages merely had to allege that
the employer failed to pay the employee minimum wages or
overtime wages. See Takacs v. A.G. Edwards & Sons, Inc.,
444 F. Supp. 2d 1100, 1107 (S.D. Cal. 2006) (holding that a
complaint citing to the statute was adequate to plead a claim
under the FLSA). However, post-Twombly and Iqbal, we
review Landers’s complaint to determine whether the
allegations plausibly state a claim that Quality failed to pay
minimum wages and overtime wages, keeping in mind that
detailed facts are not required. See Twombly, 550 U.S. at
555.
The district courts that have considered this question are
split: some district courts, including the district court in this
case, have required plaintiffs to approximate the overtime
hours worked or the amount of overtime wages owed,
whereas other courts have forgone such a requirement.1 No
1
Compare Lagos v. Monster Painting, Inc., No. 2:11-CV-00331, 2011
WL 6887116, at *2 (D. Nev. Dec. 29, 2011) (relied on by the district
court); De Silva v. North Shore-Long Is. Jewish Health Sys. Inc., 770 F.
Supp. 2d 497, 509-510 (E.D.N.Y. 2011); Zhong v. August August Corp.,
498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007) (requiring the plaintiff to allege
the approximate number of hours worked and overtime wages to survive
a motion to dismiss), with Goodman v. Port Auth. of New York and New
LANDERS V. QUALITY COMMUNICATIONS 9
circuit court has interpreted Rule 8 as requiring FLSA
plaintiffs to plead in detail the number of hours worked, their
wages, or the amount of overtime owed to state a claim for
unpaid minimum wages or overtime wages. Although the
circuit courts are in harmony on what is not required by
Twombly and Iqbal, there is no consensus on what facts must
be affirmatively pled to state a viable FLSA claim
post-Twombly and Iqbal.
In Pruell v. Caritas Christi, 678 F.3d 10, 13 (1st Cir.
2012), plaintiffs alleged that they had “regularly worked
hours over forty in a week and were not compensated for
such time . . .” The First Circuit described this allegation as
“one of those borderline phrases” that, “while not stating
ultimate legal conclusions, are nevertheless so threadbare or
speculative that they fail to cross the line between the
conclusory and the factual.” Id. (citation and internal
quotation marks omitted). The court observed that this
allegation was “little more than a paraphrase of the statute[]”
and thus “too meager, vague, or conclusory to . . .” nudge
plaintiffs’ claim “from the realm of mere conjecture. . . .” to
the realm of plausibility, as required by Twombly and Iqbal.
Id. (citation omitted). The First Circuit noted that the
amended complaint lacked examples of unpaid time, a
Jersey, 850 F. Supp. 2d 363, 379–81 (S.D.N.Y. 2012); Williams v. Skyline
Auto. Inc., No. 11 Civ. 4123, 2011 WL 5529820, at *2 (S.D. N.Y. Nov.
14, 2011); Allen v. City of Chicago, No. 10 C 3183, 2011 WL 941383, at
*6 (N.D. Ill. Mar. 15, 2011); Carter v. Jackson-Madison Cnty. Hosp.
Dist., No. 1:10-cv-01155, 2011 WL 1256625, at *4–6 (W.D. Tenn. Mar.
31, 2011); Noble v. Serco, Inc., No. 3:08-76, 2009 WL 1811550, at *2–3
(E.D. Ky. June 25, 2009); and Monroe v. FTS USA, LLC, No. 2:08-CV-
02100, 2008 WL 2694894, at *3 (W.D. Tenn. July 9, 2008) (rejecting the
argument that approximation of overtime hours must be included in the
complaint).
10 LANDERS V. QUALITY COMMUNICATIONS
description of work performed during overtime periods, or
estimates of the overtime amounts owed. See id. at 14. The
court concluded that the allegations were “deficient[,]
although not by a large margin.” Id.
In a trilogy of cases, the Second Circuit also grappled
with the level of specificity required to state a claim for
overtime pay under the FLSA. The first case in this trilogy
is Lundy v. Catholic Health System of Long Island Inc.,
711 F.3d 106 (2d Cir. 2013). In Lundy, the Second Circuit
noted that some courts within that circuit had required that a
complaint seeking overtime wages under the FLSA contain
“an approximation of the total uncompensated hours worked
during a given workweek in excess of 40 hours.” Id. at 114
(citation omitted). In contrast, courts outside the Second
Circuit had “done without an estimate of overtime, and
deemed sufficient an allegation that plaintiff worked some
amount in excess of 40 hours without compensation.” Id.
(citation omitted).
After commenting that the determination of plausibility
of a claim is “context-specific . . . ” and “requires the
reviewing court to draw on its judicial experience and
common sense,” the court concluded that no plausible FLSA
claim was pled. Id. (citation and footnote reference omitted).
Critically, Plaintiffs had failed to allege “a single workweek
in which they worked at least 40 hours and also worked
uncompensated time in excess of 40 hours.” Id.
Plaintiff No. 1 alleged a typical schedule of three shifts
per week that totaled 37.5 hours. On occasion, she worked an
additional shift of 12.5 hours or a slightly longer shift.
Plaintiff’s failure to detail “how occasionally” or “how long”
she worked in excess of her regular shift, or that she was
LANDERS V. QUALITY COMMUNICATIONS 11
denied overtime pay in any of those weeks when she worked
in excess of her regular shift doomed her claim. Id. at
114–15.
Plaintiff No. 2 alleged that her “typical[]” workweek
consisted of “four shifts per week, totaling 30 hours.” Id. at
115. “[A]pproximately twice a month, she worked five to six
shifts instead of four shifts, totaling between 37.5 and 45
hours.” Id. (citation and internal quotation marks omitted).
However, like Plaintiff No. 1, she failed to allege denial of
overtime pay in any of the weeks when she worked additional
shifts. See id.
Plaintiff No. 3 (Lundy) “worked between 22.5 and 30
hours per week[.]” Id. (citation omitted). Because his hours
worked never exceeded forty in any given week, he was
unable to state a valid claim. See id. Because no plaintiff
alleged both a single workweek composed of at least forty
hours and uncompensated time in excess of forty hours in that
same workweek, the Second Circuit affirmed the dismissal of
Plaintiffs’ overtime claims. See id.
In Nakahata v. New York-Presbyterian Healthcare
System, Inc., 723 F.3d 192 (2d Cir. 2013), the Second Circuit
once again resolved a case involving plaintiffs alleging that
“they were not paid for overtime hours worked.” 723 F.3d at
201. The Second Circuit concluded that Plaintiffs’
allegations that they “were not compensated for work
performed during meal breaks, before and after shifts, or
during required trainings . . .” failed to state a plausible claim
that they were denied overtime, because the Plaintiffs failed
to allege that they “were scheduled to work forty hours in a
given week. . . . ” Id. The court explained that Lundy’s
requirement that plaintiffs plead with specifity a workweek in
12 LANDERS V. QUALITY COMMUNICATIONS
which they were entitled to but denied overtime, was
designed to ensure that plaintiffs provide “sufficient detail
about the length and frequency of their unpaid work to
support a reasonable inference that they worked more than
forty hours in a given week.” Id. The Second Circuit
declined to adopt a requirement that Plaintiffs approximate
the number of overtime hours worked. See id. n.10.
In the final case of the trilogy, Dejesus v. HF
Management Services, LLC, 726 F. 3d 85, 89 (2d Cir. 2013),
the plaintiff avoided the error of her predecessor plaintiffs.
She alleged that in “some or all weeks she worked more than
forty hours a week without being paid 1.5 times her rate of
compensation.” (citation and internal quotation marks
omitted). The Second Circuit nevertheless concluded that the
plaintiff failed to state a plausible claim for relief because she
did not “allege overtime without compensation in a given
workweek,” as required by Lundy. Id. at 90 (citation and
internal quotation marks omitted) (emphasis added). The
court explained that Lundy’s requirement that plaintiffs allege
with specificity a workweek in which they were entitled to
but denied overtime payment, “was designed to require
plaintiffs to provide some factual context that will nudge their
claim from conceivable to plausible. . . .” Id. (citation and
internal quotation marks omitted). Although the Lundy
standard did not require “plaintiffs to keep careful records
and plead their hours with mathematical precision,” the
standard could not be satisfied by allegations that do little
more than parrot the statutory language of the FLSA. Id.
Instead, Lundy required plaintiffs to draw on their memory
and personal experience to develop factual allegations with
sufficient specificity that they plausibly suggest that
defendant failed to comply with its statutory obligations
under the FLSA. See id. Notably, as in Lundy and Nakahata,
LANDERS V. QUALITY COMMUNICATIONS 13
the Second Circuit again declined to require an approximation
of the number of overtime hours worked.
In an unpublished decision, the Eleventh Circuit
analogized Plaintiff’s allegations in an FLSA case to the
allegations of an antitrust violation at issue in Twombly. See
Sec’y of Labor v. Labbe, 319 F. App’x 761, 763 (11th Cir.
2008) (per curiam). The Eleventh Circuit reasoned that a
claim for unpaid minimum wages and/or overtime wages
under the FLSA was straightforward and did not involve the
same level of complexity as the antitrust claims at issue in
Twombly. Given this dissonance in complexity, the court
reasoned that the quantum and specificity of facts necessary
to allege a plausible FLSA claim was much lower than that
necessary to allege the antitrust claim at issue in Twombly.
See id. The Eleventh Circuit thus concluded that the
Secretary’s allegations that “Labbe repeatedly violated stated
provisions of the FLSA by failing to pay covered employees
minimum hourly wages and to compensate employees who
worked in excess of forty hours a week at the appropriate
rates[]” stated plausible claims for relief. Id.
Most recently, the Third Circuit applied the standards of
Twombly and Iqbal to a claim for unpaid overtime wages in
Davis v. Abington Memorial Hospital, 765 F.3d 236 (3d Cir.
2014). In Davis, each of the plaintiffs alleged that “he or she
typically worked shifts totaling between thirty-two and forty
hours per week and further allege[d] that he or she frequently
worked extra time. . . .” Id. at 242 (internal quotation marks
omitted). Plaintiffs contended that “[b]ecause they typically
worked full time, or very close to it and also worked several
hours of unpaid work each week, . . . it is certainly plausible
that at least some of the uncompensated work was performed
during weeks when the plaintiffs’ total work time was more
14 LANDERS V. QUALITY COMMUNICATIONS
than forty hours. . . .” Id. (citations, alterations, and internal
quotation marks omitted). The Third Circuit disagreed.
Consistent with Lundy, the court concluded that the
allegations were insufficient to state a plausible claim under
the FLSA. Although several of the plaintiffs alleged that
their typical workweek was at least forty hours “in addition
to extra hours frequently worked during meal breaks or
outside of their scheduled shifts[,]” none of the plaintiffs
alleged that the extra hours were in fact worked during a
typical forty-hour workweek. Id. at 243 (internal quotation
marks omitted). Absent that crucial allegation, no plausible
claim for overtime wages was stated. See id. The Third
Circuit explained that a plaintiff need not identify precisely
the dates and times she worked overtime. An allegation that
a plaintiff typically worked a forty-hour workweek, and
worked uncompensated extra hours during a particular forty-
hour workweek would state a plausible claim for relief.
However, because no such allegation was made by any of the
plaintiffs, the Third Circuit affirmed dismissal of the overtime
claims. See id.
We are persuaded by the rationale espoused in the First,
Second and Third Circuit cases. Although we agree with the
Eleventh Circuit that detailed factual allegations regarding the
number of overtime hours worked are not required to state a
plausible claim, we do not agree that conclusory allegations
that merely recite the statutory language are adequate. But
see Labbe, 319 F. App’x at 763. Indeed, such an approach
runs afoul of the Supreme Court’s pronouncement in Iqbal
that a Plaintiff’s pleading burden cannot be discharged by
“[a] pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action . . .” Iqbal,
556 U.S. at 678 (citation and internal quotation marks
omitted).
LANDERS V. QUALITY COMMUNICATIONS 15
We agree with our sister circuits that in order to survive
a motion to dismiss, a plaintiff asserting a claim to overtime
payments must allege that she worked more than forty hours
in a given workweek without being compensated for the
overtime hours worked during that workweek. See Pruell,
678 F.3d at 13; see also Lundy, 711 F.3d at 114; Davis,
765 F.3d at 242–43. We are mindful of the Supreme Court’s
admonition that the pleading of detailed facts is not required
under Rule 8, and that pleadings are to be evaluated in the
light of judicial experience. See Twombly, 550 U.S. at 555;
Iqbal, 556 U.S. at 679. We also agree that the plausibility of
a claim is “context-specific.” Lundy, 711 F.3d at 114. A
plaintiff may establish a plausible claim by estimating the
length of her average workweek during the applicable period
and the average rate at which she was paid, the amount of
overtime wages she believes she is owed, or any other facts
that will permit the court to find plausibility. See Pruell,
678 F.3d at 14. Obviously, with the pleading of more specific
facts, the closer the complaint moves toward plausibility.
However, like the other circuit courts that have ruled before
us, we decline to make the approximation of overtime hours
the sine qua non of plausibility for claims brought under the
FLSA. After all, most (if not all) of the detailed information
concerning a plaintiff-employee’s compensation and schedule
is in the control of the defendants. See Pruell, 678 F.3d at 15;
see also 29 U.S.C. § 211(c) (FLSA provision requiring
employers subject to the FLSA to keep records concerning
their employees’ work schedules and compensation).2
We further agree with our sister circuits that, at a
minimum, a plaintiff asserting a violation of the FLSA
2
This reasoning applies with equal force to Landers’s minimum wage
claims.
16 LANDERS V. QUALITY COMMUNICATIONS
overtime provisions must allege that she worked more than
forty hours in a given workweek without being compensated
for the hours worked in excess of forty during that week. See
Pruell, 678 F.3d at 13; see also Lundy, 711 F.3d at 114;
Davis, 765 F.3d at 242–43. Applying that standard to the
pleadings in this case, Landers failed to state a claim for
unpaid minimum wages and overtime wages. The complaint
did not allege facts showing that there was a given week in
which he was entitled to but denied minimum wages or
overtime wages.
In his complaint, Landers alleged the following:
• The compensation system used by the defendants for
the plaintiff . . . was a de facto “piecework no
overtime” system, meaning such employees were
being paid a certain amount for each “piece” of work
they performed pursuant to a schedule, the plaintiffs
not being paid time and one-half their “regular hourly
rate” for work in excess of 40 hours a week . . .
• [A]lternatively, defendants utilized a compensation
system that did pay some measure of overtime wages
upon a designated hourly rate but failed to pay any
overtime wages on the additional and substantial
portion of the earnings of the plaintiff and those
similarly situated that were paid by the defendants
solely on a piece rate basis.
• Alternatively, if defendants did not engage in a
“piecework no overtime” pay scheme, and paid the
plaintiff . . . a facially proper overtime wage
demonstrated on their payroll records as time and
one-half their regular hourly rate including all
LANDERS V. QUALITY COMMUNICATIONS 17
piecework earnings, the defendants failed to pay such
persons for all overtime hours that they worked . . .
• Defendants, in furtherance of their scheme to deny the
plaintiff . . . proper overtime pay as required by the
FLSA would falsely list certain “overtime hours” and
“regular hours” and “overtime compensation” on the
plaintiff’s . . . pay stubs, such listings being inaccurate
in terms of hours actually worked and not reflecting
any attempt to pay time and one-half the employees’
true “regular rate” as required by the FLSA . . .
• [T]he named plaintiff . . . [was] entitled to a minimum
wage and an overtime hourly wage of time and one-
half [his] regular hourly wage for all hours worked in
excess of forty hours per week, the named plaintiff
. . . worked more than 40 hours per week for the
defendants, and the defendants willfully failed to
make said overtime and/or minimum wage payments.
Much like the plaintiffs in Lundy, Landers presented
generalized allegations asserting violations of the minimum
wage and overtime provisions of the FLSA by the defendants.
Landers alleged that the defendants implemented a “de facto
piecework no overtime” system and/or failed to pay minimum
wages and/or overtime wages for the hours worked by
Landers. Landers also asserted that the defendants falsified
payroll records to conceal their failure to pay required wages.
Notably absent from the allegations in Landers’s complaint,
however, was any detail regarding a given workweek when
Landers worked in excess of forty hours and was not paid
overtime for that given workweek and/or was not paid
minimum wages. Although plaintiffs in these types of cases
cannot be expected to allege “with mathematical precision,”
18 LANDERS V. QUALITY COMMUNICATIONS
the amount of overtime compensation owed by the employer,
they should be able to allege facts demonstrating there was at
least one workweek in which they worked in excess of forty
hours and were not paid overtime wages. Dejesus, 726 F.3d
at 90. Landers’s allegations failed to provide “sufficient
detail about the length and frequency of [his] unpaid work to
support a reasonable inference that [he] worked more than
forty hours in a given week.” Nakahata, 723 F.3d at 201.
Instead, as in Nakahata, Landers “merely alleged that [he
was] not paid for overtime hours worked. . . .” Id. Although
these allegations “raise the possibility” of undercompensation
in violation of the FLSA, a possibility is not the same as
plausibility. Id. Landers’s comparable allegations fail to
state a plausible claim under Rule 8. See id.
IV. CONCLUSION
Under the post-Twombly and Iqbal standard, Landers
failed to state a plausible claim for relief under the FLSA.
Landers expressly declined to amend his complaint, electing
to stand on his claims as alleged. Therefore, we do not
remand to the district court for amendment of the complaint.
See Alaska v. United States, 201 F.3d 1154, 1163–64 (9th Cir.
2000) (“[W]here a party did not seek leave to amend a
pleading in the lower court, we would not remand with
instructions to grant leave to amend.”) (footnote reference
omitted). We decline to impose a requirement that a plaintiff
alleging failure to pay minimum wages or overtime wages
must approximate the number of hours worked without
compensation. However, at a minimum the plaintiff must
allege at least one workweek when he worked in excess of
forty hours and was not paid for the excess hours in that
workweek, or was not paid minimum wages. Landers’s
allegations fell short of this standard, and the district court
LANDERS V. QUALITY COMMUNICATIONS 19
properly dismissed his complaint for failure to state a
plausible claim.
AFFIRMED.
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307 So.2d 870 (1975)
CITY NATIONAL BANK OF MIAMI BEACH, a National Banking Corporation, As Trustee, Appellant,
v.
Richard N. LUNDGREN et al., Appellees.
No. 74-550.
District Court of Appeal of Florida, Third District.
February 4, 1975.
Rehearing Denied February 26, 1975.
*871 Lapidus & Hollander, Miami, for appellant.
Colson & Hicks, Sam Daniels, Miami, for appellees.
Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
CHARLES CARROLL, Associate Judge.
The appellant City National Bank of Miami Beach, as trustee, was the plaintiff in the trial court. It appeals from a judgment denying specific performance and dismissing its complaint, in an action brought to compel conveyance of certain real estate by the defendants to the plaintiff bank, upon certain sale terms, based on an agreement between the defendant-owners of the property and the bank granting to the latter a right of first refusal to purchase the property.
The appellees, Lundgren, Nelson and Layne, herein referred to as the sellers, entered into an agreement with the bank giving the latter a right of first refusal to purchase the property, of which they were owners.
The sellers agreed with a broker (herein referred to as Tyler) to pay the latter a reasonable fee for services in finding a purchaser ready, willing and able to purchase the property on terms acceptable to the sellers. The broker performed, by obtaining as a purchaser, the appellee Mel Schuster, as trustee, herein referred to as the purchaser. The terms acceptable to the sellers were payment of a stipulated sum in addition to which the purchaser was to bear the expense necessary to repair a seawall on the property and pay the amount of commission owed by the sellers to Tyler. A contract in accordance therewith was prepared and signed by the purchaser. The sellers, without having signed the contract, transmitted a copy thereof to the bank.[1]
Through its attorney the bank replied, announcing willingness to purchase on the terms expressed in such contract except for payments of commission owing to the broker.[2] The sellers returned a down payment which had been submitted by the bank, and advised the bank that its acceptance *872 "is not in conformity with the provisions of the right of first refusal agreement." Thereafter the sellers closed the sale with the purchaser. The bank then filed this action against the sellers and the purchaser for specific performance.
The sellers were obligated to pay Tyler a reasonable brokerage fee. What that would amount to was a matter readily determinable by custom in the trade. When the contract with the purchaser made the payment of the broker's commission an obligation to be discharged by the purchaser, the broker's commission became a part of the price or consideration to be paid by the purchaser. See Coastal Bay Golf Club, Inc. v. Holbein, Fla.App. 1970, 231 So.2d 854. The bank's refusal to pay the portion of the purchase price represented by the commission owed by the sellers to Tyler was not predicated on any uncertainty as to the amount of the commission, but apparently on the conclusion that such commission would not be payable if the sale was made to the bank on the basis of its right of first refusal. In so concluding the bank was mistaken as a matter of law, because the broker, having performed by procuring the purchaser on the basis required, had earned the commission, obligating the owner to pay the same whether the sale was made to the purchaser, or to the bank on the basis of its right of first refusal; and, as stated above, when the sale contract required the purchaser to pay such commission which was the owners' obligation, the payment thereof became a part of the purchase price.
In those circumstances the trial court correctly decided that the bank's response was not an unconditional acceptance of the purchase contract, in exercise of its right of first refusal. The element of the contract purchase price which the bank announced unwillingness to pay, was not unsubstantial. Coastal Bay Golf Club, Inc. v. Holbein, supra.
The judgment is affirmed.
NOTES
[1] Regarding the broker's commission the sale contract stated: "Sellers represent that they have dealt with no broker or other person entitled to claim a commission except D. Tyler & Associates which representation shall survive the closing. Purchaser agrees, if this transaction is closed, to pay all commissions owing to said D. Tyler & Associates".
[2] The letter from the bank's attorney stated:
"We agree to proceed with closing on the subject property upon the terms and conditions of the deposit receipt, a copy of which you have delivered to us, excepting only provisions concerning brokerage, which do not apply to my client."
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903 F.2d 825
Gainesv.Chevron*
NO. 89-3890
United States Court of Appeals,Fifth Circuit.
MAY 17, 1990
1
Appeal From: E.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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415 F.Supp. 1117 (1976)
Steven GIBBANY, # 83516, Petitioner,
v.
STATE OF OKLAHOMA, DEPARTMENT OF CORRECTIONS and Richard Crisp, Warden, Respondents.
No. CIV-75-0627-D.
United States District Court, W. D. Oklahoma.
April 19, 1976.
*1118 Richard R. Bailey, Oklahoma City, Okl., for petitioner.
Larry Derryberry, Atty. Gen. by James C. Peck, Asst. Atty. Gen., Oklahoma City, Okl., for respondents.
MEMORANDUM AND ORDER
DAUGHERTY, District Judge.
The petitioner, a State prisoner confined in the Oklahoma State Penitentiary at McAlester, Oklahoma, submitted to this court his Petition for Writ of Habeas Corpus challenging his detention by virtue of the judgment and sentence of the District Court of Oklahoma County, State of Oklahoma, in case No. CRF-71-1544 on the ground that his parole from the sentence in said case was unconstitutionally revoked. After reviewing the files and records in the case the court determined that the petitioner had exhausted his State remedies and that an evidentiary hearing in this court was necessary to determine whether in fact a final revocation hearing in the revocation process was held and if so whether it met the requirements of due process set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Pursuant to the authority of Reed v. United States, 438 F.2d 1154 (C.A.10 1971) the court directed that the issues be presented to the court on written interrogatories and answers thereto from all witnesses possessing pertinent information. The court appointed counsel to represent the petitioner.
The parties have filed herein the depositions of five witnesses and advised the court that the case is ready for determination and decision by the court. Having examined the files and records herein and the interrogatories and cross-interrogatories submitted by the parties, together with the briefs of counsel the court makes the following Findings of Fact and Conclusions of Law:
*1119 I. FINDINGS OF FACT
1. The petitioner was convicted in said case No. CRF-71-1544 of the crime of Unauthorized Use of a Motor Vehicle on August 2, 1971.
2. On November 10, 1971, he was also convicted of Larceny of an Automobile in the District Court of Oklahoma County, case No. CRF-71-2209.
3. The petitioner was received at the Oklahoma State Penitentiary on November 19, 1971, to serve consecutive sentences totaling 10 years in the two cases.
4. On June 1, 1973, the petitioner was granted a parole by the Governor of the State of Oklahoma.
5. On January 8, 1975, in case No. CRF-74-2659, District Court of Oklahoma County, the petitioner entered a plea of guilty to the crime of Unauthorized Use of a Motor Vehicle After Former Conviction of a Felony and was sentenced to the term of one year imprisonment.
6. After the petitioner was returned to the Oklahoma State Penitentiary to serve the sentence in said case No. CRF-74-2659 he was advised on January 20, 1975, that the Department of Corrections for the State of Oklahoma had requested a revocation of his parole because of the latest conviction. He was informed that a preliminary hearing would be conducted at the Oklahoma State Penitentiary on February 3, 1975, at 10:00 a. m. at which time he could appear, speak and present evidence including witnesses and confront his accusers. The petitioner acknowledged in writing that he had received a copy of this written notification of the reason for the revocation request and the date of the preliminary hearing.
7. On February 3, 1975, a preliminary hearing was conducted by a disinterested hearing officer with petitioner present in person. Having heard the evidence concerning petitioner's conviction in said case No. CRF-74-2659 and the petitioner presenting no evidence the hearing officer found probable cause to believe that the petitioner had violated the conditions of his parole. The petitioner declined to waive a final revocation hearing.
8. A final parole revocation hearing (executive hearing) was convened at the Oklahoma State Penitentiary at McAlester, Oklahoma, March 23, 1975, for the petitioner. Mr. Robert H. Mitchell, the Governor's Legal Counsel acted in the capacity of Hearing Officer for this hearing on behalf of the Governor. In addition to the petitioner there were also present Mr. C. E. Williams, Department of Corrections; Mr. A. M. Hamilton, Department of Corrections; and Mr. Leon Davidson, Department of Corrections.
9. The petitioner was given no advance notice of the time and place of the final revocation hearing. He was summoned from his cell on March 23, 1975, and advised that he was wanted in the Warden's office. When he arrived in the office he became aware for the first time that his final revocation hearing was then to be conducted.
10. At the hearing the petitioner admitted his identity to the Hearing Officer. The Hearing Officer presented to the petitioner his Parole Certificate which contained the terms and conditions of parole and the petitioner identified his signature at the bottom of that Certificate. Mr. Williams, for the Department of Corrections, explained that the reason for the request for a revocation was the petitioner's failure to obey the law which was based upon his arrest and plea of guilty to the crime of Unauthorized Use of a Motor Vehicle for which he had received a one year sentence by the District Court of Oklahoma County on January 8, 1975. The Hearing Officer then examined the complete file including a copy of the judgment and sentence on petitioner's plea of guilty in said case No. CRF-74-2659. The petitioner admitted to the Hearing Officer that he did plead guilty in that case.
11. The petitioner was afforded the opportunity to ask questions, make a statement, see the records and documents, and he was afforded the opportunity to present evidence in his own behalf but he did not *1120 present any evidence or make any statement in mitigation.
12. The petitioner was not represented by counsel in the parole revocation proceedings and did not request the appointment of counsel.
13. The only record of the final parole revocation hearing is a memorandum prepared by Mr. C. E. Williams on March 24, 1975, and placed in the files of the Department of Corrections, Division of Probation and Parole which briefly described what had occurred at the hearing.
14. On April 7, 1975, the petitioner's parole was revoked by the Governor of the State of Oklahoma who found that the petitioner had violated the rules and conditions of his parole by his failure to obey the law and that he had been arrested and plead guilty to the crime of Unauthorized Use of a Motor Vehicle.
II. CONCLUSIONS OF LAW
1. The preliminary hearing afforded the petitioner satisfied fully the requirements of Morrissey v. Brewer, supra.
2. The petitioner had no absolute right to an attorney in the parole revocation proceedings.
3. The petitioner should have received a reasonable time in advance a written notice of the final revocation hearing specifying the claimed violation and the time and place for the hearing.
4. The petitioner was not at his final revocation hearing denied any due process right as to disclosure of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses, and a "neutral and detached" hearing body.
5. Under the circumstances of this case the memorandum of Mr. Williams together with the Governor's Order of Revocation constituted a sufficient compliance with the due process requirement for a record of the proceedings.
6. A conviction and sentence to imprisonment while on parole is a reasonable ground for revoking parole under the standards of the State of Oklahoma.
7. The parole of the petitioner was not unconstitutionally revoked.
III. COMMENT
Although the petitioner in his pleadings denied that he had received a final revocation hearing, he conceded in his interrogatories that the hearing was held March 23, 1975, at the Oklahoma State Penitentiary at McAlester, Oklahoma. The only issue therefore is the legal sufficiency of that hearing. The general requirements for due process at the final revocation hearing are:
"(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of the evidence against him;
(c) opportunity to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a `neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole."
Morrissey v. Brewer, supra, 408 U.S. at 489, 92 S.Ct. at 2604.
There is no absolute constitutional requirement that a parolee be afforded counsel for a parole revocation hearing, and where the parolee has been convicted of another serious crime while on parole counsel ordinarily need not be provided. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Here the petitioner did not, at any time, in the revocation proceedings, nor has he done so in this court, suggested that there were any substantial reasons which justified or mitigated the violation and made revocation inappropriate. Under these circumstances therefore he was not entitled to counsel.
*1121 The only remarkable deviation from the Morrissey standards is the failure to give prior written notice to the petitioner. Notice a reasonable time in advance of hearing is a part of the due process requirement. Hickman v. Arkansas Board of Pardons and Paroles, 361 F.Supp. 864 (E.D.Ark. 1973). The failure to accord reasonable prior notice impairs the parolee's ability to summon witnesses or prepare a defense and may render the hearing fatally defective. Forbes v. Roebuck, 368 F.Supp. 817 (E.D. Ky.1974), affmd., 506 F.2d 1400 (C.A.6 1974).
Because the procedures followed in petitioner's case, however, did not exactly meet the standards established by Morrissey, it does not necessarily follow that petitioner's revocation was invalid. The petitioner had already been convicted and was serving another sentence. He admitted that he had plead guilty in that case. By virtue of his reincarceration on the new conviction the petitioner had already been deprived of that liberty which provided the rationale for the due process pronouncements in Morrissey. They were designed to protect the interest of the parolee in his continued liberty. The court conceived the revocation decision as involving first, the factual determination of whether the parole of the parolee had been violated and if so, second the further determination:
"Should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts."
Morrissey v. Brewer, supra, 408 U.S. at 480, 92 S.Ct. at 2599.
In petitioner's case, however, the first issue was resolved by the fact of conviction and petitioner's admission. Moreover, much of the predictive function in the second stage of the inquiry as to whether the subject is able to live in society without violating the law is preempted by the admitted and unchallenged judicial determination that he could not and did not. Where the fact of violation by the commission of a crime has already been conclusively determined by either conviction or admission, it would appear that a departure from Morrissey can, and should be tolerated. This is suggested in the opinion itself in directing that the case be returned to the district court to make findings as to the procedures actually followed by the Parole Board:
"If it is determined that petitioners admitted parole violations to the Parole Board, as respondents contend, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter. If the procedures followed by the Parole Board are found to meet the standards laid down in this opinion that, too, would dispose of the due process claims for these cases."
408 U.S. at 490, 92 S.Ct. at 2605.
Here the petitioner admitted the violation to the Hearing Officer. Conviction of a crime while on parole is a reasonable ground for revocation under the standards of the State of Oklahoma and every other jurisdiction known to this court. That ends the matter. There is no claim or showing of actual prejudice. The touchstone of due process is fundamental fairness. Gagnon v. Scarpelli, supra. There was no fundamental unfairness in petitioner's case.
IV. ORDER
Accordingly, since the court has concluded that the parole of the petitioner was not unconstitutionally revoked and that he therefore is not unlawfully detained, the Petition for Writ of Habeas Corpus will be denied.
IT IS SO ORDERED.
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883 A.2d 1251 (2005)
275 Conn. 924
STATE of Connecticut
v.
Marc SINVIL.
Supreme Court of Connecticut.
Decided September 20, 2005.
Carlos E. Candal, special public defender, in support of the petition.
Timothy J. Sugrue, senior assistant state's attorney, in opposition.
*1252 The defendant's petition for certification for appeal from the Appellate Court, 90 Conn.App. 226, 876 A.2d 1237 (2005), is denied.
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999 So.2d 1020 (2006)
LELA J. EZRO
v.
GREEN TREE AL, L.L.C.
No. 2050794.
Court of Civil Appeals of Alabama.
August 28, 2006.
Decision of the Alabama Court of Civil Appeal Without Opinion. Dismissed on motion of appellant.
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9 A.3d 1 (2010)
417 Md. 125
75-80 PROPERTIES
v.
FREDERICK COUNTY.
Pet. Docket No. 398.
Court of Appeals of Maryland.
Denied November 22, 2010.
Petition for writ of certiorari denied.
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443 F.2d 1170
UNITED STATES of America, Plaintiff-Appellee,v.LAKE KILLARNEY APARTMENTS, INC., Defendant-Appellant.
No. 31013.
United States Court of Appeals, Fifth Circuit.
June 10, 1971.
Verne L. Freeland, Miami, Fla., for defendant-appellant.
John L. Briggs, U.S. Atty., L. Patrick Gray, III, Kendell W. Wherry, Asst. U.S. Attys., Orlando, Fla., Robert V. Zener, Walter H. Fleischer, William O. Appler, Alan S. Rosenthal, Alexander P. Humphrey, Attys., Dept of Justice, Civil Div., Washington, D.C., for plaintiff-appellee.
Before GODBOLD, SIMPSON, and CLARK, Circuit Judges.
PER CURIAM:
1
In this case the defaulting mortgagor on an FHA insured mortgage sought by declaratory judgment to avoid usage and rental restrictions in the mortgage and to escape FHA service charges which it had contracted to pay. The District Court was correct in denying relief. The trial judge did not abuse his discretion in allowing the United States to file belated answers to requests for admission.
2
Affirmed.
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229 Cal.App.3d 560 (1991)
282 Cal. Rptr. 296
THE PEOPLE, Plaintiff and Respondent,
v.
VICTOR LAMAS et al., Defendants and Appellants.
Docket No. B046063.
Court of Appeals of California, Second District, Division Five.
April 19, 1991.
*562 COUNSEL
Cara DeVito, under appointment by the Court of Appeal, and Scott S. Furstman for Defendants and Appellants.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Edward T. Fogel, Jr., Assistant Attorney General, Richard L. Walker and Noreen F. Berra, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
*563 OPINION
GRIGNON, J.
This case involves two appeals. In the first, defendant Victor Lamas appeals from the denial of his Penal Code section 1538.5 motion, after which he was convicted of conspiracy to possess cocaine for sale upon a plea of no contest. In the second, defendant Oscar DeJesus Fernandez appeals from his conviction after jury trial of conspiracy to possess cocaine for sale and attempted possession of cocaine for sale. Defendant Lamas contends that evidence seized from his apartment was the product of an illegal search and seizure and should have been suppressed. Defendant Fernandez contends that there was insufficient evidence to support his conviction, and that the court erred in imposing the high term on sentencing. We affirm.
PROCEDURAL BACKGROUND
Defendants were charged in a felony complaint with conspiracy to possess cocaine for sale. Defendant Fernandez was also charged with attempted possession for sale of cocaine. A preliminary hearing was held at which the defendants made motions to suppress evidence pursuant to Penal Code section 1538.5. The motions were denied and both defendants were held to answer.
In superior court, defendants made motions to dismiss the information pursuant to Penal Code section 995, challenging the denial of the Penal Code section 1538.5 motions by the magistrate at the preliminary hearing. These motions were denied. Defendant Lamas pled no contest to conspiracy to possess cocaine for sale. He was sentenced to state prison for two years. After a jury trial, defendant Fernandez was convicted of conspiracy and attempted possession for sale of cocaine. He was sentenced to the high term of two years on the attempt, and a low-term sentence of two years on the conspiracy was stayed pursuant to Penal Code section 654. Defendant Lamas appeals from the denial of his section 1538.5 motion, and defendant Fernandez appeals from the judgment of conviction.
FACTS[*]
.... .... .... .... .... .
FACTS RELATING TO THE PENAL CODE SECTION 1538.5 MOTION
Deputy Tyrone Powe of the Los Angeles County Sheriff's Department's Narcotics Bureau received information from a confidential citizen *564 informant that drug trafficking was taking place at the Oakwood Apartments in Marina del Rey. He set up a surveillance of the Oakwood Apartments.
Approximately 9 a.m., on December 18, 1986, Armando Nieto drove a Ford Aerostar van from the upper level of the parking structure of the Oakwood Apartments and parked the Ford Aerostar van on the second level. He exited the parking structure in the direction of the apartments, and returned five minutes later carrying a large blue nylon duffel bag and a large tan-colored bag which appeared to be full. The bags contained packages of cocaine. Nieto placed the bags in the back of the Ford Aerostar van and again exited the parking structure in the direction of the apartment.
Approximately a half-hour later, Nieto returned to the parking structure carrying a black open-top briefcase which appeared to be empty and drove off in a black Pontiac Fiero. The Pontiac Fiero was driven from Marina del Rey to West Los Angeles. At the corner of Santa Monica Boulevard and Veteran Avenue, Nieto used a mobile cellular telephone. Nieto made a left turn onto Veteran, drove north past an apartment building on Veteran Avenue in West Los Angeles, made a U-turn, paused, made another U-turn, parked on the opposite side of the street from the apartment building, and walked to the entrance of the Veteran Avenue apartments carrying the same black briefcase.
He pressed the buzzer to the security door and gained entrance to the complex. Nieto approached apartment No. 205 on the second level, knocked and entered. Approximately 45 minutes later, he left apartment No. 205, carrying the black briefcase which appeared to be full. The briefcase contained $17,000 in cash. He returned to the Pontiac Fiero, used his mobile cellular telephone, made a U-turn, and entered the parking structure of the Veteran Avenue apartments. Nieto was given a black nylon duffel bag which contained $215,000 in cash, a mobile cellular telephone, some marijuana, and a beeper. Nieto left the parking structure and, using countersurveillance techniques, returned to the Oakwood Apartments at approximately 11:45 a.m., where he was arrested.
Following the arrest of Nieto, the officers determined that a search warrant should be obtained for apartment No. 205 and an additional location, and Deputy Powe began the preparation of the warrant and affidavit. Approximately noon, in order to secure the location, Sergeant Edward Huffman of the Los Angeles County Sheriff's Department's Narcotics Bureau, dressed in a sheriff's raid jacket, stationed himself outside the door of apartment No. 205. He heard two voices and then the door to the apartment opened. Gustavo Posada and Louis Mendez were standing in the *565 doorway. Sergeant Huffman identified himself as a police officer and detained Posada and Mendez, in order to secure the premises by not allowing them to flee, warn others, or destroy evidence.
Upon entry into the apartment, the police officers made a sweep of the residence looking for additional individuals. The officers observed a money counting machine, a shoebox of rubber bands, a three-ring notebook with highlighted figures and columns of numbers, an open briefcase with a mobile cellular phone, a yellow legal-size writing pad with numbers adding up to $351,000, and three additional mobile cellular telephones which rang all afternoon. A more thorough search was conducted which uncovered a brown satchel containing cash in the amount of $31,000, a small bindle, a small amount of marijuana, a loaded gun, and a pair of gloves with white residue on them.
Approximately 3 p.m., William Rodriguez and William Dawson arrived at the apartment and were detained. Rodriguez was carrying a blue nylon duffel bag containing $123,000 in cash. Sometime later, defendant Lamas arrived at the apartment and was detained. Lamas resides at apartment No. 205.
A search warrant for apartment No. 205 was obtained at 5:05 p.m., and the officers at the apartment were notified by radio. Shortly after 6 p.m., Deputy Powe arrived at the apartment with the search warrant. The affidavit in support of the search warrant contained an unintentional misstatement. It stated that Nieto carried the black nylon duffel bag out of apartment No. 205, when in fact he obtained it from an individual in the parking structure of the Veteran Avenue apartments.
DISCUSSION
I, II[*]
.... .... .... .... .... .
III
Penal Code Section 1538.5 Motion
Defendant Lamas contends that all evidence obtained from and observations made within apartment No. 205 should have been suppressed. Specifically, *566 he argues that the entry into and occupation of the apartment was not justified by exigent circumstances and violated the "knock-notice" provisions of Penal Code sections 844 and 1531. He argues further that there was no probable cause to issue the search warrant, and that the officers could not have relied upon it in good faith. Finally, he argues that even if the warrant was valid, the inevitable discovery rule is not applicable and the previous search cannot be justified on that ground.
Validity of the Search Warrant
The affidavit in support of the search warrant was prepared by Deputy Tyrone Powe, who had been assigned to the narcotics bureau for over six years. The affidavit provided that Deputy Powe had been contacted by a confidential informant who described some possible drug-trafficking activities taking place in the Oakwood Apartments.
The informant had seen Nieto on five occasions in the past two and one-half weeks, making several trips to different vehicles in the Oakwood Apartments parking structure. The informant would see Nieto carry large nylon duffel bags, which appeared to be packed, and place the bags nervously in one of several different vehicles.
Deputy Powe set up a surveillance of the Oakwood Apartments. He saw Nieto carry a heavy large black nylon duffel bag, place the bag in a Nissan, and drive to an apartment complex at Bora Bora Way. Nieto took the bag into apartment No. 310 and left the apartment 30 minutes later without the bag.
The next day, the surveillance continued and the officers made the observations which have been set forth in the section, ante, entitled "Facts Relating to the Penal Code section 1538.5 Motion." All the vehicles used by Nieto were registered to the same post office box.
When Nieto returned from the Veteran Avenue apartments to the Oakwood Apartments parking structure, he drove slowly by the parked Ford Aerostar van, looked at it, and then parked the Pontiac Fiero on the upper level. He exited toward the apartments. He returned to the Pontiac Fiero three minutes later and removed both the black nylon duffel bag he had obtained in the parking structure of the Veteran Avenue apartments, and the black briefcase. He then exited towards the apartments.
He was confronted by officers. He immediately went through the door from the parking structure to the apartments and dropped his bags on the *567 floor. He tried to enter apartment No. D-101 with a key but changed his mind and ran. He denied dropping the bags.
The affidavit contained a statement that Nieto had carried both the black briefcase and the black nylon duffel bag from apartment No. 205. This was incorrect, in that the black nylon duffel bag had been obtained in the parking structure of the Veteran Avenue apartments. The superior court determined that the misstatement in the affidavit was not intentional.
(1) A warrant may not be issued unless it is supported by probable cause to believe that contraband or evidence of a crime may be found at the place to be searched. Probable cause may be established by affidavit. (Cal. Const., art. I, § 13; Pen. Code, § 1525.) In determining whether probable cause is established, the reviewing court must assess the totality of the circumstances under which the warrant issued. (Illinois v. Gates (1983) 462 U.S. 213, 230-235 [76 L.Ed.2d 527, 543-546, 103 S.Ct. 2317].) The use of warrants in preference to warrantless searches is to be encouraged. Reviewing courts should not interpret affidavits in a hypertechnical rather than a commonsense manner. (Id. at pp. 235-236.) Doubts as to whether an affidavit demonstrates the existence of probable cause should be resolved in favor of upholding the warrant. (People v. Frank (1985) 38 Cal.3d 711, 722 [214 Cal. Rptr. 801, 700 P.2d 415].) Probable cause does not require an actual showing of criminal activity but only a fair probability or substantial chance of such activity. (People v. Beekoff (1985) 174 Cal. App.3d 305, 310 [219 Cal. Rptr. 878].)
(2) Under federal law, misstatements of fact made by an affiant which are deliberately false or made with reckless disregard for the truth must be excised from the affidavit. If the remaining content still establishes probable cause, the warrant need not be voided. If the remaining content is insufficient, the warrant must be voided. (Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674].) Under California law, negligent misstatements must also be excised from the supporting affidavit, but only if they are unreasonable. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 100-101 [104 Cal. Rptr. 226, 501 P.2d 234].)
In the instant matter, the facts asserted in the affidavit provided a proper basis for the magistrate's determination that there was a substantial probability that contraband or evidence of a crime would be found in apartment No. 205. Nieto was clearly a participant in a sophisticated drug-trafficking network. He was observed driving or placing bags under suspicious circumstances into a number of vehicles, all of which were registered to the same post office box. Some of the bags in Nieto's possession contained substantial *568 quantities of cocaine and cash. When confronted by police officers, Nieto abandoned two bags containing substantial amounts of cash and fled.
Nieto took an empty black briefcase with him on his trip to the Veteran Avenue apartments. Just before arriving at the apartments, he spoke on a mobile cellular telephone. He made two U-turns before parking across the street from the apartment building. He entered apartment No. 205 with an empty briefcase and exited 45 minutes later with a briefcase full of cash. He then was immediately admitted into the secured parking lot for the complex and received another bag full of cash. A probability existed that the occupants of apartment No. 205 were part of the drug-trafficking network, and that contraband or evidence of a crime would be discovered in the apartment.
The magistrate concluded that the affiant's misstatement about the black nylon duffel bag was not intentional. We need not determine whether the statement was made recklessly or negligently. If the misstatement is excised from the warrant, there still exists probable cause for its issuance.
We conclude that the magistrate properly upheld the validity of the search warrant.
Inevitable Discovery
(3) The introduction into evidence of materials seized and observations made during an unlawful search is prohibited by the exclusionary rule. (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341] overruled on other grounds in Elkins v. United States (1960) 364 U.S. 206 [4 L.Ed.2d 1669, 80 S.Ct. 1437]; Silverman v. United States (1961) 365 U.S. 505 [5 L.Ed.2d 734, 81 S.Ct. 679, 97 A.L.R.2d 1277].) In addition, the exclusionary rule prohibits the introduction into evidence of materials and testimony which are the products or indirect results of the illegal search, the so-called "fruit of the poisonous tree" doctrine. (Wong Sun v. United States (1963) 371 U.S. 471 [9 L.Ed.2d 441, 83 S.Ct. 407].) However, if such tainted evidence is also obtained from an independent source, then its admissibility is not prohibited. This exception to the exclusionary rule has come to be known as the "independent source" doctrine. (Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385 [64 L.Ed. 319, 40 S.Ct. 182, 24 A.L.R. 1426] overruled on other grounds in United States v. Havens (1980) 446 U.S. 620 [64 L.Ed.2d 559, 100 S.Ct. 1912].) A corollary to the independent source doctrine is the "inevitable discovery" doctrine. This doctrine presupposes that tainted evidence would be admissible if it is in fact discovered by an independent source, but provides further that such tainted evidence would be admissible if it would have been discovered through an independent *569 source even if in fact it was not so discovered. (Nix v. Williams (1984) 467 U.S. 431 [81 L.Ed.2d 377, 104 S.Ct. 2501].)
A classic example of the independent source doctrine is found in Segura v. United States (1984) 468 U.S. 796 [82 L.Ed.2d 599, 104 S.Ct. 3380]. In Segura, police officers unlawfully entered the defendant's residence, conducted a brief search, seized some items, and waited at the residence until an untainted search warrant was obtained. After the warrant was obtained and executed, the police officers conducted a more thorough search and discovered additional evidence. The Supreme Court specifically noted that the admissibility of the items seized during the brief initial search was not before the court. The court concluded that the evidence discovered for the first time after the untainted search warrant was obtained had been discovered through an "independent source" and was, therefore, admissible.
In People v. Angulo (1988) 199 Cal. App.3d 370 [244 Cal. Rptr. 819], we concluded on facts very similar to the facts of Segura that the evidence seized pursuant to a valid untainted warrant was admissible, and that a prior illegal entry and occupation of the premises was irrelevant. We noted, as did the Supreme Court in Segura, that the admissibility of items seized prior to the obtaining of the warrant was not an issue before us. We also concluded that the fact that information obtained in the course of the illegal entry was mentioned to the magistrate in support of the application for a search warrant did not taint the warrant where the information obtained prior to the unlawful entry was sufficient probable cause for the issuance of the warrant.
Segura and Angulo were concerned with the independent source doctrine. Both cases dealt with evidence seized during the execution of a valid untainted search warrant. Neither case concerned the admissibility of evidence seized prior to the obtaining of the warrant. The application of the independent source and inevitable discovery doctrines to evidence seized in the course of an illegal search followed by the obtaining of a valid untainted search warrant was considered by the United States Supreme Court in Murray v. United States (1988) 487 U.S. 533 [101 L.Ed.2d 472, 108 S.Ct. 2529]. The facts of Murray are similar to the instant case.
Police officers received information of narcotics trafficking from an informant and conducted a surveillance of the suspects. After having obtained sufficient information to constitute probable cause to obtain a search warrant for a warehouse, the officers unlawfully entered the warehouse and discovered contraband in plain view. They secured the premises and applied for a search warrant without informing the magistrate of the prior entry. No information obtained from the unlawful entry was used in obtaining the *570 warrant. The warrant was issued and executed, a search was conducted and evidence was seized. The Supreme Court held that evidence which is initially discovered during an illegal search, but is subsequently acquired or reacquired pursuant to a valid untainted independent search warrant, should not be excluded. The court concluded that a warrant would not be independent if "... the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, [] or if the information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant." (Murray v. United States, supra, 487 U.S. at p. 542 [101 L.Ed.2d at pp. 483-484].)
(4) The independent source and inevitable discovery doctrines are also applicable in situations where the prior illegal entry is in violation of "knock-notice" rules. (United States v. Diaz-Espindola (9th Cir.1991) 928 F.2d 314.)[1] Prior to entering a residence police officers are required to knock on the door, wait a reasonable time for the occupant to respond to the knock, and announce their purpose. If an occupant refuses entry or does not respond, the police may forcibly enter the premises. (18 U.S.C. § 3109; see also Pen. Code, §§ 844 and 1531.) These requirements apply not only to actual forced entries but also where a chain is broken on an open door, where a passkey is used, and where a closed but unlocked door is opened. (Sabbath v. United States (1968) 391 U.S. 585, 590 [20 L.Ed.2d 828, 834, 88 S.Ct. 1755].) Where the door is already open, the officers must still identify themselves before entering. (United States v. Diaz-Espindola, supra, 928 F.2d 314; People v. Keogh (1975) 46 Cal. App.3d 919 [120 Cal. Rptr. 817].)
In Diaz-Espindola, the Ninth Circuit found that officers had violated the federal "knock and announce" statute when they announced their identity as they crossed the threshold of an open door. They did not receive, and they did not wait to receive, a refusal of admittance prior to their entry. Exigent circumstances were not proved which would justify the officers' disregard of the statute. After the initial unlawful entry, the officers obtained a search warrant and seized evidence pursuant to the warrant. The Ninth Circuit applied the inevitable discovery rule of Nix v. Williams to the violation of the "knock and announce" statute and concluded that the evidence was admissible.
Application
In this case, the officers received information from an informant which led them to conduct a surveillance of the parking structure at the Oakwood *571 Apartments. After making certain observations and arresting Nieto, they determined to obtain a search warrant for apartment No. 205. While Deputy Powe was preparing the application for the search warrant, Sergeant Huffman and others went to the apartment complex in order to keep the apartment under surveillance. While they were waiting outside the apartment, two individuals exited and confronted the officers in their distinctive sheriff's uniforms.
The officers entered the residence, conducted one or more searches, discovered certain evidence, and made certain observations. For purposes of this discussion, we will assume without deciding that the initial warrantless entry was unlawful, in that there were no exigent circumstances and that the officers violated the "knock-notice" statutes. Subsequently, a search warrant was obtained and the search and seizure was concluded. We will also assume, for purposes of this discussion, that all seized evidence and observations were obtained prior to the issuance of the search warrant.
We have previously concluded that the search warrant was validly issued. We further conclude that the officers decided to obtain a search warrant prior to any illegal entry, and that no information obtained during the course of any illegal entry and occupation was used in obtaining the warrant. The warrant was not tainted by any illegal entry and was, therefore, independent of any illegal entry and search. Accordingly, the evidence discovered and the observations made in apartment No. 205 were admissible, since they would inevitably have been found during the independent police search.
In Murray, the Supreme Court remanded the case to the district court for a factual determination as to whether the agents would have sought a warrant if they had not earlier entered the warehouse. Here, the evidence is undisputed that the officers had determined to obtain a search warrant prior to any entry into the apartment. (See United States v. Salas (9th Cir.1989) 879 F.2d 530, 538.) "The undisputed testimony that the officers had decided to obtain a warrant prior to any arguably illegal conduct distinguishes this case from Murray and others which have followed its course of remanding for determination of the independent source issue. [Citations.] We therefore conclude that a remand for determination whether the officers would have sought a search warrant if [the deputy] had not entered the [apartment] would be a meaningless gesture." (People v. Freeman (1990) 219 Cal. App.3d 894, 906 [268 Cal. Rptr. 603].)
Since we have concluded that the questioned evidence is admissible under the independent source and inevitable discovery doctrines, we need not reach the other issues raised by defendant concerning the violation of the *572 "knock-notice" statutes, the absence of exigent circumstances to justify the warrantless entry into the apartment, and the good faith of the officers in relying on an arguably invalid search warrant.
The motion to suppress evidence was properly denied.
DISPOSITION
The judgments of conviction are affirmed.
Turner, P.J., and Boren, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Facts and sections I and II of the Discussion.
[*] See footnote, ante, page 560.
[*] We note that this case does not involve a "knock-notice" violation occurring in the execution of a valid search warrant. We do not address whether such a "knock-notice" violation may be saved by the inevitable discovery doctrine. (See Loverde v. Superior Court (1984) 162 Cal. App.3d 102 [208 Cal. Rptr. 134].)
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 14, 2016
Plaintiff-Appellee,
v No. 321487
Wayne Circuit Court
RODERICK LOUIS PIPPEN, LC No. 10-006891-FC
Defendant-Appellant.
Before: SAAD, P.J., and WILDER and MURRAY, JJ.
PER CURIAM.
A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), felon in
possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a
felony, MCL 750.227b.1 The trial court sentenced defendant to life imprisonment for the felony-
murder conviction and a concurrent prison term of three to five years for the felon-in-possession
conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm
conviction. Defendant appeals as right. We affirm.
On July 21, 2008, Brandon Sheffield was fatally shot during an apparent attempted
carjacking in Detroit. The victim was shot while seated in his Mercury Mountaineer with a
friend and two other individuals whom he just met the day before. The group was watching a
video on a laptop computer in the parked Mountaineer, with the engine running, when a gunman
approached the driver’s side and demanded that everyone get out. The victim was shot in the
head while still in the driver’s seat of the Mountaineer, which crashed into a tree.
Defendant was arrested three months later after a Detroit police officer observed
defendant and Michael Hudson both throw guns under a vehicle in the area of Fairport and East
Seven Mile Road in Detroit. The officer claimed that the gun thrown by defendant was
1
In a prior appeal, this Court reversed the predecessor judge’s earlier order dismissing the
charges against defendant, holding that the trial court erred in finding that the evidence at the
preliminary examination failed to establish probable cause that defendant committed the charged
offenses. People v Pippen, unpublished opinion per curiam of the Court of Appeals, issued
December 13, 2011 (Docket No. 300171).
-1-
determined to be the gun used to shoot the victim. During the police investigation of defendant’s
associates after his arrest, an officer took a statement from Shane McDuffie regarding the
shooting incident. McDuffie testified at trial that he, Hudson, and defendant were driving around
on the night of the shooting, and that he saw defendant exit the front passenger seat of their
vehicle and shoot the victim.
In his sole issue on appeal, defendant argues that defense counsel was constitutionally
ineffective for failing to investigate and call Hudson as a witness at trial to support his defense
theory that McDuffie’s testimony identifying defendant as the shooter was not credible. After
conducting a Ginther2 hearing, the trial court denied defendant’s motion for a new trial.
Ineffective assistance of counsel is a mixed question of fact and constitutional law.
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “A judge must first find the facts,
and then decide whether those facts constitute a violation of the defendant’s constitutional right
to effective assistance of counsel.” Id. An appellate court reviews the trial court’s findings of
fact for clear error and reviews questions of constitutional law de novo. Id.
To establish ineffective assistance of counsel, defendant bears the burden of showing
both deficient performance and prejudice. People v Carbin, 463 Mich 590, 599-600; 623 NW2d
884 (2001). Counsel is presumed to have rendered adequate assistance and to have made all
significant decisions in the exercise of reasonable professional judgment. People v Vaughn, 491
Mich 642, 670; 821 NW2d 288 (2012). Defendant must establish that counsel’s performance fell
below an objective standard of reasonableness and that there is a reasonable probability that, but
for counsel’s error, the result of the proceeding would have been different. Id. at 669. A
reasonable probability is one sufficient to undermine confidence in the outcome of the
proceeding. People v Ackley, 497 Mich 381, 389; 870 NW2d 858 (2015).
Decisions regarding whether to call a witness are presumed to matters of trial strategy.
People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Counsel’s failure to call a
witness only constitutes ineffective assistance if it deprives the defendant of a substantial
defense. Id. “A substantial defense is one that might have made a difference in the outcome of
the trial.” People v Marshall, 298 Mich App 607, 612; 830 NW2d 414 (2012), vacated on other
grounds 493 Mich 1020 (2013). An appellate court will not evaluate counsel’s performance with
the benefit of hindsight. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). But a
court cannot completely insulate its review of counsel’s performance by calling it a matter of
trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). A court must
first determine whether counsel made a choice after less than a complete investigation. Id.
Counsel has a duty to make reasonable investigations or to reasonably decide that a particular
investigation is unnecessary. Id.
“Counsel’s actions are usually based, quite properly, on informed strategic choices made
by the defendant and on information supplied by the defendant.” Strickland v Washington, 466
US 668, 691; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Accordingly, “inquiry into counsel’s
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-2-
conversations with the defendant may be critical to a proper assessment of counsel’s
investigation decisions.” Id. In this case, however, there was no testimony from either
defendant or trial counsel at the Ginther hearing regarding what information, if any, defendant
may have provided to counsel about the charges, or whether Hudson could provide defendant
with a defense.
At the Ginther hearing it was undisputed that defendant’s family had hired a private
investigator, who had interviewed Hudson. Defense counsel was aware that McDuffie was
claiming that he was a passenger in a car driven by Hudson, which defendant exited before
approaching and then shooting the victim. Although the private investigator testified that he
informed defense counsel before trial that Hudson had told him that he had no involvement in the
shooting and that McDuffie was lying, defense counsel denied that he was informed of Hudson’s
proposed testimony by the private investigator. Defense counsel further testified that he never
had any intention of calling Hudson as a witness because (1) he believed that anyone who could
have been placed in the car by McDuffie “needed to be quiet,” (2) Hudson had been arrested
with defendant three months after the shooting incident, when an officer observed the two men
each toss a firearm underneath a car, which could provide evidence corroborating prosecution
witnesses and (3) defense counsel wanted to raise doubt about whether Hudson or defendant
actually had the weapon that was later linked to the victim’s murder, and (4) he assumed that
Hudson would be unwilling to say that he possessed the alleged murder weapon before tossing it
under a car.
We agree with the trial court’s conclusion that it was sound strategy for defense counsel
not to call Hudson as witness. It was reasonable to conclude that Hudson’s credibility could be
attacked, and that his testimony would minimally confirm that McDuffie was honestly testifying
about who was present at the shooting and that Hudson and defendant were together three
months later when the murder weapon was found. And, it was reasonable for defense counsel to
believe that Hudson would not claim ownership to the gun found to have been used to shoot the
victim. For these reasons, defendant’s trial counsel was not ineffective for not calling or
interviewing Hudson when he knew the primary aspects of Hudson’s involvement with
defendant. Ackley, 497 Mich at 393.
Defendant also failed to meet his burden of showing prejudice. Although the trial court
did not directly resolve this issue, it identified several factors that bear on the issue. As the trial
court observed, Hudson’s proposed testimony would have corroborated McDuffie’s testimony
that he, defendant, and Hudson knew each other. It also would have accentuated that guns were
discarded by both Hudson and defendant on October 18, 2008, one of which was the murder
weapon.3
3
Contrary to defendant’s argument, the evidence does not indicate that defendant pleaded to
“possession of the firearm.” Rather, defense counsel stipulated that defendant made a prior
admission under oath regarding his possession of a firearm in the area of Fairport and East Seven
Mile Road, with the understanding that there were two firearms. Consistent with this stipulation,
defense counsel asserted in his opening statement that defendant “admitted he was in possession
-3-
And just as Hudson denied being present during the shooting in his testimony at the
Ginther hearing, he also denied any knowledge of the Glock handgun seized by the police on
October 18, 2008, that was connected to the shooting. Hudson testified that he threw a .38
caliber gun and did not see defendant throw anything. Indeed, Hudson denied that he was
walking with defendant when the police arrived, which was contrary to the officer’s testimony
that he observed both Hudson and defendant step between two cars, and then separate after the
two guns were dropped. As a whole, Hudson presented himself at the Ginther hearing as a
friend of defendant, who could not or would not implicate defendant in any crime. And, if
Hudson had testified, the accomplice instruction that the trial court gave in relation to
McDuffie’s testimony would have similarly guided the jury’s evaluation of Hudson’s credibility.
In addition, Hudson had theft-related prior convictions that likely would have been admissible
for impeachment under MRE 609.
The record also discloses that there was some circumstantial corroboration for
McDuffie’s identification of defendant as the shooter, beyond the evidence connecting defendant
to the murder weapon. Two individuals who were passengers in the Mountaineer when the
shooting occurred gave descriptions of the shooter’s height and build, which were consistent
with defendant. Assuming defense counsel failed to conduct a reasonable investigation
regarding Hudson’s value as a witness, defendant has failed to establish a reasonable probability
that it affected the outcome of the trial. Because Hudson would have strengthened the
prosecution’s evidence linking defendant to the murder weapon, and Hudson had his own
credibility issues, the absence of his proposed testimony does not undermine confidence in the
verdict. Accordingly, defendant has not demonstrated the requisite prejudice to establish
ineffective assistance of counsel.
Affirmed.
/s/ Henry William Saad
/s/ Kurtis T. Wilder
/s/ Christopher M. Murray
of one of the handguns, not the handgun that did the homicide, one of the handguns three months
later.”
-4-
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218 F.3d 96 (2nd Cir. 2000)
THOMAS C. JORLING, as Commissioner of the New York State Department of Environmental Conservation and NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Plaintiffs-Appellees,v.UNITED STATES DEPARTMENT OF ENERGY, JOHN S. HERRINGTON, as Secretary of the United States Department of Energy, U.S. DEPARTMENT OF TRANSPORTATION, UNITED STATES COAST GUARD, JAMES BURNLEY, IV, as Secretary of the United States Department of Transportation, PAUL A. YOST, Admiral Commandant of the United States Coast Guard, U.S. DEPARTMENT OF THE ARMY, JOHN O. MARSH, JR., Secretary of the United States Department of the Army, U.S. DEPARTMENT OF THE AIR FORCE, and EDWARD C. ALDRIDGE, JR., as Secretary of the United States Department of the Air Force, Defendants-Appellants.
Docket No. 99-6188August Term 1999
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
Argued: April 14, 2000Decided: May 31, 2000
Appeal from the June 3, 1999, judgment of the United States District Court for the Northern District of New York (Neal P. McCurn, Judge), imposing liability for hazardous waste regulatory charges assessed by New York Department of Environmental Protection against ten federal facilities.
Affirmed.
Robert H. Oakley, Washington, D.C. (Lois J. Schiffer, Asst. Atty. Gen., Environment and Natural Resources Div., David M. Thompson, John T. Stahr, U.S. Dept. of Justice, Washington, D.C., on the brief), for defendants-appellants.
Maureen F. Leary, Asst. Atty. Gen., New York, N.Y. (Eliot Spitzer, N.Y. State Atty. Gen., Peter H. Schiff, Dep. Solicitor Gen., David A. Munro, Asst. Atty. Gen., Albany, N.Y., on the brief), for plaintiffs-appellees.
Before: NEWMAN, KEARSE, and CABRANES, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
1
The issue on this appeal is whether certain hazardous waste regulatory charges imposed by New York on federal installations are "reasonable service charges" within the meaning of the provision of the Resource Conservation and Recovery Act that waives the sovereign immunity of the United States. See 42 U.S.C. 6961(a) (1994). The United States Department of Energy and others (collectively "USDOE") appeal from the June 3, 1999, judgment of the District Court for the Northern District of New York (Neal P. McCurn, District Judge), granting summary judgment to the New York State Department of Environmental Conservation and its commissioner (collectively "NYDEC"). The judgment imposed liability for hazardous waste regulatory charges assessed by NYDEC against ten federal facilities in New York, and denied USDOE's cross-motion for summary judgment. We conclude that the hazardous waste regulatory charges were properly determined to be "reasonable service charges," and we therefore affirm.
Background
2
In January 1989, NYDEC brought four consolidated actions in New York State Supreme Court against USDOE to recover unpaid environmental program regulatory charges, including hazardous waste program and waste transporter program charges, assessed by the NYDEC against ten federal facilities from 1983 to 1989. USDOE counterclaimed for a refund of approximately $400,000 and related relief for regulatory charges already paid. These actions were subsequently removed to the District Court for the Northern District of New York.
3
The parties stipulated to the following relevant facts. At all relevant times, New York has had environmental conservation programs concerning waste pollution. In 1983, the New York legislature enacted and NYDEC began assessing hazardous waste program and waste transporter program charges, as detailed in N.Y. Envtl. Conserv. Law §§ 72-0402, 72-0502 (McKinney 1997 & Supp. 2000). From 1983 through 1989, the ten federal facilities received billing for these waste regulatory charges in the month of billing, and payment was due under state statute within thirty days.
4
From 1983 through 1984, all waste regulatory charges were deposited into the state's general revenue fund, which is primarily funded by tax revenues. From 1985 through 1988, half of the waste regulatory charges was deposited into the general revenue fund, and the other half was deposited into a special hazardous waste remedial fund (i.e., the New York State superfund). Starting in 1989, half of the waste regulatory charges was deposited into the New York State superfund, and the other half was deposited into a special environmental enforcement fund.
5
The parties stipulated to the following charges and payments for waste regulatory charges from 1983 to 1989:
6
Year Charges Payments
1983 70,954.79 70,604.79
1984 112,833.56 112,833.56
1985 142,951.37 38,809.50
1986 227,870.28 24,000
1987 196,471.31 0
1988 197,250.00 0
1989 215,260.27 0
7
NYDEC waived any claim for unpaid hazardous waste regulatory charges assessed prior to July 14, 1985. For the year 1985, NYDEC billed the annual regulatory charges in September 1985.
8
The District Court initially granted in part and denied in part cross-motions for summary judgment. SeeNew York State Department of Environmental Conservation v. United States Department of Energy, 772 F. Supp. 91 (N.D.N.Y. 1991) ("NYSDEC I"). The District Court explained that although section 6001 of the Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795, 2821, as amended, 42 U.S.C. 6961(a) (1994) ("RCRA"), contains a waiver of the United States' sovereign immunity from suit concerning certain state requirements regarding hazardous waste, including the imposition of "reasonable service charges," section 6001 is not a "blanket waiver[] of the United States' sovereign immunity from the imposition and assessment of taxes by a State." NYSDEC I, 772 F. Supp. at 98. The District Court noted that the "parties agree that the proper test for this court to utilize in ascertaining whether the charges sought by the NYDEC are impermissible taxes or permissible fees was developed by the Supreme Court in Massachusetts v. United States, 435 U.S. 444 (1978)," NYSDEC I, 772 F. Supp. at 99, which we discuss infra.
9
Arguing that the waste regulatory charges were unreasonably high, USDOE asserted that in every year between 1983 and 1989, "total waste regulatory charges exceeded [NYDEC]'s actual services [to the ten federal facilities] by a ratio of approximately nine to one ($1,163,591.58 vs. $126,792.13)." Id.
10
The District Court denied both motions for summary judgment because neither party had submitted evidence "as to the value of the overall benefits the facilities receive in light of the programs and services made available to them by [NYDEC] should the need for such assistance ever arise." Id.at 100.
11
On subsequent cross-motions for summary judgment, the District Court granted NYDEC's motion for partial summary judgment and denied USDOE's motion for summary judgment. SeeNew York State Department of Environmental Conservation v. United States Department of Energy, 850 F. Supp. 132 (N.D.N.Y. 1994) ("NYSDEC II"). The District Court explained that Massachusetts "requires only a rational relationship between the method used to calculate the fees and the benefits available to those who pay them." Id.at 143 (emphasis added). The Court found such a relationship in this case because larger facilities are more expensive to regulate and require more services than smaller facilities. In addition, all services which NYDEC provides pursuant to these regulatory programs, whether used or not, are available to the United States should they be needed in the future . . . . This evidence, coupled with the fact that the total receipts from these regulatory fees have been substantially less than the actual costs of these programs, demonstrates that NYDEC's method of calculating its waste . . . regulatory charges results in a fair approximation of the cost of the use of the system.
12
Id. (footnote omitted).
13
The District Court subsequently denied USDOE's motion under Fed. R. Civ. P. 60(b), seeNew York State Department of Environmental Conservation v. United States Department of Energy, No. 89-CV-194, 1997 WL 797523 (N.D.N.Y. Dec. 24, 1997) ("NYSDEC III"), and, among other things, granted NYDEC's summary judgment motion against USDOE for almost all the unpaid environmental program regulatory charges, including unpaid waste regulatory charges, for 1986 through 1997, seeNew York State Department of Environmental Conservation v. United States Department of Energy, No. 89-CV-194(NPM), 1999 WL 369965, at *1 (N.D.N.Y. June 3, 1999) ("NYSDEC IV"). The District Court also declared "that the United States and its agencies are liable in the future for all regulatory fees assessed by [NY]DEC from 1998 onward that are consistent with N.Y. ECL Article 72 and the court's prior decisions in this matter." Id.
14
Final judgment was entered on June 3, 1999. USDOE appeals from the District Court's grant of summary judgment to NYDEC only as to waste regulatory charges.
Discussion
15
The issue on this appeal is whether the waste regulatory charges are "reasonable service charges" under the RCRA. As amended, the RCRA provides that each department, agency, and instrumentality of the federal government
16
engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural . . . , respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges.
17
42 U.S.C. 6961(a) (emphasis added). In 1992, Congress clarified the scope of the waiver of sovereign immunity in this provision by adding the following language:
18
The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement (including, but not limited to, any . . . reasonable service charge). The reasonable service charges referred to in this subsection include, but are not limited to, fees or charges assessed in connection with the processing and issuance of permits, renewal of permits, amendments to permits, review of plans, studies, and other documents, and inspection and monitoring of facilities, as well as any other nondiscriminatory charges that are assessed in connection with a Federal, State, interstate, or local solid waste or hazardous waste regulatory program.
19
Federal Facility Compliance Act of 1992, Pub. L. No. 102-386, § 102(a)(3), 106 Stat. 1505, 1505, codified at 42 U.S.C. § 6961(a). SeeH. R. Rep. No. 102-111, at 6 (1991) ("In providing for the payment by federal facilities of 'reasonable service charges,' the Committee reaffirms and clarifies existing language which requires that federal agencies pay those fees and charges which other persons are subject to under federal, state, interstate and local solid or hazardous waste regulatory programs.") reprinted in 1992 U.S.C.C.A.N. 1287, 1292.
I. The Applicable Standard
20
The Massachusetts test. Although this case involves a state charge imposed on the federal government, USDOE has agreed that the test for determining the reasonableness of the charges is the one articulated by the Supreme Court inMassachusetts v. United States, 435 U.S. 444 (1978), in upholding a federal charge imposed on a state government.1 In that case, Massachusetts challenged federal assessments on a state police helicopter pursuant to a registration tax on all civil aircraft flying in United States airspace. Seeid. at 452. In affirming the District Court's dismissal of the challenge, the Supreme Court set forth a three-part test: So long as the charges [1] do not discriminate against state functions, [2] are based on a fair approximation of use of the system, and [3] are structured to produce revenues that will not exceed the total cost to the Federal Government of the benefits to be supplied, there can be no substantial basis for a claim that the National Government will be using its taxing powers to control, unduly interfere with, or destroy a State's ability to perform essential services.
21
Id. at 466-67.
22
On appeal, USDOE does not dispute the first or third parts of the Massachusetts test. It acknowledges that NYDEC's waste regulatory charges are non-discriminatory and are not structured to produce revenues that will exceed the total cost to NYDEC of the benefits to be supplied. SeeBrief for Appellants at 22 n.10. USDOE disputes only the second part of the Massachusetts test, challenging the District Court's finding that no reasonable jury could find that the waste regulatory charges did not meet the "fair approximation" component of the Massachusettstest. USDOE argues that the charges cannot meet the "fair approximation" component because, by its calculations, the charges from 1983 to 1989 exceeded the cost of supplying the services actually received by a nine to one ratio.
23
Approximation of Use. The initial problem in determining whether the "fair approximation" component of the Massachusetts test has been met arises from uncertainty as to what the charges must fairly approximate. The uncertainty inheres in the differing phrases that the Supreme Court used in Massachusetts to uphold an aircraft registration tax that, along with other taxes, helped to finance air navigational facilities and services. See 435 U.S. at 446-47. In the portion of the opinion that fashioned the three-part test, the Court stated the second component to be a requirement that the charges "are based on a fair approximation of use of the system." Id. at 466 (emphasis added); see also id. at 469 ("It follows that a State may not complain of the application of [the registration tax statute] on the ground it is not a fair approximation of use."). However, when the Court applied the three-part test to the challenged aircraft registration tax, it said that the tax satisfied "the requirement that it be a fair approximation of the cost of the benefits civil aircraft receive from the federal activities." Id. at 467 (emphasis added); see id. at 468 ("[T]he present scheme nevertheless is a fair approximation of the cost of the benefits each aircraft receives."); see also id. at 463 n.19 ("A user-fee rationale may be invoked whenever the United States is recovering a fair approximation of the cost of benefits supplied.").2
24
In some circumstances, one would expect no difference whether the fair approximation inquiry focused on the use of benefits or their cost. For example, if each landing of an airplane required one airport employee to perform a particular service, an assessment of fees based on the number of landings would fairly approximate (indeed, precisely reflect) both use of the service and the cost of providing it. A difference would arise, however, if larger airplanes required a greater number of airport employees to render the needed service, but fees were still based on the number of landings. In that event, fees based on the number of landings would still precisely reflect use of the service, but only approximately reflect the cost, and the accuracy of the approximation would diminish for carriers who landed mostly airplanes small enough to require servicing by only one employee; the per-landing fee would oblige them to share part of the added cost of providing the service to planes requiring servicing by many employees.
25
The Supreme Court's application of the fair approximation test in Massachusetts to uphold the challenged aircraft registration tax appears to tilt the analysis toward consideration of use. The amount of the tax depended upon the type of aircraft engine (piston or turbine) and the maximum certificated takeoff weight. See id. at 446 n.1, 450. Of the other three taxes, one was imposed on each gallon of aircraft fuel, and two were imposed (at different rates) on each pound of aircraft tires and tubes. See id. at 468. Assessing the combined effect of the four taxes, the Court said:
26
The four taxes, taken together, fairly reflect the benefits received, since three are geared directly to use, whereas the fourth, the aircraft registration tax, is designed to give weight to factors affecting the level of use of the navigational facilities.
27
Id. at 468-69 (emphases added). The Court noted Congress's recognition of the fact that "'heavier and faster aircraft are generally responsible for much of the increased need of sophisticated control facilities and approach and landing facilities,'" id. at 451 n.9 (quoting H.R. Rep. No. 91-601, at 48 (1969)), thus demonstrating that calibrating the amount of the tax by the weight of the aircraft fairly approximated use of the navigational system.
28
The tilt toward use, rather than cost, is also evident in the Commerce Clause decision from which the Massachusetts test was borrowed. See Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 716-20 (1972). In Evansville-Vanderburgh, the Supreme Court ruled that the Commerce Clause did not prohibit states or municipalities from charging commercial airlines $1 per commercial airline passenger at airports within their jurisdiction in order to defray costs related to airport facilities. The Supreme Court concluded:
29
At least so long as the toll is based on some fair approximation of use or privilege for use, as was that before us in Capitol Greyhound, and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users.
30
Id. at 716-17 (emphasis added).3 Applying this test, the Supreme Court concluded that the charges "reflect a fair, if imperfect, approximation of the use of facilities for whose benefit they are imposed," id. at 717 (emphasis added), even despite exemptions for certain classes of passengers and aircraft and for non-passenger users of airport facilities, because "distinctions based on aircraft weight or commercial versus private use do not render these charges wholly irrational as a measure of the relative use of the facilities for whose benefit they are levied," id.at 719 (emphasis added); cf. Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 369 (1994) (airport's decision to "allocate costs according to a formula that" did not allocate portion of aircraft costs to airport concessionaires "appears to 'reflect a fair, if imperfect, approximation of the use of facilities for whose benefit they are imposed'" because airport concessionaires used only terminal facilities, not runways and navigational facilities) (quoting Evansville, 405 U.S. at 717).4
31
Ultimately, of course, the Massachusetts test is concerned with whether the challenged method for imposing charges fairly apportions the cost of providing a service, but by framing the second component of the test in terms of "use," the Court made clear that a method for imposing charges based on each payer's approximate use will pass muster as an adequate apportionment of costs. The alternative, nowhere evident in the Massachusetts opinion, is to engage in a detailed cost accounting analysis that endeavors to determine the cost, properly allocated to each payer, of every person, product, and facility involved in providing the service. The Court evidently was satisfied that a fair approximation of the use of the service adequately serves as a surrogate for an otherwise complicated and expensive attempt to allocate costs. See Brock v. Washington Metropolitan Area Transit Authority, 796 F.2d 481, 485 (D.C. Cir. 1986) (Ruth Bader Ginsburg, J.) ("Massachusettsdid not hold that a user fee must represent retrospectively a close approximation of the actual, historical benefit to the user. Rather, Massachusetts held only that the method used to calculate the fee must rationally be designed to approximate prospectively the benefit to the user.").
32
Services Used and Available for Use. The Massachusetts test applies not only to services used but also to services available for use. As the Court noted:
33
Every aircraft that flies in the navigable airspace of the United States has available to it the navigational assistance and other special services supplied by the United States. And even those aircraft, if there are any, that have never received specific services from the National Government benefit from them in the sense that the services are available for their use if needed ....
34
Massachusetts, 435 U.S. at 468 (footnotes omitted).
II. Application of the Massachusetts Test
35
It is undisputed that NYDEC's waste regulatory charges are calculated on a basis that reflects the size of an entity's operations. Specifically, the hazardous waste program charges are calculated based on tons of hazardous waste generated annually, seeN.Y. Envtl. Conserv. Law § 72-0402(1), and on the tons of hazardous waste received annually by a treatment, storage, or disposal facility, seeid.§ 72-0402(2)(a),(b). Hazardous waste program charges also include additional charges for operating one or more landfills to receive hazardous waste, for each incinerator or unit that burns hazardous waste for energy recovery, and for providing for the treatment, storage, or disposal of hazardous waste in one or more surface impoundments. Seeid.§ 72-0402(2)(i)- (iv). Waste transporter program charges are calculated based on the number of vehicles permitted to be used to transport waste. Seeid.§ 72-0502.
36
To demonstrate the relationship between its method of calculating hazardous waste program charges and the services it makes available, NYDEC submitted the affidavit of John L. Middelkoop, chief of NYDEC's Bureau of Eastern Hazardous Waste Programs. Middelkoop categorized the purposes of the "regulatory services which [NY]DEC provides to generators" of hazardous wastes:
37
a) to assure that New York State has sufficient treatment, storage, and disposal capacity for the amount of hazardous waste which is generated in the State (hereinafter, "capacity assurance services"); b) to effect a reduction in the amount of hazardous waste which is generated in the State (hereinafter, "waste reduction services"); and c) to assure that generators properly store, report, label and ship their hazardous waste to a facility which is permitted to receive the waste (hereinafter, "storing, reporting, labeling, and shipping services").
38
For each kind of service, Middelkoop explained, the service provided increases in proportion to the amount of waste generated, primarily because each service requires NYDEC to inspect the operations of generators, either to ensure compliance with existing requirements or to determine the accuracy of information necessary to execute the services properly.5 In turn, inspectors must obtain "so much more information" from generators "as they generate larger quantities of hazardous waste" because "there are more requirements in the regulations because the size of the plant, the complexity of the process, the risk to the environment and the amount of records which must be reviewed is, usually, proportional to the quantity of hazardous waste generated." In general, facilities receiving over 1,000 tons of hazardous waste annually "are larger, and their design, construction and operation is more complex. [NY]DEC's review of a permit application for a larger facility requires more involvement and time than its review of an application for a smaller facility."
39
Similarly, in providing services targeted to operators of hazardous waste facilities, "[t]he potential for significant noncompliance occurs more frequently at landfills, surface impoundments and facilities which receive large amounts of hazardous waste annually than at other facilities." The permit applications for facilities with landfills, surface impoundments, or incinerator units are more complicated and require a large amount of NYDEC involvement and time. For example, to design and site a surface impoundment that receives hazardous waste, one must, among other things, design a liner and groundwater monitoring system.
40
NYDEC also submitted the affidavit of Robert Haggerty, Director of NYDEC's Bureau of Technical Support of the Division of Hazardous Substances Regulation. Haggerty explained that under the waste transporter program, NYDEC acts to ensure that wastes "are properly identified and shipped to appropriate treatment or disposal facilities." NYDEC inspectors "routinely visit such facilities to assure that transporters are not violating their permits by, inter alia, depositing hazardous waste, regulated medical waste, or low level radioactive waste, at facilities which are not authorized to treat or dispose of such waste."
41
Based on this evidence, the District Court properly ruled that the waste regulatory charges meet the "fair approximation" component of the Massachusettstest. By assessing a higher charge based on the amount of hazardous waste generated or received, as well as imposing additional charges for each incinerator, landfill, and surface impoundment, the method of calculating the hazardous waste program charges is reasonably designed to fairly approximate use of the hazardous waste system's available services, and thereby to approximate the cost of supplying such services to particular generators of waste or operators of waste facilities. By charging for each vehicle permitted to be used to transport waste, the method of calculating waste transporter program charges is reasonably designed to fairly approximate use of NYDEC's services and thereby to roughly approximate the cost of supplying these services to transporters of waste.
42
USDOE disputes that NYDEC's waste regulatory charges fairly approximate the federal facilities' use of the State's available hazardous waste services by pointing out that half of the total waste regulatory charges assessed currently finance the New York state superfund, and that USDOE makes no use of the superfund, which finances decontamination only of sites for which no solvent owner or operator can be found to pay for the cleanup. The Supreme Court has made clear, however, that, as long as charges fairly approximate use and thereby fairly approximate costs of available services, it does not matter whether or how a governmental entity segregates the money it collects. In Evansville, the Court rejected the similar argument that charges were not based on use because half of the revenues generated were allocated to unrestricted general revenue. See Evansville, 405 U.S. at 720. "[S]o long as the funds received by local authorities under the statute are not shown to exceed their airport costs, it is immaterial whether those funds are expressly earmarked for airport use." Id. See Center for Auto Safety, Inc. v. Athey, 37 F.3d 139, 144 (4th Cir. 1994) (immaterial that Maryland does not keep charity registration fees in separate fund but turns them over to state treasury); New Hampshire Motor Transport Ass'n v. Flynn, 751 F.2d 43, 49 (1st Cir. 1984) (irrelevant that 75 percent of revenues from state license fee for vehicles carrying certain amount of hazardous waste will finance state hazardous waste cleanup fund, even if that fund has "relatively little to do with road transport"). New York does not violate the Massachusetts test by earmarking half of the hazardous waste fees for its superfund and using general revenues to pay for portions of the services available to hazardous waste producers.
43
III. Rebutting Reasonableness of Charges That Meet the Massachusetts Test
44
USDOE contends that even if NYDEC's method of imposing charges is designed to fairly approximate use of available hazardous waste services, the method is not reasonable as applied to USDOE's facilities because the charges imposed greatly exceed the actual cost of supplying services to these facilities. USDOE enlists Maine v. Department of Navy, 973 F.2d 1007 (1st Cir. 1992), in which the First Circuit ruled that fees imposed by Maine on a United States Navy shipyard had not been shown to be unreasonable under the pre-1992 RCRA waiver of sovereign immunity. See 973 F.2d at 1013-14. That ruling, USDOE points out, rested in part on data showing that fees paid, $54,500, were slightly less than the actual costs of regulatory activities related to the shipyard, $61,000. Here, by contrast, USDOE contends, the charges are nine times the costs of the services received.
45
Maine, however, did not establish a rule that a fee system, reasonably designed to fairly approximate use of available regulatory services, may be successfully challenged whenever the fees paid by one user can be shown to exceed the actual cost of services made available to that user. Maine simply ruled that the showing that the shipyard's fees were slightly less than actual costs was "sufficient," along with other data, to defeat the Navy's motion for summary judgment. See 973 F.2d at 1013. Moreover, even if we assume, for purposes of this appeal, that a fee system would be unreasonable as applied to a user of regulatory services if the user could show that its fees significantly exceeded the actual cost of services (both those used and those available for its use), USDOE has not made such a showing.
46
USDOE calculated a nine-to-one ratio of charges to services based on NYDEC's answer to the following interrogatory:
47
Please describe the services received from you by each facility in each year for each type of fee and assessment, e.g., site inspections, data evaluations, monitoring, reviewing, visits, technical assistance, consultation, processing, reports, studies, general administration. For each such activity, please state: the type of activity, the identity of each person who performed the activity; the date or dates when the activity was performed; and the cost to you of the activity.
48
In response, NYDEC answered that it could not provide a "complete answer to this interrogatory because some of the information requested is not regularly recorded and maintained by [NY]DEC" or "may be in files which are not indexed and/or which [NY]DEC does not know to exist." Noting that it answered the interrogatory "to the extent [NY]DEC and the Commissioner are able," NYDEC provided time and activity records, which consisted of sixty-three pages of "computerized raw data and estimates." USDOE then multiplied "the hourly rates established by the [time and activity] sheets" by the "hours spent by each NYDEC employee who performed services for one of the federal facilities." Reply Brief for Appellants at 8.
49
NYDEC responds initially that these calculations are inaccurate because the answer to the interrogatory asking NYDEC to describe the services received "was not intended to reflect the full scope of the services actually provided by [NY]DEC nor the overall benefits received by federal facilities." Brief for Appellee at 25 n.21. The more basic defect in the calculation is that it is incorrectly limited to services used, rather than including services or benefits available for use. SeeMassachusetts, 435 U.S. at 468 ("[E]ven those aircraft, if there are any, that have never received specific services from the National Government benefit from them in the sense that the services are available for their use if needed . . . ."); Maine, 973 F.2d at 1014 (permissible to include cost of state emergency response team in state regulatory charge, even though team never had responded to spill at Navy's facility).
50
In this case, USDOE calculated its nine-to-one ratio from data offered in response to an interrogatory asking for information for services "received" by the federal facilities, not for services made available to those facilities. The time and activity records upon which USDOE rely indicate only hours worked by NYDEC employees for a particular federal facility, and therefore cannot capture NYDEC's additional costs for making services available to that facility.
51
The method for assessing waste regulatory charges has not been shown to be unreasonable as applied.
Conclusion
52
The judgment of the District Court is affirmed.
Notes:
1
"[T]he issue before this Court is whether, using the analysis contained in Massachusetts, the regulatory assessments at issue are so high as to be beyond the scope of the reasonable service charges waivers contained in RCRA." Brief for Appellants at 18. The Appellants have not conceded that the Massachusetts test is applicable to all state charges assessed against the United States. See id.
2
In United States v. Sperry Corp., 493 U.S. 52 (1989), the Court quoted the phrase "fair approximation of the cost of benefits" from footnote 19 of Massachusetts and simultaneously emphasized that the Government need not "record invoices and billable hours to justify the cost of its services." Id. at 60.
3
In Capitol Greyhound Lines v. Brice, 339 U.S. 542 (1950), the Supreme Court upheld a Maryland tax that assessed two percent of the fair market value of the motor vehicle of any common carrier transporting passengers over Maryland roads. Rejecting the petitioners' argument that the tax's formula, regardless of the amount of revenue generated, violated the Commerce Clause, the Supreme Court explained that the tax "should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted," id. at 545, and later stated that "taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads," id. at 547.
4
Cases applying the "fair approximation" test in the Commerce Clause context reflect some uncertainty whether the focus is on use or cost. Compare Alamo Rent-A-Car, Inc. v. City of Palm Springs, 955 F.2d 30, 31 (9th Cir. 1992) (per curiam) (calculating fee for use of airport access roads as seven percent of gross receipts that rental car company generates from customers picked up at airport fairly approximates the "indirect use of the entire airport facility that [the company] makes through the travelers it services")(footnote omitted) (emphasis added); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 906 F.2d 516, 520 (11th Cir. 1990) (calculating airport's user fee on off-airport car rental company as ten percent of gross receipts from customers who came from airport fairly approximates use, because airport "could reasonably conclude that the ten percent fee on average represents Alamo's use of the airport facility") (emphasis added) (footnote omitted) with Center For Auto Safety, Inc. v. Athey, 37 F.3d 139, 143 (4th Cir. 1994) (Maryland "fee structure" imposing charity registration fee based on total contributions received by that charity in previous year "represents a fair, if imperfect, approximation of the cost of using Maryland facilities and services for the charity's benefit" because "the record clearly shows that the . . . costs of monitoring charities increase with larger charities") (emphases added).
5
In his deposition, when asked about additional services provided by NYDEC to waste generators but not mentioned in his affidavit, Middelkoop referred to "technical assistance . . . [W]e do have phone numbers and we do have staff provided to assist in making hazardous waste determination, assist in determining what the regulations mean. We have hot lines for waste reduction activities." When asked why he did not mention these services in his affidavit, Middelkoop explained, "Because I have no knowledge as to whether or not federal facilities have ever availed themselves of those services. They are also minor services."
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924 F.2d 1055
Guayv.Dugas*
NO. 90-3310
United States Court of Appeals,Fifth Circuit.
JAN 15, 1991
1
Appeal From: E.D.La.
2
AFFIRMED IN PART.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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13-4080-cv
Dekom v. Nassau County
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 11th day of December, two thousand fourteen.
PRESENT:
ROBERT D. SACK,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
_____________________________________
MARTIN DEKOM, JULIE DEKOM,
KENNETH JACOBY, DEBORAH JACOBY,
Plaintiffs-Appellants,
v. 13-4080-cv
NASSAU COUNTY, WILLIAM BIAMONTE,
LOUIS SAVINETTI, JOHN RYAN, ESQ.,
MATTHEW KIERNAN, FRANCIS X.
MORONEY, DONALD T. O’BRIEN,
RONALD HORES, CINDY PERDIKAKIS,
JOSEPH MONDELLO, PETER BEE, JOHN
DOE 1-100,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFFS-APPELLANTS: Martin Dekom, Julie Dekom, pro se,
Manhasset, NY, Kenneth Jacoby, Deborah
Jacoby, pro se, Oceanside, NY.
FOR DEFENDANTS-APPELLEES: Gerald R. Podlesak, Nassau County Attorney’s
Office, Mineola, NY, for Nassau County.
Steven G. Leventhal, Leventhal, Cursio,
Mullaney & Sliney, LLP, Roslyn, NY, for the
individually named defendants-appellees.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Joanna Seybert, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs Martin Dekom, Julie Dekom, Kenneth Jacoby, and Deborah Jacoby
appeal the judgment of the district court dismissing their claims brought under 42 U.S.C.
§ 1983 and state law. We presume familiarity with the facts and procedural history and
reference them only as necessary to explain our decision.
The district court correctly dismissed plaintiffs’ claims for violations of their
procedural due process rights stemming from the rejection of plaintiffs’ petitions for
candidacy in the Nassau County Republican primary. As we held in Rivera-Powell v.
N.Y.C. Board of Elections, 470 F.3d 458 (2d Cir. 2006), New York Election Law
§ 16-102 provides an adequate post-deprivation remedy for random and unauthorized
deprivations of due process in disputes over failure to list a candidate’s name on the ballot
in a New York election. Id. at 465-67. Plaintiffs argue on appeal that they were entitled
2
to a pre-deprivation remedy because defendants’ acts were part of an established state
procedure. We did not decide in Rivera-Powell whether New York Election Law § 16-
102 provides a pre-deprivation remedy, in addition to a post-deprivation remedy, because
the injury to a prospective candidate does not occur until the candidate’s name is not
listed on the ballot on election day. See id. at 467, n.10. We need not decide that
question here because plaintiffs’ complaint makes clear that, in their view, defendants’
actions violated New York law and local party policies and procedures, and therefore
were random and unauthorized. Because New York Election Law § 16-102 provides an
adequate post-deprivation remedy for precisely the injuries plaintiffs allege, plaintiffs
suffered no “deprivation[] without due process of law.” Id. at 464. For the same reasons
that we dismissed the plaintiff’s First Amendment claim in Rivera-Powell as “virtually
indistinguishable from her due process claim,” id. at 468-69, the district court correctly
dismissed plaintiffs’ First Amendment claim here.1
The district court also correctly dismissed plaintiffs’ Equal Protection Clause claim
for discrimination based on creed. Even assuming that plaintiffs’ status as Republican
Party “outsiders” aligned with the Tea Party could support such a claim, plaintiffs failed
to allege facts that would support an inference that they were treated differently from
other candidates who were similarly situated to them. As the district court noted, the
1
Similarly, plaintiffs’ argument that their rights as voters were infringed and
cannot be remedied by New York Election Law § 16-102 is foreclosed by Rivera-Powell,
wherein we rejected any notion that the plaintiff’s supporters had a due process claim
independent of the plaintiff’s.
3
other candidates that plaintiffs identified whose petitions were accepted were either
supported by a sufficient number of local voters or by members of the Nassau County
Board of Elections, and therefore were not similarly situated to plaintiffs. Although the
question whether other individuals are similarly situated to a plaintiff is ordinarily a
question of fact, see Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014), on a
motion to the dismiss, facts may be gleaned from the complaint and the exhibits attached
thereto. See Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d
Cir. 2010). The district court therefore properly concluded, based on the Board of
Elections minutes attached to the complaint, that plaintiffs’ allegations of discrimination
based on creed or as a “class of one” fail to plausibly state a claim.
We also affirm the district court’s rejection of plaintiffs’ Voting Rights Act § 11(b)
claim for voter intimidation, based on one of the defendants “yelling” at Martin Dekom
that the North Hempstead Republican Convention was not public, though for different
reasons than those stated by the district court. See Olsen v. Pratt & Whitney Aircraft,
Div. of United Techs. Corp., 136 F.3d 273, 275 (2d Cir. 1998) (noting that “we may
affirm on any grounds for which there is a record sufficient to permit conclusions of law,
including grounds not relied upon by the district court” (internal quotation marks
omitted)).2 Plaintiffs’ complaint fails to state a claim that defendants attempted to
2
Contrary to the district court’s ruling, plaintiffs’ claim is not barred by the
Rooker-Feldman doctrine. “[F]ederal plaintiffs are not subject to the Rooker–Feldman
bar unless they complain of an injury caused by a state judgment.” Hoblock v. Albany
County Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005) (emphasis omitted). There is
potentially divergent authority on whether the dismissal of a state cause of action by a
4
intimidate Dekom “for the purpose of interfering with [his] right” to vote, 52 U.S.C.
§ 10101(b), since the complaint alleges that Dekom sought to participate in the North
Hempstead Republican Convention only as a proxy of a party member of the party, and
he was permitted entry when he produced the proxy.
Because plaintiffs’ federal claims under § 1983 all fail, the district court properly
dismissed their claim for conspiracy to violate civil rights under 42 U.S.C. § 1985, which
itself provides no substantive rights. See Traggis v. St. Barbara’s Greek Orthodox
Church, 851 F.2d 584, 587 (2d Cir. 1988). The district court also properly declined to
exercise jurisdiction over the state law claims after determining that all the federal claims
should be dismissed, and therefore properly dismissed the state law claims without
prejudice. See Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 103 (2d Cir. 1998).
Finally, plaintiffs advanced no basis for the district judge to recuse herself, and she
did not abuse her discretion in denying their motion for recusal. See In re Basciano, 542
F.3d 950, 957-58 (2d Cir. 2008). Plaintiffs’ vague allusion on appeal to a conversation
with a law clerk that plaintiffs considered questionable creates no possibility that “a
reasonable person, knowing all the facts, [would] conclude that the . . . judge’s
impartiality could reasonably be questioned.” United States v. Amico, 486 F.3d 764, 775
(2d Cir. 2007) (internal quotation marks omitted); see 28 U.S.C. § 455(a). We therefore
New York court on statute of limitations grounds precludes a subsequent federal suit
under § 1983. Compare Cloverleaf Realty of N.Y., Inc. v. Town of Wawayanda, 572
F.3d 93, 95 (2d Cir. 2009), with Joseph v. Athanasopoulos, 648 F.3d 58, 64-67 (2d Cir.
2011). We need not resolve any tension in our precedent, however, because the dismissal
of plaintiffs’ Voting Rights Act claim is affirmed for the reasons set forth in the text.
5
affirm the district court’s denial of plaintiffs’ recusal motion. Accord, Dekom v. New
York, No. 13-2773-cv, 2014 WL 6480730, at *2 (2d Cir. Nov. 20, 2014) (summary
order).
We have considered plaintiffs’ remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
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225 F.2d 26
96 U.S.App.D.C. 187
Nicolaos HATZISTAVROU, also known as Nickolas Hatzistavrou, Appellant,v.Herbert BROWNELL, Jr., Attorney General of the UnitedStates, Appellee.
No. 12631.
United States Court of Appeals District of Columbia Circuit.
Argued May 5, 1955.Decided June 16, 1955.
[96 U.S.App.D.C. 188] Mr. Joseph J. Lyman, Washington, D.C., for appellant.
Mr. Joseph M. F. Ryan, Jr., Asst. U.S. Atty., with whom Messrs. Leo A. Rover, U.S. Atty., and Lewis Carroll, Asst. U.S. Atty., were on the brief, for appellee.
Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.
DANAHER, Circuit Judge.
1
Appellant, a citizen of Greece, entered the United States under a seamen's passport in February 1945 and resided continuously in this country thereafter until he was arrested on September 23, 1952 on a warrant charging that he had overstayed his visit under the terms of his visa. On December 2, 1952, appellant, on an application form not of record here, asked the Attorney General to suspend deportation. Such relief is authorized under § 19(c) of the Immigration Act of 1917, as amended 8 U.S.C. § 155(c) (1946 Supp. V), 39 Stat. 889. After a hearing on January 9, 1953 an Immigration inquiry officer concluded that appellant was an immigrant not in possession of a valid immigration visa, was not exempted from the presentation of one, and that: 'There was no valid application in this case for suspension of deportation under the Immigration Act of 1917, as amended.' After an order that appellant voluntarily depart or, for failure, that he be deported on April 8, 1955, appellant on March 31, 1955 filed an action seeking declaratory judgment and for review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., and also filed, simultaneously, a motion for a temporary restraining order.
2
The trial judge considered the complaint, the application for the temporary restraining order and its supporting affidavit, no answer having been filed, and, after hearing, found that appellant had been denied a suspension of deportation but had been granted the privilege of voluntary departure, and that appellant had been held deportable 'for the reason that he was not in possession of a valid immigration visa.' The trial judge made conclusions of law that the Attorney General had exercised his discretion in that 'the alternative discretionary relief of voluntary departure was granted' on the authority of Brownell v. Rasmussen, 95 U.S.App.D.C. , 221 F.2d 541, that 'only in a habeas corpus proceeding does this Court possess jurisdiction to review an order of deportation of an alien who does not claim American citizenship'; that jurisdiction under the Administrative Procedure Act or the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, had not been established, and, in any event, that the appellant had failed to set forth allegations, supported by oath, of a cogency which would warrant the issuance of a temporary restraining order. From the order denying appellant's motion for a restraining order entered on April 5, 1955, this appeal was taken.
3
The trial judge in early April could hardly know of the impending decision in Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, decided April 25, 1955, where the Supreme Court disposed of the jurisdictional problem. The majority pointed out that Heikkila v. Barber, 1953, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972, like the cases cited therein, had found dispositive the word 'final' as used in § 19(a) of the Immigration Act of 1917. But the Heikkila case, unlike the Pedreiro case, dealt with a deportation order under the Immigration Act of 1917. The Court noted that although the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq., also provides that deportation orders of the Attorney General shall be 'final,' 'It is more in harmony with the generous review provisions of the Administrative Procedure Act to construe the ambiguous word 'final,' in the 1952 Immigration Act as referring to finality in administrative procedure rather than as cutting off the right of judicial review in whole or in part. And it would certainly not be in keeping with either of these Acts to require a person ordered deported to go to jail in order to obtain review by a court.' Id., 349 U.S. at page 51, 75 S.Ct. at page 594. The Court could scarcely have been more definite than when it said a little farther on, Id., 349 U.S. at page 52, 75 S.Ct. [96 U.S.App.D.C. 189] at page 594: 'Our holding is that there is a right of judicial review of deportation orders other than by habeas corpus and that the remedy sought here is an appropriate one.'
4
The Government commendably and frankly recognized that the Pedreiro decision markedly alters the posture of the case, especially since the order of deportation here was entered under the 1952 Act. Yet it is argued that the Attorney General's discretion had been exercised and exhausted when he entered his order permitting voluntary departure by the alien. Certainly this results in a measure of relief in that the past illegal presence of the alien appellant will not be held against him if he shall later make application to enter the country under a normal quota. But appellant insists that he is entitled to have the Attorney General exercise his discretion as to the prayer for suspension of deportation. He says, in effect, that the Attorney General may properly decide that appellant need not leave the country at all. Perhaps he is right, but we cannot possibly tell with finality for we do not know upon what grounds the Immigration inquiry officer concluded that there 'was no valid application in this case for suspension of deportation * * *.' In aid of our appellate function we should be informed as to the factors relied upon for the conclusion of invalidity or as to the deficiencies which predicated a finding that 'no valid application' was presented.
5
In short, we say this much, that appellant is entitled to have the record disclose the fact, if it is a fact, that the Attorney General actually exercised his discretion as to the prayer for suspension of deportation.1 For all we know, the Attorney General, when he files his answer, or otherwise, may make an adequate showing that he considered the grounds open to him as a predicate for possible action but found that appellant could not meet the required conditions. For now, it will suffice for us to set aside the order of the District Court and to direct that a preliminary injunction be issued restraining deportation of the appellant pending disposition of the complaint on its merits.
6
Remanded for further proceedings.
1
Cf. Marcello v. Bonds, 75 S.Ct. 757
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163 S.W.3d 587 (2005)
Joseph E. ELROD, et al., Appellants,
v.
Rondell STEWART, et al., Respondents.
Nos. WD 64126, WD 64162.
Missouri Court of Appeals, Western District.
May 31, 2005.
*588 Jean A. Maneke, Kansas City, MO, for appellants.
Steven E. Mauer, Kansas City, MO, for respondents.
Before: EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.
ROBERT G. ULRICH, J.
Appellants, residents of the City of Independence, appeal the judgment of the trial court dismissing with prejudice their petition for injunctive relief against the mayor and members of the city council of Independence (Respondents) for violation of the Missouri Sunshine Law, Chapter 610.[1] Appellants contend that the trial court erred in dismissing their petition for failure to state a claim upon which relief can be granted because their petition contained a concise statement of facts showing they were entitled to relief. Appellants also claim the trial court erred in denying their application for change of judge. The judgment of the trial court is reversed, and the case is remanded.
Facts
Appellants filed their first petition on February 27, 2004, for permanent injunctive relief and for assessment of civil fines and penalties for violation of the Missouri Sunshine Law. The petition alleged that Respondents gathered on February 7, 2004, at the Englewood Cafe in Independence; that at the gathering, "public business" was discussed; that because "public business" was discussed at the meeting, the meeting constituted a "public meeting"; and that Respondents failed to post notice for the public meeting or keep minutes of the meeting. Respondents filed a motion to dismiss for failure to state a claim contending that (1) the Missouri Sunshine Law expressly states that informal gatherings of members of a governmental body for social or ministerial purposes where there is no intent to avoid the Sunshine Law are not "public meetings," and (2) Appellants failed to allege the content of any alleged statements that constitute "public business." The trial court *589 dismissed the petition without prejudice on March 21, 2004, following a hearing.[2]
On March 31, 2004, Appellants filed another petition for permanent injunctive relief and for assessment of civil fines and penalties under a new case number. The new case was coincidentally assigned to the same judge who heard the original case. The petition (hereinafter "second petition") set out the same allegations as the original petition. Additionally, under the allegation that "public business" was discussed at the gathering, Appellants added language that they are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery to show that Respondents discussed the salary to be paid to the interim city manager and/or the city budget and/or other items currently before the city council members. Respondents filed a motion for the court's order to show cause why the matter should not be dismissed and sanctions imposed claiming the petition still failed to state a claim upon which relief could be granted. The trial court entered its order to show cause on April 5, 2004, setting a hearing on the show cause order for April 12, 2004.
Appellants filed an application for change of judge on April 8, 2004. The trial court denied Appellants' application for change of judge on April 12, 2004, finding that the case involves substantially the same parties and claims as the prior case on which the court had already heard evidence. The same day, the trial court issued a notice of intent to enter an amended judgment of dismissal and set a hearing on April 14, 2004. Following the hearing, the trial court entered its amended judgment of dismissal with prejudice. In the amended judgment, the trial court found that under Rule 75.01, it retained jurisdiction over its March 19, 2004, judgment of dismissal without prejudice for thirty days, that it was treating Appellants' second petition as an amended petition from the first case, and that Appellants' second petition failed to plead facts that would entitle them to relief. This appeal followed.
Change of Judge
In their second point on appeal, Appellants claim that the trial court erred in denying their request for a change of judge. They contend the application was timely filed and made prior to any appearance before the trial judge and was, thereby, compliant with Rule 51.05. Because this point is dispositive, point one is not addressed.
The right to disqualify a judge is "one of the keystones of our legal administrative edifice." State ex rel. Kramer v. Walker, 926 S.W.2d 72, 75-76 (Mo.App. W.D.1996)(quoting State ex rel. Wedemeier v. McKenzie, 889 S.W.2d 99, 100-101 (Mo.App. E.D.1994)). Rule 51.05 provides for an automatic change of judge when timely requested. It provides a litigant a virtually unfettered right to unilaterally disqualify a judge irrespective of the reason. Kramer, 926 S.W.2d at 76. When a proper and timely application has been made for a change of judge, the trial court has no discretion but to certify the case to another judge. Id. In other words, the filing of a timely application for change of judge deprives the court of further jurisdiction to do anything in the case other than grant the application. State ex. rel. *590 Anderson v. Frawley, 923 S.W.2d 960, 961 (Mo.App. E.D.1996).
Appellants rely on Pender v. Pender, 634 S.W.2d 244 (Mo.App. W.D.1982), in arguing that their application for change of judge was timely. In that case, Mother filed a motion to modify the decree of dissolution as to visitation. Pender, 634 S.W.2d at 245. Father filed an application for change of judge under Rule 51.05 and a motion to dismiss. Id. The case was assigned to a new judge, and the new judge dismissed the motion to modify without prejudice. Id. Twelve days later, Mother filed a new motion to modify the decree of dissolution as to visitation. Id. Father once again applied for a change of judge but was denied. Id. Following a trial on the merits, Father appealed claiming that the court was bound under Rule 51.05 to grant a change of judge. Id. Mother argued that her second motion to modify was effectively an amendment of the dismissed motion in the same civil action so that the change of judge granted to Father on the first motion exhausted the allowance to Father under Rule 51.05. Id. at 246.
This court agreed with Father. It stated that because neither a request for leave to amend was made nor an order to allow the continuation of the action by amendment or otherwise was entered, the order dismissing the first motion to modify terminated the entire action, not just the petition. Id. Thus, the subsequent motion to modify was an altogether new civil action and entitled Father anew to a change of judge under Rule 51.05. Id. But see Peet v. Randolph, 103 S.W.3d 872, 876 (Mo.App. E.D.2003)(where trial court entered an order of dismissal without prejudice, the order was an interlocutory order of dismissal, the trial court did not lose jurisdiction, and the plaintiff's filing of a second petition had no effect on the court's jurisdiction of the first action and was barred under the "pending action doctrine.")
Respondents, on the other hand, claim that the second petition filed by Appellants was actually an amended petition in the original proceeding over which the trial court retained jurisdiction under Rule 75.01. Rule 75.01 provides that a trial court retains jurisdiction over a matter for thirty days after entry of judgment to amend, modify, vacate, reopen, or correct its judgment. The judgment then becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed. Rule 81.05(a)(1). Generally, a dismissal without prejudice is not a final judgment and, therefore, cannot be appealed. Bentch v. Collins, 28 S.W.3d 453, 456 (Mo.App. E.D.2000). In certain circumstances, however, dismissal without prejudice is final and appealable. Id. Specifically, dismissal without prejudice for failure to state a claim upon which relief can be granted can be tantamount to a determination that the plaintiff has no cause of action and can result in a final, appealable judgment. Id. Where a trial court makes such determination and undertakes to dismiss a petition for failure to state a claim upon which relief can be granted, the court's dismissal must meet the requirements of Rule 74.01(a) for a judgment. Lowery v. Air Support Int'l, Inc., 971 S.W.2d 323, 324 (Mo.App. S.D.1998). Rule 74.01(a) provides that a judgment is entered when (1) a writing (2) signed by the judge (3) and denominated "judgment" (4) is filed. Respondents contend that the trial court's March 21, 2004, dismissal for failure to state a claim upon which relief can be granted met the requirements of Rule 74.01(a); Rule 75.01, therefore, applied; and the trial court retained jurisdiction over the matter for thirty days. Thus, they claim, Appellants' second *591 petition filed within thirty days was effectively a motion to set aside the March 21, 2004, judgment and to amend the original petition.
Respondents are correct that the March 21, 2004, judgment of dismissal without prejudice met the requirements of Rule 74.01(a) and that the trial court retained jurisdiction over the judgment for thirty days under Rule 75.01. Rule 75.01 did not, however, authorize the trial court to treat Appellants' second petition filed on March 31, 2004, as an amended petition in the original case. In filing their second petition, Appellants were not asking the trial court to set aside its March 21 judgment and to allow them to amend the petition. Appellants elected not to seek amendment of their original petition or to appeal the judgment dismissing their original petition but, instead, elected to file a new petition in a new civil action. Had Appellants filed their second petition more than thirty days after entry of the judgment dismissing their first petition, the case would be considered a new civil action. Rule 75.01 did not convert Appellants' second petition filed under a new case number into an amended petition in the first case simply because Appellants filed their second petition within thirty days of the March 21, 2004, judgment and the petition happened to be assigned to the same judge as the first.
Rule 67.01 permits a party to bring another civil action for the same cause that has been dismissed without prejudice unless the civil action is otherwise barred. Bentch, 28 S.W.3d at 456. While a dismissal without prejudice for failure to state a claim may operate to preclude the plaintiff from bringing another action for the same cause and may be res judicata of what the judgment actually decided, the dismissal does not preclude the plaintiff from reasserting the claim on new factual allegations. Id. Rule 67.01 does not, however, permit refiling a petition previously determined not to state a claim. Id. "A dismissal for failure to state a cause of action is sufficient to raise res judicata in a later proceeding, and it is immaterial that the wording of the counts has been changed in an apparent attempt to correct the defects in the original pleading." Id. at 456-57 (quoting Greening v. Klamen, 719 S.W.2d 904, 906 (Mo.App. E.D.1986)).
Appellants' second petition was filed under a new case number and contained different allegations, albeit one addition to the allegation of "public business." Whether the second petition actually contained new factual allegations, is precluded by res judicata, or is otherwise barred are not issues currently before this court. Rather, Appellants filed an application for change of judge shortly after filing their second petition, and the question is whether their application was timely.
Rule 51.05(b) sets out the time for filing an application for change of judge:
The application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearance before the trial judge.
Appellants' application for change of judge was filed within the time limit specified in the first sentence of Rule 51.05(b). Appellants' second petition was filed on March 31, 2004, and thereafter, Respondents filed a motion for an order to show cause. The trial court entered an order to show cause on April 5, 2004, setting a hearing on the order for April 12, 2004. Although the record does not indicate when the trial judge was designated, obviously the trial judge was designated on April 5, 2004, at *592 the latest. On April 8, 2004, Appellants filed their application for change of judge well within sixty days from service of process or thirty days from the designation of the trial judge. Additionally, the second sentence of Rule 51.05(b) is inapplicable because a trial had not yet commenced in this case. Appellants' application for change of judge was timely under Rule 51.05(b).
Respondents argue that the trial court did not err in denying Appellants' application for change of judge on April 12, 2004, because the request for the court's show cause order regarding the second petition was already commenced at that time. They rely on Jenkins v. Andrews, 526 S.W.2d 369, 373 (Mo.App.1975), which held that the timely filing of an application for change of judge cannot deprive the trial court of jurisdiction to rule upon matters then under submission. In Jenkins, defendants filed a motion for summary judgment or, in the alternative, a motion to dismiss. Id. at 371. The motions, evidence, and argument of counsel were presented to the trial court, and the court indicated its intention to overrule the motion for summary judgment but to sustain the motion to dismiss unless an amended petition were filed. Id. Accordingly, plaintiffs asked for leave to amend and the trial court granted them thirty days to do so. Id. Within the thirty-day period, plaintiffs filed an application for change of judge. Id. After argument on the application, the trial court dismissed plaintiff's petition and then granted the request for change of judge. Id.
This court affirmed the action of the trial court explaining:
To permit appellants to disqualify the judge, rather than to file their amended petition, would nullify the hearing which had been held, result in a deplication of the proceeding already undertaken and permit appellants to take advantage of a tentative expression of opinion by the trial judge on the matter submitted to avoid his action upon it. Such result is not required by Rule 51.05. . . . [T]he action of the trial court in ruling on the motion previously submitted before acting on the disqualification was not error.
Id. at 373.
This case is distinguishable from Jenkins. At the time of the filing of Appellants' application for change of judge on April 8, 2004, no matter was under submission to the trial court. While the trial court entered an order to show cause on April 5, 2004, a hearing on the order was not set until April 12, 2004. Appellants filed their application for change of judge prior to the hearing on the show cause order. Jenkins, therefore, does not apply here. See Natural Bridge Dev. Co. v. St. Louis County Water Co., 563 S.W.2d 522, 526 (Mo.App.1978)(where at the time the application for change of judge was filed, no matter was under submission to the trial court although a hearing on an order to show cause why a temporary injunction should not be issued was scheduled for a later date).
In conclusion, Appellants' application for change of judge was timely and should have been granted. The amended judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
SMITH, C.J., and LOWENSTEIN, J., concur.
NOTES
[1] All statutory references are to RSMo Cum. Supp. 2004 unless otherwise indicated.
[2] On March 25, 2004, one of the Appellants filed a petition pursuant to Rule 57.02 for the purpose of taking deposition testimony of Respondents to discover sufficient facts to support Appellants' allegation that public business was discussed at the February 7, 2004, gathering. The Appellant dismissed this petition without prejudice on March 31, 2004.
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676 N.W.2d 283 (2004)
In re Petition of Elliot ROTHENBERG for Review of a Decision of the Board of Continuing Legal Education.
No. A03-884.
Supreme Court of Minnesota.
March 25, 2004.
*285 Elliot C. Rothenberg, Pro se, Minneapolis.
Michael A. Hatch, State Attorney General, Steven M. Gunn, Assistant Attorney General, Ruth E. Flynn, Assistant Attorney General, St. Paul, for Respondent.
Peter A. Swanson, Golden Valley, for Amicus Curiae.
Jennifer E. Giesen, Kathleen Hagen, Minneapolis, for Amicus Curiae MN Disability Law Center.
Heard, considered, and decided by the court en banc.
OPINION
ANDERSON, PAUL H., J.
Petitioner Elliot Rothenberg is a lawyer currently licensed to practice law in the State of Minnesota. During his most recent three-year reporting period for continuing legal education credits, Rothenberg chose not to comply with Rule 9(A)(2) of the Rules of the Minnesota Board of Continuing Legal Education (RMBCLE). Rule 9(A)(2) requires lawyers to submit an affidavit showing that they have completed *286 at least two hours of courses on the elimination of bias in the legal profession and in the practice of law. At a hearing before the Board of Continuing Legal Education, Rothenberg asserted that the elimination of bias requirement is unconstitutional. The Board found that Rothenberg was in noncompliance with the elimination of bias requirement and recommended that his license be placed on restricted status. We conclude that the elimination of bias requirement and the Board's approval of continuing legal education courses to satisfy the requirement do not violate Rothenberg's constitutional rights and order Rothenberg to comply with Rule 9(A)(2), RMBCLE, by July 1, 2004, or have his license placed on involuntary restricted status.
On September 15, 1995, this court established by order an elimination of bias requirement as part of the continuing legal education program in Minnesota.[1] At the same time, we authorized the Board of Continuing Legal Education to create a Special Continuing Legal Education Advisory Committee to study definitions, course approval standards, and recommend rules for the requirement.[2] On January 30, 1996, the Advisory Committee submitted an Interim Report, which noted concerns and recommendations from members of the bar regarding the elimination of bias requirement. Many bar members recommended that the rules should not only permit the approval of courses addressing issues identified in the Minnesota Supreme Court Task Force Report on Race Bias, but also permit courses addressing other viewpoints on the extent of bias in the legal profession. Members cautioned against drafting rules that would "require attorneys to attend courses contrary to the attorneys' political or religious beliefs," and recommended the court adopt a "broad definition of bias, permitting the approval of any course designed to help attorneys become aware of bias in society in general." In its Final Report, the Advisory Committee recommended rules and definitions for the administration of the elimination of bias requirement as part of the continuing legal education program in Minnesota. We adopted rules for the elimination of bias requirement, which are now contained in the Rules of the Minnesota Board of Continuing Legal Education.[3]
Rule 2(I) of the Rules of the Minnesota Board of Continuing Legal Education defines continuing legal education courses on the elimination of bias in the legal profession and in the practice of law as courses that are *287 directly related to the practice of law that [are] designed to educate attorneys to identify and eliminate from the legal profession and from the practice of law biases against persons because of race, gender, economic status, creed, color, religion, national origin, disability, age or sexual orientation.
As with all CLE courses, to qualify for credit an elimination of bias course must be approved by the Board. Rule 4, RMBCLE. To be approved, a course: must be identified on an application and described in a narrative as fulfilling the elimination of bias requirement; must focus on issues in the legal profession and in the practice of law and not on issues of bias in society in general; and must not address the substantive law of illegal discrimination unless the course meets one or more of the learning goals for elimination of bias courses. Rule 6(B), RMBCLE.
The learning goals of the elimination of bias requirement are:
1. [T]o educate attorneys about the elimination of bias or prejudice in the legal profession, in the practice of law, and/or in the administration of justice;
2. [T]o educate attorneys regarding barriers to hiring, retention, promotion, professional development and full participation of lawyers of color, women, and those persons referenced in the "Course in the elimination of bias in the legal profession and in the practice of law" definition Rule 2(I) of the Rules of the CLE Board, both in the public and private sector of the legal profession and in the practice of law;
3. [T]o educate attorneys about the problems identified in the Supreme Court's Race Bias and Gender Fairness Task Force Reports, as well as in other studies, reports or treatises which describe bias and prejudice in the legal profession, in the practice of law, and/or in the administration of justice.
Appendix I, Course Approval Form, RMBCLE.
In his affidavit to the Board for his July 1, 1999 through June 30, 2002 reporting period for continuing legal education credits,[4] Rothenberg reported zero course hours approved for elimination of bias credit. Following a reminder and a final warning, the Board sent Rothenberg a notice of noncompliance. In accordance with Rule 11, RMBCLE, Rothenberg requested a hearing before the Board.
The hearing was held on June 19, 2003. At the hearing, Rothenberg did not dispute his failure to complete two course hours on the elimination of bias. Rothenberg asserted that the elimination of bias requirement was unconstitutional, opining that the findings and conclusions of the Race Bias Task Force Report, which formed the basis for the elimination of bias requirement, were based on dubious claims of bias in Minnesota's justice system. Rothenberg also argued that certain elimination of bias courses promote political beliefs he disagrees with and unconstitutionally promote religion. In particular, Rothenberg referenced courses that he claimed give preferential treatment to Islam and oppose the United States' efforts against terrorism, as well as capital punishment courses that he alleged presented only one side of the issue.
The Board issued findings of fact and conclusions of law, concluding that Rothenberg was in noncompliance with the elimination of bias requirement. The Board did not address Rothenberg's constitutional *288 arguments and recommended that if Rothenberg did not seek review of its decision, his license be placed on involuntary restricted status in accordance with Rule 11(F), RMBCLE.
Rothenberg filed a petition for review with this court pursuant to Rule 11(G), RMBCLE, which provides that we "shall give such direction, hold such hearings and make such order[s] as [we] may in [our] discretion deem appropriate." We granted Rothenberg's petition to hear his constitutional arguments, ordering Rothenberg to proceed as appellant and the Board to proceed as respondent.
Rothenberg argues in his brief that the elimination of bias requirement "has turned into an engine of divisive political ideology." As evidence, Rothenberg identifies approximately 10 courses that he claims represent the politicization of the requirement.[5] Rothenberg specifically challenges the Board's approval of certain courses that discuss Islam. Rothenberg argues that these courses fail to discuss issues such as "mass worldwide terrorism, * * * the recruitment of homicide-suicide bombers, aggressive religious jihad, * * * teaching children virulent hatred of non-Muslims and the U.S., misogyny, and slave trading all in the name of religion." The Board, in response, does not address the courses Rothenberg challenges, but points out that Rothenberg has not objected to hundreds of other courses approved for elimination of bias credit during his reporting period.[6]
At oral argument, Rothenberg conceded that "there is prejudice and bias in society" and among lawyers as well. Rothenberg agreed that bigotry, prejudice, and bias "ought to be combated at every turn." Furthermore, he acknowledged that "lawyers and judges should educate themselves, should * * * reflect on these issues, should want to ensure that their conduct as leaders in society and leaders in government does not hurt anyone [and] does not deny anyone's rights on the basis of bigotry or prejudice or bias." Rothenberg also conceded during oral argument that there are "a vast variety of courses" on the elimination of bias. Nevertheless, Rothenberg argued that the operation of the elimination of bias requirement is unconstitutional because "all the courses have an ideological content" and the presence of any ideological courses or any courses discussing religion is unjustified. Therefore, Rothenberg argues, it would be unconstitutional for our court to punish a lawyer for failing to attend courses on the elimination of bias.
I.
We first consider whether the elimination of bias requirement violates *289 Rothenberg's First Amendment right to freedom of speech.[7] Rothenberg has framed this issue in different ways, arguing that (1) he is forced to pay for and attend courses presenting beliefs and ideas with which he disagrees, (2) the elimination of bias requirement was designed on an ideological basis, and (3) the Board's approval of courses is ideologically based. We address each of these arguments in the context of the First Amendment's protection against compelled speech or association.
The United States Supreme Court has held that the First Amendment prevents the government from compelling individuals to pay subsidies for speech to which they object. See Keller v. State Bar of California, 496 U.S. 1, 14, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). The Court has recognized that, though there is a need for compulsory dues in contexts such as a labor union or a bar association, it may violate the First Amendment to force a person to contribute money toward a cause with which he or she disagrees. Id.; Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). The "heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State." Abood, 431 U.S. at 234-35, 97 S.Ct. 1782.
In Keller, lawyers challenged the use of state bar dues to fund "ideological or political activities" such as legislative lobbying of political issues. 496 U.S. at 4, 110 S.Ct. 2228. The Supreme Court held that compelled association through an integrated bar was justified by California's interest in "regulating the legal profession and improving the quality of legal services."[8] 496 U.S. at 13, 110 S.Ct. 2228. The Court held that dues could be collected from all members to fund any activities germane to those goals. Id. at 14, 110 S.Ct. 2228. But, the Court explained, members of the bar could not be compelled to fund activities that were not germane to the goals of regulating the legal profession or improving the quality of legal services and were of an ideological nature. Id. The "guiding standard" for whether expenditures are permissible is whether the challenged expenditures are "necessarily or reasonably incurred for the purpose of regulating the legal profession or `improving the quality of the legal service available to the people of the State.'" Id. (quoting Lathrop v. Donohue, 367 U.S. 820, 843, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961)).
Rothenberg argues that the elimination of bias requirement is unconstitutional because the First Amendment protects him from being compelled to subsidize speech he finds objectionable. However, there is no evidence that Rothenberg is forced to pay for a course or courses discussing ideological or political ideas that he opposes. Rothenberg has identified courses that he disagrees with based on their titles and descriptive materials, but there are hundreds of courses offered to which he has not voiced any objection and that he could take in order to complete the elimination of bias requirement. Rothenberg conceded in oral argument that there are "a vast variety of courses" on the elimination of bias. We conclude that the elimination *290 of bias requirement does not force Rothenberg to pay for courses presenting ideas with which he disagrees.
Moreover, Rothenberg's statements at oral argument indicate that he agrees that eliminating bias in the legal profession and in the practice of law would improve the quality of legal services in Minnesota. Rothenberg concedes that there is prejudice and bias in society, that it ought to be combated at every turn, and that lawyers should ensure that their conduct does not hurt anyone and does not deny anyone's rights on the basis of bigotry, prejudice, or bias. We agree. Based on our review of the elimination of bias requirement, we conclude under the Keller analysis that this requirement is germane to the goals of regulating the legal profession and improving the quality of legal services in Minnesota.
Rothenberg also argues that the First Amendment's protection of an individual's freedom of conscience makes the elimination of bias requirement unconstitutional. First Amendment rights may be violated if a state infringes upon an "individual['s] freedom of mind" or conscience. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); accord Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (holding that New Hampshire could not punish an individual for blocking out part of his automobile license plate containing the state motto, "Live Free or Die"); see also Hurley v. Irish-Am. Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (holding forced association violated the First Amendment when state law forced parade organizers to allow a group with beliefs with which the organizers did not agree to participate in the expressive activity of a parade). "Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views." United States. v. United Foods, Inc., 533 U.S. 405, 410, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001).[9]
*291 As discussed above, however, there is no evidence that Rothenberg is forced to attend a course discussing ideas with which he disagrees. Moreover, the elimination of bias requirement is fundamentally different from the activities and behavior addressed by the Supreme Court in Wooley; Barnette, and Hurley. In those cases, individuals were forced to affirmatively express agreement with or pledge allegiance to particular beliefs. The grounds for a First Amendment violation in Wooley and Barnette were the right to protect autonomy over one's mind; in Hurley, the Supreme Court addressed the right of an individual to protect his image in situations where third parties will interpret expressive behavior as an expression of that individual's own beliefs. In contrast, the elimination of bias requirement does not force Minnesota lawyers to say "I believe in X" or manifest agreement with anything. It only requires that Minnesota lawyers be passively exposed to certain ideas by attending courses on the elimination of bias in the legal profession and in the practice of law. For this reason, the California Court of Appeals, which appears to be the only other court to have considered a similar issue, held that a California requirement that lawyers attend classes on elimination of bias does not violate the First Amendment. See Greenberg v. State Bar of California, 78 Cal.App.4th 39, 92 Cal. Rptr.2d 493, 496 (2000) (stating that lawyers are merely "passively exposed to classes relating to these subjects, without being compelled to manifest any agreement or allegiance to their goals or other political agendas."), rev. denied (Apr. 26, 2000).
Rothenberg asserts that being forced to pay for a course would make him more than passively exposed to those ideas. However, having concluded that the elimination of bias requirement is germane to the goal of regulating the legal profession and improving the quality of legal services in Minnesota, we also conclude that requiring lawyers to pay for such a course does not raise such concerns.
Rothenberg's other arguments, that the elimination of bias requirement was designed on an ideological basis or that the Board has approved courses on an ideological basis, also lack any support. Rothenberg has presented no evidence that the elimination of bias requirement was designed on an ideological basis or that the Board has approved courses on an ideological basis.[10] In the context of Rothenberg's argument, "ideological" appears to be shorthand for something with which he disagrees. Merely asserting that the elimination of bias requirement has ideological origins or is applied ideologically does not create a cognizable claim.
Moreover, we disagree with Rothenberg's characterization of the elimination of bias requirement as necessarily seeking to inculcate beliefs. Courses approved for elimination of bias credit must be "directly related to the practice of law" and "designed *292 to educate attorneys to identify and eliminate [bias] from the legal profession and from the practice of law." Rule 2(I), RMBCLE. These courses must be designed to meet educational goals such as educating lawyers regarding barriers to hiring, retention, promotion, and professional development of lawyers of color, women, and others. Such goals illustrate that the elimination of bias requirement seeks to change behavior by informing lawyers how to identify and eliminate bias. For purposes of reference, a course presented in 2001 and discussed in the record before us was entitled "Understanding Deaf Culture and Working with Deaf Clients." The materials for this course state that its objectives include identifying specific needs of people who are deaf with respect to communication and adaptive equipment and identifying ways of enhancing communication.
We conclude that the elimination of bias requirement serves the legitimate function of informing lawyers how to identify and eliminate bias in the legal system. We recognize Rothenberg's disagreement with the views expressed by some of the approved elimination of bias courses. However, our decision to prescribe rules allowing a broad array of courses that could qualify for elimination of bias credit was made after taking into consideration concerns by members of the bar who cautioned against having a limited view of what constitutes bias.
For the foregoing reasons, we hold that the elimination of bias requirement does not violate Rothenberg's First Amendment right to freedom of speech. We acknowledge, however, that Rothenberg's appeal highlights the need to have courses that are well designed to meet the goals set forth and the definitions provided by the Rules of the Minnesota Board of Continuing Legal Education. Accordingly, we urge the Board to exercise continued vigilance as it reviews and approves courses for the elimination of bias credit.
II.
We next address Rothenberg's argument that the elimination of bias requirement violates the Establishment Clause of the First Amendment because the Board has approved courses that promote religion. The First Amendment prevents the government from making any law "respecting an establishment of religion * * *." U.S. Const. amend. I. A state law, though facially nondiscriminatory, may violate the Establishment Clause if it fails to meet a three-pronged test: (1) it must have a secular purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
Rothenberg does not appear to contest that the elimination of bias requirement has a secular purpose, but argues that the elimination of bias requirement violates the Establishment Clause because the Board has approved courses that give "special emphasis to propagating approval of or at least sympathy for Islam." Rothenberg argues that there are no courses on anti-Semitism, for example, but there are courses on Islam such as "Understanding Islam and Working with Muslim Clients" and "Enhancing Your Knowledge of Somali and Islamic Cultures." Materials for these courses illustrate that they do include discussion of the religious tenets and values of Islam in an effort to educate and inform Minnesota lawyers in order to allow them to better serve their clients. Rothenberg takes issue with the courses' lack of discussion of Islamic-based terrorism, but he fails to articulate why such a discussion *293 would be appropriate in courses with the purpose of improving lawyers' ability to work with Muslim clients in order to eliminate biases in the legal system that Rothenberg acknowledges exist among lawyers. Based on the course materials and the record before us, we conclude that the Board's approval of these courses does not have the primary effect of advancing or inhibiting religion. See Zelman v. Simmons-Harris, 536 U.S. 639, 683-84, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (holding school voucher program enacted for valid secular purpose and facially neutral toward religion did not violate the Establishment Clause because it did not provide a preference for religion.)
Rothenberg concedes, and the record demonstrates, that lawyers have a wide variety of courses from which to choose to fulfill the elimination of bias requirement. It appears that only a few out of the hundreds of these courses discuss religious beliefs. We conclude that the fact that lawyers have the opportunity to take courses on the elimination of bias that discuss religion in the context of educating lawyers to better serve their clients does not excessively entangle the state in religion. See School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 226, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (holding that a state law requiring the reading of verses from the Bible and the recitation of the Lord's Prayer at the beginning of each school day was unconstitutional; distinguishing this activity from studying the Bible in a literature or comparative religion course, which would be permissible).
Accordingly, we hold that, when meeting the elimination of bias requirement, the Board's approval of certain courses that include a discussion of religion in the context of eliminating bias in the legal profession and in the practice of law does not violate the Establishment Clause.
III.
Rothenberg also asserts that the elimination of bias requirement, as applied, violates the Freedom of Conscience Clause of the Minnesota Constitution. Article I, section 16 of the Minnesota Constitution provides:
Freedom of conscience; no preference to be given to any religious establishment or mode of worship. The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.
In State v. Hershberger, we applied the Freedom of Conscience Clause to afford greater protection for religious liberties than the First Amendment. 462 N.W.2d 393 (Minn.1990). We held that a state statute requiring the display of a slow-moving vehicle emblem was unconstitutional as applied to Amish defendants because the statute violated the defendants' freedom of conscience. Id. Hershberger was decided on remand after the Supreme Court vacated our earlier decision holding that the statute violated the defendants' *294 First Amendment free exercise rights. Minnesota v. Hershberger, 495 U.S. 901, 110 S.Ct. 1918, 109 L.Ed.2d 282 (1990).
Rothenberg does not present any arguments why the elimination of bias requirement violates his freedom of conscience he only asserts that the clause grants more protection than the First Amendment. Rothenberg cites Rasmussen v. Glass, in which the Minnesota Court of Appeals held that a city ordinance requiring a restaurant owner to deliver food to a medical facility that performed abortions, which the owner strongly opposed, violated the owner's rights under the Freedom of Conscience Clause. 498 N.W.2d 508, 516 (Minn.App.1993). Rasmussen, like Hershberger, applied the compelling state interest balancing test to conclude that a state law burdened an individual's exercise of religion. It is not clear to us, however, how the elimination of bias requirement could burden Rothenberg's free exercise of religion. As we have already concluded, Rothenberg had numerous choices of courses to meet the elimination of bias requirement and he has not shown that he had no choice but to violate his freedom of conscience. Accordingly, we hold that, when meeting the elimination of bias requirement, the Board's approval of courses that include a discussion of religion in the context of eliminating bias in the legal profession and in the practice of law does not violate Rothenberg's rights under article I, section 16 of the Minnesota Constitution.
IV.
Having concluded that the elimination of bias requirement does not violate Rothenberg's constitutional rights, we are left with the Board's conclusion that Rothenberg is in noncompliance with Rule 9(A)(2), RMBCLE. Because Rothenberg does not dispute that he is in noncompliance with the requirement, we adopt this conclusion and must decide the appropriate action to resolve this case. See Rules 11(F) & 11(G), RMBCLE. In making this determination, we are mindful of the fact that Rothenberg is a long-time member of the Minnesota bar in good standing and has made good faith arguments in challenging the constitutionality of the elimination of bias requirement. We are also mindful that the Rules of the Minnesota Board of Continuing Legal Education do not provide a method for a lawyer with concerns about the content of continuing legal education courses to challenge these courses and that failing to comply with the requirements and requesting a hearing before the Board was, in this case, a way for Rothenberg to express his concerns.
Therefore, we order that petitioner Elliot Rothenberg comply with the elimination of bias requirement for his July 1, 1999 through June 30, 2002 continuing legal education reporting period. He may do so by attending a qualifying course or courses and by submitting an Affidavit of CLE Compliance for this period by July 1, 2004 in accordance with Rule 9(A)(2), RMBCLE. If Rothenberg fails to comply with this order by such date, his license shall be placed on involuntary restricted status as defined by Rule 2(L), RMBCLE, subject to the restrictions of Rule 12, RMBCLE.
It is so ordered.
NOTES
[1] This court has the inherent power to regulate the practice of law in Minnesota. Sharood v. Hatfield, 296 Minn. 416, 422-23, 210 N.W.2d 275, 279 (1973). Additionally, Minn. Stat. § 480.05 (2002) provides that we are to "prescribe, * * * amend and modify * * * rules governing the examination and admission to practice of attorneys at law and rules governing their conduct in the practice of their profession * * *."
[2] The Board of Continuing Legal Education has supervisory authority over the administration of the Rules of the Minnesota Board of Continuing Legal Education, including the authority to approve courses and programs to satisfy the educational requirement of the rules, subject to the general direction of this court. Rule 3(D), RMBCLE.
[3] On April 17, 2000, we adopted the Rules of the Minnesota Board of Continuing Legal Education, effective July 1, 2000, which repealed the Rules of the Minnesota Supreme Court and the State Board for Continuing Legal Education of Members of the Bar, which had governed continuing legal education requirements. By Order dated December 11, 2003, we prescribed and promulgated Amendments to the Rules of the Minnesota Board of Continuing Legal Education, effective February 1, 2004. This opinion cites to the rules, as amended, effective February 1, 2004.
[4] The Minnesota Office of Attorney Registration specifies a three-year period for each lawyer's continuing legal education reporting period. A lawyer must submit an affidavit within 60 days of the close of this three-year period. Rule 9(B), RMBCLE.
[5] These courses include: "Representing Muslim and Arab Clients After 9-11: Can the Sixth Amendment Right to Counsel Survive?"; "`With Justice for All'An Ethics & Elimination of Bias CLE Featuring Morris Dee"; "Civil Liberties in a Post 9/11 World"; "Impeach Justice Douglas!"a theatrical performance focusing on several issues with which Justice William O. Douglas was involved during his tenure on the U.S. Supreme Court; and "Presumed Guilty: Eliminating Bias in the Legal System."
[6] The precise number of other courses presented is unclear. Between July 1, 1999 and June 30, 2002, at least 700 courses were presented for at least one hour of elimination of bias credit in Minnesota. Many of these courses were the same or similar, but the number of different courses, based on the evidence presented to us, was at least 150. These courses appear to encompass a broad range of issues, including "Women in Law Firms," "Working With Immigrant Clients: Cultural and Language Issues," "Disability in the Law," and "Understanding the Special Needs of the Elderly/Disabled," to name just a few.
[7] Rules promulgated by this court are subject to the requirements of the First Amendment. See Republican Party of Minnesota v. White, 536 U.S. 765, 788, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).
[8] An "integrated bar" is an "association of attorneys in which membership and dues are required as a condition of practicing law in a State." Keller, 496 U.S. at 5, 110 S.Ct. 2228.
[9] Amicus curiae Peter Swanson argues that the failure to allow lawyers to opt out of the requirement makes the elimination of bias requirement unconstitutional because lawyers are a "captive audience." See also Kari M. Dahlin, Actions Speak Louder Than Thoughts: the Constitutionally Questionable Reach of the Minnesota CLE Elimination of Bias Requirement, 84 Minn. L.Rev. 1725, 1747-49, 1755 (2000). The captive audience doctrine is based on the notion that, in certain circumstances, the unwillingness of persons to receive a message outweighs another's right to speak. See Marcy Strauss, Redefining the Captive Audience Doctrine, 19 Hastings Const. L.Q. 85, 86-87 (1991). The Supreme Court has applied the concept of a captive audience to protect an individual when he or she receives an unwanted message in the privacy of one's home. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 72, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), or when the government is attempting to prevent hate speech, nudity, or other offensive speech in order to protect certain persons from exposure to it in public. See Lehman v. City of Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (holding constitutional a city's decision to not allow political or public-issue advertisements on its buses; a plurality relying in part on the fact that the riders of the bus would be captive to such advertising); Cohen v. California, 403 U.S. 15, 23, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (holding unconstitutional the conviction of a defendant for disturbance of the peace for wearing a jacket bearing offensive words in a courthouse despite persons in a courthouse being captive to the message). We have found no case where the Supreme Court has applied the captive audience doctrine in the "negative" sense, that is, where the government requires an individual to be "captive" as opposed to protecting the individual from being captive. Assuming arguendo that the captive audience doctrine is relevant in the context of this case, we believe that it raises essentially the same First Amendment concerns that Rothenberg makes when he argues that he is unconstitutionally forced to attend elimination of bias courses.
[10] To support his assertion at the hearing before the Board, Rothenberg cited to an article by Richard Posner entitled An Army of the Willing, The New Republic, May 19, 2003, at 27; and an article by Jonathan Kay entitled Crime by the Numbers, Commentary, April 2003, at 73. Neither of these articles discusses the Race Bias Task Force Report nor provides any basis for the assertion that the elimination of bias requirement is ideologically-based, much less unconstitutional. In his brief to this court, Rothenberg cites to a newspaper article that discusses generally the Race Bias Task Force Report. Dave Peterson and Paul Gustafson, Accuracy or Advocacy? Bias Report Challenged, Minneapolis Star Trib., June 27, 1993, at 1B.
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74 Wn. App. 237 (1994)
872 P.2d 1115
THE STATE OF WASHINGTON, Respondent,
v.
RICHARD A. DYSON, Appellant.
No. 29319-2-I.
The Court of Appeals of Washington, Division One.
May 16, 1994.
Matthew R. Miller and Theresa Doyle of Washington Appellate Defender Association, for appellant.
Norm Maleng, Prosecuting Attorney, and Michael Lang, Deputy, for respondent.
PEKELIS, A.C.J.
Richard Dyson (Dyson) appeals his conviction for one count of telephone harassment pursuant to RCW 9.61.230, arguing that: (1) RCW 9.61.230(1) and (2) are unconstitutionally overbroad; (2) RCW 9.61.230(2) is unconstitutionally vague; (3) the evidence was insufficient to support each of the alternate means of proving telephone harassment; and (4) he was denied his constitutional right to a unanimous jury verdict. We affirm.
The facts leading up to Dyson's conviction began in 1980 when Dyson met Beverly Larson (Larson) with whom he became involved in a romantic relationship that lasted approximately 4 years. Apparently unable to accept the fact that the relationship had ended, Dyson began to harass Larson. Although the record does not contain Dyson's entire criminal history, it does show that between 1985 and 1986, *240 Dyson was once convicted of misdemeanor telephone harassment and three times convicted of violating a no-contact order. For each of these convictions, Larson was his victim. In order to avoid Dyson, Larson moved twice and changed her unlisted telephone number several times. Larson also began screening her calls via a telephone answering machine, which enabled her to hear the message as it was recorded.
Between January 8 and January 11, 1991, Larson received approximately 50 telephone calls, which were recorded on the answering machine. In many calls, Dyson's voice is heard on the answering machine tape. Interspersed between messages were multiple hang-up calls. In some calls, Dyson used vituperative language and threatened Larson and her family. For instance, in one call Dyson stated:
Wednesday, 5:28 p.m. Bev, me, Ray. Yeah, I'll show you what smart is. You know you can't use any of this in court because you have to have permission from someone to be recorded ... You want your whole family to suffer, Maria, your whole family, `cause I've got them targeted. Just keep fucking with me, the way you're doin....
Between February 7 and February 8, 1991, Larson received approximately 15 more calls from Dyson, which were similar in nature to those she had received earlier.
By amended information, Dyson was charged with one count of harassment, which was later dismissed, and one count of telephone harassment.
At trial, Larson testified that she recognized Dyson's voice on the answering machine tapes, which were played in court. She also testified that she was not at home on January 10, 1991, when the answering machine recorded 28 calls between the hours of 1:44 a.m. and 2:47 a.m. On cross examination, Larson denied threatening Dyson and denied editing the tapes.
Dyson testified that he had gone out with Larson socially more than two dozen times in 1990. Dyson testified that Larson had made several late night calls to him in 1991, which he considered to be threatening and harassing. For *241 instance, he testified that she had threatened to use the legal system against him. He testified that he did not call her to threaten harm to her or her family, but "to get her to knock ... off" her threats.
Over the Defendant's objection, the jury was instructed:
To convict the defendant Richard Dyson of the crime of telephone harassment ... each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That during the period of time intervening between the 8th day of January, 1991 and the 8th day of February, 1991, the defendant with intent to harass, intimidate or torment made a telephone call to Beverly Larson;
(2) That during such telephone call the defendant either:
(a) used lewd, lascivious, profane, indecent or obscene words or language, or suggested the commission of any lewd or lascivious act; or
(b) telephone anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensued; or
(c) threatened to inflict injury on the person or property of the person called or any member or her family; and
(3) That the acts occurred in King County, Washington.
If you find from the evidence that elements (1) and (3) and either (2)(a) or (2)(b) or (2)(c) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. Elements (2)(a), (2)(b) and (2)(c) are alternatives and only one need be proved. You need not be unanimous as to which of those alternatives is proved.
(Italics ours.)
The jury convicted Dyson as charged. Dyson received a standard range sentence.
Dyson appeals.
I
Overbreadth of RCW 9.61.230(1) and RCW 9.61.230(2)
Dyson contends that two subsections of Washington's telephone harassment statute, RCW 9.61.230(1) and (2), are unconstitutionally overbroad.[1]
RCW 9.61.230 provides:
*242 Every person who, with intent to harass, intimidate, torment or embarrass[2] any other person, shall make a telephone call to such other person:
(1) Using any lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act; or
(2) Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or
(3) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household;
[1, 2] In the First Amendment context, a statute is void as overbroad if it sweeps constitutionally protected free speech activities within its prohibitions and no means exist by which to sever its unconstitutional applications. State v. Talley, 122 Wn.2d 192, 210, 858 P.2d 217 (1993); Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989) (citing Thornhill v. Alabama, 310 U.S. 88, 97, 84 L.Ed. 1093, 60 S.Ct. 736 (1940)). "[T]he concern with an overbroad statute stems ... from the possibility that the threat of its application may deter others from engaging in otherwise protected expression." CISPES v. FBI, 770 F.2d 468, 472 (5th Cir.1985) (citing Grayned v. Rockford, 408 U.S. 104, 33 L.Ed.2d 222, 92 S.Ct. 2294 (1972)). However, when used to invalidate a statute on its face, the overbreadth doctrine has been held "strong medicine" to be applied "only as a last resort". Talley, 122 Wn.2d at 210 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 37 L.Ed.2d 830, 93 S.Ct. 2908 (1973)).
In Seattle v. Huff, 111 Wn.2d at 925-26, the Washington Supreme Court set out the overbreadth analysis in the context of determining the constitutionality of a subsection of a municipal telephone harassment ordinance identical to RCW 9.61.230(3). When analyzing a statute for overbreadth, the key determination is "whether the enactment reaches a substantial amount of constitutionally protected conduct.'" Huff, at 925 (quoting Houston v. Hill, 482 U.S. 451, 458, 96 L.Ed.2d 398, 410, 107 S.Ct. 2502, 2508 (1987)). However, even if the statute does proscribe a substantial amount of protected *243 conduct, speech in nonpublic forums, including speech over the telephone, may be restricted if it is found that "`the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.'" Huff, at 927 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 87 L.Ed.2d 567, 105 S.Ct. 3439 (1985)).
The Huff court concluded that the challenged subsection was not overbroad. Huff, at 928. Although the court found that the statute's prohibition against "threats" proscribed a substantial amount of protected speech, the court found that the prohibition against threats to harm a person or property made over the phone with the requisite intent was reasonable and viewpoint neutral. Huff, at 926-27.
Our primary inquiry in determining whether RCW 9.61.230(1) is overbroad is whether the subsection's prohibition against the use of "lewd, lascivious, profane, indecent, or obscene words or language" in a telephone call when done with the requisite intent reaches a substantial amount of constitutionally protected conduct.
[3] First, we note that RCW 9.61.230(1) regulates conduct implicating speech, not speech itself. See Talley, 122 Wn.2d at 210 (upholding a subsection of the malicious harassment statute against an overbreadth challenge because it primarily regulated conduct and its "incidental impact" on speech was minimal). Although RCW 9.61.230(1) contains a speech component, it is clearly directed against specific conduct making telephone calls with the intent to harass, intimidate, or torment another while using lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act. Because the requisite intent establishes the criminality of the communicative conduct, any impact that RCW 9.61.230(1) has on speech is insubstantial.[3]
*244 Moreover, the level of constitutional protection given to "lewd, lascivious, profane, indecent, or obscene words or language" is minimal at best. It has long been recognized that certain classes of speech are not entitled to first amendment protection, including "the lewd and obscene, the profane, the libelous and the insulting or `fighting' words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."[4]Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 86 L.Ed. 1031, 1035, 62 S.Ct. 766, 769 (1942).
[4] Although "indecent" speech has received some level of constitutional protection, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 124, 106 L.Ed.2d 93, 109 S.Ct. 2829, 2835 (1989), the statute's impact on "indecent" speech is not problematic because the intent element sufficiently ensures that a substantial amount of protected expression is not deterred. The State has a substantial interest in protecting private citizens from those who use the telephone with the intent to harass others. See Everett, 37 Wn. App. at 865. As one court aptly stated:
The government has a strong and legitimate interest in preventing the harassment of individuals. The telephone, a device used primarily for communication, presents to some people a unique instrument through which to harass and abuse others. Because the telephone is normally used for communication does not preclude its use in a harassing course of conduct. .. .
Prohibiting harassment is not prohibiting speech, because harassment is not a protected speech. Harassment is not communication, although it may take the form of speech. The statute prohibits only telephone calls made with the intent to harass. Phone calls made with the intent to communicate are not prohibited. Harassment, in this case, thus is not protected merely because it is accomplished using a telephone.
Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir.) (quoting State v. Thorne, 175 W. Va. 452, 454, 333 S.E.2d 817, 819, cert. denied, 474 U.S. 996 (1985)), cert. denied, 488 U.S. 984 (1988).
*245 In recognition of the State's substantial interest in preventing telephone harassment, courts in other jurisdictions have upheld telephone harassment statutes against overbreadth challenges that are similar to RCW 9.61.230(1). See People v. Taravella, 133 Mich. App. 515, 518-22, 350 N.W.2d 780, 782-84 (1984) (upholding a statute that made it a misdemeanor to maliciously use a communications service "with intent to terrorize, frighten, intimidate, threaten, harass, molest or annoy any other ... by [u]sing any vulgar, indecent, obscene or offensive language or suggesting any lewd or lascivious act in the course of a telephone conversation"); State v. Hagen, 27 Ariz. App. 722, 558 P.2d 750 (1976); see also In re Simmons, 24 N.C. App. 28, 30, 210 S.E.2d 84 (1974) (upholding a statute, with no intent element, that made it illegal to use words or language of a "profane, vulgar, lewd, lascivious or indecent character, nature or connotation" in a telephone conversation).
[5] Because the statute primarily regulates conduct with minimal impact on speech, the implicated speech receives no or little constitutional protection, the restriction on protected speech is reasonable in light of the private forum, and the statute is viewpoint neutral, we conclude that RCW 9.61.230(1) is not unconstitutionally overbroad.[5]
Dyson next contends that RCW 9.61.230(2) is overbroad. In so arguing, he specifically focuses on calls made at an "extremely inconvenient hour" or made repeatedly with the intent to intimidate. To illustrate his point, Dyson argues that a call from a parent to his or her child at a late night party or repeated calls with the intent of inducing the child to come home would violate the statute.
[6] We reject this argument. It is plain that RCW 9.61.230(2) regulates pure conduct without any speech component. *246 Because this subsection is aimed solely at conduct unprotected by the First Amendment calling repeatedly or at an extremely inconvenient hour with the requisite intent, Dyson's examples would not fall within this subsection, and it cannot be held unconstitutionally overbroad. See Wisconsin v. Mitchell, 508 U.S. 476, 124 L.Ed.2d 436, 113 S.Ct. 2194, 2200-01 (1993).[6]
II
Vagueness of RCW 9.61.230(2)
[7] Dyson next contends that the phrase "extremely inconvenient hour", as used in RCW 9.61.230(2), is unconstitutionally vague. A statute is "void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366, 78 A.L.R.4th 1115 (1988) (quoting O'Day v. King Cy., 109 Wn.2d 796, 810, 749 P.2d 142 (1988)). In Washington, vagueness is tested under the federal due process test, which requires that the statute provide: (1) adequate notice of the proscribed conduct and (2) adequate standards to prevent arbitrary enforcement. Talley, 122 Wn.2d at 212; Eze, 111 Wn.2d at 26.
[8, 9] The vagueness doctrine is subject to two limitations. First, a statute is presumed constitutional unless the party challenging it can prove its unconstitutionality beyond a reasonable doubt. Eze, 111 Wn.2d at 26; Huff, 111 Wn.2d at 928. Second, "impossible standards of specificity are not required". Eze, 111 Wn.2d at 26. In Eze, at 27, the court explained:
[A] statute is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct. As this court has previously stated, "[I]f men of ordinary intelligence *247 can understand a penal statute, notwithstanding some possible areas of disagreement, it is not wanting in certainty."
Dyson argues that what constitutes an "extremely inconvenient hour" is necessarily vague because it is based on the victim's subjective reaction. The State responds, however, that the term "extremely" limits the subjectivity associated with "inconvenient".
As support, the State relies on Eze, where the court found that the phrase "unreasonably disturbs others", as used in a disorderly conduct ordinance, not unconstitutionally vague. Eze, at 28. In so holding, the court disagreed that the term "unreasonably" rendered the ordinance vague. "Indeed, use of that term provides additional indicia of objectivity, thereby rendering the statute less vague." Eze, at 29. The court noted that the term "unreasonable" removes "the possibility that a defendant's conduct may be measured by its effect upon those who are inordinately timorous or belligerent." Eze, at 29-30 (quoting People v. Raby, 40 Ill.2d 392, 395, 240 N.E.2d 595 (1968), cert. denied, 393 U.S. 1083 (1969)); see also Talley, 122 Wn.2d at 213-14 (holding that "reasonable fear" was not unconstitutionally vague); Everett ex rel. Cattle v. Everett Dist. Court, 31 Wn. App. 319, 323, 641 P.2d 714 (1982) (holding that "unreasonably disturb" was not unconstitutionally vague).
[10] We agree that the term "extremely", like the term "unreasonable", provides adequate standards by limiting the subjectivity associated with what might be considered inconvenient and ensures that the defendant's conduct is not measured by those who are overly or easily inconvenienced. Furthermore, adequate notice of the proscribed conduct is provided by viewing the challenged phrase in conjunction with the specific intent element. For instance, if the caller phones in the middle of the night not realizing the 3-hour time zone difference, the call would not fall within the conduct prohibited by the statute, notwithstanding the "extremely inconvenient hour". Conversely, if the caller phones the victim during the day, knowing that the victim sleeps during the day and works during the night, the caller has phoned at an "extremely inconvenient hour".
*248 Because the requirement "extremely inconvenient hour" as used in RCW 9.61.230(2) provides adequate notice of the proscribed conduct and adequate standards to prevent arbitrary enforcement, we hold that it is not unconstitutionally vague.[7]
III
Alternative Means
Dyson contends that his conviction must be reversed because the jury was instructed that it could rely on the alternative means doctrine to convict Dyson of telephone harassment, yet the evidence was insufficient to prove each of the alternatives contained in RCW 9.61.230(2).
[11] According to the alternative means doctrine, where a single offense may be committed in more than one way, jury unanimity is required only as to guilt. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988). Jury unanimity is not required on each alternative so long as substantial evidence supports each method by which the single crime could have been committed. Kitchen, at 410; State v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993). On review, we must determine whether the jury "could have found each means of committing the crime proved beyond a reasonable doubt." (Italics omitted.) Kitchen, at 411.
Dyson specifically contends that the State failed to meet its burden under RCW 9.61.230(2) because there was insufficient evidence that he called anonymously. Relying on Hartney v. State, 823 S.W.2d 398 (Tex. Ct. App. 1992), Dyson argues that a call is "anonymous" only when the caller attempts to conceal his or her identity and because he made no attempts to conceal his identity, he did not call anonymously.
*249 We disagree. Although Dyson did not conceal his identity in some calls, the State presented evidence of multiple hang-up calls. Certainly by hanging up, the caller is attempting to conceal his or her identity. Thus, we conclude that the State presented sufficient evidence that Dyson called anonymously, and thus, the alternate means of committing telephone harassment found in RCW 9.61.230(2) was sufficiently proved.
IV
Multiple Acts
Finally, Dyson contends that he was denied his constitutional right to a unanimous jury verdict because the State failed to elect the specific act it relied on for his conviction and the trial court failed to give a "Petrich" instruction that the jury must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
[12] It is well settled that where the State relies on multiple acts that could form the basis for the one count charged, the State must elect the act it relies on for the conviction or the court must instruct the jury that it must agree that the same underlying criminal act has been proved beyond a reasonable doubt. State v. Gooden, 51 Wn. App. 615, 618, 754 P.2d 100, review denied, 111 Wn.2d 1012 (1988); State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
However, no election or instruction is required where a continuing course of conduct forms the basis for the one charge. Gooden, 51 Wn. App. at 618; Petrich, 101 Wn.2d at 571. To determine whether one continuing offense has occurred, the facts of the case must be analyzed with common sense. Petrich, at 571.
In this case, Dyson was charged with one count of telephone harassment. Although RCW 9.61.230 permits a conviction for a single call, RCW 9.61.230(2) also authorizes a conviction for a continuing course of conduct repeatedly calling. There is no question that Dyson repeatedly called Dyson made approximately 50 calls between January 8 and January 11, 1991, and approximately 15 calls between February 7 and February 8, 1991.
*250 Thus, because the jury was instructed that it could rely on the alternative means doctrine to convict Dyson of one count of telephone harassment and there was sufficient proof that Dyson engaged in a continuing course of conduct by repeatedly calling, we conclude that the State was not required to elect the act that it relied on for the conviction nor was the court required to give a unanimity instruction.
Affirmed.
SCHOLFIELD and BECKER, JJ., concur.
Review denied at 125 Wn.2d 1005 (1994).
NOTES
[1] State constitutional analysis must be independently raised and briefed. State v. Ivan, 71 Wn. App. 145, 149 n. 2, 856 P.2d 1116 (1993). Because Dyson does not argue that the statute is overbroad under the state constitution, our analysis is confined to the federal constitution.
[2] The term "embarrass" is not before the court as the trial court struck the term based on our holding in Seattle v. Huff, 51 Wn. App. 12, 16, 751 P.2d 879 (1988), aff'd, 111 Wn.2d 923, 767 P.2d 572 (1989).
[3] The cases that Dyson relies on in support of overbreadth are clearly distinguishable. Neither the statute struck down in Radford v. Webb, 446 F. Supp. 608 (W.D.N.C. 1978), aff'd, 596 F.2d 1205 (4th Cir.1979), nor in Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906 (1975) contained an intent element. Likewise, neither terms at issue in Everett v. Moore, 37 Wn. App. 862, 683 P.2d 617 (1984), nor in State v. Reyes, 104 Wn.2d 35, 700 P.2d 1155 (1985), are found in RCW 9.61.230(1).
[4] R.A.V. v. St. Paul, 505 U.S. 377, 120 L.Ed.2d 305, 112 S.Ct. 2538, 2545 (1992) did not change this result. Rather, the Court held that content discrimination limitations cannot be used to proscribe these forms of speech.
[5] In so holding, we reject Dyson's contention that the statute is overbroad because it would prohibit those telephone calls to a spouse, public official, or customer complaint department in which swear words are used in order to persuade the recipient to do something. This argument ignores the fact that the intent element places the focus on the caller, rather than on the subjective perception of the listener. Taravella, at 521; see also Huff, 111 Wn.2d at 930. Thus, such telephone calls would not fall within the purview of the subsection unless the caller had the requisite intent.
[6] We also reject Dyson's contention that because RCW 9.61.230(2) does not require a conversation to ensue, little or no harm is done if the call is "made late at night when no one is at home". Because the statute prohibits the making of repeated calls and the making of calls at an extremely inconvenient hour with the requisite intent, the focus is solely on the caller, not the subjective harm to the victim. See Huff, 111 Wn.2d at 930.
[7] We reject as meritless Dyson's equal protection challenge to RCW 9.61.230(2), which makes criminal those calls made at "an extremely inconvenient hour, whether or not conversation ensues". Apparently, it is Dyson's position that a call to an answering machine at an extremely inconvenient hour is different from a call to a person at an extremely inconvenient hour because an answering machine cannot be inconvenienced. However, the subsection raises no equal protection problem as all calls made at an inconvenient hour with the requisite intent are treated the same even if no conversation ensues.
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December 4 2012
DA 12-0016
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 280N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
STEVEN TODD COLVIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Silver Bow, Cause No. DC 09-193
Honorable Brad Newman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jennifer A. Giuttari, Montana Legal Justice, PLLC, Missoula, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy A. Hinderman, Assistant
Attorney General, Helena, Montana
Eileen Joyce, Silver Bow County Attorney; Kelli Fivey, Deputy County
Attorney, Butte, Montana
Submitted on Briefs: October 17, 2012
Decided: December 4, 2012
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Steven Todd Colvin (Colvin) appeals from a judgment entered by the Second Judicial
District Court, Silver Bow County, denying his motion for a new trial. We affirm.
¶3 On December 11, 2009, Colvin was charged by Information with two counts of felony
assault on a peace officer, two counts of misdemeanor assault with a bodily fluid, one count
of misdemeanor assault, and one count of resisting arrest. The charges all stemmed from an
altercation with two police officers and a private security guard on November 10, 2009.
Colvin pled not guilty and a jury trial was held on June 6-8, 2011.
¶4 Prior to the trial, John Pierce, the security guard involved in the incident, filed a civil
action against several defendants, including Colvin, for an injury he allegedly sustained
during the altercation with Colvin. Colvin, in turn, filed a counterclaim against Pierce. Two
of the expert witnesses who were retained for the civil case also testified for Colvin during
the criminal trial. During the trial, the State pointed this out several times in its closing and
rebuttal arguments.
¶5 The jury convicted Colvin of four of the six counts, acquitting him of one count of
felony assault and one count of assault with a bodily fluid. On July 8, 2011, Colvin filed a
motion for a new trial or, in the alternative, for judgment of acquittal. He argued, in part,
that the State made comments in its closing and rebuttal arguments that amounted to
2
prosecutorial misconduct. Specifically, he complained that the State misrepresented the
status of the civil action arising from the incident and unfairly referred to Colvin’s expert
witnesses as “hired guns,” suggesting that Colvin paid them to testify in a specific way.
¶6 The court held a hearing on the motion on August 18, 2011. The court denied the
motion, determining that Colvin’s failure to make a timely objection at trial concerning the
alleged prosecutorial misconduct constituted a waiver of the objection. Colvin timely
appeals.
¶7 We review a district court’s denial of a motion for a new trial for an abuse of
discretion. State v. Parrish, 2010 MT 212, ¶ 14, 357 Mont. 477, 241 P.3d 1041. As a
general rule, parties may raise on direct appeal only those issues and claims that were
properly preserved by timely objection in the trial court. State v. West, 2008 MT 338, ¶ 16,
346 Mont. 244, 194 P.3d 683. This Court may invoke the plain error doctrine “only in
situations that implicate a defendant’s fundamental constitutional rights when failing to
review the alleged error may result in a manifest miscarriage of justice, leave unsettled the
question of the fundamental fairness of the proceedings, or compromise the integrity of the
judicial process.” State v. Lacey, 2012 MT 52, ¶ 14, 364 Mont. 291, 272 P.3d 1288 (citing
State v. Thorp, 2010 MT 92, ¶ 23, 356 Mont. 150, 231 P.3d 1096). We apply plain error
review sparingly. Lacey, ¶ 14 (citing Thorp, ¶ 23).
¶8 On appeal, Colvin points to five specific statements the State made during its closing
and rebuttal arguments that he argues amount to prosecutorial misconduct. Although he
never objected to any of these statements during the State’s closing or rebuttal arguments, he
claims he made a continuing objection during the State’s cross-examination of one of the
3
expert witnesses that carried over into the closing arguments. The objection was made
during a line of questioning regarding a doctor’s evaluation of Colvin after the incident.
Specifically, the following discussion occurred:
PROSECUTOR: Is it your testimony today that [the doctor] was in error?
EXPERT: If it’s going to be one or the other, one of the best neurologists in
the country and myself are right.
PROSECUTOR: And so would this be like kind of malpractice on his part
then or something?
EXPERT: Oh—oh, no. Just a difference in professional judgment. And I’m
sure he’s a fine doctor, just a difference in point of view and perhaps history
taking and what information he had. And I’m in no way saying anything
negative about him. It’s a difference of opinion based on information, you
know, that we had and he had.
PROSECUTOR: So Mr. Colvin should include him in his counterclaims
against everybody?
DEFENSE COUNSEL: Objection, Your Honor.
COURT: Sustained.
¶9 Colvin argues that this objection is a continuing objection to a mischaracterization of
the civil case.
¶10 In determining whether an objection made at an earlier phase of a trial constitutes a
continuing objection that carries over into a later phase, we look at how divergent the
objections are in time and subject matter. See State v. Campbell, 241 Mont. 323, 787 P.2d
329 (1990). Here, Colvin did not request that his objection made during cross-examination
of the expert be continuing, nor did he even provide any basis for the objection. Given its
context, the District Court’s order sustaining the objection could have been based on grounds
4
that had nothing to do with a mischaracterization of the civil case, such as that it was
argumentative. Colvin’s generic objection was not sufficient to constitute a continuing
objection that carried over into the closing arguments.
¶11 Colvin further argues that even if he did not properly preserve his objection for
appeal, we should review the State’s statements for plain error in the interest of protecting
his constitutional right to a fair trial. He claims the State’s remarks characterized Colvin and
his experts as liars motivated by money, and that such a characterization created a danger
that the jury would adopt the State’s views and not exercise their own judgment. “[A]
prosecutor is entitled to some latitude in his argument about a witness’s credibility.” State v.
Green, 2009 MT 114, ¶ 34, 350 Mont. 141, 205 P.3d 798. And, while it is generally
improper for a prosecutor to offer personal opinions on the credibility of the accused or the
witnesses, it is permissible “to comment on conflicts and contradictions in testimony, as well
as to comment on the evidence presented and suggest to the jury inferences which may be
drawn therefrom.” Green, ¶ 33. After reviewing the State’s remarks made during its closing
and rebuttal arguments, we do not believe Colvin’s right to a fair trial was implicated. We
therefore decline to exercise plain error review.
¶12 For the reasons stated above, we conclude the District Court did not abuse its
discretion when it denied Colvin’s motion for a new trial. We have determined to decide this
case pursuant to Section I, Paragraph 3(d), of our Internal Operating Rules, which provides
for noncitable memorandum opinions.
¶13 Affirmed.
/S/ MICHAEL E WHEAT
5
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JIM RICE
/S/ BRIAN MORRIS
6
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663 A.2d 902 (1995)
STATE
v.
Edward HASLAM, Jr.
No. 94-158-C.A.
Supreme Court of Rhode Island.
August 10, 1995.
*904 Aaron L. Weisman, Assistant Attorney General, Jeffrey Pine, Attorney General, Providence, for plaintiff.
John A. MacFadyen, Providence, for defendant.
OPINION
WEISBERGER, Chief Justice.
This case comes before us on the appeal of the defendant, Edward Haslam, Jr., from a judgment of conviction entered in the Superior Court on four counts of first-degree child molestation in violation of G.L. 1956 (1981 Reenactment) § 11-37-8.1, as amended by P.L. 1988, ch. 219, § 1, and on two counts of second-degree child molestation in violation of § 11-37-8.3, as amended by P.L. 1988, ch. 219, § 1. We vacate the judgment of conviction and remand for a new trial. The facts insofar as pertinent to this appeal are as follows.
The complaining witness, whom we shall call Amy, was born in September 1978. From the ages of one to three Amy did not live with her parents but rather lived at the home of her maternal grandparents in Shannock, Rhode Island. In 1981, when Amy was three, her mother, Janice, moved into the grandparents' home and Amy continued to live in Shannock with her grandparents and her mother. Amy's older brother, Kevin, and younger brother, Alex (not their real names), also lived at the grandparents' home in Shannock. This living arrangement continued until the middle of 1986. In August 1986, shortly before Amy's eighth birthday, her mother married defendant, Edward Haslam, Jr. (Haslam or defendant). A few months prior to the marriage Amy, her mother, Kevin, and Alex all moved in with defendant at his home in Wakefield, Rhode Island. Kevin, however, was placed in a youth home in November 1986. The marriage produced two daughters, Lisa and Susan (not their real names). By August 1990 Janice and defendant were divorced.
Amy testified that between the ages of eight and eleven she was repeatedly sexually molested by her stepfather, defendant. Haslam testified in his own defense and denied that he had ever molested Amy. Haslam claimed that Amy concocted the allegations of sexual abuse at the behest of her mother. A jury found defendant guilty on all six counts of the indictment. His motion for new trial was denied. This appeal followed. In support of his appeal defendant raises a number of issues. We shall address only those that involve error.[1] Additional facts will be furnished as needed to deal with specific issues.
I
Following Amy's testimony the state presented the testimony of Kathy Swink (Swink), a counselor that Amy had been seeing periodically over the preceding two years and three months. Swink testified that she had been counseling Amy since February 1991 when Amy was referred to her by the Department of Children, Youth and Families (DCYF). Over defense objection, Swink was permitted to testify that Amy was referred to her for sexual-abuse-recovery counseling. During the course of Swink's direct examination, the prosecutor repeatedly elicited from Swink the nature of the counseling she provided and framed his questions in such a manner as to emphasize that the counseling *905 was for sexual-abuse recovery. For example, the following exchanges took place:
"Q. Directing your attention to your private practice, has your private practice focused on any particularized area of concern in counseling?
"Defense counsel: I object.
"The court: What was your objection?
"Defense counsel: No foundation at this point.
"The court: Objection overruled.
"A. I have worked primarily with people who have been abused either physically, sexually or emotionally due to dysfunctional family situations.
"* * *
"Q. You said earlier that your practice focuses primarily on abuse either sexual, physical or emotional?
"A. That's correct.
"Q. Is it for one of those things or some-thing else that you counsel [Amy]?
"Defense counsel: Objection.
"The court: What's your objection?
"Defense counsel: It's leading, there is no foundation.
"The court: Objection overruled, she may respond.
"A. Yes, she was referred to me for sexual abuse recovery counseling.
"Q. Sexual abuse recovery counseling, is that what you said?
"A. Yes.
"* * *
"Q. I do understand she was referred to [you] by DC[Y]F, and you have been counseling her for sexual abuse recovery, is that what you testified to?
"A. Yes.
"Q. Has that been the focus of your counseling throughout the period of February '91 through May of '93?
"A. Yes, it has with all of its ramifications."
Swink's first knowledge of and contact with Amy occurred in February 1991, approximately six months after the last incident of sexual abuse allegedly occurred. The defendant claims that because Swink had no firsthand knowledge that Amy had been sexually molested, her testimony that she counseled Amy for sexual-abuse recovery constituted impermissible vouching for the credibility of the complaining witness. We agree.[2]
The determination of the truthfulness or credibility of a witness lies within the exclusive province of the jury. State v. James, 557 A.2d 471, 473 (R.I. 1989); State v. Desmarais, 479 A.2d 745, 748 (R.I. 1984); State v. Castore, 435 A.2d 321, 326 (R.I. 1981). Because credibility determinations are solely a jury function, a witness is not permitted to offer an opinion concerning the truthfulness of the testimony of another witness. James, 557 A.2d at 473; see also State v. Tavares, 590 A.2d 867, 870-71 (R.I. 1991); State v. Nicoletti, 471 A.2d 613, 617 (R.I. 1984). Even when a witness does not literally state an opinion concerning the credibility of another witness but his or her testimony would have the same "substantive import," such testimony is inadmissible. See Tavares, 590 A.2d at 870-71 (citing Commonwealth v. Montanino, 409 Mass. 500, 567 N.E.2d 1212 (1991)).
In Montanino a male defendant was found guilty on two counts of engaging in unnatural sexual intercourse with a fifteen-year-old male. The victim did not report the incidents until four years after they had occurred. At trial the victim made several statements that were inconsistent with his original report to the police. On redirect examination, the prosecutor asked the police officer who had taken the report, "And, would you tell us, Sergeant, whether or not you have an opinion as to whether in your initial discussions with victims, [you] tend to get more or less than the complete details that you eventually learn regarding the incident?" 409 Mass. at 502, 567 N.E.2d at 1213. The officer responded that in his experience interviewing sexual-assault victims, "`most' victims eventually provided more details regarding the assault than they initially revealed." Id. at 502-03, 567 N.E.2d at 1213.
*906 The defendant in Montanino claimed that the foregoing question and response should not have been permitted because it allowed the police officer to state his opinion that the victim was a credible witness. That is, by allowing the officer to testify that the irregularities in the victim's statements were consistent with the manner in which truthful sexual-assault victims related their experiences, the officer would be stating his opinion that the victim was a credible witness.
In reversing the defendant's conviction, the Supreme Judicial Court of Massachusetts stated, "[W]e believe that the impact on the jury of [the police officer's] observations regarding sexual assault victims had the same effect as if [the police officer] had directed his comments specifically to [the victim's] credibility. We think there is little doubt that [the police officer's] comments relating to the credibility of 'most' sexual assault victims would be taken by the jury as [the police officer's] endorsement of [the victim's] credibility." Montanino, 409 Mass. at 504, 567 N.E.2d at 1214. The court went on to say that "[w]hile the * * * testimony fell short of rendering an opinion on the credibility of the specific [witness] before the court, we see little difference in the final result. It would be unrealistic to allow this type of * * * testimony and then expect the jurors to ignore it when evaluating the credibility of the complaining [witness]." Id. (quoting Commonwealth v. Ianello, 401 Mass. 197, 202, 515 N.E.2d 1181, 1184 (1987)).
We believe that the testimony at issue in the case at bar was as prejudicial to Haslam as was the testimony in Montanino to the defendant in that case. In the instant case, Swink had no firsthand knowledge that Amy had been sexually molested. She did not witness any of the alleged acts of molestation. Any information acquired by Swink regarding the alleged acts of sexual abuse was obtained via conversations with other persons, particularly the complaining witness, Amy. The repeated references to "sexual abuse recovery" counseling could only impress upon the jury that Amy had indeed been sexually abused, just as Amy herself had testified, and that Swink obviously believed that Amy had been sexually abused. This is particularly so in light of the fact that such counseling sessions had been ongoing for more than two years and Swink continued to counsel Amy at the time of trial. Although Swink's testimony that she had been counseling Amy for sexual-abuse recovery was not a literal statement of her belief in Amy's truthfulness, we believe that the testimony had the same substantive import and would be perceived by the jury as a conclusive opinion that Amy had testified truthfully. See State v. Roderigues, 656 A.2d 192, 194-95 (R.I.1995); Tavares, 590 A.2d at 870-71; Montanino, 409 Mass. at 504, 567 N.E.2d at 1214. Because Amy was the alleged victim and the complaining witness, her credibility was a crucial issue. The allowance of Swink's testimony that vouched for Amy's credibility was reversible error.
By August 1990 Amy, her mother, and her brother Kevin had returned to Shannock to live with Amy's grandparents. Prior to Amy's having made any allegations that defendant had sexually molested her, Haslam had made complaints to DCYF and to a social worker in the South Kingstown School Department concerning Amy's living in the same house with her grandfather and Kevin and regarding the physical conditions of the house in Shannock. The basis of the complaint with respect to the grandfather was that Amy's mother had claimed that she (Janice) had been sexually molested as a child by her fatherAmy's grandfather (Janice later recanted these allegations at trial). Haslam had expressed concern that Amy was living in the same house with her grandfather in light of the allegation that the grandfather had molested his own daughter when she was a child. Haslam further expressed concern over Amy's living in the same house with Kevin. Haslam testified regarding an incident that occurred when Kevin was eight years old and Amy was six or seven years old in which Janice had caught Kevin and Amy in the garage and Kevin "had [Amy's] pants down." Although he did not witness this incident, Haslam characterized it as Kevin's sexually abusing Amy. Haslam also was concerned because Kevin had displayed violent tendencies in the past.
*907 On September 17, 1990, Haslam called the DCYF child-abuse hot line to report Amy's living situation, and on September 19, 1990, he expressed his concerns to Melinda Matuza (Matuza), a social worker with the South Kingstown School Department. Matuza immediately called the DCYF hotline to report the allegations made by defendant. It was later that afternoon that Amy first alleged that defendant had sexually abused her. Over defense objection, the court allowed Susan Strong-Archer (Strong-Archer), a child-protective investigator with DCYF who investigated the Matuza report, to state her belief that defendant's allegations that Kevin sexually assaulted Amy when she was seven years old were "unfounded."
The defendant claims that Strong-Archer's testimony that the allegations he made were "unfounded" constituted an impermissible opinion by a witness that he was not credible. We agree. Whether characterized as a "conclusion," as the state insists, or as an opinion, Strong-Archer's declaration that the complaint lodged by defendant was unfounded had the effect of conveying her belief that defendant's subsequent testimony on this subject was not worthy of belief. As we have already stated, supra, credibility determinations are the exclusive province of the jury and a witness may not offer an opinion concerning the truthfulness of the testimony of another witness. Strong-Archer's testimony, even though it did not amount to a literal statement that she believed defendant not to be credible, had the same substantive import and its admission was error. See Tavares, supra. Whether the admission of Strong-Archer's testimony standing alone would constitute reversible error we do not need to decide in the total context of this appeal.
II
On cross-examination defense counsel asked Swink if she recalled having a discussion with Amy regarding Amy's mother's being depressed and bedridden for almost one year following the birth of her youngest daughter, Susan. Swink replied that she did not recall that the word "bedridden" was used. Defense counsel subsequently ordered a partial transcript of testimony that Swink had given in an earlier Family Court proceeding and provided it to Swink for her to review. The defendant then called Swink as a witness in its own case to inquire whether her memory had been refreshed after having read the Family Court transcript concerning her discussion with Amy and the use of the word "bedridden." The defendant's questioning of Swink was confined to this subject.
During his cross-examination of Swink, the prosecutor asked her, "And you testified when you were here before you counseled [Amy] for sexual abuse recovery, correct?" After receiving an affirmative response the prosecutor then asked Swink, "Who did Amy say sexually abused her?" Defense counsel objected to this question on the grounds that it was beyond the scope of direct-examination and that it was hearsay that did not come within the exceptions of Rule 803 of the Rhode Island Rules of Evidence. The trial justice sustained the objection but allowed the prosecutor to engage in the following exchange with Swink:
"Q. In all your counseling with Amy, how many perpetrators of sexual abuse, without identifying them, did she tell you about, one or more than one?
"A. Only one.
"Defense counsel: Objection.
"The court: Objection. She has already responded.
"Q. Only one?
"A. Only one.
"Q. Did she ever identify [her grandfather] as someone who sexually abused her?
"Defense counsel: Objection.
"A. Nope, she didn't.
"* * *
"Q. Did she identify someone, [her grandfather] as someone who sexually abused her?
"Defense counsel: Objection.
"The court: Overruled.
"A. No, she did not.
"Q. Did she identify [Kevin] as someone who sexually abused her?
"Defense counsel: Objection.
*908 "A. No.
"The court: Overruled.
"Q. Did she identify someone named [Peter] as somebody who sexually abused her?
"A. No.
"Defense counsel: Objection.
"The court: Overruled.
"Q. Did she use the word sexual abuse when she talked to you?
"A. Yes.
"Q. And she never mentioned [her grandfather], [Kevin] or [Peter]?
"A. Correct. Well, she mentioned, she certainly mentioned her grandfather and her brother but not as having sexually abused her."
The defendant claims that the prosecution's cross-examination of Swink impermissibly allowed her to identify defendant, by process of elimination, as the person who, according to Amy, had sexually abused her. We agree.
There had been previous testimony that Amy's mother had told two social workers that she (Janice) had been sexually molested as a child by her father (Amy's grandfather). Janice testified, however, that although she did in fact make these allegations, they were untrue. There had also been previous testimony that Kevin may have engaged in inappropriate behavior of a sexual nature with his sister Amy when Kevin was eight years old and she was seven years old. The "Peter" (not his real name) that is referred to in the above exchange is a cousin of Janice's who had stayed with her family for two weeks in 1984 at the home belonging to her parents in Shannock. Defense counsel had questioned Janice concerning whether she recalled having told a counselor that she suspected Peter of sexually abusing her sons, Alex and Kevin. Janice responded that she did not recall having made this assertion.
Previous testimony and questions propounded by defense counsel had identified four persons defendant, Amy's grandfather, Kevin, and Peter as persons who may have at one time engaged in inappropriate behavior of a sexual nature. Swink would not have been permitted directly to name the person who Amy had told her had sexually molested been hearsay. The effect of the colloquy between the prosecutor and Swink, however, was to establish that each person, except defendant, who had previously been identified as possibly having had engaged in inappropriate sexual behavior was not the person who Amy had told Swink had molested her. The result of this testimony was plainly the identification of defendant, by process of elimination, as the one and only person whom Amy had accused of molesting her.
The elicitation of this identification by process of elimination, when the rules of evidence prohibited Swink from directly naming the person who Amy said had molested her, was inappropriate and highly prejudicial. Swink could not testify that Amy had identified defendant during their counseling sessions as the person who had molested her even though such identification was a prior statement that is consistent with Amy's testimony at trial. See Rule 801(d)(1)(B) of the Rhode Island Rules of Evidence. As the United States Supreme Court held recently in Tome v. United States, ___ U.S. ___, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), a prior consistent statement made by an alleged victim of sexual abuse is not admissible as nonhearsay under Rule 801(d)(1)(B) of the Federal Rules of Evidence (which is identical to the Rhode Island rule) when the prior consistent statement was made after the motive to fabricate arose. In the instant case Amy's initial allegation that defendant had molested her was made only after defendant had made complaints to DCYF and to a school social worker regarding Amy's living situation and after Amy had aligned herself with her mother in her mother's and defendant's divorce proceedings. Because Amy's identification of defendant as her abuser occurred after the motivation to fabricate arose, the prior consistent statement did not come within the purview of Rule 801(d)(1)(B) as a statement that is not hearsay.
Any testimony by Swink that Amy had identified defendant during counseling sessions as the person who had sexually abused her would therefore have been inadmissible hearsay. The tactic employed by the prosecution *909 which avoided an affirmative statement by Swink that Amy had named defendant but nevertheless allowed Swink to testify that Amy did not name any of the other persons who may have conceivably committed the alleged abuse amounted to a disingenuous circumvention of the rules of evidence. Even though Amy had previously testified that she had told Swink that defendant had molested her, Swink's "identification" of defendant by process of elimination was not harmless error, as the state claims. The outcome of this case hinged on whom the jury believed, Amy or defendant. As we have stated, supra, Swink's previous testimony that she was counseling Amy for "sexual abuse recovery" constituted impermissible vouching for Amy's credibility. Allowing this same witness, who had already vouched for Amy's credibility, to then in effect tell the jury that Amy had told her that the person who had sexually abused her was defendant was highly prejudicial and reversible error.
III
The prosecution presented Margaret Kozel (Kozel), a pediatrician who examined Amy on September 19, 1990, the date that Amy first alleged that she had been sexually abused by defendant. Prior to conducting a physical examination, Kozel interviewed Amy for approximately forty-five minutes. The defendant claims that portions of Kozel's testimony should not have been permitted pursuant to this court's holding in State v. Castore, 435 A.2d 321 (R.I.1981).
In Castore we held that it was prejudicial error for a physician to express a factual opinion based upon information that a patient tells the physician rather than based upon the results of a physical examination of the patient or the results of laboratory tests. Id. at 326. We said that when a physician bases his or her medical opinion on information related to the physician by the patient rather than upon the results of a physical examination or tests, such an opinion is based on evidence that is not within the realm of the physician's medical knowledge or expertise and amounts to nothing more than the physician's assessment of the patient's credibility. Id.
In the instant case Kozel conducted a forty-five minute interview with Amy prior to performing a physical examination. Kozel testified on cross-examination that during her interview with Amy, she became convinced that Amy was being truthful and had formed an opinion concerning her truthfulness prior to beginning the physical examination. On direct examination, Kozel had testified that Amy had "probably" been rectally penetrated prior to September 19, 1990, when she examined the child. Defense counsel immediately objected and moved to strike this response on the ground that it was not based upon a reasonable degree of medical certainty. The objection was overruled. On cross-examination, Kozel was asked if it would have affected her opinion that Amy had been sexually penetrated rectally if she were to learn that the history Amy had given in the interview was not truthful. She responded, "I would not have been as convinced of the anal intercourse maybe." Inasmuch as Kozel testified on direct examination that Amy had "probably" been rectally penetrated, had she not relied on the truthfulness of the history related by Amy, she may have thought it less than probable that Amy had been rectally penetrated. It appears that Kozel relied to a greater extent upon the history related by Amy in concluding that she had probably been rectally penetrated than she relied upon the results of the physical examination she administered. Because Kozel's opinion appears to have been based on evidence that "was not within the realm of [her] medical capabilities or expertise * * * it amounted to nothing more than [her] assessment of the credibility" of Amy's testimony. See Roderigues, 656 A.2d at 194-95; Castore, 435 A.2d at 326. The defense objection to Kozel's testimony that Amy had probably been rectally penetrated should have been sustained, and the motion to strike should have been granted.
IV
Amy was five months pregnant by her boyfriend at the time of trial. The prosecution made a motion in limine prior to trial to exclude evidence of the pregnancy from being presented to the jury. The defendant *910 argued that evidence of the pregnancy should be admitted for the purpose of demonstrating that Amy had a source of sexual knowledge and experience other than the alleged incidents with defendant. The motion was granted and the court refused to permit the jury to be informed that Amy was pregnant at the time of trial. The issue came up again during Amy's cross-examination, and again the court refused to permit the jury to be informed that Amy was five months pregnant. The defendant claims that the court's refusal to allow the jury to be informed that Amy was pregnant at the time of trial was prejudicial error. We agree.
On cross-examination Amy gave a detailed description of an act of oral sex that defendant had allegedly forced her to perform, including the detail that he had ejaculated in her mouth. During his closing argument the prosecutor referred back to this testimony by stating:
"[O]ne of the more dramatic moments during her testimony [was] when [defense counsel] asked her with respect to an incident, one of the incidents, with respect to the penetration of her mouth by a penis. * * * She said after a pause, `I don't know how to explain it,' and then began to demonstrate to you by forming her hands in a particular way that I'm sure you will recall and testified that the Defendant began rubbing himself up and down with his hand. * * * And you heard her say at the end there was an ejaculation, according to her testimony, and the sperm went in her mouth. That came out on cross-examination. Isn't that a detail that rings true that [Amy] was sexually assaulted orally?" (Emphasis added.)
At the end of the prosecutor's closing argument defendant moved for a mistrial based upon the last comment by the prosecutor that is emphasized above. The defendant claims that this comment suggested to the jury that Amy's knowledge of oral sex could only have resulted from the alleged sexual assault when the prosecutor in fact knew that Amy had another source of sexual knowledge fought to keep such information from being imparted to the jury.
In State v. Oliveira, 576 A.2d 111 (R.I. 1990), the defendant had been convicted of first- and second-degree child molestation. The complaining witness (referred to as Nancy) was eight years old at the time the incidents allegedly occurred and eleven years old at the time of trial. Nancy had previously made allegations of sexual abuse against two other men. The trial court held that evidence of the prior allegations of sexual abuse was inadmissible. This court held that evidence of Nancy's prior accusations of sexual abuse should have been admitted for the purpose of demonstrating that she had other sources for her knowledge of the sexual acts she had described. Id. at 113. We stated:
"Where the victim is a child, as in this case, the lack of sexual experience is automatically in the case without specific action by the prosecutor. A defendant therefore must be permitted to rebut the inference a jury might otherwise draw that the victim was so naive sexually that she could not have fabricated the charge." Id. at 114 (quoting State v. Jacques, 558 A.2d 706, 708 (Me. 1989)).
In the instant case, Amy's pregnancy, and thus the sexual activity that resulted in the pregnancy, occurred more than three years after the alleged incidents of abuse occurred. The defense did not seek to show other sources of sexual knowledge for the purpose of showing that Amy fabricated the allegations against defendant. Rather its purpose was to demonstrate that at the time she testified at trial, Amy had another source of knowledge and experience from which she could have learned the details of the sexual acts that she described on the witness stand. Contrary to the state's contention, the fact that Amy had another source of sexual knowledge and experience at the time she testified is highly relevant, regardless of whether such other sexual conduct occurred before or after the alleged acts of sexual abuse.
In addition to describing an act of oral sex, Amy also described incidents of both vaginal and anal intercourse. It is highly relevant that at the time she testified concerning *911 these incidents Amy had a source of sexual knowledge, independent of any acts of alleged sexual abuse, from which she could have learned the details of the sexual acts that she described. It was therefore error to preclude defendant from informing the jury that Amy was five months pregnant at the time of trial.
V
The defendant claims that the prosecutor was permitted to ask him unfair, irrelevant, and highly prejudicial questions during cross-examination. Specifically, defendant points to questions concerning, inter alia, whether he had fathered children out of wedlock, whether he had engaged in anal intercourse with Janice during their marriage, and whether he had told Janice that he wanted her to have an abortion when she was pregnant with Susan.
During the course of the trial a tape recording of a telephone conversation between defendant and Janice was played for the jury. On the tape, Janice referred to defendant's "other two daughters, the one down south and the one up here, the one who is an unfit mother and doesn't keep a clean house in Plum Point." It was in relation to this conversation that the prosecutor asked defendant a series of questions on cross-examination in an attempt to elicit whether he had any other biological daughters besides Lisa and Susan. It was not error to admit these questions.
On direct examination Amy testified concerning an incident wherein defendant allegedly forced her to have anal intercourse. She told defendant that his inserting his penis into her rectum hurt her. She testified that defendant responded, "[It] didn't hurt [your mother]." In light of this prior testimony, which was admitted without objection, it was permissible for the prosecutor to ask defendant on cross-examination if he had ever engaged in anal intercourse with Amy's mother.
There was no valid reason for the prosecutor to ask defendant if he had ever told Janice that he wanted her to have an abortion when she was pregnant with Susan. The question had no relevance to any of the issues in the case and was highly prejudicial. The defendant responded to the question, answering, "I most certainly did not," before defense counsel raised an objection. Defense counsel did object after defendant had already responded but did not request that the question be stricken, nor did he request a mistrial. In the circumstances the trial justice committed no error.
VI
The defendant claims that the trial justice committed reversible error in his instructions to the jury regarding the use of evidence of other crimes. During the trial there had been testimony that defendant had assaulted Janice while they were married and had engaged in anal intercourse with her. With respect to evidence of these acts the trial justice instructed the jury:
"Now some of this evidence was received solely on the issue of intent, motive and/or design, and not as evidence to prove the Defendant committed the crime charged in a particular count, and I'm going to make reference to evidence for a particular count later on. And then also whatever testimony you heard relative to the acts of assaulting, etc., with individuals other than [Amy], that evidence was received solely on the issue of credibility, and evidence introduced or testimony introduced as suggested above is to be considered by you only for the limited purpose for which it was received."
At the close of the trial justice's jury instructions, defendant objected to the portion of the charge instructing that evidence was received solely on the issue of credibility, claiming that this was not a proper basis for admitting evidence of other uncharged crimes. The defendant reiterates this argument on appeal.
Generally, "evidence * * * that the accused has participated in a crime for which he or she is not on trial, even if it is the same type of crime, is irrelevant and inadmissible." State v. Gallagher, 654 A.2d 1206, 1210 (R.I. 1995); State v. Cardoza, 465 A.2d 200, 202 (R.I. 1983). There are several *912 well-established exceptions to this rule, however. Evidence of other uncharged crimes may be admissible to establish proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident or to prove that the accused feared imminent bodily harm and that the fear was reasonable. Gallagher, 654 A.2d at 1210; R.I.R. Evid. 404(b). The defendant is correct in his assertion that Rule 404(b) does not state that evidence of other crimes is admissible for the purpose of assessing "credibility." Compare R.I.R. Evid. 609 (stating that evidence of a conviction of a crime may be used to attack the credibility of a witness) with R.I.R. Evid. 404(b). What the trial justice should have attempted to clarify is that evidence of other uncharged crimes cannot be used to establish that defendant has a propensity to commit such crimes and is therefore more likely to have committed the crime with which he is charged. See Gallagher, 654 A.2d at 1210; State v. Brigham, 638 A.2d 1043, 1044 (R.I. 1994); R.I.R. Evid. 404(b). The instruction at issue gave a much broader cast than should have been given for the use of such evidence of other crimes allegedly committed by defendant.
In State v. Jalette, 119 R.I. 614, 382 A.2d 526 (1978), this court enumerated limited circumstances wherein evidence that the accused had committed a prior uncharged sexual offense could be admitted at his or her trial involving a subsequent alleged sexual offense. We stated, however, that evidence of other crimes must "be received `with great caution' and is to be `carefully restricted' by a specific instruction as to the limited purpose for which such evidence is being introduced." Id. at 625, 382 A.2d at 532. This is particularly so with respect to evidence of prior sexual offenses because "evidence of other sexual behavior is, by its very nature, uniquely apt to arouse the jury's hostility." Id. at 627, 382 A.2d at 533. "Such evidence may not be admitted merely to show a defendant's criminal propensity or lewd disposition." State v. Lamoureux, 623 A.2d 9, 13 (R.I. 1993).
The limiting instruction is one of the primary safeguards that ensures that the jury will not use evidence of prior uncharged crimes to convict the accused on the basis of his or her bad character. State v. Brown, 626 A.2d 228, 234 (R.I. 1993). Here, the trial justice's instruction misled the jury on a vital issue. In this case the entire outcome depended on credibility the credibility of Amy and the credibility of the defendant. Instructing the jury that evidence of acts with persons other than Amy was to be received solely on the issue of credibility was tantamount to saying that the jury could receive and apply such evidence on the issue of guilt or innocence. Relying on this instruction, the jury could have found the defendant guilty if it believed that he had engaged in anal intercourse with his wife. (Anal intercourse is an abominable and detestable crime against nature punishable by up to twenty years' imprisonment. See G.L. 1956 (1981 Reenactment) § 11-10-1; State v. Santos, 122 R.I. 799, 413 A.2d 58, 65 (1980).) The instruction was both erroneous and highly prejudicial and even standing alone would require that we grant a new trial.
For the reasons stated, the defendant's appeal is sustained and the judgment entered in the Superior Court is vacated. The papers in the case may be remanded to the Superior Court for a new trial.
BOURCIER, J., did not participate.
NOTES
[1] Contrary to the state's contendtion, we find each claim of error that we shall address ion this opinion to have been sufficiently preseverd for appeallate review.
[2] The defendant claims that two other witnesses also impermissibly vouched for Amy's credibility. We desgree defendent's contention with respect to these two witnesses.
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825 F.2d 414
U.S.v.Richard (Steven Allen)
NO. 87-5027
United States Court of Appeals,Ninth Circuit.
AUG 05, 1987
1
Appeal From: S.D.Cal.
2
REVERSED.
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NUMBER 13-99-632-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
JIMMY WELLS , Appellant,
v.
THE STATE OF TEXAS , Appellee.
___________________________________________________________________
On appeal from the 28th District Court
of Nueces County, Texas.
____________________________________________________________________
O P I N I O N
Before Chief Justice Seerden and Justices Dorsey and Rodriguez
Opinion by Chief Justice Seerden
Appellant Jimmy Wells was indicted for indecency with a child. Wells signed a judicial confession and pleaded guilty
in exchange for a three year sentence. The trial court found Wells guilty and imposed sentence in accordance with the
plea agreement. Wells appeals his conviction in three separate issues. In his first issue, Wells contends that he was
deprived of his constitutional right to representation. Second, Wells argues that he was denied effective assistance of
counsel. Finally, Wells contends that his plea was involuntary. In response, the State contends that the appellate
record contains no evidence rebutting the presumption that Wells's trial attorney effectively represented him during
post-judgment proceedings, and that the record fails to substantiate Wells's claim that his plea was involuntary. We
affirm.
Jurisdiction
Appellant brings this appeal from a plea bargain to a felony offense, and the punishment assessed did not exceed the
punishment recommended by the prosecutor and agreed to by the defendant. Appellant filed only a general notice of
appeal, and thus failed to comply with the specific notice requirements of rule 25.2(b)(3) of the Texas Rules of
Appellate Procedure. See Tex. R. App. P. 25.2(b)(3). In felony offenses involving an agreed plea of guilty where the
punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice
of appeal must specify that (1) the appeal is for a jurisdictional defect, (2) the substance of the appeal was raised by
written motion and ruled on before trial, or (3) the trial court granted permission to appeal. See Tex. R. App. P.
25.2(b)(c). Because appellant appeals a judgment rendered on a plea of guilty pursuant to a plea bargain, and the
punishment assessed was within the range agreed to by the prosecutor and the defendant, we must consider the
threshold issue of whether appellant's general notice of appeal is sufficient to confer jurisdiction on this Court.
On appeal, appellant does not assert any jurisdictional defects in the proceedings below. See Tex. R. App. P.
25.2(b)(3)(A). Appellant's claim that he was denied his constitutional right to assistance of counsel during the critical
period when a motion for new trial court could have been filed does not raise a jurisdictional issue. See Godbehere v.
State, 882 S.W.2d 57, 58 (Tex.App.--Amarillo 1994, no pet.)(citations omitted). Thus, this issue is not preserved by a
general notice of appeal. Id. Further, appellant does not contend that his appeal arises from an issue raised by written
motion and ruled on before trial. See Tex. R. App. P. 25.2(b)(3)(B). Finally, appellant's notice of appeal does not
state that the court granted him permission to appeal. See Tex. R. App. P. 25.2(b)(3)(C).
We conclude that appellant's general notice of appeal fails to comply with the specific notice requirements of the
appellate rules. However, a plea bargaining defendant who has failed to comply with the notice requirements of this
rule can nevertheless challenge the voluntariness of his plea. See Marshall v. State, 28 S.W.3d 634, 637
(Tex.App.--Corpus Christi 2000, no pet.). Therefore, although we do not have jurisdiction to address appellant's
claims insofar as they concern ineffective assistance of counsel, we do have jurisdiction over a claim of involuntariness
of the guilty plea, and will proceed to address that issue on the merits.
Applicable Law
To succeed on a claim that his plea was involuntary due to ineffective assistance of counsel, appellant must
demonstrate from the record that (1) counsel's assistance was outside the range of competence demanded of attorneys
in criminal cases, and (2) there is a reasonable probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex Parte
Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
The determination regarding whether a defendant received effective assistance of counsel must be made according to
the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances
of the case in evaluating the effectiveness of counsel. Id.
The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at
813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional
assistance. To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v.
State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851
(1997).
Before a plea of guilty or plea of nolo contendere may be accepted by the court it must be freely and voluntarily given
by a mentally competent defendant. Tex. Crim. Proc. Code Ann. art. 26.13(b) (Vernon Supp. 2000). The
constitutional validity of a guilty plea made upon the advice of counsel depends on whether counsel's performance was
reasonably competent, rendering a defendant effective representation during the particular proceedings. Ex parte
Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). A defendant's election to plead guilty or nolo contendere when
based upon erroneous advice of counsel is not done voluntarily and knowingly. Id.
Analysis
In the instant case, the record from the plea hearing shows that appellant told the court that he understood the
proceedings that were taking place. Appellant stated that the court's written admonishments, including the
supplemental admonishments, had been explained to him and confirmed that his signature appeared in three separate
places on those documents. Appellant admitted that he was pleading guilty because he was in fact guilty, that no one
had forced him to enter the plea, and that he was entering the plea freely and voluntarily. Appellant executed a judicial
confession and stipulation, and told the court that he had reviewed the documents attached to his confession. He
acknowledged that his signature appeared on the first page of the confession. The court explained that the plea
agreement involved incarceration for three years in the Texas Department of Criminal Justice, and appellant confirmed
that was also his understanding of the agreement. Although given an opportunity to make a statement to the court prior
to the imposition of sentence, appellant did not further address the court.
During the pendency of this appeal, this Court remanded the matter to the trial court for a determination of whether
appellant wanted to proceed with his appeal and whether he was entitled to proceed as an indigent. At that hearing,
appellant's attorney sought to adduce evidence pertaining to the voluntariness of Wells's plea. The judge, who was not
the same judge that heard appellant's original plea, questioned appellant about the voluntariness of his plea. The judge
further allowed appellant's attorney to briefly address the issue on the record, but did not allow counsel full latitude to
develop a record regarding the voluntariness of appellant's plea.
The trial court confirmed that appellant was represented by counsel when he entered his plea, and that appellant did
not tell the judge who heard his plea that he was displeased with counsel's representation. The court asked appellant if
he understood the plea proceedings, to which question appellant responded "kind of, sort of, yes sir," and "yes and no."
Appellant told the judge that he understood what the judge who accepted the plea had told him.
In response to questioning from his attorney, appellant testified that he graduated from high school in a special
education program. Appellant testified that although he could read "certain things," he sometimes did not understand
what they meant. Appellant's attorney explained pertinent documents to him "real fast," did not go through the
documents paragraph by paragraph, and instructed him to sign the documents. Appellant testified that his attorney did
not "really" explain the charges against him, that "he did, but he didn't." Appellant stated that his attorney visited him
in jail for approximately ten minutes, and told him that he "didn't have a chance." Appellant did not know if his
attorney had conducted an investigation, contacted any witnesses, or reviewed his presentence investigation report. The
trial court refused to allow additional testimony pertinent to the voluntariness issue on grounds that the purpose of the
hearing was to determine the status of Wells's appeal and whether he was indigent.
The record before this Court does not establish the content or the extent of communications between Wells and his
trial attorney, the extent of his attorney's investigation and trial preparation, or the degree to which Wells may have
been unable to comprehend the pertinent documents or the proceedings at issue. Under these circumstances, in light of
the record and the presumption that counsel's performance was reasonably professional, we cannot conclude that Wells
received ineffective assistance of counsel rendering his plea involuntary. See Gottson v. State, 940 S.W.2d 181,
185-86 (Tex.App.--San Antonio, 1996, pet. ref'd).
Conclusion
We are limited to the record before us on direct appeal. SeeThompson, 9 S.W.3d at 814-15 (contrasting direct appeals
and habeas proceedings in cases involving ineffective assistance). Given the record before us, we determine that
appellant has not met his burden to prove that trial counsel's representation fell below an objective standard of
reasonableness and that this deficient performance caused him to enter a guilty plea.
The judgment of the trial court is affirmed.
ROBERT J. SEERDEN, Chief Justice
Do not publish .
Tex. R. App. P. 47.3.
Opinion delivered and filed
this 28th day of December, 2000.
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ACCEPTED
06-14-00221-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/22/2015 2:39:48 PM
DEBBIE AUTREY
CLERK
No.06 -14-00221-CR
COURT OF APPEALS FILED IN
6th COURT OF APPEALS
SIXTH DISTRICT OF TEXAS TEXARKANA, TEXAS
TEXARKANA 7/22/2015 2:39:48 PM
DEBBIE AUTREY
Clerk
Brian Woodard
Appellant
vs
The State of Texas
Appellee
________________________________________________________
APPEAL FROM THE 254TH DISTRICT COURT OF HUNT
COUNTY, TEXAS
RICHARD BEACOM, PRESIDING
__________________________________________________________
REPLY BRIEF OF APPELLANT
__________________________________________________________
Charles E. Perry
State Bar No. 15799700
1101 Main Street
P.O. Box 720
Commerce, Texas 75429
Tel. 903-886-0774
Fax. 903-886-2043
Cell. 940-613-8439
Attorney for Mr. Woodard
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
BRAIN EUGENE WOODARD
BUSTER COLE UNIT, 3801 SILO ROAD ROAD
BONHAM, TEXAS 75418
ATTORNEY FOR APPELLANT
On Appeal:
Charles E. Perry
State Bar of Texas No. 15799700
1101 Main Street
Commerce, Texas 75429
ATTORNEY FOR THE STATE OF TEXAS
Kelli M. Aiken
Assistant District Attorney Hunt County
2500 Lee Street,
Greenville, Texas 75440
ii
Table of Contents
Identity of parties and counsel……………………….............................................ii
Table of Contents…………………………………………………………………iii
Index of Authorities……………………………………………………………….iv
I.Statement of the Case…………………………………………………………….1
II.Statement Regarding Oral Argument……………………………………………1
III.Issues Presented……………………………………………………………… 1-2
IV.Statement of Facts………………………………………………………………2
V.Summary of the Argument…………………………………...………………3&4
VI.Argument and Authorities………………………………………………………4
1. The trial court committed reversible error in admitting and considering the
testimony of trooper Zane Rhone with respect to the stop and search for drugs after
he finished or should have finished his duties with respect to the traffic citation for
which the Appellant was stopped.
2. The trial court committed reversible error in admitting the testimony of trooper
Zane Rhone with respect to the stop and search for drugs since there was no
probable cause to stop the Appellant and the automobile the Appellant was driving.
VII. Conclusion and Prayer………………………………………...……………..13
Signature……………………………………………………………………….… 13
Certificate of
Service…………………………………………………………………..……..….13
iii
Index to Authorities
Cases:
Caballas v. United States, 405 U.S. 405(2005)……………………………..…4,5,8
Delaware v.Prause, 440 U.S. 675 at 686…………………………………….5,6,7,8
Florida v. Royer, 460 U.S. 491, 500 (1983)………………………………………4
Ford v. State, 158 S.W.3d 488(Tex.Crim.App.2005)…………………………..…9
Garcia v. State, 43 S.W. 3d 529, 530…………………………………………10,12
Maryland v. Pringle, 540 U.S. 371(2003)……………………………….……10.12
Rodriguez v. United States, 575 U.S. 1609 (2015)………………………..3,4,6,7,8
Terry v. Ohio, 392 U.S. 1(1968……………………………………………………4
United States v. Sharp,470 U.S. 675 at 686…………………………………...…4,5
United States v. Smith, 799 F.3d 704, 708(11th Cir.1986)……………………...6,10
Statutes:
Ohio Revised Code section 4501;4503.19-22;4513.02………………………4,9,11
Texas Transportation Code section 545. 062…………………………………...… 9
504.945………….…………..........................................................................2
United States Constitution
Article IV section 1-Full Faith and Credit Clause………………………………4,10
Fourth Amendment-Unreasonable Search and Seizure………………………….…6
iv
I. STATEMENT OF THE CASE This case involves Brian Eugene Woodard who
was charged and indicted with the felony offense of possession of a controlled
substance, namely cocaine, in an amount of 400 grams or more .(CR 8). He was
tried before the 254th District Court of Hunt County, Texas without a jury
beginning on October 20, 2014, 2014(See RR, V1-8). He was found guilty and
sentenced to 40 years in the Institutional Division of the Texas Department of
Criminal Justice on December 4, 2014. (CR 93-96). At trial, the defense raised and
completed the requirements for a necessary defense. The trial judge denied this
request. This appeal follows.
II. STATEMENT REGARDING ORAL ARGUMENT
The Appellant does not request Oral Argument.
III. ISSUES PRESENTED
The issues presented for review are:
1.The trial court committed reversible error in admitting and considering the
testimony of officer Zane Rhone with respect to the stop and search for drugs after
he finished or should have finished his duties with respect to the traffic citation for
which the Appellant was stopped.
2.The trial court committed reversible error in admitting the testimony of officer
1
Zane Rhone with respect to the stop and search for drugs since there was no
probable cause to stop the Appellant and the automobile Appellant was driving.
IV. STATEMENT OF THE FACTS
Trooper Zane Rhone was working on I-30 in Greenville, Hunt County, Texas when
he first observed the Appellants car. (RR8/, p.11/19-25; p.12/1-25)The Appellant
was stopped by DPS trooper Zane Rhone for following to close and not being able
to read the name of the State on the license plate (RR8/ p. 12/21-25;p.13/1-4;13/5-
12. Trooper Rhone testified the law prohibits more than half of the name of the
state from being obscured.(RR8/ p. 13/17-22). Trooper Rhone testified that the
Appellant was following to close to come to a stop to keep from colliding.(RR8/
p.13/23-25;p.14/1-2;14/3-25) His testimony placed the Appellant at 40 feet from
the car in front when it should have been 157 feet.(RR8/ p. 16/1-5). Officer Rhone
testified later that there was nothing in his official report about stopping the
Appellant for following to close to the car in front.(RR8/p.65/22-25;p. 66/1-5;
p.66/6-14). Trooper Rhone testified that while he was on the side of the road he did
not observe the Appellant following to close or his license plate being obstructed.
(RR8/ p.62/7-22).Texas Transportation Code sec.504.945. He testified that he
started up after the Appellant because he was curious as to two clean cars that did
not have Texas plates.(RR8/, 63/2-9). He testified that when he pulled on to the
2
road because the car was clean this was not probable cause to stop the
Appellant(RR8/.p.79/17-25; 80/1-6).When trooper Rhone stopped the Appellant he
could smell air freshner and the car was clean (RR8/ p.17/16-22;18 p.18/2-5). His
testimony was that after the stop he could see that the plates were from Ohio
(RR.8/ P.16 /15-21. Trooper Rhone testified that the Appellant said that the license
plate bracket came from the dealer the way it was.(RR8/ p. 51/5-25; 52/1-5).
Appellant grandfather Mack Woodard testified that he bought the car in 2013 and
that the license plate frame came from the dealership where it was installed.(RR8/.
p. 101/ 2-25).
While talking to the Appellant trooper Rhone testified that he was getting his
warning started.(RR8/. p. 25/ 11-15). Officer Rhone had testified while talking to
the Appellant he told the Appellant that he would get a warning but he said at that
time he had not written the warning.(RR8/ p.20/15-180).
V.SUMMARY OF THE ARGUMENT
A. The Appellant was detained and question beyond the reasonable time it should
have taken to issue a warning ticket for what the Texas Department of Public
Safety said Appellant was in violation of traveling to close to the car in front and
an obstructed license plate under Texas law and thus any and all contraband as a
result of the stop and search should have been suppressed. Rodriquez v. United
States, 575 U.S. 1609(2015)
3
B. The Appellant had the right to proceed down Interstate 30 in Hunt County,
Texas free from a stop by the Texas Department of Public Safety since the State of
Texas should recognize Ohio Revised Statutes 4501 et. seq. which allows and does
not prohibit the type of bracket placed on the vehicle Appellant was driving by the
dealer and used to secure the Appellants Ohio license plate under Article 4 section
1 of the “full faith and credit clause” of the United States Constitution. The stop of
the Appellant was unreasonable and pretextual.
VI. ARGUMENT AND AUTHORITIES
A. The court erred in admitting and considering the evidence of the search as well
as the contraband. The stop in the instant case was much like the stop in Terry v.
Ohio, 392 U.S. 1 (1868). In the case at bar we are dealing with the tolerable
duration of a police inquiry in a traffic stop context as determined by the seizure’s
mission—to address the traffic violation that warranted the stop. Caballes v.
United States, 405 U.S. 405 at 407. In United States v. Sharp,470 U.S
675,685(1985); Florida v. Royer, 460 U.S. 491,500(1983). This is where the scope
of the detention must be carefully tailored to the underlying justification. This is
only because the purpose of the stop may last longer than necessary to effectuate
the purpose. This was not done in the case at bar. The stop and lengthy detention
4
was what Caballes tries to prevent. Trooper Zane Rhone of the DPS when talking
to the Appellant told the Appellant he would be getting a warning but had not yet
written out the warning.(RR.8/ p. 20/15-18). Later while talking to the Appellant
trooper Rhone got the warning started.(RR. p. 11-15). Trooper Rhone had ample
time to complete the warning but did not do so. The authority for trooper Rhone
seizure of the contraband ended before he searched and seized the contraband
because of his delay in completing the task incident to the issuance of the traffic
warning ticket. The case at bar is similar to where the court said in United States v.
Sharp,470 U.S. 675 at 686 where the court said that the authority for the seizure
ends when the tasks tied to the traffic infraction are—or reasonably should have
been completed. The fact that officer Raine noticed that the car was clean of
smelled of air freshner (RR8/ p.17/15-22;p.18/ 2-5) does not justified a prolonged
stop time wise. Trooper Rhone admitted so as he pulled onto the road when he saw
the Appellant’s vehicle.(RR8/ p. 79/17-25); 80/1-6). The court laid out in Caballes,
543 U.S. at 408 that beyond determining whether to issue a traffic ticket, an
officer’s mission includes “ordinary inquires incident to the traffic stop. These
were set out in Delaware v. Prause, 440 U.S. 648, 659-660(1979) and included
inquires involving checking driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the automobile’s
registration and proof of insurance. In the case at bar all this was done and there
5
was no reason or probable cause for delay to justify a search and seizure of
contraband. For these reasons the contraband evidence should have been
suppressed and not admitted into evidence and considered by the court under the
4th Amendment to the United States Constitution as well as the case of Rodriguez
v. United States, 575 U. S. 1609(2015).
Both State and Appellant have cited Rodriguez v, Untied States, 135 S. Ct.
1609 and this case sheds light on the instant case. As set out in the state’s brief
citing Rodriguez at 1615 the court sets out four prongs that measure the legality of
a traffic stop with respect to the time length and the necessity of issuing a ticket
and addressing safety concerns.
See Delaware v. Prouse, 440 U.S. 648, 658-660(1979).1. Trooper Rhone
could have issued a warning or violation ticket had he chose to do so 2.He checked
the drivers license and identification 3. He easily had time to verify the registration
and insurance and 4. He had time to determine if the Appellant or other occupant
had outstanding warrants which they did not.
Just because the occupant had a record (Appellant misdemeanors only)
with no outstanding warrants did not give Trooper Rhone the right to go further.
This would be true even after Trooper Rhone went further and found a .22 caliber
pistol in the glove box. The pistol was not open and obvious and the Appellant was
not prohibited from carrying a pistol because he was not engaged in any illegal
6
activity that was known to Trooper Rhone and was travelling. Trooper Rhone said
that he could not place gun with Appellant as the gun was in the glove box and
Appellant was away from the vehicle when the gun was found.(RR8/ p. 69 lines
23-25 and p. 70 lines 1-24). He also said that a person who is traveling had a right
to carry a firearm as long as he is not a convicted felon (RR 8/ p. 71 Lines 14-25)
Appellant urges upon the court that the case at bar is a timing case much
like Rodriguez. While speaking with Appellant early on, trooper Rhone starting
writing a warning ticket while waiting on a return from dispatch.. He recieved
partial information back from dispatch during this conversation with
Appellant.(RR8/ p. 25 lines 10-17)
The return from dispatch did not contain information under the doctrine laid
down in Delaware v. Prouse, 440 U.S. 648, 650-660(1979) that would warrant
trooper Rhone from going further.(vehicle occupant Mr. Person was a convicted
felon but there was no warrants on him).
So as to measure the time line of the stop we can look at a line of
questioning by the state during the redirect examination of trooper Rhone. The
state ask trooper Rhone a line of questions with respect to Appellants alleged
obstructed license plate and how many times he mentioned the obstructed plate in
The case at bar is a case that squares with Rodriguez and is just like Rodriguez, a
time and delay case even though Rodriguez was a delay for a drug dog. The instant
7
case falls under Rodriguez and the time restraints Rodriguez places on such cases
after the four prongs are satisfied and not delayed.
In order to evaluate the time the Appellant is urging upon the court we can
look at the times testified to by trooper Rhone with respect to the video(Exhibit
3).(RR/8 p. 77 lines 2-17). Those times were 1:15, 1:35, 2:04, 2:15, 2:34 and 6:00
(RR/8 p. 77 lines 21-25 and p. 78 lines 1-3). The stop and detention is what the
holding in Caballas tries to prevent when the court held a traffic stop “can become
unlawful if it is prolonged beyond the time reasonably required to complete the
mission of issuing a warning ticket.
In summary there is no evidence with respect to the four prongs set out
above in Callallas and cited recently in Rodriguez , found in the facts of the instant
case to justify the time delay found here beyond the time to write the traffic ticket.
B. The Appellant was stopped by DPS trooper Zane Rhone for following to close
and not being able to read the name of the state on the license plate(RR8/ p.12/21-
25;p. 13/1-4;13/ 5-12. Officer Rhone testified that the Appellant was following to
close to keep to come to come to a stop from colliding.(RR8/ p. 13/23-25; p.14/1-
2; 14/3-25.His testimony placed the Appellant at 40 feet from the car in front when
it should have been 157 feet(RR p.16/1-5.However trooper Rhone further testified
that there was nothing in his official report of the incident at bar about the
Appellant following to close to the car in front(RR8/ p.65/ 22-25; p.66/1-5;66/ 6-
8
14). He also testified that while he was on the side of the road he did not observe
the Appellant following to close or his license plate being obstructed.(RR8/ p.
62/7-22). The state therefore did not sustain their burden with respect to following
to close as probable cause to stop the Appellant under Texas Transportation Code
section 545.062. In Ford v State, 156, S.W.3d 488 (Tex. Crim. App. 488, 493-494)
the court held that there had to be more than such statements of conclusion in order
to justify a stop for the reason of following to close.
Trooper Rhone testified that he started up to follow the Appellant because he
was curious as to two clean cars that did not have Texas plates.(RR p. 63/2-9). The
officer testified further that he pulled upon the road because the car was clean but
this was not probable cause to stop the Appellant (RR8/ p. 79/ 17-25; 80/1-6). The
officer went on to testify that after pulling the Appellant over he could see that the
license plate was OHIO. According to trooper Rhone the Appellant told him that
the license plate holder plate came the way it was from the dealer.(RR8/p.51/5-25;
52/1-5). Appellants grandfather Mack Woodard confirmed this by testifying that the
license plate frame came from the dealer where it was installed.(RR8/p.101/ 2-25).
Under Ohio Revised Statutes sections 4501; 4503.19-22;4513.02 there are no
obstructive plate restrictions on Ohio license plates dealing with holder or frame
and the Ohio law was complied with at the dealership(RR8/ p.51/5-25;52/1-5).
When considering the evidence from Trooper Rhone as well as the Appellants
9
grandfather Mack Woodard the Appellants argues that the state of Texas should be
obligated to follow Ohio law under the “full faith and credit clause” of the United
States Constitution. In determining when an investigative stop is unreasonably pre-
textual, the proper inquiry is not whether the officer could validly have made the
stop but whether the officer under the same circumstances a reasonable officer
would have made the stop in the absence of an invalid purpose. United States v.
Smith, 799 F2d 704, 708( 11th Cir. 1986).When the testimony and reasoning of
trooper Rhone is considered in its entirety the stop is and was pretextual and thus
unreasonable.
The State cites the doctrine laid down in Maryland v. Pringle, 540 U.S.
371(2003) that espoused the objective view of the “totality of the circumstances”
when viewing the circumstances of a law enforcement officer when making an
arrest.. This is a good step in evaluating the circumstances of the instant case. Next
the state lays out the doctrine of reasonable suspicion “that criminal activity will
occur shortly. Garcia v. State, 43 S.W. 3d 529, 530.
These two cases place a burden on the state that does not seem to be met with
respect to the facts of the case at bar.
We look at the two reasons stated by Trooper Rhone for the justification for
the stop of the Appellants vehicle. Trooper Rhone testified that Appellant was
following to close.(RR/8 p. 12, lines 5-17 and 55-66). Interstate 30 through Hunt
10
County is very congested and vehicles stack up close including trucks and this
situation could be aggravated by the truck traffic passing each other and cars lined
up trying to get through. Trooper Rhone could stop nine out of 10 vehicles for
something because of the congested mess at times. Ford v. State, supra. told us that
a statement of conclusion such as following too closely does not justify a stop
without more.
The next prong for the justification of the stop by Trooper Rhone was the
partial cover of the license plate. Trooper Rhone did not size the Appellants license
plate after the stop (RR8/ p.66 lines 21-22).
Appellant begs the court’s indulgence but will again reiterate the Ohio Revised
Statutes 4501; 4503; 19-22; 4513:02 that covers the situation with respect to where
the Appellants vehicle was bought, registered and titled. This state does not
preclude a partial covering of the plate by a license plate cover. Every state gives
full faith and credit to sister states vehicle license laws because there is such a
variance from state to state. As set of above the buyer of the appellants vehicle his
grandfather testified that the cover and plate came that way from the dealer.(RR8/p.
51 lines 5-25 and p. 52 lines 1-5).
Trooper Rhone admitted that even thought Texas requires a front license plate
may sates do not and he does not pull such vehicles over when they do not display a
11
front plate, thus giving full faith and credit to these sister state’s license plate
laws.(RR8/ p. 74 lines 11-15; p. 75 lines 1-25 and p. 76 lines 1-13).
As experienced and good a law enforcement officer is as Trooper Rhone is,
these facts would not seem to justify a stop under the facts he laid out on Interstate
30 in Hunt County under both Pringle and Garcia, supra.
The search for contraband after the stop began with the observations laid out
by the state in their brief. Trooper Rhone and his experience with the cleanliness
and smell of freshness vehicles as applied to the Appellants vehicle. (RR8/ p. 12,
lines 5-17 and p 18, lines 2-16)
Suppose there were two elderly gentlemen with gray hair travelling on
Interstate 30 in Hunt County, Texas with out of state plates and the vehicle was
extremely clean and smelled of air freshness would Trooper Rhone have drawn the
same suspicions as he set out in his testimony (RR8/ p. 10, lines 12-19). Saying
further Appellant would show that trooper Rhone testified that the subject vehicle
was brand new (RR8/ p.16 lines 6-10).Brand new vehicles are clean and have
freshners.
The Appellant notes that there was no narcotics found on the person of
Appellant or other occupant of Appellants vehicle on in the passenger compartment
but the contraband that was found under the air intake filter cover that I under the
hood in the engine compartment.(RR8/ p. 33 line 25 and p. 34 line 1.)
12
VII.
Conclusion and Prayer
For the reasons stated in the Appellants Brief the Appellant requests this Court to
REVERSE the conviction and sentence of the defendant Brian Woodard and order
an acquittal or in the alternative remand the case to the trial court for a new trial.
Respectfully submitted,
By:/s/Charles E. Perry
1101 Main Street
Commerce, Texas 75428
State Bar No. 15799700
Tel:903-886-0774
Fax:903-886-2043
CERTIFICATE OF COMPLIANCE WITH T.R.A.P.9.4(1)(3)
Relying on Microsoft Word count feature used to create the Reply Brief of the
Appellant, I certify that the number of words contained in this brief is 3505 and the
typeface used is 14 font.
Certificate of Service
nd
I certify on the 22 day of July, 2015, a true and correct copy of the foregoing was
delivered by email and to counsel for the state of Texas, Hunt County District
Attorney’s Office at the Hunt County Courthouse located at 2500 Lee Street in
Greenville, Hunt County, Texas by Charles E. Perry, Counsel for the defendant
Brian Woodard.
/s/ Charles E. Perry
13
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516 F.Supp.2d 917 (2007)
WISCONSIN CENTRAL LTD., an Illinois corporation, Plaintiff,
v.
Catherine SHANNON and Nancy McDonald, Defendants.
No. 07 C 994.
United States District Court, N.D. Illinois, Eastern Division.
September 21, 2007.
*918 James Stanton Whitehead, Sarah Marie Konsky, Scott Edward Gross, Sidley Austin LLP, Chicago, IL, for Plaintiff.
Leeann Richey, Raymond G. Garza, Office of the Attorney General, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
RUBEN CASTILLO, District Judge.
Wisconsin Central Ltd. ("Plaintiff'), filed this action for declaratory and injunctive relief against Defendants Catherine Shannon ("Shannon"), the Director of the Illinois Department of Labor ("DOL"), and Nancy McDonald ("McDonald"), a DOL Compliance Officer, in their official capacities (collectively "the Defendants"). (R. 11, Am.Compl.) Plaintiff seeks a determination regarding whether overtime claims raised by Plaintiff's employees through the DOL under the Illinois Minimum Wage Law ("Wage Law"), 820 ILCS § 105/1-15, are preempted by the federal Railway Labor Act ("the Railway Act" or "the Act"), 45 U.S.C. §§ 151-188. (R. 11, Am. Compl. at 1.) Presently before the Court are the parties' cross-motions for summary judgment. (R. 21, Pl.'s Mot. for Summ. J.; R. 17, Defs.' Mot. for Summ. J.)[1] For the *919 following reasons, Defendants' motion for summary judgment is denied, and Plaintiff's motion for summary judgment is granted.
RELEVANT FACTS[2]
Plaintiff is an interstate freight railroad with operations in Illinois, Michigan, Minnesota, and Wisconsin. (R. 35, Defs.' Resp. to Pl.'s Facts ¶¶ 1, 6). Plaintiff is a rail "carrier" engaged in interstate commerce within the meaning of the Railway Act, 45 U.S.C. § 151, and is subject to the provisions of the Act. (Id. ¶ 1) Plaintiff employs five categories of employees who perform work in Illinois: communications and signal employees ("CSEs"), conductors, locomotive engineers ("engineers"), maintenance-of-way employees ("MWEs"), and certain management employees. (Id. ¶ 7.) These employees also perform work for Plaintiff outside of Illinois on an ongoing or intermittent basis. (Id.) The CSEs, conductors, engineers, and MWEs are members of bargaining units represented by labor organizations that the National Mediation Board ("Mediation Board") has certified pursuant to the Railway Act. (Id.) Each of the four labor organizations has negotiated a collective bargaining agreement ("CBA") with Plaintiff to govern the terms and conditions of employment for their respective members. (Id. ¶¶ 10, 12, 14, and 16.)
A. The Overtime Applications
The DOL is an Illinois administrative agency possessed with authority to investigate and enforce overtime and other provisions of the Wage Law, which provides in pertinent part:
[N]o employer shall employ any of his employees for a workweek of more than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than 1½ times the regular rate at which he is employed.
820 ILCS § 105/4a(1). Between April 2005 and November 2005,[3] the DOL received Minimum Wage and Overtime Claim Applications ("applications") from five of Plaintiff's employees ("claimants"), who alleged that Plaintiff had violated the Wage Law's overtime pay provision. (R. 38, Pl.'s Resp. to Defs.' Facts ¶ 2; R. 33-2, Defs.' Mem. in Supp., Ex. B, McDonald Decl., Group Ex. 1.) In their applications, all five claimants stated that they held the position of "Tech A, Signal Maintainer" with Plaintiff and that their primary duties were to maintain railroad crossings and signal systems, among other job responsibilities. (R. 38, Pl.'s Resp. to Defs.' Facts ¶ 4; R. 33-2, Defs.' Mem. In Supp., Ex. B, McDonald Decl., Group Ex. 1.) Four of the claimants listed a home address in Illinois, and one claimant listed a home address in Wisconsin. (R. 33-2, Defs.' Mem. In Supp., Ex. B., McDonald Decl., Group Ex. 1.) All five claimants stated in their applications that Plaintiff had an office in Illinois. (R. 38, Pl.'s Resp. to Defs.' Facts ¶ 3.)
McDonald was assigned to investigate the allegations contained in the applications. (Id. ¶¶ 5-6.) On August 22, 2006, McDonald sent a letter to Plaintiffs office *920 in Homewood, Illinois, stating that the DOL was investigating whether Plaintiff violated the overtime pay provisions of the Wage Law with respect to the wages paid to its signal employees. (R. 11-7, Am. Compl., Ex. 5 at 1.) McDonald requested that Plaintiff provide payroll records relating to hours worked and wages paid to its signal maintainers from September 2003 to the present. (Id.; R. 38, Pl.'s Resp. to Def.'s Facts ¶ 8.)
On September 5, 2006, Constance Valkan ("Valkan"), Plaintiff's in-house counsel, replied to McDonald's letter, stating that Plaintiff's signal maintainers were represented by the Brotherhood of Railway Signalmen ("BRS"), and that the wages and hours of its signal maintainers, including overtime pay, were established by a CBA negotiated with BRS. (R. 35, Defs.' Resp. to Pl.'s Facts ¶ 19; R. 11-8, Am. Compl., Ex. 6 at 1.) Valkan also asserted that as applied to Plaintiff's unionized employees, the overtime pay provisions of the Wage Law were preempted by the Railway Act. (R. 35, Defs.' Resp. to Pl.'s Facts ¶ 19; R. 11-8, Am. Compl., Ex. 6 at 1-2.)
On January 29, 2007, McDonald responded to Valkan's letter, stating that because the DOL currently had no Chief Counsel, she was unable to obtain legal review of Plaintiffs position regarding preemption, and that she would be proceeding with her investigation. (R. 35, Defs.' Resp. to Pl.'s Facts ¶ 20.) McDonald informed Valkan that if Plaintiff did not voluntarily produce the payroll records she had requested in her August 22, 2006 letter, she would issue a subpoena calling for production of those records pursuant to 820 ILCS § 105/7(c). (Id.) Shortly thereafter, DOL decided to expand the scope of its investigation to include all of Plaintiff's employees. (R. 38, Pl.'s Resp. to Defs.' Facts ¶¶ 11-12.) On March 2, 2007, DOL issued a subpoena to Plaintiff seeking time and payroll documents for every person employed by Plaintiff from September 1, 2003 through February 8, 2007. (R. 35, Defs.' Resp. to Pl.'s Facts ¶ 21; R. 11-9, Am. Compl., Ex. 7 at 2.) Those documents have not been produced, and because Plaintiff initiated this action, the DOL agreed to suspend the deadline for compliance with the subpoena pending a resolution of this lawsuit. (R. 35, Defs.' Resp. to Pl.'s Facts ¶ 21.)
B. The Collective Bargaining Agreements
Plaintiff negotiated CBAs with the four labor organizations that represent Plaintiffs non-management employees. (R. 11, Am.Compl., Ex. 1-4, CBAs.)
BRS, the labor organization that represents CSEs employed by railroads in the United States, is a "representative" within the meaning of the Railway Act and was certified by the Mediation Board on April 4, 2003 to be the designated representative of Plaintiff's CSEs, including the five signal maintainers who filed complaints with the DOL. (R. 35, Defs.' Resp. to Pl.'s Facts ¶¶ 9, 19.) Among other provisions, the CBA negotiated with BRS contains provisions governing wage rates, work hours, and overtime pay. (R, 11-2, Am.Compl., Ex. 1.)
The United Transportation Union ("UTU") is the labor organization that represents conductors employed by railroads in the United States. (R. 35, Defs.' Resp. to Pl.'s Facts ¶ 11.) UTU is a "representative" within the meaning of the Railway Act and was certified by the Mediation Board on July 22, 1997, to be the designated representative of Plaintiffs conductors. (Id.) Among other provisions, the CBA negotiated with UTU contains provisions governing wage rates, work hours, and overtime pay. (R. 11-3, Am.Compl., Ex. 2.)
*921 The Brotherhood of Locomotive Engineers ("BLE") is the labor organization that represents engineers employed by railroads in the United States. (R. 35, Defs.' Resp. to Pl.'s Facts ¶ 13.) BLE is a "representative" within the meaning of the Railway Act and was certified by the Mediation Board on July 22, 1997, to be the designated representative of Plaintiff's engineers. (Id.) Among other provisions, the CBA negotiated with BLE contains provisions governing wage rates, work hours, and overtime pay. (R. 11-4, Am.Compl., Ex. 3.)
The Brotherhood of Maintenance of Way Employees ("BMWE") is the labor organization that represents MWEs employed by railroads in the United States. (R. 35, Defs.' Resp. to Pl.'s Facts ¶ 15.) The BMWE is a "representative" within the meaning of the Railway Act and was certified by the Mediation Board on June 26, 2002, to be the designated representative of Plaintiffs MWEs. (Id.) Among other provisions, the CBA negotiated with BMWE contains provisions governing wage rates, work hours, and overtime pay. (R. 11-5, Am. Compl., Ex 4.)
PROCEDURAL HISTORY
On February 21, 2007, Plaintiff filed a complaint in this Court seeking declaratory and injunctive relief regarding whether the DOL has jurisdiction to enforce the Wage Law with respect to Plaintiff's unionized employees. (R. 31, Am. Compl. ¶¶ 1-35.) Each party now moves for entry of summary judgment in their favor.
Plaintiff argues that it is entitled to summary judgment because the DOL's enforcement of the Wage Law is preempted in two respects: (1) enforcement will require interpretation of the CBAs that govern the terms of employment of Plaintiff's unionized employees and thus is preempted by the Railway Act; and (2) enforcement of the Wage Law is preempted under the doctrine of field preemption by the broad panoply of federal laws that regulate the interstate rail industry. (R. 22, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 1-2.) Conversely, Defendant argues that it is entitled to summary judgment because the Wage Law merely creates a minimum labor standard applicable to all Illinois workers and is not in conflict with, or preempted by, federal labor laws. (R. 18, Def.'s Mem. in Supp. of Mot. for Summ. J. at 1-2.)
LEGAL STANDARDS
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the Court "must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." King v. Preferred Tech. Group, 166 F.3d 887, 890 (7th Cir.1999). When deciding cross-motions for summary judgment, the Court must "construe the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Premcor USA, Inc. v. Amer. Home Assurance Co., 400 F.3d 523, 526 (7th Cir.2005).
*922 ANALYSIS
The Railway Act imposes a duty on rail carriers and their employees to make and maintain agreements "concerning rates of pay, rules and working conditions." 45 U.S.C. § 152. The Act also creates a comprehensive arbitral mechanism for the "prompt and orderly settlement" of disputes regarding those agreements. 45 U.S.C. § 151a(5). Congress intended the arbitral procedures established by the Railway Act to be mandatory and exclusive, and therefore neither state nor federal courts have jurisdiction to entertain disputes covered by the Act. Andrews v. Louisville & N.R.R. Co., 406 U.S. 320, 322-25, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972).
There are two classes of disputes covered by the Railway Act: "major disputes," which seek to create contractual rights, and "minor disputes," which seek to enforce those rights. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-53, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). Minor disputes are those that grow "out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions." 45 U.S.C. § 151a. Thus, the Railway Act preempts state law claims whose adjudication requires the application or interpretation of a CBA negotiated pursuant to the terms of the Railway Act.[4]Hawaiian Airlines, 512 U.S. at 252, 114 S.Ct. 2239; see also Gunther v. San Diego & A.E.R. Co., 382 U.S. 257, 261, 86 S.Ct. 368, 15 L.Ed.2d 308 (1965) (Congress vested Railway Act arbitration boards with exclusive jurisdiction to interpret CBAs because they are "peculiarly familiar with the thorny problems and the whole range of grievances that constantly exist in the railroad world.").
Here, Plaintiff argues that the overtime claims being investigated by the DOL constitute minor disputes within the meaning of the Railway Act. (R. 22, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 2-10.) To determine whether a minor dispute exists, the Court must consider whether resolution of the overtime claims would require the application or interpretation of the CBAs. Plaintiff argues that any calculation of overtime would require interpretation and application of the CBAs to determine both the "hours worked" and the "regular rate of pay" components of the overtime formula applicable under the Wage Law. (R. 22, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 5-10; R. 37, Pl.'s Reply Mem. at 4.)
DOL regulations implementing the Wage Law define "hours worked" as "all the time an employee is required to be on duty, or on the employer's premises, or at other prescribed places of work, and any additional time he or she is required or permitted to work for the employer." 56 Ill. Admin. Code § 210.110. This includes meal periods and time spent on-call away from the employer's premises, when such time is spent predominantly for the benefit of the employer. Id. Determining the time Plaintiffs employees are required to be "on duty," or at Plaintiffs premises or other locations, will require interpretation of the CBA provisions governing job duties. (See R. 11, Am. Compl., Ex. 1-4.) Further, under various circumstances covered by the CBAs, Plaintiffs employees are paid for hours during which they are not performing their primary duties, such *923 as when they are attending a training, appearing in court as a witness for the railroad, or are "held away" from their home terminal for a specified period. (See, e.g., R. 11-3, Am. Compl., Ex. 2, Art. 6, Art. 21; R. 11-5, Am. Compl., Ex. 4, Rule 29.) Calculating an overtime claim would require determining the specific circumstances under which an employee received compensation for a given period, and interpreting the relevant CBA provisions to determine whether the paid hours qualify as "hours worked" under the Wage Law. The CBAs also contain various provisions governing meal periods, on-call requirements, and travel time, all of which would need to be interpreted and applied in order to determine whether Plaintiff's employees were paid overtime wages in accordance with the Wage Law.
Similarly, "regular rate" is defined by DOL regulations to include all remuneration for employment paid to, or on behalf of, the employee. 56 Ill. Admin. Code § 210.410. Certain types of payments are excluded from the "regular rate," such as payments made for "occasional periods when no work is performed due to a vacation, holiday, illness, failure of employer to provide sufficient work, or other similar cause." Id. § 210.410(b). Also excluded is any premium pay made to the employee. Id. § 210.410(g). The regular rate can under certain circumstances include meals, lodging, and other fringe benefits. Id. § 210.200(a). Here, the CBAs contain numerous provisions governing base pay, premium pay, vacation pay, sick leave, personal leave, meals, lodging, and other fringe benefits that would have to be interpreted to determine the "regular rate" that applied to each of Plaintiffs employees for any given period. (See R. 11, Am. Compl., Ex. 1-4.) For these reasons, the Court agrees with Plaintiff that the overtime claims involve application and interpretation of the CBAs.
Although the Seventh Circuit has not ruled on this specific issue, courts in other jurisdictions have held that state law overtime claims are preempted by the Railway Act. For instance, in Adames v. Executive Airlines, Inc., 258 F.3d 7, 13 (1st Cir. 2001), the First Circuit addressed a similar set of facts involving a group of flight attendants who claimed they were not paid overtime by their employer in compliance with a state wage and hour law.[5] The Court noted the "peculiarities of industry-specific wage and benefit structures" that were apparent in the CBA at issue there, and concluded that interpretation and application of CBA provisions governing base and overtime pay, uncompensated work and standby time, maternity leave, meal periods, vacation, Christmas bonuses, and sick leave would be necessary to assess the plaintiffs' claims. Id. at 13-16. The Court rejected the defendant's argument that all that would be required is "mere reference to the terms of the [CBA], or to a calendar and a clock," and found that the claims required analysis of the CBA and were thus preempted. Id. at 16; see also Penn. Fed'n of BMWE v. Amtrak, 989 F.2d 112, 115 (3d Cir.1993) (state law overtime claim preempted by Railway Act because evaluating claim required interpretation of CBA as to employee's job duties); Amariglio v. Nat'l R.R. Passenger Corp., 941 F.Supp. 173, 180 (D.D.C.1996) (employee's wage and hour violation claims preempted by Railway Act because they required interpretation of CBA). We find the analysis in these cases persuasive.
Defendant argues that the overtime claims require only "consultation" *924 with and not interpretation of the CBAs because, in Defendant's view, "employees either worked a number of hours or they did not." (R. 33, Def.'s Resp. to Pl.'s Mot. for Summ. J. at 5.) Defendant is correct that a mere "glance" at a CBA is not enough for a claim to be preempted. As the Seventh Circuit explained in a case brought under the LMRA, "the overriding principle is that for preemption to apply, interpretation of the CBA and not simply a reference to it is required." In re Bentz Metal Prod. Co., 253 F.3d 283, 289 (7th Cir.2001) (emphasis in original). However, as applicable here, the Court also observed that "[i]f the entitlement to wages (or other employee pay) or the amount due were at issue, the CBA would control; almost certainly, interpretation of the agreement would be necessary." Id. Determining whether Plaintiff's employees worked a particular number of hours and what pay they received is not a matter of simply looking at their pay stubs, but instead requires interpretation and application of various provisions contained in the CBAs.
Defendant also argues that the Wage Law claims are not preempted because they involve rights wholly independent of the CBAs that "apply to all workers in the State of Illinois, unionized or not." (R. 18, Def.'s Mot. for Summ. J. at 7.) However, a claim is preempted under the Railway Act if it requires interpretation or application of a CBA, even if the claim involves rights that are independent of those arising from the CBA. See Hawaiian Airlines, 512 U.S. at 252-53, 114 S.Ct. 2239; see also In re Bentz, 253 F.3d at 287 (observing that under Supreme Court case law, preemption principles can reach "far beyond" claims founded on rights created by CBA).
The Seventh Circuit's analysis in Monroe v. Missouri Pac. R.R. Co., 115 F.3d 514 (7th Cir.1997), is instructive. In that case, an employee sued his former employer, a railroad, for wrongful discharge after he was terminated for misrepresenting his physical condition while on medical leave. Id. at 515-16. He alleged that the railroad discharged him in an attempt to defeat his rights under the Federal Employers Liability. Act ("FELA") and under Illinois law to collect for work-related injuries. Id. at 516. A CBA governed the terms of the plaintiffs employment, and the railroad argued that his claims were minor disputes preempted by the Railway Act. Id. The plaintiff argued that his claims were not preempted because they were not based on rights given by the CBA, but were instead independently based on rights conferred by FELA and state law. Id. at 517. He also contended that adjudication of his complaint did not require any interpretation of the CBA because the only questions for the court were factual ones, namely, whether he had been discharged and, if so, whether the railroad had an improper motive in discharging him. Id. at 518.
The Seventh Circuit observed that "an uncritical glance" at the plaintiff's claims suggested that there was no preemption, because the source of his claims was independent of the CBA; however, a closer inspection revealed that the plaintiffs claims involved numerous issues requiring interpretation and application of the CBA. Id. For instance, a court would be required to interpret the CBA in order to determine the validity of the arguments regarding the railroad's alleged retaliatory intent. Id. Also, the Court observed, the plaintiff's claims "involve past and future wages, benefits, and promotions all of which are determined by the CBA." Id. at 518. Because analysis of the plaintiffs claims would require interpretation and application of the CBA, the claims were preempted by the Railway Act. Id. at 519.
Similarly, here, even though the overtime claims stem from rights afforded under *925 the Wage Law, they cannot be resolved without interpreting and applying numerous provisions of the CBAs. See id.; see also Fry v. Airline Pilots Ass'n, Int'l, 88 F.3d 831, 836 (10th Cir.1996) ("plaintiffs' claims are minor disputes if they depend not only on a right found in the CBAs, but also if they implicate practices, procedures, implied authority, or codes of conduct that are part of the working relationship."); Kollar v. United Transp. Union, 83 F.3d 124, 126 (5th Cir.1996) (Railway Act preempted state law fraud claim even though it involved rights separate from the CBA because claim required determination of plaintiff's seniority, which was governed by a CBA).
Therefore, because the overtime claims being investigated by the DOL involve interpretation and application of various provisions of the CBAs, the claims are preempted by the Railway Act.[6]
CONCLUSION
For the reasons set forth above, Defendants' motion for summary judgment (R. 17) is denied, and Plaintiff's motion for summary judgment (R. 21) is granted. Defendants' enforcement of the overtime provisions of the Illinois Minimum Wage Law with respect to Plaintiff's unionized employees is preempted by the Railway Labor Act. The Clerk of the Court is directed to enter final judgment for the Plaintiff.
NOTES
[1] Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (R. 17), which this Court previously converted to a motion for summary judgment. (R. 20, Minute Order.)
[2] These facts are derived from the parties' statements of fact filed pursuant to Local Rule 56.1 and are undisputed unless otherwise noted.
[3] There appears to be a slight discrepancy in the record about precisely when Plaintiff's employees filed their applications with the DOL. (See R. 38, Pl.'s Resp. to Def.'s Facts ¶ 2; R. 33-2, Defs.' Mem. In Supp., Ex. B., McDonald Decl., Group Ex. 1.) This discrepancy does not affect the outcome of the parties' motions. For purposes of this opinion, we use the dates contained on the applications themselves.
[4] This is the same standard applicable to preemption under Section 301 of the Labor Management Relations Act ("LMRA"). See Hawaiian Airlines, 512 U.S. at 261-63 & n. 9, 114 S.Ct. 2239 (discussing preemption standard adopted in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)). Thus, cases involving preemption under the LMRA are instructive to the case at bar.
[5] The Railway Act also applies to the air transportation industry. See 45 U.S.C. §§ 181-88.
[6] Because we conclude that the overtime claims are preempted by the Railway Act, we need not reach Plaintiff's alternative argument that the claims are preempted because Congress intended to occupy the entire field with respect to the work hours of railroad employees. (See R. 22, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 10-13.) We note, however, that there is little support for this broad argument, aside from the Sixth Circuit case cited in Plaintiff's brief. (See id. at 11) (citing Corman R.R. Co. v. Palmore, 999 F.2d 149 (6th Cir.1993).) The Supreme Court has never recognized field preemption in this specific area. See Terminal R.R. Ass'n v. Trainmen, 318 U.S. 1, 6-7, 63 S.Ct. 420, 87 L.Ed. 571 (1943) ("the enactment by Congress of the Railway Labor Act was not a preemption of the field of regulating working conditions themselves"); see also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) (preemption "should not be lightly inferred . . . since the establishment of labor standards falls within the traditional police power of the State.").,
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53 Cal.App.4th 570 (1997)
TRACY WICKWARE, Plaintiff and Appellant,
v.
JOHN TANNER et al., Defendants and Respondents.
Docket No. D022297.
Court of Appeals of California, Fourth District, Division One.
March 14, 1997.
*572 COUNSEL
Geraci & Cooper, Alan L. Geraci and Ben D. Cooper for Plaintiff and Appellant.
Aiken & D'Angelo and Susan A. Yeck for Defendants and Respondents.
OPINION
McDONALD, J.
Plaintiff Tracy Wickware (Wickware) appeals an order granting a motion to tax costs filed by defendants John Tanner, Dawnelle Tanner and Cox Properties, Inc. (sometimes collectively referred to as Tanner) and denying Wickware's motion for leave to file an amended cost memorandum, for reconsideration and for modification of the judgment.
*573 I
FACTUAL AND PROCEDURAL BACKGROUND
Wickware rented an apartment in a building owned by John Tanner and Dawnelle Tanner. The building was managed by Cox Properties, Inc. Wickware slipped and fell in her apartment and allegedly suffered personal injuries and incurred property damage. She filed this action against John Tanner, Dawnelle Tanner and Cox Properties, Inc., and alleged (1) general negligence in the ownership and maintenance of the building by all three defendants, and (2) willful failure to warn of a dangerous condition by John Tanner and Dawnelle Tanner.
Approximately three months before trial, Wickware served on Tanner a Code of Civil Procedure[1] section 998, subdivision (d) statutory offer to compromise in the amount of $11,999.99 with a waiver of costs. The offer was not accepted. Approximately two months before trial, Wickware served on Tanner an amended section 998, subdivision (d) statutory offer to compromise in the amount of $1,999.99 as to John Tanner and Dawnelle Tanner and in the amount of $10,000 as to Cox Properties, Inc., with a waiver of costs. The offer was not accepted. A jury awarded Wickware $10,000 in damages jointly and severally against John Tanner, Dawnelle Tanner and Cox Properties, Inc.
Wickware filed a cost memorandum in the amount of $7,934.27. Tanner filed a motion to tax costs. The trial court granted Tanner's motion in part, finding that $6,626.75 of the requested costs was for expert fees not allowable under section 1033.5, subdivision (b)(1) and, because Tanner obtained a more favorable judgment than the amount set forth in Wickware's section 998 offer, not allowable under section 998, subdivision (d). The trial court awarded Wickware costs of $1,307.52 under section 1033.5, subdivision (a).
Wickware then filed a motion for leave to file an amended cost memorandum, for reconsideration of the order taxing costs and for modification of the judgment. Wickware sought to increase her cost memorandum by $823.70, which she alleged was inadvertently omitted from her original cost memorandum. The trial court denied the motion.
*574 II
DISCUSSION
A
Amendment to Cost Memorandum
(1) Wickware sought to amend her cost memorandum by adding $823.70 for the costs of Wickware's deposition of Tanner's expert witness Larry Cox (Cox): $443.70 for transcribing costs and $380.00 for expert fees. Tanner did not timely designate Cox as an expert witness and received leave of court to do so on condition that Tanner bear all costs and fees incurred in connection with Cox's pretrial deposition by Wickware. Tanner paid all costs and fees incurred in connection with Cox's deposition by Wickware as directed by the trial court. Under these circumstances the costs of Cox's deposition were neither incurred nor paid by Wickware and the trial court properly denied the motion to amend Wickware's cost memorandum to include the costs of Cox's deposition. (See § 1033.5, subd. (c)(1).)
B
Motion for Reconsideration and to Modify the Judgment
(2) The order denying Wickware's motion for reconsideration of the order taxing costs is not an appealable order because it is not based on facts different from those in existence at the time of the order taxing costs. (Alioto Fish Co. v. Alioto (1994) 27 Cal. App.4th 1669, 1679-1680 [34 Cal. Rptr.2d 244]; see discussion in Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 1996) [¶¶] 1:58 to 1:60, pp. 1-11, 1-12, rev. #1, 1996.)
(3) The order denying Wickware's motion to modify the judgment is not an appealable order because it does not enforce the judgment or stay execution of the judgment. (See Simmons v. Santa Barbara Ice. etc. Co. (1958) 162 Cal. App.2d 23, 28-29 [327 P.2d 141].)
C
Motion to Tax Costs
(4) Wickware contends she is entitled to expert fees under section 998, subdivision (d) because Tanner failed to obtain a more favorable judgment than the unaccepted statutory offers of compromise made by Wickware to *575 Tanner. Section 998, subdivision (d) provides in part: "If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court in its discretion may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses ... in addition to plaintiff's costs." Wickware made two section 998, subdivision (d) offers to compromise: (1) $11,999.99 to the three defendants as a group; and (2) $1,999.99 to John Tanner and Dawnelle Tanner together and $10,000 to Cox Properties, Inc. Both offers included a waiver of costs. Wickware received a joint and several verdict of $10,000 against the three defendants. Section 1033.5, subdivision (a) costs of $1,307.52 were added to the verdict, and judgment for $11,307.52 was entered against Tanner.
To determine under section 998, subdivision (d) whether a defendant fails to obtain a more favorable judgment than a section 998, subdivision (d) offer to compromise which includes a waiver of costs, the amount of the judgment is deemed to be the amount of the damages plus the amount of costs allowed under section 1033.5, subdivision (a). (Stallman v. Bell (1991) 235 Cal. App.3d 740, 750 [286 Cal. Rptr. 755].)
We therefore compare the amount of each offer to compromise with $11,307.52. Only if the amount of the offer to compromise was less than $11,307.52 did the trial court have discretion under section 998, subdivision (d) to add the amount of expert fees to the costs awarded to Wickware.
Wickware's first offer to compromise for $11,999.99 was made to all three defendants and was not apportioned among them. Because this amount was not less than $11,307.52, the first offer did not give the court discretion to award Wickware expert fees. It is unnecessary to decide whether Wickware's failure to apportion the first offer to compromise among the multiple defendants invalidated the first offer. (See Taing v. Johnson Scaffolding Co. (1992) 9 Cal. App.4th 579, 586 [11 Cal. Rptr.2d 820]; cf. Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App.4th 976, 1000, 1001 [16 Cal. Rptr.2d 787], disapproved on other grounds by Laken v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal. Rptr.2d 109, 863 P.2d 179].)
Wickware's second offer to compromise was $1,999.99 to John Tanner and Dawnelle Tanner, unapportioned between them, and $10,000 to Cox Properties, Inc. Each of these amounts, considered separately, is less than $11,307.52. Wickware argues that Tanner therefore failed to obtain a more favorable judgment than the offer.
Wickware's second offer to compromise provided in part:
*576 "TO DEFENDANTS AND THEIR ATTORNEY OF RECORD:
"YOU, AND EACH OF YOU, will please take notice that, pursuant to the provisions of Section 998 of the California Code of Civil Procedure, Plaintiff TRACY WICKWARE hereby offers to take judgment against Defendants JOHN TANNER and DAWNELLE TANNER in the sum of $1,999.99 and Defendant COX PROPERTIES, INC. in the sum of $10,000, each party to bear its own costs.
"If Defendants accept this offer prior to trial of the above-entitled action or within 30 days after said offer is made, whichever occurs first, Defendants may file this offer with proof of acceptance, and the clerk of the above-entitled Court is hereby authorized to enter judgment in accordance with this offer."
By allocating the offer between (1) John Tanner and Dawnelle Tanner and (2) Cox Properties, Inc., Wickware apparently was attempting to avoid the rule stated in Taing v. Johnson Scaffolding Co., supra, 9 Cal. App.4th at page 586: "[I]f a plaintiff elects to submit a section 998 offer in cases involving multiple defendants, the offer to any defendant against whom the plaintiff seeks to extract penalties for nonacceptance must be sufficiently specific to permit that individual defendant to determine the exact amount plaintiff is seeking from him or her." In Taing the court held invalid a section 998, subdivision (d) offer to compromise made to multiple defendants which did not allocate the amount of the offer to each defendant. We note that Wickware's attempt to avoid the Taing rule was not completely successful because she did not in her second offer make an allocation between John Tanner and Dawnelle Tanner. However, whether the Taing rule applies to this case is subject to question. The court in Bihun v. AT&T Information Systems, Inc., supra, 13 Cal. App.4th, 1000 stated that the Taing rule is inapplicable in the situation "... in which the defendants are jointly liable for the plaintiff's injury and there is no question of comparative fault." Bihun would apply the Taing rule only to the situation "... of an unapportioned settlement offer to defendants who were not jointly liable for the full amount of the plaintiff's damages." (Bihun, supra, at p. 1001.)
We do not find it necessary to explore the extent of the Taing rule or its application to this case. Rather, we determine that Wickware's second offer to compromise is an invalid conditional offer which in substance is the same as her first offer. Even if a section 998, subdivision (d) offer is allocated among individual defendants, it may not be conditioned on acceptance by all defendants. In Hutchins v. Waters (1975) 51 Cal. App.3d 69 [123 Cal. Rptr. 819], the court held that an offer to compromise made by a defendant to *577 multiple plaintiffs, and which allocated the offer among the plaintiffs, was invalid because the offer required acceptance by all plaintiffs. The court stated at page 73: "[E]ven though all plaintiffs be unwilling to accept the individual settlement offers made them, it is in the public interest that each be given the opportunity to accept and consummate the offer made him." (See also Meissner v. Paulson (1989) 212 Cal. App.3d 785, 790, 791 [260 Cal. Rptr. 826].) Although Hutchins arose in the context of an offer to compromise made by a defendant to multiple plaintiffs, its holding is equally applicable to this case in which the offer to compromise was made under section 998, subdivision (d) by a plaintiff to multiple defendants.
In the instant case we interpret Wickware's second offer to compromise to require acceptance by all defendants. The second offer is a single document addressed to all defendants; it offers to take judgment only against all defendants and not against one or more of them; and it requires that defendants in the plural, and not any one defendant in the singular, accept the offer. By so providing, Wickware's second offer to compromise, as did her first offer to compromise, offered to compromise the case only for a total amount of $11,999.99. The allocation between defendants in the second offer under these circumstances adds nothing to encourage settlement of the litigation which was not contained in the first offer, and, under Hutchins, the second offer to compromise is an invalid offer. We recognize that other courts may interpret Wickware's second offer to compromise as unconditional. (See Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal. App.4th 102, 112, 113 [30 Cal. Rptr.2d 486].) However, with all respect, we find the dissenting opinion in Santantonio more persuasive on this point. (See Santantonio, supra, at pp. 126, 127 (dis. opn. of Johnson, J.).) We do not agree with the majority in Santantonio that a section 998 offer to compromise is unconditional unless it specifically provides that all offerees must accept the offer.
Wickware relies on Hilliger v. Golden (1980) 107 Cal. App.3d 394 [166 Cal. Rptr. 33] to support her position that because the judgment of $11,307.52 was in excess of the $1,999.99 offer made to John Tanner and Dawnelle Tanner and in excess of the $10,000 offer made to Cox Properties, Inc., the defendants did not obtain a judgment more favorable than the offers. In Hilliger the plaintiff made a $14,999.99 unaccepted offer to one defendant, and at a later time made a $9,999.99 unaccepted offer to a codefendant. After trial, judgment was entered for the plaintiff against both defendants in the amount of $15,540.85. Under these circumstances the Hilliger court held the defendants had not obtained a judgment more favorable than the offers made to them. However, in Hilliger, two separate offers were made at different times, one to each defendant. Neither offer made to a *578 defendant was conditioned on acceptance of the offer made to the other defendant, and either defendant by accepting the offer made to it would have incurred liability in an amount less than it incurred under the judgment. The difference between the unconditional offers made in Hilliger and the conditional offer made in this case is critical under Hutchins.
Because Wickware's second offer to compromise was invalid, there is no issue as to whether John Tanner, Dawnelle Tanner and Cox Properties, Inc., obtained a judgment more favorable than the second offer. We therefore affirm the order granting Tanner's motion to tax costs.
It should be noted that even if Wickware's position in this case were correct, the award of expert fees under section 998, subdivision (d) remains discretionary with the trial court and is not available as a matter of right. Furthermore, under the facts of this case the trial court had discretion to deny Wickware even ordinary costs otherwise available under section 1033.5, subdivision (a) because Wickware's judgment "... could have been rendered in a court of lesser jurisdiction." (§ 1033, subd. (a).)
DISPOSITION
The order taxing costs and denying the motion to file an amended cost memorandum is affirmed. The appeal from the order denying reconsideration and modification of the judgment is dismissed.
Kremer, P.J., and Benke, J., concurred.
NOTES
[1] All statutory references are to the Code of Civil Procedure unless otherwise specified.
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26 Ariz. App. 103 (1976)
546 P.2d 372
Bernardo Haro ESTRADA and Mario Sanchez Avila, Appellants,
v.
PLANET INSURANCE COMPANY, a corporation, Appellee.
No. 1 CA-CIV 2786.
Court of Appeals of Arizona, Division 1, Department A.
March 2, 1976.
Rehearing Denied March 29, 1976.
Review Denied April 13, 1976.
*104 Robertson, Molloy, Fickett & Jones, P.C., by Michael J. Meehan, Tucson, for appellants.
Browder & Gillenwater, P.C., by Powell B. Gillenwater and O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Richard J. Woods, Phoenix, for appellee.
OPINION
OGG, Judge.
The appellee Planet Insurance Company as plaintiff in the superior court brought an action for declaratory judgment against appellants Estrada and Avila who were victims of an automobile accident in the Republic of Mexico to determine whether a policy of insurance issued by Planet Insurance covered any claims for personal injuries arising out of that accident. The trial court granted summary judgment to Planet Insurance, finding that the policy did not act to insure the driver of the vehicle which injured Estrada and Avila against liability arising out of the accident. Estrada and Avila now appeal from the order granting summary judgment to Planet Insurance.
The operative facts are that on June 6, 1970, Estrada and Avila suffered personal injuries when, as both men were standing between their respective vehicles parked on a roadside, an automobile driven by David Chamberlain struck one of the vehicles, pinning the appellants between the vehicles and causing them to be seriously injured.
The automobile which Chamberlain was driving had been rented by him the previous day in Guaymas, Sonora, Mexico, from a Mexican affiliate of Hertz Rental Company. On March 5, 1970, the plaintiff insurance company had issued to Chamberlain an automobile insurance policy which included an endorsement known as a "Mexican Coverage Endorsement." The significant portion of this endorsement reads:
It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability; Property Damage Liability; Medical Payments; Comprehensive; Collision or Upset; Fire, Lightning and Transportation; Theft; Windstorm, Hail, Earthquake or Explosion; Combined Additional Coverage; and Towing and Labor Costs, with respect to any automobile insured hereunder, is extended to apply while the automobile is being used for trips into the Republic of Mexico, provided:
1. That the extended coverage provided herein shall be void unless the insured's place of residence is within the United States of America and the automobile covered by this policy is principally garaged, maintained and used within the United States of America. [Emphasis added]
The appellants argue on appeal that Chamberlain was covered with liability insurance under the policy for the damages brought about by the accident caused by Chamberlain. The policy in question covered the insured for damages "arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile." A non-owned automobile is defined by the policy as:
... an automobile not owned by or furnished for the regular use of either the named insured or any resident of the same household ... but `non-owned' does not include a temporary substitute automobile.
The appellants assert that the Mexican Coverage Endorsement, together with the non-owned automobile coverage, should be interpreted as meaning that the insured has the benefit of the non-owned automobile coverage in Mexico as long as the owned vehicle is "principally garaged, maintained and used within the United States of America."
*105 Appellants further contend that the phrase in the Mexican Coverage Endorsement extending coverage to the insured vehicle "for trips into the Republic of Mexico" means that coverage extends to an automobile rented in Mexico used for excursions or trips within Mexico.
We do not agree with appellants' arguments. It is well settled that the words of an exclusion clause in an automobile policy should be given that meaning which it ordinarily would have in order to effectuate the purpose of that exclusion. State Farm Mutual Automobile Insurance Company v. Thompson, 372 F.2d 256 (C.A. Ariz. 1967); Dykeman v. Mission Insurance Company, 12 Ariz. App. 432, 471 P.2d 317 (1970). Although we find no cases which interpret similar Mexican Coverage Endorsements, it is clear that the insurance company did not include in its coverage automobiles that were principally garaged, maintained and used in Mexico as was the automobile rented by Chamberlain. The insurer may lawfully exclude certain risks from the coverage of its policy. Pacific Indemnity Company v. Kohlhase, 9 Ariz. App. 595, 455 P.2d 277 (1969). It would seem reasonable to interpret the policy behind the "principally garaged" stipulation in the Mexican Coverage Endorsement to be that the insurer felt his risk would be increased if the insured was driving an automobile in Mexico which was being garaged, used and maintained in Mexico rather than in the United States.
The insurer could consider the likelihood that an automobile that was principally garaged in Mexico would have more mileage within Mexico than an automobile principally garaged in the United States that was used for occasional trips into Mexico. In comparing the risk factors for driving between the two nations the insurer could also consider the differences in road conditions, the level of the traffic law enforcement and the traffic hazards involved. We feel this was a reasonable exclusion clause within the policy.
Appellants would have us hold that Chamberlain's renting the automobile in Mexico and using it within Mexico brings the vehicle within the clause in the Mexican Endorsement which reads:
Insurance ... is extended to apply while the automobile is being used for trips into the Republic of Mexico ... [Emphasis Added]
To so hold would, we fell, not only circumvent the rationale behind the Mexican Coverage Endorsement, but would also change the meaning of the word "into" which is defined as "a function word to indicate entry ..." Webster's New Collegiate Dictionary (1975). Consequently, where the provision of the contract is plain and unambiguous on its face, it must be applied as written and the court will not pervert or do violence to the language used or expand it beyond its plain and ordinary meaning or add something to the contract which the parties have not put there. Dairyland Mutual Insurance Company v. Andersen, 102 Ariz. 515, 433 P.2d 963 (1967).
The language in the Mexican Coverage Endorsement is plain and unambiguous. An automobile which is rented in Mexico and principally maintained, garaged and used only within Mexico is excluded from coverage under the policy.
Affirmed.
DONOFRIO, P.J., and FROEB, J., concurring.
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348 Mass. 669 (1965)
205 N.E.2d 5
GLADYS WEINBERG
vs.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
Supreme Judicial Court of Massachusetts, Suffolk.
February 4, 1965.
March 4, 1965.
Present: WILKINS, C.J., SPALDING, CUTTER, SPIEGEL, & REARDON, JJ.
James C. Roy for the defendant.
Thomas B. Shea for the plaintiff.
CUTTER, J.
In this action of tort, upon the report of an auditor, who found for the defendant (now the MBTA; at the time of the accident, the Metropolitan Transit Authority), and other evidence, there was a verdict for the plaintiff, later reduced by remittitur.
1. A motion for a directed verdict was correctly denied. *670 The jury would have been warranted in finding that MBTA negligently discharged the plaintiff from a streetcar at a point on Causeway Street in Boston, not reasonably safe (Brown v. Metropolitan Transit Authy. 341 Mass. 690, 693), and that she suffered injuries to her ankle with subsequent effects elsewhere. Any variance was immaterial for the motion was not based upon the pleadings. Snow v. Metropolitan Transit Authy. 323 Mass. 21, 24. See Cheng v. Chin Wai Yip, 339 Mass. 173, 174-175.
2. It was not error to refuse a request for a ruling that there must be a verdict for MBTA if the plaintiff fell upon premises not controlled by MBTA. The request did not clearly present any issue of variance and, on the evidence, a verdict for the plaintiff was warranted even if the injury occurred on a public street.
3. The evidence warranted a finding that the plaintiff suffered some immediate injury and an award of some damages could be made. McAuliffe v. Metcalfe, 289 Mass. 67, 69. The plaintiff, however, was allowed to testify as to certain physical consequences existing at the time of the trial (about seven years after the accident), apparently without objection and without any request that such evidence be admitted only subject to a later showing by medical testimony of causal connection between the original injury and those consequences. She testified, in this respect, that "at the present time she has pain up the side of her leg"; that if "I walk up six steps I get out of breath and stop and hold on to the banister ... [w]hen I walk up the street it seems to draw on the muscles ... until it hits me right here in the hip"; that, in contrast to the situation before the accident, there are "veins in my leg now and the veins are sticking out" with discoloration "and the bone doesn't seem the same"; that "all during that [seven year] period she had pain due to her accident"; and that since the accident she has had varicose veins which "got bad in 1958," three years after the accident.
MBTA, obviously with reference to this testimony, requested a ruling that "The causal relation between the *671 plaintiff's injury on June 15, 1955 and the incapacity which the plaintiff alleges still existed as of ... this trial is a matter beyond the common knowledge of the jury and must be established by expert medical testimony." Although the plaintiff contends that this requested ruling is too broad, we think that it adequately brought to the attention of the judge a relevant issue (see Higgins v. Pratt, 316 Mass. 700, 712) and that an appropriate instruction should have been given. It is specifically tied down to her incapacity on the day of the trial. Whether a fracture of the ankle could give rise to such consequences, described by the plaintiff, as varicose veins and shortness of breath cannot be said to be a matter of common knowledge. Causal relationship between the accident and at least these symptoms at the time of the trial could not be established without medical testimony. See Benavides v. Stop & Shop, Inc. 346 Mass. 154, 157-158; Casey's Case, ante, 572, 574. Cf. Josi's Case, 324 Mass. 415, 417-418. There must be a new trial confined to the issue of damages. Other requests relating to the necessity of medical testimony seem to us to have been too broadly expressed.
Exceptions sustained.
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498 So.2d 948 (1986)
STATE of Florida ex rel. Jim SMITH, etc., Petitioner,
v.
Richard JORANDBY, etc., et al., Respondents.
No. 68141.
Supreme Court of Florida.
December 18, 1986.
*949 Jim Smith, Atty. Gen., and Shirley A. Walker and Jason Vail, Asst. Attys. Gen., Tallahassee, for petitioner.
Richard L. Jorandby, Public Defender, Fifteenth Judicial Circuit; Craig S. Barnard, Chief Asst. Public Defender and Richard H. Burr III, Asst. Public Defender, West Palm Beach, for respondents.
OVERTON, Justice.
The attorney general petitions this Court for a writ of quo warranto prohibiting assistant public defenders from representing the personal representative of James Adams' estate in a civil rights action seeking money damages from the State of Florida. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const. We hold that, under Florida's constitution and statutory law, public defenders are authorized only to represent defendants whose liberty interests are threatened by the State of Florida, and, consequently, public defenders have no authority to seek money damages against the state on behalf of their clients.
The relevant facts reflect that on March 13, 1984, two assistant public defenders, along with another attorney, filed a section 1983 federal civil rights action on behalf of James Adams, a Florida death row inmate. The complaint alleged that another inmate poisoned Adams, and that a state prison officer either conspired in the crime or failed to provide Adams reasonable protection from violent inmates. The complaint asserted that these alleged acts violated Adams' eighth amendment protection and demanded compensatory and punitive damages. In April, 1984, after the governor signed Adams' death warrant, the public defenders attempted to use the civil rights action as a basis to stay Adams' execution. Both federal and state courts denied relief and Florida electrocuted Adams on May 10, 1984. Following Adams' death, the state petitioned the federal court to remove the public defenders as representatives of Adams' successors. The United States District Court denied the motion to discharge the public defenders and substituted the personal representative of Adams' estate as plaintiff in the civil action.
The attorney general contends that public defenders and their assistants, as state officers, have only those powers expressly conferred on them by the constitution or by statute and that their authority extends only to representation arising directly from an underlying criminal prosecution or the circumstances specified in section 27.51(1), Florida Statutes (1985). The attorney general further asserts that a federal civil rights action for damages is not a case arising directly from Adams' criminal prosecution, and has more in common with a tort claim than a suit for post-conviction relief.
This Court has addressed the authority of appointed counsel to represent indigent defendants in various types of proceedings. In Graham v. State, 372 So.2d 1363 (Fla. 1979), this Court considered a request to mandate appointment of counsel for persons on death row. We held:
This state only has an obligation to provide counsel for indigent defendants in its state courts. Neither this court nor an individual judge in the state system could appoint counsel to represent an indigent in the federal court system... . This does not mean, however, that state-appointed counsel could not continue their representation and seek federal relief. Their professional responsibility may dictate this action... .
Id. at 1365.
In State ex rel. Smith v. Brummer, 426 So.2d 532 (Fla. 1982) (Brummer I), cert. denied, 464 U.S. 823, 104 S.Ct. 90, 78 L.Ed.2d 97 (1983), this Court considered the public defender's authority to bring a class action suit in federal court. Citing Graham v. State, we held that the public defender had no such authority. We commented *950 that the public defender could represent clients in federal court, stating:
This does not mean, however, that state-appointed counsel could not continue their representation and seek federal relief on an "individual" basis. A lawyer's professional responsibility may dictate this action... .
The state is constitutionally obliged to respect the professional independence of the public defenders whom it engages.
Brummer I, 426 So.2d at 533.
In State ex rel. Smith v. Brummer, 443 So.2d 957 (Fla. 1984) (Brummer II), a federal judge appointed the public defender to represent defendants in a federal habeas corpus proceeding based on the public defender's prior familiarity with the case in the state court system. The state contested the appointments on the grounds that the public defender lacked authority to represent the defendants. We held that the public defenders exceeded their statutory authority in accepting the appointment. We should emphasize that the public defender's role in Graham, Brummer I, and Brummer II, was predicated on protecting a defendant's liberty interest.
In this case, the public defenders recognize that their representation can properly be withdrawn at this stage of the proceeding. The public defenders continue to claim, however, a public defender can appropriately bring this type of civil rights action on behalf of his client. We disagree.
Florida's public defender's office was established in this state by statute and later by an express constitutional provision, to provide defendants the right of counsel guaranteed by the sixth amendment. Article V, section 18, of the Florida Constitution establishes the public defender as a constitutional official and states: "He shall perform duties prescribed by general law." Section 27.51, Florida Statutes (1985), sets forth the circumstances under which the public defender in Florida shall represent indigent defendants who face loss of liberty because they are: (a) under arrest for or charged with a felony; (b) under arrest for or charged with a misdemeanor; (c) children alleged to be delinquent; and (d) facing the prospect of involuntary hospitalization as a mentally ill or mentally retarded person. Each circumstance is directed toward an event that could result in incarceration, and the statute also authorizes the public defender to represent these indigent defendants in appeals.
This statutory authority permits representation by a public defender only in circumstances entailing prosecution by the state threatening an indigent's liberty interest. In the instant case, the federal civil rights action seeks compensatory and punitive damages a property interest, not a liberty interest. We agree with the state; this proceeding has more in common with a tort claim that a suit for post-conviction relief. We conclude that the public defender had no authority to participate as counsel in this civil rights action.
The public defender concedes he should withdraw as counsel. Private counsel already represents the plaintiff in this cause; consequently, there is no prejudice by the immediate withdrawal of the public defender from this case. The petition for writ of quo warranto is granted, but no writ will be issued because of this Court's understanding that the public defender will withdraw immediately from the subject representation.
It is so ordered.
McDONALD, C.J., and ADKINS, BOYD, EHRLICH, SHAW and BARKETT, JJ., concur.
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336 F.2d 462
Eugene KIRBY, Petitioner-Appellant,v.Luther THOMAS, Warden Kentucky State Penitentiary, Eddyville, Kentucky, Respondent-Appellee.
No. 15709.
United States Court of Appeals Sixth Circuit.
September 10, 1964.
Eugene Kirby, in pro. per.
Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, Ky., for appellee.
Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and BROWN, District Judge.
HARRY PHILLIPS, Circuit Judge.
1
This case involves the validity of a regulation adopted by the Kentucky Department of Corrections which forbids the mailing from state prisons of certain legal papers prepared by inmates. The regulation provides that papers or documents of a legal nature prepared by an inmate of a state prison shall not be permitted to be mailed or sent out by an inmate of a state penal institution, with certain exceptions.1 Among the exceptions are habeas corpus, coram nobis or similar proceedings which test the validity of a judgment of conviction.
2
Kirby, a prisoner in the Kentucky State Penitentiary at Eddyville, Kentucky, filed a petition for writ of mandamus averring that respondent by authority of said regulation has refused him the privilege of mailing and filing in a Federal District Court "a civil rights punitive damage action." The pleadings to initiate such an action were prepared by Kirby on his own behalf. It is contended that application of the regulation to Kirby violates the due process and equal protection clauses of the Fourteenth Amendment.
3
District Judge Henry L. Brooks denied the application for writ of mandamus, setting forth his conclusions concisely in an unpublished order, from which we quote with approval the following:
4
"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the consideration underlying our penal system, Price v. Johnston, 334 U.S. 266, 285 [68 S.Ct. 1049, 92 L.Ed. 1356] (1948), and it appears well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined. Kelly v. Dowd, 140 F.2d 81 (7th Cir. 1944). The enforcement of the regulation preventing the filing of ordinary civil actions by prisoners which do not relate to their personal liberty is a matter of prison discipline and is not in violation of any constitutional restriction. Tabor v. Hardwick, 224 F.2d 526 (5th Cir. 1955), cert. dismissed, 350 U.S. 890 [76 S.Ct. 148, 100 L.Ed. 784], cert. denied, 350 U.S. 971 [76 S.Ct. 445, 100 L.Ed. 843]; United States ex rel Wagner v. Ragen, 213 F.2d 294 (7th Cir. 1954), cert. denied, 348 U.S. 846 [75 S.Ct. 68, 99 L.Ed. 667]; Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961), cert. denied, 368 U.S. 862 [82 S.Ct. 105, 7 L.Ed.2d 59]."
5
The limitation placed on the above stated rule by Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348, regarding regulations restricting the right of prisoners to apply for habeas corpus to inquire into the validity of their restraint, is well recognized. We do not understand these cases to require an absolute and unrestricted right for a prisoner to file any civil action prepared by himself. Tabor v. Hardwick, supra, involved facts substantially similar to those here presented, except that the petitioner in that case was a federal prisoner.
6
In United States ex rel. Wagner v. Ragen, supra, a state prisoner filed a civil rights action against the warden, contending that the warden refused to permit him to draw inventions and send them to the United States Patent Office. In holding that federal courts do not have the power to regulate ordinary internal management and discipline of prisons operated by the states, the Court quoted from United States ex rel. Morris v. Radio Station WENR, 209 F.2d 105 (C.A. 7) as follows:
7
"Inmates of State penitentiaries should realize that prison officials are vested with wide discretion in safeguarding prisoners committed to their custody. Discipline reasonably maintained in State prisons is not under the supervisory direction of federal courts. Kelly v. Dowd, supra. [7 Cir., 140 F.2d 81] * * A prisoner may not approve of prison rules and regulations, but under all ordinary circumstances that is no basis for coming into a federal court seeking relief even though he may claim that the restrictions placed upon his activities are in violation of his constitutional rights." 213 F.2d at 295.
8
We find nothing in the regulation which would prevent Kirby, at any time while he remains a prisoner, from consulting with an attorney and initiating a civil action through an attorney employed by him. Even though the regulation operates to deprive him of the right to initiate a civil action with pleadings prepared by himself, KRS § 413.310 provides as follows: "The time of the confinement of the plaintiff in the penitentiary shall not be counted as part of the period limited for the commencement of an action." Thus timely assertion of appellant's claim will not be barred after he has been released from imprisonment.
9
We hold the regulation to be valid as applied to the facts and circumstances of this case.
10
Mandamus is available to require the performance of a ministerial act. It was the duty of the warden to obey all lawful regulations adopted by the Kentucky Department of Corrections. He may not be compelled to do otherwise by a writ of mandamus. Peckinpaugh v. Settle, Warden, 296 F.2d 653, 654, (C.A. 8).
11
Affirmed.
Notes:
1
This regulation designated as DC-Rg-2, effective July 31, 1963, promulgated pursuant to the authority of KRS §§ 196.035 and 197.020, is as follows:
"1. No papers or documents of a legal nature prepared by an inmate shall be permitted to be mailed or sent out by an inmate of a State penal institution except those which constitute a part of habeas corpus or coram nobis proceedings in which the inmate seeks to test the validity of the judgment of conviction under which he is confined and if successful in his contentions to obtain a new trial or his freedom. Said papers must be addressed to a court of competent jurisdiction, the inmate's attorney, if he has one, or opposing counsel.
"2. The legal papers or documents referred to in subsection (1) of this regulation do not include wills, deeds, mortgages, releases, waivers, bills of sale, or divorce papers.
"3. Those legal papers or documents which may be mailed pursuant to the provisions of subsection (1) of this regulation shall be confined to a statement of the inmate's case and the relief requested and shall not contain any abusive, profane, or insulting language or unnecessary statements tending to cast aspersions on the acts, character, or conduct of any public official.
"4. Any legal paper or document not complying with the provisions (1) and (2) of this regulation shall be returned to the inmate with an oral or written statement of the reason or reasons for its return. If said inmate desires, he may correct the papers or documents accordingly and resubmit them for mailing purposes."
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 03-35853
Plaintiff-Appellee, D.C. Nos.
v. CV-99-00080-BLG/
DEAN LAFROMBOISE, JDS
CR-94-0082-JDS
Defendant-Appellant.
ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Argued and Submitted
July 14, 2005—Seattle, Washington
Filed October 26, 2005
Amended December 8, 2005
Before: A. Wallace Tashima, Richard A. Paez, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Callahan
15945
UNITED STATES v. LAFROMBOISE 15947
COUNSEL
Wendy Holton, Helena, Montana, for the appellant.
William W. Mercer, Billings, Montana, and John A. Drennan,
Washington, DC, for the appellee.
15948 UNITED STATES v. LAFROMBOISE
ORDER
Appellant’s motion to amend opinion is GRANTED.
The opinion filed October 26, 2005, United States v.
LaFrombroise, 427 F.3d 680 (9th Cir. 2005), is amended as
follows. At page 682, delete the sentence that currently reads:
“The government, however, moved to dismiss the
charges as part of an immunity agreement in return
for LaFromboise’s testimony in another case.”
In place thereof, substitute the following:
“Prior to the new trial, however, the government
moved to dismiss the charges.”
OPINION
PAEZ, Circuit Judge:
Dean LaFromboise appeals the district court’s order deny-
ing his motion for habeas relief under 28 U.S.C. § 2255.
LaFromboise challenges his conviction and sentence on sev-
eral grounds, including ineffective assistance of counsel, pro-
secutorial misconduct, misjoinder of charges, and improper
application of the sentencing guidelines. The district court did
not reach the merits of LaFromboise’s collateral attack, and
instead denied the motion as untimely under the one-year stat-
ute of limitations established by the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-
132, 110 Stat. 124. See 28 U.S.C. § 2255 (“§ 2255”). Because
the district court’s judgment in the underlying criminal pro-
ceedings is not yet final, however, we vacate the order deny-
ing LaFromboise’s § 2255 motion and remand with directions
to dismiss the motion without prejudice.
UNITED STATES v. LAFROMBOISE 15949
I.
A jury convicted LaFromboise of five counts related to his
involvement in a narcotics trafficking scheme, including con-
spiracy to distribute and possession with intent to distribute
controlled substances in violation of 21 U.S.C. §§ 841(a)(1)
and 846, and 18 U.S.C. § 2. The jury also convicted him of
three counts of using or carrying a firearm in relation to a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1).
The district court sentenced LaFromboise to 720 months in
prison (360 months for the conspiracy and possession counts
and a consecutive 360 months for the firearms counts), five
years supervised release, and $400 in mandatory assessment
penalties. The district court entered its judgment of conviction
on August 31, 1995.
LaFromboise appealed his convictions to this court, and on
January 10, 1997, we vacated each of his three 18 U.S.C.
§ 924 firearms convictions. United States v. Ehrlich, No. 95-
30258, 1997 WL 14426, at *7 (9th Cir. Jan. 10, 1997) (mem.).1
We remanded the case for retrial of those three charges.2
Upon remand, the district court scheduled a retrial for the
1
On direct review, we held that the jury instructions used in LaFrom-
boise’s trial were invalid under Bailey v. United States, 516 U.S. 137
(1995), “which changed the interpretation of the word ‘use’ for purposes
of Section 924.” Ehrlich, 1997 WL 14426, at *5. We noted that LaFrom-
boise’s jury “may have relied on mere storage or proximity of the weap-
on[,]” id., rather than Bailey’s “active employment” requirement that the
firearm must be “an operative factor in relation to the predicate offense.”
Bailey, 516 U.S. at 142.
2
Our mandate to the district court read, in relevant part, as fol-
lows: The Court also AFFIRMS the conspiracy convictions of
appellants Cozzens and LaFromboise and the “supervisory”
enhancement for Cozzens. Finally, the Court VACATES the Sec-
tion 924 gun convictions for appellants LaFromboise and Coz-
zens and REMANDS the case for retrial as to those convictions.
Ehrlich, 1997 WL 14426, at *7. Implicit in our directive was the need for
resentencing following retrial.
15950 UNITED STATES v. LAFROMBOISE
three § 924 gun counts. Prior to the new trial, however, the
government moved to dismiss the charges. The district court
granted that motion and dismissed the firearms counts on
August 22, 1997. The district court, however, neither con-
ducted a new sentencing hearing on the counts we affirmed,
nor entered an amended judgment reflecting LaFromboise’s
conviction and sentence in light of the dismissed counts.
Thus, the only judgment of conviction of record still provides
for the original 720-month sentence and still includes convic-
tions on each firearm count.
LaFromboise filed his § 2255 motion for habeas relief on
June 28, 1999.3 Citing United States v. Garcia, 210 F.3d
1058, 1059 (9th Cir. 2000), the district court concluded that
his convictions became final on April 10, 1997—90 days after
our January 10, 1997, decision when the time for filing a peti-
tion for writ of certiorari to the Supreme Court expired. The
court found that LaFromboise’s § 2255 motion was therefore
filed too late to comply with the one-year April 10, 1998,
deadline. LaFromboise also argued that the statute of limita-
tions should be equitably tolled because he did not have ade-
quate access to “a full law library.” The district court rejected
this argument because the government’s unrebutted evidence
showed that LaFromboise had access to both the prison law
library and Title 28 of the United States Code while he was
in segregation at the United States Prison in Florence, Colo-
rado, as well as in state custody. Accordingly, the district
court denied LaFromboise’s motion as untimely under
AEDPA’s one-year statute of limitations.
3
LaFromboise’s post-conviction filings in the district court were com-
plex and confusing. He filed at least two motions for habeas relief under
28 U.S.C. § 2241, which the court construed as properly filed pursuant to
§ 2255 on March 1, 2000. That order was later vacated in light of United
States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Adams v. United States,
155 F.3d 582 (2d Cir. 1998), to prevent prejudice resulting from AEDPA’s
bar against second or successive habeas motions. LaFromboise’s June 28,
1999, motion was therefore his first and only petition for habeas relief
filed under 28 U.S.C. § 2255.
UNITED STATES v. LAFROMBOISE 15951
II.
We have jurisdiction over LaFromboise’s appeal pursuant
to 28 U.S.C. §§ 1291 and 2253. We review de novo the dis-
trict court’s denial of habeas relief under § 2255. United
States v. Zuno-Arce, 339 F.3d 886, 888 (9th Cir. 2003). We
review de novo the district court’s determination that the
motion was untimely. United States v. Valdez, 195 F.3d 544,
546 (9th Cir. 1999), overruled on other grounds by Dodd v.
United States, 125 S. Ct. 2478, 2482 (2005).
III.
[1] Under AEDPA, federal prisoners are typically required
to file a motion for habeas relief within one year from “the
date on which the judgment of conviction becomes final.” 28
U.S.C. § 2255. As the Supreme Court has explained, “[b]y
‘final,’ we mean a case in which a judgment of conviction has
been rendered, the availability of appeal exhausted, and the
time for a petition for certiorari elapsed or a petition for cer-
tiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314, 321
n.6 (1987) (applying this definition to determine retroactivity
of a criminal procedural rule). Moreover, “[a]pplied in the
context of a criminal prosecution, finality is normally defined
by the imposition of the sentence.” Flynt v. Ohio, 451 U.S.
619, 620 (1981) (per curiam); see also Teague v. Lane, 489
U.S. 288, 314 n.2 (1989) (“[A] criminal judgment necessarily
includes the sentence imposed upon the defendant.”). We are
asked to determine the date on which LaFromboise’s convic-
tion became final without the benefit of an amended judgment
of conviction.4 Without that amended judgment, we hold,
4
A judgment of conviction is defined by Federal Rule of Criminal Pro-
cedure 32(k) as “the plea, the jury verdict or the court’s findings, the adju-
dication, and the sentence.” As the Fourth Circuit has noted, “only a single
‘judgment of conviction’ arises from a case, like this one, in which a
defendant is convicted at one trial on multiple counts of an indictment.”
United States v. Dodson, 291 F.3d 268, 272 (4th Cir. 2002).
15952 UNITED STATES v. LAFROMBOISE
LaFromboise’s conviction is not yet final and the one-year
limitation period has not begun to run.
Our holding here finds strong support in United States v.
Colvin, where we answered a very similar question. 204 F.3d
1221 (9th Cir. 2000). Colvin, who had been convicted of four
counts of conspiracy to distribute and aiding and abetting in
the distribution of cocaine, successfully appealed one of his
four convictions. Id. at 1222. We affirmed Colvin’s sentence,
however, “because his base offense level remained
unchanged.” Id. We remanded to the district court on July 29,
1997, “with directions to strike the conviction on count 9 and
to reduce the special assessment from $200.00 to $150.00.”
Id. On October 16, 1997, the district court amended the judg-
ment in accordance with our mandate, finding that it had no
authority to resentence. Id.
[2] Less than one year later, on October 5, 1998, Colvin
filed a § 2255 motion for habeas relief alleging ineffective
assistance of trial counsel and prosecutorial misconduct. Id.
The government argued that the motion was time barred and
that Colvin’s conviction became final no later than September
15, 1997, when the time passed for appealing our decision on
direct review to the Supreme Court, because our mandate “left
nothing to the discretion of the district court.” Id. at 1223. We
handily rejected that argument in favor of a “clear, easy-to-
follow rule[:]” In “cases in which we either partially or
wholly reverse a defendant’s conviction or sentence, or both,
and expressly remand to the district court . . . , the judgment
does not become final, and the [§ 2255] statute of limitations
does not begin to run, until the district court has entered an
amended judgment and the time for appealing that judgment
has passed.” Id. at 1225. We noted that “in the usual case of
a reversal and remand, the judgment of conviction would not
become final until after the district court had acted on the
appellate court’s mandate.” Id. at 1224.
UNITED STATES v. LAFROMBOISE 15953
Other circuits have similarly held that a judgment of con-
viction is not final for § 2255 purposes until both the convic-
tion and sentence are final. See, e.g., United States v. Dodson,
291 F.3d 268, 272 (4th Cir. 2002). In Dodson, the Fourth Cir-
cuit vacated one of the defendant’s five convictions and
remanded for resentencing “so that the district court could, if
it wished, take into account [the court’s] vacatur of the con-
viction and sentence . . . when reimposing sentence” on the
remaining counts. Id. at 270. The defendant appealed follow-
ing resentencing, and the Fourth Circuit affirmed the new sen-
tence. Id. Evaluating the timeliness of the defendant’s
subsequent § 2255 motion, the court concluded that the one-
year clock began to run after the amended judgment became
final, when the Fourth Circuit issued its mandate affirming the
new sentence. Id. at 276. A contrary rule would result in
“multiple rounds of habeas review” as defendants would be
forced to collaterally attack their convictions before the dis-
trict court had reconsidered the sentence, and then later file a
separate motion challenging the sentence.5 Id. at 274-75. The
Second Circuit agreed with that logic in United States v.
Camacho, noting that habeas “is a mechanism through which
criminal defendants can challenge both their convictions and
sentences; it therefore makes sense, from an efficiency stand-
point, to require criminal defendants to file such motions only
after both their convictions and sentences have withstood
appellate scrutiny” following resentencing on remand. 370
F.3d 303, 307 (2d Cir. 2004).
5
LaFromboise, for example, would be forced to file a § 2255 motion
before his sentence was determined on remand. Since his § 2255 motion
challenges both his convictions and his sentence, LaFromboise would be
forced either to file separate motions, or to challenge a sentence that does
not yet exist in its final form. Neither option makes sense. See, e.g., 28
U.S.C. § 2255 (prohibiting second or successive habeas motions unless
certified by the court); cf. Walker v. Crosby, 341 F.3d 1240, 1241 (11th
Cir. 2003) (holding that individual claims within a single habeas petition
under 28 U.S.C. § 2254 may not be reviewed separately for timeliness).
15954 UNITED STATES v. LAFROMBOISE
[3] The “key inquiry” under Colvin is whether an amended
judgment, assuming one had been entered, could have been
appealed—without presupposing the merits of the appeal. 204
F.3d at 1224; see also Dodson, 291 F.3d at 275-76. Our man-
date in the prior appeal clearly contemplated further trial court
proceedings; indeed, the invalidated convictions account for
half of LaFromboise’s sentence.6 Implicit in our mandate to
the district court was the opportunity for resentencing,
whether or not the remanded gun counts resulted in an even-
tual conviction. See United States v. Ruiz-Alvarez, 211 F.3d
1181, 1184 (9th Cir. 2000) (allowing the district court author-
ity to resentence even where “the panel . . . did not explicitly
remand for resentencing”). As we stated in Ruiz-Alvarez,
[w]hen a defendant is sentenced on multiple counts
and one of them is later vacated on appeal, the sen-
tencing package comes ‘unbundled.’ The district
court then has the authority to put together a new
package reflecting its considered judgment as to the
punishment the defendant deserved for the crimes of
which he was still convicted.
Id. at 1184 (quotation marks omitted). That new sentence is
then subject to a direct challenge on appeal. See, e.g., United
States v. Streit, 17 F.3d 306, 308 (9th Cir. 1994) (per curiam)
(entertaining defendant’s challenge to resentencing following
remand by this court).
The district court therefore must resentence LaFromboise
and enter an amended judgment of conviction.7 We note that
6
In its original sentencing decision, the district court was bound by the
then-mandatory United States Sentencing Guidelines, which prescribed a
sentencing range of 292 to 365 months for LaFromboise’s drug convic-
tions. On resentencing, in light of United States v. Booker, ___ U.S. ___,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court would no longer
be bound by the Sentencing Guidelines.
7
The government likens the resentencing owed LaFromboise to a Rule
35(a) correction to his sentence, which allows the district court to correct
UNITED STATES v. LAFROMBOISE 15955
our mandate in the prior appeal did not “expressly or implied-
ly” dispose of potential sentencing issues that could have
arisen after the entry of an amended judgment. See Colvin,
204 F.3d at 1225 n.6. Moreover, even if the district court had
narrowly interpreted the mandate as authorizing only the entry
of a 360-month sentence, that decision itself is subject to
appeal. As Nguyen v. United States made clear, 792 F.2d
1500, 1502-03 (9th Cir. 1986), the district court’s interpreta-
tion of our mandate is subject to appeal, whether or not such
an appeal has merit. See Colvin, 304 F.3d 1224-25.
Our case differs slightly from Colvin in that no amended
judgment yet exists here.8 But that slight difference by no
means suggests that Colvin should not apply—quite the con-
trary. In Colvin, we specified that, following a partial reversal
and remand in this court, “the judgment of conviction does
not become final until the district court has acted on remand
errors in a sentence “that resulted from arithmetical, technical, or other
clear error” within seven days after sentencing. Fed. R. Crim. Pro. 35(a).
A Rule 35 correction does not change the date of finality of the judgment.
See 18 U.S.C. § 3582; United States v. Schwartz, 274 F.3d 1220, 1224 (9th
Cir. 2001). Thus, the government argues that an amended judgment would
not affect § 2255’s time limits. But LaFromboise is entitled to more than
a mere correction of his sentence. In light of his vacated convictions, the
district court may reweigh the sentencing factors and come to an indepen-
dent sentencing decision. See Ruiz-Alvarez, 211 F.3d at 1184. His 720-
month sentence resulted from an invalid conviction, not from an “arith-
metical [or] technical . . . error” in calculating his sentence correctable
under Rule 35, or from a clerical error “arising from oversight or omis-
sion” correctable under Rule 36. Fed. R. Crim. Pro. 35, 36. The rules per-
taining to clerical corrections have no application here.
8
The district court’s order dismissing the § 924 firearms charges, on
August 22, 1997, has no effect on the issue before us. Indeed, the district
court expressly rejected the argument that LaFromboise’s conviction of
the drug charges became final upon dismissal of the firearms charges. As
the district court put it, “the finality of [LaFromboise’s] convictions which
were affirmed by the appellate court did not depend on the dismissal of
the § 924 conviction.” As the terms of the August 1997 dismissal order
make clear, that order was not a substitute for the requisite amended judg-
ment on the affirmed drug convictions.
15956 UNITED STATES v. LAFROMBOISE
and the time has passed for appealing the district court’s
action.” 204 F.3d at 1226 (emphasis added). The rationale
behind Colvin requires remand to the district court for entry
of an amended judgment, allowing LaFromboise an opportu-
nity to appeal that judgment by direct review should he so
choose. When that judgment is entered and the availability of
direct review expires, AEDPA’s one-year statute of limita-
tions will then begin to run.
Our holding here follows the Eleventh Circuit’s decision in
Maharaj v. Secretary for the Department of Corrections,
which noted that “[i]n the context of a federal habeas petition,
the statute of limitations runs from the date of state resentenc-
ing and not the date of the original judgment.” 304 F.3d 1345,
1348 (11th Cir. 2002) (per curiam) (reviewing a habeas peti-
tion brought under 28 U.S.C. § 2254) (citing Hepburn v.
Moore, 215 F.3d 1208, 1209 (11th Cir. 2000) (per curiam));
see also Walker, 341 F.3d at 1246 (“[W]e measure the statute
of limitation from the date on which the resentencing judg-
ment became final . . . and not the date the original judgment
became final.”). Relying on our decision in Colvin, and over
Maharaj’s objection, the Eleventh Circuit concluded that
“[b]ecause Maharaj’s resentencing had not occurred at the
time he filed his habeas petition, his state judgment had not
become final, and thus his habeas petition . . . was not ripe for
review at that time.” Maharaj, 304 F.3d at 1349. The same
reasoning applies here.
[4] Until the district court enters an amended judgment of
conviction, LaFromboise’s § 2255 motion is in fact prema-
ture, rather than untimely. In Feldman v. Henman, we held
that federal prisoners must exhaust appellate review prior to
filing for habeas relief in the district court. 815 F.2d 1318,
1321 (9th Cir. 1987) . The district court “will not review a
section 2255 motion until the direct appeal is resolved.”
United States v. Pirro, 104 F.3d 297, 298 (9th Cir. 1997).
LaFromboise’s sentence on the counts of conviction, yet to be
determined by the district court, will be subject to direct
UNITED STATES v. LAFROMBOISE 15957
appeal. Streit, 17 F.3d at 308. Once the new judgment is
entered, he may or may not choose to appeal—but until direct
appellate review is exhausted the district court may not enter-
tain a motion for habeas relief.9 Feldman, 815 F.2d at 1320-
21. The statute of limitations under § 2255 surely cannot lapse
before the district court has ever had the opportunity to hear
a defendant’s habeas claims.
[5] The district court’s determination that LaFromboise’s
§ 2255 motion was barred by AEDPA’s one-year statute of
limitations was erroneous. We conclude that the one-year
time bar will begin to run after the district court enters an
amended judgment and either the direct appeal has been
resolved or the time to appeal has passed. See Colvin, 204
F.3d at 1225. We need not review the district court’s decision
that the statute of limitations was not equitably tolled, because
we find that the statute of limitations has not begun to run.
[6] Accordingly, we VACATE the district court’s order and
REMAND with instructions to dismiss LaFromboise’s § 2255
motion without prejudice.10
9
There is some dispute whether this rule reflects a jurisdictional bar or
simply a prudential concern. Compare Feldman, 815 F.2d at 1323 (dis-
missing defendant’s premature habeas petition “because the district court
lacked subject matter jurisdiction to entertain [the] petition”) with Pirro,
104 F.3d at 299 (noting that this rule was created “for reasons of judicial
economy”) and Rules Governing § 2255 Proceedings for the United States
District Courts, Rule 5, Adv. Comm. Notes (“We are of the view that there
is no jurisdictional bar to the District Court’s entertaining a Section 2255
motion during the pendency of a direct appeal but that the orderly admin-
istration of criminal law precludes considering such a motion absent
extraordinary circumstances.”). We need not resolve this discrepancy,
however, because the district court should refrain from hearing LaFrom-
boise’s § 2255 motion until after he exhausts his direct appellate review
rights under either theory.
10
In light of the procedural posture of this case, any subsequent § 2255
motion LaFromboise may file would not be a successive motion.
15958 UNITED STATES v. LAFROMBOISE
CALLAHAN, Circuit Judge, dissenting:
I agree with the majority that LaFromboise’s conviction
and sentence must be final before the one-year limitation
period for filing a § 2255 motion begins to run. I also agree
that finality does not occur until the district court has acted on
our mandate and the time to appeal that action has passed.
The majority errs, however, when it holds that an amended
judgment is required to obtain finality in this case. Here, final-
ity was achieved when the district court acted on this court’s
mandate by dismissing the firearms charges, and the time
passed to appeal that order.
Colvin supports this conclusion. Colvin held that finality
was achieved in that case not when the time expired for filing
a petition for writ of certiorari from our decision in his direct
appeal as urged by the government, but rather when the time
expired to appeal the amended judgment entered by the dis-
trict court. Colvin’s holding hinged on the finality of the pro-
ceedings, not on the fact that finality was achieved through an
amended judgment.
The purpose behind Colvin’s holding was to avoid a defen-
dant having to speculate about the effect of a mandate on the
finality of a judgment. 204 F.3d 1225. We explained that
when we reverse any portion of a conviction or sentence and
remand to the district court, the judgment of conviction does
not become final until the court has acted on remand and the
time has passed for appealing the district court’s action. Id. at
1225-26. In Colvin, this happened to be achieved by the entry
of an amended judgment. This is because the amended judg-
ment satisfied this court’s mandate directing the district court
to strike the conviction on a certain count and reduce the spe-
cial monetary assessment, and because the amended judgment
was not appealed. Likewise, finality was achieved for
LaFromboise on September 1, 1997, when the time expired to
appeal the district court’s order dismissing his firearms
charges.
UNITED STATES v. LAFROMBOISE 15959
While the term “judgment” contemplates finality, so too
does an order of dismissal. Nevertheless, the majority elevates
form over substance to conclude that an amended judgment is
required to obtain finality. Here, this court vacated LaFrom-
boise’s gun convictions and remanded the case to the district
court “for retrial as to those convictions.” The district court
set the matter for retrial but ultimately dismissed the charges
upon the government’s motion. The dismissal order signaled
finality because it left nothing for the district court to do. It
should not be disregarded because it was not styled as a judg-
ment.
I also disagree with the majority’s conclusion that LaFrom-
boise must be resentenced in this case. We held in Ruiz-
Alvarez that the district court has the authority to resentence
a defendant upon remand when this court partially reverses a
conviction. 211 F.3d 1184. Ruiz-Alvarez, however, does not
require the district court to do so. Here, although the district
court could have resentenced LaFromboise consistent with
our mandate, the fact that it chose not to does not affect the
finality of LaFromboise’s conviction and sentence. The par-
ties did not move for resentencing, and there was no reason
for the district court to do so sua sponte. The firearms convic-
tions were vacated by this court, thereby voiding the 360
month sentence for these charges. The original judgment on
the drug charge remained undisturbed by our vacation, or by
the district court’s subsequent dismissal of the gun charges.
Because the one-year statute of limitation began to run for
LaFromboise on September 2, 1997, his § 2255 motion is
untimely unless LaFromboise can establish that he is entitled
to equitable tolling of the limitation period. The one-year stat-
ute of limitation was enacted in 1996 as part of the Antiterro-
rism and Effective Death Penalty Act (AEDPA), and was
codified at 28 U.S.C. § 2255. LaFromboise contends that the
statute of limitation should be tolled from April 23, 1997,
until December 2, 1998, while he was incarcerated at the Yel-
lowstone County Detention Center, because during that time
15960 UNITED STATES v. LAFROMBOISE
he was unaware of the newly-created limitation period and
because the law library did not provide him with a post-
AEDPA copy of 28 U.S.C. § 2255. He also argues that the
district court record is incomplete on this point and that a
remand therefore is required to develop the record.
LaFromboise is incorrect. The record contains evidence
that the detention center replaced LaFromboise’s water-
damaged legal books in June, 1998. The replacement books,
including an up-to-date copy of Title 28 of the United States
Code, were shipped to the detention center on June 11, 1998,
and, according to Lieutenant Neiter of the Yellowstone
County Sheriff’s Office, were received shortly thereafter. The
district court found that the books were replaced on approxi-
mately June 15, 1998. LaFromboise does not challenge this
finding on appeal. Therefore, even if LaFromboise was enti-
tled to equitable tolling until he received the up-to-date copy
of Title 28 of the United States Code, his § 2255 motion was
still filed after the one-year statute of limitation expired.
Because LaFromboise’s conviction and sentence became
final on September 1, 1997, and because his § 2255 motion
was filed more than one year after June 15, 1998, LaFrom-
boise’s motion is untimely. I would affirm the district court’s
denial of LaFromboise’s motion as time-barred. Accordingly,
I respectfully DISSENT.
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708 F.2d 727
Robinsonv.Mintzes
82-1076
UNITED STATES COURT OF APPEALS Sixth Circuit
11/15/82
1
E.D.Mich.
AFFIRMED
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36 Mass. App. Ct. 339 (1994)
631 N.E.2d 75
RICARDO GUITY
vs.
COMMERCE INSURANCE COMPANY.
No. 92-P-1747.
Appeals Court of Massachusetts, Suffolk.
December 7, 1993.
April 14, 1994.
Present: ARMSTRONG, KASS, & SMITH, JJ.
William F. Spallina for the plaintiff.
Carolyn DeSpirito for the defendant.
KASS, J.
In broad outline, a judge of the Superior Court found that: Ricardo Guity, a claimant under a motor vehicle insurance policy, had failed to cooperate with the insurer; the insurer had conscientiously investigated Guity's claim; and the insurer had good reason to think that Guity's claim was tainted with fraud. On the basis of those findings, the judge ruled that, although Guity had recovered $18,075 on the insurance policy in a contract action tried to a jury, he could *340 not recover claims for multiple damages and counsel fees under G.L.c. 93A and G.L.c. 176D, § 3(9)(g), as appearing in St. 1972, c. 543, § 1. The latter statute defines as an unfair act or practice in the business of insurance: "Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds." We affirm.
Guity had reported his automobile, a 1985 BMW 7451, stolen on November 6, 1988, from a shopping mall while he was watching a movie, "Who Framed Roger Rabbit." For reasons we shall detail, the insurer, Commerce Insurance Company (Commerce), denied payment and also declined settlement in response to a c. 93A letter from Guity's lawyer. Guity filed a two-count complaint: the first count claiming under the insurance contract and the second demanding triple damages and legal fees.
The contract claim was tried before a jury (Guity had claimed a jury on his complaint) and submitted to that jury on special questions, to which the jurors answered that: Guity had not made material misrepresentations either in applying for the Commerce policy or in his claim of loss for his BMW; he had not failed to cooperate with Commerce's investigation of the claimed theft; and that the cash value of the car before the loss had been $18,075.[1] The trial judge then heard supplementary evidence on the c. 93A claim and, on the basis of that evidence, as well as the evidence she had heard at the proceedings before the jury, made her own independent findings (adverse to the plaintiff), as she was free to do. Chamberlayne Sch. and Chamberlayne Jr. College v. Banker, 30 Mass. App. Ct. 346, 354-355 (1991). Wyler v. Bonnell Motors, Inc., 35 Mass. App. Ct. 563, 566-568 (1993). There is no right to a trial by jury in an action under c. 93A. Nei v. Burley, 388 Mass. 307, 315 (1983). As those cases make clear, the judge's independent findings may be contrary to those found by the jury. W. Oliver Tripp Co. v. *341 American Hoechst Co., 34 Mass. App. Ct. 744, 753-754 (1993). Wallace Motor Sales, Inc. v. American Motors Sales, Corp., 780 F.2d 1049, 1063-1067 (1st Cir.1985). Guity's position on appeal is that his recovery on the insurance contract automatically established a violation by Commerce of G.L.c. 176D, § 3(9)(g), and, as that is an unfair act, a violation of G.L.c. 93A. Otherwise stated, no matter how cogent the reasons of an insurer for declining payment on a policy, if the policyholder obtains a judgment on the policy (e.g., by scoring with a jury), the plain language of c. 176D, § 3(9)(g), entitles the policyholder to c. 93A damages.
Before examining that proposition, it will be helpful to return to the facts found by the judge. When he had applied for automobile insurance, Guity had given as his address that of his parents in the Hyde Park section of Boston, rather than his own in the Mattapan section. His application for insurance made in May, 1988, listed an odometer reading of 29,900 miles, but the vehicle, when found after its reported theft, showed an odometer with 29,449 miles on it.[2] The car when found had been vandalized, a total wreck, yet the ignition system, door locks, and trunk lock were intact. Guity claimed to have paid $25,000 for his BMW, but documents filed with the Registry of Motor Vehicles stated a sales price of $11,500. Documents of the United States Customs Service estimated a value of $5,866.67, apparently owing to the vehicle's nonconformance with applicable environmental specifications.
Commerce promptly began investigation of the reported theft. Its investigator, Franklin Jones, experienced some difficulty in catching up with Guity, who was not at the address he had listed when obtaining his policy. Jones asked Guity for an affidavit and to conduct a taped interview. Guity provisionally declined either affidavit or interview until he talked to his lawyer. When Jones pressed his requests, Guity responded *342 that he had spoken to his lawyer and would neither put anything in writing nor submit to a tape-recorded interview.
The applicable insurance policy, the standard Massachusetts form, provided in connection with claims procedures:
"If you are filing a claim for damage to your auto, you or someone on your behalf must file a proof of loss within 91 days after the accident.
"We may also require you to submit to an examination under oath.
"After an accident or loss, you ... must cooperate with us in the investigation, settlement and defense of any claim or lawsuit ..."
By letter dated March 13, 1989, Commerce denied coverage because of Guity's failure to cooperate and the submission of false documents at the time of purchasing his insurance.[3]
Based on her subsidiary findings, the judge further found that "Commerce began the investigation of Guity's claimed loss reasonably promptly.... Commerce thereafter proceeded with reasonable efficiency and thoroughness in its investigation, and promptly informed Guity (by letter dated November 28, 1988) that... [he] was failing to cooperate with the investigation. Guity did fail to cooperate by declining or refusing to be interviewed or to fill out any affidavit describing the loss." On the basis of the information Commerce had developed and Guity's refusal to cooperate, the judge ruled that Commerce reasonably denied coverage for the loss.
Subsection (9) of G.L.c. 176D, § 3, catalogs fourteen categories of unfair claim settlement practices. The plaintiff *343 stakes his case on the seventh of those, subparagraph (g) of § 3(9). As in any case of statutory interpretation it is well to begin with a close look at the words of the statute, which we restate: "[A]n unfair claim settlement practice shall consist of any of the following acts or omissions ... (g) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds." The quoted words, particularly "offering substantially less than the amounts ulitmately recovered," express a legislative purpose to penalize the practice of "low balling," i.e., offering much less than a case is worth in a situation where liability is either clear or highly likely. When the Legislature treated with outright denial of a claim, it knew how to do so, as in § 3(9)(n), as appearing in St. 1972, c. 543, § 1, which describes as an unfair settlement practice "[f]ailing to provide promptly a reasonable explanation ... for denial of a claim...." The language of subparagraph g presupposes some offer a markedly inadequate one not the absence of any offer at all. Thus, it has been said that "[l]iability under c. 176D and c. 93A does not attach merely because an insurer concludes that it has no liability under an insurance policy and that conclusion is ultimately determined to have been erroneous." Pediatricians, Inc. v. Provident Life & Acc. Ins. Co., 965 F.2d 1164, 1173 (1st Cir.1992).
Here, the trial judge found that there were multiple reasons for Commerce to decline to pay the plaintiff under the theft coverage in the policy. Liability was not reasonably clear and, under such circumstances, § 3(9)(g) does not apply. Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 13-14 (1989). A plausible, reasoned legal position that may ultimately turn out to be mistaken or simply, as here, unsuccessful is outside the scope of the punitive aspects of the combined application of c. 93A and c. 176D. See Gulezian v. Lincoln Ins. Co., 399 Mass. 606, 613 (1987); Billings, The Massachusetts Law of Unfair Insurance Claim Settlement Practices, 76 Mass. L. Rev. 55, 62-63 *344 (1991). An absence of good faith and the presence of extortionate tactics generally characterize the basis for a c. 93A 176D action based on unfair settlement practice. See Forucci v. United States Fid. & Guar. Co., 817 F. Supp. 195, 202 (D. Mass. 1993).
So, for example, it was unfair to refuse a settlement offer simply on a statistical suspicion of a claimant because he was in the automobile business. Wallace v. American Mfrs. Mut. Ins. Co., 22 Mass. App. Ct. 938, 939 (1986). See also Whyte v. Connecticut Mut. Life Ins. Co., 818 F.2d 1005, 1011 (1st Cir.1987) (company practice not to settle any but small claims prior to trial); Shapiro v. American Home Assur. Co., 616 F. Supp. 906, 918-919 (D. Mass. 1985) (failure to provide coverage after judicial determination that coverage applied).
In the face of Guity's failure to cooperate, the evidence that the theft of the BMW may have been contrived, and the inflation of the purchase price on Guity's claim, the company reasonably, and the judge found, promptly, notified him of the reasons for declining payment on the policy. There was no unfair settlement practice.
Judgment affirmed.
NOTES
[1] We have telescoped what the jury found in responses to seven separate special questions.
[2] At a certain point Guity had allowed his insurance to lapse and when he reapplied for insurance in October, 1988, one month before he reported his car stolen, he listed mileage of 31,000 miles.
[3] In addition to the policy provisions quoted above, to which the trial judge referred, the policy also provided that the insurance company may refuse to pay claims under the optional coverages in the policy (which include theft coverage) if the insured gave false information about the place where the covered auto is principally garaged.
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85 S.E.2d 342 (1955)
241 N.C. 382
STATE
v.
Elizabeth H. POOLOS.
No. 724.
Supreme Court of North Carolina.
January 14, 1955.
Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody, and William P. Mayo, Member of Staff, Washington, N. C., for the State.
Eugene H. Phillips, Winston-Salem, and B. C. Brock, Mocksville, for defendant.
DENNY, Justice.
There is no contention on the part of the defendant that the State's evidence is insufficient *343 to support the verdict. She contends, however, that the court committed prejudicial error by sustaining objections by the State to certain questions propounded by her counsel in cross-examining the State's witnesses.
Counsel for defendant, in cross-examining Anne Shuler, one of the State's witnesses, asked her if on one occasion she had tried to commit suicide by eating some bobby pins. The State objected to the question and the court sustained the objection. The defendant duly excepted to the court's ruling and assigns it as error.
The record does not disclose what the reply of the witness would have been if she had been permitted to answer; consequently, it is impossible for us to know whether the ruling was prejudicial to the defendant or not. We think the question propounded was a permissible one for the purpose of impeaching the credibility of the testimony of the witness. Even so, the burden is upon the appellant not only to show error but to show that such error was prejudicial to her. We cannot assume that the answer of the witness would have been in the affirmative. In re Will of Wilder, 205 N.C. 431, 171 S.E. 611; State v. Brewer, 202 N.C. 187, 162 S.E. 363, 81 A.L.R. 1424; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; Simpson v. Tobacco Growers' Co-op. Ass'n, 190 N.C. 603, 130 S.E. 507; Snyder v. Town of Asheboro, 182 N.C. 708, 110 S.E. 84; In re Ross' Will, 182 N.C. 477, 109 S.E. 365. Suppose the witness had been permitted to answer the question and had replied in the negative, the defendant would have been bound by the answer. Clark v. Clark, 65 N.C. 655; State v. Roberts, 81 N.C. 605; State v. Morris, 109 N.C. 820, 13 S.E. 877; State v. Cagle, 114 N.C. 835, 19 S.E. 766; State v. Wilson, 217 N.C. 123, 7 S.E.2d 11; State v. Broom, 222 N.C. 324, 22 S.E.2d 926; State v. King, 224 N.C. 329, 30 S.E.2d 230. Furthermore, the question was not propounded for the purpose of showing bias, interest, or hostility of the witness as was the case in State v. Hart, 239 N.C. 709, 80 S.E.2d 901, but the defendant states in her brief that the question was asked for the purpose of impeaching her credibility as a witness by showing that she was mentally and emotionally unstable. Stansbury on Evidence, Witnesses, section 48, subsection 3.
This Court held in the cases of Etheridge v. Atlantic Coast Line R. Co., 209 N.C. 326, 183 S.E. 539; State v. Huskins, 209 N.C. 727, 184 S.E. 480, and pointed out in State v. Wray, 217 N.C. 167, 7 S.E.2d 468, that the general rule that where a question is propounded to a witness and an objection thereto is sustained, in order for an exception thereto to be considered on appeal the record must show what the witness would have answered if the objection had not been interposed, does not apply to a question propounded on cross-examination. The citation relied upon to sustain this exception to the general rule is State v. Martino, 27 N.M. 1, 192 P. 507. The only reason given by the New Mexico Court to support its decision in this respect was that counsel in cross-examining a witness is not charged with the knowledge of what the witness would have answered if the objection had not been made.
We do not think this reasoning is sound, for, after all, it is not what the attorney knew or did not know that is determinative of the question. Here, as in other similar situations, it is what the witness would have said in response to the question, if she had been permitted to answer, that would enable us to determine whether the appellant was prejudiced by the ruling below.
The last cited case and our decisions in accordance therewith are in direct conflict with an otherwise unbroken line of decisions by this Court on the identical question under consideration. Hence, Etheridge v. Atlantic Coast Line R. Co., supra, and State v. Huskins, supra, are disapproved in so far as they are in conflict with this opinion and other decisions of this Court on the question involved.
Except for the above cases, we have been unable to find a single instance where this Court has made any distinction between a question propounded on direct *344 examination and one on cross-examination with respect to the general rule that an exception will not be considered on appeal where an objection has been sustained, unless the record discloses what the witness would have said if he had been permitted to answer. A few other jurisdictions do make such a distinction. See 3 C.J., Appeal and Error, section 737, page 827; 4 C.J.S., Appeal and Error, § 291.
Among the cases in which this Court has declined to consider exceptions propounded on cross-examination because the record did not disclose what the answer would have been had the witness been permitted to answer, are the following: State v. Leak, 156 N.C. 643, 72 S.E. 567; Stout v. Valle Crucis, S. & E. P. Turnpike Co., 157 N.C. 366, 72 S.E. 993; Steeley v. Dare Lumber Co., 165 N.C. 27, 80 S.E. 963; State v. Lane, 166 N.C. 333, 81 S.E. 620; Brimmer v. M. H. Brimmer & Co., 174 N.C. 435, 93 S.E. 984; Smith v. Myers, 188 N.C. 551, 125 S.E. 178; State v. Collins, 189 N.C. 15, 126 S.E. 98; State v. Brewer, 202 N.C. 187, 162 S.E. 363, 81 A.L.R. 1424; Hammond v. Williams, 215 N.C. 657, 3 S.E.2d 437. See also Howard v. Andrews Manufacturing Co., 179 N.C. 118, 101 S.E. 491; Newbern v. Hinton, 190 N.C. 108, 129 S.E. 181, and Wigmore on Evidence, 3rd Edition, Vol. I, section 20, page 362.
In Snyder v. Town of Asheboro, supra [182 N.C. 708, 110 S.E. 85], this Court said: "Since the record fails to disclose what the witness would have said, we cannot assume that his answer would have been favorable to the defendant. It would be vain to grant a new trial upon the hazard of an uncertain answer by the witness."
Likewise, Winborne, J., in the case of Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650, 50 S.E.2d 909, 910, said: "The record does not show what the answer of the witness would have been if permitted to answer. Competency of the testimony is not, therefore, presented by the assignments of error. Barbee v. Davis, 187 N.C. 78, 121 S.E. 176, and cases cited."
The exception is overruled.
We have carefully examined the remaining exceptions and assignments of error, and, in our opinion, no error has been made to appear that would warrant a new trial. The verdict and judgment of the court below will be upheld.
No error.
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30 So.3d 629 (2010)
Stephen J. GARDNER, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-6198.
District Court of Appeal of Florida, Second District.
March 17, 2010.
*630 Noel H. Flasterstein of Law Offices of Noel H. Flasterstein, P.A., Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
CASANUEVA, Chief Judge.
Stephen J. Gardner appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we reverse for resentencing on his claim that his sentencing violated double jeopardy principles, Mr. Gardner's other claims are rendered moot.
Mr. Gardner, a minor in 2003 and 2004 at the time of the crimes for which he was charged, was prosecuted as an adult pursuant to section 985.227, Florida Statutes (2003). He alleges that the sentencing court violated the principles of double jeopardy by initially sentencing him to multiple, concurrent eight-year terms of incarceration for various felonies but laterafter returning from a lunch break by resentencing him to concurrent ten-year minimum mandatory sentences on those same charges. Double jeopardy may be raised for the first time in a 3.850 motion even if not raised at trial or on direct appeal. See Plowman v. State, 586 So.2d 454, 455 (Fla. 2d DCA 1991) ("Just as a prisoner does not waive a double jeopardy violation for failing to raise the issue at trial, we hold that a prisoner does not waive a double jeopardy violation for failing to raise the issue on direct appeal from the judgment and sentence."); see also Fla. R.Crim. P. 3.850(a)(1), (3). Because jeopardy attached at the conclusion of the hearing at which the court originally pronounced the sentences, see Ashley v. State, 850 So.2d 1265, 1269 (Fla.2003) (Pariente, J., concurring), the sentencing court had no authority to call Mr. Gardner back for resentencing. The postconviction court should have granted Mr. Gardner's motion to vacate his sentences and reimposed the original terms.
The relevant proceedings ended after the trial court sentenced Mr. Gardner to a combination of sentences for his various charges amounting to eight years' imprisonment followed by two years' community control and thirteen years' drug offender probation, ordered restitution be paid, and imposed several other conditions on probation. The trial court found sufficient grounds for a downward departure from the Criminal Punishment Code Sentencing Guidelines after concluding that Mr. Gardner required specialized treatment for a mental disorder unrelated to substance abuse or addiction, that he was amenable to treatment, and that the need for payment of restitution outweighed the need for a lengthy prison sentence.[1] After clarifying the provisions of conditional release and probation, the sentencing court asked, "Is there anything else, State, other than your objection to my departure that I failed to do?" The State responded that it needed to put its objection to the departure on the record, asserting only that "there [were] insufficient grounds to establish specialized treatment and restitution."
The court noted the objection, clarified the remaining terms of the various sentences, and concluded the proceedings:
*631 THE COURT: Any misdemeanors, time served.
MR. BODIFORD: Of course, that's it.
THE COURT: Thank you.
MR. BODIFORD: Judge, thank you for your indulgence.
THE COURT: Thank you everyone.
MR. ROSARIO: Thank you, Your Honor.
THE COURT: Have a good day. All right, let's take a 10-minute lunch break.
THE COURT: One more thing, Mr. Gardner, I don't know what excuse it is that you gave me before or someone gave me before for those [tattoo] teardrops, but my recollection of those teardrops is that they are indeed gang-related.
You're to have no association upon your release from custody with any known gangs or anyone that is known to be affiliated with a gang; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Thank you.
Mr. Gardner was taken from the room, and the court then took the announced lunch break. Notably, there is no discussion in the record up to this point of the possible application of a minimum mandatory sentence.
The same attorneys were before the court again following the lunch break. Returning to Mr. Gardner's case, the prosecutor announced that he had forgotten to place on the record his objection to the court's having sentenced Gardner to a term below the minimum mandatory sentence for his offenses.[2] At defense counsel's suggestion that the State would have to appeal or file a motion, the court replied, "I won't be doing that. You have to bring him back in ... I think we have to resentence him." The court directed counsel to find Mr. Gardner's family and ordered Mr. Gardner be returned to the courtroom.
The court continued the discussion with counsel and Mr. Gardner's family before Mr. Gardner returned to the courtroom. Upon Mr. Gardner's return, the court referred to the proceeding held before the break and the discussion with counsel after lunch, declared that a ten-year minimum mandatory sentence applied to his case, and imposed the longer sentence. At the conclusion of the second hearing, Mr. Gardner's sentence was increased from eight years' incarceration on the armed burglary charges to ten-year minimum mandatory sentences; the other terms remained unchanged.
Critical to the court's belief that resentencing was necessary seems to be its conclusion that failure to sentence Mr. Gardner to the ten-year minimum mandatory sentence would result in an automatic reversal on appeal by the State. That conclusion is well-supported. See § 775.087(2)(b), (d), Fla. Stat. (2003) (prohibiting imposition of a lesser sentence than otherwise required by law and clarifying the legislative intent that "the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted"); State v. Calzada-Padron, 708 So.2d 287, 287 (Fla. 2d DCA 1996) ("Section 775.087(2) contains no provision permitting the trial court to exercise its discretion in imposing a ... minimum *632 mandatory prison sentence once a defendant has been convicted of certain enumerated felonies.").
Nevertheless, the court had no authority to reopen the proceedings once the hearing had concluded and double jeopardy had attached. "Florida law generally accords a level of finality to a sentence once it has been orally pronounced and the defendant has begun to serve the sentence." Delemos v. State, 969 So.2d 544, 548 (Fla. 2d DCA 2007). While "there appears to be no dispute that a defendant begins serving his sentence at least upon his transfer into the custody of the Department of Corrections," id. at 548 n. 6, the length of time between the end of one proceeding and the start of another has little effect upon double jeopardy considerations. See Figueroa v. State, 3 So.3d 428, 429 (Fla. 2d DCA 2009) (reversing a minimum mandatory sentence imposed during a proceeding held one day after the initial sentencing); Brown v. State, 965 So.2d 1234, 1238 (Fla. 5th DCA 2007) (reversing a sentencing "correction" made at an undefined point after a hearing had concluded); Obara v. State, 958 So.2d 1019, 1021 (Fla. 5th DCA 2007) (reversing a sentence imposed on a defendant recalled to the courtroom following sentencing but before he was transferred from the court's custody); Shepard v. State, 940 So.2d 545, 548 (Fla. 5th DCA 2006) (reversing a sentence imposed after the defendant was called back fifty minutes after the proceeding had ended).
Absent a proper appeal, double jeopardy considerations bar increasing even an illegal sentence:
Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). This is true even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court's and parties' intentions at sentencing.
Pate v. State, 908 So.2d 613, 614 (Fla. 2d DCA 2005) (emphasis added). This court has further clarified Pate in holding:
[E]ven if the sentence ... were illegal for failing to include the minimum mandatory term, this court has previously held that double jeopardy bars an increase in a sentence once it is imposed and the defendant begins serving it, at least in the absence of a proper appeal.... Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed.
Delemos, 969 So.2d at 550 (emphasis added); see also Figueroa, 3 So.3d at 429 (reversing imposition of a twenty-five-year minimum mandatory sentence and directing reimposition of the original twenty-year sentence).
Although it may appear to serve the interests of judicial economy to permit a trial court to fix an apparently erroneous sentence without requiring a motion or proper appeal, there are clear procedures for correcting such errors on appeal if properly preserved. See Delemos, 969 So.2d at 549-50 (cataloging the proper procedures for increasing a sentence even after the conclusion of a sentencing hearing). In this case, however, those procedures were not followed and the constitutional prohibition against increasing Mr. Gardner's sentence after jeopardy attached was violated.
Accordingly, we are compelled to reverse the denial of Mr. Gardner's motion for postconviction relief on this ground and remand with directions that the trial court reimpose the original eight-year sentences *633 for those offenses. Mr. Gardner need not be present for resentencing.
Reversed and remanded.
WALLACE, J., Concurs.
ALTENBERND, J., Dissents with opinion.
ALTENBERND, Judge, Dissenting.
I dissent. I am not certain whether we are holding that Mr. Gardner is entitled to the eight-year term of imprisonment, even though it is illegal, or that he is entitled to receive this sentence subject to the State's right to have that sentence reversed in a subsequent appeal.
Although I dissent, I recognize the possibility that my disagreement is actually a disagreement with either the holding in Ashley v. State, 850 So.2d 1265 (Fla.2003), or the case law applying it. Ashley holds that "[o]nce a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles." Id. at 1267. The courts of Florida have interpreted this holding very strictly. Once the sound waves from the judge's oral pronouncement have reached the court reporter's ears or the microphone of the digital recording device, we seem to think that the defendant has begun to serve the sentence. At a minimum, once the defendant's sentencing hearing has concluded, we rule that he is serving the sentence even when the oral pronouncement has not been rendered by a written sentence. I am not convinced that a defendant who sits in the courthouse during the lunchtime between an initial illegal sentencing and a resentencing has begun to serve the illegal sentence for purposes of a constitutional double jeopardy analysis.
Mr. Gardner went to a sentencing hearing having agreed to a maximum prison sentence of ten years' imprisonment.[3] As explained by the majority opinion, the trial court initially imposed a sentence that did not include the mandatory term, and after a short lunch break, the trial court corrected this error. Mr. Gardner filed a motion for rehearing, but when he received no relief, he did not appeal. Instead, almost two years later, Mr. Gardner filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.
Legally, the trial court was required to sentence the defendant pursuant to the express terms of the statute to the ten-year minimum term. The original sentence, which included a downward departure rather than the minimum mandatory term, was an erroneous sentence. See State v. Calzada-Padron, 708 So.2d 287 (Fla. 2d DCA 1996); see also Beard v. State, 819 So.2d 987 (Fla. 2d DCA 2002) (affirming imposition of the minimum mandatory portion of a life sentence, as automatic, upon resentencing after remand of direct appeal); Van Buren v. State, 500 So.2d 732 (Fla. 2d DCA 1987) (holding that efforts to correct unlawfully lenient sentences are not per se violative of double jeopardy proscriptions and that double jeopardy arises only when efforts are undertaken to increase a sentence that was legal when originally imposed). Both the First and Fifth Districts have held that resentencing to impose minimum mandatory terms is required where the original sentences fail to include the nondiscretionary terms. See State v. Vanderhoff, 14 So.3d 1185 (Fla. 5th DCA 2009); State v. Couch, 896 So.2d 799 (Fla. 1st DCA 2005). Thus, unless the State has forever waived the right to obtain the mandated sentence *634 by failing to note this error before the hearing concluded, the original sentence was subject to reversal on appeal by the State and may also be subject to reversal when imposed on remand from this appeal.
In Delemos v. State, 969 So.2d 544 (Fla. 2d DCA 2007), I suggested that the Florida law on the issue of when a sentence becomes final for purposes of double jeopardy may be overly restrictive and that the U.S. Constitution may permit a longer window of time in which courts could correct errors made during oral pronouncement. I continue to believe that our case law does not reflect the extent to which simple human error is inevitable in oral pronouncements and that the constitutional doctrine of double jeopardy was never intended to make sentencing a game in which mental errors by judges and attorneys are irreparable even when the error is discovered minutes later. See United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818 (1947), for the principle that "[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner").
In other jurisdictions, the defendant's being taken into custody by the Department of Corrections or, at a minimum, the transfer of custody from the judiciary to the executive, is the point at which the defendant begins to serve the sentence, and the trial court loses its authority to resentence. See People v. Mendoza, 171 Cal.App.4th 1142, 90 Cal.Rptr.3d 315, 320-21 (2009) (holding that upon receipt of the judgment by the sheriff, the execution of the judgment is in progress); State v. Carr, 167 Ohio App.3d 223, 854 N.E.2d 571, 573 (2006) (holding that the execution of a sentence begins when the defendant is delivered to the institution where the sentence is to be served); State v. Jacobs, 200 Or.App. 665, 117 P.3d 290, 296 (2005) (holding a prison sentence is not executed until the defendant is delivered to the custody of the Department of Corrections); Maher v. State, 991 P.2d 1248, 1249 (Wyo. 1999) (holding that the relevant inquiry in deciding whether a defendant has begun serving a sentence is whether the defendant has been delivered to executive custody for that purpose); Francis v. United States, 715 A.2d 894, 898 n. 12 (D.C.1998) ("[T]he Double Jeopardy Clause is inapplicable absent a transfer of a convicted individual from the judiciary, which pronounced sentence, to the executive, which administers it.").
So long as a trial judge is not exercising his or her discretion to increase the severity of the overall sentence that the trial judge intended to impose at the oral pronouncement, I believe we could and should have a procedural mechanism by which trial judges are allowed to correct misstatements and confusions in sentences and to impose mandated sentencing conditions that were overlooked at oral pronouncement. When a judge inadvertently imposes a fifteen-year sentence on a third-degree felony and a five-year sentence on a second-degree felony, for example, I do not understand why constitutional double jeopardy should bar the judge from imposing the intended fifteen-year sentence for the second-degree felony even a few days after the mistake in the oral pronouncement.
A defendant has a right to a legal sentence. This defendant is about to receive the benefit of an illegal sentence, in all likelihood because a judge and several lawyers were anxious to go to lunch. Somehow, Florida's technical approach to double jeopardy allows inadvertent mistakes to give defendants the right not to legal *635 sentences, but to sentences that are often more like half jeopardy.
NOTES
[1] See § 921.0026(2)(d), Fla. Stat. (2003). We note that the eight-year sentence is consistent with what Mr. Gardner apparently believed to be successful, restitution-focused plea negotiations with the State and court at the change-of-plea hearing despite the ultimately open nature of his plea.
[2] In its answer brief, the State accepts Mr. Gardner's statement of the case and statement of facts. While the State suggests that the objection to the downward departure and sentencing below the minimum mandatory occurred only moments after the start of the morning sentencing hearing, both Mr. Gardner's statement of the case and facts and the record reflect that this discussion occurred shortly after the court returned from lunch.
[3] There may have been ineffective assistance of counsel in this case because it does not appear that Mr. Gardner understood that the trial court had no discretion and was compelled to impose a ten-year sentence.
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945 N.E.2d 697 (2007)
375 Ill. App.3d 1143
PEOPLE
v.
TROTTER.
No. 1-05-2076.
Appellate Court of Illinois, First District
August 31, 2007.
Affirmed.
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717 N.W.2d 872 (2006)
475 Mich. 911
ALLSTATE INSURANCE COMPANY, Plaintiff/Counter-Defendant/Appellant,
v.
Timothy BROE, Eleanor Broe and Broe Rehabilitation Services, Inc., Defendants/Counter-Plaintiffs/Appellees.
Docket No. 131530. COA No. 266039.
Supreme Court of Michigan.
July 26, 2006.
The motion for immediate consideration is GRANTED. On order of the Court, the application for leave to appeal the May 16, 2006 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion to stay the trial court proceedings is DENIED.
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652 F.2d 59
Smithv.Sowders
81-5109
UNITED STATES COURT OF APPEALS Sixth Circuit
3/26/81
1
W.D.Ky.
APPEAL DISMISSED
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367 Pa. Superior Ct. 370 (1987)
532 A.2d 1191
COMMONWEALTH of Pennsylvania
v.
Henry Christain RAUSER, Jr., Appellant.
Supreme Court of Pennsylvania.
Submitted May 18, 1987.
Filed October 20, 1987.
*371 Paul W. Kilgore, Lebanon, for appellant.
Thomas S. Long, District Attorney, Lebanon, for Com., appellee.
Before CIRILLO, President Judge, and ROWLEY and McEWEN, JJ.
CIRILLO, President Judge:
This is an appeal from the denial of a petition for relief pursuant to the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (1982). Also before us is a petition by appellant's counsel for leave to withdraw. We affirm the denial of relief and grant counsel's petition for leave to withdraw.
Appellant has previously filed more than ten PCHA petitions. Appellant's counsel has now raised several issues which he states "could arguably support the appeal." All of these issues are prefaced with the question of whether appellant is entitled to an additional PCHA hearing and/or withdrawal of his guilty plea.
Appellant's counsel, in his brief to this court, presents little more than a recitation of the facts, a procedural history, and a list of issues. He presents no legal authority in the portion of his brief entitled "Argument." This is commonly referred to as an Anders brief, based on the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
In addition to his petition for leave to withdraw, appellant's counsel has also sent to his client a notice of right to counsel and/or right to raise additional matters in support of his appeal. Appellant has not raised such additional *372 matters. The Commonwealth has not filed a brief in this appeal.
A.
In the case now before us we examine whether there is a sound legal foundation for the apparent assumption in some Pennsylvania cases that Anders applies to collateral postconviction proceedings, based on Pennsylvania law. We must undertake this important analysis in light of a recent decision by the United States Supreme Court which ruled that the requirements of Anders do not apply to PCHA proceedings, as a matter of federal law.
I
The United States Supreme Court in Pennsylvania v. Finley, ___ U.S. ___, 107 S.Ct. 1990, 95 L.E.2d 539 (1987), reviewed a decision by the Superior Court of Pennsylvania[1] which dealt with the applicability of the principles enunciated in Anders to collateral postconviction proceedings[2].
The Finley case involved a conviction of second-degree murder in the Court of Common Pleas of Philadelphia County. Finley was sentenced to life imprisonment. The Pennsylvania Supreme Court unanimously affirmed the conviction. Commonwealth v. Finley, 477 Pa. 211, 383 A.2d 898 (1978).
Finley then sought relief from the trial court, pursuant to the Pennsylvania Post Conviction Hearing Act (PCHA). 42 Pa.C.S. §§ 9541-9551 (1982). Proceeding pro se, she raised the same issues that the Pennsylvania Supreme Court had rejected on the merits. On her appeal from the PCHA *373 proceedings, however, the Pennsylvania Supreme Court reversed the denial of relief by the trial court based on the state law entitlement to counsel in postconviction proceedings. Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981).
On remand, the counsel appointed by the trial court reviewed the trial record and consulted with Finley. He concluded that there were no arguable bases for collateral relief. He advised the trial court of his conclusion and requested permission to withdraw. After an independent review of the record, the trial court agreed with appointed counsel and, thus, dismissed the petition for postconviction relief.
An appeal to this court was pursued by Finley's newly appointed appellate counsel. Over Judge Rowley's dissent, a panel of this court ruled that "Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal is derived from the seminal case of Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967)." Finley, 330 Pa.Super. 313, 318, 479 A.2d 568, 570 (1984). We concluded that based on Anders, the conduct of trial counsel in the postconviction proceedings violated Finley's constitutional rights. The United States Supreme Court disagreed.
In its review of our decision, the United States Supreme Court repeated the requirements that it established in Anders. It held, however, that the following requirements apply only when an attorney appointed to represent an indigent on direct appeal finds a case wholly frivolous:
[H]e should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court not counsel then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.
*374 Pennsylvania v. Finley, ___ U.S. ___, ___, 107 S.Ct. 1990, 1991, 95 L.Ed.2d 539 (1987) (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400.)
Writing for the majority, Chief Justice Rehnquist ruled that the Pennsylvania Superior Court "improperly relied on the United States Constitution to extend the Anders procedures to postconviction proceedings." ___ U.S. at ___, 107 S.Ct. at 1993. The Anders holding was based on the principle that the "denial of counsel to indigents on first appeal as of right amounted to unconstitutional discrimination against the poor." Id. (citing Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 817, 9 L.Ed.2d 811 (1963)). The Supreme Court added, however, that "Anders did not set down an independent constitutional command that all lawyers, in all proceedings, must follow these particular procedures." Id.
Chief Justice Rehnquist reasoned that "since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process." Id. (citing Boyd v. Dutton, 405 U.S. 1, 7 n. 2, 92 S.Ct. 759, 762 n. 2, 30 L.Ed.2d 755 (1972) (Powell, J., dissenting)).
The Finley Court ruled that the due process clause did not require the appointment of counsel in postconviction proceedings, because the "`fact that an appeal has been provided does not automatically mean that a state then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way.'" Id. (quoting Ross v. Moffitt, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 2443-44, 41 L.Ed.2d 341 (1974)). The Court also rejected the argument that the equal protection guarantee of the fourteenth amendment required a different result. Rather, the Supreme Court reasoned that the "`duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the *375 indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process.'" Id. (quoting Ross v. Moffitt, 417 U.S. at 616, 94 S.Ct. at 2447).
The Court regarded these considerations as applicable with even greater force to postconviction review. The Finley Court dismissed the view that the Anders procedures should be applied to a state-created right to counsel in post-conviction proceedings. Id. In Ross, the United States Supreme Court concluded that the "defendant's access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review." Finley, ___ U.S. at ___, 107 S.Ct. at 1994 (citing Ross, 417 U.S. at 614-15, 94 S.Ct. at 2445-46). The Finley Court ruled that the same conclusion necessarily obtains with respect to postconviction review. The Finley Court reasoned that "[s]ince respondent [Finley] has no underlying constitutional right to appointed counsel in state postconviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right." ___ U.S. at ___, 107 S.Ct. at 1994.
The Court of Common Pleas of Philadelphia County found that Finley's right to counsel under Pennsylvania law was satisfied by the conduct of her appointed counsel, combined with the trial court's independent review of the record. The United States Supreme Court rejected the conclusion of a panel of our Court that Anders required even more assistance, as a matter of federal law. Id.
Chief Justice Rehnquist concluded that, therefore,
the State's obligations, as a matter of both federal and state law, have been fulfilled. Since respondent has received exactly that which she is entitled to receive under state law an independent review of the record by competent counsel she cannot claim any deprivation without due process.
*376 At bottom, the decision below rests on a premise that we are unwilling to accept that when a State chooses to offer help to those seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must assume. On the contrary, in this area States have substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review. In Pennsylvania, the State has made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position at trial and on first appeal as of right. In this context, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders.
Id. (emphasis added).[3]
In order to clarify Pennsylvania law on this issue, we will provide a discussion of Pennsylvania cases in three categories: those that apply the Anders procedures to direct appeals; those that recognize the right to counsel in PCHA proceedings; and those that appear to assume without always deciding that the Anders procedures apply to PCHA appeals. In Part V we will announce the proper procedure to be followed in PCHA appeals that are perceived by counsel to be frivolous.
*377 II
We now discuss those Pennsylvania cases that have applied Anders on direct appeal.
In Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), the Pennsylvania Supreme Court reviewed the Anders case in connection with the direct appeal of a manslaughter sentence. Appointed counsel had filed an appellate brief along with a petition for leave to withdraw. Appellant was served with a copy of the brief and a notice of his right to either retain new counsel and/or file a supplemental brief. Id., 495 Pa. at 469, 434 A.2d at 1186.
Although the Pennsylvania Supreme Court recognized that counsel is not required to compromise principle or to act contrary to his own conscience, the court disapproved of counsel's demonstration in his appellate brief as to why the appeal was meritless. 495 Pa. at 472, 434 A.2d at 1187. The McClendon Court stated that when seeking to withdraw, "counsel's role is not that of amicus curiae." Id. The court recognized, however, that "Anders does not require that counsel be forced to pursue a wholly frivolous appeal just because his client is indigent." 495 Pa. at 473, 434 A.2d at 1188 (citing Commonwealth v. Perry, 464 Pa. 272, 346 A.2d 554 (1975)).
We are aided in our construction of McClendon by an analysis of an opinion written by the same author in the same year. Several months before expressing the view of the Pennsylvania Supreme Court in McClendon, Justice (now Chief Justice) Nix in his discussion of Anders, recognized that "we are bound under the Supremacy Clause to follow that holding." Commonwealth v. Lowenberg, 493 Pa. 232, 235, 425 A.2d 1100, 1101 (1981) (plurality opinion) (citing U.S. Const., Art. VI, cl. 2) Importantly, the current Chief Justice went on to write for a plurality of the court that Anders was limited to the first direct appeal from a criminal conviction. Therefore, he concluded that Anders did not apply to collateral proceedings pursuant to a state statutory provision such as the PCHA. 493 Pa. at 235, 425 A.2d at 1101-02. It follows logically that because Anders *378 is limited to first direct appeals, we are not bound to its procedure in collateral proceedings. Thus, McClendon should be interpreted consistently with Lowenberg, written by the same author in the same year. In fact, we have so interpreted McClendon.
In Commonwealth v. Walker, 311 Pa.Super. 213, 215, 457 A.2d 571, 572 (1983), we cited McClendon as incorporating the Anders requirements which must be satisfied before counsel's request to withdraw may be considered. We stated those requirements as follows: "(1) counsel must notify the appellant of his request to withdraw; (2) counsel must furnish the appellant with a copy of the brief prepared by counsel pursuant to Anders; and (3) counsel must advise appellant of his right to retain new counsel or raise any points he may deem worthy of consideration in a pro se brief." 311 Pa.Super. at 215, 457 A.2d at 571-72 (citing McClendon and Anders).
In Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), the Pennsylvania Supreme Court first held that Anders must be followed on direct appeals. The appellant in Baker was sentenced to three to six years in prison following his conviction of armed robbery and a related offense. An appeal was taken to the Superior Court and relief was denied. Commonwealth v. Baker, 211 Pa.Super. 736, 235 A.2d 821 (1967) rev'd, 429 Pa. 209, 239 A.2d 201 (1968).
The Pennsylvania Supreme Court held that the assistance given to Baker in his initial appeal was defective under the rule set out in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The court stated that Anders gives counsel two choices when representing an indigent client on direct appeal: 1) he may file briefs and argue the case, or 2) the attorney may choose to withdraw from the case if he finds the client's case be frivolous. Before withdrawal is permitted, however, he must advise the court and request permission to withdraw, at the same time giving the court a brief referring to anything in the record that might arguably support the appeal. A copy of the *379 brief should be given to the client and he should be given sufficient time to raise any points that he chooses. 429 Pa. at 211-12, 239 A.2d at 202.
In Commonwealth v. Thomas, 354 Pa.Super. 87, 511 A.2d 200 (1986), the Pennsylvania Superior Court held that an appellant's counsel must comply with all Anders requirements if he seeks to withdraw from a direct appeal. 354 Pa.Super. at 89, 511 A.2d at 200. In this case, the appellant's counsel contended that there were no meritorious issues on appeal and therefore the appeal should have been dismissed pursuant to Anders. Appellant's counsel, however, failed to comply with the Anders requirements. First, although counsel contended that he had found no meritorious issues to raise on appeal, there was no indication that counsel had ever consulted Thomas in reviewing the case. Counsel had not filed a petition for leave to withdraw. He only asked that appellant's appeal be dismissed. Second, counsel did not file a brief referring to anything in the record that could support the appeal. 354 Pa.Super. at 90, 511 A.2d at 201. Consequently, the Court found a violation of the Anders requirements. We wrote that
There are two purposes to be served by counsel's filing a brief that refers to anything in the record that might arguably support the appeal: (1) it gives the reviewing court a basis upon which to decide if the appeal is, in fact, frivolous, and (2) it gives indigent defendants "as nearly as is practicable" that which is guaranteed them under the sixth and fourteenth amendments, the right to counsel and, in the process, protects counsel from ineffectiveness allegations.
354 Pa.Super. at 93, 511 A.2d at 202-03.
In Commonwealth v. Martinez, 319 Pa.Super. 346, 466 A.2d 192 (1983) (Cirillo, J., now P.J.), we considered a defense counsel's petition to withdraw from further representation in the direct appeal of a criminal sentence. We granted the petition after finding that counsel had followed all the necessary Anders procedures applicable to direct appeals. In addition, we found that after an exhaustive *380 review of the record, we agreed with counsel's conclusions that the appeal was wholly frivolous. Id., 319 Pa.Superior Ct. at 350, 466 A.2d at 194 (citing Commonwealth v. McClendon, 495 Pa. 467, 471, 434 A.2d 1185, 1187 (1981)). See also Commonwealth v. Bradley, 320 Pa.Super. 504, 467 A.2d 826 (1983) (granting petition to withdraw from direct appeal after finding that requirements of Anders and McClendon were met).
Thus, we see that our appellate courts have routinely recognized the mandate of the United States Supreme Court that Anders must be applied to first direct appeals.
III
Lengthy analysis is unnecessary to demonstrate that the right to counsel in collateral proceedings is well established in Pennsylvania. For example, Pennsylvania Rule of Criminal Procedure 1503(b) provides that "[w]here counsel has been appointed, such appointment shall be effective until final judgment, including any proceedings upon appeal from a denial of collateral relief."
In Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980), the highest court of this Commonwealth recognized that "Nothing in PCHA practice is more settled than the rule that a person seeking post-conviction relief is entitled to the assistance of counsel." Id., 490 Pa. at 132, 415 A.2d at 68 (citing Pa.R.Crim.P. 1503; Commonwealth v. McClinton, 488 Pa. 598, 413 A.2d 386 (1980) (other citations omitted)). The Pennsylvania Supreme Court added that "The right to counsel extends not only to proceedings before a PCHA court but also on appeal from those proceedings." Id. 490 Pa. at 132 n. 2, 415 A.2d at 68 n. 2 (citing Commonwealth v. Cooney, 439 Pa. 324, 266 A.2d 650 (1970); Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968)).
In the remainder of this opinion, we refine the right to PCHA counsel. Namely, we emphasize the subtle but significant distinction between the right to counsel in meritorious *381 PCHA appeals, as seen in contradistinction to frivolous PCHA appeals.[4]
IV
We now consider cases that have discussed Anders in connection with PCHA appeals.
A plurality of the Pennsylvania Supreme Court in Commonwealth v. Lowenberg, 493 Pa. 232, 425 A.2d 1100 (1981) (Nix, J., now C.J.), held that Anders was limited in its applicability to first direct appeals from criminal convictions. Writing for a plurality, Justice (now Chief Justice) Nix concluded that, therefore, Anders did not apply to collateral proceedings. 493 Pa. at 235, 425 A.2d at 1101-02. The Lowenberg case involved a PCHA appeal in connection with a claim of ineffective assistance of counsel. Appointed counsel had concluded that in his considered judgment the record provided no basis for reversible error. Id., 493 Pa. at 234, 425 A.2d at 1101.
The case of Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983), also involved a PCHA appeal. The appellant claimed that his appointed counsel did not adequately pursue his appeal. Without analysis and without providing legal justification, the Court in Lohr applied McClendon, which incorporated Anders, as the required procedure when "counsel believes that an appeal would be wholly frivolous." Id. No distinction was made between first direct appeals and collateral appeals. This seems to have been due to a misinterpretation of the federal law announced in Anders. Based on the decision by the United States Supreme Court in Finley, as well as our prior discussion of McClendon, we are confident in concluding that this casual application of *382 the Anders requirements to collateral proceedings need no longer be followed.
The case of Commonwealth v. Cooney, 439 Pa. 324, 326 n. 1, 266 A.2d 650, 651 n. 1 (1970), is representative of many Pennsylvania decisions which seem to assume in passing, without analysis and without providing a sound legal foundation, that Anders applies to PCHA appeals which may be frivolous. See, e.g. Commonwealth v. Martin, 356 Pa.Super. 525, 528, 515 A.2d 18, 19 (1986) (same). For example, in Cooney the court noted that if counsel determined that he could find no valid basis for appeal of a PCHA petition, he should seek to withdraw in compliance with Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). Baker had adopted Anders as Pennsylvania law for direct appeals. After the decision of the United States Supreme Court in Finley, however, it is now clear that Anders does not apply to PCHA proceedings. See also Commonwealth v. Wilkerson, 490 Pa. 296, 303, 416 A.2d 477, 481 (1980) (Larsen, J., dissenting) (finding Anders inapplicable to PCHA appeal). See generally Congo v. Commonwealth, Pennsylvania Board of Probation and Parole, 104 Pa.Commw. 511, 513-514, 522 A.2d 676, 678 (1987) (discussion of Anders in connection with appeal from Board of Probation and Parole to the Pennsylvania Commonwealth Court. This aspect of Anders is outside the scope of our opinion.).
In Commonwealth v. Green, 355 Pa.Super. 451, 513 A.2d 1008 (1986), a panel of this court cited our decision in Finley to support the proposition that the Anders procedures apply to postconviction proceedings "as well as appeals therefrom." Id., 355 Pa.Superior Ct. at 457, 513 A.2d at 1011. As we now know, the United States Supreme Court recently reversed our decision in Finley for erroneously extending Anders to postconviction proceedings. Therefore, it follows that Green is no longer good law insofar as it relied on an interpretation and application of Anders which was overruled by the United States Supreme Court. Pennsylvania v. Finley, ___ U.S. ___, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).
*383 In Commonwealth v. McGeth, 347 Pa.Super. 333, 500 A.2d 860 (1985), appellant filed a pro se petition for relief under the Post Conviction Hearing Act citing a variety of reasons why his prior conviction should have been overturned. Counsel was then appointed. After a review of the record, trial counsel submitted a letter to the trial court indicating that no meritorious issues could be found. The trial court then dismissed appellant's PCHA petition and allowed counsel to withdraw. 347 Pa.Super. at 336, 500 A.2d at 861.
We were asked in McGeth to decide whether PCHA counsel was ineffective for filing a purported Anders brief which did not refer to anything in the record which could arguably support an appeal. The McGeth court discussed Anders at length, including many of its Pennsylvania progeny. Among other aspects of Anders, a panel of this court noted the distinction between frivolity and absence of merit. 347 Pa.Super. at 338, 500 A.2d at 862-63 (citing Commonwealth v. Greer, 455 Pa. 106, 108-109, 314 A.2d 513, 514 (1974); ABA project for Standards on Criminal Justice, Standards Relating to the Defense Function § 8.3, commentary at 297 (approved draft 1971)).
As we have done earlier in this opinion, the panel in McGeth recognized that Justice (now Chief Justice) Nix had stated in Lowenberg, supra, that Anders applied only to first direct appeals from criminal convictions. 347 Pa.Super. at 339, 500 A.2d at 863. Without taking an affirmative stand on this point, we chose in McGeth to decide the case on general precepts relating to the law of ineffectiveness of counsel. We concluded that counsel was not ineffective for filing a purported Anders brief which did refer to an arguable basis for an appeal. Still, we did not squarely and clearly address the applicability of Anders to collateral proceedings, though we concluded that the "requirements of Anders McClendon have been satisfied." 347 Pa.Super. at 344, 500 A.2d at 866. See id., 347 Pa.Superior Ct. at 345 n. 8, 500 A.2d at 866 n. 8 (It is well-settled that "`[a]ppointed counsel is of course not required to accept a *384 client's view by asserting points his good conscience would reject even at the loss of a handsome fee.'" (quoting Suggs v. United States, 391 F.2d 971, 974 (D.C.Cir. 1968)). Cf. Pennsylvania v. Finley, ___ U.S. at ___, 107 S.Ct. at 1998 (Brennan, J., dissenting) (interpreting McGeth as not requiring application of Anders on collateral review).
In Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230 (1983), the Pennsylvania Superior Court granted an attorney's petition to withdraw from a case involving a PCHA appeal. In granting the attorney's petition to withdraw, the court was satisfied that all the requirements enumerated in Anders had been met. This is another case which assumed without deciding that Anders applied to collateral proceedings. It seems that this error was due to a misunderstanding of federal law as announced in Anders.
The preceding discussion should reveal that the law is neither clear nor well settled regarding this critical distinction between first direct appeals and collateral proceedings insofar as the applicability of Anders is concerned. The following section of this opinion will provide a long-awaited clarification of this area of the law.
V
Today we announce a method for counsel to certify that in his or her professional opinion there are no valid grounds for a PCHA appeal, without the need to raise issues which he does not support, but which could arguably be raised on appeal. The following procedure will be pursued henceforth by appointed attorneys who are asked to file what they honestly believe to be a frivolous PCHA appeal. First, counsel must conduct a thorough and comprehensive review of the record and relevant legal authority. Second, if the attorney in good faith and in his honest professional opinion believes after such a review that an appeal would be frivolous, he shall so advise the trial court and petition the trial court for leave to withdraw. Third, concurrent with his petition to withdraw, counsel shall inform his client of his petition to withdraw and the reasons *385 therefor. Fourth, counsel shall advise his client of his right to another attorney and his right to raise issues on a pro se basis, as well as his right to an appeal. The next step is taken by the trial court. The trial court is to conduct a full examination of all the proceedings, and if it determines that the case is frivolous, should grant the petition to withdraw.[5]
This procedure, based on Pennsylvania law, is consistent with Chief Justice Rehnquist's closing lines in Finley that "the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders." ___ U.S. at ___, 107 S.Ct. at 1995. On this particular point, Pennsylvania law requires no more than does the United States Constitution.
The decision of the United States Supreme Court in Pennsylvania v. Finley provides the most cogent and eloquent support for the conclusion that we reach today. There is no better legal authority upon which we could rely for the position that Anders was not meant to apply to collateral postconviction proceedings. Chief Justice Nix recognized this in Lowenberg, while also recognizing that we are bound by the supremacy clause to follow Anders on the first direct appeal of a criminal conviction.
Basic principles of American jurisprudence dictate that cases in conflict with the holding of the United States Supreme Court in Finley, many of which we have discussed, need no longer be followed. In short, a so-called Anders brief need no longer be filed in a PCHA appeal when effective counsel has determined that an appeal would be wholly frivolous. This rule is a proper balance between the duty to protect the rights of the individual and the avoidance of forcing attorneys into an ethical dilemma by requiring them to pursue a frivolous appeal.
My view was expressed in the form of a concurrence when I wrote that
*386 If a skilled trial lawyer, in his considered judgment, holds the good faith conviction that an appeal is frivolous or that the filing of an appeal would offend his conscience, he can do no more. The courts should not then force him to do that which privately-hired defense counsel would not be required to do, simply because the lawyer has been appointed by the court. It should not be the policy of the judicial system to encourage groundless appeals which merely waste the courts' time.
The basis for caution in permitting court-appointed counsel to withdraw from a case is the need to assure that the appellate rights of a defendant are not waived without his knowledge. As long as withdrawing counsel informs the defendant of his appellate rights, including the right to request new court-appointed counsel, the actual filing and briefing of an appeal is unnecessary to preserve the defendant's rights.
Commonwealth v. Worthy, 301 Pa.Super. 46, 49, 446 A.2d 1327, 1330 (1982) (Cirillo, J., now P.J., concurring).
We find support for our decision in the Code of Professional Responsibility. The Disciplinary Rules, which prescribe the minimum level of conduct below which no lawyer may fall without being subject to disciplinary action, provide as follows: "In his representation of a client, a lawyer should not . . . knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law." Pa.Code of Professional Responsibility DR 7-102(A)(2) (1984). It is also provided in DR 2-110(C)(1)(a) that an attorney may withdraw if his client "insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law."
In addition, the Ethical Considerations, which represent the objectives toward which every member of the profession should strive, provide as follows:
*387 The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail. His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.
Pa.Code of Professional Responsibility EC 7-4 (emphasis added). See also id. EC 7-5 (an attorney may not assist the client in taking a frivolous legal position.)
Our decision today upholds the professional independence and promotes the integrity of the legal profession. It avoids the unacceptable scenario of forcing an attorney to be a conduit for the improper intentions of a client. We are loathe to place attorneys between Scylla and Charybdis, between the equally offensive alternatives of pursuing a frivolous appeal or filing a brief with issues that the attorney cannot honestly raise. Our result also strikes an even balance between the duty to represent a client zealously and the duty of candor to the court.
B
Based on our reasoning and conclusion in section A of this opinion, we need not address whether appellant's counsel has filed a proper Anders brief. He has satisfied the applicable requirements that we announce today.
In October 1978, appellant was charged with offenses under the Controlled Substance Device and Cosmetic Act. Appellant entered a plea of guilty and was sentenced to serve concurrent terms of from two to five years on each of the six counts charged. Appellant was represented by counsel at each stage of the proceeding. No appeal was taken.
On December 1, 1980, appellant filed his first PCHA petition. A hearing date was set for July 23, 1981 and *388 appellant failed to attend. The hearing court found that appellant had been given proper notice. It denied a motion to continue and dismissed the petition. No appeal was filed. This court found in a previous appeal by appellant that he admitted that he was on parole at the time of the hearing and was attempting to evade arrest under a warrant issued against him on other charges.
All subsequent PCHA petitions were dismissed without a hearing, until appellant's petition of June 19, 1984. A counseled hearing was held on October 22, 1984. The Honorable G. Thomas Gates determined that all issues raised by appellant had been waived due to his failure to appear at the initial PCHA hearing of July 23, 1981. On appeal, this court affirmed, noting that all issues had been raised in previous proceedings at the trial court level.
Finally, on October 13, 1986, appellant filed this last PCHA petition which was denied without a hearing. Appellant appealed pro se from that order and the court appointed Paul W. Kilgore, Esquire to represent him.
Mr. Kilgore now requests permission to withdraw. Counsel has made a conscientious review of the record and has determined that the instant appeal is wholly frivolous. After an independent review of the record, we agree and allow his withdrawal.[6]
This procedural history is important especially when seen in light of 42 Pa.C.S. § 9545(c) which provides:
(c) All available grounds to be set forth. Any person desiring to obtain relief under this subchapter shall set forth in the petition all of his then available grounds for such relief for any particular sentence he is currently serving and he shall be entitled to only one petition for each crime. The failure to raise any issue in the petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented.
*389 As we read the record, we think that the issues now before us may have been available grounds for relief when appellant filed his previous petitions. Based on § 9545(c), however, we deem the issues before us to be waived[7] because they could have been presented in one of the many earlier petitions, but were not. Therefore, we agree with the trial court that this appeal is frivolous.
We find support for our conclusion in Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981). In Alexander, a plurality of the Pennsylvania Supreme Court quoted the predecessor to § 9545(c), which contained essentially the same language as the current version, and reasoned that "the PCHA explicitly contemplated a single post-conviction proceeding in no uncertain terms." Id., 495 Pa. at 30, 432 A.2d at 183. Cf. Commonwealth v. McCabe, 359 Pa.Super. 566, 567-71, 519 A.2d 497, 498-99 (1986) (delay not a factor in determining claims raised in first PCHA petition).
The Alexander court was reviewing the sixth PCHA petition by the same petitioner. The court concluded that some of the issues would not be addressed because they had already been litigated, and that the remaining issues were waived. The court supported its conclusion by recounting the numerous prior petitions, the frivolous nature of the issues advanced, the entrance of a guilty plea, the delay in filing of the various petitions, and the nebulous claims of ineffectiveness. See Commonwealth v. Jones, 477 Pa. 266, 269, 383 A.2d 926, 927 (1978) (in PCHA appeal, appellant had waived challenge to validity of his guilty plea).
We follow the lead of the Pennsylvania Supreme Court by deeming appellant's issues waived and thereby denying the relief requested in his most recent PCHA appeal. Therefore, the order of the trial court must be affirmed.
Order affirmed. Petition to withdraw is granted.
*390 Concurring and dissenting statement by ROWLEY, J.
Concurring and dissenting opinion by McEWEN, J.
ROWLEY, Judge, concurring and dissenting:
I join in the order of the Court. However, I am unable to join in President Judge Cirillo's Opinion. Although I do not join in the Opinion, either as to the necessity for a new procedure or the procedure proposed by President Judge Cirillo, I especially want to emphasize my disagreement with the fifth step in the procedure proposed by the majority which requires the trial court in all situations to make the initial determination whether the appeal is frivolous. Frequently the petition to withdraw is not filed until an appeal has been taken and the trial court has been divested of jurisdiction. I see no need under these circumstances to delay the ultimate resolution of the appeal by remanding the case to the trial court for its determination of the frivolity of the appeal. In my opinion, should the proposed procedure become law, the frivolity of the appeal should be determined by the appellate court.
McEWEN, Judge, concurring and dissenting:
While I concur in the ruling of the majority which affirms the order denying relief, and permits counsel to withdraw, I am, nonetheless, compelled to most respectfully dissent from the decision to alter the procedures which counsel must employ when appointed to represent indigent defendants in proceedings pursuant to the Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-9551. The dilemma presented by frivolous collateral attacks upon convictions is a troublesome situation made perplexing by the scrupulous commitment of our legislature and courts to prevent injustice. Any and every method employed to resolve the dilemma is replete with seemingly purposeless procedures, and the Anders solution is no exception. Nonetheless, as toilsome as it may frequently appear, the Anders procedure is, in my view, as expedient a solution as has yet been devised and *391 has not proven so unwieldy as to require that it be discarded.
The United States Supreme Court in Anders devised a three pronged formula to determine when court appointed counsel will be permitted to withdraw his appearance in a direct appeal in a criminal case. The Court there decreed that when counsel, after a conscientious evaluation of the record, believes an appeal to be "wholly frivolous" and wishes to withdraw as counsel, he must: "(1) request the court's permission to withdraw as counsel, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his client in time to allow an appeal in propria persona or a request for appointment of new counsel." Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974). See: Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981); Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). The Anders decision was rendered in a direct appeal, and is not, by reason of federal law, of compulsory application in collateral appeals. It was, however, deemed sufficiently effective as to become prudently applicable in this Commonwealth to post conviction proceedings as well as direct appeals.
A convicted defendant who is indigent is, in most instances, entitled to representation by counsel[1] during proceedings initiated pursuant to the Post Conviction Hearing Act:
Rule 1503. Appointment of Counsel
(a) Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him. The court, on its own motion, shall appoint *392 counsel to represent a petitioner whenever the interests of justice require it.
(b) Where counsel has been appointed, such appointment shall be effective until final judgment, including any proceedings upon appeal from a denial of collateral relief.
Pa.R.Crim.P. 1503 (emphasis supplied).
It is well settled that the requirement that counsel be appointed is not satisfied by "`the mere naming of an attorney to represent the accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.'" Commonwealth v. Carrier, 494 Pa. 305, 309, 431 A.2d 271, 273 (1981) quoting Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975). See also: Commonwealth v. Scott, 469 Pa. 381, 383, 366 A.2d 225, 226 (1976); Commonwealth v. Barton, 312 Pa.Super. 176, 178, 458 A.2d 571, 573 (1983); Commonwealth v. Ollie, 304 Pa.Super. 505, 506, 450 A.2d 1026, 1027 (1982). Accord: Commonwealth v. Turner, 353 Pa.Super. 173, 175, 509 A.2d 391, 393 (1986); Commonwealth v. Miller, 325 Pa.Super. 163, 164, 472 A.2d 698, 699 (1981). The appointment of counsel in post conviction proceedings sharpens the presentation of issues and promotes the administration of justice. Commonwealth v. Holland, 496 Pa. 514, 515, 437 A.2d 1159, 1160 (1981). "Exploration of the legal grounds for complaint, investigation of the underlying facts and more articulate statement of claims are functions of an advocate.. . ." Commonwealth v. Mitchell, 427 Pa. 395, 397, 235 A.2d 148, 149 (1967). See also: Commonwealth v. Carrier, supra, 494 Pa. at 308, 431 A.2d at 273; Commonwealth v. Hines, 287 Pa.Super. 291, 293, 430 A.2d 291, 292 (1981).
The Pennsylvania Supreme Court in Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983), declared:
Where counsel believes that an appeal would be wholly frivolous the procedure to be pursued is set forth in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d *393 1185 (1981) (McClendon) requiring that counsel seek to withdraw by so petitioning the court and filing an Anders brief setting forth claims of "arguable merit." This requirement is intended to act as a reconciliation between disparate views: first, counsel's belief that an appeal would be wholly frivolous and, second, the right of an indigent defendant to enjoy representation commensurate with that available to more monied defendants. Submission of an Anders brief induces the court's review of the potential merit of an appeal before ruling on counsel's application to withdraw. As stated in McClendon, the goal is an independent determination of the merit of an appeal by a reviewing court.
Id., 503 Pa. at 138, 468 A.2d at 1379 (footnote omitted).
I am of a mind that our role as an intermediate appellate court precludes our rejection of a rule of procedure which our Supreme Court has approved, as I see it, in no uncertain terms. Because the Supreme Court has, in my view, the sole prerogative to revise any procedure it has adopted, I am unable to heed the call of the majority to scrap the Anders procedure, and to enact what is, in effect, a Rule of Criminal Procedure.
Since I take the position that this Court is powerless to enact such a rule, my view of the rule proposed by the majority becomes merely parenthetical. I am, nonetheless, obliged to observe that the manner in which the proposed procedure serves as an improvement upon the Anders procedure is, during my analysis, elusive. Moreover, it strikes me that submission of an Anders brief is a quite purposeful procedure, particularly in view of the quite minimal extra effort required of counsel who has already thoroughly examined the record and studied the applicable law.
Appellant in the instant matter claims that his guilty plea was unlawfully induced and that he should, therefore, be permitted to withdraw the plea. A cursory review of the record presently before this Court suggest that this issue has formed, with minor embellishments, the basis for approximately one dozen PCHA petitions filed by appellant. *394 This issue was raised in the first PCHA petition filed by appellant in December of 1980. That petition was dismissed when appellant knowingly failed to appear at the evidentiary hearing scheduled thereon. No appeal was taken. The second and third PCHA petitions filed by appellant, raising the same issue, were dismissed by the trial court and again no appeal was taken to the Superior Court. A fourth petition was dismissed and the Superior Court, on appeal, affirmed the dismissal of the petition on the grounds that appellant's failure to appear at the hearing on his first petition acted as a waiver of the issue. No petition for allocatur was filed. Appellant simply continued to file subsequent petitions raising the same issue. There can be no question but that appellant was not entitled, under the Rules of Criminal Procedure or the Post Conviction Hearing Act, to the appointment of counsel to assist him in the presentation of this petition. See: 42 Pa.C.S. § 9544(a); Pa.R.Crim.P. 1504. Thus it is that I would affirm the order which dismissed the latest PCHA petition filed by appellant and allow counsel to withdraw.
NOTES
[1] Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984), appeal dismissed, 510 Pa. 304, 507 A.2d 822 (1986), rev'd sub nom., Pennsylvania v. Finley, ___ U.S. ___, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (Rehnquist, C.J.).
[2] For general background commentary and analysis on the Anders decision, see Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths A Dead End?, 86 Colum.L.Rev. 9, 16-17 (1986); Hermann, Frivolous Criminal Appeals, 47 N.Y.U.L.Rev. 701, 704-08 (1972); Nickols v. Gagnon, 454 F.2d 467 (7th Cir. 1971).
[3] Justice Brennan, in a dissenting opinion joined by Justice Marshall, observed that
After the present case was decided, the Superior Court held that the McClendon [Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)] procedures not the Anders requirements are required on collateral review. Commonwealth v. McGeth, 347 Pa.Super. 333, 344-345, 500 A.2d 860, 866 (1985). The Pennsylvania Supreme Court has never held that Anders procedures are required on collateral review. In Commonwealth v. Lowenberg, 493 Pa. 232, 235, 425 A.2d 1100-1101, 1102 (1981), the State Supreme Court was equally divided on this issue and therefore affirmed the lower court ruling that the Anders procedures are required only on direct appeal from a criminal conviction, and not on collateral review.
___ U.S. at ___, 107 S.Ct. at 1998 (Brennan, J., dissenting) (emphasis in original).
[4] In this regard, we also distinguish, in much the same way as the United States Supreme Court in Finley, supra, the more general right to counsel on direct appeals under Pennsylvania law. See Pa. Const. art. 1, § 9 ("In all criminal prosecutions the accused hath a right to be heard by himself and his counsel. . . ."). See also 42 Pa.C.S. § 9551(b) ("appointment of counsel shall not be required if the PCHA petitioner's claim is patently frivolous. . . .")
[5] Thus, the appellate system is not involved in the initial finding of frivolity or the petition to withdraw.
[6] Based on the procedure that we announced in Section A, Part V of this opinion, the trial court will determine such matters in the future.
[7] One of the "arguable" issues raised by appellant's appointed counsel is that a former PCHA counsel should have pursued a discretionary appeal to the Pennsylvania Supreme Court. We find no merit in this argument.
[1] Rule 1504 of the Rules of Criminal Procedure provides that counsel need not be appointed where "a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he was either afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon". See also: Commonwealth v. Curtin, 365 Pa.Super. 424, 529 A.2d 1130 (1987); 42 Pa.C.S. § 9545(c).
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175 S.W.3d 500 (2005)
Steven Alexander MENEFEE, Appellant,
v.
The STATE of Texas, Appellee.
No. 09-04-169 CR.
Court of Appeals of Texas, Beaumont.
Submitted March 31, 2005.
Decided August 31, 2005.
*502 Russell J. Wright, Silsbee, for appellant.
Sue Korioth, Special Prosecutor, Tyler County Criminal Dist. Atty., Dallas, Joe R. Smith, Tyler County Criminal Dist. Atty., Woodville, for state.
Before GAULTNEY, KREGER and HORTON, JJ.
OPINION
HOLLIS HORTON, Justice.
Appellant Steven Alexander Menefee was indicted for second-degree robbery. See TEX. PEN.CODE ANN. § 29.02 (Vernon 2003). The State alleged Menefee had a prior conviction for felony theft, raising his range of punishment to that for a first-degree felony. See TEX. PEN.CODE ANN. § 12.42(b) (Vernon Supp.2005).[1] Following the jury's "guilty" verdict, Menefee pled "true" to the enhancement allegation and stipulated to the prior conviction. He was sentenced to twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division, and fined $10,000.
In five issues, Menefee contends: (1) the trial court enhanced his sentence with a prior theft conviction that was not final when he committed the robbery; (2) he received ineffective assistance of counsel because his trial counsel failed to investigate and discover that the prior conviction used to enhance his sentence was an unrevoked probated sentence; (3) the trial court entered a void cumulation order; (4) the trial court entered a different sentence than it orally pronounced; and (5) the evidence proving Menefee committed theft of property was factually insufficient. We affirm the conviction and reverse and remand for a new punishment hearing.
We first review Menefee's factual sufficiency argument. The Court of Criminal Appeals has recently restated the standard for reviewing factual sufficiency as follows:
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004) (footnote omitted). In a factual sufficiency review, we must give due deference to the jury's determination concerning the weight and credibility of the evidence, and we will reverse the *503 jury's determination only to arrest the occurrence of a manifest injustice. Brewer v. State, 126 S.W.3d 295, 297 (Tex.App.Beaumont 2004, pet. ref'd) (citing Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim. App.2003)).
J.S., the victim, testified that on the evening of the incident, he was in his car when Menefee approached and offered to buy marihuana for him. J.S. gave Menefee money to purchase the marihuana, and then J.S. left the scene. After accepting J.S.'s money, Menefee left to obtain the marihuana.
Subsequently, a group of young men approached J.S.'s car. At J.S.'s invitation, three young men entered his car and the young men began talking to each other. The two young men in the backseat left the car and two other young men entered the backseat. The young men began talking to J.S. and then started beating him. One of them held a knife to J.S.'s throat and demanded his wallet. After taking J.S.'s wallet, they pulled him out of the car and continued to beat him. The assailants eventually ran away, and J.S. entered his car and left. J.S. testified he did not know if Menefee participated in the assault or took his wallet because he could not remember any of the attackers' faces.
Menefee testified he assaulted J.S. after returning to the scene. According to Menefee, he overheard J.S. accuse two young men of stealing his money. When Menefee observed J.S. grab one of the young men and attempt to pull the young man into his car, Menefee "intervened" by hitting J.S. Menefee testified he hit J.S. to protect the two young men. Menefee did not recall how many times he hit J.S., and he denied kicking J.S. Menefee testified he did not take J.S.'s wallet, but he admitted that he kept the money J.S. had previously given him. Menefee admitted that he assaulted J.S. but denied robbing him.
On cross-examination, the State introduced a letter Menefee wrote to the district attorney before trial. In the letter, Menefee claimed he and J.S. were in an apartment when J.S. asked Menefee to sell him marihuana. Menefee asserted that J.S. willingly handed Menefee his wallet to show that he was not a police officer. In the letter, Menefee indicated a fight ensued after J.S. handed him his wallet.
The State also introduced Menefee's testimony from the hearing on the State's motion to revoke probation. At the hearing, Menefee testified to an encounter at an apartment, during which J.S. gave him money to purchase marihuana. According to Menefee, he left the apartment, and he returned to find his friends beating J.S. Menefee testified he did not participate in the fight but may have hit J.S. once.
At trial, Menefee testified he lied in the letter and at the revocation hearing. Menefee testified that despite the inconsistency between his prior versions of the events, he was being truthful at trial.
M.B. and A.D., both of whom were well acquainted with Menefee, testified they saw Menefee assault J.S. M.B. could not recall how long she viewed the incident, and A.D. testified he watched the fight for five to six minutes. M.B. viewed the incident from across the street, and A.D. viewed the incident from fifteen yards away. Both witnesses testified they watched Menefee and two other young men beat J.S. while he sat inside his car. Only A.D. observed the young men pulling J.S. out of the car, but he did not know if Menefee was among them. On cross-examination, A.D. testified he did not see Menefee hit J.S. while J.S. was inside the car. A.D. admitted he did not focus his attention on any particular person.
Officer Michael J. McCulley of the Woodville Police Department investigated *504 the robbery. While investigating the scene of the crime, another officer saw two of the young men with blood on their shirts and the officer detained them. Officer McCulley testified that the same officer recovered J.S.'s wallet and its original contents several hundred feet from the scene of the robbery. Menefee was subsequently arrested in Hardin County and returned to Tyler County.
Menefee argues the evidence presented at trial to prove he was in the course of committing theft of property was factually insufficient to support his conviction. First, he contends the two witnesses who viewed the assault and identified him as a participant did not view the entire incident. Next, he argues J.S. could not identify the person who put a knife to his throat and took his wallet. Finally, Menefee argues that because the jury was not charged regarding the law of parties, the State had to prove he committed each element of robbery beyond a reasonable doubt.
When a jury is not charged regarding the law of parties, a defendant may only be convicted on the basis of his own conduct. Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App.1996). We review the record to determine whether the evidence is sufficient to find Menefee guilty of robbery based on his own conduct.
A person commits a robbery if, (1) in the course of committing theft and (2) with the intent to obtain or maintain control of the property, (3) he intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PEN.CODE ANN. § 29.02 (Vernon 2003). The term "in the course of committing theft" means conduct that occurs in an attempt to commit, during the commission of, or in immediate flight after the attempt or commission of theft. TEX. PEN.CODE ANN. § 29.01(1) (Vernon 2003). A theft occurs when one unlawfully appropriates property with the intent to deprive the owner of the property. TEX. PEN.CODE ANN. § 31.03(a) (Vernon Supp.2005). The intent to steal may be inferred from circumstantial evidence and from the defendant's conduct. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim. App.1999).
The record indicates Menefee knew J.S. had money because J.S. gave him money to purchase marihuana. When Menefee returned to J.S., he did not give J.S. any marihuana nor did he return J.S.'s money. The jury could infer Menefee returned to get more money from J.S. by stealing his wallet. During the assault, J.S.'s wallet was taken without his consent. The jury could further infer Menefee assaulted J.S. to steal the wallet. Menefee admitted hitting J.S., and J.S. suffered injuries to his head and face. Despite Menefee's testimony that he only assaulted J.S. to protect two young men, the jury was free to disbelieve Menefee's testimony in light of the circumstances surrounding the assault and his prior inconsistent statements.
Reviewing all of the evidence in a neutral light, we cannot conclude that the proof of Menefee's guilt is so obviously weak as to undermine confidence in the determination of the jury, nor can we conclude that the proof of guilt is greatly outweighed by contrary proof. See Zuniga, 144 S.W.3d at 484-85. Menefee's own conduct was sufficient for the jury to find him guilty of robbery beyond a reasonable doubt. See TEX. PEN.CODE ANN. § 29.02 (Vernon 2003). The evidence is factually sufficient to support the jury's verdict. Issue five is overruled.
In issue two, Menefee contends he received ineffective assistance of counsel because his trial counsel failed to investigate and discover that the prior conviction used to enhance his sentence was an unrevoked *505 probated sentence. Menefee argues trial counsel's silence regarding the enhancement issue reflects counsel was unaware of Texas enhancement law and did not investigate the procedural history of the enhancement count.
The legal standard applicable to an ineffective assistance of counsel claim is set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Menefee must first show trial counsel's performance was deficient. Id. at 687, 104 S.Ct. 2052; Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002). Specifically, Menefee must prove, by a preponderance of the evidence, that trial counsel's representation fell below the objective standard of professional norms. Mitchell, 68 S.W.3d at 642. Second, Menefee must show that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. "This means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Mitchell, 68 S.W.3d at 642.
"Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). This deferential standard applies to ineffective assistance that occurs during the punishment phase of trial. Flowers v. State, 133 S.W.3d 853, 856 (Tex.App.-Beaumont 2004, no pet.) (citing Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999)).
It is well settled that any claim of ineffective assistance must be firmly founded in the record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833.
However, "when no reasonable trial strategy [can] justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as [he] did." Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App.2005). When the record contains all the information needed to make a decision, we may find trial counsel's performance to be deficient even when the record is silent as to counsel's trial strategy and tactics. See id. at 102-03.
The first Strickland prong requires us to decide whether Menefee has shown trial counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The record indicates trial counsel allowed Menefee to plead "true" and stipulate to the enhancement allegation.
For enhancement purposes, prior convictions must be final. Jordan v. State, 36 S.W.3d 871, 873 (Tex.Crim.App. 2001). A probated sentence is not a final conviction for enhancement purposes unless it is revoked. Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App.1992) (citing Ex parte Murchison, 560 S.W.2d 654, 656 (Tex.Crim.App.1978)). The State's Exhibit No. 9, a penitentiary packet, shows Menefee received an April 12, 2002 theft conviction for 120 months, probated for 120 months. The penitentiary packet also *506 includes a September 13, 2002 judgment revoking the April 12, 2002 community supervision. Thus, the prior felony theft conviction became final on September 13, 2002, the date Menefee's probation was revoked. See Colvin v. State, 54 S.W.3d 82, 87 n. 1 (Tex.App.-Texarkana 2001, no pet.) (noting the date a prior conviction becomes final is the date community supervision is revoked).
The jury charge and jury findings allowed Menefee's sentence to be enhanced pursuant to the 1993 amendment of TEX. PEN.CODE ANN. § 12.42(b), which became effective on September 1, 1994. See Act of May 31, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 12.42, 1993 Tex. Gen. Laws 3586, 3604 (current version at TEX. PEN. CODE ANN. § 12.42(b) (Vernon Supp.2005)). When Menefee committed the primary offense, section 12.42(b) provided:
If it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony.
Id. The Austin Court of Appeals has held the State has the burden to show a prior conviction used to enhance punishment under section 12.42(b)[2] became final before the commission of the primary offense. See Espinoza v. State, 843 S.W.2d 729, 731 (Tex.App.-Austin 1992, pet. ref'd) (citing Diremiggio v. State, 637 S.W.2d 926, 928 (Tex.Crim.App.1982)). The Austin Court of Appeals relied on case law resolving the analogous issue under section 12.42(c). See Espinoza, 843 S.W.2d at 731 (citing Diremiggio, 637 S.W.2d at 928); TEX. PEN. CODE ANN. § 12.42(c) (Vernon Supp.2005). Section 12.42(c)(1), which contains language similar to section 12.42(b), provides:
[I]f it is shown on the trial of a first-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term not more than 99 years or less than 15 years.
TEX. PEN.CODE ANN. § 12.42(c)(1) (Vernon Supp.2005).
In Diremiggio, the defendant was sentenced as a repeat offender under section 12.42(c).[3]Diremiggio, 637 S.W.2d at 927 n. 1; Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 12.42, 1973 Tex. Gen. Laws 883, 908 (current version at TEX. PEN.CODE ANN. § 12.42(c)(1) (Vernon Supp. 2005)). The Court of Criminal Appeals stated,
It is settled that the burden is on the State to make a prima facie showing that any prior conviction alleged for enhancement, or for punishing an accused as a repeat offender, became final before the commission of the primary offense, *507 and once such a showing is made, the burden shifts to the defendant to prove otherwise.
Diremiggio, 637 S.W.2d at 928.
Menefee pled "true" to the enhancement allegation and stipulated that on April 12, 2002, he had been convicted of a felony theft. The theft conviction had not become final before the commission of the primary offense and could not be used to enhance Menefee's punishment. See Diremiggio, 637 S.W.2d at 928. Because counsel allowed Menefee to plead true and stipulate to the prior conviction, Menefee lost the ability to appeal his sentence based on the sufficiency of the evidence used to enhance his punishment. See Smith v. State, 158 S.W.3d 463, 465 (Tex. Crim.App.2005); Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981).
Trial counsel had a duty to research Texas enhancement law, investigate Menefee's case, and prevent Menefee from pleading "true" to the enhancement allegation. See, e.g., Andrews, 159 S.W.3d at 102. "This duty derives from counsel's function `to make the adversarial testing process work in the particular case.'" Id. (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). There can be no reasonable trial strategy for allowing Menefee to plead "true" to an enhancement allegation that was in fact not true. We find trial counsel's performance fell below an objective standard of reasonableness as a matter of law. See id. The first prong of the Strickland test has been satisfied.
We next decide whether under Strickland's second prong, trial counsel's deficient performance prejudiced Menefee's defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. There is a reasonable probability that but for trial counsel's error in allowing Menefee to plead "true" and stipulate to the theft conviction, the result of the proceeding would have been different. See Mitchell, 68 S.W.3d at 642. Menefee's punishment was enhanced from a second-degree felony carrying a punishment range of two to twenty years to a first-degree felony carrying a punishment range of life or five to ninety-nine years. See TEX. PEN.CODE ANN. §§ 12.32(a), 12.33(a) (Vernon 2003). Menefee was sentenced to twenty-five years' confinement, which is five years more than the maximum allowed for a second-degree felony. See TEX. PEN.CODE ANN. § 12.33(a) (Vernon 2003).
There is a reasonable probability that had trial counsel advised Menefee to plead "not true" to the enhancement allegation, Menefee would have either received a sentence within the punishment range allowed for second-degree robbery, or he would have been able to challenge any sentence outside of the punishment range based on insufficient evidence. Because Menefee has demonstrated trial counsel's deficient performance prejudiced his defense in the punishment phase, the second prong of the Strickland test is satisfied. Issue two is sustained.
Menefee's conviction for robbery is affirmed. Because we conclude counsel's performance was deficient in the punishment hearing and Menefee was prejudiced by counsel's deficient performance, we reverse the judgment of the trial court and remand for a new punishment hearing.[4]See TEX.CODE CRIM. PROC. ANN. art. 44.29(b) (Vernon Supp.2005).
*508 AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
NOTES
[1] The enhancement statute applicable during the time of the primary robbery offense was amended in 1993. See Act of May 31, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 12.42, 1993 Tex. Gen. Laws 3586, 3604 (current version at TEX. PEN.CODE ANN. § 12.42(b) (Vernon Supp.2005)). Because there has not been a substantive change to section 12.42(b) since its effective date, we will cite to the current version.
[2] When Espinoza was decided, section 12.42(b) provided:
If it be shown on the trial of a second-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a first-degree felony.
Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 12.42, 1973 Tex. Gen. Laws 883, 908 (current version at TEX. PEN.CODE ANN. § 12.42(b) (Vernon Supp.2005)).
[3] When Diremiggio was decided, section 12.42(c) provided:
If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years.
Diremiggio, 637 S.W.2d at 927 n. 1 (citing Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 12.42, 1973 Tex. Gen. Laws 883, 908 (current version at TEX. PEN.CODE ANN. § 12.42(c)(1) (Vernon Supp.2005))).
[4] Because our holding disposes of the remaining issues, we will not reach the merits of Menefee's first, third, and fourth issues.
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559 So.2d 61 (1990)
Winston RENFROE
v.
GOLD KIST, INC.
Civ. 7060.
Court of Civil Appeals of Alabama.
January 24, 1990.
Claude E. Hundley III of Barnett, Hundley & Driskill, Guntersville, for appellant.
*62 John W. Clark, Jr. and William A. Austill of Clark & Scott, Birmingham, for appellee.
INGRAM, Presiding Judge.
The employee, Winston Renfroe, filed a claim against his employer pursuant to the Alabama Workmen's Compensation Act. After an ore tenus proceeding the trial court found that on December 8, 1986, the employee was accidentally injured in the line and scope of his employment and was due certain benefits. The trial court specifically found, however, that a subsequent injury on December 29, 1986, was not compensable in that the employee failed to meet the burden of proving that the second injury was a direct result of the first compensable injury. The employee appeals.
The dispositive issue on appeal is whether there is any evidence to support the trial court's conclusion that the employee failed to meet his burden of proof. In other words, does the evidence reveal that the employee failed to establish the causal connection between the initial, compensable injury and the subsequent injury for which additional benefits are sought?
At the outset, we note that in a workmen's compensation case, our scope of review as to factual matters is strictly limited to an examination of the evidence before the trial court to determine if there is any legal evidence supportive of the trial court's findings. Houston v. Louisiana Land Exploration Co., 459 So.2d 912 (Ala. Civ.App.1984). If there was, we must affirm the trial court's judgment, as we do not consider the weight of the evidence, but only its existence. Houston, supra.
Further, it is well established that, under general workmen's compensation law, an injury which occurs subsequent to an original, compensable injury is itself compensable if it is the direct and natural result of the original, compensable injury. Erwin v. Harris, 474 So.2d 1125 (Ala.Civ.App.1985). However, the burden is on the employee to establish the causal connection between the initial, compensable injury and the subsequent injury for which additional benefits are sought. Erwin, supra.
The facts here reveal that the employee suffered an on-the-job injury on December 8, 1986. The employee testified that he bent down to pick up a hand truck and felt a sharp pain in his lower back. The next day the employee was examined by an orthopedic surgeon, who testified that the employee was complaining of lower back pain and radiation of pain in his left hip. The doctor testified that the employee had a limited range of motion in his lumbar spine area, but that his neurological examination was essentially normal. He stated that the complaints by the employee, as well as his examination of him, were consistent with a "lumbar strain" and not necessarily a "herniated nucleus pulposus." The doctor further testified that the employee returned one week later and said he was somewhat better.
On December 30, 1986, the employee again saw the doctor. The doctor testified that the employee stated that he had been doing better until approximately one day before this visit, when he stepped into a hole in his pasture and twisted his lower back. After subsequent visits and further tests, the doctor stated that the employee was suffering from a herniation of certain discs (herniated nucleus pulposus), which ultimately required two operations.
As noted above, the trial court found that the employee's second accident (stepping into the hole) and resulting injuries were not compensable. After examining the evidence, the trial court did not agree with the employee that his second injury was caused by his prior December 8 compensable back injury. Instead, the trial court concluded that the employee suffered only a strain or sprain to his back as a result of lifting the hand truck. The trial court consequently awarded benefits.
Clearly, the trial court may consider all of the evidence, including its own observations, and interpret it according to its own best judgment. Houston, supra. Here, the trial court concluded that the employee failed to meet his burden of proving a causal connection, and in view of our limited standard of review, we have no alternative but to affirm. The trial court *63 cannot rely on speculation, conjecture, or surmise that the second injury arose out of his compensable accident of December 8, 1986. In order for a claimant to meet his burden of proof, it appears to this court that he would need to present some evidence that his second accident was a natural consequence of the original compensable injury. See, Erwin, supra; see also Day v. Zenith Paper Stock & Rag Co., 270 Minn. 420, 134 N.W.2d 4 (1965). Such evidence could be that his first compensable injury caused him to be in a weakened condition so as to contribute to the later fall or injury. See, Erwin, supra, citing Carabetta v. Industrial Comm'n, 12 Ariz. App. 239, 469 P.2d 473 (1970).
"As the Minnesota court said in Day, it is not the situs of the second injury (i.e., either the place where the accident occurred or the physical location of the injury) that is controlling, but rather whether the subsequent injury was a natural consequence of a prior compensable injury."
Erwin, supra, at 1128, citing Day, supra.
We point out that the only case cited by the employee is Erwin, supra. There the employee had a compensable injury to his knee with a subsequent injury to that same knee. However, the doctor testified that he had no doubt in his mind that the employee's subsequent injury was related to his compensable injury. He stated that the second knee injury was caused by the weakness of the muscles and the residual instability of the knee following the original injury. The trial court then made a specific finding that the employee's knee injury was a contributing factor in the employee's subsequent fall. Nevertheless, the trial court denied any benefits relating to the subsequent injury. On appeal this court reversed. However, we did not substitute our judgment or reweigh the facts before the trial court. Instead, we found that the trial court incorrectly applied the law to its own findings of facts. Clearly, such is not the case here and, as stated above, where the trial court's findings are supported by any evidence, we must affirm.
This case is due to be affirmed.
AFFIRMED.
ROBERTSON and RUSSELL, JJ., concur.
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867 F.2d 409
104 A.L.R.Fed. 597, 57 USLW 2490, 111Lab.Cas. P 11,003,10 Employee Benefits Ca 1913
Sam GIARDONO, et al., Plaintiffs-Appellees,v.George M. JONES, Defendant-Appellant.
No. 87-3112.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 23, 1988.Decided Feb. 1, 1989.
1
James M. Gecker, Ross & Hardies, Chicago, Ill., for defendant-appellant.
2
Marc M. Pekay, Marc M. Pekay, P.C., Chicago, Ill., for plaintiffs-appellees.
3
Before WOOD, Jr., EASTERBROOK, Circuit Judges, and GORDON, Senior District Judge.*
4
MYRON L. GORDON, Senior District Judge.
5
This appeal requires the court to explore certain boundaries of the subject matter jurisdiction granted to the federal district courts by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Sec. 1001, et seq. The specific issues to be resolved are: (1) whether the district court erred in dismissing the appellant's counterclaims; and (2) whether the district court abused its discretion in denying attorney's fees to the appellant. We hold that the district court lacked subject matter jurisdiction over the appellant's counterclaim under ERISA, and it properly dismissed the pendent counterclaims; in addition, it did not abuse its discretion in denying attorney's fees to the appellant.
BACKGROUND
6
Prior to 1973, the appellant, George Jones, was a member of the Operative Plasterers and Cement Finishers International Union Local 382 (the "union") and a participant and beneficiary of the Construction Industry Welfare Fund of Rockford and the Construction Industry Retirement Fund (the "fund"). In 1973, Mr. Jones ceased to be an employee when he went into the cement contractor business as a sole proprietor and became an employer. However, he wanted to continue the health insurance benefits that he had received as a union member, so at the behest of the union he entered into a written agreement with the union which provided that, as an employer, he recognized the union and adopted the area master contract. For ten years after signing the agreement, Mr. Jones paid for and received health insurance coverage, but he did not honor the union contract and employed only nonunion labor.
7
During that period the union did nothing to enforce the agreement. After ten years, the trustees of the fund brought the underlying action to recover employee benefit contributions which would have been owed had the agreement that Mr. Jones signed been enforceable. The trustees based jurisdiction for their complaint on Sec. 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, and on Sec. 502 of ERISA, 29 U.S.C. Sec. 1132.
8
George Jones responded to the suit with the counterclaims that are now at issue in this appeal. The counterclaims asserted that the plaintiffs violated their fiduciary duty owed to Mr. Jones under both ERISA and the state common law and, also that the plaintiffs fraudulently induced Mr. Jones to subscribe to the collective bargaining agreement with the union. The invoked grounds for jurisdiction over the counterclaims were ERISA and the doctrine of pendent jurisdiction.
9
The district court dismissed Mr. Jones' ERISA counterclaim on the ground that, as an employer, he lacked standing to bring an ERISA action. The pendent state counterclaims were dismissed for failure to state a cause of action against the trustees. The district court held that the fraud counterclaim failed for want of specificity against the trustees. The district court noted that although the claim "conceivably" stated a cause of action against the union, the union was not a party to the case.
10
After a bench trial on the merits of the complaint, judgment was entered for defendant Jones. The district court held that the evidence did not establish a contract, and therefore, the defendant Jones was not bound by the obligations of the area master collective bargaining agreement. The district court dismissed the counterclaims and then denied Mr. Jones' petition for attorney's fees.
ERISA JURISDICTION
11
The appellant urges that he properly brought the ERISA counterclaim either as a plan participant with an express right of action, or as an employer with an implied right of action. The jurisdictional provision of ERISA provides for actions by enumerated parties:
12
... the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary.
13
29 U.S.C. Sec. 1132(e)(1) [emphasis added].
14
First, the appellant argues that he has standing to bring an ERISA counterclaim as a plan participant, notwithstanding the fact that he is also an employer. A participant includes "any employee or former employee of an employer, or any member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan ..." 29 U.S.C. Sec. 1002(7). There is no question that Mr. Jones had previously qualified as a plan participant while he was an employee and a member of the union. The question is whether he continued to be a plan participant once he became an employer. In other words, does the statutory definition of a plan participant encompass a former employee who has become an employer and, nevertheless, is permitted to purchase plan coverage in his status as employer?
15
An employer cannot ordinarily be an employee or participant under ERISA. It is a fundamental requirement of ERISA that "... the assets of a plan shall never inure to the benefit of any employer ...". 29 U.S.C. Sec. 1103(c)(1). In Peckham v. Board of Trustees, Etc., 653 F.2d 424, 427 (10th Cir.1981), the court held that this statutory mandate precluded sole proprietors from having the dual status of employer-employee for purposes of ERISA. Accord Chase v. Trustees of W. Con. of T. Pension T.F., 753 F.2d 744, 748 (9th Cir.1985).
16
The appellant, however, contends that it has been held that an employer may have "dual status" standing as a fiduciary to sue under ERISA. Ed Miniat, Inc. v. Globe Life Ins. Group, 805 F.2d 732 (7th Cir.1986); U.S. Steel Corp. v. Pennsylvania Human Relations Commission, 669 F.2d 124 (3rd Cir.1982); Great Lakes Steel v. Deggendorf, 716 F.2d 1101 (6th Cir.1983). Therefore, the appellant urges that the courts have recognized a general principle of multiple roles for employers which permits an employer to have standing whenever he also has the status of a plan participant.
17
However, the fact that an employer may have standing as a fiduciary does absolutely nothing the advance the argument that an employer may similarly have standing as a participant. When an employer files suit as a fiduciary, he acts for the benefit of plan participants and beneficiaries; he does not act in his own interest and thus does not risk running afoul of the requirement that the assest of a plan may not inure to the benefit of an employer. 29 U.S.C. Sec. 1103(c)(1); see also, H.C.A. Health Services v. Brown, No. 87-C-4029, slip op at 3 (N.D.Ill. June 24, 1988) ("an independent contractor's decision to independently subscribe to a policy shared by the company with which it has a contractual relationship does not transform the contractor into an employee for purposes of ERISA"); R.M. Bowler Contract Hauling v. Central States, Etc., 547 F.Supp. 783, 784 (S.D.Ill.1982) ("employers who contribute to employee benefit plans do not fit into any of the four limited categories of plaintiffs"). As pointed out by the court in Peckham, this view is reflected in the regulations promulgated by the Secretary of Labor to implement the Act. Id. at 427. Such regulations exclude from the definition of an employee any individual who wholly owns a trade or business, whether incorporated or unincorporated. 29 C.F.R. Sec. 2510.3-3(c)(1). ERISA was enacted by Congress for the purpose of protecting the interests of employees and their beneficiaries in employee benefit plans. 29 U.S.C. Sec. 1001(a).
18
The appellant next argues that, as an employer, he has an implied cause of action under ERISA because he was injured by the actions of the plan trustees and that those injuries fell within the zone of interests protected by ERISA. In support of this proposition, the appellant cites Fentron Industries v. National Shopmen Pension Fund, 674 F.2d 1300 (9th Cir.1982). In Fentron, the court of appeals for the ninth circuit stated:
19
Finally, we do not believe that Congress, in enacting ERISA, intended to prohibit employers from suing to enforce its provisions. The omissions of employers from 29 U.S.C. Sec. 1132 is not significant in this regard. There is nothing in the legislative history to suggest either that the list of parties empowered to sue under this section is exclusive or that Congress intentionally omitted employers. See, e.g., H.R.Rep. No. 1280, 93d Cong., 2d Sess. 326-328 (1974), reprinted in Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 94th Cong., 2d Sess., Legislative History of the Employee Retirement Income Security Act of 1974, at 4593-95 (1976). In view of the intent of Congress to protect employer-employee relations, we hold that the statute does not prohibit employers from suing to enforce its provisions. Fentron, at 1305.
20
The Fentron court determined that a non-enumerated party may have standing to sue under ERISA if the non-enumerated party satisfies the three-part test derived from Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Fentron, at 1303.
21
The approach taken by the Fentron court has generally been rejected by most other courts on the ground that it improperly assumes a grant of subject matter jurisdiction. See Grand Union Co. v. Food Employers Labor Relations Assn., 808 F.2d 66, 71 (D.C.Cir.1987); Northeast Dept. ILGWU v. Teamsters Local U. No. 229, 764 F.2d 147, 153-54 (3rd Cir.1985); Hermann Hosp. v. MEBA Medical & Benefits Plan, 845 F.2d 1286, 1288-89 (5th Cir.1988); Whitworth Bros. Storage Co. v. Central States, 794 F.2d 221, 228 (6th Cir.1986); Dime Coal Co., Inc. v. Combs, 796 F.2d 394, 396 (11th Cir.1986). These cases demonstrate that the key question is whether the grant of jurisdiction in ERISA is limited to the list of parties enumerated in Sec. 1132(e)(1) who are specifically empowered to sue. In Pressroom Unions Etc. Fund v. Continental Assur. Co., 700 F.2d 889, 892 (2nd Cir.1983), the court stated:
22
the Fentron court applied an inappropriate standard in resolving this issue. We focus not on whether the legislative history reveals that Congress intended to prevent actions by employers or other parties, but instead on whether there is any indication that the legislature intended to grant subject matter jurisdiction over suits by employers, funds, or other parties not listed in Sec. 1132(e)(1). [emphasis in original]
23
Earlier this year, we had occasion to note the existence of the split among the courts of appeals as to whether the grant of jurisdiction in Sec. 1132(e)(1) is exclusive. Mutual Life Ins. Co. of New York v. Yampol, 840 F.2d 421, 423 n. 2 (7th Cir.1988) (resolving the issue of standing on the ground that an employer may have standing as a fiduciary); cf. Soft Drink Industry Local Union No. 744 Pen. Fund v. Coca-Cola, 679 F.Supp. 743 (N.D.Ill.1988) (rejecting the implied cause of action approach); Amalgamated Indus. Union Local 44-A v. Webb, 562 F.Supp. 185, 188 (N.D.Ill.1983) (expressly adopting the Pressroom approach). The instant case places the issue squarely before the court. If the grant of jurisdiction is exclusive to the parties enumerated in Sec. 1132(e)(1), then the district courts as well as this court lack the subject matter jurisdiction to engage in an analysis of whether standing is to be implied.
24
It is fundamental that the jurisdiction of the district courts is limited and that the boundaries of the jurisdiction are determined by Congress. Further, the courts should not imply an additional private right of action when a statute already has an elaborate enforcement mechanism. Middlesex County Sewage Authority v. National Sea Clammers, 453 U.S. 1, 14-15, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981).
25
In Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 21, 103 S.Ct. 2841, 2852, 77 L.Ed.2d 420 (1983), the Court stated:
26
The express grant of federal jurisdiction in ERISA is limited to suits brought by certain parties, see infra, [463 U.S.] at 25 [103 S.Ct. at 2854], as to whom Congress presumably determined that a right to enter federal court was necessary to further the statute's purposes.
27
Further, in Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 146, 105 S.Ct. 3085, 3092, 87 L.Ed.2d 96 (1984), the Court elaborated on congressional intent in the context of ERISA:
28
The six carefully integrated civil enforcement provisions found in Sec. 502(a) of the statute as finally enacted, however, provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly. The assumption of inadvertent omission is rendered especially suspect upon close consideration of ERISA's interlocking, interrelated, and interdependent remedial scheme, which is in turn part of a "comprehensive and reticulated statute." [emphasis in original]
29
Although in Russell the Court considered whether the judiciary may imply a cause of action for extra-contractual damages, as opposed to the precise issue at bar, it nevertheless made it clear that the statutory scheme of ERISA does not lend itself to judicial expansion of available remedies. We hold that the grant of subject matter jurisdiction in Sec. 1132(e)(1) is exclusive. The courts are without the power to expand their jurisdiction under ERISA in order to imply a cause of action for non-enumerated parties.
30
It follows that the district court was without subject matter jurisdiction to entertain the appellant's ERISA counterclaim.THE PENDENT COUNTERCLAIMS
31
The issue of whether the district court erred in dismissing the pendent counterclaims of breach of fiduciary duty and fraud need not detain us long. The exercise of pendent and ancillary jurisdiction is within the discretion of the district court. See Baltimore Orioles Inc. v. Major League Baseball Players Association, 805 F.2d 663, 682 (7th Cir.1986). "[D]ismissal of the pendent claim is presumptively indicated unless the court is convinced that retention would probably create substantial economy, fairness, or convenience." Fields v. Fidelity General Insurance Company, 454 F.2d 682, 686 (7th Cir.1971) (quoting Note, UMW v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657 (1968)). Judge Roszkowski determined that the counterclaims more properly stated common law causes of action against the union rather than against the trustees of the fund. Since the union was not a party to the action, it was clearly not an abuse of discretion to dismiss the claims.
ATTORNEY'S FEES
32
The appellant asserts that as a prevailing employer defending an ERISA claim, he is entitled to attorney's fees. In Chicago Painters & Decorators Pension Fund v. Karr Brothers, Inc., 755 F.2d 1285, 1292 (7th Cir.1985), this court adopted the following test for determining whether to award attorney's fees to prevailing defendants in ERISA cases:
33
a court should award attorney's fees to the winning party unless the loser's position, while rejected by the court, had a solid basis--more than merely not frivolous, but less than meritorious.
34
In applying this test, the district court determined that the case hinged on a close factual question as to whether there was mutual assent to the terms of the master collective bargaining contract. The district court noted that "[w]ith the change of a few factual findings, the plaintiffs may have had a meritorious claim." The standard of our review is abuse of discretion. Pierce v. Underwood, --- U.S. ----, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). We are persuaded that there was no such abuse in the matter at bar.
CONCLUSION
35
The district court properly dismissed the appellant's counterclaim under ERISA, and it did not abuse its discretion in dismissing the pendent counterclaims or in denying an award of attorney's fees. For the foregoing reasons, the order and judgment of the district court is affirmed, as is the judgment denying an award of attorney's fees to the appellant. Costs on this appeal are awarded in favor of the appellees.
36
EASTERBROOK, Circuit Judge, concurring.
37
One portion of a subsection of ERISA provides that "the assets of a [pension or welfare] plan shall never inure to the benefit of any employer", 29 U.S.C. Sec. 1103(c)(1), from which my colleagues deduce that Jones--formerly an employee and now his own boss in a proprietorship--may not contend that a welfare plan and a union violated duties owed to him. If he prevailed, then "the assets of a plan [would] inure to the benefit of [an] employer". How far does this "plain language" take us? Suppose Jones did some plastering work for a pension plan's offices and tried to collect his fee. Could the plan balk on the ground that the price specified by contract would inure to the benefit of an employer? Closer to the point, suppose Jones had acquired vested rights to pension benefits before setting up his own business and had applied for payments while continuing to run his firm. Could the plan turn him down on the ground that by going into business he forfeited everything?
38
Language is a social tool. Every utterance takes meaning from its contexts--linguistic, structural, cultural, functional. Even so bald a command as "Keep Off The Grass!" is less than universal: it does not speak to the gardener. Mathematical statements, sometimes offered as the epitome of precision, also depend on context. The statement "a2 + b2 = c2" is vapid standing alone and correct only if we know from another source that the letters represent the length of the sides of right triangles, and if variables properly may be used in place of numbers, a point denied by some mathematicians until mid-eighteenth century. See Morris Kline, Mathematics: The Loss of Certainty 124-26 (1980). The contexts of Sec. 1103(c)(1) matter too.
39
Section 1103(c)(1) says in full (emphasis added):
40
Except as provided in paragraph (2), (3), or (4) or subsection (d) of this section, or under sections 1342 and 1344 of this title (relating to termination of insured plans), the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan.
41
An employer with vested benefits is still a "participant" in the plan. "The term 'participant' means any ... former employee of an employer ... who is or may become eligible to receive a benefit of any type from an employee benefit plan". 29 U.S.C. Sec. 1002(7). This description fits the current employer entitled to benefits on account of earlier work as an employee. Section 1103(c)(1) tells us that the assets of the plan are to be used to pay benefits to which participants are entitled. Jones, as participant, may seek to recover even if Jones, as employer, may not. Only losing sight of the linguistic context and function of the provision that "assets ... shall never inure to the benefit of any employer" could lead to the conclusion that Jones may not seek recovery against the plan for any reason while he continues to operate his own business.
42
It may well be that a sole proprietor cannot enroll himself in a plan alongside his employees. So Peckham v. Board of Trustees, 653 F.2d 424 (10th Cir.1981), held on the authority of Sec. 1103(c)(1) and 29 C.F.R. Sec. 2510.3-3(c)(1). This does not mean that courts must dismiss all claims by owner-employees, however, for proprietors may be participants within the meaning of Sec. 1002(7) and under some circumstances may obtain restitution from a plan, a point the Tenth Circuit made in a clarifying decision. Peckham v. Board of Trustees, 719 F.2d 1063, modified, 724 F.2d 100 (10th Cir.1983). The regulation on which Peckham relied says that a person "shall not be deemed to be [an] employee[ ] with respect to a trade or business ... which is wholly owned by the individual", Sec. 2510.3-3(c)(1) (emphasis added), suggesting that the capacity in which the person acts or files suit matters. Cf. Reiherzer v. Shannon, 581 F.2d 1266, 1272-76 (7th Cir.1978) (the principal stockholder and manager of a closely-held firm may participate in a pension plan, for the corporation alone is the "employer"). The majority relies on the first Peckham opinion (supra at 411-12) and neglects the second and third; it cites Chase v. Trustees, 753 F.2d 744, 748 (9th Cir.1985), as in accord with Peckham but overlooks the fact that Chase endorsed only the third Peckham opinion.
43
Jones pursued his counterclaim in his role as a "participant" in his former employer's plan. He did not seek benefits on account of his years as a proprietor. He contended, instead, that the pension trusts and the local union defrauded him at the time he set up his business by assuring him that he could remain a participant in the welfare fund in order to keep health insurance at favorable rates. A contention of this sort is not barred by Sec. 1103(c)(1). It may fail to state a claim on which relief may be granted, for the documents governing the nature of pension and welfare plans convey accurate information, and a person who neglects to read the dispositive documents may not contend that he did not know their significance. See Acme Propane, Inc. v. Tenexco, Inc., 844 F.2d 1317 (7th Cir.1988). But it does not founder as a consequence of Sec. 1103(c)(1).
44
Jones's counterclaim invoked both ERISA and state-law theories. The district court dismissed the counterclaim on jurisdictional grounds to the extent it depended on ERISA. Section 1103(c)(1), even if it applies, is not a "jurisdictional" statute; it is no more than a reason why a claim cannot succeed. Moreover, Jones did not need ERISA as a source of jurisdiction. Both the district court and the majority treat ERISA as the only source of subject-matter jurisdiction for the counterclaim, and the state-law aspects of the counterclaim as pendent to the jurisdiction supplied by the ERISA counterclaim. Yet the counterclaim, and all of its theories of liability, was a compulsory counterclaim to the welfare fund's suit. See Fed.R.Civ.P. 13(a). There is no need for an independent source of subject-matter jurisdiction over a compulsory counterclaim, and the rejection of the claim to the extent it was based on ERISA does not call for (or even permit) the termination of the counterclaim to the extent it was based on state law.
45
The district court rejected the state-law claims to the extent they concerned the union because the union had not been joined as a party. It dealt with the state-law claims against the plan on the ground that "they do not allege with adequate specificity an action against the trust fund." This rationale supports dismissal of the entire counterclaim, whether founded on ERISA or on state law. The pertinent portion of the counterclaim says:
46
5. Plaintiffs [trustees of the welfare plan], acting in concert with the Union, falsely told Jones that only by signing a contract with the Union and by maintaining his Union membership as a "contractor-member", could he continue his participation in the Rockford Welfare Fund.
47
This is not the particularity that Fed.R.Civ.P. 9(b) requires when a party alleges fraud. Jones omits who said what, when, to whom. It is scarcely possible to imagine a more generic allegation. So the counterclaim had to be dismissed.
48
Concerning attorneys' fees, the district court said: "[w]ith the change of a few factual findings, the plaintiffs may have had a meritorious claim." That is an understatement. Given Robbins v. Lynch, 836 F.2d 330 (7th Cir.1988), which was decided after the trial of this case, the welfare fund had a meritorious claim. Jones signed a contract with the fund promising to make payments on behalf of all of his employees. Under Lynch, the local union's willingness to wink at noncompliance with the collective bargaining agreement does not excuse Jones's disregard of his independent obligation to the trust. The fund elected not to appeal, and its willingness to accept a problematic judgment on the merits did not expose it to an award of fees.
*
Honorable Myron L. Gordon, Senior District Judge of the Eastern District of Wisconsin, is sitting by designation
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862 F.2d 464
57 USLW 2369, 35 Cont.Cas.Fed. (CCH) 75,600
UNITED STATES of America, Plaintiff-Appellant,v.NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Defendant-Appellee,The Shipbuilders Council of America, Amicus Curiae.
No. 88-3520.
United States Court of Appeals,Fourth Circuit.
Argued Oct. 5, 1988.Decided Dec. 5, 1988.
Peter Rolf Maier (John R. Bolton, Asst. Atty. Gen., Washington, D.C., Henry E. Hudson, U.S. Atty., Alexandria, Va., Leonard Schaitman, Appellate Staff, Civil Div., U.S. Dept. of Justice; John J. Quill, Kirk Moberley, Defense Contract Audit Agency, Washington, D.C., on brief), for plaintiff-appellant.
John G. DeGooyer (K. Martin Worthy, Maureen Duignan, Theodore A. Howard, Helen Marie Lardner, Hopkins, Sutter, Hamel & Park, Washington, D.C., on brief), for defendant-appellee.
Before MURNAGHAN, WILKINSON and WILKINS, Circuit Judges.
WILKINSON, Circuit Judge:
1
This case concerns the scope of the subpoena power of the Defense Contract Audit Agency. DCAA seeks to subpoena the federal income tax returns, financial statements, and supporting schedules of Newport News Shipbuilding and Dry Dock Company, a large defense contractor. Because the order of the district court denying enforcement of the subpoena unduly restricts DCAA's statutory subpoena power, we reverse the order and remand for further proceedings consistent with this opinion.
I.
2
Newport News Shipbuilding and Dry Dock Company (NNS) is a major defense contractor. A large percentage of NNS's work is performed for the United States government; its business includes the design, construction, repair, and overhaul of vessels for the United States Navy. Much of its work for the Navy is performed under "cost" or "cost-plus" contracts, in which the contract price is based on NNS's cost or its cost plus a fixed fee.
3
DCAA was established in 1965 as a separate agency in the Department of Defense. DCAA's function is to assist DOD with audits during the negotiation, administration, and settlement of defense contracts. DCAA also provides accounting and financial advisory services to DOD entities responsible for procurement and government contract administration.
4
DCAA audits defense contractors' books and records in order to establish what constitutes an allowable cost under a particular government contract and federal procurement regulations. See Federal Acquisition Regulation Secs. 31.201-2, 31.201-3 & 31.201-4, 48 C.F.R. Secs. 31.201-2, 31.201-3 & 31.201-4 (1987). A contractor's total reimbursable cost is the sum of its allowable "direct" and "indirect" costs. A direct cost is one that can be identified with a particular contract. Indirect costs, such as general and administrative overhead, are those that are identified with two or more contracts. The allocation of indirect costs to particular contracts is often a complex process involving sophisticated cost accounting techniques. DCAA performs detailed analyses of a contractor's claimed costs in order to verify their accuracy and to identify unallowable costs. To assist in its responsibilities, DCAA is authorized by statute to inspect the plant and subpoena the books and records of a defense contractor. It is the scope of DCAA's subpoena power that is at issue here.
5
On February 11, 1987, DCAA issued a subpoena duces tecum to NNS pursuant to 10 U.S.C. Sec. 2313(d) demanding:
6
Trial balance, adjusting entries, segment financial workpapers, consolidating entries, formal consolidated balance sheet and income statement, Federal income tax return, Virginia income tax return and any other supporting schedules, documentation or correspondence related to preparation and issuance of financial statements or preparation or payments of any tax liabilities on a Federal, state or local level for the period 1 January 1983 to the present [.]
7
NNS furnished the requested state tax returns to DCAA but refused to provide the remainder of the subpoenaed materials. NNS instead filed a declaratory judgment action to have the subpoena declared unlawful and unenforceable. The government moved to dismiss NNS's suit and subsequently petitioned for summary enforcement of the DCAA subpoena. On December 23, 1987, the district court denied enforcement of the subpoena, holding that the subpoenaed materials were not related to cost or pricing data connected to a particular contract, and did not form the basis for costs claimed, or anticipated, in connection with particular contracts. According to the district court, DCAA did not need the subpoenaed materials in order to properly perform its auditing function. The government appeals from this ruling.
8
Subsequent to the district court's refusal to enforce DCAA's subpoena, this court announced its decision in United States v. Newport News Shipbuilding & Dry Dock Co., 837 F.2d 162 (4th Cir.1988) ("Newport News I "), another subpoena enforcement dispute involving these parties. In that case, DCAA subpoenaed audits conducted by NNS's internal audit department. We affirmed the district court's refusal to enforce the subpoena and held that DCAA's statutory subpoena power extends to objective cost information related to government contracts, but not to all corporate materials such as the internal, subjective evaluations at issue there.
II.
9
DCAA's statutory subpoena power is set forth in 10 U.S.C. Sec. 2313(d)(1), which reads:
10
The Director of the Defense Contract Audit Agency (or any successor agency) may require by subpoena the production of books, documents, papers, or records of a contractor, access to which is provided to the Secretary of Defense by [Sec. 2313(a) ] or by section 2306a of this title.
11
By its terms, Sec. 2313(d)(1) authorizes DCAA to subpoena only materials to which it has access under 10 U.S.C. Sec. 2313(a) or 10 U.S.C. Sec. 2306a. Resolution of this case therefore depends on the construction of these two statutory provisions. See Newport News I, 837 F.2d at 166 n. 2.
12
Sections 2313(a) and 2306a provide in pertinent part:
13
Sec. 2313.
14
(a) An agency named in section 2303 of this title is entitled, through an authorized representative, to inspect the plant and audit the books and records of--
15
(1) a contractor performing a cost or cost-plus-a-fixed-fee contract made by that agency under this chapter; and
16
(2) a subcontractor performing any subcontract under a cost or cost-plus-a-fixed-fee contract made by that agency under this chapter.
17
Sec. 2306a(f).
18
(1) For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this section with respect to a contract or subcontract, the head of the agency ... shall have the right to examine all records of the contractor or subcontractor related to--
19
(A) the proposal for the contract or subcontract;
20
(B) the discussions conducted on the proposal;
21
(C) pricing of the contract or subcontract; or
22
(D) performance of the contract or subcontract.
23
* * *(3) In this subsection, the term "records" includes books, documents, and other data.
24
It is pursuant to these statutes that DCAA issued the subpoena giving rise to this dispute.*
III.
25
NNS asserts that DCAA may subpoena materials only if they are used as a basis for determining contract costs or are relied upon in the process of allocating costs to a specific contract. This argument suggests that only cost or pricing data used to calculate costs charged to the government are reviewable by DCAA. Based on our review of the relevant statutes, we reject such a narrow construction of DCAA's auditing function and subpoena authority. We hold that 10 U.S.C. Sec. 2313(a) and 10 U.S.C. Sec. 2306a(f) provide DCAA access to objective factual materials useful in verifying the actual costs, including general and administrative overhead costs, charged by companies performing cost-type contracts for the government.
26
The language of 10 U.S.C. Sec. 2313(a) and 10 U.S.C. Sec. 2306a(f) supports this construction of DCAA's statutory subpoena authority. Section 2313(a), for example, permits DCAA auditors to "inspect the plant and audit the books and records" of a company performing a cost-type contract for the government. A plain reading of the statute suggests that DCAA may review a contractor's financial and cost data. Similarly, Sec. 2306a(f)(1) provides DCAA access to all "records" related to the negotiation, administration, or settlement of cost-type contracts where such records are necessary "[f]or the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data" submitted to the government by a defense contractor. The term "records" is defined to include "books, documents, and other data," 10 U.S.C. Sec. 2306a(f)(3), and it is plain from the face of the statute that DCAA enjoys access to objective factual information concerning contract costs. No language in the statute limits DCAA's subpoena authority to data actually submitted to the agency or actually relied upon by the contractor in determining contract costs. In fact, DCAA's statutory task of "evaluating the accuracy, completeness, and currency" of submitted data suggests that DCAA is not confined solely to that data in performing its auditing function.
27
The statutory language, however, is not so conclusive that we can forego an analysis of "the policies underlying the statutory provision to determine its proper scope." Bowsher v. Merck & Co., 460 U.S. 824, 831 n. 7, 103 S.Ct. 1587, 1592 n. 7, 75 L.Ed.2d 580 (1983). The legislative histories of Secs. 2313(a) and 2306a(f) reveal Congress' intent to provide DCAA access to objective financial data to verify the actual costs incurred in the performance of cost-type contracts. Section 2313(a) was enacted as part of the Armed Services Procurement Act of 1947, which was a comprehensive revision and restatement of military procurement law. Pub.L. No. 80-413, 62 Stat. 21 (February 19, 1948), reprinted in 1948 U.S. Code Cong. Serv. 20. See also S.Rep. No. 571, 80th Cong., 1st Sess. (1947), reprinted in 1948 U.S. Code Cong.Serv. 1048, 1049. What is now codified as Sec. 2313(a) was introduced as a floor amendment by Senator Byrd of Virginia. Senator Byrd's statements on the floor demonstrate that the access-to-records amendment was added in order to prevent defense procurement fraud. 94 Cong.Rec. 79 (1948). His remarks, as those of the amendment's sponsor, are "an authoritative guide" to its construction, North Haven Bd. of Education v. Bell, 456 U.S. 512, 526-27, 102 S.Ct. 1912, 1920-21, 72 L.Ed.2d 299 (1982), and illustrate that Sec. 2313(a) was intended to enable the government to determine whether cost charges claimed by defense contractors were actually incurred. See Newport News I, 837 F.2d at 166-67 (discussion of the legislative history of Sec. 2313(a)).
28
The legislative history of Sec. 2306a(f) reveals a similar congressional intent. What is now Sec. 2306a(f) originally was enacted in 1968 as part of the Truth in Negotiations Act, Pub.L. No. 90-512, 82 Stat. 863 (September 25, 1968), reprinted in 1968 U.S. Code Cong. Serv. & Admin. News 1003. The Act gave the government the right to examine a defense contractor's records, documents, and other data in order to verify cost and pricing information submitted during the contracting process. See S.Rep. No. 1506, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News 3589. Sponsors and supporters of the legislation believed that a "post-award" audit, based on actual contract performance, was the best means of verifying whether cost charges submitted by defense contractors were accurate, current, and complete. Senator Proxmire of Wisconsin, the Senate sponsor of the bill, stated that congressional action on this access-to-records provision made it "unmistakably clear that the Government has full authority to conduct postaudit investigations of a contractor's cost data" in order to verify costs charged to the government. 114 Cong.Rec. 26333 (1968). Representative Minshall of Ohio, the House sponsor of the bill, stated that the legislation would provide for government audits of a defense contractor's "financial records." 114 Cong.Rec. 11783 (1968). Senator Young of Ohio, who supported the legislation on the floor of the Senate, stated that the access-to-records provision authorized government auditors "to make full fledged postaudits of all financial records of defense contractors" in order to determine whether the government had been overcharged. 114 Cong.Rec. 26331 (1968).
29
DOD regulations implementing Secs. 2313(a) and 2306a(f) reinforce our construction of DCAA's statutory subpoena power. Federal Acquisition Regulation Sec. 15.106-2, 48 C.F.R. Sec. 15.106-2 (1987), which specifically implements 10 U.S.C. Sec. 2313(a), requires that defense contracts contain a clause guaranteeing DCAA access to certain documents. This standard contract clause provides in relevant part that:
30
representatives of the Contracting Officer shall have the right to examine and audit--books, records, documents, and other evidence and accounting procedures and practices, sufficient to reflect properly all costs claimed to have been incurred or anticipated to be incurred in performing this contract.
31
Federal Acquisition Regulation Sec. 52.215-2(a), 48 C.F.R. Sec. 52.215-2(a) (1987). Objective data "sufficient to reflect properly all costs claimed" are reviewable by the government, id., and are therefore within the scope of DCAA's statutory subpoena authority. In addition, if a defense contractor is required to submit cost or pricing data to the government, DCAA has the right:
32
to examine and audit all books, records, documents, and other data of the Contractor (including computations and projections) related to negotiating, pricing, or performing the contract ..., in order to evaluate the accuracy, completeness, and currency of the cost or pricing data.
33
Federal Acquisition Regulation Sec. 52.215-2(b), 48 C.F.R. Sec. 52.215-2(b) (1987). DCAA's right of examination is not limited to cost or pricing data alone; it extends "to all documents necessary to permit adequate evaluation" of cost or pricing data submitted to the government. Id. See also Federal Acquisition Regulation Sec. 15.106-2, 48 C.F.R. Sec. 15.106-2 (1987) (DOD regulation specifically implementing 10 U.S.C. Sec. 2306a(f)).
34
In sum, the scope of DCAA's statutory subpoena authority is not limited in the manner NNS suggests. Nowhere in Sec. 2313(a) or Sec. 2306a is DCAA's access to corporate records and documents restricted to those materials actually submitted or relied upon by contractors in calculating their claimed costs. The singular purpose of both statutory grants of subpoena authority was to enable DCAA to evaluate and verify the costs claimed by defense contractors. That purpose is not served, in our judgment, by the most cramped and restrictive reading possible of the statutory text. DCAA may thus subpoena objective factual information for the purpose of verifying costs, including general and administrative overhead costs, associated with contracts being audited by DCAA. The agency performs an important function in the defense procurement system: cost auditing for the purpose of assisting in the negotiation and administration of defense contracts. 32 C.F.R. Sec. 357.2 (1987). Cost verification data therefore is the proper subject of a DCAA subpoena. Sections 2313(a) and 2306a(f)(1) are intended to provide DCAA access to objective financial and cost information, contained in a defense contractor's books, records, and other documents, that reflects upon the accuracy of cost charges submitted to the government.
IV.
35
The scope of DCAA's statutory subpoena authority also must be read against a practical understanding of the defense procurement process and sound auditing practice. Reviewed in this light, we disagree with the district court's conclusion that NNS's federal income tax returns, financial statements, and supporting schedules must fall outside the scope of DCAA's subpoena power.
36
We have noted that DCAA enjoys access to materials needed for factual verification of general and administrative overhead costs. Newport News I, 837 F.2d at 166. These costs are "indirect" costs and, by definition, cannot be identified with a specific contract. Indirect costs are, however, an allowable component of a contractor's total cost, Federal Acquisition Regulation Secs. 31.201-1 & 31.203, 48 C.F.R. Secs. 31.201-1 & 31.203 (1987), and as such, a defense contractor may allocate them to particular contracts and claim reimbursement for them from the government. DCAA therefore may subpoena objective factual records that reflect upon the accuracy of overhead cost charges submitted to the government.
37
Federal procurement regulations, for example, allow reimbursement for the reasonable cost of renting or leasing real or personal property required for the performance of a government contract, such as a warehouse for storing contract materials. Federal Acquisition Regulation Sec. 31.205-36, 48 C.F.R. Sec. 31.205-36 (1987). A defense contractor, however, is entitled to reimbursement only for that part of the warehouse dedicated to the performance of that particular contract. If the defense contractor were to sublease a portion of its warehouse space to an entity unrelated to that particular contract, the overhead cost for the warehouse charged to the government must be offset by any rental income received by the contractor. By reviewing the contractor's financial statements, which should include entries for such rental income, DCAA is better able to verify whether the contractor has properly computed and allocated its overhead costs as required by the contract and federal procurement regulations. The contractor's financial statements afford DCAA a useful method of corroborating overhead cost information submitted to the government.
38
More generally, a defense contractor's federal tax returns, financial statements, and supporting schedules may be subpoenaed to the extent that they assist DCAA in verifying costs charged under cost-type contracts. It is an essential element of sound auditing practice to obtain sufficient corroborative information to satisfy the auditor that other information upon which he relies is accurate and complete. This principle is, as we have noted, recognized in 10 U.S.C. Sec. 2306a(f)(1) which authorizes DCAA to subpoena books, documents, and other objective factual materials that can be used to evaluate the "accuracy, completeness, and currency of cost or pricing data" submitted by a defense contractor.
39
A defense contractor, for example, must identify and exclude from any claim for government reimbursement all unallowable costs, such as certain bad debt, interest, lobbying, entertainment, public relations, and advertising expenses. Federal Acquisition Regulation Sec. 31.201-6, 48 C.F.R. Sec. 31.201-6 (1987). See also Federal Acquisition Regulation Sec. 31.205, 48 C.F.R. Sec. 31.205 (1987) ("Selected Costs"). Federal procurement regulations provide DCAA access to corporate materials in order to verify whether defense contractors have complied with this obligation. Federal Acquisition Regulation Sec. 52.230-3, 48 C.F.R. Sec. 52.230-3 (1987). A contractor's corporate tax return, for example, would include an entry for advertising expenses because they may be deductible for federal tax purposes. The tax return therefore may be helpful in verifying whether the contractor has identified and excluded its unallowable advertising expenses.
40
Similarly, the profit realized from a contractor's purchase of materials from a division or subsidiary cannot ordinarily be included in the allowable costs charged the government. Federal Acquisition Regulation Sec. 31.205-26(e), 48 C.F.R. Sec. 31.205-26(e) (1987). The government contends that cost entries submitted to it may not reveal the amount of profit hidden in the purchase price or the relationship between the companies involved in the transaction. A contractor's tax return, on the other hand, may well disclose the relevant corporate affiliations.
41
In short, we disagree with the district court's conclusion that the subpoenaed materials are not necessary for DCAA to properly perform its statutory function. First, many of these financial statements are in a readily usable form. Second, some of these statements have a high degree of reliability because they are independently reviewed and the contractor is subject to serious sanctions for supplying incorrect information. See, e.g., 26 U.S.C. Secs. 7201-07 (criminal and civil penalties for supplying incorrect or incomplete federal tax information). Third, a contractor's tax returns and financial statements bear upon the consistency of its costing methods and the reconcilability of costs claimed for tax purposes and costs claimed in contract billings to the government. Fourth, access to these materials may allow DCAA to verify the accuracy of cost information submitted by NNS; it may allow DCAA to corroborate NNS's computation and allocation of direct and indirect costs to particular government contracts. All of these factors are relevant to DCAA's auditing mission. Although an agency cannot define the scope of its statutory authority, it is entitled to some discretion in the performance of the task with which Congress has entrusted it; otherwise, frustration of the statutory objectives would result. See United States v. Westinghouse Electric Corp., 788 F.2d 164, 171 (3d Cir.1986).
V.
42
NNS contends, finally, that the materials subpoenaed by DCAA contain proprietary and business-sensitive information which should remain confidential. To some extent, of course, every auditor seeks information which the subject of the audit regards as confidential, and the audits here are no exception. DCAA's statutory subpoena authority, however, does not confer a privilege of confidentiality with respect to objective financial and cost information. Like other private firms, defense contractors have an interest in maintaining the confidentiality of their corporate materials. Newport News I, 837 F.2d at 170. But a contractor's interest in maintaining the confidentiality of these materials cannot outweigh, in all instances, DCAA's interest in reviewing them. By claiming reimbursement for its contract costs, a defense contractor represents that the costs are reasonable and allocable to a particular contract. DCAA is granted access to defense contractors' books and records; it does not, however, disclose these materials publicly or to the defense contractors' competitors. See, e.g., 32 C.F.R. Secs. 290.20-290.29 (1987) ("Availability of DCAA records"); 32 C.F.R. Sec. 286.13(a)(4) (1987) (DOD Freedom of Information Act exemptions).
43
NNS's claim of confidentiality was more persuasive on the facts of our earlier decision. There we held that the scope of DCAA's statutory subpoena authority did not extend to the subjective assessments of NNS's internal audit staff. Newport News I, 837 F.2d at 170. We recognized that internal audits may "rely for their effectiveness on the candor that confidentiality allows." Id. In contrast, the subpoena at issue here requests production of objective financial and cost data and summaries, not the subjective work product of NNS's internal auditors. To the extent that the materials subpoenaed here would assist DCAA in verifying and evaluating the cost claims of the contractor, they are within the contemplation of DCAA's statutory subpoena authority.
VI.
44
The district court took too restrictive a view of DCAA's access to defense contractor records. Its blanket refusal to enforce the subpoena impaired DCAA's statutory subpoena power. We are unable to examine each requested document in light of the relevant statutory purposes. We therefore reverse the judgment of the district court and remand for review of DCAA's individual requests in light of the general standards of agency subpoena power and the particular principles set forth herein.
45
The order of the district court denying enforcement of the subpoena is hereby
46
REVERSED AND REMANDED.
*
10 U.S.C. Sec. 2306(f)(5) was the predecessor statute to 10 U.S.C. Sec. 2306a(f). Congress recodified Sec. 2306(f)(5) in 1986, but the statute's content remains unchanged
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83 So.3d 421 (2011)
William Stanley WILSON II, Appellant
v.
STATE of Mississippi, Appellee.
No. 2010-KA-00139-COA.
Court of Appeals of Mississippi.
October 18, 2011.
Rehearing Denied January 10, 2012.
Certiorari Denied March 15, 2012.
*423 George T. Holmes, Jackson, attorney for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
Before IRVING, P.J., ISHEE and CARLTON, JJ.
CARLTON, J., for the Court:
¶ 1. A jury in the DeSoto County Circuit Court convicted William Stanley Wilson II of Count I, murder, and Count II, arson in the first degree. The trial court sentenced Wilson as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007) to life for the murder conviction, and to a consecutive term of twenty years for the arson conviction, all in the custody of the Mississippi Department of *424 Corrections (MDOC) without eligibility for parole or probation. Subsequently, Wilson filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, motion for a new trial, which was denied by the trial court. Wilson appeals and raises the following issues: (1) whether the weight of the evidence supports the verdicts; (2) whether the verdicts are invalid because of juror misconduct; (3) whether the trial court erred in allowing the State to use Wilson's prior conviction and supervised-release status in its case-in-chief; and (4) whether the trial court erred by allowing hearsay statements into evidence.
¶ 2. Finding no error, we affirm.
FACTS
¶ 3. A fire originated in the home of Valetta Jho Stamps in Southaven, Mississippi, during the early morning hours of September 23, 2008.
¶ 4. That same morning, Lieutenant Sean Lenihan, of the Southaven Fire Department, responded to a call regarding the fire. Lieutenant Lenihan testified that once at the scene, he entered the residence and located a female victim lying in the hallway. Lieutenant Lenihan testified that he and another firefighter removed the victim from the residence and placed her in the backyard of the residence. Charles Fitch, a paramedic with the Southaven Fire Department, testified that he also responded to a call regarding the residential fire. Fitch testified he arrived at the scene at 6:51 a.m. and began tending to the female victim pulled from the residence. Fitch further testified that after inspecting the victim's body, he was able to determine that the victim had been dead for at least an hour.
¶ 5. Ronald L. White, Deputy Chief of Operations and Fire Marshal for the City of Southaven, also responded to a call in reference to the fire. Fire Marshal White testified that upon arriving at the scene, he noted that the residence was a one-story mobile home with smoke coming from the rear of the residence. Fire Marshall White testified that Captain Roger Thornton, the fire officer in charge of the scene, informed him that the firefighters entered the residence by force, recovered one female victim in the rear of the structure, and put the fire out. Fire Marshal White testified that he investigated the residence and noticed that the most extensively damaged area was near a bed in the rear bedroom. Fire Marshal White testified, in his opinion, the fire was the result of an open flame and was arson.
¶ 6. Detective Jeff Logan, of the Southaven Police Department, was also involved in the investigation. Detective Logan testified that he went to Stamps's residence on the day of the fire and conducted an initial walkthrough of the residence. Detective Logan testified that during the walkthrough, he searched a room located in the front of the residence, which he referred to as the "junk room," and found a hammer with blood and hair on its exterior in the far back portion of the room behind a piano. Detective Logan testified that he also collected two pieces of burnt clothing from the bed in the rear room where the fire had taken place. Detective Logan testified that he also collected the shoes and clothes Wilson was wearing that day, as well as the steering wheel cover and floor mats from Wilson's car. Detective Logan further testified that he sent the steering wheel cover, the hammer, and the shoes to the crime lab for testing. Detective Logan also testified that he noticed that the bathtub was wet and looked as if someone had taken a bath or a shower in it. Detective Logan testified he interviewed Wilson later that day, specifically questioning him as to his knowledge of *425 the hammer. Detective Logan testified that during the interview, he asked Wilson twice if he had ever seen the hammer to which Wilson replied that he had not. Detective Logan testified that he then asked Wilson if he had ever touched the hammer, and Wilson responded, "I may have. I touch a lot of things." Detective Logan testified that Wilson made six different statements during the interview about how he had never seen the hammer. Detective Logan testified that Wilson stated during the interview that he had taken a shower before he left the mobile home. Detective Logan further testified that during the interview, Wilson admitted to him that he had an argument with Stamps after Stamps approached him about money that she was missing and accused him of stealing it from her. Detective Logan further testified that Wilson also told him that he knew that Stamps had talked to Joseph Parks and her son about the missing money that she accused him of stealing.
¶ 7. Detective Misha Kimbell, of the Southaven Police Department, was also involved in the investigation. Detective Kimbell testified that after arriving at Stamps's residence at approximately 8:00 a.m. on the day of the fire, she spoke with the owner of the residence, Jim Palmer, who told her that Stamps and Wilson were living together in the residence. Detective Kimbell testified that Palmer then provided her with the contact information for both Stamps and Wilson, and Palmer provided a phone number and a vehicle description for Wilson. Detective Kimbell testified that she had some other officers travel to Horn Lake to speak with Wilson's mother, Debbie Linton, who provided them with Wilson's phone number and vehicle description. Detective Kimbell testified she attempted to contact Wilson on that phone number, and left him a voice message asking him to call her back. Detective Kimbell testified that later that same day, between 4:30 p.m. and 5:00 p.m., Linton informed her that Wilson was on his way to her house. Detective Kimbell testified that she questioned Wilson about his whereabouts earlier that day, to which he replied that he woke up between 4:45 a.m. and 4:50 a.m., spoke to his aunt, left the trailer between 5:45 a.m. and 6:00 a.m., and went to Arkabutla Lake for the remainder of the day. Detective Kimbell testified Wilson also provided her with a written statement during the interview. Detective Kimbell read the statement to the court, as follows:
The first line says, William S. Wilson, II, 5-21-78 on the second line, then skips a line and says, "I woke up at around 4:50 or 5:00 a.m. I smoked a cigar and got alive. I got in the shower and threw some clothes in the dryer. I talked to Aunt Jho for about 15 minutes, told her I was going to go running and asked her to check on the car in the driveway with my cousin to find out what was going on with it. I left at around 15 till or 6:00 a.m. and stopped at the Bull Market to get gas and a cup of ice for my cooler and a Coke. I then went to Pleasant Hill Landing and listened to Rover's Morning Glory on 92.9 and then proceeded to"I can't read the next word"and go jogging. I came back to the car and lounged and smoked a few cigars for a while. I went to the store at Starlanding and 51 and bought a Sprite and went back to the lake and hung out for a while. I turned my phone on and found I had like 42 missed phone calls and a few voice mails and text messages. I started calling people and made my way to my mom's house. I had to stop and vomit on the side of the road. I justI got almost to my mom's house and found out the police were there and freaked because my friend, Cheryl, told me that I was all over the news as a murder *426 suspect." I can't read the next word. "I drove the neighborhood to 301 and pulled behindpulled back in to the neighborhood. After talking to Detective Beith, I went to my mom's house and proceeded to answer questions for Detective Beith and her partner." And then he signed it and printed his name and wrote the date on it.
Detective Kimbell testified that she later subpoenaed Wilson's cell phone records and found the records to be inconsistent with Wilson's explanation as to his whereabouts on the day in question. Detective Kimbell also testified that she asked Wilson if he had been back to the mobile home since he left earlier that day, and he initially denied returning to the mobile home. Detective Kimbell testified that once she confronted Wilson with the fact that a news crew had filmed him going by the mobile home, he admitted that he went back by the residence that day. Detective Kimbell also testified that after investigating the case, she was able to determine that Wilson had lived in the room that burned in the mobile home. Lastly, Detective Kimbell testified that Wilson's last statement regarding the hammer found at Stamps's residence was that if his DNA was found on the hammer, it was because the officers had planted it there.
¶ 8. Wilson was indicted by the grand jury of DeSoto County on April 16, 2009, as a habitual offender pursuant to section 99-19-81 for the crimes of murder and first-degree arson. A pretrial hearing was held whereby the court evaluated the admissibility of testimony concerning Wilson's earned-release supervision (ERS). The trial court found the proof as to Wilson's ERS status relevant to motive and more probative than prejudicial. The trial court, however, found no necessity in disclosing the details of the offense for which he was convicted to the jury. Wilson's trial commenced on October 26, 2009. At trial, the State and Wilson stipulated that at the time of Stamps's death, Wilson was on ERS from the MDOC.
¶ 9. At trial, Parks testified that he was dating Stamps in September 2008. During direct examination, Parks testified that he visited Stamps on the weekend prior to September 23, 2008, the day of the fire. Parks testified that as he was leaving Stamps's residence on the Monday morning following the weekend, he left Stamps $100 to pay a traffic ticket. Parks testified that when he spoke to Stamps later that day, she told him that the money he gave her, along with some additional money that she had left in the house, was missing. Parks testified that Stamps told him that only she and Wilson were in the house since Parks left her the money and that she thought Wilson took the money.
¶ 10. Parks testified that because Stamps was worried about paying the traffic ticket, he then sent her $400 by Western Union that afternoon. Parks further testified that after he sent the money, he last spoke to Stamps at approximately 11:00 p.m. or 11:30 p.m. Parks testified that during this conversation with Stamps, she told him that she was going to go to sleep and that she would confront Wilson about the money and about having to find somewhere else to stay in the morning.[1] Stamps was not seen or heard from alive again.
¶ 11. Dr. Bo Scales, with Scales Biological Laboratory, testified at the trial regarding the DNA evidence. Dr. Scales *427 testified that he performed testing on the hammer that was found at Stamps's residence. Dr. Scales testified that he obtained DNA from the sample on the head of the hammer and was able to match the DNA to the sample of Stamps's DNA. Dr. Scales further testified that he was able to extract skin cells from the hammer handle, and after comparing the cells to the samples of Stamps and Wilson, concluded that "[t]here were no genetic markers in that mixture of DNA taken from the handle that could be attributed to anyone other than, in this case, the DNA from Ms. Stamps and from Mr. Wilson." Dr. Scales further testified, in his opinion, it would have taken more than a casual touching to get the amount of DNA that was pulled from the hammer, but if the hammer had been gripped or used, it would provide the kind of DNA seen in the test in terms of quantity. Dr. Scales also testified he conducted testing on Wilson's shoes and the steering wheel cover from Wilson's car, but did not find any DNA on the items. Dr. Scales further testified that he did not receive any clothing or Stamps's fingernail clippings for testing.
¶ 12. Dr. Feng Li also testified. Dr. Li testified that he performed Stamps's autopsy and was able to determine upon external examination that she suffered multiple blunt force injuries. Dr. Li also testified that weapons such as baseball bats and hammers can cause blunt injuries to the body and that some of Stamps's lacerations were consistent with injuries caused by a hammer. Dr. Li further testified that he also determined the manner of death to be homicide.
¶ 13. With respect to evidence of Wilson's location at the time of the murder, Nita Knox testified that she was one of Stamps's neighbors. Knox testified that at approximately 5:00 a.m. on September 23, 2008, while walking outside with her dog to get the newspaper, she saw three vehicles parked in the driveway next door: a maroon vehicle that she knew to be inoperable, a white SUV, and a tan car. Knox then testified that later that morning at approximately 6:40 a.m., or 6:45 a.m., as her husband was leaving, she stuck her head out the door to tell him something and noticed smoke rising from the residence next door. Knox testified that she then went back into the house and called the fire department. Knox further testified that she noticed that only two cars were parked in the driveway at this time the white SUV and the inoperable vehicle. The tan car similar to Wilson's vehicle was at Stamps's mobile home at 5:00 a.m. and then gone later that morning when the mobile home was on fire.
¶ 14. Judy Hutsell testified as a defense witness during the trial. Judy testified that on the morning of the fire, she passed by her son's house on her way to work and saw someone in his backyard. Tom Hutsell also testified at trial as a defense witness. Tom testified that he lived two doors down from Stamps's residence. Tom further testified that on the morning of the fire, his wife awoke him and told him that the dog was barking. Tom testified that he got out of bed and heard somebody tell the dog to be quiet. Tom testified that he walked outside, but he did not see anyone.
¶ 15. Wilson testified that in September 2008, he was living with his aunt, Stamps.[2] Wilson testified that he drove a gold Buick Century.[3] Wilson testified that on the afternoon of September 22, 2008, he and *428 Stamps were involved in a confrontation in which Stamps questioned him about stealing money from her. Wilson testified that he denied taking the money, and he and Stamps resolved the issue. Wilson testified that on September 22, 2008, he and Stamps watched television together and she fixed dinner. Wilson testified that later that evening, he went to his room to play on the Internet and smelled pot smoke coming from another room. Wilson testified that he then left the residence at 12:15 a.m. and did not come back. Wilson testified that he received a voice mail from Detective Kimbell the next day asking him to return her phone call. Wilson testified that he did not answer any phone calls after he received Detective Kimbell's voicemail because he thought the calls concerned his ERS status, and he was worried that he had violated his ERS requirements. Wilson further testified that he did not find out that Stamps had died until he called his cousin, Jason Irby, at approximately 3:30 p.m. or 4:00 p.m. on September 23, 2008. Wilson testified that after he found out that Stamps had died, he went to his mother's house to talk to the detectives. Wilson also testified that he gave the detectives a statement at his mother's house, went to the police department to file an official report, consented to a search of his car, and provided the officers with his DNA.
¶ 16. Wilson further testified that he provided a false written statement to the police officers concerning his whereabouts on the day in question because he had been in Memphis, Tennessee, in violation of his ERS curfew, which required him to be home between the hours of 12:00 a.m. and 6:00 a.m. Lastly, Wilson testified that the hammer found at Stamps's residence was a hammer that he used at his grandfather's farm to stretch barbed wire. Wilson testified he was unsure how the hammer got from his grandfather's farm in Charleston, Mississippi, to Stamps's residence in Southaven, Mississippi. Wilson testified that he falsely denied the officer's initial inquiries as to whether he knew about the hammer because he "kind of seen [sic] where the questioning was going, that they thought that [he] had something to do with it."
¶ 17. Wilson filed a post-trial motion for a JNOV or, in the alternative, a motion for a new trial, which was subsequently denied by the trial court. Aggrieved, Wilson appeals.
DISCUSSION
I. SUFFICIENCY AND WEIGHT OF THE EVIDENCE
¶ 18. Wilson appeals the trial court's decision to deny his motion for a directed verdict and his motion for a JNOV or, in the alternative, a motion for a new trial. Specifically, Wilson argues that the case against him is entirely, and tenuously, circumstantial and fails to establish facts upon which he could be convicted.
¶ 19. Wilson combines his arguments regarding the weight of the evidence and the legal sufficiency of the evidence. Because these issues are two distinct issues, we will discuss each separately. See Bush v. State, 895 So.2d 836, 843 (¶ 15) (Miss. 2005) (outlining the differences between legal sufficiency of the evidence and the weight of the evidence); Wells v. State, 57 So.3d 40, 45 (¶ 9) (Miss.Ct.App.2011).
A. Sufficiency of the Evidence
¶ 20. Wilson argues that the trial court should have sustained his motion for a directed verdict, or otherwise, should have granted his motion for a JNOV because, even accepting all the State's evidence as true, the State failed to make a *429 prima facie case of murder and arson.[4] Further, Wilson contends that the evidence failed to establish a set of facts upon which a jury could reasonably render a guilty verdict beyond a reasonable doubt and to the exclusion of every hypothesis consistent with innocence under either count.[5]
¶ 21. In response, the State argues that when viewed in its entirety, the evidence, although circumstantial, was legally sufficient to sustain convictions of murder and arson in the first degree. The State asserts that Wilson's extrajudicial statements to law-enforcement authorities, many of which turned out to be deliberate fabrications of great degree, together with testimony and evidence aliunde the false statements, as well as the reasonable inferences to be drawn from the evidence in toto, including the DNA evidence, were sufficient to demonstrate Wilson's guilt. We agree with the State's analysis of the law as applied to this assignment of error.
¶ 22. When addressing the legal sufficiency of the evidence, this Court has provided:
A (1) motion for a directed verdict, (2) request for peremptory instruction, and (3) motion for judgment notwithstanding the verdict challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). "Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court." McClain, 625 So.2d at 778.... "If there is sufficient evidence to support a verdict of guilty, this Court will not reverse." Meshell v. State, 506 So.2d 989, 990 (Miss. 1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). The test to be applied in considering the sufficiency of the proof based on circumstantial evidence is "whether a rational fact finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged." Shields v. State, 702 So.2d 380, 382 (Miss. 1997) (citing Deloach v. State, 658 So.2d 875, 876 (Miss.1995)). See also Murphy v. State, 566 So.2d 1201, 1204 (Miss.1990).
Hughery v. State, 799 So.2d 105, 117-18 (¶ 17) (Miss.Ct.App.2001).
¶ 23. After reviewing the present case, we find that the evidence was sufficient to support the guilty verdicts. See Id. at 118 (¶ 17). The sufficiency of the evidence supporting the convictions is shown through the following evidence: Fire Marshall White testified he investigated the fire and determined the fire to be arson; Detective Kimbell testified she determined that Wilson lived in the room in Stamps's residence that caught on fire; Detective Logan located a hammer with blood and hair on its exterior hidden behind a piano in a "junk room" at Stamps's residence; Dr. Scales testified he performed tests on the hammer and determined the DNA *430 found on the head of the hammer matched Stamps's DNA sample, and he recovered a mixture of DNA on the hammer handle and determined there were no genetic markers in the DNA mixture that could be attributed to anyone other than the DNA from Stamps and Wilson; Dr. Li testified Stamps received multiple blunt-force injuries, and some of Stamps's lacerations were consistent with injuries caused by a hammer; Detective Kimbell testified Wilson provided a handwritten statement that placed him at the scene of the crime; Knox, Stamps's neighbor, testified she noticed three cars, including a tan car in the driveway next door, at 5:00 a.m. on the morning of the 23rd, but when she looked back outside at approximately 6:40 a.m. or 6:45 a.m., Stamps's mobile home was on fire, and the tan car was gone; Wilson testified he drove a gold Buick that could also be described as champagne or brown; Parks testified Stamps told him that she confronted Wilson on the day prior to her murder regarding the money she was missing and also told him that she intended to ask Wilson to move out of the residence; and Wilson's testimony at trial demonstrated his concern over the possibility of having his ERS revoked.
¶ 24. After considering the evidence presented at trial, we find "a rational fact finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged." See Hughery, 799 So.2d at 118 (¶ 17) (citing Shields, 702 So.2d at 382). Accordingly, we find that the trial court did not err by denying Wilson's motion for a JNOV.[6] This issue lacks merit.
B. Weight of the Evidence
¶ 25. Wilson argues that the case against him is entirely circumstantial and that the verdicts are not supported by the weight of the State's evidence. Wilson asserts that the only physical evidence linking him with Stamps's death was 1.5 nanogram of a genetic mixture from a hammer handle found in the residence where both he and Stamps lived. Wilson also contends that the investigation of the case was incomplete. Wilson asserts that the investigation failed to submit Stamps's fingernail clippings and floor mats for testing, and he argues that his steering wheel cover and shoes were submitted for testing but no genetic material was detected on the items. Further, Wilson asserts that there was no investigation into the person seen and heard at the neighbor's house just before the fire.
¶ 26. In response, the State argues Wilson has failed to demonstrate the trial court abused its discretion in overruling his motion for a new trial grounded, in part, on a claim that the jury verdicts were against the overwhelming weight of the evidence. The State argues that the proof proffered in support of the charges of murder and arson was both abundant and credible, and affirmation of the jury's verdicts would not sanction an unconscionable injustice.
¶ 27. The Mississippi Supreme Court has stated:
When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb *431 a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial,
... The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000).... However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, "unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict." McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather ... the court simply disagrees with the jury's resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial....
Bush, 895 So.2d at 844 (¶ 18).
¶ 28. In the present case, when reviewing the evidence previously discussed in the light most favorable to the verdict, we find that the overwhelming weight of the evidence supports the guilty verdicts. See Bush, 895 So.2d at 844 (¶ 18). Furthermore, we recognize that "[i]t is within the jury's province to determine the weight and credibility to give the evidence and to resolve all conflicts in the evidence." Dowdle v. State, 57 So.3d 32, 35 (¶ 16) (Miss.Ct.App.2011) (citation omitted). Due to the evidence and testimony presented by the State at trial, we hold that the trial court did not err by denying Wilson's motion for a new trial, and find that this issue is without merit.
II. PUBLICITY DURING TRIAL
¶ 29. During pretrial motions, the trial court gave the State permission to inform the jury that Wilson was on ERS with the MDOC because of a prior felony conviction.[7] During the trial, Wilson and the State stipulated to the jury that on the day of Stamps's death, Wilson was on ERS from the MDOC, and if he had been found to violate the conditions of his ERS, he was then subject to being sent to prison due to the violation. The nature of the prior conviction was not disclosed to the jury.
¶ 30. A related issue arose after the jury returned its verdict. The defense counsel notified the court of the jury's possible exposure to an article that was on the front page of the DeSoto Times Tribune on October 27, 2009, the day prior to the jury deliberations. The article reported Wilson was living with Stamps as part of the terms of his probation related to a prior child kidnapping conviction in DeSoto County. Defense counsel requested that the jury be polled in reference to the article and moved for a mistrial. The trial court stated the following:
Obviously, the jury is admonished on [sic] the beginning [of trial] not to read or see any accounts of the trial in newspapers, television, radio. The law presumes, *432 without evidence to the contrary, that they follow those directions.
Regarding this particular article, obviously, we're not going to poll the jury every time there's an article in the paper about what's going on in the courtroom because that's a large portion of the time when we have trials, certainly, of this nature. However, as I had indicated at the bench, given that the article is a front page article, which does recount information that had been, by agreement, kept away from the jury as far as the details of the underlying conviction, and noting that Mr. Wilson has now been convicted of both counts and is charged as a habitual offender, that the better safety practice would be merely to call the jurors back one by one and make sure that they have not seen that article, and I will take that step.
The trial judge then questioned each juror individually about their knowledge of the newspaper article and of Wilson's past. All but one juror denied having any knowledge of the article or on the subject. The sole juror who knew about the article, Rhonda Hart, provided the following testimony:
COURT: An article ran in the DeSoto Times yesterday. There is a copy of the article. I need to know if you have seen or read that article.
HART: No.
COURT: Do you have any knowledge as to what Mr. Wilson had previously been in trouble for?
HART: Yes.
COURT: Okay. Where did you get that information?
HART: Someone in my family.
COURT: All right. Tell me what you know.
HART: All I know is kidnapping.
COURT: You say a family member told you that?
HART: Yes.
COURT: When did this happen?
HART: Last night.
COURT: Why did you not report that to the jury bailiff this morning?
HART: I don't know.
COURT: Mr. Champion, questions?
CHAMPION [prosecuting attorney]: Did that influence your verdict in any way in this case?
HART: Not at all.
CHAMPION: Were you able to be fair and impartial?
HART: Yes.
The trial court took the matter under advisement and proceeded with sentencing. During the hearing on Wilson's motion for a JNOV or, in the alternative, motion for a new trial, Wilson again raised the issue of juror misconduct. In denying Wilson's post-trial motion, the trial court stated:
I believe the article came out the day before closing arguments and the deliberations. I may bewell, I believe that would have to be the case for the juror to have communicated, but I believe that to have been the case, and I believe Mr. [Stacey] Spriggs [defense counsel], who was assisting indicated that it was on the Internet the night before.
I will note that certainly gave opportunity for that to have been brought to this Court's attention at a time when the juror could have been removed when alternates were still available. I certainly do not disputeas a matter of fact, I find and I certainly believe that Mr. [John] Watson [defense counsel] brought that to the Court's attention as soon as he was aware of it. That doesn't change the fact that it had been out there to the old "known or should have *433 known" about the existence of the article.
I will note, as I noted in chambers, that the Court probably made a mistake in the favor of the [d]efendant in going to quiz the jury panel without the [d]efendant putting forth any additional basis for the Court to believe the jury had been influenced, but as I had indicated to counsel and I'll indicate again, I offer no apologies for that in that we discovered that a juror had in fact received extraneous information.
Regarding that, each juror was called in. Eleven jurors indicated they had not read the article, did not know anything about Mr. Wilson's past. The twelfth juror indicated she did not read the article but that she had been made aware of what Mr. Wilson's prior conviction was for. She indicated she had not told any other jurors, which was, of course, backed up by their sworn testimony and, likewise, indicated it had not influenced her decision in the case.
This is a strictly factual determination in regard to Mr. Wilson, but facts that also figure into that is that the Court had deemed that the fact that Mr. Wilson had been convicted of a crime could come before the jury as to his motive. The argument being that his alleged taking of money from the deceased and her discovering that fact that his motive was he didn't want to go back to prison upon revocation of his post-release supervision. Therefore, the fact that Mr. Wilson had been convicted did come before the Court with permission.[8]
So in that regard, first and foremost, so the record is clear, I do find that the juror receiving information about Mr. Wilson's prior conviction is prejudicial.
I know an appeals court will look at this, and my finding is any time a juror finds out information about a prior conviction that I ordered to be kept out of evidence[,] I will find that to be prejudicial for the very reason I kept it out of evidence. However, I feel that the State correctly rebutted that presumption. Mr. Champion asked the juror questions during the process. It appears clear that no other jurors had any of this information and that she was not influenced by the information.
¶ 31. The standard of review when considering a denial of a motion for a new trial is abuse of discretion. Rutland v. State, 60 So.3d 137, 142 (¶ 18) (Miss.2011) (citations omitted). The Mississippi Supreme Court in Gladney v. Clarksdale Beverage Co., 625 So.2d 407 (Miss.1993), formulated a "systematic method" to be used by the trial courts to inquire into juror verdicts pursuant to Mississippi Rule of Evidence 606(b). James v. State, 912 So.2d 940, 951 (¶ 18) (Miss.2005) (citations omitted). Rule 606(b) states:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by *434 the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Gladney provides that at the beginning of the inquiry, "the trial court and opposing counsel must be made aware of any potential juror misconduct when this evidence is manifested." Gladney, 625 So.2d at 418. "Once an allegation of juror misconduct arises, then the next step is to consider whether an investigation is warranted. In order for the duty to investigate to arise, the party contending there is misconduct must make an adequate showing to overcome the presumption in this state of jury impartiality." Id. If the threshold showing is made, then the trial court should conduct a post-trial hearing. Id. at 419. The Mississippi Supreme Court further provided:
The scope of the hearing is[,] however, limited; the proper procedure is for the judge to limit the questions asked the jurors to determine whether the communication was made and what it contained. Once it is determined that the communication was made and what the contents were, the court is then to decide whether it is reasonably possible this communication altered the verdict.
Id. "Gladney offers no interpretation nor explanation which is inconsistent with, or different from [Rule] 606(b). That is to say that it would be inappropriate, and in violation of [Rule] 606(b), for any juror to be questioned with regard to whether or not the extraneous information actually altered his verdict." James, 912 So.2d at 951 (¶ 18). See also Rutland, 60 So.3d at 142 (¶ 21).
¶ 32. Wilson acknowledges that the trial court followed the procedural guidance as set forth in Gladney, 625 So.2d at 418-19, but he argues the trial court abused its discretion in not requiring a new trial because there is a clear possibility the juror in question was influenced by extraneous prejudicial, incorrect information. Wilson cites James, 912 So.2d at 949-53 (¶¶ 17-28), in support of his argument. However, a review of the record shows that James is factually distinguishable from the case before this Court.
¶ 33. In James, Dayon James was charged in a multiple-count indictment for the murder of Shanekque Keyes and the murder of Alonso Smith in December 1995. Id. at 943 (¶ 4). During pretrial motions, the trial court granted James's motion to sever the counts, and the State elected to try Shanekque's case first. Id. Great efforts were expended to ensure that no one mentioned any alleged injuries to Alonso in the jury's presence. Id. Jury selection for James's trial began on July 8, 1996. Id. at (¶ 5). At the conclusion of the trial, James was convicted of capital murder and sentenced to life in prison. Id. at 944 (¶ 6). On the day after the trial, defense counsel was informed of the possibility that the jury had been exposed to extraneous prejudicial information. Id. at (¶ 7). A hearing was held on August 14, 1996, and Wanda Conway, a member of the venire, testified that on July 9, 1996, when the court recessed for lunch during voir dire, she went to lunch with another prospective juror and Juror Shawn Watson. Id. Conway testified that the women discussed the case during lunch, including that James was accused of murdering another child. Id.
¶ 34. Conway also testified that later that afternoon, the entire group was sent to sit in another courtroom while the trial court conducted individual voir dire, and while there, she heard many members of the venire discussing the case and that there were two children involved. Id. at 944-45 (¶ 8). Conway testified that she spoke with Watson the day after the trial *435 ended, and Watson told her that some members of the jury knew about the second child and kept bringing it up in the jury room. Id. at 945 (¶ 9). Conway also testified that Watson told her that several jurors said they found James guilty because "it was two children." Id. Lastly, Conway testified that Watson told her that while in the jury room, several jurors discussed the docket sheet that they saw posted outside the courtroom which indicated that James was charged with an additional crime. Id. After presentation of this testimony in support of its motion, defense counsel then requested that the trial court conduct further investigation into the jury's possible exposure to extraneous information, pursuant to Gladney. Id. at (¶ 10). The trial court determined that there had not been a threshold showing that further inquiry was necessary under Gladney, and denied James's motion. Id.
¶ 35. On appeal, we reversed and remanded the James case to the trial court, instructing the "trial court to hold a hearing for the purpose of determining whether extraneous prejudicial information was introduced into the jury's deliberations concerning the death of the other child." Id. at (¶ 11) (citation omitted). This Court denied the State's motion for rehearing, withdrew the original opinion, and substituted a modified opinion. Id. at (¶ 12). James then filed a motion for rehearing, which the Court dismissed. Id. at 945-46 (¶ 12). Both the State and James then filed petitions for writ of certiorari, which the Mississippi Supreme Court denied. Id. at 946 (¶ 12). The James case was remanded to the trial court to reconvene and to poll the jury concerning its possible exposure to extraneous information. Id. at (¶ 13). Ultimately, eleven of the twelve jurors and both alternates were located and summonsed to appear in court. Id. at (¶ 14). A hearing was held on May 15, 2001, and eleven jurors and one alternate appeared to testified. Id. The trial court questioned each juror individually, refusing to allow the attorneys to question the jury. Id. at 946-49 (¶¶ 14-15). The trial court determined that extraneous information had been communicated to the jury; however, the trial court found that "this communication was incidental and that the jury verdict should not be impeached." Id. at 949 (¶ 15). On appeal, this Court affirmed the trial court's judgment. Id. at (¶ 16).
¶ 36. After this Court denied James's motion for rehearing, the Mississippi Supreme Court granted James's petition for writ of certiorari. Id. (citations omitted). The Mississippi Supreme Court ultimately determined, however, that the trial court's failure to reconvene the jury fully for the hearing on May 15, 2001, was reversible error mandating a new trial, and the passage of time which made reconvening the jury impracticable was unfairly prejudicial to James and violated his due-process rights. Id. at 951-52 (¶¶ 20-21). Further, the supreme court found, based on the standard established in Gladney, that it was "reasonably possible that the communication altered the verdict" and that a new trial should be granted. Id. at 952 (¶ 22). In support of its finding, the supreme court in James pointed to Conway's testimony that: Watson told her that many members of the venire discussed the allegations regarding a second child while waiting in the separate courtroom; Watson told her after the trial that some members of the jury knew about the second child and kept bringing it up in the jury room; and Watson indicated that the docket sheet supported the allegation that a second child was involved. Id. at 952 (¶¶ 22-24). Additionally, the supreme court found in James that during the May 2001 hearing, several of the jurors admitted *436 knowledge of the fact that James was accused of killing a second child. Id. at 952-53 (¶¶ 24-26). Finally, the supreme court held that the trial court erred when it refused to allow the attorneys to examine the jurors during the May 2001 hearing. Id. at 953 (¶ 28).
¶ 37. In this case, contrary to James, the record shows that only one juror, Hart, admitted to having knowledge of the newspaper article and admitted having been made aware of Wilson's prior conviction. Further, in this case, contrary to James, the record indicates that Hart did not discuss her knowledge of this information with any of the other jurors and that she possessed no knowledge of the details of Wilson's past conviction, as evidenced by the testimony of the other eleven jurors that they did not have any knowledge of the newspaper article or of Wilson's past. Moreover, as the trial judge acknowledged, the jury had already been informed of Wilson's ERS status by stipulation between Wilson and the State, and Wilson testified as to his ERS status as his basis for initially providing false information to law-enforcement officers as to his whereabouts.
¶ 38. The record in the present case further indicates that defense counsel notified the court of the newspaper article the day after the article was published. The record further shows that after being notified by defense counsel of the possibility of the jury's exposure to the newspaper article, the trial court interviewed each of the twelve jurors as to their knowledge of the extraneous information. After questioning the jurors, the trial court determined that while it was prejudicial for Hart, a juror, to learn of Wilson's prior conviction, which had been specifically kept out of evidence, the State correctly rebutted the prejudicial presumption. After reviewing the record, we cannot find that the trial court abused its discretion in making this determination. Therefore, we hold the trial court did not err in denying Wilson's motion for a new trial. See Rutland, 60 So.3d at 145 (¶ 33) (citing Gladney, 625 So.2d at 415) ("This Court's authority to reverse a trial court's ruling on a motion for new trial is limited to those instances when the trial court abuses that discretion."). This issue lacks merit.
III. PRIOR CONVICTION EVIDENCE
¶ 39. During the pretrial hearing, the State sought the trial court's permission under Mississippi Rules of Evidence 404(b) and 403 to use Wilson's ERS status as proof of motive for Stamps's murder and the arson of Stamps's residence. The trial court found the evidence of Wilson's ERS status to be relevant and admissible, finding that the evidence was more probative than prejudicial. However, the trial court ruled that the State would only be allowed to establish that Wilson was on ERS status and put forth evidence that the possible revocation of his ERS status constituted his motive for the underlying offenses. The trial court found, however, no necessity existed to go into great detail as to the crimes for which Wilson was previously convicted. During the trial, the State and Wilson stipulated that Wilson was on ERS from the MDOC on the day of the victim's death, and if Wilson had been found to have violated the conditions of his ERS, he would have been subject to being sent to prison.
¶ 40. On appeal, Wilson argues that the trial court erred in allowing the State to use his prior conviction and ERS status against him in its case-in-chief. Specifically, Wilson contends it was not necessary to introduce evidence that Wilson was on supervised release with MDOC for the State to present its case to the jury, arguing that *437 the State is not required to prove motive in a murder case. See Roberts v. State, 458 So.2d 719, 722 (Miss.1984). Wilson also argues that there was no evidence that Stamps ever intended on going to the police with the allegation about stolen money. Further, Wilson contends that while proof of another crime or act may be admissible where the other crime or act is so interrelated to the charged crime as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences, in this case, there was no probative connection between Wilson's ERS status and Stamps's death; thus, the evidence was inadmissible. See Townsend v. State, 681 So.2d 497, 506 (Miss. 1996).
¶ 41. In response, the State argues that the trial court did not abuse its discretion in permitting the State to introduce evidence of Wilson's prior conviction and Wilson's then existing status as a free man by virtue of his ERS. The State contends such was admissible to demonstrate motive for the killing of Stamps and the burning of her home. See Carter v. State, 953 So.2d 224, 229-33 (¶¶ 11-21) (Miss.2007); Mayers v. State, 42 So.3d 33, 42-43 (¶¶ 32-37) (Miss.Ct.App.2010) (finding that the trial court abused no discretion in allowing evidence of Mayers's prior convictions to prove motive under Rule 404(b)); Gales v. State, 29 So.3d 65, 77-79 (¶¶ 41-48) (Miss. Ct.App.2009) (affirming the trial court's decision to allow evidence of Gale's prior convictions into evidence to prove knowledge and intent under Rules 404(b) and 403); Bone v. State, 914 So.2d 209, 213-14 (¶¶ 14-20) (Miss.Ct.App.2005) (finding that the trial court did not err in admitting the evidence of Bone's prior conviction to show knowledge under Rule 404(b)). The State contends even if the testimony assailed here suggests proof of another crime, wrong, or act, it is well settled that proof of other crimes is admissible "if it sheds light upon the motive for the commission of the crime charged in the indictment." Gardner v. State, 368 So.2d 245, 248 (Miss. 1979). The State also argues that in addition to proof of motive, the testimony was necessary in order to present the jury with the complete story of the crime charged.
¶ 42. "[T]his Court has held `that the admission of evidence is well within the sound discretion of the trial court, subject to reversal on appeal only if there be an abuse of that discretion.'" Pitchford v. State, 45 So.3d 216, 246 (¶ 127) (Miss.2010). In Pitchford, 45 So.3d at 245-46 (¶¶ 121-128), the Mississippi Supreme Court spoke to the issue of the admissibility of evidence concerning prior bad acts. The supreme court found that the two evidentiary rules at issue when determining whether to admit the evidence are Mississippi Rules of Evidence 404(b)[9] and 403.[10]Id. at 245-46 (¶ 124). In this case, the trial court properly considered both rules in the admission of this evidence.
¶ 43. After a thorough review of the record, we find no abuse of discretion by the trial court in admitting evidence of Wilson's ERS status. In making its findings, *438 the trial court considered Mississippi Rule of Evidence 403 and found the evidence relevant to motive and more probative than prejudicial.
¶ 44. Since a review of the record shows that the trial court found the evidence to be admissible to show motive, and it found the evidence to be more probative than prejudicial, we review the trial court's admission of this evidence for abuse of discretion. Pitchford, 45 So.3d at 246 (¶ 128). Therefore, we find that the trial court did not abuse its discretion in finding the evidence to be admissible. This assignment of error is without merit.
IV. HEARSAY
¶ 45. During the pretrial hearing, Wilson sought to prevent the State from using certain statements that Stamps allegedly made to her boyfriend, Parks, on the day and evening before she died, concerning Stamps's belief that Wilson had stolen money from her; she had confronted him about the missing money; and she intended to ask him to move out of the residence. The trial court deemed the statements admissible and stated that the statements would be admissible to the extent that they would show the victim's state of mind as to intent, but the court determined that admission under the residual hearsay exception was more applicable in accord with Mississippi Rule of Evidence 804(b)(5) under the same criterion as the Rule 803 residual clause. The trial judge stated:
I think the evidence does come in under the residual clause under 804[(b)](5), under the same criteria that would be under the 803 residual clause, and as required, let me go through that criteria as I'm required to address each and every element. I am citing from Randall versus State, 806 So.2d 185 [(Miss.2001)].
I will note that the requirements are the adverse party must have notice of the intended use. We took that up at the beginning of the hearing. Obviously, we are here almost a week before the trial. Obviously, the intendedbringing forth of these statements was made aware to counsel last week when we were finishing up other hearings, and I feel that Mr. Wilson has notice of the intended use of the statements.
The statements must have circumstantial guarantees of trustworthiness: I will note in this regard the statements apparently were made to a boyfriend who, at least has been presented to this Court, has no reason to lie that has been presented to this Court. Let's start with that evaluation. In that regard, also, the witness to whom the statements were made supposedly is the one that was involved in giving the money to the deceased and then wiring additional money that I think, at least, had some peripheral involvement in this. Therefore, he would have had knowledge of the facts that surround the statements that were made by the deceased to him regarding the money and regarding the decision to confront Mr. Wilson. I find that there are circumstantial guarantees of trustworthiness that would meet the required satisfaction it fell into one of the other exceptions to the hearsay rule.
No. 3, it must be offered as evidence of a material fact. I think that is clearly covered, but I will state on the record that the statement that she was going to confront Mr. Wilson and then, I believe, another statement that she was going to confront him again and kick him out goes directly to Mr. Wilson's motive, especially when combined with Mr. Wilson's later statements on the issue of the revocation. I think that it is obviously a material fact as to Mr. Wilson's motive in that regard.
*439 No. 4, it must be more probative than any other evidence. At this point, I've been presented no other evidence, other than Mr. Wilson's statements during his interview. The only evidence that would be probative in addition that I've been presented would be the knowledge that the boyfriend would have in regard to the money and the involvement with the deceased. Other than that, it would be the statement. So it is certainly more probative than any other evidence as there is very limited evidence otherwise.
And [n]o. 5, the purpose of the rules in the interest of justice must be served by admitting the statement. Obviously, to the extent Mr. Wilson's rights can be protected, which in this regard, I am required to evaluate it in that manner. In that regard, the State certainly is entitled to present [its] motive or [its] claimed motive as to why Mr. Wilson would have allegedly committed this crime. [The State] would not, as a general rule, with certain exceptions, be required to present that this just happened without giving any reason, and I think that meets the purpose of the rules and the interest of justice. Noting, once again, that the safeguards the Court will have in place to make sure that the details are not gone into to the extent that the jury would for some reason convict Mr. Wilson because of some prior wrongdoing rather than what he is alleged to have done in this particular circumstance.
Certainly, in addition, if the [d]efense requests, at the appropriate time, the Court would be giving a limiting instruction directing them that they could only consider that evidence for the purpose of motive and not for the purpose of determining that Mr. Wilson might somehow be a bad person or convicting him because of some prior run-ins with the law.
The trial court again addressed the issue of Stamps's statements to Parks during the trial. The trial court acknowledged that the State argued that the statements were relevant and admissible in accordance with Mississippi Rule of Evidence 803 pertaining to statements as to state of mind. The trial court found that the statements fell within that exception, stating:
I will note, first and foremost, as I indicated then, this does fall within that exception and a circumstance where the availability of a witness is not material. I will note citing Dendy versus State, D-E-N-D-Y, 931 So.2d 608 [(Miss.2005)], that such statements are admissible where they're more probative on the point for which they were offered than other evidence which the proponent could procure through reasonable efforts, that they had a high degree [of] trustworthiness, and the defense was given reasonable notice.
I certainly note we have had a whole hearing on these issues so the [d]efense has certainly had notice. For the reasons previously stated, they are the only evidence which could be procured regarding these issues that go toward[] potential motive, and I find that they are trustworthy in that, certainly, Mr. Parks has testified regarding the statements, and they would match up as best possible with the remaining facts in the case.
The trial court found that Rule 804(b)(5) constituted an additional basis for admission as follows:
As I had indicated, I think that Rule 804[(b)](5) is the closer on point and more applicable, and so I will cite Randall versus State, 806 So.2d 185. Some of the same requirements in the residual exception, but I will note that the [d]efendant has had notice of the intended use. For the reasons just stated, there are circumstantial guarantees *440 of trustworthiness. Certainly, No. 3, it's offered as evidence of a material fact, that being motive that would be alleged in this case. It's more probative than other evidence, and as I indicated, there is no other evidence on this particular issue, and that the purpose of the rules, in the interests of justice, must be served by admitting the statement.
I would note that there's no abuse of that rule in this case by the State. They're not trying to put forth anything other than the money missing, the decedent's suspicion that the [d]efendant may have stolen it, and her intent to confront him regarding moving out in that regard. For those reasons, I had previously found, but I would note for the record that they are admissible in that regard.
The record shows that a limiting instruction was requested by the defense and then given by the court prior to the jury deliberations.
¶ 46. On appeal, Wilson argues that the trial court erred because Parks's testimony, as to his conversations with Stamps, constituted hearsay which was more prejudicial than probative of material issues. While Wilson acknowledges that testimony of "other crimes, evidence, or testimony" which may be otherwise excludable, may be introduced "in order to tell a rational and coherent story of what happened and where it is substantially necessary to present a complete story, Mackbee v. State, 575 So.2d 16, 27-28 (Miss.1990), he asserts that there was no need to introduce the State's motive theory through second-hand accusations to tell a coherent story. Further, Wilson argues that the trial court erroneously relied on Dendy v. State, 931 So.2d 608 (Miss.Ct.App.2005) and Randall v. State, 806 So.2d 185 (Miss.2001) in determining that the testimony fell under the hearsay exceptions of Mississippi Rules of Evidence 803(3) and 804(b)(5).
¶ 47. Wilson argues that Dendy is factually distinguishable from this case and that Randall actually supports his position that the testimony should have been excluded. In response, the State concurs that the statements were hearsay, but he contends they were admissible as an exception to the hearsay rule. The State argues that no abuse of judicial discretion occurred in the present case since the trial court applied the correct legal standard in evaluating the admissibility of Stamps's hearsay statements to Parks hours prior to her murder.
¶ 48. Before proceeding with our discussion, we must first note that the standard of review for the admission of evidence is abuse of discretion. Anderson v. State, 62 So.3d 927, 933 (¶ 13) (Miss. 2011) (citations omitted).
A. Mississippi Rule of Evidence 803(3)
¶ 49. Wilson argues that Dendy is factually distinguishable from today's case. Specifically, Wilson argues that while the Dendy court found the murder victim's statements to be admissible under Rule 803(3), the court in Dendy had another reason to introduce the statement, namely the hearsay evidence rebutted previous testimony. Dendy, 931 So.2d at 614 (¶¶ 20-23). Wilson argues, in this case, the objectionable testimony rebutted nothing, and it was merely assertive and accusatory.
¶ 50. After reviewing the record, we disagree with Wilson's assertion and find Dendy to be directly on point with today's case. In Dendy, this Court stated:
"[T]he admissibility of testimonial evidence is left to the sound discretion of the trial court within the boundaries of *441 the Mississippi Rules of Evidence, and it will not be found in error unless it is has abused its discretion." Harris v. State, 861 So.2d 1003, 1018 (¶ 41) (Miss.2003). Furthermore, the Mississippi Supreme Court has held that a relevant statement made by a murder victim prior to his death may be admissible as an exception to the hearsay rule under the declarant's then-existing mental condition, or state of mind exception under [Rule] 803(3). Brown v. State, 890 So.2d 901, 914-15 (¶¶ 42-46) (Miss.2004); Harris, 861 So.2d at 1019 (¶ 42).
Dendy, 931 So.2d at 614 (¶ 21).
¶ 51. As in Dendy, the trial court in this case gave on-the-record findings, stating "we have had a whole hearing on these issues so the [d]efense has certainly had notice. For the reasons previously stated, [the statements] are the only evidence which could be procured regarding these issues that go toward[] potential motive, and I find that they are trustworthy in that, certainly, Mr. Parks has testified regarding the statements, and they would match up as best possible with the remaining facts in the case." Based on these findings and the cited case law,[11] we find the trial court did not abuse its discretion in allowing the statements into evidence as evidence of motive. This issue lacks merit.
B. Mississippi Rule of Evidence 804(b)(5)Residual Hearsay Exception
¶ 52. With respect to a statement not covered specifically by other exceptions, Rule 804(b)(5) sets forth the evidentiary requirements for admitting evidence pursuant to the residual hearsay exception. The Mississippi Supreme Court has stated that five conditions must be met before evidence is admissible under Mississippi Rule of Evidence 804(b)(5): "(1) [t]he adverse party must have notice of intended use; (2)[t]he statement must have circumstantial guarantees of trustworthiness; (3)[i]t must be offered as evidence of a material fact; (4)[i]t must be more probative than other evidence; and (5)[t]he purpose of the rules and the interests of justice must be best served by admitting the statement." Randall, 806 So.2d at 201 (¶ 24) (quoting Butler v. State, 702 So.2d 125, 128 (Miss.1997)). Furthermore, the supreme court stated that the five requirements are conjunctive; therefore, each must be met before hearsay may properly be found admissible. Id.
¶ 53. Wilson acknowledges that the unavailability of the declarant was not at issue at trial because Stamps was deceased. Wilson further concedes that his trial counsel received notice of the State's intent to use the testimony. Wilson argues, however, that the trial court's findings as to the trustworthiness and probative value of the testimony was in error, and the "interests of justice" require that the unchallenged hearsay not involve the accusation of another crime. Wilson contends "the victim's statements were not needed nor reliable, but if admissible, only to the degree that there had been a possible disagreement between Stamps and Wilson and Ms. Stamps'[s] intending on asking him to leave under [Rule] 803(3)." We disagree.
¶ 54. A review of the record shows that the trial court carefully analyzed all of the requirements to satisfy admission of evidence in accordance with Rule 804(b)(5) of Stamps's statements. The trial judge provided thorough on-the-record findings for each requirement of Rule 804(b)(5) showing *442 equivalent guarantees of trustworthiness. After reviewing the record, we find no evidence to support Wilson's claim that the trial court abused its discretion in finding Parks's testimony as to the statements made by Stamps to him on the day prior to her death to be admissible. Accordingly, we find that this assignment of error is without merit.
¶ 55. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE, AND COUNT II, ARSON IN THE FIRST DEGREE, AND SENTENCE OF TWENTY YEARS, ALL AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
LEE, C.J., IRVING, P.J., MYERS, ISHEE, ROBERTS AND RUSSELL, JJ., CONCUR. GRIFFIS, P.J., BARNES AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT.
NOTES
[1] On redirect examination, Parks clarified this statement and explained that Stamps told him during his conversations with her on September 22, 2008, that she had already confronted Wilson about the missing money, and he had denied taking it, but she had not asked him to leave yet.
[2] Wilson testified that Stamps was his third cousin, but he referred to her as "Aunt Jho."
[3] Wilson also testified that the color of his vehicle could be described as champagne or brown.
[4] Wilson argues that the State's following facts failed to establish facts upon which he could be convicted: Stamps was a victim of a homicide; Stamps's residence was set on fire; Wilson lived with Stamps and was accused of stealing money from her; Wilson's car was in the driveway more than an hour before the fire was detected; Wilson's car was gone when the fire was detected, and he was in Memphis the rest of the day; Wilson's and Stamps's DNA was found on the hammer, which was apparently the murder weapon.
[5] Specifically, Wilson asserts that not only is there a reasonable hypothesis consistent with his innocence, but actual eyewitness testimony exists to show that a person was seen running from the crime scene the time Wilson was in Memphis, Tennessee.
[6] As previously stated, a motion for a directed verdict and a motion for a JNOV challenge the legal sufficiency of the evidence. Hughery, 799 So.2d at 117-18 (¶ 17) (citing McClain v. State, 625 So.2d at 778). "Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court." Id. at 118 (¶ 17). Therefore, in the present case, we will review Wilson's JNOV motion because it was the last occasion that the challenge was made in the trial court.
[7] Wilson testified at trial that he had lied in his previous statement to law enforcement as to his whereabouts on the day of the murder because he was in Memphis in violation of his ERS.
[8] The trial judge referred herein to the stipulation between Wilson and the State as to his ERS status at the time of the offenses.
[9] Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[10] Rule 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
[11] See Hall v. State, 39 So.3d 981, 984 (¶¶ 10-12) (Miss.Ct.App.2010) ("Rule 803(3) has been held to encompass relevant statements made by victims prior to their death."); Bogan v. State, 754 So.2d 1289, 1293-94 (¶¶ 14-16) (Miss.Ct.App.2000).
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148 F.3d 1072
U.S.v.Carey Antonio Pierce
NO. 97-8180
United States Court of Appeals,Eleventh Circuit.
June 19, 1998
N.D.Ga., 136 F.3d 770
1
DENIALS OF REHEARING EN BANC.
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514 S.W.2d 720 (1974)
Debra Ann FORTMAN et al., Appellants,
v.
TEXARKANA SCHOOL DISTRICT NO. 7, Appellee.
No. 74-71.
Supreme Court of Arkansas.
October 21, 1974.
James E. Davis, Texarkana, for appellants.
Ned A. Stewart, Jr., Texarkana, for appellee.
*721 GEORGE ROSE SMITH, Justice.
This is an action by the appellants, two tenth-grade high school girls (suing by their next friends), for a writ of mandamus to compel the appellee school district to re-admit them to the Texarkana, Arkansas, high school. The circuit court, in sustaining the district's motion for summary judgment, held that the board of directors of the district had the authority to permanently expel the two girls. Whether that ruling was legally correct is the only issue argued by the appellants.
The material facts are not in dispute. On the evening of March 21, 1973, some sort of verbal controversy took place at a dance attended by high school students. As an aftermath to that altercation the two appellants on the following day, during school hours, attacked a third girl, Kathy Walker, on the school grounds. The attack was deliberately planned in advance. The Walker girl was kicked, beaten, and stabbed twice in the head with a six-inch pair of scissors. Her injuries were serious but not fatal. The principal of the high school promptly suspended the appellants for the remainder of the school term.
The principal then recommended to the directors that the two assailants be expelled. After a public hearing, about which no constitutional question is raised, the board voted unanimously for permanent expulsion. At the hearing the district's attorney advised the board that it would have the authority to reinstate the two girls later on if it saw fit to do so. The circuit court, in denying the requested writ of mandamus, noted that after their expulsion the girls had pleaded nolo contendere to charges of assault with intent to kill and had each received a five-year suspended sentence.
Counsel for the appellants, in insisting that school directors cannot expel a student, argues that the board's only authority in the matter must be derived from Ark.Stat.Ann. § 80-1516 (Repl.1960), which was part of the comprehensive 1931 school law:
The directors of any school district may suspend any person from school for immorality, refractory conduct, insubordination, infectious disease, habitual uncleanliness or other conduct that would tend to impair the discipline of the school, or harm the other pupils, but such suspension shall not extend beyond the current term. The board of directors may authorize the teacher to suspend any pupils, subject to appeal to the board.
We are unwilling to construe the board's authority so narrowly. In the first place, the power of expulsion was legislatively recognized in Section 13 of Act 63 of 1969 (Ark.Stat.Ann. § 80-1656 [Supp.1973]):
Nothing in this Act shall be construed to limit a local school district's power to adopt reasonable rules, regulations, and policies, not inconsistent with the purposes of this Act, to insure continued orderly operation of schools, including adult education and area vocational-technical high schools, and such powers are deemed to include the right of expulsion for student participation in any activity which tends, in the opinion of the Board, to disrupt, obstruct or interfere with orderly education processes.
It is true that Act 63 was adopted by the legislature to implement Constitutional Amendment 53, which specifically confirmed the power of the General Assembly and of school districts to expend public funds for the education of persons over twenty-one or under six years of age. Nevertheless, we find it difficult to believe that the lawmakers meant to recognize the school board's authority to expel a student after his twenty-first birthday but to deny that power immediately before that anniversary. We can discern no reasonable basis for such a distinction.
*722 In the second place, the directors have implied powers as well as express ones. "But school directors are authorized, not only to exercise the powers that are expressly granted by statute, but also such powers as may be fairly implied therefrom, and from the duties which are expressly imposed upon them. Such powers will be implied when the exercise thereof is clearly necessary to enable them to carry out and perform the duties legally imposed upon them." A. H. Andrews Co. v. Delight Spec. Sch. Dist., 95 Ark. 26, 128 S.W. 361 (1910). Our school laws unquestionably impose upon school boards the duty of providing orderly educational institutions. Scant imagination is required to think of innumerable situations in which the power of expulsion might be the school board's only effective means of protecting the student body from the disruptive, violent, or criminal actions of an incorrigibly intractable pupil.
The controlling principles are well stated by Professor Bolmeier in "The School in the Legal Structure," § 16.17 (2d ed., 1973):
The legal principle is also firmly established that school authorities may expel or suspend from school any pupil who disobeys a reasonable rule or regulation. School officials are clothed with considerable discretionary authority in determining whether or not a rule has been violated, and, in the event they conclude that a violation has occurred, they also have discretionary authority in determining the nature of the penalty to be imposed providing it is not arbitrary or unreasonable. When, however, parents challenge the action of school boards as being beyond the bounds of reasonableness, litigation may develop.
There are a number of cases concerning pupil suspension and expulsion. The terms "suspension" and "expulsion" are sometimes used interchangeably. There is, however, considerable difference in the legal meaning of the two terms. "Suspension" is generally an act of a professional member of the school staff, whereas "expulsion" is a prerogative of the school board. Suspension is usually for a short period of time, or until the pupil conforms to the rule or regulation involved, whereas expulsion is usually permanent or substantially so.
The courts look somewhat askance at acts of suspension, and particularly at expulsion, as methods for forcing pupils' conformance to rules and regulations. Some incorrigible pupils violate school regulations for the very purpose of being removed from the school environment. It should be realized that when a pupil is denied school attendance he is deprived of education designed for his betterment. Of course when a pupil's misconduct or disobedience is of such a grave nature that his presence is disrupting to the school and detrimental to the morale of the student body, suspension, or even expulsion, is likely to be judicially condoned.
The courts have been reluctant to interfere with the authority of local school boards to handle local problems. Our position was well stated in Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962): "In this State a broad discretion is vested in the board of directors of each school district in the matter of directing the operation of the schools and a chancery court has no power to interfere with such boards in the exercise of that discretion unless there is a clear abuse of it and the burden is upon those charging such an abuse to prove it by clear and convincing evidence." We cannot say that an abuse of discretion has been shown by the undisputed facts in the case at bar.
Affirmed.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11368 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 14, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cr-00265-AKK-PWG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
ERIC RAMON TAPSCOTT,
a.k.a. Ick,
lllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 14, 2012)
Before MARCUS, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Bill Barnett, appointed counsel for Eric Tapscott, has filed a motion to
withdraw on appeal supported by a brief prepared pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of
the entire record reveals that counsel’s assessment of the relative merits of the
appeal is correct. Because independent examination of the entire record reveals no
arguable issues of merit, counsel’s motion to withdraw is GRANTED, and
Tapscott’s convictions and sentences are AFFIRMED.
2
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Fourth Court of Appeals
San Antonio, Texas
May 22, 2019
No. 04-19-00207-CR
Ulysses Abraham PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR5868
Honorable Lori I. Valenzuela, Judge Presiding
ORDER
This appeal is DISMISSED.
It is so ORDERED on May 22, 2019.
_____________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 22nd day of May, 2019.
_____________________________
Keith E. Hottle, Clerk of Court
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COURT OF APPEALS
COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL PASO, TEXAS
GUITAR HOLDING COMPANY,
L.P., )
)
Appellant/Cross-Appellee, )
)
v. )
No. 08-04-00296-CV
)
HUDSPETH COUNTY
UNDERGROUND ) Appeal from the
WATER CONSERVATION DISTRICT
NO. 1, )
)
205th District Court
Appellee/Cross-Appellant, )
)
of Hudspeth County, Texas
v. )
) (TC# 3703-205)
CL MACHINERY COMPANY and )
CIMARRON
AGRICULTURAL, LTD., )
)
Appellees. )
O
P I N I O N
This appeal arises
from the implementation of groundwater regulations by Appellee Hudspeth County
Underground Water Conservation District No. 1 (Athe
District@) under
its purported statutory authority under Chapter 36 of the Texas Water
Code. On appeal, Appellant Guitar
Holding Company, L.P. (AGuitar
L.P.@)
contends the District exceeded its statutory authority under Chapter 36 when it
adopted new rules for transfer permits that discriminate against
similarly-situated landowners and rules for production permits that limit
production based on a specific historic use period. Guitar L.P. also complains that the District=s new transfer rules violate its equal
protection rights under the United
States and Texas Constitutions. In addition, Guitar L.P. claims that the
District violated its vested rights by considering its permit applications
under the new rules, rather than the old rules that were in effect when Guitar
L.P. initially filed its applications, an action that it asserts is contrary to
the Vested Rights Statute in Section 245.002 of the Texas Local Government Code.
In a limited cross-appeal, the District
challenges the trial court=s
denial of its attorney and expert fees, as well as the costs incurred in
preparing the administrative record, and the court=s
ruling in favor of Guitar L.P. on Guitar L.P.=s
claim for a refund of administrative fees.
The District also argues that the trial court erred in apportioning
partial court costs against the District. We affirm in part, and reverse and remand in
part.
FACTUAL
AND PROCEDURAL BACKGROUND
The Bone
Spring-Victorio Peak Aquifer (the ABS-VP
Aquifer@ or Athe Aquifer@)
produces groundwater for a region in west Texas
commonly referred to as the Dell Valley located in northeast Hudspeth County. Prior to 1947, the Dell Valley
area was primarily the site of cattle ranching.
However, in the years that followed, an intense irrigated agricultural
industry developed in the region, which led to a marked increase in the use of
its groundwater for irrigation purposes.
In the mid-1950s, the Hudspeth
County Commissioners Court, by a petition followed
by a confirmation election, created the District to conserve and protect the
BS-VP Aquifer. Irrigation pumpage in the
Dell Valley area peaked in the late 1970s,
during which time pumpage exceeded recharge, resulting in a decline in the
water table elevation for the BS-VP Aquifer.
During the 1980s, irrigation pumpage diminished somewhat and water
levels remained relatively constant, however, by the mid-1990s, water levels
once again faced a downward trend.
In 1990, the
District enacted Rules (Athe
1990 Rules@ or Aold Rules@),
which established a permitting system for drilling, equipping, or altering the
size of a well and a certification process for validating existing wells within
the district. Under the 1990 Rules, the
allowable rate for each water well within the district was limited to five
acre-feet of water per year, regardless of the proposed use of the water. However, the 1990 Rules placed stringent
restrictions on the transport of groundwater for use outside the district. In 1998, the Board of the District adopted
its groundwater management plan pursuant to Chapter 36 of the Texas Water
Code. The State Auditor=s Office audited the District=s implementation of its certified
groundwater management plan in 2000 and determined that the District had failed
to meet its plan objectives and thus, was Anot
operational@ and in
violation of the provisions of the Code.
By March 2002, the
District had developed a new management plan, which was later certified by the
Texas Water Development Board. According
to the 2002 management plan, the best available information suggests that
63,000 acre-feet per year is the long-term average amount of groundwater
available for consumptive use or transfer from the District from the BS-VP
Aquifer. Effective May 31, 2002, the
District repealed its 1990 Rules and adopted new rules (the A2002 Rules@)
regarding groundwater regulation within the district, which are now the subject
of this appeal.
Guitar L.P.=s history in the region began in 1924
when John Guitar, Sr. purchased over 52,000 acres of land in the Dell Valley. Between the 1940s and 1960s, many parts of
the Guitar family=s land
was irrigated, but since that time period, the land has been used primarily for
cattle ranching. In 2002, Guitar L.P.
was formed to manage the property, which today consists of approximately 38,296
acres, situated within the boundaries of the district. There are fifteen existing groundwater wells
on the property, nine of which Guitar L.P. asserts have been used for
irrigation purposes.
On May 14, 2002,
Guitar L.P. filed an application for validation certificates for the fifteen
existing wells, an application for fifty-two new water well drilling permits,[1]
and an application for a permit to transfer water. Despite Guitar L.P.=s
requests, the District processed its validation and transport permits under the
2002 Rules, not the 1990 Rules. After an
evidentiary hearing, the District issued validation and transport permits to
Guitar L.P., which, based on the production limits established under the 2002 Rules
that inter alia designate an existing and historic use period, resulted
in issuance of a validation permit for 57.96 irrigated acres, authorizing
annual production of between 174 and 232 acre-feet of water depending on the
level of the BS-VP Aquifer. The District
also issued a transport permit authorizing Guitar L.P. to transport its water
held under the validation permit out of the district. Appellees Cimarron Agricultural Ltd. (ACimarron@),
CL Machinery Company (ACLM@), the Rascoes, Robert L. Carpenter,
Gail Carpenter, and Triple B. Farms had also applied for validation and
transport permits, however, their permitted amounts of water production and its
subsequent transport were significantly greater than Guitar L.P.=s permits despite Guitar L.P.=s much larger property holdings within
the district. This was due to Appellees
prior use of groundwater during the designated existing and historic use period
under the 2002 Rules.
In four separate
administrative appeals to the 205th Judicial District Court of Hudspeth County,
Guitar L.P. challenged the facial validity of the District=s adoption of new rules regarding
production and transfer permits, raised an as-applied challenge to the validity
of groundwater permits the District issued to inter alia Appellees
Cimarron and CLM, and appealed the District=s
adverse actions on its own permit applications.
[Guitar I, Guitar II, and Guitar III]. In the fourth administrative appeal, Guitar
L.P. also raised an as-applied challenge to the validity of the groundwater
permits issued to Robert L. Carpenter, Gail Carpenter, and Triple B. Farms and
challenged the validity of the new rules.
[Guitar IV].
In the trial court=s final judgment entered on October 15,
2004, in the first three suits, consolidated under trial cause number 3703-205,
the court upheld the validity of the District=s
new rules, the validity of the permits to Cimarron and CLM, and application of
the new rules to Guitar L.P.=s
permit applications. However, with
regard to Guitar L.P.=s
permit applications, the court held in favor of Guitar L.P. on its claim for a
$9,399.34 refund of administrative fees in connection with administrative
proceedings before the District=s
board and denied attorney and expert fees in Guitar I-III. On March 11, 2005 under trial cause number
3790-205, the trial court rendered a final judgment in Guitar IV, which
upheld the validity of the District=s
new rules as well as the groundwater permits issued to the Carpenters and
Triple B. Farms, but denied attorney fees to any of the parties.
STATUTORY
AUTHORITY
In Issues One and
Three, Guitar L.P. challenges the validity of the District=s 2002 Rules regarding transfer permit
applications and production-based limitations for validation and operating permits,
arguing that the District exceeded its statutory authority under Chapter 36 of
the Texas Water Code.
Article 16,
section 59 of the Texas Constitution imposes on the Legislature the duty to
protect our state=s natural
resources. Tex.Const. art. XVI, '
59(a). Pursuant to Section 59(b),
the Legislature has the authority to create conservation districts to
accomplish Athe
purposes of this amendment to the constitution, which districts shall be
governmental agencies and bodies politic and corporate with such powers of
government and with the authority to exercise such rights, privileges and
functions concerning the subject matter of this amendment as may be conferred
by law.@ Tex.Const.
art. XVI, '
59(b). Consistent with the objectives of
Article 16, section 59, the Legislature has adopted Chapter 36 of the Texas
Water Code A[i]n
order to provide for the conservation, preservation, protection, recharging,
and prevention of waste of groundwater, and of groundwater reservoirs or their
subdivisions, and to control subsidence caused by withdrawal of water from
those groundwater reservoirs or their subdivisions . . . .@
Tex.Water Code Ann. ' 36.0015 (Vernon Supp. 2006). Thus, the Legislature has declared
groundwater conservation districts to be Athe
state=s
preferred method of groundwater management through rules developed, adopted,
and promulgated by a district in accordance with the provisions of this
chapter.@ Id.
Groundwater
conservation districts are political subdivisions of the state. See Tex.Water
Code Ann. '
36.001(15); see also Bennett v. Brown County Water Improvement Dist. No. 1,
272 S.W.2d 498, 500 (Tex.
1954). As such, groundwater conservation
districts have only such powers as are expressly granted by the statute and
those powers that are necessarily implied in order to carry out the express
powers given. See Harris
County Water
Control and Imp. Dist. No. 58 v. City of Houston, 357 S.W.2d 789, 795
(Tex.Civ.App.--Houston 1962, writ ref=d
n.r.e.), citing Tri‑City Fresh Water Supply District No. 2 of
Harris County v. Mann, 135 Tex. 280, 284, 142 S.W.2d 945, 947
(1940)(holding that the district had no authority to issue bonds and levy taxes
for fire protection equipment or a sewerage system where no such powers were
expressly delegated to the district by the statute and such functions could not
be implied from the powers expressly conferred in the statute); see also In
re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004); Subaru of America,
Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002).
Standard
of Review
In order to
determine whether the District has exceeded its statutory authority under
Chapter 36, we must construe the relevant statutory provisions contained within
the chapter. Statutory construction is a question of law subject to de novo review. See Bragg v. Edwards Aquifer Auth., 71
S.W.3d 729, 734 (Tex. 2002); Johnson v.
City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). In construing a statute, our primary
objective is to ascertain and give effect to the Legislature=s intent. See In re Entergy Corp., 142 S.W.3d at
322; Tex. Dep=t of Transp. v. Needham,
82 S.W.3d 314, 318 (Tex.
2002). We look first to the statute=s plain and common meaning; if the
statutory language is unambiguous, we will interpret the statute according to
its plain meaning. In re Entergy
Corp., 142 S.W.3d at 322. However,
if the statute is ambiguous, we then consider other matters to ascertain the
Legislature=s intent,
including the objective of the law, the legislative history, and the
consequences of a particular construction.
See Tex.Gov=t Code Ann. '
311.023 (Vernon 2005); McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). The reviewing court Awill
not give an undefined statutory term a meaning that is out of harmony or
inconsistent with other provisions in the statute.@ McIntyre, 109 S.W.3d at 745. Since questions of statutory interpretation
are questions of law, we are not bound by an agency=s
construction of a statute and no presumption of validity attaches to it. See Entex, a Div. Of Reliant Energy
Resources Corp. v. Railroad Comm=n
of Texas,
18 S.W.3d 858, 862 (Tex.App.--Austin 2000, pet. denied). Further, an agency=s
interpretation is entitled to serious consideration, only if the agency=s construction of its statute is
reasonable and does not contradict the statute=s
plain language. See id.; see
also Continental Cas. Co. v. Downs, 81 S.W.3d 803, 807 (Tex. 2002).
GROUNDWATER
REGULATION STATUTORY PROVISIONS
The Legislature
has expressly granted certain rule-making powers to groundwater districts. In accordance with Section 36.101(a) of the
Water Code:
A district may
make and enforce rules, including rules limiting groundwater production based
on tract size or the spacing of wells, to provide for conserving, preserving,
protecting, and recharging of the groundwater or of a groundwater reservoir or
its subdivisions in order to control subsidence, prevent degradation of water
quality, or prevent waste of groundwater and to carry out the powers and duties
provided by this chapter.[2]
Tex.Water Code Ann.
' 36.101(a).
A district is
required to consider all groundwater uses and needs during the rule-making
process and must develop rules which are fair and impartial. See Tex.Water
Code Ann. ' 36.101(a).
Further, the
Legislature has mandated that groundwater districts implement a permitting
system Afor the
drilling, equipping, operating, or completing of wells or for substantially
altering the size of wells or well pumps.@[3] Tex.Water
Code Ann. '
36.113(a). Section 36.116 provides a
district with statutory authority to regulate by rule the production of
groundwater by: setting production limits on wells; limiting the amount of
water produced based on acreage or tract size; limiting the amount of water
that may be produced from a defined number of acres assigned to an authorized
well site; limiting the maximum amount of water that may be produced on the
basis of acre-feet per acre or gallons per minute per well site per acre; or
any combination of the methods listed above . . . .[4] Tex.Water
Code Ann. '
36.116(a)(2)(A)-(D), (F). In addition,
the statute formerly provided that: A[i]n promulgating any rules limiting
groundwater production, the district may preserve historic use before the
effective date of the rules to the maximum extent practicable consistent with the
district=s
comprehensive management plan under Section 36.1071.@[5] Acts of 2001, 77th Leg., R.S., ch. 966, ' 2.50, 2001 Tex.Gen.Laws 1991, 2015-16 [hereinafter ATex.Water
Code Ann. ' 36.116(b)(2001)@].
Before determining
whether to grant or deny a permit, the district must consider inter alia: whether the proposed use of water
unreasonably affects existing groundwater and surface water resources or
existing permit holders; whether the proposed use of water is dedicated to any
beneficial use; and whether the proposed use of water is consistent with the district=s certified water management plan. Tex.Water
Code Ann. '
36.113(d). Further, the statute formerly
provided that when granting a permit, the district may impose more restrictive
permit conditions on new permit applications and increased use by historic
users if the limitations:
(1) apply to all subsequent new permit
applications and increased use by historic users, regardless of type or
location of use;
(2) bear a reasonable relationship to the
existing district management plan; and
(3) are reasonably necessary to protect
existing use.[6]
Acts of 2001, 77th Leg., R.S., ch.
966, ' 2.49,
2001 Tex.Gen.Laws 1991, 2015
[hereinafter ATex.Water Code Ann. ' 36.113(e)(2001)@].
If a permit
application or a permit amendment proposes the transfer of groundwater outside
of a district=s
boundaries, the district may promulgate rules requiring a person to obtain a
permit or permit amendment under Section 36.113 for the transfer of groundwater
out of the district. See Tex.Water Code Ann. ' 36.122(a), (b). Except as provided in Section 36.113(e), the
district may not impose more restrictive permit conditions on transporters than
the district imposes on existing in-district users. Tex.Water
Code Ann. '
36.122(c). When reviewing a proposed
transfer of groundwater out of the district, subsection (f) of Section 36.122
requires a district to consider:
(1) the availability of water in the
district and in the proposed receiving area during the period for which the
water supply is requested;
(2) the projected effect of the proposed
transfer on aquifer conditions, depletion, subsidence, or effects on existing
permit holders or other groundwater users within the district; and
(3) the approved regional water plan and
certified district management plan.
Tex.Water Code Ann.
' 36.122(f).
Under the statute,
a district cannot adopt rules expressly prohibiting the export of groundwater,
but it may limit a permit issued under Section 36.122 if the conditions in
subsection (f) warrant the limitation, subject to Section 36.122(c). See Tex.Water
Code Ann. ' 36.122(f),
(g), and (o). Further, in applying
Section 36.122, a district Amust
be fair, impartial, and nondiscriminatory.@
Tex.Water
Code Ann. '
36.122(q).
DISTRICT
RULES
Under its 2002
Rules, the District requires an operating permit or validation permit to
withdraw or produce water from a non-exempt well or for the substantial
altering of the size or capacity of a non-exempt well. District
Loc. Rule 6.1(a). Operating
permits are granted based upon surface acreage owned or controlled by an
applicant and are available to those who have no validation permit covering the
same acreage. District Loc. Rules 6.10, 6.11. In granting or denying such permits, the
District considers factors which are consistent with those outlined in Section
36.113(d). District Loc. Rule 6.11.
Under the Rules, operating permit holders are entitled to withdraw up to
4.0 acre-feet of water per acre based on the degree to which the Aquifer=s average water elevation is greater
than 3,580 feet. District Loc. Rule 3.5(c)(2).
Operating Permits are entitled to no water allocation if the Aquifer
level is 3,580 feet or less. District Loc. Rule 3.5(c)(2).
In contrast,
validation permits take into account existing and historic use of groundwater
in the district. District Loc. Rule 6.12(a).
Existing and historic use for irrigation purposes is based on the amount
of acres irrigated during the existing and historic use period, which the
District has defined as the period running from January 1, 1992 to May 31,
2002, and the average water elevation of the BS-VP Aquifer.[7] District
Loc. Rules 1.1, 6.12(f), 6.12(h)(1).
For all other non-exempt uses, the existing and historic use of
groundwater is determined by the maximum amount of water beneficially used in
any one calendar year during the existing and historic use period. District
Loc. Rule 6.12(h)(2). Validation
permit holders are entitled to 4.0 acre-feet of water per acres of existing and
historic irrigated land for in-district irrigation if the Aquifer level is
greater than 3,570 feet. District Loc. Rule 3.5(c)(1). In the event the average water elevation is
less than 3,560 feet, the District by resolution can establish a 3.00 acre-feet
per acre per year water allocation for all validation permits of existing and
historic use. District Loc. Rule 3.5(4)(A).
When the average water elevation is less than 3,570 feet, the water
allocation for uses other than irrigation, is a pro-rata reduction of the
amount recognized in validation permits of existing and historic use. District
Loc. Rule 3.5(4)(B).
The District
requires a transfer permit in order to transfer any groundwater produced or
withdrawn within the district, and such permits are only available to
applicants who hold either validation permits or operating permits.[8] District
Loc. Rule 6.13(j). The water
allocation for transfer permits is linked to the amount allocated under the
underlying validation or operating permits.
District Loc. Rule
3.7. Transfer permit water allocation is
one hundred percent of the amount specified in the underlying permit if issued
for non-exempt uses other than irrigation.
District Loc. Rule
3.7(2). Otherwise, the water allocation
for a transfer permit is subject to a leaching fraction (the amount of water
that percolates back to the BS-VP Aquifer) reduction equal to 0.30 of the
volume of irrigation water applied to the land.
District Loc. Rules 3.7,
1.1
ISSUES
ON APPEAL
On appeal, Guitar
L.P. attacks the District=s
2002 Rules regarding water allocation for transfer permits, which none of the
parties dispute is integrally linked to the allowable groundwater production
the District permits under a landowner=s
underlying validation or operating permit.
First, Guitar L.P. asserts that the District=s
transfer rules are impermissible under Section 36.113(e) because the linkage of
a landowner=s
allocation of groundwater for transfer purposes to the amount of water that is
allocated under a validation or operating permit imposes Amore restrict permit conditions@ on holders of operating permits and
non-Aexisting
and historic irrigated land@
(AEHIL@)
validation permits who wish to transfer water outside the district. Relatedly, Guitar L.P. also challenges the
District=s
statutory authority to implement the production limitations that form the basis
of the underlying permitting system, which undisputedly favor prior use of
groundwater for irrigation purposes based on the ten and one-half year period
designated by the District. We will
address this latter issue first.
As we stated
above, Section 36.116 authorizes the District to regulate the production of
groundwater, enumerating a number of acceptable methods for production-based
limitations. See Tex.Water Code Ann. ' 36.116(a)(2)(A)-(D) & (F). Guitar L.P. contends that none of the
provisions allow a district to impose production limits based upon existing and
historic use during a specific period.
However, we believe that it is clear that the District=s regulatory scheme for production
limits is based on a combination of the methods listed in the statute, namely,
setting production limits on wells, limiting the amount of water based on
acreage, and limiting the maximum amount of water that may be produced on the
basis of acre feet per acre. See Tex.Water Code Ann. ' 36.116(a)(2)(A)-(D) & (F). The District=s
authority to designate an existing and historic use period in order to protect
historic use within its permitting scheme firmly rests in Section
36.116(b). We find that the plain
language of Section 36.116(b) permits the District to preserve historic use in
promulgating any rules limiting groundwater production to the maximum
extent practicable consistent with the district=s
management plan.[9] See Tex.Water
Code Ann. '
36.116(b)(2001). Therefore, the District
has not exceeded its statutory authority to regulate groundwater production by
establishing a permitting system that protects historic use of groundwater by
allocating production limitations based on a landowner=s
groundwater use during a historic use period that pre-dates the effective date
of the District=s rules.
Guitar L.P.,
however, also challenges the District=s
authority to designate a specific historic use period under Section
36.116(b). Specifically, Guitar argues
that the District=s Ageneral@
authority to preserve historic irrigation does not constitute clear authority
for the District to set production limits that preserve only irrigation use
which occurred during a ten and one-half year historic period. We agree, of course, that the statute does
not create a specific period for which a district Amay
preserve historic or existing use before the effective date of the rules . . .,@ however, such a mandate would most
certainly be untenable given the diverse needs that must be addressed by
groundwater resources management among the State=s
local districts. See Tex.Water Code Ann. ' 36.116(b)(2001); Tex.Water Code Ann. ' 36.0015, '
36.101(a), ' 37.1071(a);
see also Railroad Comm=n
of Texas v. Lone Star Gas Co., 844 S.W.2d 679, 687 (Tex. 1992)(by
conferring upon an agency the power to promulgate rules and regulations
necessary to carry out the purposes of an act, the Legislature forecloses the
argument that it intended to spell out the details of regulating the industry). The Legislature has provided local
groundwater districts with the flexibility to designate a historic use period,
in relation to its management plan, and, by necessity, impliedly authorized the
District to define what constitutes the Ahistoric
use@ to be protected.[10]
Tangentially,
Guitar L.P. also asserts that the historic use period adopted by the District
fails to preserve historic use Ato
the maximum extent practicable@
given the region=s history
of irrigation which dates back to the 1940s.
The record on appeal, however, provides ample evidence that the District
has attempted to preserve historic irrigation use to the maximum extent
practicable, including evidence that:
current consumptive use of the BS-VP Aquifer is unsustainable, with
63,000 acre-feet per year as the long-term average amount of groundwater
available, thus requiring all users to reduce their consumption; the Aquifer
recovered during decreased use during the 1980s; and that throughout most of
the designated historic use period the BS-VP Aquifer was within the elevation
of 3,570 to 3,580 feet found to be sustainable.
Therefore, we reject this portion of Guitar L.P.=s
challenge, as well as its overall challenge that the District exceeded its
statutory authority under Chapter 36 when it adopted rules regarding production
limitations that consider a landowner=s
prior use of groundwater for irrigation purposes during a specific historic use
period.
We turn next to
Guitar L.P.=s contention
that the District exceeded its authority under Chapter 36 when it adopted
transfer rules that are not authorized by Section 36.113(e) because they impose
more restrictive permit conditions on non-EHIL landowners and are arbitrary and
discriminatory. Essentially, Guitar L.P.
attacks the District=s
linkage of a landowner=s
allocation of groundwater under a validation or operating permit to the amount
of his groundwater allocation for transfer purposes, and in so arguing, claims
that this linkage imposes a Amore
restrictive permit condition@
within the meaning of Section 36.113(e) that applies only to non-EHIL
landowners.
We first address
Guitar L.P.=s
indirect challenge to the District=s
authority to link its issuance of transfer permits to a landowner=s production permits. Section 36.122 governs the transfer of
groundwater outside of a district=s
boundaries. See Tex.Water Code Ann. ' 36.122. As we previously noted, under Section
36.122(a), if a Section 36.113 permit application or permit amendment proposes
the transfer of groundwater outside a district=s
boundaries, the district may also consider the provisions of Section 36.122 in
determining whether to grant or deny the permit or permit amendment. Tex.Water
Code Ann. '
36.122(a). The statute clearly
authorizes a groundwater district to promulgate rules requiring a landowner to
obtain a permit or permit amendment for the transfer of groundwater out of the
district. See Tex.Water Code Ann. ' 36.122(a), (b). However, except as provided in Section
36.113(e), the district may not impose more restrictive permit conditions on
transporters than the district imposes on existing in-district users. Tex.Water
Code Ann. '
36.122(c). By its plain language, the
statute authorizes a district to establish a separate permit for water
transfers, but it also permits a district to consider the provisions in
Section 36.122 when determining whether to grant or deny any permits under
Section 36.113 generally. See Tex.Water Code Ann. '' 36.122(a), 36.113(a). Thus, there is nothing in Section 36.122 that
requires a district to issue a transfer permit independently or without
considering its determinations under a landowner=s
production permit.
Relying on Section
36.113(e), Guitar L.P. contends that the linkage of transfer permit groundwater
allocation to a landowner=s
groundwater allocation under his validation or operating permit imposes Amore restrictive permit conditions@ on holders of operating permits and
non-EHIL validation permits who wish to transfer their water out of the
district. That is, it asserts, the
different criteria or terms that landowners must satisfy to obtain validation
and operating permits are carried forward when they apply for transfer permits,
and as a result are, in effect, Arestrictive@ conditions that do not apply to EHIL
landowners. By Adifferent
criteria@ or Aterms@
we understand Guitar L.P. to be arguing that the District=s determination of historic irrigation
groundwater use during the designated ten and one-half year existing and
historic use period is the restrictive condition. We conclude, however, that Guitar L.P.=s reliance on Section 36.113(e) as the
basis of its attack on the District=s
transfer provisions is misplaced.
As we noted
before, Section 36.113 governs the permitting of wells. Tex.Water
Code Ann. '
36.113(a). When granting or denying a
permit, the district must consider inter alia: whether the proposed use
of water unreasonably affects existing groundwater and surface water resources
or existing permit holders; whether the proposed use of water is dedicated to
any beneficial use; and whether the proposed use of water is consistent with
the district=s
certified water management plan. See
Tex.Water Code Ann. ' 36.113(d). Former Section 36.113(e) provided that:
The district may impose more
restrictive permit conditions on new permit applications and increased use by
historic users if the limitations:
(1) apply to all subsequent new permit
applications and increased use by historic users, regardless of type or
location of use;
(2) bear a reasonable relationship to the
existing district management plan; and
(3) are reasonably necessary to protect
existing use.
Tex.Water Code Ann.
' 36.113(e)(2001).
In essence, Guitar
L.P. argues that because no landowner had ever transferred water outside the
District at the time the 2002 Rules were adopted, all of the transfer permit
applications the District considered were Asubsequent
new permit applications@
for the purposes of Section 36.113(e)(1) and therefore, the District=s rules which link a non-EHIL landowner=s groundwater allocation for transfer
purposes to the amount allowable by his underlying validation or operating
permit (which is substantially less than the allocation awarded to EHIL
farmers), constitutes a more restrictive transfer permit condition that is not
applied to EHIL farmers=
transfer permit applications. Guitar
L.P. contends that District=s
transfer rules are thus impermissible under Section 36.113(e).
We conclude,
however, that Section 36.113(e) is not applicable in this case. When read in the context of the other
provisions within Section 36.113, it is readily apparent that Subsection (e)
merely functions as a protective measure, by which the Legislature has granted
groundwater districts express authority to alter its permitting systems to
impose Amore,@ that is, additional, restrictive
permit conditions on new permit applications and increased use by
historic users, subject to certain qualifications listed in Subsection
(e)(1)-(3) if future circumstances arise that warrant adjustments. We must agree with the District that this
statutory provision serves as a safety valve for groundwater districts, in that
it authorizes a district in later phases of groundwater regulation to Astep up@
its regulatory efforts in order to conserve and protect its groundwater
resources.[11] Therefore, assuming, without deciding that
having to satisfy the criteria for issuance of an underlying validation or
operating permit, which presumably is a permit that offers EHIL-like water
allocation, is a Arestrictive
permit condition@ for
non-EHIL transfer permit applicants, we find that Section 36.113(e) does not
come into play until a district decides to require more, and perhaps tighter,
restrictions within its permitting system to new applicants or to historic
users who seek to increase their use. We
find it of little import that as Guitar L.P. asserts in this case, no landowner
had ever transferred water outside the district. We decide that this fact, standing alone,
simply does not make all transfer permit applications Asubsequent
new permit applications@
under the District=s
existing permitting system. We agree
with the District that Section 36.113(e) does not address front-end
distinctions between the types of permits issued under the District=s current regulatory scheme for local
groundwater development and conservation.
Given this conclusion, we need not reach Guitar L.P.=s specific arguments regarding Section
36.113(e)(3). Issues One and Three are
overruled.
EQUAL
PROTECTION
In its second
issue, Guitar L.P. argues that both facially and as-applied to Guitar L.P., the
District=s
transfer rules violate its right to equal protection under the United States
and Texas Constitutions because they treat Guitar L.P. differently than other,
similarly-situated landowners. See
U.S. Const. amend. XIV, ' 1; Tex.
Const. art. 1, '
3.
Standard
of Review
We review Guitar
L.P.=s equal
protection challenge to the District=s
transfer rules under a rational basis test.
See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440,
105 S.Ct. 3249, 3254‑55, 87 L.Ed.2d 313 (1985); see also City of New
Orleans v. Dukes, 427 U.S. 297, 303‑04, 96 S.Ct. 2513, 2516‑17,
49 L.Ed.2d 511 (1976); Barshop v. Medina Cty. Underground Water Conservation
Dist., 925 S.W.2d 618, 631‑32 (Tex.
1996). Under this test, the District=s regulatory classification need only
be rationally related to a legitimate state purpose or interest to survive an
equal protection challenge. See City
of Cleburne, 473 U.S. at 439-40, 105 S.Ct. at 3254; Barshop,
925 S.W.2d at 631.
Essentially,
Guitar L.P.=s equal
protection challenge rests on its claim that the District=s transfer rules grant preferential
treatment to EHIL farmers, that is, landowners who irrigated their land during
the ten and one-half year historic use period, because they receive greater
allocations of groundwater by virtue of their underlying validation permits
over non-EHIL landowners who hold either validation or operating permits, which
respectively entitle them to comparably smaller allocations based on prior
non-irrigation historic use or no allocation until the BS-VP Aquifer reaches a
certain average water elevation. Guitar
L.P. asserts that EHIL farmers and non-EHIL landowners are similarly situated
because neither class of landowner has ever transferred water outside the
District. Moreover, Guitar contends that
the classification in the District=s
transfer rules, which is based on the application of the historic use period,
is not rationally related to any legitimate governmental purpose. We must ultimately disagree.
The Texas
Constitution mandates that the Legislature preserve and conserve the natural
resources of this state. See Tex.Const. art. 16, ' 59.
Pursuant to Article 16, section 59(b), Legislature has created
groundwater districts, which it has determined are the state=s preferred method of groundwater
management. Tex.Water Code Ann. '
36.0015. The Legislature requires that a
district develop a comprehensive management plan in accordance with Section
36.1071. According to the District=s management plan, 63,000 acre-feet per
year is the long-term average amount of groundwater available for consumptive
use or transfer from the District from the BS-VP Aquifer, 63,000 acre-feet is
the long-term average amount of groundwater recharge from lateral inflow, and
approximately 27,000 acre-feet of recharge results from deep percolation of
irrigation water. The plan states that
the Far West Texas Approved Regional Water Plan has determined that total
maximum groundwater production in the Dell Valley
aquifer system needs to be equivalent with recharge in order to maintain a
balance. In terms of groundwater supply
management, the plan provides that the District will manage groundwater
production from the BS-VP Aquifer in a Asustainable
manner@ and that
it will Aidentify
and engage in such practices, that if implemented, would result in more
efficient use of groundwater.@ As previously mentioned, the plan states as
its management objective for natural resources as follows:
The amount of groundwater withdrawals
permitted by the District shall be consistent with the long-term sustainable
amount of recharge to the portion of the aquifer within the District and to
protect the historical and existing uses of groundwater withdrawn from the
portion of the Bone Spring-Victorio Peak aquifer located within the District.
The District=s operating and validation permitting
rules protect historic use of groundwater for irrigation purposes while taking
into account the average water elevation of the BS-VP Aquifer in groundwater
production and withdrawal. We think that
is undeniable. See District Loc. Rules 6.10, 6.12,
3.5. In order to implement what we find
to be a production permitting scheme that is based on legitimate state
purposes, namely, limiting groundwater withdrawals in a sustainable manner
while protecting historical and existing uses of that groundwater, the District
implemented the disputed ten and one-half year existing and historic use period. Given the integral role this historic period
plays in affecting the District=s
legitimate goals, we must likewise conclude that the designated historic period
is rationally related to the District=s
preservation goals.
Having determined
that the underlying production permitting system is rationally related to a
legitimate governmental purpose, we turn to the remainder of Guitar L.P.=s equal protection challenge. The crux of Guitar L.P.=s complaint is that for transfer
permitting, the District has no rational basis for discriminating between
otherwise similarly-situated landowners in order to protect the Aquifer or to
protect historic use of groundwater for irrigation purposes because EHIL
landowners have by that point effectively converted their historic type of use
by requesting a transfer permit to export their groundwater allocation outside
the district.
As previously
discussed, the District requires all landowners to obtain a transfer permit in
order to transfer any groundwater produced or withdrawn within the
district. District Loc. Rule 6.13(j).
It also requires that transfer applicants hold either validation or
operating permits. District Loc. Rule 6.13(j). These rules apply to all landowners
alike. The problem, however, is that
water allocation for transfer permits is determined by the amount allocated
under the underlying production permit. See
District Loc. Rule 3.7. Thus, the non-EHIL/EHIL classification that
Guitar L.P. protests occurs at the earlier production limitations phase of
permitting. Consequently, the transfer
rules do not Agive@ greater allocations of groundwater to
EHIL landowners than what is allocated to other landowners, but rather the
transfer rules incorporate the production limitations that are already
legitimately in place. Despite Guitar
L.P.=s
contentions, the District=s
decision to adopt the pre-established groundwater production and withdrawal
limitations does further the District=s
legitimate goal of limiting annual groundwater withdrawals for all non-exempt
wells as the primary means of protecting the average water elevation level of
the BS-VP Aquifer in a sustainable manner.[12]
Finally, Guitar
L.P. also complains that the transfer rules allow EHIL landowners to Aconvert their existing use of
groundwater for irrigation purposes to future transfer uses without satisfying
any additional permitting conditions and without regard to the water level of
the BSVP Aquifer.@ However, the District=s
transfer permit rules subject historic irrigation users to a leaching fraction
reduction equal to 0.30 of the volume of the irrigation water that would have
been applied to the land. See District Loc. Rule 3.7, 1.1. This restriction is certainly in keeping with
the District=s goal of
protecting the BS-VP Aquifer by maintaining its level of recharge, despite the
inevitable loss of some irrigation groundwater within the district for
out-of-district use. See Tex.Water Code Ann. ' 36.122 (the district may not adopt
rules expressly prohibiting the export of groundwater). Because the District=s
transfer permit rules do not deprive Guitar L.P. of equal protection under the United States
and Texas Constitutions, we overrule Issue Two.
VESTED
RIGHTS STATUTE
In Guitar L.P.=s fourth issue, it contends that the
District violated its vested rights by considering its permit applications
under the District=s 2002
Rules rather than its 1990 Rules that were in effect at the time Guitar L.P.
filed its applications. Specifically,
Guitar L.P. asserts that former Section 245.002(a) of the Texas Local
Government Code required that the District consider its groundwater permit
applications under the 1990 Rules.
Former Section
245.002(a), Uniformity of Requirements, contained in Chapter 245 of the Local
Government Code provided that:
Each regulatory agency shall consider
the approval, disapproval, or conditional approval of an application for a
permit solely on the basis of any orders, regulations, ordinances, rules,
expiration dates, or other properly adopted requirements in effect at the time
the original application for the permit is filed.
Acts of 1999, 76th Leg., R.S., ch.
73, ' 2, 1999 Tex.Gen.Laws 431, 432, now codified at Tex.Loc.Gov=t
Code Ann. '
245.002(a)(Vernon 2005).
With certain
exceptions, Chapter 245 applies only to a project in progress on or commenced
after September 1, 1997. See Tex.Loc.Gov=t
Code Ann. ''
245.003, 245.004. (Vernon 2005). AProject@ is defined as Aan
endeavor over which a regulatory agency exerts its jurisdiction and for which
one or more permits are required to initiate, continue, or complete the
endeavor.@ See id. at '
245.001(3). A Aregulatory
agency@ means Athe governing body of, or a bureau,
department, division, board, commission, or other agency of, a political
subdivision acting in its capacity of processing, approving, or issuing a
permit.@ Id.
at ' 245.001(4).
Guitar L.P. argues
that its Aproject@ triggered the protections of Section
245.002 because it A>endeavored=,
among other things, to validate its existing wells and to transport water
outside the boundaries of the District.@ Further, Guitar L.P. asserts that the
District Aextert[ed]
jurisdiction@ over its
endeavor by assuming jurisdiction over the permit applications, which were
required to complete their endeavor.
In their reply,
Appellees CLM and Cimarron argue that Chapter
245 does not apply to groundwater regulation, but rather it is a general
statute regulating the permitting process for certain types of real estate
development and building projects and has only limited applicability. See Save Our Springs Alliance
v. City of Austin,
149 S.W.3d 674, 683 (Tex.App.‑-Austin 2004, no pet.)(stating that the
Legislature created a system of rights concerning the issuance of land-use
permits in Chapter 245 to require each regulatory agency A>to
consider the approval, disapproval, or conditional approval=@
of individual applications for permits based upon the land‑use
regulations A>in effect at the time the original
application for the permit is filed=@).
We are inclined to agree with this argument, but only to the extent that
a groundwater district has not adopted rules requiring a permit involving
improvement or development of land, or land use generally. But, we do not need to reach this issue or
the related issue of whether Guitar L.P.=s
purported project falls within the purview of Chapter 245 because any
applicability of Chapter 245 in this case is superseded by Chapter 36 of the
Water Code.
The Legislature
has specified that Chapter 36 Aprevails
over any other law in conflict or inconsistent with this chapter, except any
special law governing a specific district . . . .@ Tex.Water
Code Ann. ' 36.052
(Vernon 2000). In this case, application
of Chapter 245 would be inconsistent with Chapter 36 because it would require
the District to apply old rules that are no longer valid and that otherwise
conflict with the regulatory requirements mandated under Chapter 36, as amended
in 1997 and 2001. For example, Chapter
36 requires the District to develop a comprehensive management plan to address,
as applicable: provision of the most
efficient use of groundwater; control and prevention of groundwater waste;
control and prevention of subsidence; conjunctive surface water management
issues; drought conditions; and conservation.
Tex.Water Code Ann. ' 36.1071. Under Chapter 36, a district must adopt rules
necessary to implement the management plan.
Tex.Water Code Ann. ' 36.1071(f). Further, before granting or denying a permit,
the District must consider whether Athe
proposed use of the water is consistent with the district=s certified water management plan.@
Tex.Water Code Ann. ' 36.113(d)(4); see also Tex.Water Code Ann. ' 36.122(f)(3)(AIn
reviewing a proposed transfer of groundwater out of the district, the district
shall consider . . . the approved regional water plan and certified district
management plan.@). None of the District=s
1990 Rules regarding well permitting or groundwater transfer are keyed to the
District=s
management plan, which as previously discussed, requires that the amount of
groundwater withdrawals permitted must be consistent with the long-term
sustainable amount of recharge to the BS-VP Aquifer.
Likewise, the
District=s old
rules regarding out-of-district groundwater transfer violate the regulatory
requirements mandated by Chapter 36.
Section 36.122(c) prohibits the District from imposing more restrictive
permit conditions on transporters than on in-district users. See Tex.Water
Code Ann. '
36.122(c). The old rules, however, do
just that. In particular, old District
Rule 3.024(10) provided that:
Such [transport] application shall not
be approved unless the Board of Directors finds and determines that the
transporting of water for use outside the District applied for will not
substantially affect the quantity and quality of water available to any person
or property within the District; that all other feasible sources of water
available to the person requesting a permit have been developed and used to the
fullest; that no other liquid could be feasibly substituted for the use of
fresh ground water; and that the proposed use, or any part of the proposed use
will not constitute waste as defined under the laws of the State of Texas. In evaluating the application, the District
shall consider the quantity of water proposed to be transported; whether the
ultimate destination of the water is within the recharge zone of the aquifer,
thus promoting recharge of the aquifer; the term for which the transporting is
requested; the safety of the proposed transportation facilities with respect to
the contamination of the aquifer; the nature of the proposed use; whether the
withdrawal of the groundwater requested is reasonable; whether such withdrawal
is contrary to the conservation and use of groundwater; whether the use of the
water to be transferred is for beneficial purposes; whether alternative
supplies are available; whether the transfer will negatively affect the surface
and groundwater users near the proposed well sites; and such transfer is not
otherwise detrimental to the public welfare.
See District
Loc. Rule 3.024(10)(1990).
None of these
onerous requirements applied to in-district users. Subsection 10 of old District Local Rule
3.024 clearly conflicts with Section 36.122(c).
Guitar L.P. argues that even if this conflict exists, only those
provisions in old Rule 3.024 that squarely conflict with Section 36.122 would
be invalid and the remaining provisions would survive because the 1990 Rules
include a severability clause. See
District Loc. Rule
5.001(a)(1990)(Athe
invalidity does not affect other provision or applications of the rule which
can be given effect without the invalid provision or application . . . .@).
Generally, when a
statute contains a provision of severability, that provision prevails in
interpreting the statute. See Tex.Gov=t Code Ann. '
311.032(a)(Vernon 2005). However, a
severability clause will save the valid provisions of an otherwise invalid
statute only if the remaining valid portion is capable of being executed in
accordance with the apparent legislative intent independently of the invalid
portion of the statute. See Board of
Trustees of Emp. Retirement System of Tex. v. Farrar, 236 S.W.2d 663, 666
(Tex.Civ.App.--Austin), affirmed by, 150 Tex. 572, 243 S.W.2d 688 (Tex.
1951)(even if an act contains a severability clause, if the valid and invalid
portions of an act are so interwoven that they cannot be separated so as to
leave a complete act capable of being executed in accordance with the
legislative intent, the entire act is invalid).
Likewise under contract law, when the provision of an agreement to be
severed is integral to the entire agreement, a severability clause, standing
alone, cannot save the agreement. See
John R. Ray & Sons, Inc. v. Stroman, 923 S.W.2d 80, 87 (Tex.App.‑-Houston
[14th Dist.] 1996, writ denied). In this
case, subsection 10 of the District=s
old Rule 3.024 plainly states that no transport application will be approved
unless the District=s board
makes the requisite findings contained in subsection 10, making the
remaining provisions of the rule
inextricably intermingled to compliance with this invalid portion. See District
Loc. Rule 3.024(10)(1990).
Therefore, we reject Guitar L.P.=s
contention that the District=s
old Rule 3.024 does not conflict with the mandatory requirements of Section
36.122.
We determine that
Chapter 36 more specifically governs the duties and powers of groundwater
districts and that application of Chapter 245 in this case would be wholly
inconsistent with the mandatory regulatory requirements contained in Chapter
36. Under these circumstances, Chapter
36 supersedes Chapter 245 and controls over the District=s
application of its 2002 Rules in determining Guitar L.P.=s
pending permit applications. See
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000)(under traditional statutory
construction rules, the more specific statute controls over the more
general). Issue Four is overruled.
THE
DISTRICT=S
CROSS-APPEAL
By cross-appeal,
the District raises three issues, in which it contends the trial court erred:
in denying its request for attorney and expert witness fees and other incurred
costs; in ruling in favor of Guitar L.P. on its claim for a partial refund of
administrative fees; and in assessing 25 percent of the court costs
against the District.
The District
argues that the trial court=s
failure to order Guitar L.P. to pay the District=s
stipulated attorney and expert witness fees, as well as its costs in preparing
the administrative record for filing with the trial court, is contrary to the
plain directive of Section 36.066(g). We
agree.
Section 36.066(g)
provides, in pertinent part:
If the district
prevails in any suit other than a suit in which it voluntarily intervenes, the
district may seek and the court shall grant, in the same action, recovery for
attorney=s fees,
costs for expert witnesses, and other costs incurred by the district before the
court. The amount of the attorney=s fees shall be fixed by the court.
Tex.Water Code Ann.' 36.066(g).
Guitar L.P.
asserts that Section 36.066(g) is limited to qualifying Asuits@ and that as a matter of statutory
construction, Section 36.066(g) does not apply to suits, such as this case,
which are, in effect, administrative appeals.
In so arguing, Guitar L.P. points to Section 36.102(d), which provides
for attorney fees in any suit to enforce its rules and argues that if the
District is correct, the mandatory award under Section 36.102(d) is mere
statutory surplusage. See Tex.Water Code Ann. ' 36.102(d). Guitar L.P. claims that because Section
36.102(d) applies to a Asuit
to enforce [a water district=s]
rules,@ it
follows that Section 36.066(g) cannot apply to every type of suit to which the
District may be a party. Therefore,
harmonizing Section 36.066(g) and Section 36.102(d) requires the Court to
determine the type of suit to which Section 36.066(g) applies. According to Guitar L.P., Section 36.066(g)
is limited to the types of suits mentioned within Section 36.066, not judicial
challenges to the rules or appeals of administrative rule-making and
adjudicatory decisions, as Guitar L.P. describes this case.
Here, Guitar L.P.
filed suit to challenge the validity of the District=s
rules after all its administrative appeals to the District were final.[13] By its plain reading, there is nothing in
Section 36.066(g) that limits the type of Asuits@ for which the District can seek and
recover its attorney fees, expert witness costs, and other costs. Moreover, nothing in the provision excludes
the suits described in Section 35.251.
This construction of Section 36.066(g) is not inconsistent with other
provisions in Chapter 36, including Section 36.102(d). Indeed, Section 36.102(d) merely clarifies
that the District may recover these costs in the enforcement proceedings
described in Section 36.102. Further, as
the District rightly points out, it would not be a redundant provision in all
cases, for example, a district may voluntarily intervene in another action,
like a citizen=s suit
under Section 36.119 for the purpose of enforcing its rules. Under that circumstance, voluntarily
intervening in a suit would preclude attorney=s
fees under Section 36.066(g), but such fees would be recoverable under Section
36.102(d). Thus, we conclude Section
36.066(g) clearly applies to Guitar L.P.=s
suit and is mandatory.
Applying Section
36.066(g), the District asserts that it should be treated as the prevailing
party in the consolidated cases because the trial court ruled in its favor as
to Guitar L.P.=s
principal challenges. Specifically, the
District asserts that it won outright on the merits in Guitar I, II,
and IV and in Guitar III (Guitar L.P.=s
administrative appeal challenging the Board=s
decision to grant its permit applications), the District prevailed on the
principal issue of the case, that is, whether the District legally applied its
rules to Guitar L.P.=s
permit application, and prevailed in the bulk of Guitar L.P.=s challenges to the District=s fee assessments against it. In reply, Guitar L.P. asserts that even if
Section 36.066(g) applies, the District did not wholly prevail in all of the
appeals, arguing that because Section 36.066(g) does not contain any language
that would allow the District to recover its attorney fees in a case where it Asubstantially prevails@ or Aprevails
on any disputed issue,@
then it may only recover attorney fees if it prevails in the entire suit.
Courts have
typically described a Aprevailing
party@ as the
party to a suit that either successfully prosecutes the action or successfully
defends against it, prevailing on the main issue. See Flagship Hotel, Ltd. v. City of Galveston,
117 S.W.3d 552, 564-65 (Tex.App.--Texarkana 2003, pet. denied); Hawkins v.
Ehler, 100 S.W.3d 534, 544 (Tex.App.--Fort Worth 2003, no pet.); F.D.I.C.
v. Graham, 882 S.W.2d 890, 900 (Tex.App.--Houston [14th Dist.] 1994, no
writ). Thus, the prevailing party is the
party vindicated by the judgment rendered.
See Brown v. Fullenweider, 135 S.W.3d 340, 347
(Tex.App.--Texarkana 2004, pet. denied), citing Dear v. City of Irving, 902 S.W.2d
731, 739 (Tex.App.--Austin 1995, writ denied).
Clearly, the main issue
in the litigation between the parties was the validity of the District=s rules and its permit decisions. The trial court rendered a judgment in favor
of the District on all of Guitar L.P.=s
claims, with the exception of ordering a partial refund of administrative fees,
which Guitar L.P. had incurred during the permitting proceedings. The District was without doubt the prevailing
party in the litigation as it successfully defended against Guitar L.P. on the
main issues of the four cases brought by Guitar L.P.
Guitar L.P.,
however, argues that the District waived any complaint about attorney fees
because it failed to segregate those fees among the four separate cases in the
trial court. Specifically, Guitar L.P.
claims that the District had a duty to segregate the fees among the cases
because each appeal involved a unique set of facts and issues. We disagree.
Generally, the
party seeking to recover attorney=s
fees carries the burden of proof and must show that the fees were incurred on a
claim that allows recovery of such fees and, thus, is ordinarily required to
segregate fees by claim when there are multiple claims which may or may not
allow the recovery of such fees. See
Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 10-11 (Tex. 1991); Z.A.O.,
Inc. v. Yarbrough Drive Ctr. Joint Venture, 50 S.W.3d 531, 550‑51
(Tex.App.‑-El Paso 2001, no pet.).
However, in this case, the District was entitled to recover attorney
fees as to all of the claims Guitar asserted, not just some of them. Therefore, it had no duty to segregate the
fees. Even if the District was under a
duty to segregate, there is a recognized exception to the duty to segregate
fees when the attorney=s
fees rendered are in connection with multiple claims arising out of the same
transaction. Sterling, 822 S.W.2d at 11. When the
claims are dependent upon the same set of facts or circumstances and thus are A>intertwined
to the point of being inseparable,=
the party suing for attorney=s
fees may recover the entire amount covering all claims.@ Id.
at 11. Here, the claims asserted inter
alia the validity of the District=s
rules, the particular challenges to the District=s
permit application decisions in application of its rules, and fee assessment
challenges, were substantially interrelated and arose from similar facts and
theories of law. We conclude the
District=s
attorney and expert witness fees could not have been practicably segregated
among the cases. For the reasons stated
above, the District was entitled to recover the stipulated attorney and expert
witness fees.
In its brief, the
District also contends that it is entitled to recover the cost of copying the
administrative record that was filed with the district court as part of its Aother costs@
under Section 36.066(g). Guitar L.P.
asserts in response that costs associated with the administrative record are
not Acourt
costs,@
therefore the District cannot recover these costs under Section 36.066(g). To support its contention, Guitar L.P. relies
on City of Manvel v. Texas Dep=t
of Health Resources, 573 S.W.2d 825 (Tex.Civ.App.--Beaumont 1978, writ ref=d n.r.e.), in which the Court held that
costs of producing the administrative record in an administrative appeal are
not to be treated as assessable court costs.
Further, Guitar L.P. claims that Acosts@ is a term of art that specifically
means Acourt
costs@ and that
Section 36.066(g) should not be read as to expand its meaning. Under Guitar L.P.=s
interpretation, Aother
costs@ in
Section 36.066(g) is limited to Acourt
costs,@ which
does not include the costs of producing the administrative record. We find Guitar L.P.=s
argument unpersuasive and its reliance on City of Manvel misplaced. In City of Manvel, the state agency sought to
recover the cost of preparing the administrative record under Tex.R.Civ.P. 131. See
City of Manvel,
573 S.W.2d at 828. The City of Manvel Court
found that Rule 131 Acosts@ did not extend to administrative
record preparation in the absence of statutory language directing
otherwise. See id. at
828-29. Unlike City of Manvel, the statute
at issue here expressly provides for other costs. By its plain language, Section 36.066(g)
would include all other costs, without limitation to costs incurred at the
trial court level. Therefore, we agree
that in this case, the District was entitled to recover the cost of preparing
the administrative record for filing with the district court. Because the trial court erred in failing to
award the District its reasonable attorney fees and expert witness fees, as
well as the other costs it incurred in preparing the administrative record for
court filing, pursuant to Section 36.066(g), we sustain the District=s first cross-issue.
In its next
cross-issue, the District argues that the trial court=s
order in Guitar III that it refund Guitar L.P. $9,399.34 in
administrative fees is contrary to substantial evidence in the administrative
record that supports the District=s
assessment of its administrative fees against Guitar L.P. in the permitting
proceedings.
Section 36.253
provides for review of a groundwater district=s
decisions under the substantial evidence rule.
See Tex.Water Code Ann.
' 36.253; see also Tex.Gov=t Code Ann. '
2001.174 (Vernon 2000). Under the
substantial evidence rule, the reviewing court is not to substitute its
judgment on the weight of the evidence for that of the agency=s.
City of El Paso
v. Pub. Util. Comm=n,
883 S.W.2d 179, 185 (Tex.
1994); see also Tex. Gov=t Code Ann. ' 2001.174. The agency=s
order is presumed valid and the complaining party bears the burden of showing
that it was not supported by substantial evidence. Id.; Hammack
v. Public Util. Comm=n
of Texas,
131 S.W.3d 713, 725 (Tex.App.‑-Austin 2004, pet. denied). AAt
its core, the substantial evidence rule is a reasonableness test or a rational
basis test@; if the
order is reasonable, we do not concern ourselves with its correctness. City of El Paso, 883 S.W.2d at 185, citing
Railroad Comm=n
of Texas v. Pend Oreille Oil & Gas Co., 817 S.W.2d 36, 41 (Tex.
1991). The substantial evidence review
requires A>only more than a mere scintilla=@
to uphold the order. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000).
That is, the evidence may actually preponderate against the agency=s decision, yet amount to substantial
evidence, if some reasonable basis exists in the record for the agency=s action. City of El Paso, 883 S.W.2d at 185.
Under Section
36.205(a), a district may set fees for administrative acts of the district,
such as filing applications. See Tex.Water Code Ann. ' 36.205(a). Fees set by a district may not unreasonably
exceed the cost to the district of performing the administrative function for
which the fee is charged. Id. The District has established rules on
assessment of administrative fees pursuant to the authority granted in Section
36.205(a). Specifically, District Local
Rule 8.1 authorizes the Board to set reasonable fees for administrative acts
such as reviewing and processing permits and conducting permit hearings, as
long as the fees do not unreasonably exceed the cost to the District for such
matters. District Loc. Rule 8.1.
Rule 8.4 requires an applicant whose validation, operational, or
transfer permit has been determined to be administratively complete by the
Board to deposit with the District an amount determined by the Board to cover
the cost associated with an uncontested or contested hearing regarding the
permit. District Loc. Rule 8.4.
This advance deposit Ashall
be sufficient to pay for the cost of public notices, legal fees, expert fees,
hearing facility rental fees, and other expenses.@ Id. The remaining deposit balance, if any, is
refundable following approval of the permit.
Moreover, the applicant may be required to deposit additional funds if
the amount of the original deposit is expended prior to the Board=s action on the permit. Id.
In this case,
Guitar L.P. claimed that the District undercredited Guitar L.P. $5,600 in
deposits and overcharged Guitar L.P. $3,720.44 in expenses, for a total of
$9,320.44.[14] Guitar L.P. contends the trial court rightly
determined that there was no substantial evidence to support the District=s refusal to refund these under-credits
and overcharges.
First, Guitar L.P.
claims that it was entitled to a $5,600 credit for two Adeposits@ it made on October 29, 2002 and on
November 1, 2002, for $4,300 and $1,300, respectively. However, the record clearly showed that these
amounts were paid to the District as flat fees to administratively process
Guitar L.P.=s two
permitting applications. Because these
were flat fee amounts, not deposits to a Adeposit
account,@ as
Guitar L.P. claims, Guitar L.P.=s
contention concerning under-crediting is without merit.
Next, Guitar L.P.
claims that in the underlying bills related to the permitting proceedings, the
District improperly assessed some of its attorney and expert consultant fees
against Guitar L.P. Guitar L.P. argues
that it was overcharged $1,358.73 ($450 and $908.73) for the attorney fees the
District incurred for attorney Renea Hicks.
The record shows that the District had agreed at the administrative
level that Guitar L.P. was overcharged $450 for Hicks=
May 2003 statement, and this amount was subsumed in later assessable fees and
expenses for Hicks= services
in 2004, which amounted to $1,820.30.
Guitar L.P. also claims an overcharge of $908.73, arguing that Hicks= December 26, 2003 statement shows that
he only worked a total of 0.7 hours for the District and that this work was not
attributable to administrative matters.
However, Hicks=
December 26, 2003 statement attached to General Manager Randy Barker=s affidavit provides evidence that
Hicks performed 3.7 hours on Guitar L.P.=s
administrative proceedings, which with related expenses totaled $908.73. With regard to Guitar L.P.=s complaint about overcharges in the
amounts of $71.33, $256.60, and $949.77 for the District=s
fees incurred for attorney Timothy Brown=s
work, there is evidence in the record to support the total costs assessed for
his services, namely Brown=s
cover letters which designated the attributable parties.
Finally, Guitar
L.P.=s claim
of overcharges for Al Blair=s
services to the District is also without merit.
Blair=s
invoices plainly show that the District incurred the disputed amounts of
$609.01 and $475, which were attributable to Guitar L.P.=s
administrative proceedings. We decline
to accept Guitar L.P.=s
tortured comparative reading of Blair=s
invoices and Brown=s
statements for their services over the same time period. Because Guitar L.P. failed to show there was
a lack of substantial evidence regarding the District=s
assessment of fees against Guitar L.P. at the administrative level, the trial
court erred in ordering the $9,399.34 refund.
Cross-Issue Two is sustained.
In its third and
final cross-issue, the District argues that the trial court erred in assessing
25 percent of the court costs against the District because it was the
successful party in Guitar I-III.
Specifically, the District contends that Guitar L.P. should have paid
all the court costs and that the trial court failed to find good cause for
apportioning the court costs as required by Rule 141 of the Texas Rules of
Civil Procedure.
Absent an abuse of
discretion, the trial court=s
assessment of costs will not be reversed.
Seelbach v. Clubb, 7 S.W.3d 749, 764 (Tex.App.--Texarkana 1999,
pet. denied). Rule 131 of the Texas
Rules of Civil Procedure provide that A[t]he
successful party to a suit shall recover of his adversary all costs incurred
therein . . . .@ Tex.R.Civ.P.
131. Under Rule 141, the trial court Amay, for good cause, to be stated on
the record, adjudge the costs otherwise than as provided by law or these rules.@
Tex.R.Civ.P. 141. We find that the District has failed to
preserve its issue regarding taxation of costs because it failed to make a
timely objection. See Tex.R.App.P. 33.1(a)(1). Relying on City of Irving v. Dallas/Forth
Worth Int=l Airport
Bd., 894 S.W.2d 456 (Tex.App.--Fort Worth 1995, writ denied), the District
argues that Rule 131 establishes its entitlement to costs and thus, no motion
is required in order for them to be awarded.
Indeed, the City of
Irving Court held that Rule 131 entitles the
prevailing party to an award of costs regardless of whether they moved for
them. City of Irving, 894 S.W.2d at 470-71. City of Irving, however, is silent on
the waiver issue presented here. We
conclude that the District has waived its complaint on the trial court=s adjudication of costs. Cross-Issue Three is overruled.
For the reasons
stated above, we reverse the trial court=s
judgments as to the denial of the District=s
attorneys= fees,
expert witness fees, and other costs and as to the partial refund order in the
amount of $9,399.34 for administrative costs and remand the cases to the trial
court for further proceedings consistent with this opinion. In all other respects, the trial court=s judgments are affirmed.
August
31, 2006
DAVID WELLINGTON
CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
[1]
Pursuant to an existing Rule 11 Agreement of the parties, Guitar L.P.=s drilling permits are not at issue in
this appeal.
[2]
Every groundwater district must develop a comprehensive management plan and
must adopt rules necessary to implement the management plan. See Tex.Water
Code Ann. ' 36.1071(a),
(f).
[3]
An exemption applies to wells used solely for domestic use or for providing
water for livestock or poultry on a tract of land larger than 10 acres that is
either drilled, completed or equipped so that it is incapable of producing more
than 25,000 gallons of groundwater a day.
See Tex.Water Code Ann.
' 36.117(b)(1). Further a district cannot restrict the
production of any well that is exempt from permitting under Subsection
b(1). Id. at '
36.117(c).
[4]
In 2005, the Legislature also added Amanaged
depletion@ as an
allowable method for production limitation.
Acts of 2005, 79th Leg., R.S., ch. 970, '
12, 2005 Tex.Gen.Laws 3247, 3258,
now codified at Tex.Water Code Ann.
' 36.116 (a)(2).
[5]
Section 36.116(b) has been amended effective September 1, 2005, to state as
follows: AIn
promulgating any rules limiting groundwater production, the district may
preserve historic or existing use before the effective date of the rules to the
maximum extent practicable consistent with the district=s
comprehensive management plan under Section 36.1071 and as provided by Section
36.113.@ Acts of 2005, 79th Leg., R.S., ch. 970, ' 12, 2005 Tex.Gen.Laws 3247, 3580, now codified at Tex.Water Code Ann. ' 36.116(b).
[6]
In 2005, the Legislature amended Section 36.113(e), substituting Apermit amendment applications to
increase@ for Aincreased.@ Acts of 2005, 79th Leg., R.S., ch 970, ' 10, 2005 Tex.Gen.Laws 3247, 3256-57, now codified at Tex.Water Code Ann. ' 36.113(e).
[7]
Groundwater use for ranching is protected by exemption of wells for this
purpose. Thus, ranchers can continue to
use groundwater produced by their wells for their existing purposes without
having to undergo the permitting process or have their consumption
reduced. See District Loc. Rule 7 (giving these
wells the highest priority in the system).
[8]
The rules provide that a transfer permit application can be submitted and
considered concurrently with an application for a validation permit, an
operating permit or amendment to such permits.
District Loc. Rule
6.13(k).
[9]
In its management plan, the District determined that the annual amount of
groundwater being consumptively used within the District in 2001 was estimated
to be 75,600 acre-feet. The best
available information, however, suggested that 63,000 acre-feet per year is the
long-term average amount of groundwater available for consumptive use or
transfer from the District from the BS-VP Aquifer. The plan=s
objectives include the goal that the District will manage the production of
groundwater from the BS-VP Aquifer within the District in a sustainable
manner. Specifically, the plan states
that the management objective is as follows:
AThe
amount of groundwater withdrawals permitted by the District shall be consistent
with the long-term sustainable amount of recharge to the portion of the aquifer
within the District and to protect the historical and existing uses of groundwater
withdrawn from the portion of the Bone Spring-Victorio Peak aquifer located
within the District.@ See also Tex.Water Code Ann. ' 36.1071(f)(AThe district shall adopt rules
necessary to implement the management plan.@).
[10]
Although not controlling here, we do note that the Legislature has recently
amended Chapter 36, defining AEvidence
of historic or existing use@
to mean Aevidence
that is material and relevant to a determination of the amount of groundwater
beneficially used without waste by a permit applicant during the relevant time
period set by district rule that regulates groundwater based on historic use.@
Acts of 2005, 79th Leg., R.S., ch. 970, '
2, 2005 Tex.Gen.Laws 3247,
3249-50, now codified at Tex.Water Code
Ann. '
36.001(29).
[11]
Moreover, this interpretation is consistent with provisions contained within
Section 36.122, which permit a district to promulgate rules requiring a person
to obtain a transfer permit or permit amendment under Section 36.113 to
transfer groundwater out of the district on or after March 2, 1997 under a new
arrangement, but prohibit a district from imposing more restrictive permit
conditions on transporters than those imposed on existing in-district users, except
as provided in Section 36.113(e). See
Tex.Water Code Ann. ' 36.122(a)-(c).
[12]
We also note that the District=s
decision is also consistent with Section 36.122(f), which provides:
In reviewing a proposed transfer of
groundwater out of the district, the district shall consider:
(1) the availability of water in the
district and in the proposed receiving area during the period for which the
water supply is requested;
(2) the projected effect of the proposed
transfer on aquifer conditions, depletion, subsidence, or effects on existing permit
holders or other groundwater users within the district; and
(3) the approved regional water plan and
certified district management plan.
Tex.Water Code Ann. '
36.122(f); see also Tex.Water
Code Ann. '
36.122(g), (k).
[13]
Section 36.251, Suit Against District:
A person, firm, corporation, or association
of persons affected by and dissatisfied with any provision or with any rule or
order made by a district is entitled to file a suit against the district or its
directors to challenge the validity of the law, rule, or order. The suit shall be filed in a court of
competent jurisdiction in any county in which the district or any part of the
district is located. The suit may only
be filed after all administrative appeals to the district are final. Tex.Water Code Ann.' 36.251.
[14]
Guitar L.P. concedes that the total of all its alleged under-credits and
overcharges is less than the amount the District was ordered to refund. Also, Guitar does not challenge the District=s fee structure for permitting
applications nor does it challenge the District=s
method of assessing its attorney and expert consultant fees in the permitting
process.
| {
"pile_set_name": "FreeLaw"
} |
187 F.2d 703
BURTON et al.v.KATZMAN et al.
No. 10251.
United States Court of Appeals, Seventh Circuit.
March 7, 1951.
J. Homer Andreas, Edward J. Hess, Chicago, Ill., for appellant.
Maurice J. Walsh, John Gannon, Chicago, Ill., for appellee.
Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
MAJOR, Chief Judge.
1
These are appeals from two judgments, each entered June 28, 1950, in separate actions for the recovery of rental charges received by the defendants in violation of the provisions of the Housing and Rent Act of 1947 as amended, Title 50 Appendix U.S.C.A. 1891, et seq. Rex Junior Burton and Olive Burton, his wife, as tenants, are plaintiffs in one of the actions, and Thomas F. Walsh and Joan Walsh, his wife, also as tenants, are plaintiffs in the other. The defendants, as the owners or agents of the accommodations in question, are the same in each case. The cases in the District Court were consolidated and tried together; consequently, they come to this court in the same manner.
2
The basis of the charge in each case is that plaintiffs were required by the defendants as a condition to the rental of the accommodations to purchase furniture at a price of $2,500, that this requirement was made without the written consent of the Housing Expediter and that the sale of furniture was not made in the ordinary or usual course of business or trade. The District Court found that the fair market value of the furniture sold by the defendants to the Walshes was not more than $1,537.82, and the fair market value of that sold to the Burtons was not more than $1,666.80. In conformity with the decision of this court in Small v. Schultz, 173 F.2d 940, the court determined the overcharges in each case as the difference between the amount paid for the furniture and its fair market value as found, and rendered judgment for three times such amount. The Walsh judgment also includes some other small items not in dispute, and each of the judgments includes an award of attorney fees for the plaintiff in the amount of $375.
3
Two contentions are presented: (1) that the court erred in determining the fair market value of the furniture purchased by the respective plaintiffs, and (2) in any event, there was no proper basis in either case for a judgment against the defendant Minnie Katzman King, either as an individual or in her capacity as trustee.
4
A brief statement of the facts will suffice. During the period material to these cases, defendant King individually and as trustee under a certain designated trust was the owner of an apartment building and authorized to lease and receive rentals for the apartments contained therein, including apartments 1-B and 3-A, those leased to the respective plaintiffs. Defendant Theodore Katzman was a brother of defendant King and it was he with whom the plaintiffs had their dealings in the rental of the apartments and the purchase of the furniture. It also appears that he was the owner of the furniture and that it was located in the apartments in question. Defendant King was a licensed real estate broker in the State of Illinois and operated more than one hundred apartments, including those involved in the instant suits. Defendant Katzman advertised the apartments for rent and the furniture for sale. There is no question but that plaintiffs were required to purchase the furniture as a condition precedent to the rental of the apartments. And it appears plain that the apartments, as well as the furniture, were advertised by Katzman with the knowledge and approval of King. Also, she had knowledge when she approved the two leases that the tenants had been required by Katzman to purchase the furniture in order to obtain the accommodations. True, plaintiffs' dealings were with Katzman. The furniture was purchased from and the checks given in payment therefor made payable to him. However, at the time such checks were given, each of the plaintiffs was required to pay one month's rent in advance and the checks for such rent were made payable to King as owner, and thereafter, rental payments were made directly to her.
5
Defendants' position appears to be that King is not liable because there is no proof that she profited by the transaction, that is, that she had any interest in the furniture or the proceeds derived from its sale. We doubt if that is material, and certainly it is not determinative of the question of her liability. As owner she not only had control of the accommodations and their leasing but knowledge that Katzman was selling the furniture in connection therewith. He was her agent in the rental of the accommodations, and we know of no reason why she should not be held accountable for his activities. Particularly is this so in view of her knowledge that he was selling the furniture in connection with such rentals. Furthermore, she ratified the acts of her agent in selling the furniture as a condition to the renting of the apartments by accepting rent from such tenants, the first payment of which was made to Katzman in connection with and at the time he received payment for the furniture.
6
As to the value of the furniture, there was dispute as to whether it was new or second-hand. Plaintiff Walsh fixed the value of the furniture which he purchased at about $500, and plaintiff Burton of that which he purchased at from $600 to $700. Perlstein, a dealer in second-hand furniture who examined it some two years after it was purchased, placed a value upon the Walsh furniture of $792, and on the Burton furniture of $703.45. Defendant Katzman testified that he had been in the furniture business all his life and that the Burton furniture cost him $1,666.80, and the Walsh furniture $1,537.82. The trial court fixed the fair market value at the amounts thus testified to by Katzman. The trial judge stated in effect that in fixing such values he was giving defendants the benefit of all doubt. We agree that he did. Based on the testimony of Katzman that the value which he placed upon the furniture was the cost price to him and that there was an ordinary mark-up of 100% in furniture sales, it is argued that the court should have fixed the fair market value at double the amount which was found. There is no merit in this contention. While the evidence as to the fair market value is not as satisfactory as it might be, defendants are in no position to complain when the court fixed the value at the highest figure mentioned by any witness.
The judgments appealed from are
7
Affirmed.
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