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846 F.2d 727
6 U.S.P.Q.2d 1719, 25 Fed. R. Evid. Serv. 954
The B.V.D. LICENSING CORPORATION, Appellant,v.BODY ACTION DESIGN, INC., Appellee.
No. 87-1646.
United States Court of Appeals,Federal Circuit.
April 28, 1988.
Oliver P. Howes, Nims, Howes, Collison & Isner, New York City, argued, for appellant. With him on the brief was William K. Guild. Also on the brief was Joyce M. Russell, Bowling Green, Ky., of counsel.
Stewart J. Bellus, Kuhn & Muller, New York City, argued, for appellee. With him on the brief was Perla M. Kuhn.
Before RICH, Circuit Judge, NICHOLS, Senior Circuit Judge, and NIES, Circuit Judge.
RICH, Circuit Judge.
1
The July 2, 1987, decision of the Patent and Trademark Office Trademark Trial and Appeal Board (board) dismissing opposition No. 72,022 to the registration of the mark shown below as a trademark for "men's, women's and children's clothing--namely, blouses, pants, jackets, dresses, shirts, undergarments, socks and footwear," application Serial No. 493,403, filed August 6, 1984, claiming first use on July 5, 1984, is affirmed.
2
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
3
Opposer, The B.V.D. Licensing Corporation, relies on its ownership and use of its unquestionably famous trademark B.V.D. or BVD, many times registered in various forms for the same class of goods as those named in the opposed application to register. Fourteen registrations issued from 1906 to 1983 are relied on herein. There is no priority issue as B.V.D. has been in use since 1876 and registered under the Trademark Act of 1905 since 1906, as evidenced by the many registrations of record.
4
The sole issue, as stated by the board, is whether opposer's and applicant's marks so resemble one another, the goods being at least in large part identical, that confusion is likely. 15 U.S.C. Sec. 1052(d). The board thought not. We agree with that conclusion though not with most of the board's reasoning in arriving at it.
5
The board proceeded on the assumption that opposer had to prove the fame of its mark by evidence in this proceeding. BVD, in our view, is, to most Americans at least, among which we count ourselves, practically a household word synonymous, primarily, with underwear for men. Opposer's registrations show it has been extended, during the past couple of decades, to the opposite sex. Webster's Third New International Dictionary (1971) contains the entry "B.V.D. * * * trademark--used for underwear." The Random House Dictionary of the English Language (1967) has this item: "B.V.D. Trademark. a suit of men's underwear, esp. a pair of undershorts. Also, BVDs. Cf. skivvy." Under "skivvy" is a cross-reference to "B.V.D." When a trademark attains dictionary recognition as a part of the language, we take it to be reasonably famous. (Webster has similar listings for "Kodak" and "Levi's.") See Coca Cola Co. v. Gemini Rising, Inc., 346 F.Supp. 1183, 1187 n. 1, 175 USPQ 56, 58 n. 1 (E.D.N.Y.1972), referring to a statement in The Business Lawyer of November 1971 that "B.V.D.," along with "Coca Cola" and "Singer," is one of "the three most-recognized trademarks in the world." The focus here, however, is not primarily on fame but on likelihood of confusion. Fame will be assumed. Courts may take judicial notice of facts of universal notoriety, which need not be proved, and of whatever is generally known within their jurisdictions. Brown v. Piper, 91 U.S. (1 Otto) 37, 42, 23 L.Ed. 200 (1875). To that end, dictionaries and encyclopedias may be consulted. United States v. Merck & Co., 8 Ct.Cust.Appls. 171 (1917). Fed.R.Evid. 201(b) and (f). We judicially notice the fact that within our jurisdiction, which is the whole United States, the B.V.D. trademark is at least widely, if not universally, known.
6
BVD or B.V.D. has arguable similarities to B A D that are too obvious for discussion. The practical question is whether they are significant. It also has differences which we will discuss. We give no weight to the argument of desperation that an "A" when inverted bears some resemblance to a "V". The purchasing public, we believe, does not indulge in such recognitional contortions but sees things as they are. It will not read an A for a V and, seeing an A between a B and a D will react to it as the common word "bad," not as a copy or simulation or suggestion of the well-known mark B.V.D. If that recognition makes no sense in the context in which the mark is observed, the viewer, if of the right generation, might think it was intended to mean good, as argued by applicant, a dictionary-recognized slang use of which we were not previously aware. On the other hand, seeing the periods, we believe it would be a normal and therefore common reaction to the symbol to think the letters must be the initials for some commercial entity other than opposer. Considering the norms of the commercial uses of company initials, we cannot imagine that applicant, Body Action Design, Inc., would put its mark into use without in some way associating it with what it is intended to convey, namely, the origin of the goods in that company whose initials constitute the major portion of the mark (all but the raised periods).
7
The fame of a mark cuts both ways with respect to likelihood of confusion. The better known it is, the more readily the public becomes aware of even a small difference. BVD has that well-known quality which would trigger the observer to notice at once that B A D, with or without the periods in either mark, is a different symbol. Consider the similar ruling, dismissing an opposition, by our predecessor court in Gulf States Paper Corp. v. Crown Zellerbach Corp., 417 F.2d 795, 57 CCPA 720, 163 USPQ 589 (1969), where the owner of the mark "E-Z", which is recognizable as the word "easy" in meaning and sound, failed to prevail in the attempt to prevent registration of "CZ". The court held the marks are not confusingly similar, one judge on a 5-judge court dissenting. The discerning, of course, could see that "CZ" stood for Crown Zellerbach.
8
For the above reasons, we agree that the opposition was properly dismissed. The decision of the board is
9
AFFIRMED.
10
NICHOLS, Senior Circuit Judge, concurring.
11
I join in the court's opinion. In view of the use made therein of the concept of judicial notice, I am particularly glad to see it. Judicial notice gets quite a workout in TTAB appeals, but it is not acknowledged as often as it should be. With so little at stake in the grant or refusal of a trademark or service mark registration, it is often not worthwhile to fill the record with proofs of every fact a court might wish to take into account. Judicial notice fills the gaps. It is just as well for a judicial author to say so when he is doing this, and every now and then to take a side glance at Fed.R. of Evid. 201 to be sure he is using judicial notice correctly. It is available at the appellate level, even if not used by the trial tribunal, and may support or undermine that tribunal's conclusions. Rule 201(f). It is particularly needed when the issue is "likelihood of confusion." To what extent can we resort to our "gut feeling" to supply evidence of what consumers will think falsely that is not in the record? By the Advisory Committee's notes, it must be "beyond reasonable controversy." We cannot use a debatable supposed fact to bootstrap ourselves to a dubious conclusion.
12
Amalgamated Bank of New York v. Amalgamated Trust & Savings Bank, 842 F.2d 1270 (Fed.Cir.1988), by another panel than this one, illustrates what I consider the proper use and misuse of judicial notice. We invoked by judicial notice what we supposed we, and everyone else, knew about how the banking business is conducted in this Year of Our Lord 1988. We professed not to know how "consumers," i.e., customers of banks get to be customers, as well as bankers do, so we would not substitute a contrary view for that of bankers, that identity of name does not by itself produce confusion. Actually, around the corner from our courthouse, on the same block of 15th Street, N.W., are two large full-service banks, independent of one another, but both using the word "American" in their names. If that produced customer confusion, it would seem they would do something about it. The temptation to point this out was resisted, as it does seem to be pushing judicial notice too far to draw conclusions from what might be an atypical situation. What if, however, there had been nothing else to go on? Arguably, if the parties on both sides fail to offer evidence on a relevant point, they stipulate by implication that the court will decide it by judicial notice.
13
It would be proper to take judicial notice that a lot of deregulation of banks had occurred in recent years, and that some of it has made a lot of difference to customers, for example the availability of interest on checking accounts. It would be all wrong to determine that deregulation has put customers' bank deposits at a greater risk of loss. It was all wrong for the board to say that deregulation had effected such changes that experienced absence of customer confusion in the past had no bearing on whether such confusion would be experienced in the future. In the absence of any showing of any item of deregulation that could have a bearing on confusion as to a bank's identity, this was a controversial inference, and because controversial, a misuse of judicial notice.
14
The importance of Rule 201 cannot be underestimated in light of the numerous cases in which questions of appropriate use of judicial notice arise. I am pleased with the panel opinion's reference to so undermentioned a rule.
15
NIES, Circuit Judge, dissenting.
16
I dissent. If the trademark sought to be registered were the word "BAD", I would agree with the majority's affirmance. However, the mark is not the word "BAD" nor is it displayed as a word. The mark is comprised of the initials of applicant's corporate name and is displayed B.A.D, that is, the letters are separated by periods or dots.
17
The record in this case amounts to little more than the application file and the numerous registrations of opposer for the mark B.V.D. Nevertheless, the record is sufficient to prove opposer has long-established, prior rights in B.V.D. for essentially the same goods sold under applicant's B.A.D mark. I agree with the majority that judicial notice may be taken that B.V.D. is a famous mark for underwear.
18
Applying the principles established by our precedent leads me to conclude that the prior registrations for the B.V.D. mark preclude registration of B.A.D because there is a likelihood of confusion between the marks as used for identical or closely related goods. Lanham Act Sec. 2(d), 15 U.S.C. Sec. 1052(d) (1982).
19
It is a basic principle that marks must be compared in their entireties for purposes of determining likelihood of confusion, not dissected into their component parts. See, e.g., Joseph Schlitz Brewing Co. v. Houston Ice & Brewing Co., 250 U.S. 28, 29, 39 S.Ct. 401, 401, 63 L.Ed. 822 (1919) (Holmes, J.) ("It is a fallacy to break the fagot stick by stick."); Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d 669, 672, 223 USPQ 1281, 1282-83 (Fed.Cir.1984). The reason for this principle is that the average purchaser, at least of low-cost shelf goods such as those involved here, is unlikely to perceive specific details of a mark. Colgate-Palmolive Co. v. Purex Corp., 451 F.2d 1401, 1402, 59 CCPA 741, 742, 172 USPQ 176, 176 (1971). Accordingly, our precedent has noted that purchasers have particular difficulty in distinguishing between combinations of letters. See, e.g., Crystal Corp. v. Manhattan Chem. Mfg. Co., 75 F.2d 506, 508, 22 CCPA 1027, 1029, 25 USPQ 5, 6 (1935); 2 J. McCarthy, Trademarks & Unfair Competition Sec. 23:13, at 75 (2d ed. 1984). See generally Vitamin Corp. v. American Home Prods. Corp., 166 F.2d 203, 35 CCPA 952, 76 USPQ 611 (1948) (mark "VCA" confusingly similar to mark "I.V.C.").
20
Second, it is another well established principle that likelihood of confusion may not be judged upon a side-by-side comparison of the marks. See, e.g., Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007, 58 CCPA 972, 974, 169 USPQ 39, 40 (1971); 2 J. McCarthy Sec. 23:17, at 98. I believe the majority does not follow that principle. The majority presumes that the purchasing public will actually see that B. A.D is not B.V.D. because B.V.D. is well-known. In reality, the opposite is true. What happens is that a purchaser is less likely to perceive differences from a famous mark. All that is needed is a suggestion of such mark to trigger a mental perception that it is the famous mark. Purchasers simply do not take the time to study the marks and see the differences. Nor are they expected to. See Specialty Brands, 748 F.2d at 675, 223 USPQ at 1284 (fame important to likelihood of confusion inquiry because public may exercise less care in purchasing product under a famous name); 1 J. Gilson, Trademark Protection & Practice Sec. 5.03, at 5-21 (1987) ("Consumers under actual product selection circumstances rarely analyze trademarks minutely or compare their various elements."); 2 J. McCarthy Sec. 23:15, at 81.
21
Third, applicant argues, and the majority agrees, that purchasers will pronounce B. A.D as the word "BAD". There is no evidence how the public articulates B. A.D. Indeed, no evidence exists indicating how applicant itself pronounces its mark, whether as initials or as a word. Thus, under our precedent, it must be presumed that the mark will be pronounced either as initials or as a word. See Barton Mfg. Co. v. Hercules Powder Co., 88 F.2d 708, 710, 24 CCPA 982, 984, 33 USPQ 105, 107 (1937) (no "correct" pronunciation of a mark). Moreover, the derivations of the marks are of no particular significance. See Aerojet-General Corp. v. Computer Learning & Sys. Corp., 170 USPQ 358, 362 (TTAB 1971) (fact that letter marks are acronyms derived from different words unimportant because average purchaser probably unaware of derivation); 1 J. Gilson Sec. 5.02, at 5-18.
22
Finally, in close cases, all doubts must be resolved in favor of the prior user. See Geigy Chem., 438 F.2d at 1008, 58 CCPA at 975, 169 USPQ at 40; 2 J. McCarthy Sec. 23:21, at 106. As we have stated and restated:
23
The law has clearly been well settled for a longer time than this court has been dealing with the problem to the effect that the field from which trademarks can be selected is unlimited, that there is therefore no excuse for even approaching the well-known trademark of a competitor, that to do so raises "but one inference--that of gaining advantage from the wide reputation established by appellant in the goods bearing its mark," and that all doubt as to whether confusion, mistake, or deception is likely is to be resolved against the newcomer, especially where the established mark is one which is famous and applied to an inexpensive product bought by all kinds of people without much care.
24
Planters Nut & Chocolate Co. v. Crown Nut Co., 305 F.2d 916, 924-25, 50 CCPA 1120, 1128-29, 134 USPQ 504, 511 (1962) (footnote omitted); Specialty Brands, 748 F.2d at 674, 676, 223 USPQ at 1284, 1285 (court "compelled" to resolve doubts in favor of famous, established mark against newcomer, quoting Planters Nut ). That guideline should be applied here to protect a famous mark from encroachment with the unfortunate consequence that long-established rights will be narrowed. Because of this decision permitting encroachment by the mark B. A. D, B.V.D. is in a weaker position to assert rights against other similar marks. Under the majority's analysis, B. E.D, B. I.D, B. O.D, and B. U.D for underwear are also registrable because they also might be perceived as words.
25
This case brings to mind the oft-quoted truism: "[F]ew would be stupid enough to make exact copies of another's mark or symbol. It has been well said that the most successful form of copying is to employ enough points of similarity to confuse the public with enough points of difference to confuse the courts." Baker v. Master Printers Union, 34 F.Supp. 808, 811, 47 USPQ 69, 72 (D.N.J.1940); Plough, Inc. v. Kreis Laboratories, 314 F.2d 635, 644 n. 4, 136 USPQ 560, 567 n. 4 (9th Cir.1963) (Pope, J., dissenting); Armstrong Cork Co. v. World Carpets, Inc., 76 F.R.D. 613, 614, 198 USPQ 526, 527 (N.D.Ga.1977). That appears to me to be the situation here.
26
Accordingly, I would reverse.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,637-01
IN RE LARRY E. WRIGHT, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. 333724-A IN THE 182nd DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
Relator has filed a motion for leave to file a writ of mandamus pursuant to the original
jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus
in the 182nd District Court of Harris County, that more than 35 days have elapsed, and that the
application has not yet been forwarded to this Court.
In these circumstances, additional facts are needed. Respondent, the District Clerk of Harris
County, is ordered to file a response, which may be made by submitting the record on such habeas
corpus application, submitting a copy of a timely filed order which designates issues to be
investigated (see McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992)), or stating that
2
Relator has not filed an application for a writ of habeas corpus in Harris County. Should the
response include an order designating issues, proof of the date the district attorney’s office was
served with the habeas application shall also be submitted with the response. This application for
leave to file a writ of mandamus shall be held in abeyance until Respondent has submitted the
appropriate response. Such response shall be submitted within 30 days of the date of this order.
Filed: January 21, 2015
Do not publish
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189 Cal.App.4th 400 (2010)
116 Cal. Rptr. 3d 899
THE PEOPLE, Plaintiff and Appellant,
v.
FRANK EVAN POWERS-MONACHELLO et al., Defendants and Respondents.
No. A124358.
Court of Appeals of California, First District, Division Two.
October 20, 2010.
*403 Stephen R. Passalacqua, District Attorney, Robert A. Maddock, William S. Mount and Andrew S. Lukas, Deputy District Attorneys, for Plaintiff and Appellant.
Stephen M. Gallenson, under appointment by the Court of Appeal, for Defendant and Respondent Frank Powers-Monachello.
Patricia Lea Brisbois, under appointment by the Court of Appeal, for Defendant and Respondent Dan Edward Scheiner.
Steven Samuel Lubliner, under appointment by the Court of Appeal, for Defendant and Respondent Dana Deniell Gearardo-Scheiner.
OPINION
LAMBDEN, J.
Defendants in this case were charged with possession for sale of cocaine and conspiracy to possess cocaine for sale. The Sonoma County District Attorney contends that two different trial judges misapplied the governing law regarding the corpus delicti rule in dismissing the conspiracy count. Appellant urges us to hold that the corpus delicti rule's limitation on the use of defendants' extrajudicial statements has been eliminated from the preliminary examination stage of criminal proceedings. However, we conclude that although defendants' statements might have been *404 introduced to determine whether they would be held to answer, such statements remained irrelevant until the corpus delicti rule had been otherwise satisfied. Our Supreme Court has not understood the 1982 constitutional amendment at the center of appellant's argument to have fully abrogated the rule requiring independent evidence of the alleged crime. We agree with that conclusion. In the preliminary examination stage of criminal proceedings, the application of the classical corpus delicti rule in California remains unabated.
BACKGROUND
Beginning in May 2007, Santa Rosa Police Department detectives conducted an elaborate investigation of respondent Frank Evan Powers-Monachello (Powers), whom they suspected of dealing large amounts of cocaine in Sonoma County. Surveillance of Powers extended over several months and more than one county: at times, tracking devices were attached to his car, he was observed interacting with the other defendants on several occasions, and he was seen frequently at the home of two codefendants where a safe was ultimately found to contain a large amount of cocaine. Powers had the key to the safe and regularly provided cocaine to the other defendants.
Powers and three codefendants[1] were charged by a complaint with four felony counts: (1) conspiracy to possess cocaine for sale (Pen. Code, § 182, subd. (a)(1));[2] (2) possession of cocaine for sale (Health & Saf. Code, § 11351); (3) cultivation of marijuana (Health & Saf. Code, § 11358); and (4) possession of marijuana for sale (Health & Saf. Code, § 11359).
The information alleged 10 facts to support the conspiracy charge:
"1. [Powers] drives out of county on several occasions.
"2. Upon his return to the county, Powers immediately goes to 1109 Copeland Creek Drive, Rohnert Park.
"3. 1109 Copeland Creek Drive is owned/occupied by [Scheiner] and [Gearardo].
*405 "4. Powers stores a safe at 1109 Copeland Creek Drive, in exchange he provided approximately 3.5 grams of cocaine per day to Scheiner and Gearardo.
"5. Powers possessed the key to the above described safe.
"6. Powers arrives almost daily to access or store cocaine in the safe at 1109 Copeland Creek Drive.
"7. [Floyd] arrived at 1109 Copeland Creek Drive, when Scheiner and Powers were present.
"8. Powers provides cocaine to Floyd.
"9. Powers gave Floyd two small boxes.
"10. Floyd loaded the boxes into his car and drove away."
At the two-day preliminary hearing in August 2008, Sonoma County Superior Court Judge Elliot Daum found probable cause for the possession charges, but dismissed the conspiracy charge for failure to satisfy the corpus delicti rule.
The prosecutor promptly filed a new, but essentially identical, four-count information alleging the same conspiracy charge that Judge Daum had dismissed. Powers again moved under section 995 to dismiss the conspiracy charge on the ground that the prosecution had not produced evidence to satisfy the corpus delicti rule. After reviewing the entire transcript of the prior preliminary hearing and further briefing and argument, Judge Kenneth Gnoss granted Powers's motion and dismissed the conspiracy charge as to all four defendants as follows: "[T]here [was] insufficient, independent evidence presented at the preliminary hearing to establish an agreement or a conspiracy.. . the [defendants'] statements should not be introduced."
The Sonoma County District Attorney[3] filed this timely appeal.
DISCUSSION
(1) The corpus delicti rule provides that "`[i]n every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itselfi.e., the fact of the injury, loss, or harm, and the existence of a criminal *406 agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendants. [Citations.]' [Citation.] This includes `preoffense statements of later intent as well as . . . postoffense admissions and confessions.'" (People v. Miranda (2008) 161 Cal.App.4th 98, 107 [73 Cal.Rptr.3d 759].)
"`"The corpus delicti rule was established by the courts to `protect a defendant from the possibility of fabricated testimony out of which might be wrongfully established both the crime and its perpetrator.' . . . The corpus delicti rule arose from a judicial concern that false confessions would lead to unjust convictions. . . . Today's judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically. . . ."'" (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 830 [56 Cal.Rptr.2d 870], quoting People v. Moreno (1987) 188 Cal.App.3d 1179, 1187 [233 Cal.Rptr. 863].) In the preliminary hearing context, it has long been held that "[a] defendant cannot be held to answer unless the corpus delicti of the offense with which he is charged is established independently of his extrajudicial statements." (People v. Martinez (1972) 27 Cal.App.3d 131, 133 [103 Cal.Rptr. 451].)
(2) In 1982, the voters approved the "Right to Truth-in-Evidence" amendment to the California Constitution,[4] which provides that "relevant evidence shall not be excluded in any criminal proceeding . . . ." (Cal. Const., art. I, § 28, former subd. (d).) Based on this amendment, appellant urges us to conclude that the corpus delicti requirement has been eliminated at the preliminary hearing stage of criminal proceedings. Appellant argues the trial court's dismissal of the conspiracy count was error because it was "based on a former corpus delicti rule, and resulted in the erroneous non-consideration of evidence relevant to the conspiracy charge."
Appellant complains that the trial court accepted the defense argument that the only possible evidence of agreement between the parties would be the statements of the codefendants and that "all arguments at the hearing echoed this theme." The district attorney countered this argument in the trial court, and argues here, by contending that as a result of the "Right to Truth-in-Evidence" amendment to the California Constitution, the codefendants' extrajudicial admissions must be considered to determine whether the corpus delicti rule is satisfied.
*407 Accordingly, the centerpiece of appellant's argument is that the codefendants' extrajudicial statements should have been admitted into evidence at the preliminary hearing, and that those statements could have helped to provide sufficient "independent" evidence of the corpus delicti to support the conspiracy charge. We agree that the trial court erred at the preliminary hearing by refusing to admit certain extrajudicial statements by defendants which were relevant to the charges. However, we disagree that the admission of the statements would have made any difference. Although extrajudicial statements may be considered in determining whether the defendants may be held to answer; the consideration of such statements is proper only after the corpus delicti rule is first satisfied.
Appellant's mistake in arguing otherwise is based on his failure to appreciate the difference between the operation of the corpus delicti rule at the preliminary examination of the charges, and at trial, which was the situation in People v. Alvarez (2002) 27 Cal.4th 1161 [119 Cal.Rptr.2d 903, 46 P.3d 372] (Alvarez), upon which both parties rely. The dissent compounds this mistake by suggesting that Alvarez lessened the strictures of the corpus delicti rule at the preliminary hearing stage as follows: "the required `independent evidence' does not have to stand alone, i.e., it may be considered in conjunction with the extrajudicial admissions." (Dis. opn., post, at pp. 420-421.) In fact, Alvarez affirmed the traditional requirement for independent evidence to establish the corpus delicti; and whether the extrajudicial admissions of the defendants could be used at trial for some other purpose is not at issue here.
In Alvarez, the Supreme Court addressed the impact on the corpus delicti rule of the "Right to Truth-in-Evidence" amendment to the California Constitution, which provides that "relevant evidence shall not be excluded in any criminal proceeding . . . ." (Cal. Const., art. I, § 28, former subd. (d).) Unlike the present case, Alvarez involved a trial. The Court of Appeal held that the trial court erred in failing to give a sua sponte instruction regarding "the need for independent proof of the corpus delicti" for committing a lewd act on a child, and reversed on that count. (Alvarez, supra, 27 Cal.4th at p. 1165.) The court found that failure to give the instruction "was prejudicial, because aside from defendant's preoffense statements introduced at trial, there was no [other] evidence of his lewd intent in touching the victim." (Ibid.) The Supreme Court held that the Court of Appeal had correctly ruled that section 28, former subdivision (d) of the California Constitution had not "abrogated the need for a corpus delicti instruction." (Alvarez, at p. 1166.) Nevertheless, the Supreme Court reversed and held that the instructional error was harmless "because the independent evidence of lewd intent was present." (Ibid.)
*408 (3) Justice Baxter's opinion in Alvarez thus concluded that the constitutional provision changed only one, not both, aspects of the corpus delicti rule: the first aspect regarding the admission of extrajudicial statements. The second aspect, regarding the rule's independent proof requirement to support a conviction, remained undisturbed. The opinion's legal conclusions are: first, that "section 28 [, former subdivision] (d) [of the California Constitution] did abrogate any corpus delicti basis for excluding the defendant's extrajudicial statements from evidence"; and second, that section 28, former subdivision (d) "did not abrogate the corpus delicti rule insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and that the jury must be so instructed." (Alvarez, supra, 27 Cal.4th at p. 1165.)
As a result of the first determination in Alvarez, "there no longer exists a trial objection to the admission in evidence of the defendant's out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendant's extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed." (Alvarez, supra, 27 Cal.4th at p. 1180, first italics added.) However, as a result of the second determination, the jury must be instructed "that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements"; also, the defendant may, on appeal, "attack the sufficiency of the prosecution's independent showing." (Ibid.)
(4) The second determination of Alvarez is most relevant to this case, because it affirms application of the classical corpus delicti rule at the preliminary hearing stage of the criminal proceedings. If a defendant cannot be convicted in the absence of independent evidence establishing the corpus delicti, a magistrate cannot, in the absence of such independent evidence, hold him to answer. The magistrate cannot consider extrajudicial statements of the accused for the same reason underlying the mandated jury instruction in Alvarez: The prosecution must first prove the corpus delicti of the charged offense without the use of extrajudicial statements. Accordingly, "Alvarez changes nothing when it comes to application of the corpus delicti rule to preliminary hearings (except that there is no longer any basis to exclude a defendant's extrajudicial statements from evidence)." (Rayyis v. Superior Court (2005) 133 Cal.App.4th 138, 148 [35 Cal.Rptr.3d 12] (Rayyis); accord, People v. Herrera (2006) 136 Cal.App.4th 1191 [39 Cal.Rptr.3d 578]:)
Powers concedes that Judge Daum erred at the initial preliminary hearing by refusing to admit the extrajudicial statements of defendants. It is an easy *409 concession to make under these circumstances because the law is unambiguous: At the preliminary hearing, the magistrate could not consider the extrajudicial statements when making the threshold determination of whether the corpus delicti of conspiracy had been established, but should admit the statements after the corpus delicti rule was satisfied.[5] Here, the failure to admit the statements made no difference. Extrajudicial statements were admissible to answer the secondand distinctset of questions posed at the preliminary hearing: whether there was sufficient evidence to support prosecution of each of the charges. If Judge Daum had determined that the corpus delicti was established, he surely would have formally admitted the extrajudicial statements and considered them in determining whether to hold respondents to answer on the conspiracy charge. Appellant and our dissenting colleague are simply mistaken in arguing that the extrajudicial admissions can add any weight to the preliminary hearing scale before, and unless, the corpus delicti rule is first satisfied.
(5) Although admissible at a preliminary hearing, extrajudicial statements must be accompanied by independent evidence to support a charge or conviction. Specifically, the defendant may not be held to answer if no independent evidence of the corpus delicti is produced at the preliminary examination. (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393 [157 Cal.Rptr. 809]; accord, Alvarez, supra, 27 Cal.4th at pp. 1169-1170, 1180 ["section 28[, former subdivision] (d) [of the California Constitution] did not eliminate the independent-proof rule insofar as that rule prohibits conviction where the only evidence that the crime was committed is the defendant's own statements outside of court"]; see also People v. Jones (1998) 17 Cal.4th 279, 300-301 [70 Cal.Rptr.2d 793, 949 P.2d 890]; People v. Herrera, supra, 136 Cal.App.4th at p. 1202.) The purpose of the preliminary hearing is to determine whether there is probable cause to require the defendant to answer to the charges against him or her. (§ 872, subd. (a); People v. Brice (1982) 130 Cal.App.3d 201, 209 [181 Cal.Rptr. 518], citing Jennings v. Superior Court (1967) 66 Cal.2d 867, 880 [59 Cal.Rptr. 440, 428 P.2d 304] [to order a defendant to answer to a charge, there must be sufficient cause to believe that the defendant is guilty].) At the preliminary hearing sufficient independent evidence is required to order the defendant to answer to a charge.
Appellant contends that, in reviewing a trial court's order to dismiss a charge, we determine "whether there is sufficient evidence in the preliminary examination transcript to permit the district attorney to file such allegation and take the matter to trial." (People v. Superior Court (Jurado) (1992) 4 *410 Cal.App.4th 1217, 1225 [6 Cal.Rptr.2d 242], citing People v. Laiwa (1983) 34 Cal.3d 711, 718 [195 Cal.Rptr. 503, 669 P.2d 1278], superseded by statute on other grounds.) In support of the conspiracy count, the prosecution here relied on police testimony, including Detective Tomlin's opinions about the codefendants' involvement, defendants'"statements about the operational intricacies of [defendant's] drug distribution enterprise," and the "detectives' observations of [defendant] . . . engaging in counter-surveillance . . . [and possessing a] large amount of cocaine . . ., cutting tools[,] and ingredients indicating large scale narcotics sales . . . ." Although the facts adduced at the hearings certainly supported the prosecution of sales of cocaine by certain of the defendants, they are insufficient to infer that Powers and his associates conspired to sell cocaine together.
(6) The conspiracy charge requires proof of four elements: (1) intent to agree and actual agreement to possess cocaine for sale, (2) intent for coconspirators to possess cocaine for sale; (3) overt acts to carry out the conspiracy, and (4) commission of at least one overt act in California. (See § 182, subd. (a); People v. Bogan (2007) 152 Cal.App.4th 1070 [62 Cal.Rptr.3d 34]; CALCRIM No. 415.) The first and third elements are principally at issue in this case, and we examine the record to separate the extrajudicial statements of defendants from independent evidence of facts from which a conspiratorial agreement might be inferred. "[I]ndependent proof may be circumstantial and . . . is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible." (Alvarez, supra, 27 Cal.4th at p. 1171.) The inference need only be reasonable. (People v. Jones, supra, 17 Cal.4th at pp. 301-302.) Although we agree with our dissenting colleague that the evidence supporting such an inference need only be "`a slight or prima facie showing'" (Alvarez, at p. 1181), we observe that both appellant and the dissent rely on extrajudicial statements by defendants to reach even this low threshold of a prima facie showing.
The information filedand refiled after the first hearingby appellant alleged 10 "overt acts," which framed the facts adduced at the preliminary hearing:
"1. [Powers] drives out of the county on several occasions.
"2. Upon his return to the county, Powers immediately goes to 1109 Copeland Creek Drive, Rohnert Park.
*411 "3. 1109 Copeland Creek Drive is owned/occupied by [Scheiner] and [Gearardo].
"4. Powers stores a safe at 1109 Copeland Creek Drive, in exchange he provided approximately 3.5 grams of cocaine per day to Scheiner and Gearardo.
"5. Powers possessed the key to the above described safe.
"6. Powers arrives almost daily to access or store cocaine in the safe at 1109 Copeland Creek Drive.
"7. [Floyd] arrived at 1109 Copeland Creek Drive, when Scheiner and Powers were present.
"8. Powers provides cocaine to Floyd.
"9. Powers gave Floyd two small boxes.
"10. Floyd loaded the boxes into his car and drove away."
The elements of the conspiracy charge include two required showings of intent: intent to agree and actual agreement to possess cocaine for sale, as well as intent for the coconspirators to possess cocaine for sale (§ 182, subd. (a)). Considered together, these elements refer to the intent to possess cocaine for sale jointly and must be distinguished from the similar but distinct intent to possess cocaine individually. Although allegation Nos. 1, 2, 3, 7, 9, and 10 were supported at the preliminary hearing by facts sufficient to show individual intent to possess cocaine (either for use or sale), the record is insufficient to establish conspiratorial intent. The record contains evidence to support an inference of an agreement between certain of the defendants to store a safe, but it does not contain evidence to connect all the defendants to the safe and its contents or to any sale of cocaine.
The facts supporting allegation Nos. 1, 2, 3, and 7, all involve the police surveillance of Powers, and establish that defendants knew one another and often associated. It is undisputed that police observed Powers and Floyd frequently visiting the Copeland address where Scheiner and Gearardo lived, and that Powers often went there in the course of his out-of-county trips. *412 While it is also undisputed that Powers drove the green BMW car "on occasions," the detectives could neither verify that Powers was the driver of the vehicle on all the trips they tracked; nor learn the addresses of the destinations visited out of the county. The evidence of a pattern of deception on the part of Powers included the driving pattern of the green BMW on these trips. According to Detective Tomlin's expert opinion, the driving pattern is known as "counter-surveillance" and indicated "deception." However, Tomlin also agreed that the driving pattern was common to drivers looking for parking. He could not verify the identity of the driver of the green BMW because he watched the car's perambulations on a computer linked to the GPS tracking device attached to the car.
Nothing in Tomlin's testimony regarding driving patterns or the visits between defendants shows a conspiratorial agreement between the parties. The search of Floyd's home produced cocaine sufficient for sale but no indicia of any connection to the safe, its contents, or the distinctive drug paraphernalia found at the Copeland house. Other than Floyd's acquaintance with the other defendants and his own admissions, the only evidence the prosecution relied upon was Tomlin's observation of the transfer of the two small boxes observed by Powers to Floyd. However, there is no evidence regarding the boxes' contents, which remain a matter of pure speculation. Tomlin was expressly unable to offer any opinion regarding the contents of the boxes because there was no evidence upon which to base such a conclusion. Any opinion he might have offered regarding Floyd's involvement in cocaine sales was necessarily limited to the facts: his mere observation of the boxes being transferred, with no knowledge or conjecture as to their contents.
(7) Expert opinion testimony may support the corpus delicti when two conditions are met. First, the opinion must be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) Second, the opinion must be based on "matter . . . perceived by or personally known to the witness . . . that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert's] testimony relates . . . ." (Evid. Code, § 801, subd. (b).) Although the expert cannot directly opine that the defendant is "guilty" to support the corpus delicti (People v. Harvey (1991) 233 Cal.App.3d 1206, 1227 [285 Cal.Rptr. 158]), the expert may testify as to various "`ultimate issues'" including facts necessary to establish the corpus delicti of a charge. (Ibid.) For example, a medical examiner might testify that *413 the condition of a cadaver indicated homicide as the cause of death, thus supporting a charge of murder.
We agree with our dissenting colleague that Rayyis stands for the proposition that the opinion testimony of an expert can provide independent evidence to support a charge. (Rayyis, supra, 133 Cal.App.4th at p. 143.) However, the opinion in Rayyis also demonstrates the limits of expert testimony in this preliminary context: Expert opinion testimony cannot support a finding of the corpus delicti unless the opinion is supported by independent evidence. In Rayyis, the trial court ordered the defendant to answer a charge of filing false income tax returns and a charge of money laundering. (Ibid.) To support the charge of filing a false income tax return, a senior special agent from the Franchise Tax Board gave his opinion that the defendant underreported his income. (Ibid.) The agent based his analysis on his comparison of the defendant's bank record and tax returns; the bank record reflected the receipt of more income than the income reported in the defendant's tax returns. (Ibid.) The appellate opinion held that the agent's opinion testimonybased on his analysis of the bank records and corresponding tax returnsreasonably supported the charge of filing false income tax returns, but did not satisfy the statutory requirement for a showing of "criminal activity" because there was no evidence of a contemporaneous crime. (Id. at p. 152.)
Rayyis informs us that expert opinion testimony can establish the existence of facts indicating a crime had been committed (e.g., the mathematical calculation showing underreported income, or the cause of death in a murder case) but cannot support the inference of a committed crime in the absence of independent facts. In Rayyis the money laundering charge could not be supported because the "laundered" money transfer to the defendant's children occurred before the crime of underreporting of income which was the only evidence the prosecution relied upon to show the required "criminal activity."[6] (Rayyis, supra, 133 Cal.App.4th at pp. 151-152.) Expert opinion testimony can only support a charge when the opinion draws its conclusions from competent facts.
Tomlin's conclusions were inadequate to satisfy the corpus delicti rule. Not only was his opinion based in part on defendants' statements, there was also a lack of competent evidence to make the necessary connections supporting a reasonable inference of conspiratorial agreement. Based on his "investigation as a whole" Tomlin concluded that Powers was transporting and selling cocaine in Sonoma County and "using Floyd to assist him in distributing the narcotics." However, there was no independent evidence connecting Floyd to *414 cocaine sales by Powers. The "large" scale and cutting agent were found at the Copeland house, not at Floyd's home; and the search of Floyd's house did not yield "any similar packaging or anything consistent with the physical evidence recovered from the Gearardo/Scheiner residence." Floyd's counsel conceded the 72 grams of cocaine found at Floyd's home could properly support a charge of individual possession for sale, but justifiably argued to the trial court that there was no competent, independent evidence of any connection between Floyd and the safe in the Copeland residence.
The second portion of Tomlin's opinion (in support of allegation No. 4) was that: "[Scheiner and Gearardo] were users of cocaine, who based on their habit, allowed another person to store illegal substances in their residence to support themselves." "He was paying them with cocaine to support their habit." The intent to possess cocaine for sale can be inferred if the amount possessed was a larger quantity than would be expected for personal use. (People v. Fitzwater (1968) 260 Cal.App.2d 478, 490 [67 Cal.Rptr. 190].) However, although Detective Tomlin testified that 3.5 grams of cocaine might be used daily by two highly addicted people, he expressly refused to offer any opinion that the amount was large enough to infer it was held for sale. Moreover, the factual basis for Tomlin's opinion is only completed by Gearardo's statement that Powers stored the safe at her home in exchange for leaving her and Scheiner 3.5 grams of cocaine for their own use. The only evidence connecting the contents of the safeand the drug paraphernalia found at the Copeland housecomes from Gearardo's statements. Also, the full extent of Tomlin's opinion regarding Scheiner and Gearardoeven including Gearardo's extrajudicial admissionswas carefully framed to say that they "were users of cocaine, who based on their habit, allowed another person to store illegal substances in their residence to support themselves."
Accordingly, the information's allegations numbered 4 and 8 (that Powers supplied cocaine to the other defendants) are not supported by independent evidence sufficient to infer a conspiratorial agreement. On cross-examination, it was obvious that Tomlin's opinion regarding the cocaine supplied by Powers to Floyd, Scheiner, and Gearardo was based on defendants' own statements. Exclusion of defendants' extrajudicial statements from the evidence shortens the established part of allegation No. 4 to read: "Powers stores a safe at 1109 Copeland Creek Drive." Allegation No. 8 ("Powers provides cocaine to Floyd.") is based entirely on defendants' statements and properly excluded from consideration.
Allegation No. 5 adds only that Powers possessed "the key" to the safe, but this adds nothing to show an actual "agreement" to possess cocaine for sale. Evidence was presented that a combination was also required to open the safe; and no combination was found. Certainly the inference can reasonably *415 be drawn that Powers knew the other defendants, that he was deceptive in his behavior; that he had an arrangement to rent space for the safe, which he often visited; and that the safe was found to contain cocaine for sale. However, any inferences to be drawn from these facts are limited to Powers. By the express terms of Tomlin's carefully worded opinion the "rental" arrangement he described is not evidence supporting any inference of a conspiracy; and Gearardo's statements are required to show that she and Scheiner even knew, let alone intended, anything more than allowing Powers access to the garage in order to "feed their own habits." The prosecution presented evidence to support allegation No. 8 that Floyd possessed and sold the cocaine found at his house, but the prosecutors necessarily relied on his extrajudicial statements to show that the cocaine was supplied by Powers. Finally, even assuming that any of defendants' statements could be used to show that Powers supplied Floyd, Scheiner, and Gearardo with cocaine, the prosecution failed to show either that the amount was sufficient to show for possession for sale, or in Floyd's case, that the larger amount he possessed was not possessed only for his individual sale.
The prosecution asserts that intent to conspire to possess and sell cocaine is "demonstrated by the mutual benefit derived by all," and attempts to support this assertion by citing People v. Cockrell (1965) 63 Cal.2d 659 [47 Cal.Rptr. 788, 408 P.2d 116], for the proposition that "[i]t need not be shown that the parties met and actually agreed to jointly undertake criminal action," for the agreement to be inferred from the defendants' conduct in mutually carrying out a common purpose in violation of a penal statute. (Id. at p. 667.) Cockrell is easily distinguished from this case because the Supreme Court's opinion observed that each of the alleged conspirators participated in the sales in question. Evidence that defendants jointly participated in a sale can be sufficient to infer an agreement between the conspirators as well as showing an overt act in furtherance of that agreement. However, defendants in the case before us did not engage in any observed joint sales or transfers of cocaine. The individual "benefit" derived by each of the defendants is not apparent without considering their extrajudicial statements; and those statements themselves suggest there was not a "common" purpose in the sense urged by appellant.
All of the cases cited by the dissent for the unremarkable proposition that "circumstantial evidence and/or inferences are clearly permissible types of such `independent evidence' . . ." are easily distinguished from the case before us. (Dis. opn., post, at p. 421.)
People v. Lipinski (1976) 65 Cal.App.3d 566 [135 Cal.Rptr. 451] (Lipinski), principally relied upon by the dissent, is a fair example: in that case an undercover police officer negotiated a meeting for the purchase of drugs *416 between himself, his initial contact, and a third party. The meeting took place in an airport, where the officer actually observed the two defendants discussing the arrangements for the drugs to be left in a car to be picked up after the payment was made. Another officer followed the defendants to the car and observed the transfer of a distinctively marked bag, which the first defendant took back to the first undercover officer. The other cases cited by the dissent for the idea that circumstantial evidence can support a conspiracy charge are similarly distinguishable:
People v. Osslo (1958) 50 Cal.2d 75, 94-96 [323 P.2d 397] involved an assault committed by thugs involved in a labor dispute. There were numerous meetings among the defendants in the days leading up to the day of the assault; but there was also evidence that seven defendants made a joint visit to the precise location of the assault on the day of the alleged crime; five of the defendants were observed in an automobile leased by their codefendants' union on that day; and one of the defendants had agreed to pay a weekly salary and expenses to certain of the codefendants under circumstances where some of the codefendants had arrived in the city just one week prior to the incident.
People v. Longines (1995) 34 Cal.App.4th 621, 626 [40 Cal.Rptr.2d 356] involved an undercover agent arranging a drug transaction. During the transaction, the undercover agent observed the minor conversing with the appellant in a park; was directed by the minor to go to a parking lot, where the minor introduced him to the appellant; and handed the appellant money, receiving in return a Zip loc bag containing marijuana. The court held that this "sequence of events" provided compelling evidence that the minor and appellant "were working together, each performing a different and essential function in bringing the sales transaction to a successful conclusion." (Ibid.)
In People v. Consuegra (1994) 26 Cal.App.4th 1726, 1734 [32 Cal.Rptr.2d 288], four defendants were convicted of conspiracy to possess cocaine for sale after police officers observed two of them leaving a condominium in a car, going to a grocery store parking lot to make phone calls using the public phone, greeting another defendant who soon appeared, and leaving to go to a second parking lot. At the second lot, another defendant appeared and drove the vehicle to a home owned by another codefendant who opened the garage door to allow the vehicle to enter. The police immediately detained the defendants and found 200 kilograms of cocaine in the garage and traces of cocaine in a hidden compartment in the vehicle driven from the parking lot to the garage. In the condominium where the surveillance started, the police found another 90 kilograms of cocaine and drug packaging materials. Various other items were found (including pagers, identification with different names, and a fictitious name registration for one of the vehicles) connecting all the defendants to the cocaine.
*417 In People v. Ordonez (1991) 226 Cal.App.3d 1207, 1232 [277 Cal.Rptr. 382], the charges alleged aggravated kidnapping for ransom, extortion, or reward. Under the instruction of his employer, a defendant arrived at the victim's house with accomplices, whom he directed to put the victim in the trunk of a car. He delivered a note to the victim's wife demanding that she deliver the money to him in the family's bank accounts and deposit box. The appellate court concluded that such acts established that the defendant was a "willing and continuing participant in a crime designed to carry off and hold [the victim] until the property sought from him had been obtained." (Ibid.) TheThere was no direct evidence of the agreement between the defendant and his employer, but the court cited Lipinski in support of the conclusion that the defendants' conduct in carrying out the conspiratorial purpose supported the inference of a conspiratorial agreement.
In People v. Pitts (1990) 223 Cal.App.3d 606 [273 Cal.Rptr. 757], superseded by statute on other grounds, seven defendants were convicted of conspiracy to commit lewd or lascivious acts on children and employment of a minor to produce obscene material or child pornography. The opinion spans hundreds of pages, describing numerous acts of child molestation by the defendants and involving several children. At least one of the children identified all the defendants as being present during several of these incidents; and the evidence showed that the defendants met several times for the purpose of molesting children and recording their crimes. The court cited Lipinski and held that the conspiratorial agreement could be inferred from "the number of times this went on and the nature of the acts that occurred." (Pitts, at pp. 891-892.)
People v. Olivencia (1988) 204 Cal.App.3d 1391, 1402-1403 [251 Cal.Rptr. 880] and People v. Towery (1985) 174 Cal.App.3d 1114, 1132 [220 Cal.Rptr. 475], both involved the conspirator exception to the hearsay rule following objections asserted at trial. In Olivencia, at page 1402, two defendants were convicted of false imprisonment. At trial, one defendant made a hearsay objection to a witness's testimony regarding the second defendant's statement that they "had" the victim and her child. Although the trial court overruled the objection on grounds that the statement was admissible as the statement of a coconspirator, the defense argued there was no evidence of an agreement to achieve an unlawful objective. The court, however, disagreed, citing Lipinski for the same proposition described in People v. Pitts. Even without resort to the contested hearsay testimony, the victim had testified that the defendants had entered her apartment together and that one defendant told the other to remain with the victim at the apartment. (Olivencia, at p. 1403.) The court held this was sufficient evidence to show that the defendants were engaged together in a conspiracy to falsely imprison the victim and her child. In People v. Towery, supra, 174 Cal.App.3d 1114, the argument was slightly different, i.e., the defense argued that recordings of conversations between a *418 police officer and the defendants, discussing the planned theft, were not statements by the conspirators (id. at pp. 1130-1131), but the point is the same: the operation of the corpus delicti rule is different at trial, where more evidence, including the extrajudicial statements of the defendants, may be considered.
In People v. Martin (1983) 150 Cal.App.3d 148, 163 [197 Cal.Rptr. 655], the defense argued there was insufficient evidence to establish conspiracy to commit extortion and conspiracy to commit assault with a deadly weapon. After getting into a dispute with the deceased victim, the defendant had directed the boyfriend of his employee to beat up the victim and to collect money. The boyfriend ended up killing the victim and testified at trial that the defendant solicited him to assault the victim and threatened the loss of a job as leverage. Citing Lipinski, the court held there was sufficient evidence to support both counts of conspiracy.
In summary: all of the foregoing cases relied upon by the dissent involved trials where the operation of the corpus delicti rule is different from its application at a preliminary hearing, and in each of these cases, the circumstantial evidence of the mere acquaintance between the defendants was supplemented by the defendants' direct connection to at least one overt act, which was indisputably criminal conduct.
(8) Section 182, subdivision (a), requires evidence of such an overt act to carry out the conspiracy. Since no sales were observed in this case, allegation Nos. 7 and 9 attempt to satisfy this element by asserting that all the defendants were presentapparently working on one of the BMW's that were a shared interestat the Copeland address when Detective Tomlin observed Powers handing Floyd two small boxes. There is no evidence whatsoever of the contents of the boxes. The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators. However, as discussed above, mere suspicion of criminal conduct is not enough. (People v. Lowery (1988) 200 Cal.App.3d 1207, 1218 [246 Cal.Rptr. 443].) There must be some evidence to demonstrate that the association is also a conspiracy (People v. Hardeman (1966) 244 Cal.App.2d 1, 41 [53 Cal.Rptr. 168]). The permissible evidence in this case shows an association between defendants, but no agreement to do more than store a safe; and, unlike the cases cited by the dissent, this record contains no evidence of any overt act, such as an observed transfer or sale of drugs, in furtherance of a common purpose. The two small boxes were empty for the purposes of our discussion.
Tomlin's opinion cannot supply the missing evidence to establish the corpus delicti of conspiracy. First, it related only to the "ringleader" Powers *419 "the pattern of behavior of this particular defendant, [Powers] goes to the totality of the operation of a large scale drug trafficking." Second, the opinion patently relies on extrajudicial statements excluded by the corpus delicti rule. "If I had to form an opinion, which I did on this case, it's that [Powers] was the ringleader of this operation, that Floyd at his own admission in an interview with me, was selling cocaine at a smaller level on the street, and that the Gearardos [sic] were users of cocaine who based on their habit, allowed another person to store illegal substances in their residence to support themselves." (Italics added.) An expert cannot directly opine that the defendant is guilty to support the corpus delicti. (People v. Harvey, supra, 233 Cal.App.3d at 1227.)
We agree with the dissent that the existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the conspiracy (People v. Lowery, supra, 200 Cal.App.3d at p. 1218). However, as previously explained, mere suspicion is not enough. "`There must be some evidence. Mere association does not make a conspiracy.'" (People v. Hardeman, supra, 244 Cal.App.2d at p. 41.) Thus, simply knowing that a person's products or services are being used for a criminal purpose is insufficient. (People v. Lauria (1967) 251 Cal.App.2d 471, 482 [59 Cal.Rptr. 628].) The lengthy transcript of the preliminary hearing before Judge Daum, which was also reviewed by Judge Gnoss with the same result, persuades us that the elements of the charged conspiracy were not proved by the prosecution on the basis of evidence independent of defendants' extrajudicial statements.
Indeed, the sufficiency of the evidence may not be the genuine issue before us. Appellant does not back up his legal argument with an alternative factual claim, as did the prosecutor in the appeal in Alvarez. Also, appellant does not claim that there is sufficient independent evidence to establish the corpus delicti of conspiracy. As in the trial court, appellant's argument in this court is limited to the untenable contention that defendants' extrajudicial statements should have been considered in determining whether the corpus delicti was proved. As we discussed at the outset of this opinion, that contention is incorrect; and because appellant has not made any alternative factual argument he has effectively waived the issue of the sufficiency of the evidence. In any event, the foregoing analysis demonstrates that the alternative argument would have been without merit based on this record.
DISPOSITION
The judgment is affirmed.
Kline, P. J., concurred.
*420 HAERLE, J., Dissenting.
I respectfully dissent, and do so for four principal reasons: (1) I do not believe the majority's opinion accurately sets forth the quantity of "independent evidence" adduced at a preliminary hearing which is sufficient to satisfy the corpus delicti rule; (2) nor, I submit, does the majority adequately deal with the principle that circumstantial evidence and inferences are both permissible types of "independent evidence" of a charge of conspiracy; (3) nor does the majority adequately deal with the very liberal standard of proof applicable at preliminary hearings; and (4) I believe that, considered under the combination of those three standards, there was ample "independent evidence" of a conspiracy adduced by the prosecution at the preliminary hearing. For those reasons, I would reverse the trial court and remand the case to it with instructions to reinstate the dismissed conspiracy charge against defendant and respondent, Frank Evan Powers-Monachello.
I.
Regarding the first point, the quantity of independent evidence necessary for the prosecution to present at a preliminary hearing, the majority cites and quotes from our Supreme Court's recent opinion in People v. Alvarez (2002) 27 Cal.4th 1161 [119 Cal.Rptr.2d 903, 46 P.3d 372] (Alvarez). But, regrettably, it omits several highly pertinent statements from that opinion, statements I believe are clearly applicable here regarding precisely that issue.
In the course of reversing the holding of a panel of the Fourth District (which had held the corpus delicti principle not satisfied), the Alvarez court made clear the minimal quantity of independent evidence (i.e., here, evidence above and beyond statements by others) required to satisfy the corpus delicti rule. It stated: "Of course, as we have seen, the modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be `a slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues. [Citations.]" (Alvarez, supra, 27 Cal.4th at p. 1181.)
The court cited, among its several prior holdings on the subject, People v. Jones (1998) 17 Cal.4th 279 [70 Cal.Rptr.2d 793, 949 P.2d 890]. There, it had emphasized that: "[W]e have never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury, loss or harm, and that a criminal agency was involved." (Id. at p. 303, italics added.)
Quite importantly, the Alvarez court also stressed that the required "independent evidence" does not have to stand alone, i.e., it may be considered in *421 conjunction with the extrajudicial admissions. (Alvarez, supra, 27 Cal.4th at p. 1171.) This is made clear by its phrase that such evidence may be considered "in addition to such statements" (id. at p. 1165) and by its later emphasis that: "In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues." (Id. at p. 1171; see also, to the same effect, Rayyis v. Superior Court (2005) 133 Cal.App.4th 138, 144-145 [35 Cal.Rptr.3d 12] (Rayyis), a decision relied on extensively by the majority; see maj. opn., ante, at pp. 408 & 413.)
As applied here, this means that the trial court could well have considered both the admissions of the former codefendants and the other evidence presented, if the latter met the "slight or prima facie showing" standard articulated in Alvarez. As I will outline in part IV. below, I believe that standard was easily met here.
II.
Many casesmost of them not discussed or cited by the majoritymake clear that circumstantial evidence and/or inferences are clearly permissible types of such "independent evidence," especially regarding a charge (as here) of criminal conspiracy.
One of the earliest of these cases is People v. Osslo (1958) 50 Cal.2d 75, 94-96 [323 P.2d 397]. There, the court affirmed the conviction of multiple defendants whom a San Diego Superior Court jury had convicted of conspiracy to commit assault. On appeal, those defendants challenged the sufficiency of the evidence to establish conspiracy, but were rebuffed in that argument by this response from our Supreme Court: "It is true that there is no direct evidence of a conspiracy; all the direct evidence bearing on the question is to the effect that the defendants who actually participated in the assault and battery had been instructed to avoid the use of violence. But `A conspiracy can generally be established only by circumstantial evidence. It is not often that the direct fact of a common unlawful design can be proved other than by the establishment of independent facts bearing on such design.' [Citations.]" (Id. at p. 94.)
This court made this principle even clearer in our decision in People v. Lipinski (1976) 65 Cal.App.3d 566, 575-576 [135 Cal.Rptr. 451] (Lipinski), where we stated: "It is likewise well recognized that the very crux of the conspiracy, the evil or corrupt agreement [citations], may be shown also by circumstantial evidence. Thus, it is not necessary to prove that the parties met and actually agreed to perform the unlawful act or that they had previously arranged a detailed plan for its execution. Rather significantly, the agreement *422 may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute [citations]. As the court put it in People v. Morales [(1968) 263 Cal.App.2d 368], at page 376 [69 Cal.Rptr. 402], the sufficiency of evidence relative to the establishment of a conspiracy must be viewed against the background of the type involved, and `"If there be knowledge by the individual defendant that he is a participant in a general plan designed to place narcotics in the hands of ultimate users, the courts have held that such persons may be deemed to be regarded as accredited members of the conspiracy."' [Citation.]" (Lipinski, supra, at pp. 575-576; see also, citing Lipinski and to the same effect: People v. Longines (1995) 34 Cal.App.4th 621, 626 [40 Cal.Rptr.2d 356]; People v. Consuegra (1994) 26 Cal.App.4th 1726, 1734 [32 Cal.Rptr.2d 288]; People v. Ordonez (1991) 226 Cal.App.3d 1207, 1232 [277 Cal.Rptr. 382]; People v. Pitts (1990) 223 Cal.App.3d 606, 891 [273 Cal.Rptr. 757]; People v. Olivencia (1988) 204 Cal.App.3d 1391, 1402-1403 [251 Cal.Rptr. 880]; People v. Towery (1985) 174 Cal.App.3d 1114, 1132 [220 Cal.Rptr. 475]; People v. Martin (1983) 150 Cal.App.3d 148, 163 [197 Cal.Rptr. 655].)
I respectfully submit that the evidence summarized in part IV. of this opinion clearly meets this standard. But before detailing that evidence, it is also appropriate to discuss the related issues of the standard of proof required at a preliminary hearing and at a Penal Code section 995 (section 995) hearing.
III.
The governing statute on the standard of proof required at preliminary hearings is Penal Code section 872, subdivision (a), which provides that the magistrate shall order a defendant to answer to a criminal complaint as and when "it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty . . . ." (Pen. Code, § 872, subd. (a).)
The cases applying and interpreting this statute have made clear that this, too, is a rather liberal standard. Thus, in People v. Orduno (1978) 80 Cal.App.3d 738 [145 Cal.Rptr. 806], certiorari denied Orduno v. California (1979) 439 U.S. 1074 [59 L.Ed.2d 41, 99 S.Ct. 849], the court wrote: "At a preliminary hearing, the magistrate must decide only whether there is `sufficient cause' to believe the defendant guilty of a probable offense. That phrase is generally equivalent to `reasonable and probable cause' which has been defined as such a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.]" (People v. Orduno, supra, at p. 750; see also People v. Uhlemann (1973) 9 Cal.3d 662, 667 [108 Cal.Rptr. 657, 511 *423 P.2d 609]; People v. Batista (1988) 201 Cal.App.3d 1288, 1292 [248 Cal.Rptr. 46]; People v. Ortiviz (1977) 74 Cal.App.3d 537, 541 [141 Cal.Rptr. 483]; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 147, pp. 349-350, and cases cited therein.)
Post-Alvarez, this principle is even stronger. Because of the ruling in that case regarding the admissibility of the statements of a defendant or coconspirator, at a preliminary hearing "the amount of additional evidence that is required to satisfy the corpus delicti rule (aside from the defendant's extrajudicial statements) is `slight' or `minimal.'" (Rayyis, supra, 133 Cal.App.4th at p. 149.)
My colleagues seem to feel that the corpus delicti rule is applied differently in a preliminary hearing. They argue that the cases I rely upon hereafter regarding the application of that rule are distinguishable because they "involved trials, where the operation of the corpus delicti rule is different from its application at a preliminary hearing . . . ." (Maj. opn., ante, at p. 418.) But this statement runs directly contrary to Rayyis, supra, 133 Cal.App.4th 138, a case my colleagues repeatedly cite approvingly. (See maj. opn., ante, at pp. 408 & 413.) In that case, the court held: "Alvarez changes nothing when it comes to application of the corpus delicti rule to preliminary hearings (except that there is no longer any basis to exclude a defendant's extrajudicial statements from evidence). Moreover, there is nothing in the language of section 28[, subdivision] (d) [of the California Constitution]the constitutional provision at issue in Alvarezthat could be construed as affecting only preliminary hearings. To the extent section 28[, subdivision] (d) affected application of the corpus delicti rule at trial, it affected its application at preliminary hearings, no more and no less." (Rayyis, supra, at p. 148.)
A similar principle applies when, as here, the hearing is conducted under section 995 after the filing of an information.[1] In People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226 [6 Cal.Rptr.2d 242], the court defined the relevant rule thusly: "In determining if charges in an information can withstand a motion under section 995, neither the superior court nor the appellate court may reweigh the evidence or determine the credibility of the witnesses. [Citations.] Ordinarily, if there is some evidence in support of the information, the reviewing court will not inquire into its sufficiency. [Citations.] Thus, an indictment or information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged. [Citations.] [¶] `Although there must be some showing as to *424 the existence of each element of the charged crime [citation] such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate.' [Citation.] `Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.' [Citations.] Thus, the ultimate test is that `"`[a]n information will not be set aside or prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.'"' [Citation.]" (Italics omitted; see also People v. Jimenez (1995) 38 Cal.App.4th 795, 801-803 [45 Cal.Rptr.2d 466].)
When this standard is combined with the two other principles noted above, i.e., that (1) only "some slight or prima facie showing" is necessary in combination with the now admissible extrajudicial statements of a codefendant (see Alvarez, supra, 27 Cal.4th at pp. 1171 & 1181) and (2) "circumstantial evidence" and/or an "inferred" agreement are sufficient to establish a conspiracy (see Lipinski, supra, 65 Cal.App.3d at pp. 575-576), I believe there was more than adequate evidence adduced at the preliminary hearing to require respondent to be held to answer the conspiracy charge in the information.
I will now outline what that evidence was.
IV.
I believe neither the arguments made to us by defendant and respondent nor their acceptance by the majority fully state the relevant evidence adduced by the prosecution at the preliminary hearing. For example, respondent's brief to us argues: "Herein, other than the statements by Gearardo-Scheiner and Floyd, the only evidence in the record that appellant can claim possibly demonstrates a conspiratorial agreement is: (1) respondent, or someone else driving the green BMW, performed counter-surveillance activities as he or she drove from community to community; (2) respondent regularly frequented the residence at 1109 Copeland Creek Drive, Rohnert Park; (3) respondent was found in possession of a key, common to many safes, that fit the safe found at 1109 Copeland Creek Drive, Rohnert Park, although he was not found in possession of the electronic combination to the safe; (4) respondent was seen in the presence of Scheiner and Floyd; and (5) respondent was observed giving two shoe-box size packages to Floyd on one occasion."
The following facts and evidence are either omitted or misstated in that argument of defendant and respondentand many of them are also not mentioned or considered by the majority:
*425 1. No one other than respondent was ever seen driving the green BMW; it was, during the periods of the surveillances, respondent's regular vehicle for his many trips out of and then back into Sonoma County;
2. In driving that car, respondent's several detectives performed extensive and thorough countersurveillance activities. The descriptions provided of those activities, whether seen visually in downtown San Francisco or in Rohnert Park, or seen via the GPS device at other locations (Oakland, San Rafael, San Mateo, Hayward, etc.) established that they were remarkably expert. And also successful, as witness his May 2007 trip to San Francisco.
3. Respondent had reported to his parole officer that his residence was the Branching Way house in Petaluma. However, unmentioned by the majority is the fact that he never went to that address during the period he was under surveillance. But he did, in fact, have a real residence: the Grandview Way house he occupied with his girlfriend, and to which he returned after each trip out of the countyalbeit apparently always after having stopped first at the Copeland Creek house. Perhaps most importantly, as far as this record reveals (but again never mentioned by the majority), respondent never reported to his parole officer that he actually lived in Rohnert Park, not Petaluma.
4. Respondent had no visible occupation, much less one that could or would feasibly entitle a 24 year old to be the possessor and apparent owner of five different vehicles, not to mention over $15,000 in cash. And his girlfriend (never a codefendant) told the investigating officers that respondent had told her he was in the construction business, although she admittedly wondered about that because of his always "smooth" hands and the fact that he did not appear to own either work tools or clothing.
5. Respondent did far more than regularly frequent the residence at 1109 Copeland Creek. He regularly entered that residence without knocking or ringing any bell, either via the front door or the garage. He was clearly personally friendly with the male resident of that house, Scheiner. More specifically, he was seen working with Scheiner on the green BMW, which had its hood up, regarding some sort of "wiring for stereo speakers or some kind of speakers."
6. There is no evidence in the record that the safe key found in what was, almost certainly, respondent's jeans on the floor of the master bedroom at Grandview Way, was common to many safes. Common sense suggests that any manufacturer of such safes does not provide a "one key fits all" system. And the fact that normal entry to such a safe requires both a key and a combination and no written record of the combination was found at either house does not detract from the discovery of a key which fit into the lock on this specific safe.
*426 Regarding the safe at the Copeland Creek address, the majority concedes that the record "contains evidence to support an inference of an agreement between certain of the defendants to store a safe, but it does not contain evidence to connect all the defendants to the safe and its contents or to any sale of cocaine." (Maj. opn., ante, at p. 411.) This contention frankly puzzles me: (a) the safeand cocaine usage paraphernaliawere found at the Copeland Creek residence of two of the defendants, (b) what was (at the minimum "inferentially") a key to it was found in respondent's clothes at his de facto residence, and (c) the safe contained cocaine. Why cannot an inference of a conspiracy involving respondent and those other defendants be drawn from those facts?
7. Finally, there was the extensive opinion evidence adduced by Detective Tomlin which, to its credit, the majority references.[2] Tomlin was asked for his "opinion as to what was taking place based on your observations." He responded that, in his opinion, "this was a large scale, larger than what's been seen in some time, cocaine distribution . . . in Sonoma County." He explained that, from his experience, he was aware that the "Bay Area is one of the central points where narcotics coming out of other countries will come in and then be distributed out to other areas" and that respondent was making his frequent "trips to the Bay Area and pick up quantities of cocaine." He was then "bringing his narcotics back into Sonoma County" and selling them there and "using Mr. Floyd to assist him in distributing the narcotics at the street."
Tomlin went on to opine that Scheiner and Gearardo (a married couple) "were assisting" respondent "by allowing him to keep the cocaine at their residence so that he could avoid detection. In exchange for them allowing him to do this, he was paying them with cocaine to support their habit" and "storing narcotics there to avoid detection." Respondent was, in Tomlin's opinion, "the ringleader of this operation" and used Floyd to sell "cocaine at a smaller level on the street."
Finally, Tomlin opined that the reason respondent listed his residence with his parole officer as the Branching Way house in Petaluma (a house owned by his father) was that the residence of a person on parole is subject to search at *427 any time and that, in fact, respondent "was using Grandview Way in Rohnert Park as kind of his home base where he was living with his pregnant girlfriend."
V.
All of the above convinces me that there was indeed "some slight or prima facie" level of evidence adduced "in addition to" the admissions of former codefendants Floyd and Scheiner (Alvarez, supra, 27 Cal.4th at pp. 1171, 1165, 1177) to satisfy the corpus delicti rule.[3] It seems clear, therefore, that this was not a prosecution directed at "a crime that never happened." (Id. at p. 1169.)
Reinforcing this conclusion are the arguments made by this respondent's counsel at the section 995 hearing. There, he contended that the magistrate who conducted that preliminary hearing had been "correct" that there had been "no independent evidence of an agreement," and then added that there were "[n]o inferences that could be drawn from the evidence that was presented of the agreement."[4] The trial court appeared to agree with this argument, as it stated a few pages later: "I need to focus on the evidence before we get to the statements. What I'm deciding is whether those statements should come in. So I'm really not considering those statements at all until I make a ruling on whether or not those statements should come in in regards to conspiracy."
As noted above, in his brief to us, defendant and respondent concedes that the trial court erred in excluding those statements. However, he continues, any such error was and is harmless because, even considering those statements, there was insufficient independent evidence of a conspiracy. The majority essentially agrees with this argument.
I believe that such a conclusion is simply not consistent with the principles articulated by our Supreme Court in Alvarez. As noted previously, that court specifically stated that (1) "independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible," (2) "once the necessary quantum of independent evidence is present, the . . . *428 extrajudicial statements may then be considered for their full value to strengthen the case on all issues," and (3) the requisite independent evidence may be considered "in addition to such statements." (Alvarez, supra, 27 Cal.4th at pp. 1171 & 1165.) I believe there clearly was sufficient evidence presented at the preliminary hearing to permit "an inference of criminal conduct." (Id. at p. 1171.)
I believe the majority substantially ignores the appropriateness of considering both "inferences" and circumstantial evidence because, among other things, my colleagues never cite, much less discuss, this court's discussion of that precise issue in Lipinski, supra, 65 Cal.App.3d at pages 575-576. Rather, the majority asserts: "Although the facts adduced at the hearings certainly supported the prosecution of sales of cocaine by certain of the [individual] defendants, they are insufficient to infer that Powers and his associates conspired to sell cocaine together." (Maj. opn., ante, at p. 410.)
I strongly disagree. The "slight" or "minimal" independent evidence sufficient to permit an inference of such a conspiracy is summarized in part IV. above. Regrettably, the majority neglects to mention, much less consider, much of that evidence (see, especially, paragraphs 3, 4 and 5 of part IV, ante) and, unjustifiably, in my view, essentially rejects the opinion testimony of Detective Tomlin who concluded, among many other things, that defendant Powers-Monachello was "the ringleader of this operation."
To their credit, my colleagues sum up a good deal of the evidence I have outlined above in this highly pregnant sentence: "Certainly the inference can reasonably be drawn that Powers knew the other defendants, that he was deceptive in his behavior; that he had an arrangement to rent space for the safe, which he often visited; and that the safe was found to contain cocaine for sale." (Maj. opn., ante, at pp. 414-415.) But then, and frankly rather startlingly, the majority brushes aside these very correct conclusions with its next sentence: "However, any inferences to be drawn from these facts are limited to Powers." (Id. at p. 415) How can this possibly be so when (1) the safe containing the cocaine was at the house occupied by two other codefendants, (2) that house was regularly entered by Powers without knocking after each and every trip he made out of Sonoma County, and (3) Powers was friendly enough with one of the residents of that house (Scheiner) to be seen working with the latter on the green BMW at that location? Finally, and most importantly, how can the majority's "limited to Powers" conclusion be deemed even slightly consistent with the law regarding inferences of conspiracy as articulated by this court in Lipinski? (See dis. opn., ante, at pp. 421-422.)
*429 In conclusion, I note again the phraseology of the Rayyis opinion, an opinion relied on extensively by both the majority and defendant and respondent (see maj. opn., ante, at pp. 408, 413) and one involving, as here, a preliminary hearing, that "the amount of additional evidence that is required to satisfy the corpus delicti rule (aside from the . . . extrajudicial statements) is `slight' or `minimal.'" (Rayyis, supra, 133 Cal.App.4th at p. 149.) I believe there clearly was such evidence here.
NOTES
[1] Two of the original codefendants, Dan Edward Scheiner (Scheiner) and Dana Deniell Gearardo-Scheiner (Gearardo), who lived at the house where the safe was located, also appealed from the trial court's Penal Code section 995 finding of probable cause, but later abandoned their appeal after negotiating dispositions of the charges against them. A third original defendant, Ryan James Floyd, was never a party to this appeal.
[2] All further statutory references are to the Penal Code unless otherwise noted.
[3] The Sonoma County District Attorney is not represented by the Attorney General.
[4] We refer to the title of the 1982 ballot proposition (also referred to as "Prop. 8") to avoid confusion with subsequent ballot propositions bearing the same number.
[5] "The defendant may object to the admission of his extrajudicial statements on grounds that independent proof of the corpus delicti is lacking." (Alvarez, supra, 27 Cal.4th at p. 1165.)
[6] The crime of money laundering requires either the specific intent to carry on a criminal activity or knowledge that a monetary instrument derives from a criminal activity. (§ 186.10, subd. (a).)
[1] The ruling at issue here involves a combination of a preliminary hearing record and a section 995 hearing. Although the motion brought by respondent was under section 995 subsequent to the prosecution's filing of the information against him, in granting that motion the trial court clearly relied almost entirely on the transcript of the earlier preliminary hearing.
[2] And correctly so, as opinion evidence is admissible as either some or all of the "slight" or "minimal" independent evidence required. (See People v. Ochoa (1998) 19 Cal.4th 353, 450-451 [79 Cal.Rptr.2d 408, 966 P.2d 442]; People v. Malfavon (2002) 102 Cal.App.4th 727, 734-735 [125 Cal.Rptr.2d 618]; Rayyis, supra, 133 Cal.App.4th at p. 151.) Further, all defense counsel at the preliminary hearing, including defendant and respondent's counsel, stipulated to Detective Tomlin's expertise for purposes of that hearing.
[3] Indeed, in his brief to this court, respondent concedes that there was adequate evidence in the record to support six of the 10 overt acts charged in the information.
[4] As the People point out in their briefs to us, this is consistent with the argument made by respondent's counsel at the preliminary hearing. There, that counsel relied on several pre-Alvarez cases in contending that there was insufficient independent evidence of a conspiracy to permit the court to consider the two extrajudicial statements. Those same cases are cited in defendant and respondent's brief to us.
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794 P.2d 682 (1990)
Mark YOVISH, Plaintiff and Respondent,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Appellant.
No. 89-455.
Supreme Court of Montana.
Submitted December 21, 1989.
Decided June 26, 1990.
Rehearing Denied July 19, 1990.
*683 Dennis Tighe, Cure, Borer & Davis, Great Falls, for defendant and appellant.
J. David Slovak, Urgin, Alexander, Zadick & Slovak, Great Falls, for plaintiff and respondent.
HUNT, Justice.
Mark Yovish, plaintiff and respondent, filed suit against United Services Automobile Association (USAA), alleging a wrongful denial of coverage. The Eighth Judicial District Court, Cascade County, sitting without a jury, found in favor of Yovish, awarding him compensatory damages and attorney fees. USAA appeals. We affirm in part and reverse in part.
We will discuss the following issues on appeal:
1. Whether USAA complied with the insurance policy provisions governing renewal so that the policy expired of its own terms prior to the automobile accident in question;
2. Whether the District Court abused its discretion by awarding attorney fees to Yovish.
USAA, an insurance company with a principal place of business in San Antonio, Texas, provides multi-line insurance coverage exclusively to military personnel and their dependents. Mark Yovish, a member of the United States Air Force, insured his 1983 Volkswagen Rabbit with USAA in January, 1983. Yovish paid monthly premiums on the Volkswagen in response to premium notices sent by USAA. The notices indicated the amount due on the policy.
Sometime around May, 1983, Yovish moved from California to Great Falls. He retained his policy with USAA and continued to pay his premiums in response to monthly premium notices sent by the company. In early 1984, he moved from one Great Falls location to another. Consequently, his February, 1984 premium notice was returned to USAA by the post office. This notice indicated that the policy would be renewed for six months beginning February 1, 1984. Although Yovish did not receive the notice or pay the premium until approximately February 10, 1984, USAA backdated the coverage to the beginning of the month, leaving the six-month policy term running from February 1 to August 1, 1984. About this same time, Yovish also received a renewal declarations page to attach to his policy. The declarations page displayed a policy period of February 1 through August 1, 1984.
As USAA did not have any local agents, Yovish occasionally contacted the company by telephone to conduct business or obtain general rate and coverage information. In mid-February, 1984, he called the company for premium quotes. In April, 1984, after securing rental insurance coverage with Farmers, he called USAA to cancel his rental insurance policies.
On June 9 or 10, 1984, he again called the company. At trial, the parties disputed the substance of this conversation. Yovish maintained that he called USAA in June simply to obtain rate and coverage information. USAA, on the other hand, contended that he told the company not to renew the policy in August because he was insuring the automobile with Farmers. Yovish did not receive any written confirmation of the phone call from USAA nor did he receive a notice of non-renewal or cancellation. In fact, the last written notice Yovish received from USAA consisted of a May, 1984 premium notice indicating that, due to the cancellation of his rental policies, the balance on his auto policy was fully paid.
On August 5, 1984, Yovish sideswiped a parked car on a residential street in Great Falls. He admitted liability, and phoned USAA the following day to report the accident. A few days later, USAA denied coverage of the accident, maintaining that Yovish's policy had expired on August 1, 1984, the last day of the six-month policy period. USAA based its denial on the substance of the June telephone conversation.
*684 On the advice of counsel, Yovish forwarded a $408 check to USAA on August 10, 1984 in an attempt to retain coverage from August 1, 1984. The check was cashed by the company but the money was returned to Yovish in late August.
Total damages incurred in the accident amounted to $3,634 $1,843 for Yovish's vehicle and $1,791 for the other car. After USAA refused to accept the claim, Yovish was forced to take out a $3,000 loan at 10 percent interest to cover the damages.
On April 25, 1985, Yovish instituted suit against USAA, asserting that USAA's rejection of the claim and alleged failure to comply with statutory notice provisions governing insurance companies constituted oppressive and malicious conduct. On December 23, 1986, the District Court denied USAA's motion for summary judgment. A bench trial commenced on December 31 of that year. On February 24, 1989, over two years later, the court issued findings of fact, conclusions of law and order, awarding Yovish $3,384 in compensatory damages (total damages of $3,634 offset by $250 deductible) and $322 in interest. The court denied Yovish's prayer for punitive damages but granted his request for attorney fees. On May 4, 1989, the court denied USAA's motion to amend the judgment with respect to the award of attorney fees. Following a hearing, the court awarded attorney fees in the amount of $8,703. USAA appealed to this Court.
USAA argues that it fully complied with both the policy provisions and statutory law governing renewal and non-renewal of auto insurance policies. Therefore, USAA maintains, it was not required to provide coverage for the car accident of August 5, 1984, because the policy had expired of its own terms on August 1, 1984 due to Yovish's failure to pay the renewal premium.
Montana's insurance notice statutes provide that an insurer may not cancel or refuse to renew an insurance policy without furnishing adequate notice of such intent to the insured. Sections 33-23-212 and 33-23-214, MCA. The statutes were enacted in order to prevent lapses in insurance coverage by supplying insureds with sufficient time to obtain insurance elsewhere. See Cantrell v. Benefit Ass'n of Ry. Employees, 136 Mont. 426, 431, 348 P.2d 345, 348 (1960). Preventing lapses in insurance coverage assures that drivers do not travel the state's highways without the benefit of insurance protection.
Many insurance policies possess similar notice provisions. As long as the terms in the policy regarding notice do not restrict the rights of Montana citizens given by the insurance notice statutes, the terms do not defeat public policy and are therefore valid. Because an insurance policy constitutes a contract between the parties, this Court will interpret the terms of the policy according to contract law. Universal Underwriters Ins. Co. v. State Farm Mut. Ins. Co., 166 Mont. 128, 135, 531 P.2d 668, 673 (1975). However, if a contractual term restricts the rights of the insured, we will construe the contract by looking to the statutes governing insurance law.
In the present case, the relevant policy provisions do not restrict the statutory rights of the insured. Therefore, we shall decide this case by construing the terms of the policy.
The applicable policy terms provided as follows:
Non-renewal. If we decide not to renew or continue this policy, we will mail notice to the named insured shown in the Declarations at the address shown in this policy. Notice will be mailed at least 20 days before the end of the policy period. If the policy period is other than 1 year, we will have the right not to renew or continue it only at each anniversary of its original effective date.
Automatic Termination. If we offer to renew or continue and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer. (Emphasis added.)
*685 The policy was unambiguous. The clause concerning automatic termination required USAA to offer to renew the policy. Yovish's obligation to pay the premium was contingent upon USAA's offer to renew. Once USAA offered to renew the policy, Yovish could accept the offer by paying the renewal premium. The policy could automatically expire only if USAA extended an offer of renewal to Yovish and Yovish rejected that offer by failing to pay the premium when due.
USAA acknowledges that it failed to send Yovish any written offer of renewal. It neglected to forward Yovish either a premium notice or a renewal declarations page, as had been its practice in previous dealings with Yovish. Because USAA failed to offer to renew the policy, it failed to comply with the terms of the automatic termination clause. Thus, it cannot rely on that clause for the proposition that the policy automatically expired on August 1, 1984, the final day of the policy period.
USAA also neglected to mail Yovish notice of its intent not to renew as mandated by the non-renewal clause. Nevertheless, USAA argues that it did not need to mail Yovish written notice of non-renewal because Yovish, not USAA, had decided not to renew the policy.
USAA bases this argument on the substance of the disputed June, 1984 phone call. The District Court, however, found that Yovish called USAA in June, 1984, simply to obtain rate and coverage information and that he did not inform the company during the conversation that he did not intend to renew or otherwise cancel the policy. These findings are not clearly erroneous.
Yovish testified that the June telephone conversation was extremely brief and that it concerned only ballpark estimates about rates and coverages. He maintained throughout his testimony that he did not request cancellation of his coverage with USAA nor did he inform USAA that he did not wish to renew his coverage after the next expiration date. His testimony was supported by the deposition testimony of his roommate, who was present during the telephone conversation in question.
Yovish's testimony was also supported by his conduct. The record indicates that he had always taken great care to insure his property. He cancelled his USAA rental insurance policies in April, 1984, only after securing other insurance. Yet he did not obtain other insurance after the June, 1984 phone call, as would have been his normal course of conduct had he not intended to renew his coverage with USAA. Furthermore, he contacted USAA immediately after the accident, indicating that he believed that he was still covered by that insurer.
Carole Thomas, the USAA employee who took the June phone call, disputed Yovish's testimony. Thomas contended that Yovish could not have requested or received rate information because the computers were down at the time he called. She further testified that he informed her that he would not be renewing his automobile coverage, that he would be insuring with Farmers instead.
USAA contends that Thomas's testimony was inherently more credible than Yovish's because Thomas's statement was supported by a written memorandum of the telephone conversation. This is not so. Although a written memorandum may lend credence to a witness's testimony, it is not necessarily more reliable than another witness's verbal recollection of an event.
The written memo introduced by USAA was not entirely free of errors. The memorandum possessed at least two inaccuracies, the wrong date and Yovish's incorrect insurance status. The District Court could reasonably have questioned both the trustworthiness of the memo as well as Thomas's reliability when she testified that she incorrectly assumed that Yovish was a dependent of a subscriber rather than a subscriber in his own right due to the immaturity of his voice. The court could also have viewed Thomas's ability to recall the conversation accurately with a degree of skepticism considering the fact that she received between 40 and 50 telephone calls per shift.
*686 The present case is particularly appropriate for limited review. The parties hotly contested the substance of the June telephone conversation, thus calling the credibility of the witnesses into question. The District Court had the opportunity to listen to the testimony of both witnesses before making its decision, a decision that is not clearly erroneous. We will not second guess its judgment.
Because the District Court found that Yovish had not communicated to USAA a desire not to renew his policy, USAA was compelled to comply with the policy terms governing renewal. The policy required USAA to send Yovish written notice of non-renewal. USAA admits that it neglected to send any such notice.
Where the insurer has failed to comply with the policy terms regarding renewal and notice of non-renewal, the insurance policy does not expire of its own terms and the insurer cannot deny coverage to the insured for an accident that occurs after the renewal date. Accord Sausen v. American Family Mut. Ins. Co., 121 Wis.2d 653, 360 N.W.2d 565 (Ct.App. 1984); Barbara Corp. v. Bob Maneely Ins. Agency, 197 N.J. Super. 339, 484 A.2d 1292 (App. Div. 1984); National Automobile and Casualty Ins. Co. v. California Casualty Ins. Co., 139 Cal. App.3d 336, 188 Cal. Rptr. 670 (1983); Prudential Property & Casualty Ins. Co. v. Pritchett, 169 Ga. App. 564, 313 S.E.2d 706 (1983); Shore v. Coronet Ins. Co., 7 Ill. App.3d 782, 288 N.E.2d 887 (1972); Nationwide Mut. Ins. Co. v. Davis, 7 N.C. App. 152, 171 S.E.2d 601 (1970). Although the cases cited above refer to failure to comply with statutory notice provisions, the same reasoning applies to failure to comply with the contractual provisions in this case, where the policy provided that automatic termination was contingent upon an offer of renewal extended by the insurance company and that the insurer was required to supply the insured with written notice of non-renewal.
USAA next argues that the District Court abused its discretion by awarding attorney fees to Yovish. USAA does not dispute the reasonableness of the amount of attorney fees, for it stipulated that the $8,703 fee was reasonable. USAA does contest the propriety of any attorney fee award at all in this case.
Generally, attorney fees may not be awarded to a prevailing party in the absence of a specific statute or a contractual provision granting fees. Martin v. Crown Life Ins. Co., 202 Mont. 461, 469, 658 P.2d 1099, 1104 (1983). This action presents neither a statutory nor a contractual basis for an award of attorney fees. Nor does it fall within one of the narrow exceptions to the general rule regarding attorney fees. Therefore, we agree that the District Court abused its discretion in awarding fees.
We have approved awards of attorney fees in the absence of a specific statute or contractual provision granting the right to attorney fees in cases where an insurer has breached its obligation to defend an insured. Lindsay Drilling & Contracting v. United States Fidelity & Guar. Co., 208 Mont. 91, 676 P.2d 203 (1984); Truck Ins. Exch. v. Wolstad, 212 Mont. 418, 687 P.2d 1022 (1984); Home Ins. Co. v. Pinski Bros., Inc., 160 Mont. 219, 500 P.2d 945 (1972). The present case, however, is not a case where an insurer has wrongfully refused to defend an insured but where an insurer has wrongfully refused to provide coverage to an insured. Although the distinction may be slight, we hesitate to expand the exception to the general rule without legislative authority. See Martin, 202 Mont. at 469, 658 P.2d at 1104; Tynes v. Bankers Life Co., 224 Mont. 350, 369, 730 P.2d 1115, 1127 (1986).
We understand that the failure to award attorney fees in cases such as the present one may result in circumstances where the entire compensatory award is consumed by the costs of litigation. We also recognize that the failure to grant attorney fees may force insureds with modest claims simply to accept an insurer's erroneous denial of coverage. Nonetheless, the legislature, not the courts, must remedy the wrongs created by this situation.
Affirmed as to the award of compensatory damages. Reversed as to the award of attorney fees.
*687 TURNAGE, C.J., and HARRISON, BARZ, SHEEHY, McDONOUGH and WEBER, JJ., concur.
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392 Mass. 663 (1984)
467 N.E.2d 208
MAYOR OF SALEM
vs.
WARNER AMEX CABLE COMMUNICATIONS INC.
Supreme Judicial Court of Massachusetts, Essex.
May 9, 1984.
August 8, 1984.
Present: HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN, & O'CONNOR, JJ.
Mary P. Harrington, Assistant City Solicitor, for the plaintiff.
Walter H. Mayo, III, for the defendant.
NOLAN, J.
The issue presented in this case is whether the 1979 amendment to G.L.c. 166A, § 15 (St. 1979, c. 249, § 3[1]), *664 and the regulations promulgated thereunder,[2] apply to a license issued by the mayor of the city of Salem (Salem) to Warner Cable of Salem, Inc.[3] (Warner), which granted Warner the right to construct and operate a community antenna television (CATV) system. The parties entered into this license agreement on July 7, 1977, nearly two years before the effective date of the amendment. We conclude that the 1979 amendment, as well as the newly promulgated regulations, do not apply to the Warner license. Therefore, we reverse the judgment of the Superior Court and order that a judgment be entered in favor of Salem which declares the rights of the parties. Boston v. Massachusetts Bay Transp. Auth., 373 Mass. 819, 829 (1977).
On July 7, 1977, Salem granted Warner a fifteen-year license to construct and operate a CATV service in the city. Salem derived its authority to grant such a license from G.L.c. 166A, §§ 1 (d) & 3. Paragraph 10 of the license agreement provided that "[t]he subscriber shall pay to the Licensee for the regular service received hereunder, the following charges [detailed in the contract], which shall not be changed except pursuant to the provisions of General Laws c. 166A and any rules and regulations of the Massachusetts CATV Commission promulgated thereunder" (emphasis supplied).
The regulations in effect at the time the parties entered into the agreement required the licensee to file a petition with the issuing authority, i.e., the municipality, when requesting a rate change. The issuing authority, upon receiving the petition, *665 was obligated to conduct a public hearing and file a report with the Community Antenna Television Commission (Commission) and with all parties. 207 Code Mass. Regs. §§ 6.04-6.05 (1975). A licensee adversely affected by the issuing authority's report could file a subsequent petition with the Commission, which was then obligated to conduct a hearing de novo. No change in the rates and charges could become effective except upon the issuance of a certificate of verification or order by the Commission. 207 Code Mass. Regs. § 6.06 (1975).
In 1979, the Legislature amended G.L.c. 166A, § 15. St. 1979, c. 249, § 3. This amendment authorized the Commission to suspend rate regulation in cities and towns where competitive alternatives exist.[4] On July 25, 1980, after extensive investigation and research, the Commission issued its Competitive Standard Rulemaking Report and Order, Docket No. R-4, which essentially outlined and defined the competitive alternative standard. The Commission also promulgated regulations governing the application of the competitive alternative standard. 207 Code Mass. Regs. §§ 6.51-6.53 (1980).
In those municipalities where the Commission suspends regulation, a licensee need only file with the Commission and the issuing authority a schedule of all changes in the rates and charges thirty days prior to the effective change. 207 Code Mass. Regs. § 6.55 (1980). In its report and order, the Commission suspended regulation of rates in numerous cities, including Salem. A city with a consolidated cable system meeting the competitive alternative standard in 207 Code Mass. Regs. § 6.53 (1980) may initiate a proceeding to show that adequate competitive alternatives to regular service do not exist. 207 Code Mass. Regs. § 6.56 (2) (1980). The record does not indicate that Salem initiated such a proceeding.
Warner notified Salem of its intent to increase rates and charges. These rates and charges were subsequently increased *666 on January 1, 1983. As a result, Salem instituted a complaint seeking a declaration that G.L.c. 166A, § 15, as amended through St. 1979, c. 249, § 3, and the regulations promulgated pursuant to the amendment, do not apply to Warner's license. In the alternative, Salem requested that the license be declared null and void as the intent and purposes of Salem would be frustrated by application of the amended law. Cross motions for summary judgment were filed by Salem and Warner. The judge granted Warner's motion for summary judgment, denied Salem's motion for summary judgment, and entered judgment in favor of Warner. Salem appealed, and we transferred the case to this court on our own motion.
Warner argues that G.L.c. 166A, § 15, as amended through St. 1979, c. 249, § 3, and the regulations promulgated thereunder, apply to the license agreement for three reasons: (1) the language of paragraph 10, which subjects proposed rate changes to G.L.c. 166A and any rules and regulations promulgated by the Commission, demonstrates that the parties contemplated application of future amendments; (2) the statutory language found in the amendment indicates that the Legislature intended retroactive application of the amendment to licenses issued prior to the amendment; and (3) Salem's authority to regulate rate changes and to issue licenses was freely revocable by the Legislature at any time. We are unpersuaded by these arguments.[5]
First, the language in paragraph 10 of the license agreement does not indicate that the parties intended future amendments to G.L.c. 166A and to the regulations promulgated thereunder to apply to the license agreement. As a general rule, the law in existence at the time an agreement is executed necessarily becomes part of the agreement. Feakes v. Bozyczko, 373 Mass. 633, 636 (1977). Amendments enacted after execution are not incorporated into an agreement unless the contract provisions *667 "clearly establish that the parties intended to incorporate subsequent enactments into their agreement." Id. We must therefore examine the expectations and intentions of the parties at the time the agreement was executed.
We find the omission of the words "and amendments thereto" in paragraph 10 of the license agreement significant. See United States Mortgage Co. v. Matthews, 293 U.S. 232, 237 (1934). At the time the contract was entered into, the regulations required the licensee to file a petition of proposed rate changes initially with the issuing authority. This afforded the municipality considerable control over any increases in rates to subscribers. 207 Code Mass. Regs. §§ 6.04-6.05 (1975). Paragraph 10 of the license agreement sets forth a comprehensive rate scheme which limits the amounts to be charged to subscribers. Clearly this detailed approach demonstrates Salem's concern with control over rate increases, and Warner's acquiescence in the exercise of that control. Salem, therefore, relied on its power to screen, through public hearing, any proposed rate changes. 207 Code Mass. Regs. §§ 6.04-6.05 (1975). The parties never intended to include future amendments to G.L.c. 166A, § 15, which effectively deregulate rates and charges and leave Warner with absolute control over the amount of increase.
Second, Warner's argument that the Legislature intended that the amendment operate retroactively to supersede the provisions of the license agreement is also without merit. "The general rule of interpretation is that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations." City Council of Waltham v. Vinciullo, 364 Mass. 624, 626 (1974), quoting Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914). Unless statutory language is clear and unambiguous, an amendment affecting substantive rights will have prospective effect only. Hein-Werner Corp. v. Jackson Indus., Inc., 364 Mass. 523, 525 (1974).
*668 Warner argues that the language in the amendment which provides "the commission may ... suspend regulation of rates and charges in any cable television system upon a finding that adequate competitive alternatives exist," indicates that suspension of rate regulation was intended to supersede any rate regulatory provisions in existing licenses. We do not agree. Nothing in the amendment indicates retroactive intent. Contrast Massachusetts Ass'n for the Blind v. Assessors of Brookline, 391 Mass. 384, 390-391 (1984). The amendment, if applied to the license agreement, would effectively alter a substantive provision in the contract. The alteration is neither procedural nor does it affect only the remedies of the parties. City Council of Waltham v. Vinciullo, supra. In the absence of language indicating retroactive intent, we decline to apply this amendment to the license agreement.
Finally, the defendant suggests that the Legislature, through the statutory amendment, and the Commission, through the newly promulgated regulations, are merely revoking Salem's powers to regulate rates and charges. We acknowledge the Legislature's authority to confer directly or indirectly through the Commission the power to regulate rates upon a city or town and also to reassume those powers at will. See Warner Cable of Mass. Inc. v. Community Antenna Television Comm'n, 372 Mass. 495, 503-504 (1977); Opinion of the Justices, 334 Mass. 721, 735-736 (1956); Boston Provincetown S.S. Line v. Selectmen of Provincetown, 323 Mass. 725, 729 (1949). We also agree that the Legislature, through St. 1979, c. 249, § 3, has permitted the Commission to deregulate or suspend government rate regulation in cities and towns where competitive alternatives exist, and has allowed free competition to regulate the rates and charges in those areas. The resultant addition of regulations merely recaptures, in those cities and towns where adequate competitive alternatives exist, the power to review rate increases which had previously been granted.
However, as discussed earlier in this opinion, we believe that the Legislature did not intend to reassume those powers retroactively. The Commission, prior to the effective date of *669 the amendment, had no authority to suspend regulation of rates and charges in cities and towns where adequate competitive alternatives existed. This new authority cannot be applied retroactively to Warner's license agreement. The resultant alteration of the substantive rights of the parties would be unwarranted in the absence of clear retroactive intent.
Moreover, sound public policy dictates the extension of Salem's authority to control increases in rates and charges for the period of the contract. The contract for services was executed in accordance with specific statutory authority, and was made in good faith and for the public benefit. Therefore, it should be enforced as the parties intended. Cf. Woburn Golf & Ski Auth. v. Woburn Country Club, Inc., 365 Mass. 415, 419 (1974); Duggan v. Taunton, 360 Mass. 644, 650-651 (1971).
For these reasons, we conclude that the regulations in effect prior to the effective date of St. 1979, c. 249, § 3, govern the Warner license.[6] We reverse the judgment in favor of Warner and order judgment entered in favor of Salem. However, summary judgment with no declaration of rights is generally not appropriate in a declaratory judgment action. Boston v. Massachusetts Bay Transp. Auth., 373 Mass. 819, 829 (1977). Thus we order that the judgment declare that the license agreement is not subject to St. 1979, c. 249, § 3, or to the subsequently promulgated regulations.
So ordered.
NOTES
[1] Statute 1979, c. 249, § 3, added the following language to the first paragraph of G.L.c. 166A, § 15: "Notwithstanding any other provision of this paragraph, the commission may, after due hearing and investigation, suspend regulation of rates and charges in any cable television system upon a finding that adequate competitive alternatives exist to the provision of services offered by cable television systems. In the event of such a suspension, the commission shall, by oversight and surveillance, review periodically any facts or standards employed in determining the presence of said competition."
[2] The Community Antenna Television Commission (Commission) in 1980 promulgated regulations which effectively deregulated rates and charges in cities and towns where adequate competitive alternatives exist. 207 Code Mass. Regs. §§ 6.51-6.58 (1980). The Commission found that adequate competitive alternatives existed in Salem. See Community Antenna Television Commission, Doc. No. R-4, Competitive Standard Rulemaking Report and Order, App. A, at iii (1980).
[3] Warner Cable of Salem, Inc., has since been dissolved and has been succeeded by Warner Amex Cable Communications Inc.
[4] The competitive alternative standard is defined in 207 Code Mass. Regs. § 6.53 (1980) as follows: "Adequate competitive alternatives to regular cable television service exist in any cable system which is located wholly within the predicted Grade B contour of three unduplicated network signals and which has a subscriber saturation level of 70% or less."
[5] It is important to note that neither party has raised a constitutional argument based on the contract clause of the United States Constitution. We therefore need not address this issue. Commonwealth v. Appleby, 389 Mass. 359, 375 n. 27 (1983). Mass. R.A.P. 16 (a) (4), as amended, 367 Mass. 919 (1975).
[6] We need not address Salem's frustration of purpose argument, because we hold that G.L.c. 166A, § 15, as amended through St. 1979, c. 249, § 3, does not apply to the license agreement.
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458 Pa. 479 (1974)
Hetherington
v.
McHale et al., Appellants.
Supreme Court of Pennsylvania.
Argued January 17, 1974.
November 22, 1974.
*480 Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Larry Silver, Deputy Attorney General, with him Israel Packel, Attorney General, for appellants.
*481 K.L. Shirk, Jr., with him Shirk, Reist and Buckwalter, for appellees.
Edward C. Hussie and Stephen C. MacNett, for amicus curiae.
OPINION BY MR. JUSTICE ROBERTS, November 22, 1974:
In these appeals from the Commonwealth Court, we are called upon to determine the constitutionality of a statute which grants to three private organizations absolute authority to designate a controlling number of the members of a Commonwealth committee responsible for the disbursement of substantial public funds. The Commonwealth Court determined that the statute is valid. Because we conclude that the power to appoint persons to conduct governmental functions cannot be delegated to private organizations, we hold the selection procedures of the challenged statute unconstitutional. We reverse.
The challenged statutory provision is an amendment to section 16(e) of the Pennsylvania Harness Racing Act.[1] It became law on September 20, 1972, when the *482 General Assembly enacted the amendment over the Governor's veto.
Section 16 provides for the allocation of revenue collected pursuant to the Pennsylvania Harness Racing Act. After mandating certain disbursements, subsection (e) provides that half the remaining funds of $400,000, whichever is greater, shall be allocated for agricultural research projects selected by a committee of seventeen including six persons designated by the Pennsylvania Council of Farm Organizations, one person designated by the Pennsylvania Canners and Fruit Processors Association and one person designated by the Pennsylvania Association of County Fairs.
Following enactment of the amendment, the Secretary of Agriculture notified the Pennsylvania State Council of Farm Organizations of a scheduled meeting of the committee. The Council selected appellees as its designees. On April 4, 1973, one day prior to the scheduled session, the Pennsylvania Attorney General *483 issued Official Opinion No. 30 in which he advised the Secretary of Agriculture that the mandate of section 16(e) to include on the committee eight designees of private groups is unconstitutional. He further advised the Secretary that "you must refuse to recognize these persons as members of the Committee." In compliance with this opinion, the Secretary of Agriculture refused to seat these designees.
Appellees filed three actions in the Commonwealth Court: an action in equity to enjoin the committee from meeting or taking action in appellees' absence and separate actions in quo warranto and mandamus to obtain judicial enforcement of their appointments. Appellants filed preliminary objections in the nature of a demurrer in each of the actions.
The Commonwealth Court overruled appellants' objections.[2] It held (1) that the statute did not violate the Constitution (2) that the Attorney General lacked the authority to unilaterally implement his opinion as to the unconstitutionality of a statute.[3] These appeals ensued.[4]
In adjudicating the merits of these appeals, the standard of review is clear. "`An Act of [the General] Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution.'" Daly v. Hemphill, 411 Pa. 263, 271, 191 *484 A.2d 835, 840 (1963); see also Absentee Ballots Case, 431 Pa. 178, 181-82, 245 A.2d 265, 267 (1968). The challenged statute does so.
A fundamental precept of the democratic form of government imbedded in our Constitution is that the people are to be governed only by their elected representatives. Section 16(e) violates this principle by surrendering to private organizations the power to select eight of seventeen members of a committee responsible for the disbursement of public funds. Neither the Legislature nor the Governor may reject the appointees of these private groups. And it is unclear that either could remove these designees, for the power to appoint governmental officials includes the power to remove them. Pa. Const. article VI, section 7.
In fact, the people of this Commonwealth, through their duly elected representatives, have no voice in the appointments of those selected by these three private groups. No opportunity is provided for the public interest to assert itself. Instead, private groups responsive only to the interests of their membership choose those charged with performing governmental functions.
This Court has previously held that governmental powers cannot be delegated to private individuals or organizations. For example, in Olin Mathieson Chemical Corp. v. White Cross Stores, Inc., 414 Pa. 95, 199 A.2d 266 (1964), we invalidated the Pennsylvania Fair Trade Act's "non-signers" provision. In that case, Mr. Justice EAGEN, speaking for the Court stated: "Price regulatory power vests only in the elected legislative body. It may in limited ways be delegated to other responsible governmental agencies, such as public service or utility commissions . . . . However, it may not be delegated to private persons. The vesting of a discretionary regulatory power over *485 prices, rates or wages, in private persons violates the essential concept of a democratic society and is constitutionally invalid." Id. at 98-99, 199 A.2d at 267-68.
We are equally concerned with the preservation of the "essential concepts of a democratic society" when the power delegated is the authority to make appointments to a committee exercising governmental functions. The power to select those who make public decisions is too vital a part of our scheme of government to be delegated to private groups. Olin Mathieson, supra; cf. Pa. Const. article IV, section 8.
Appellees contend, however, that because they represent a large number of Pennsylvania farmers, they are more aware of the needs of agriculture than are the popularly selected branches of government. No doubt the organization that designated appellees does have an understanding of farm problems. Nevertheless, claims of expertise do not sap the vitality of the fundamental principle that we are to be governed by our elected representatives in accordance with the Constitution.
In a similar context the Supreme Judicial Court of Massachusetts reasoned that expertise does not justify delegation of the appointment power to politically unresponsive groups: "Their [private interest groups'] memberships undoubtedly contain many individuals as well qualified as any who may be found to serve on the commission. But each individual is accountable solely to his own respective organization and has no connection with any branch of government in which the sovereign power is lodged by our Constitution." Opinion of the Justices, 337 Mass. 777, 784, 150 N.E.2d 693, 698 (1958).
Appellees contend that the process by which they were appointed does not affect the validity of their appointments because the statute contains some standards *486 by which they must abide. See Chartiers Valley Joint Schools v. Allegheny County Board of School Directors, 418 Pa. 520, 211 A.2d 487 (1965); see also Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 79 n.27, 313 A.2d 156, 170 n.27 (1973). This contention however misses the mark. Statutory standards provide no substitute for the processes of representative government[5] which requires that persons who make governmental decisions be either elected by the people or appointed by the representatives chosen by the people.
In the past, this Court has vigilantly guarded the right of the people to representative government. When the necessity arose, we struck down legislation designed to impermissibly delegate governmental policy making to private parties. See, e.g., State Board of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 293, 272 A.2d 478 (1971); Olin Mathieson Chemical Corp. v. White Cross Stores, Inc., 414 Pa. 95, 199 A.2d 266 (1964). Now we must again hold invalid a statutory attempt to dilute the people's right to be governed only by their constitutionally chosen representatives.
Courts of other states have also recognized the danger to constitutional government posed by delegation of public decisionmaking to private interest groups. The Supreme Judicial Court of Massachusetts held unconstitutional a virtually identical provision. That court said: "We think that it would not be proper to authorize the selection of persons to expend public funds by organizations or groups not themselves public bodies or made up of public officers." Opinion of the Justices, 337 Mass. 777, 784, 150 N.E.2d 693, 698 (1958). See also Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 362 (Mass. 1973).
*487 The Supreme Court of Delaware struck down a statute that granted to the chairman of a political party the power to appoint the members of a state agency. It concluded: "[T]he Legislature can not [sic] delegate to the State Chairman of a political party, which is a voluntary organization of individuals, accountable to no one except its own organization, having no connection with the three branches of government in which the sovereign power of government is lodged by the Constitution, the power to appoint the members of a state agency . . . ." State ex rel. James v. Schorr, 45 Del. 18, 25, 65 A.2d 810, 813 (1948).
See also Bayside Timber Co. v. Board of Supervisors, 20 Cal. App. 3d 1, 97 Cal. Rptr. 431 (1st Div. 1971); Zale-Las Vegas, Inc. v. Bulova Watch Co., 80 Nev. 483, 396 P.2d 683 (1964); Fink v. Cole, 302 N.Y. 216, 224-25, 97 N.E.2d 873, 876 (1951) (licensing power); State v. Watkins, 259 S.C. 185, 203, 191 S.E.2d 135, 143-44 (1972), vacated on other grounds, 413 U.S. 905, 93 S. Ct. 3053 (1973) (power to censor movies); The House of Seagram, Inc. v. Assam Drug Co., 85 S.D. 27, 176 N.W.2d 491 (1970).
Here as in Olin Mathieson, the Opinion of the Justices and James, it must be concluded that the Constitution prohibits delegation to private groups of the power to make governmental appointments. Since the process by which appellees were designated violates this principle, it is unconstitutional.
The order of the Commonwealth Court is reversed and the preliminary objections of the appellants are sustained.
Mr. Justice MANDERINO joins in this opinion.
Mr. Justice EAGEN concurs in the result.
CONCURRING OPINION BY MR. JUSTICE MANDERINO:
I agree with Mr. Justice ROBERTS' majority opinion. The legislative branch cannot constitutionally *488 allow private organizations to appoint persons to government positions. A citizen who is not a member of the private organization has no control over that organization. Indeed, a particular citizen may not be eligible for membership or may not be able to pay the initiation fee or dues. Yet, the legislative action here would give such a private organization authority to choose people who will decide how to spend that citizen's tax money.
Private interest groups indirectly play an important role in our system of government. Any member of these groups may be appointed to any committee, as a knowledgeable citizen with particular expertise in a given area. It may be that specific private organizations or their leaders can be designated as members of advisory governmental committees which have completely nonbinding powers. Such is not the case before us however. Under the guise of creating a committee of the executive branch, the legislative branch in this case delegated, to a private organization, governmental authority to expend public funds and to appoint persons to governmental positions. This the legislature may not do.
Moreover, this legislative enactment usurps authority which belongs to the executive branch. "The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed." Pa. Const. art. IV, § 2. The legislature's membership choice might be completely inimicable to a Governor's intentions, convictions, philosophies or campaign promises. If, in this case, the legislature could establish the committee and designate its members, why could it not establish a committee to run any cabinet department, tell a Governor who is to serve on the committee, and thereby render the Executive totally ineffective as a separate branch of government. The potential for thus rendering the executive branch ineffective *489 in any given area is great, and involves an unconstitutional encroachment by the legislature upon the executive branch of government.
DISSENTING OPINION BY MR. CHIEF JUSTICE JONES:
The challenged provision of Act No. 212 of 1972 permits three private organizations the Pennsylvania State Council of Farm Organizations, the Pennsylvania Canners and Fruit Processors Association and the Pennsylvania Association of County Fairs to designate, i.e., appoint, eight of seventeen members of the committee charged with the task of approving and overseeing the expenditure of excess proceeds in the Pennsylvania Fair Fund for agricultural research projects. The majority contends that the statutory provision is unconstitutional as an improper delegation of legislative power. In evaluating this charge, we proceed, as the majority correctly points out, in compliance with the well-settled rule that an act of the General Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution. Absentee Ballots Case (No. 2), 431 Pa. 178, 181-82, 245 A.2d 265, 267 (1968); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963); Rubin v. Bailey, 398 Pa. 271, 157 A.2d 882 (1960). I believe that the majority has misapplied this standard.
Article II, Section 1 of the Pennsylvania Constitution of 1968 provides that: "The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives." The legislative power is indisputably the power to make laws. See, e.g., Baldwin Township's Annexation, 305 Pa. 490, 158 A. 272 (1931). In control of the State's finances, the General Assembly is supreme; appropriations may be made for whatever purposes and in whatever amounts the legislature deems desirable, subject to certain well-settled constitutional *490 limitations on its exercise of legislative power. See Commonwealth ex rel. Schnader v. Liveright, 308 Pa. 35, 161 A. 697 (1932). Two of these limitations, the prohibition of special laws and the rule against delegation of law-making power, are pertinent to the present case.
It is fundamental that the General Assembly cannot delegate its power to make laws to any other branch of government, or to any other body or authority. Chartiers Valley Joint Schools v. Allegheny County Board of School Directors, 418 Pa. 520, 211 A.2d 487 (1965); Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587 (1957); Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A.2d 277 (1947); Holgate Brothers Co. v. Bashore, 331 Pa. 255, 200 A. 672 (1938). In State Board of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 293, 297, 272 A.2d 478, 481 (1971), we recently delineated the bounds of legislative power in light of the non-delegation principle: "While not specifically set forth in the Constitution, the non-delegation rule is a natural corollary to Article II, § 1 since it requires that the basic policy choices involved in `legislative power' actually be made by the Legislature as constitutionally mandated. It is generally agreed that the non-delegation principle does not require that all details of administration be precisely or separately enumerated in the statute. `While the legislature cannot delegate power to make a law, it may, where necessary, confer authority and discretion in connection with the execution of the law; it may establish primary standards and impose upon others the duty to carry out the declared legislative policy in accordance with the general provisions of the act.' . . . However, legislation must contain adequate standards which will guide and restrain the exercise of the delegated administrative functions." Chartiers Valley Joint Schools v. Allegheny County Board *491 of School Directors, 418 Pa. at 529, 211 A.2d at 492-93. The question which initially must be answered is whether Section 16(e) of the Pennsylvania Harness Racing Act of 1972 contains standards adequate to guide and restrain the exercise of the delegated administrative function.
The legislative purpose underlying enactment of the contested provisions of the Act is clearly to benefit agriculture throughout the Commonwealth and the public interest therein through public funding of agricultural research projects. While the standard of action in the public interest is not explicitly set forth in the statute, the directive to fund only those projects most beneficial to the public interest is so implicit in the tenor of the statutory provisions of Section 16(e) that it would strain this Court's interpretative powers to construe otherwise. The legislative designation "agricultural research projects" is a sufficiently adequate standard to guide and restrain the exercise of this particular committee's delegated administrative function implementation of the legislative policy determination that a fixed amount of excess proceeds from harness racing should support agricultural research in approving and overseeing the expenditure of public funds. The General Assembly has not, in my estimation, delegated legislative power to the Committee. Indeed, in imposing upon the seventeen individuals the duty to carry out the declared legislative policy, the General Assembly has chosen administrators broadly representative of agricultural interests within the Commonwealth whose expertise could well be expected.[1]
*492 Having determined that the power to implement the declared legislative policy could constitutionally be delegated to an administrative body, we turn to consider whether the appellees, the designees of the Pennsylvania Council of Farm Organizations, as participatory members of the Committee, may constitutionally be charged with the exercise of that power.
This Court has never declared that in making a law to delegate the power to determine the existence of a state of facts or circumstances upon which operation of the law will commence, the General Assembly may not constitutionally allow informed private citizens to participate in the fact-finding process. In its promulgation of the amended provisions of the Harness Racing Act, the General Assembly has declared as a matter of legislative policy that public funds are to be expended to benefit agriculture throughout the Commonwealth. We should not hold that it would be illogical or unreasonable to have represented on the committee charged with implementation of that policy the Pennsylvania Council of Farm Organizations, which itself represents over 63,000 Pennsylvania farmers and forty-three individual farm organizations, and, although not parties to this suit, the Pennsylvania Canners and Fruit Processors Association and the Pennsylvania Association of County Fairs. The comprehensive *493 size, knowledge and agricultural awareness of the three named organizations bespeak their particular suitability to reflect the interests of the agricultural community as a whole and substantiates the legislative logic underlying the designation of their representatives as members of the committee. Where an administrative function has been properly delegated, a classification vesting in private persons or groups the power to participate in administrative actions need not be and is not here constitutionally defective as special legislation.[2]
The declared legislative policy of Act No. 212 is to promote agriculture throughout the Commonwealth. It is difficult to perceive how the public funding of agricultural research projects, whether or not chosen by a committee of whose seventeen members eight represent private agricultural groups, will not inure in the short and long run to the benefit of all Pennsylvanians. These organizations represent the views of a very high percentage of Pennsylvania farmers and agricultural processors upon whose progress the state of agriculture in this Commonwealth depends.
The majority's refrain calling for elected, responsive representation in government tends to unduly romanticize the issue. Certainly no framer of a democratic *494 society ever propagated the idea that all public servants must be elected. Only the highest of our policy-making officials are to be elected. The Pennsylvania Constitution pragmatically provided for the thousands of situations in which public officials must be appointed.
Indeed, in a society of ever-growing complexity and perplexity, our elected officials must have at their disposal a generous admixture of experts to advise them on governmental problems. The majority's decision today closes one avenue by which the specialists may advise our elected leaders.
A relevant consideration is that nine members of this seventeen-member committee are from the "politically responsive" category. The appellees do not constitute a "controlling number" of a Commonwealth committee, as the majority would have us believe. The minority status of appellees as members of the committee charged with implementation of declared legislative policy does not invalidate the otherwise constitutional statutory provision. I agree with the decision of the Commonwealth Court that the inherent presumption of constitutionality has not been overcome.
Mr. Justice O'BRIEN and Mr. Justice POMEROY join in this dissenting opinion.
NOTES
[1] Act of December 22, 1959, P.L. 1978, § 16(e), as amended, 15 P.S. § 2616(e) (Supp. 1974).
"In the event there is in the Pennsylvania Fair Fund an excess over the amount required to make payments specified in subsection (d) above, such excess shall be distributed as follows: ten percent of such excess or seventy-five thousand dollars ($75,000), whichever amount is greater to be used by the Department of Agriculture for marketing and consumer service programs; and fifty percent of such excess or four hundred thousand dollars ($400,000), whichever amount is greater for agricultural research projects, as determined by a committee to include in its membership, the Secretary of Agriculture, the chairman and a minority member of the Agriculture Committee of the Senate, the chairman and a minority member of the Agriculture Committee of the House of Representatives, six persons designated by the Pennsylvania State Council of Farm Organizations, the chairman of the State Harness Racing Commission or his designate, one person designated by the Pennsylvania Canners and Fruit Processors Association, one person designated by the Pennsylvania Association of County Fairs and three persons designated by the Secretary of Agriculture from his staff
"There are hereby created subcommittees, the members of which shall consist of the Secretary of Agriculture or his designate, the chairman of the Agriculture Committee of the Senate or his designate, the chairman of the Agriculture Committee of the House of Representatives or his designate, and a member designated by the group representing the producers involved in the research project which shall meet annually in the month of September to evaluate research projects and report their findings and recommendations to the Secretary of Agriculture and the members of the Committee.
"In the event the amount of money in the Pennsylvania Fair Fund is less than is required to make payments specified in subsection (d) above, the amount granted to each recipient shall be reduced proportionately."
[2] Hetherington v. McHale, 10 Pa. Commonwealth Ct. 501, 311 A.2d 162 (1973).
[3] In view of our disposition of this case, we need not reach the issue of the Attorney General's authority.
[4] The Commonwealth Court certified that its order involved a controlling question of law as to which there is a substantial ground for a difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of this litigation. The Attorney General petitioned this Court for leave to appeal and on December 3, 1973, we granted the petition. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, § 501(b), 17 P.S. § 211.501(b) (Supp. 1974).
[5] 1 K. Davis, Administrative Law Treatise § 2.15 (1958).
[1] The interpretation that Section 16(e) of the Act involves not a delegation of legislative power but only creation of an administrative duty necessarily disposes of appellants' contention that the General Assembly has usurped the Governor's power of appointment. Article IV, Section 8 of the Pennsylvania Constitution provides in part: "(a) The Governor shall appoint an Attorney General, a Superintendent of Public Instruction and such other officers as he shall be authorized by law to appoint." Article VI, Section 1, declares in similarly constrictive language that: "All officers, whose selection is not provided for in this Constitution, shall be elected or provided for as directed by law." As the Commonwealth Court has correctly indicated in its review of this controversy, the Governor's power of appointment is in all respects narrowly defined by the Constitution and by the Legislature. Hetherington v. McHale, 10 Pa. Commonwealth Ct. 501, 514, 311 A.2d 162, 169 (1973).
[2] The majority's reliance on our decision in Olin Mathieson Chemical Corp. v. White Cross Stores, Inc., 414 Pa. 95, 199 A.2d 266 (1964), is misfounded. In that case, we considered only the non-delegability to private persons of the price regulatory power of the General Assembly. State Board of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 293, 272 A.2d 478 (1971), is also inapposite to our considerations. Therein, we invalidated a statute which required chiropractors to attend a two-day conference of a private chiropractic society as a precondition for renewal of their annual registration and license. There was, we concluded, no sound reason or real necessity for such special classification.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
KENNETH REVEN McCLAIN,
Appellant,
v.
JEFFREY K. TERRY,
WILL BUESCHEL, ET AL.,
Appellees.
§
§
§
§
§
§
No. 08-09-00041-CV
Appeal from
County Court at Law No. 2
of Dallas County, Texas
(TC # CC-08-09759-B)
O P I N I O N
This is a pro se inmate’s appeal from a trial court’s orders finding that Kenneth Reven
McClain is not indigent and dismissing his lawsuit with prejudice. For the reasons that follow, we
affirm.
FACTUAL AND PROCEDURAL SUMMARY
On November 12, 2008, Kenneth Reven McClain filed suit against Jeffrey K. Terry and Will
Bueschel for personal injury and defamation pursuant to the Texas Civil Practice and Remedies
Code. That same day, an ex parte application to proceed in forma pauperis signed by McClain was
filed with the clerk. In his affidavit, McClain alleged that he has been incarcerated
for the last three
years, is unemployed, and has no income.
I further declare that the responses which I have made to questions and instructions
below are true.
1. Have you received, within the past 12 months, any money from any of the
following sources?
a. Business, profession or form of sel-employment? No
b. Rent payments, interest or dividends? No
c. Pensions, annuities or life insurance payments? No
d. Gifts or inheritances? [Unanswered]
e. Family of [sic] friends? Yes
f. Any other sources? No
If you answered YES to any of the questions above describe each source of money
and state the amount received from each during the past 12 months.
$2000
2. Do you own cash, or do you have money in a checking or savings account,
including any funds in prison accounts?
Yes.
If you answered YES, state the total value of the items owned.
$800
3. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable
property, excluding ordinary household furnishings and clothing?
No.
McClain signed the affidavit on November 2, 2008, and declared under penalty of perjury that the
information was true and correct. John Warren, Clerk of the County Courts of Dallas County, filed
a contest on November 13 pursuant to Rule 145 of the Texas Rules of Civil Procedure. A hearing
was set for November 21 and McClain was notified via certified mail, return receipt requested. He
did not appear and he does not contend that he sought a bench warrant or requested permission to
participate in the hearing via video conference. Following the hearing, the trial court entered an
order finding that “Kenneth Reven McClain is not indigent.” That same date, the judge signed an
order dismissing McClain’s lawsuit with prejudice pursuant to Section 14.003 of the Texas Civil
Practice and Remedies Code.
ISSUES FOR REVIEW
McClain brings three issues for review. First, he contends that his affidavit did not contain
any false claims or claims that he knew to be false. Second, he submits that his lawsuit had an
arguable basis in law. Third, he alleges that the affidavit was filed accidently or mistakenly by his
father. The procedural posture requires that we first determine whether McClain was indigent.
STANDARD OF REVIEW
We review a trial court’s determination of indigency status for an abuse of discretion.
Maddox v. Texas Dept. of Protective and Regulatory Services, No. 08-02-00200-CV, 2003 WL
21716185, *1 (Tex.App.--El Paso July 25, 2003, no pet.)(not desig. for publication); White v.
Bayless, 40 S.W.3d 574, 576 (Tex.App.--San Antonio 2001, pet. denied); In re Smith, 70 S.W.3d
167, 168 (Tex.App.--San Antonio 2001, no pet.). Similarly, we review a dismissal of an inmate’s
in forma pauperis suit under an abuse of discretion standard. Thomas v. Skinner, 54 S.W.3d 845,
846 (Tex.App.--Corpus Christi 2001, pet. denied). “A [party] who attacks the ruling of a trial court
as an abuse of discretion labors under a heavy burden.” Johnson v. Fourth Court of Appeals, 700
S.W.2d 916, 917 (Tex. 1985)(orig. proceeding). “The test for abuse of discretion is not whether, in
the opinion of [this Court], the facts present an appropriate case for the trial court’s actions. Rather,
it is a question of whether the court acted without reference to any guiding rules and principles.”
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S.
1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Amador v. Tan, 855 S.W.2d131, 133 (Tex.App.--El Paso 1993, writ denied). Another way of stating the test is whether the act was arbitrary or
unreasonable. Downer, 701 S.W.2d at 242, citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439,
443 (Tex. 1984); Amador, 855 S.W.2d at 133. The fact that a trial court may decide a matter within
its discretionary authority in a different manner than an appellate judge in a similar circumstance
does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242, citing
Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965). A mere error of
judgment is not an abuse of discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989).
DETERMINATION OF INDIGENCY
A plaintiff may file an affidavit of indigency in lieu of paying court costs. Tex.R.Civ.P. 145.
“A ‘party who is unable to afford court costs’ is defined as a person who is presently receiving a
government entitlement based on indigency or any other person who has no ability to pay costs.”
Tex.R.Civ.P. 145(a). The affidavit must contain complete information as to the party’s identity, the
nature and amount of governmental entitlement income, nature and amount of employment income,
other income (interest, dividends, etc.), spouse’s income if available to the party, property owned
(other than homestead), cash or checking account, dependents, debts, and monthly expenses.
Tex.R.Civ.P. 145(b). A prisoner at a Texas Department of Criminal Justice who has no money or
property is considered indigent. Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980). An inmate who
has funds in his trust account is not indigent. Tex.Civ.Prac.&Rem.Code Ann. §
14.006(b)(1)(Vernon 2002). The statute outlines a formula by which an inmate’s trust funds can be
utilized for payment of costs. Id.
A defendant or the court clerk may contest an affidavit by filing a written contest giving
notice. Tex.R.Civ.P. 145(d). The court may conduct a hearing and if so, the inmate must be given
notice. Aguilar v. Stone, 68 S.W.3d 1, 2 (Tex.App.--Houston [1st Dist.] 1997, orig. proceeding).
The court may hold a hearing by video communications for an inmate at a jail facility
or consider
the case on submission by requiring that written statements be submitted and copies be provided to
the inmate. Tex.Civ.Prac.&Rem.Code Ann. § 14.009.
We begin with McClain’s argument that the affidavit did not contain false information. The
clerk’s record includes a certified trust fund statement from the prison in which McClain is
incarcerated. He avers that the exhibit demonstrates that he actually had more money in his prison
account than what he claimed in the affidavit. In short, he contends the trust statement proves that
the affidavit correctly stated the monies available to him. He misstates the trial court’s ruling. The
trial court did not find that the affidavit falsely stated his financial situation. The court specifically
found that McClain was not indigent. McClain has not attacked that finding on appeal or assigned
error to the trial court’s ruling. It is in this light that we review the trial court’s dismissal order.
DISMISSAL OF SUIT
Chapter 14 of the Texas Civil Practices and Remedies Code relates to inmate litigation. The
court may dismiss an indigent inmate’s suit even before process is served if the court finds:
(1) the allegation of poverty in the affidavit or unsworn declaration is false;
(2) the claim is frivolous or malicious; or
(3) the inmate filed an affidavit or unsworn declaration required by this chapter that
the inmate knew was false.
Tex.Civ.Prac.&Rem.Code Ann. § 14.003(a); Pedraza v. Tibbs, 826 S.W.2d 695, 698 (Tex.App.--Houston [1st Dist.] 1992, writ dism’d w.o.j.). Because the trial court did not specify the grounds for
dismissal, we will affirm the decision if any theory is meritorious. Walker v. Gonzales County
Sheriff’s Dep’t., 35 S.W.3d 157, 162 (Tex.App.--Corpus Christi 2000, pet. denied), citing Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
A trial court does not abuse its discretion in dismissing a suit when the plaintiff makes a false
allegation of poverty. McCullough v. Dretke, No. 02-07-00294-CV, 2008 WL 4180365, *3
(Tex.App.--Fort Worth Sept. 11, 2008, no pet.). There, McCullough alleged that he was indigent
but stated in the affidavit that he received money from his family. He attached a copy of his trust
account showing a then-current balance of $103.92 and a six-month average balance of $184.92.
McClain alleged he had $2,800. Because McClain’s allegation of poverty was false, the court did
not abuse its discretion in dismissing the suit. We overrule Issue One. Given our resolution of this
issue, it is unnecessary for us to consider Issue Two in which McClain contends that his lawsuit had
an arguable basis in law.
In Issue Three, McClain contends that his father mistakenly filed the affidavit in this lawsuit
rather than in a suit pending in the Supreme Court on writ of certiorari. We recite his argument in
its entirety:
It needs to be noted that Appellant’s 11/12/08 [sic] filed in forma pauperis affidavit,
that didn’t contain false claims or claims in which inmate knew were false, was
actually filed by mistake and accident.
Appellant’s dad was given instructions to file in forma pauperis paperwork with the
petition. But that request was actually in relation to a 12/14/08 Supreme Court
Petition for Writ of Certiorari, case no. 08-7797, and not in regards to this civil
lawsuit that was being filed on 11/12/08.
Appellant also considers himself not responsible for having filed the in forma
pauperis affidavit, even though there is no false information contained in it, as: 1)
Appellant didn’t know in forma pauperis paperwork was being filed, 2) Appellant
would have mailed himself, in forma pauperis paperwork directly from prison and
not have a third party file it, 3) finally Appellant believed that the lawsuit was going
to be initially paid for and therefore not filed in forma pauperis.
Due to the fact that the in forma pauperis application was filed by mistake and by
accident, and because it contained no false statements and/or false statements that
inmate knew were false, it is asked that the ruling the judge made on 11/21/08 be
reversed, and this lawsuit allowed to commence forward.
The clerk’s record contains an unsworn and unverified statement by Thomas McClain concerning
his mistake. There is no indication that he appeared at the hearing, and the statement is dated
December 5, 2008, fourteen days after the hearing.
In his motion to reinstate, Appellant vigorously argued that, “I DID NOT KNOW THIS
PAPERWORK WAS BEING FILED!!!” We find three points to be significant. First, the original
petition was filed without payment of costs. Second, upon receiving notice that the clerk contested
his indigency, McClain did not ensure that costs were paid. Third, in his motion to reinstate,
McClain never offered to tender costs. Indeed, he unsuccessfully sought leave to proceed in forma
pauperis on appeal. His affidavit with the appellate court clerk reflects gifts of $2,400 within the
past twelve months. He lists his monthly income at $200 and cash on hand of less than $1,000. The
certified trust account still shows an available balance of $1,064.45. Regardless of whether McClain
intended the affidavit to be filed in this litigation, the trial court acted well within its discretion in
disbelieving his protests. We overrule Issue Three and affirm the judgment of the trial court.
April 22, 2010
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.
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618 F.2d 115
Commercial Standard Insurance Co.v.Northwestern National Insurance Co. of Milwaukee, Wisconsin
78-2547
UNITED STATES COURT OF APPEALS Ninth Circuit
3/21/80
1
S.D.Cal.
AFFIRMED
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617 F.3d 346 (2010)
Robert E. JOWERS; Donna A. Jowers, Plaintiffs-Appellees,
v.
LINCOLN ELECTRIC COMPANY; BOC Group; ESAB Group, Inc., Defendants-Appellants.
No. 09-60396.
United States Court of Appeals, Fifth Circuit.
August 26, 2010.
*350 Scott Oliver Nelson, Christopher Tarver Robertson (argued), Maples & Lomax, P.A., Pascagoula, MS, Richard Runft Barrett, Law Offices of Richard R. Barrett, P.L.L.C., Lexington, MS, David Wayne Shelton, Oxford, MS, for Plaintiffs-Appellees.
Michael W. Ulmer, Lewis William Bell, Hugh Ruston Comley, James Joseph Crongeyer, Jr., Watkins & Eager, P.L.L.C., Washington, DC, John H. Beisner (argued), Stephen J. Harburg, Geoffrey M. Wyatt, Skadden, Arps, Slate, Meacher & Flom, L.L.P., Washington, DC, for Defendants-Appellants.
Before BARKSDALE, GARZA and DENNIS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The BOC Group, Inc., the ESAB Group, Inc. ("ESAB"), and the Lincoln Electric Company ("Lincoln") (collectively, the "Manufacturers") appeal the jury verdict and judgment in favor of Robert and Donna Jowers (collectively, "Jowers") on Jowers' failure-to-warn claim under Mississippi law. Specifically, the Manufacturers argue the district court improperly instructed the jury on their government contractor affirmative defense; improperly admitted certain pieces of historical evidence at trial; and erred in refusing to permit any apportionment of fault to Robert Jowers' employer. Finally, the Manufacturers argue the district court erred in denying their FED.R.CIV.P. 50(b) motion for judgment as a matter of law on punitive damages.
I
From 1972 through 2005, Jowers worked as a shipfitter and, later, as a supervisor *351 and foreman for Ingalls, a U.S. Navy shipbuilding contractor. Though he was never a full-time production welder, one of Jowers' primary tasks was mild-steel welding. He used "stick" and "wire" welding consumables during his career, both of which emit fumes containing manganese in the welding process. Manganese is a known neurotoxin, and inhalation of welding fumes that contain manganese could result in serious neurological disease, such as manganese-induced Parkinsonism ("MIP" or "manganism"). Jowers was exposed to welding fumes from his own and others' work for approximately six to seven hours each day. Jowers testified that he had no knowledge during his career that manganese in welding fumes could cause neurological injury, though the Manufacturers presented evidence that they had conformed with the required warning labels for manganese consumables during the duration of Jowers' career and had provided both him and Ingalls with material safety data sheets that detailed specific chemical risks. Prior to bringing suit against the Manufacturers, two neurologists diagnosed Jowers with MIP. His symptoms include a tremor, affected speech, bradykinesia (slow movements), rigidity, and poor balance. This disease is incurable, permanent, and progressive.
Based on the large number of welding fume cases in district courts, the Judicial Panel on Multidistrict Litigation ("JPML") created a multi-district litigation ("MDL") before Judge Kathleen M. O'Malley in the Northern District of Ohio to coordinate welding fume cases for pre-trial proceedings. See In re Welding Rod Prods. Liab. Litig., 269 F.Supp.2d 1365 (J.P.M.L.2003). Jowers' suit against the Manufacturers, alleging a failure to warn regarding the dangers of manganese neurotoxicity and manganism, is one of the MDL's "bellwether trials." However, despite an earlier concession that venue in Ohio was proper, Jowers requested remand of the case to his home district prior to trial. Judge O'Malley agreed, and the JPML remanded the case to the Southern District of Mississippi, but Judge O'Malley continued to preside over the case by designation.
Prior to trial, the district court denied the Manufacturers' motion to exclude historical documents that they alleged had no connection to Jowers' claim. Jowers moved for summary judgment on the Manufacturers' joint tortfeasor defense, which the district court granted, finding that apportionment of fault to Jowers' employer, Ingalls, was barred as a matter of law. At the close of evidence, the district court rejected the Manufacturers' proposed jury instruction on its government contractor defense. The district court also denied the Manufacturers' motion for judgment as a matter of law on punitive damages.
The jury found in favor of Jowers on his failure-to-warn claim and awarded him $1,200,000 in compensatory damages and $1,700,000 in punitive damages. The jury apportioned 40% of the fault to Jowers, thereby reducing the compensatory award to $720,000. The district court denied the Manufacturers' post-trial motions asking the court to set aside the compensatory and punitive damages verdicts. The Manufacturers now appeal on four grounds: (1) the district court erroneously instructed the jury on their government contractor defense; (2) the district court improperly admitted evidence of historical documents; (3) the district court erred by not permitting the jury to apportion fault to Ingalls; and (4) the punitive damages verdict is insupportable.
II
The Manufacturers first contend the district court erred in instructing the jury regarding the government contractor *352 defense, which, if proven, would immunize the Manufacturers from suit. We review a district court's jury instructions for abuse of discretion. Waco Int'l, Inc. v. KHK Scaffolding Houston, Inc., 278 F.3d 523, 528 (5th Cir.2002). "We afford trial judges wide latitude in fashioning jury instructions and ignore technical imperfections." Bender v. Brumley, 1 F.3d 271, 276 (5th Cir.1993). However, "[r]eversal is . . . appropriate whenever the charge as a whole leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations" and "the challenged instruction . . . affected the outcome of the case." Id. at 276-77 (internal quotation marks and citation omitted).
The government contractor defense preempts state law and provides a total bar to liability in a failure-to-warn case if a defendant establishes three elements: (1) the federal government exercised discretion and approved warnings for the product; (2) the warnings the defendant provided about the product conformed to the federal government specification; and (3) the defendant warned the federal government about dangers known to the defendant but not the government. Boyle v. United Techs. Corp., 487 U.S. 500, 512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).
The Manufacturers argue that the district court improperly added another element to this defense in its jury instruction. Specifically, the district court instructed the jury that for the government contractor defense to apply, the Manufacturers must establish that "the United States Government had an identifiable Federal interest or policy in the existence or methods of warnings on welding products" and that "there was a significant conflict between this Federal interest or policy and the requirements of Mississippi law regarding the provision of adequate warnings." The Manufacturers contend that this added element erroneously required them to show physical impossibility to comply with both the state law standard of care and the federal government's specifications in order to prevail on the government contractor defense.
The Supreme Court first recognized the government contractor defense in Boyle, holding that federal law preempted state law to immunize government contractors despite the absence of legislation specifically immunizing these contractors from liability. 487 U.S. at 507, 108 S.Ct. 2510. The Boyle court noted that without a statutory mandate to do so, preemption of state law by federal law "will occur only where, as we have variously described, a `significant conflict' exists between an identifiable federal policy or interest and the operation of state law, or the application of state law would frustrate specific objectives of federal legislation." Id. (internal quotation marks and citations omitted). The Manufacturers acknowledge in their brief that a tension between state and federal interests must exist for preemption to occur (making a government contractor defense viable), but contend the Boyle court found that demonstrating the first two elements of the defense would establish this conflict as a matter of law. Indeed, after detailing the three-element test for determining whether immunity applies in a government contractor defense, the Supreme Court stated:
The first two of these conditions assure that the suit is within the area where the policy of the "discretionary function" would be frustratedi.e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself. The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge *353 of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability.
Id. at 512, 108 S.Ct. 2510. If a plaintiff brings a failure-to-warn case alleging a failure to conform to state law requirements, and the defendant subsequently establishes that the federal government was involved in the decision to give (or not to give) a warning and that the defendant complied with the federal government's provisions, there necessarily exists a conflict between state law and federal policy in this area. See id. at 511-12, 108 S.Ct. 2510; see also Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 438 (5th Cir.2000) (citing In re Air Disaster at Ramstein Air Base, 81 F.3d 570, 576 (5th Cir.1996)). Thus, an additional instruction that the jury find a "significant conflict" between federal interests and Mississippi law in the instant matter is superfluous and forces the jury to construe an issue of law, which is outside its purview as fact-finder.
Jowers distinguishes Boyle on the grounds that it concerns a design defect claim and not a failure-to-warn claim, but in this court's decision in Kerstetter, we applied the three elements of Boyle to a failure-to-warn claim without also requiring a separate finding of "significant conflict" between state law and federal policy. Kerstetter, 210 F.3d at 438 (finding "[s]tate law is displaced" if the three Boyle elements are proven in a failure-to-warn claim). Jowers argues that Kerstetter is inapposite because it involved a failure-to-warn claim that was "part" of a design defect theory of liability. Regardless of the interplay between the claims, Kerstetter analyzed the design defect and failure-to-warn claims independently. The Kerstetter court did not require a separate finding of "significant conflict" between federal interests and state law in its analysis of the three Boyle elements under the failure-to-warn claim. Thus, based on the holdings in Boyle and Kerstetter, neither of which require a "significant conflict" element in the analysis of a government contractor defense, the district court erred in instructing the jury on this issue.
However, this error is only reversible if "the challenged instruction . . . affected the outcome of the case." Bender, 1 F.3d at 277. Jowers argues that the verdict need not be vacated because there was insufficient evidence to establish that the Manufacturers met their burden of proving each of the three Boyle elements. For the first Boyle element to apply, the federal government must have "exercised discretion" by meaningfully participating in the drafting of the warning. Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1479-81 (5th Cir.1989). The government must not have merely "rubber stamped" the contractor's decisions; rather, there must be evidence in the record that the government actually chose a warning through its discretion. Id. at 1480.
Jowers argues that the Manufacturers presented no evidence of a "continuous back and forth review process" between the government and the contractor, and that this demonstrates a lack of discretion on the part of the government. See Tate v. Boeing Helicopters, 55 F.3d 1150, 1154 (6th Cir.1995). Separate evidence of a dialogue between the government and the contractor is needed when the government approves rather than prepares a warning because the government's mere acceptance of a manufacturer's warning does not establish its interest in that particular warning. Kerstetter, 210 F.3d at 435. Jowers presented evidence at trial that the national consensus standard for manganese fume warnings was developed by the Manufacturers as members of the American Welding Society ("AWS") and later adopted by the Secretary of Labor *354 under the Occupational Safety and Health Act ("OSHA").[1] This warning did not mention the serious neurological hazards known to some of the Manufacturers in the '60s when the warning was first promulgated and, in fact, the Secretary of Labor has not issued an updated regulation to change the mandatory "minimum" warning language. Likewise, the warning issued by the United States Navy agency NAVSEA in 1981[2] is substantially similar to the language the entire welding consumable manufacturing industry had voluntarily adopted as their own in 1979.[3] Compliance with a minimum standard which the Manufacturers themselves initially drafted does not indicate that the government exercised discretion and meaningfully participated in crafting the warning.
With regard to the second Boyle element, the Manufacturers are required to provide warnings about the dangers of mild-steel manganese weld fumes that conform to federal government specifications. Kerstetter, 210 F.3d at 438. However, for a period of time the Manufacturers added language about avoidance of "excessive" fumes and "concentrations" of fumes that weakened the warnings, causing them to fall below the government-required minimum warning. Jowers' warning expert testified that these words weakened the effect of the warning, suggesting that a welder might be able to breathe more fumes, or even any fumes, and still avoid negative health effects. Thus, the Manufacturers' warnings did not wholly conform to federal government specifications.
As to the third Boyle element, Jowers argues that there is no evidence that the Manufacturers shared with the government their own internal admissions about the real risks of welding, nor that the government was aware of such risks. However, the Manufacturers offered testimony showing that the Navy was "sophisticated" and had "state-of-the-art knowledge" regarding the hazards posed by welding fumes and how to protect against them. The Manufacturers also point out that the government has, in the past, funded large-scale studies of welders assessing the potential risk of neurological injury. While the studies the Manufacturers cite date to 1941 and the aftermath of World War II, these studies at the very least indicate some government awareness of the possibility of neurological hazards from welding. In short, the Manufacturers contend there were no welding dangers known to them but not to the government, and that therefore there was no need to convey any additional information about the dangers of manganese welding fumes.
This argument is unpersuasive. While the jury may have concluded that the government knew everything the defendants did, the Manufacturers have not presented testimony that they shared any of their internal information regarding welding fume hazards with the government, much *355 of which demonstrated a deeper knowledge of potential harms from manganese inhalation than the approved warnings encompassed.
Accordingly, we find the district court failed to properly instruct the jury on the elements of the government contractor defense, but as the Manufacturers failed to elucidate a factual basis for the defense, this error was harmless.
III
The Manufacturers contend that the district court erred by allowing Jowers to introduce evidence of documents and testimony related to conduct that had nothing to do with the actual warnings Jowers and his employer received. These internal documents, one of which dates back to 1949, related to hazards associated with fluorides and high-manganese consumables, substances which the Manufacturers argued were not at issue in this case and therefore made the documents irrelevant to the instant litigation. Nevertheless, the district court denied the Manufacturers' motion in limine because it believed that historical documents in general were relevant to "show knowledge that existed in the industry and that would have carried over to that later point in time." The Manufacturers argue that Jowers only admitted these documents to suggest that any prior misconduct is evidence that, more than twenty years later, the Manufacturers continued to engage in misconduct affecting Jowers.
We review a district court's evidentiary rulings for abuse of discretion. Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 992 (5th Cir.2008). Any error in the admission or exclusion of evidence "should not be the basis for setting aside the judgment" unless "the substantial rights of the parties were affected." EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (citing FED.R.CIV.P. 61). Moreover, where the trial judge "has conducted, on the record, a carefully detailed analysis of the evidentiary issues and the court's own ruling, appellate courts are chary about finding an abuse of discretion." Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 356 (5th Cir.1995). Here, the district court judge has been reviewing these documents since 2005, when she conducted over two days of document-admissibility hearings, culminating in an extensive written opinion. See Ruth v. A.O. Smith Corp., 615 F.Supp.2d 648, 650-51 (N.D.Ohio 2005). Accordingly, we give the district court's judgment on these evidentiary issues considerable deference. See Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir.2000) ("The considerable deference accorded to the judgment of the district court is heightened where the trial judge's experience has imparted to the judge a particularly high degree of knowledge.").
Federal Rule of Evidence 402 excludes from admission any evidence that is not relevant. Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The pertinent portion of the Mississippi Products Liability Act ("MPLA") governing Jowers' failure-to-warn claim states that a claimant must prove
by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller, the manufacturer or seller knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.
*356 MISS.CODE ANN. § 11-1-63(c)(i) (2004). Per the MPLA's plain language, critical to the court's inquiry into a failure-to-warn claim is the question of what the Manufacturers knew and what knowledge was reasonably available to them. As knowledge accumulates over time, prior knowledge of harm that predates Jowers' employment is relevant to a question of current knowledge. See, e.g., Noah v. Gen. Motors Corp., 882 So.2d 235, 237-39 (Miss.Ct.App. 2004) ("[E]vidence of prior accidents has long been admissible in state courts for. . . the purpose of showing the existence of a dangerous condition." (citations omitted)).
The Manufacturers argue that the documents, dated up to two decades prior to Jowers' employment, are too remote in time to be relevant to the knowledge the Manufacturers had about the dangers of manganese fumes. This court has previously rejected such an argument in Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1317-19 (5th Cir.1985). The Jackson defendants sought to exclude documents as irrelevant in a failure-to-warn case regarding asbestos because the documents were written twenty years prior to the plaintiff's commencement of work. The court was not persuaded by this argument, noting that "[e]vidence that the defendants had such knowledge in 1935 clearly makes [the plaintiff's] allegation that the dangers of the asbestos products were foreseeable in 1953 more probable than it would have been without such evidence." Id. at 1319. The same argument supports admission of the instant documents: they are relevant to knowledge of the danger of welding fumes in the industry in the twenty years prior to Jowers' employment.
The Manufacturers also argue that the substances (fluorides and high-manganese consumables) discussed in the documents are too far removed from the mild-steel welding substances at issue in the instant matter for the documents to be relevant. However, these documents go to the Manufacturers' knowledge of the dangers of working with all potentially hazardous types of welding products and the fumes these products create. In Jackson, the defendants argued that the documents they sought to exclude had "no probative value" because they referred only to workers who were exposed to raw asbestos, whereas the plaintiff "worked solely with finished asbestos products." Id. at 1318. This court concluded that the documents were admissible because they were "at least suggestive of the fact that other groups of workers who were also exposed to asbestos fibers face similar dangers." Id. Following Jackson, we likewise conclude that whether knowledge of the harms from the consumables at issue in the instant documents is probative of the Manufacturers' failure to warn Jowers of the harms involved in his mild-steel welding work goes to the weight of the evidence, not its admissibility. See id.
Alternatively, the Manufacturers argue that these documents are extremely prejudicial and thus should have been excluded under Federal Rule of Evidence 403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. "Relevant evidence is inherently prejudicial; but it is only [u]nfair prejudice, [s]ubstantially outweighing probative value, which permits exclusion of relevant matter under Rule 403." United States v. McRae, 593 F.2d 700, 707 (5th Cir.1979). The Manufacturers contend that these documents generally, and the 1949 fluoride memorandum in particular, were introduced for the sole purpose of arguing that at least one manufacturer put profits ahead of safety, despite the *357 fact that this company included warnings on its products prior to Jowers' joining the welding workforce.
However, the Manufacturers' arguments that they gave sufficient warnings regarding the potential harms of their products open the door to an examination of the quality of their welding fume warnings more generally, including warnings about substances (such as fluorides or high-manganese consumables) not directly implicated in this action. The motivations for deciding not to include a warning regarding welding fumes of any kind are directly relevant to the instant matter and not unduly prejudicial. For instance, the Manufacturers' expert witness, Dr. Jane Welch, testified that the warnings on welding products in 1967 were state-of-the-art and "cutting edge," in part, because "manufacturers were not anticipating putting warnings on their products" at that time. Evidence that some members of the welding industry had warnings on their products as far back as the 1940s, which were later removed due to concerns about the financial implications of such warnings, is directly relevant to rebut this testimony. Accordingly, given the relevance of these documents to Jowers' failure-to-warn claim under Mississippi law, the district court did not abuse its discretion in admitting them over the Manufacturers' objection.
IV
The Manufacturers contend that the district court erred in refusing to permit the jury to apportion fault to Jowers' employer, Ingalls, and that therefore the compensatory verdict must be vacated. Specifically, the Manufacturers argue that the district court erred in finding that Jowers' eligibility for benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901 et seq., precluded the ordinary operation of Mississippi's joint tortfeasor law.[4] We review de novo the legal issue of whether the district court properly ruled that the Manufacturers' joint-tortfeasor defense was foreclosed. Fontenot v. Dual Drilling Co., 179 F.3d 969, 972 (5th Cir.1999).
LHWCA guarantees workers' compensation for qualified beneficiaries, like Jowers, who are injured while assisting in the construction of large ships on or near federal navigable waters. Accordingly, a person who receives LHWCA benefits may not sue his employer under state law for any additional compensatory damages related to his on-the-job injury. See 33 U.S.C. §§ 905(a), 933(i); Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 818, 121 S.Ct. 1927, 150 L.Ed.2d 34 (2001) (LHWCA "provides nonseaman maritime workers . . . with no-fault workers' compensation claims" and "expressly pre-empts all other claims."). Though an injured LHWCA beneficiary cannot sue his employer for damages related to his injury, the statute permits the employee to *358 sue a third party that contributed to his injury. At issue in Ruth, a prior case in the MDL whose rulings were incorporated into the instant matter, was whether any verdict against such a third-party defendant can be reduced by the amount of fault attributable to the immune employer. 416 F.Supp.2d at 587.
The Manufacturers argue that the district court erred in its interpretation of federal and Mississippi law by determining that LHWCA prevented the jury from apportioning any of the fault to Ingalls. The district court analyzed three key cases to come to this conclusion: Fontenot; Accu-Fab & Construction v. Ladner, 778 So.2d 766 (Miss.2001); and Mack Trucks, Inc. v. Tackett, 841 So.2d 1107 (Miss.2003), which overruled Accu-Fab in part.
In Fontenot, this court held that allocation of fault between an employer and a third-party defendant under LHWCA depends on "whether the third party . . . is a vessel or is a non-maritime entity." 179 F.3d at 974. If the third party is a "vessel," then LHWCA provides that the employee may bring a "third-party cause of action against [the] vessel based on negligence." Id. at 975. In such a case, "the employer shall not be liable to the vessel for such damages directly or indirectly." Id. at 974 (quoting 33 U.S.C. § 905(b)). However, if the third-party defendant is a "non-maritime entity" (anything other than a "vessel"), LHWCA is silent on the question of allocation of fault and the employee's claim against a non-maritime entity necessarily depends on the relevant state law's allocation of fault. Id. at 976. In the instant matter, because the third-party defendant Ingallsis not a vessel, we must look to Mississippi law to determine whether the court may allocate fault to Ingalls.
In so doing, the district court proceeded to analyze the Mississippi Supreme Court case Accu-Fab. Despite the Fontenot holding that state law allocation of fault should be applied where the third-party defendant is a non-vessel, Accu-Fab referred back to LHWCA and federal law to hold that "federal maritime standards govern" even though no vessels were involved in that dispute. Ruth, 416 F.Supp.2d at 589 (quoting Accu-Fab, 778 So.2d at 769-70). This interpretation of LHWCA is incorrect under Fontenot. Indeed, the district court noted that this analysis is somewhat circular because it "assume[s] that, if LHWCA benefits are paid, a vessel must be involved, so the trial court should not assess the fault of the employer and should not reduce an award accordingly." Id. at 590. Moreover, the Accu-Fab court noted in dicta that it "would reach the same conclusion even if [LHWCA] was not implicated," determining that § 85-5-7 would not permit apportionment of fault to immune parties.
However, a subsequent Mississippi Supreme Court case, Tackett, reaffirmed that MISS.CODE ANN. § 85-5-7 permits apportionment of liability not only to settling defendants, but also to immune defendants, and consequently overruled Accu-Fab's dicta in pertinent part. 841 So.2d at 1115. Perplexingly, however, the Tackett court found that "[t]he holding in Accu-Fab was predicated on the controlling precedents of federal case law, since [the employee] was a beneficiary under [LHWCA]," and that therefore § 85-5-7 was inapplicable in that case. Id. at 1115 n. 2. The district court below noted that this analysis seemed faulty in light of Fontenot, but found that it "cannot correct the Mississippi Supreme Court's reasoning by fiat, nor ignore its reaffirmation in [Tackett] of Accu-Fab's result." Ruth, 416 F.Supp.2d at 592. Consequently, the district court held that in Mississippi, "when an employee covered by LHWCA sues a *359 third party for damages, the trial court does not apportion fault to the employer." Id. (emphasis in original).
Neither party disputes that Fontenot controls the instant case. However, the Manufacturers contend that the district court in Ruth improperly followed Accu-Fab rather than Mississippi law, which states that "[i]n actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault without regard to whether the joint tort-feasor is immune from damages." MISS.CODE ANN. § 85-5-7(5). A 2002 amendment to this statute was a reaction to the Mississippi Supreme Court's holding in Accu-Fab, which the legislature found to have misconstrued the "original intent" of the statute. Tackett, 841 So.2d at 1114 n. 1. A federal court sitting in diversity is not "bound under Erie . . . to defer [to state courts] on issues of federal law," FPL Energy Me. Hydro LLC v. FERC, 551 F.3d 58, 63 (1st Cir.2008), even when the state court is deciding whether its own laws are preempted by federal law. Osterneck v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 841 F.2d 508, 511 (3d Cir.1988), abrogated on other grounds by Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). In light of Fontenot and § 85-5-7(5), Mississippi law supports allocation of fault to immune parties, such as an employer in a non-vessel LHWCA claim, and the district court should not have deferred to the Mississippi Supreme Court's improper LHWCA analysis.
Jowers contends that even if the district court's refusal to permit the jury to apportion fault to Ingalls was incorrect, any error therefrom was harmless. Jowers argues that the Manufacturers' own industrial hygiene expert testified that Ingalls should bear no fault in the litigation. However, this witness simply testified that he did not personally know of evidence that Ingalls failed to adhere to their established policies and procedures. The mere fact that one witness lacked knowledge of Ingalls' potential fault in the litigation does not prove that no such fault existed.
Jowers also argues that the Manufacturers had the opportunity to present the "sophisticated user" affirmative defense, for which the jury was instructed: "The defendants claim that a warning about the threat of neurological injury was unnecessary because the defendants had reason to believe that [Ingalls] already knew, or had reason to know, about this danger, and would communicate that danger to Mr. Jowers." The jury rejected this defense, which includes the "knew or had reason to know" element that corresponds with the "foreseeability" element in a negligence action and for apportionment of fault. See Miss. Dep't of Mental Health v. Hall, 936 So.2d 917, 924 (Miss.2006) (discussing foreseeability requirement in the allocation of fault and noting that "to be held negligent, an injury must be `reasonably foreseeable'" (citation omitted)). Thus, Jowers argues the sophisticated user defense instructed the jury to consider whether Ingalls could foresee Jowers' injuries, a central element in the Manufacturers' negligence theory. Because the jury rejected the sophisticated user defense and its constituent elements, Jowers contends the zero-fault allocation to Ingalls had no effect on the verdict.
However, the jury's rejection of the sophisticated user defense does not necessarily mean that they rejected any apportionment of fault to Ingalls. The district court instructed the jury on the three elements of the sophisticated user defense as follows, noting that the Manufacturers had to prove all three elements by a preponderance of the evidence:
*360 (1) [Ingalls] received adequate warnings and instructions from [the Manufacturers], or had the same level of expertise and knowledge about the dangers of welding fumes as did [the Manufacturers] themselves;
(2) [Ingalls] could be reasonably expected to convey that information to Mr. Jowers; and
(3) at the time [the Manufacturers] were selling to the employers the products that allegedly injured Mr. Jowers, [the Manufacturers] themselves had reason to believe that [Ingalls] had this knowledge and expertise about neurological injury and welding fumes, and had reason to believe that [Ingalls] would convey that information to Mr. Jowers.
The jury could have rejected the sophisticated user defense on any one of these elements, not merely the foreseeability element. Thus, the jury readily could have decided that Ingalls was not sufficiently "sophisticated" to absolve defendants of any duty to warn, but had they been instructed on apportionment of fault, the jury may have determined that Ingalls bore some responsibility for Jowers' injury. Indeed, the jury found Jowers 40% at fault for his own injuries. It is entirely conceivable that the jury may have found that Ingalls, which was responsible for providing Jowers with a safe workplace, shared some fault as well. Evidence at trial demonstrated that welding fume exposure levels at Ingalls sometimes exceeded regulatory limits, and that Ingalls did not teach welders about the individual chemicals comprising a welding fume, but rather about the fume in general. This evidence might indicate a failure to provide a safe working environment or complete knowledge about the possible dangers of the working environment. Moreover, this court has, in the past, affirmed allocation of fault to an employer despite rejection of the sophisticated user defense. See In re Incident Aboard the D/B Ocean King, 813 F.2d 679, 687-89 (5th Cir.1987) (affirming allocation of 55% fault to employer despite rejection of sophisticated user defense), amended on other grounds, 877 F.2d 322 (5th Cir.1989). Accordingly, the district court's improper refusal to instruct the jury on a joint-tortfeasor defense permitting allocation of fault to Ingalls was not harmless error, and we vacate the compensatory damages verdict.
V
Finally, the Manufacturers argue that district court erred in denying their motion for judgment as a matter of law on punitive damages. We need not address the merits of this issue because our vacating the compensatory damages verdict requires that we also vacate the punitive damages verdict. Further, because our ruling in Part IV requires Ingalls' allocation of fault, if any, we remand for retrial on the issues of compensatory and punitive damages, including, but not limited to, the threshold issue, on this new record, of whether the claim for punitive damages should be submitted to the jury.
VI
For the foregoing reasons, we affirm the jury's finding of liability against the Manufacturers because the district court's error in instructing the jury on the Manufacturers' government contractor defense was harmless, and the district court properly admitted the historical evidence at trial. However, we vacate both the compensatory and punitive damages awards and remand this case for a new trial on damages that includes a jury instruction permitting allocation of fault to Ingalls. We also vacate Jowers' fees award, which rests exclusively on the punitive damages verdict. *361 See Pride Oil Co. v. Tommy Brooks Oil Co., 761 So.2d 187, 192 (Miss.2000) (finding that "fees are not recoverable absent proof of conduct which would permit an award of punitive damages").
Finally, we must admonish Jowers' counsel for alleging in the briefing that the Manufacturers "misrepresented" the record. Misrepresentation of the record is a very serious charge and this court does not take such allegations lightly. This was a highly contested case with compelling evidence supporting both sides' arguments. The Manufacturers were within their right to present evidence in their briefing as persuasively as possible, which in no way constitutes a misrepresentation of the record. We caution Jowers' counsel against making such unfounded claims in the future.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
NOTES
[1] This warning states, in pertinent part: "CAUTION Welding may produce fumes and gases hazardous to health. Avoid breathing these fumes and gases. Use adequate ventilation."
[2] This warning states, in pertinent part: "WARNING: Protect yourselves and others. Read and understand this label. FUMES AND GASES can be dangerous to your health. . . . Keep your head out of the fumes. Use enough general ventilation or exhaust at the arc or both to keep fumes and gases form your breathing zone and the general area." MIL-spec MIL-E-24403A(SH), § 5.3.1 (Dec. 21, 1981).
[3] This warning states, in pertinent part: "FUMES AND GASES can be dangerous to your health. Keep your head out of fumes. Use enough ventilation or exhaust at the arc or both. Keep fumes and gases from your breathing zone and general area."
[4] As a threshold matter, Jowers contends that the Manufacturers have waived this argument by failing to present it to the district court in response to Jowers' motion for summary judgment on this issue. Jowers points to Ruth, in which the district court initially ruled that Mississippi law precluded the allocation of fault to that plaintiff's employer because he was covered by LHWCA. Jowers argues that the Manufacturers have never previously contended, as they do now, that the Ruth court's ruling was erroneous.
However, the district court expressly incorporated its Ruth rulings into the instant record, which includes all rulings in earlier cases. The Manufacturers' argument here is the same argument it advanced in Ruth: that Mississippi's apportionment rule, which permits allocation of fault to immune joint tortfeasors, applies notwithstanding LHWCA's proscription against suing the beneficiary's employer for damages. Accordingly, the Manufacturers have preserved this argument for appeal.
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737 A.2d 183 (1999)
324 N.J. Super. 576
Anthony RUSSO, Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Superior Court of New Jersey, Appellate Division.
Submitted September 15, 1999.
Decided September 28, 1999.
*184 Appellate submitted a pro se brief.
John J. Farmer, Jr., Attorney General, for respondent (Joseph L. Yannotti, Assistant Attorney General, of counsel; Jayroe Wurse, Deputy Attorney General, on the brief).
Before Judges BAIME and EICHEN.
The opinion of the court was delivered by BAIME, P.J.A.D.
Anthony Russo, a prison inmate, appeals from a decision of the Department of Corrections finding him guilty of operating an unauthorized business for profit, misusing electronic equipment, and improperly accepting *185 something of value from another person (N.J.A.C. 10A:4-4.1(a).705, .009 and.752). An aggregate sanction of thirty days detention, 545 days administrative segregation, and loss of 365 days commutation time was imposed. Although appellant challenges the sufficiency of the evidence, the principal question presented is whether the prohibition against double jeopardy bars successive prison disciplinary proceedings for the same conduct. We hold that it does not.
I.
We need not recount the facts at length. An administrative search of appellant's cell revealed large quantities of gambling paraphernalia and 221 packs of cigarettes. In addition, wordprocessors belonging to appellant and his cellmate were confiscated along with thirty-four diskettes. Appellant and his cellmate were charged with conducting a gambling pool (N.J.A.C. 10A:4-4.1(a).602) and possession of unauthorized items (N.J.A.C. 10A:4-4.1(a).210). Appellant was acquitted of conducting a gambling pool because his cellmate confessed that the gambling paraphernalia found in their living quarters belonged to him. However, appellant was found guilty of possession of unauthorized items, the cigarettes. Sanctions were imposed with respect to that infraction.
Although the exact chronology of events is not entirely clear, it appears that Internal Affairs investigators reviewed the diskettes following disposition of the original charges. The diskettes disclosed that appellant was conducting a gambling operation in which inmate customers paid for the privilege of playing the odds with cigarettes. They additionally revealed that appellant was purchasing large quantities of cigarettes using outside agents who would pay by credit card. The cigarettes were sold to inmates who either paid appellant directly or directed relatives or associates to pay him through outside agents. The diskettes also disclosed that appellant was routinely accepting payment for assisting inmates in their appeals and related litigation. Based upon this evidence, appellant was found guilty of the charges that are the subject of this appeal.
II.
Initially, we are satisfied that the Department's factual findings are supported by substantial, credible evidence. See Jacobs v. Stephens, 139 N.J. 212, 222, 652 A.2d 712 (1995); Mayflower Securities Co., Inc. v. Bureau of Securities, 64 N.J. 85, 92-93, 312 A.2d 497 (1973); Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965). Indeed, the record reeks of appellant's guilt. Considering the proofs in their entirety, it cannot fairly be said that the Department went "so wide of the mark" that a mistake must have been made. Cf. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). We view as frivolous appellant's claim of evidential insufficiency. See R. 2:11-3(e)(1)(D).
III.
More troublesome is appellant's argument that the administrative prosecution was barred by the double jeopardy prohibition. Two related issues are presented. The threshold question is whether the double jeopardy clause is applicable to successive prison disciplinary proceedings. The second is whether the disciplinary proceedings instituted against appellant pertained to the same offense or conduct. Because protection under the New Jersey Constitution, art. I, ¶ 11, is generally coextensive with that afforded by its federal counterpart, see State v. Womack, 145 N.J. 576, 582, 679 A.2d 606, cert. denied, 519 U.S. 1011, 117 S.Ct. 517, 136 L.Ed.2d 405 (1996); State v. Koedatich, 118 N.J. 513, 518, 572 A.2d 622 (1990); State v. Churchdale Leasing, Inc., 115 N.J. 83, 107, 557 A.2d 277 (1989); State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980); State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976), we need not distinguish between *186 the two sources of rights in our analysis of these issues.
A.
The double jeopardy clause bars a second prosecution for the same offense after an acquittal. It protects against a second prosecution for the same offense after conviction. And it bars multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-64 (1969). The bedrock principle is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual, thus subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, and enhancing the possibility that he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199, 204 (1957). Prison disciplinary proceedings are not part of the criminal trial process. There is nevertheless no state interest in the imposition of prison discipline absent procedural fairness. Avant v. Clifford, 67 N.J. 496, 522, 341 A.2d 629 (1975). We thus look to the nature of the prison disciplinary process and the character of the sanctions imposed to determine whether the demands of procedural fairness compel application of double jeopardy principles.
The principal thrust of appellant's argument is that he was twice punished for the same conduct, and that the sanctions imposed constituted significant penal restraints upon his liberty. The most appropriate starting point for our analysis is thus the lengthening line of decisions equating civil and administrative penalties with criminal sentences for double jeopardy purposes. In United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the United States Supreme Court held that a civil or administrative penalty imposed in addition to a criminal sentence is violative of double jeopardy protections when it is based on the same conduct as the criminal charge and is punitive, rather than remedial, in nature. Id. at 446-48, 109 S.Ct. at 1900-02, 104 L.Ed.2d at 500-02. That holding was recently disavowed in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). As explained in Hudson, a court must first ask "whether the legislature `in establishing the penalizing mechanism, indicated either expressly or impliedly, a preference for one label or the other.'" Id. at____, 118 S.Ct. at 493, 139 L.Ed.2d at 459 (quoting United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749 (1980)). Even in those cases where the legislature has expressed an intention to establish a civil penalty, a court must inquire "whether the statutory scheme [is] so punitive in purpose or effect" as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Ibid. (quoting United States v. Ward, 448 U.S. at 248-49, 100 S.Ct. at 2641, 65 L.Ed.2d at 749 & Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149, 155 (1956)). The Court enunciated the following guidelines applicable to such an inquiry:
(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishmentretribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned."
[Ibid. (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 661 (1963)).]
The Court added that "`only the clearest proof' will suffice to override legislative *187 intent and transform what has been denominated a civil remedy into a criminal penalty." Ibid. (quoting United States v. Ward, 448 U.S. at 249, 100 S.Ct. at 2641, 65 L.Ed.2d at 742).
Within this analytical framework, we find substantial support for the proposition that the double jeopardy prohibition does not per se bar successive prison disciplinary prosecutions for the same infraction. We are concerned here with the application of regulations adopted by the Commissioner of the Department of Corrections. The Legislature has vested in the Commissioner broad discretionary power to "[d]etermine all matters of policy and regulate the administration of [penal] institutions...." N.J.S.A. 30:1B-6(g). Although neither the Legislature nor the Department has labeled prison disciplinary proceedings as either criminal or civil, we have never treated such proceedings as part of the criminal process. See Blyther v. New Jersey Dep't of Corrections, 322 N.J.Super. 56, 730 A.2d 396 (App.Div. 1999); Taylor v. Beyer, 265 N.J.Super. 345, 627 A.2d 166 (App.Div.1993). A criminal prosecution is a judicial proceeding that vindicates the community's interests in punishing criminal conduct. United States v. Whitney, 649 F.2d 296, 297 (5th Cir.1981). In contrast, the prison disciplinary process determines whether an inmate has violated the conditions of his incarceration and it is designed to advance the remedial goal of maintaining institutional order and security. While punitive and remedial interests are tightly intertwined in the prison setting, disciplinary sanctions do not constitute additional punishment. See Illinois v. Jones, 301 Ill. App.3d 608, 234 Ill.Dec. 894, 703 N.E.2d 994, 996 (1998). Although disciplinary sanctions may affect the level of restraints imposed on an inmate and may alter privileges earned, they do not directly change the original term or sentence imposed. Moreover, the types of prison conduct that are subject to disciplinary sanctions do not necessarily correspond to statutory or common law crimes.
Practical considerations militate against rigid application of double jeopardy principles to prison disciplinary proceedings. Prisons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment. "`[D]isciplinary proceedings take place in a highly charged atmosphere'" where prison officials "`must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances.'" Meeks v. McBride, 81 F.3d 717, 722 (7th Cir. 1996) (quoting Superintendent, Massachusetts Correctional Inst. v. Hill, 472 U.S. 445, 456, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985)). If an acquittal in a prior hearing were to preclude a subsequent hearing on the same charge, "the overriding interest of prison administrators to act swiftly to maintain institutional order could be compromised in the interest of developing the evidence needed to obtain a conviction." Ibid. To thus apply in rigid fashion the full panoply of double jeopardy protections would impose an extreme burden on prison administrators.
Our courts have not addressed directly the question presented by this appeal. But see State v. Widmaier, 157 N.J. 475, 724 A.2d 241 (1999), State v. Black, 153 N.J. 438, 710 A.2d 428 (1998), and New Jersey Parole Bd. v. Mannson, 220 N.J.Super. 566, 533 A.2d 58 (App.Div. 1987), which deal with somewhat related issues. However, our research discloses numerous federal court decisions holding that double jeopardy does not apply to prison disciplinary proceedings. See, e.g., Meeks v. McBride, 81 F.3d at 722; United States v. Brown, 59 F.3d 102, 103-04 (9th Cir.1995); Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir.1994), cert. denied, 514 U.S. 1044, 115 S.Ct. 1420, 131 L.Ed.2d 303 (1995); Lucero v. Gunter, 17 F. 3d 1347, 1351 (10th Cir.1994); United States v. Newby, 11 F.3d 1143, 1144-45 (3d Cir. 1993), cert. denied, 511 U.S. 1087, 114 S.Ct. 1841, 128 L.Ed.2d 468 (1994); United *188 States v. Rising, 867 F.2d 1255, 1259 (10th Cir.1989); Jonas v. Wainwright, 779 F.2d 1576, 1577 (11th Cir.), cert. denied, 479 U.S. 830, 107 S.Ct. 115, 93 L.Ed.2d 62 (1986); Garcia v. United States, 769 F.2d 697, 700 (11th Cir.1985); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir.1982); Fano v. Meachum, 520 F.2d 374, 376 n. 1 (1st Cir.1975), rev'd on other grounds, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); United States v. Herrera, 504 F.2d 859, 860 (5th Cir.1974); United States v. Stuckey, 441 F.2d 1104, 1105-06 (3d Cir.), cert. denied, 404 U.S. 841, 92 S.Ct. 136, 30 L.Ed.2d 76 (1971); United States v. Apker, 419 F.2d 388 (9th Cir.1969); Hamrick v. Peyton, 349 F.2d 370, 372 (4th Cir.1965); Gibson v. United States, 161 F.2d 973, 974 (6th Cir.1947). While many of these decisions deal specifically with criminal prosecutions following disciplinary proceedings for the same conduct, essentially the same policy considerations pertain to the precise issue here.
We stress the limited contours of our holding. We, of course, recognize that there is no "iron curtain" drawn between the constitution and prison inmates, and that prisoners cannot be "deprived of life, liberty, or property without due process of law." Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, 950-51 (1974); see also Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 460 A.2d 103 (1983); Avant v. Clifford, 67 N.J. 496, 341 A.2d 629. We do not suggest that in all cases and under all circumstances double jeopardy considerations can have no applicability in prison disciplinary settings. Wholly apart from the express provisions of the federal and state constitutions, our courts are duty-bound to insure that administrative proceedings are conducted in accordance with common notions of fundamental fairness. Our courts have long exercised their authority to reverse arbitrary and capricious administrative determinations. See Brady v. Board of Review, 152 N.J. 197, 210-11, 704 A.2d 547 (1997); George Harms Const. Co., Inc. v. New Jersey Turnpike Auth., 137 N.J. 8, 27, 644 A.2d 76 (1994); Henry v. Rahway State Prison, 81 N.J. 571, 579-80, 410 A.2d 686 (1980). Perhaps there may arise cases in which it would be fundamentally unfair to permit repeated disciplinary prosecutions and sanctions for the same offense or conduct. Suffice it to say, we are content to decide the case before us, and here we find no sound basis for rigid application of double jeopardy protections.
B.
We add for the sake of completeness that the offenses charged in the original disciplinary proceedings were not the same offenses for which appellant was ultimately found guilty and were not based upon the same conduct.
We have no occasion here to resolve questions concerning the appropriate test to be applied in determining what constitutes the same conduct or same offense for double jeopardy purposes. These issues were covered exhaustively by Judge Stern in State v. Capak, 271 N.J.Super. 397, 638 A.2d 918 (App.Div.), certif. denied, 137 N.J. 164, 644 A.2d 612 (1994). In a meandering journey from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), to Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and finally to United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the United States Supreme Court seems to have settled on a bright-line, but perhaps mechanistically sterile, approach centering upon whether "each offense contains an element not contained in the other." Id. at 696, 113 S.Ct. at 2856, 125 L.Ed.2d at 568. In contrast, our Supreme Court has said that "[i]f the same evidence used in the first prosecution is the sole evidence in the second, the prosecution of the second offense is barred." State v. DeLuca, 108 N.J. 98, 107-08, 527 A.2d 1355 (1987); see *189 also State v. Yoskowitz, 116 N.J. 679, 563 A.2d 1 (1989). However, the Court's statement of the applicable test was expressed before the United States Supreme Court's last word on the subject.
Whatever test is applied and however it is phrased, we are satisfied that the disciplinary infractions for which appellant was found guilty, while perhaps overlapping the prior charges, were essentially different. Clearly, appellant's sale of cigarettes and legal services constituted transactions wholly unrelated to the gambling enterprise which was the subject of the earlier proceedings. Thus, the subsequent disciplinary proceedings and sanctions pertained to different offenses and the double jeopardy prohibition was not applicable.
Affirmed.
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MARY'S OPINION HEADING
NO. 12-01-00315-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
SHERMAN JOHNSON, JR.,§
APPEAL FROM THE 114TH
APPELLANT
V.§
JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§
SMITH COUNTY, TEXAS
PER CURIAM
This attempted appeal is being dismissed because Appellant waived his right to appeal. On
September 10, 2001, Appellant pleaded guilty to the offense of driving while intoxicated.
Thereafter, on September 21, 2001, the court sentenced him to sixteen years of imprisonment and
a $5,000.00 fine. Following conviction, Appellant filed a "Waiver of Motion for New Trial and
Motion in Arrest of Judgment and Waiver of Right to Appeal," which was signed by Appellant and
his attorney, and approved in writing by the trial court on September 21, 2001.
A defendant may waive many of his rights including the right to appeal. Riley v. State, 963
S.W.2d 932, 933 (Tex. App.- Austin 1998, pet. ref'd); Smith v. State, 858 S.W.2d 609, 611 (Tex.
App.- Amarillo 1993, pet. ref'd). See also Tex. Crim. Proc. Code Ann. art. 1.14(a) (Vernon Supp.
2002). A knowing and intelligent waiver of the right to appeal made after sentence is imposed will
prevent a defendant from appealing without the consent of the trial court. Ex parte Tabor, 565
S.W.2d 945 (Tex. Crim. App. 1978); Riley, 963 S.W.2d at 933. "No attack on a waiver of the right
to appeal will be entertained without factual allegations supporting a claim of coercion or
involuntariness." Smith, 858 S.W.2d at 609.
Nothing in the record shows that Appellant's waiver of the right to appeal was not voluntarily
and intelligently made. The document Appellant signed, entitled "Waiver of Motion for New Trial
and Motion in Arrest of Judgment and Waiver of Right to Appeal" ("Waiver"), acknowledged that
sentence had been imposed, that he understood he had the right to file a motion for new trial, motion
in arrest of judgment and a notice of appeal, that he had a right to counsel on appeal and that he
expressly waived those rights. The Waiver was also signed by Appellant's trial counsel. The trial
court then entered the following ruling:
On this day came for consideration the Defendant's motion to waive the time for filing a motion for
new trial and motion in arrest of judgment and to waive his/her right to appeal, and having considered
the same, the said motions are hereby GRANTED and said waivers are accepted.
Rule 44.3 of the Texas Rules of Appellate Procedure requires that an Appellant be notified
and given an opportunity to correct or amend defects or irregularities in appellate procedure prior
to the dismissal of an appeal on that basis. Appellant's waiver of the right to appeal was not a defect
or irregularity in appellate procedure. Nevertheless, because it appeared that Appellant's appeal
would have to be dismissed due to his waiver of that right, as a courtesy to Appellant, this Court
notified him on November 21, 2001 that because he had waived his right to appeal after sentence was
imposed, the record did not support his presentation of an appeal. Appellant was then informed that
he had until on or before December 3, 2001 to establish his right to appeal, and if he was unable to
do so within that time, the case would be dismissed.
On November 29, 2001, Appellant responded to our notice. In his letter, Appellant conceded
that there is a signed, file-marked waiver of all appeal rights in the clerk's record. However, he
noted that the apparently incomplete reporter's record of the sentencing hearing on September 21,
2001 showed that Appellant may have withdrawn his guilty plea. Appellant asked this Court to
refrain from dismissing the appeal until a complete record was filed. On December 6, 2001, the
court reporter filed a complete record of the sentencing hearing. The record reflects that Appellant
did not withdraw his plea and that he knowingly and voluntarily signed a waiver of his right to
appeal.
Because Appellant appears to have knowingly and voluntarily forfeited his right to appeal
after sentence was imposed, and the trial court did not grant him permission to appeal, his notice of
appeal was ineffectual and the waiver is binding upon him. Hill v. State, 929 S.W.2d 607, 609 (Tex.
App.- Waco 1996, no pet.); Smith, 858 S.W.2d at 609.
Appeal dismissed.
Opinion delivered December 19, 2001.
Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.
(DO NOT PUBLISH)
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[Cite as State ex rel. Rankin v. Mohr, 130 Ohio St.3d 400, 2011-Ohio-5934.]
THE STATE EX REL. RANKIN, APPELLANT, v. MOHR, DIR., APPELLEE.
[Cite as State ex rel. Rankin v. Mohr, 130 Ohio St.3d 400, 2011-Ohio-5934.]
Court of appeals’ judgment denying request for writ of mandamus affirmed.
(No. 2011-0997—Submitted November 16, 2011—Decided November 23, 2011.)
APPEAL from the Court of Appeals for Highland County, No. 10CA9.
__________________
Per Curiam.
{¶ 1} We affirm the judgment of the court of appeals denying the request
of appellant, Robert Rankin, for a writ of mandamus to compel appellee, Gary
Mohr, the director of the Ohio Department of Rehabilitation and Correction
(“ODRC”), to recalculate the expiration of his stated prison term by crediting
each of his concurrent prison terms with 734 days.
{¶ 2} The ODRC director had no duty to reduce Rankin’s Highland
County 13-year sentence by the number of days that Rankin was confined for
other crimes before he received the 13-year sentence. R.C. 2967.191 provides:
“The department of rehabilitation and correction shall reduce the stated prison
term of a prisoner * * * by the total number of days that the prisoner was confined
for any reason arising out of the offense for which the prisoner was convicted and
sentenced * * *.” The fact that the Highland County court ordered that Rankin’s
13-year sentence be served concurrently with his prior sentences does not affect
our determination that Rankin is not entitled to a reduction of his 13-year
sentence. See generally State v. Parsley, Franklin App. No. 01AP-612, 2010-
Ohio-1689, 2010 WL 1510197, ¶ 48-50. Our holding in State v. Fugate, 117
Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, does not require a different
result, because in that case, the defendant was held on each of the charges before
SUPREME COURT OF OHIO
his sentencing, and he was thus entitled to a reduction of each concurrent prison
term. Id. at ¶ 17-18.
{¶ 3} Therefore, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Robert Rankin, pro se.
Michael DeWine, Attorney General, and Jason Fuller, Assistant Attorney
General, for appellee.
______________________
2
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783 N.W.2d 50 (2010)
2010 SD 41
STATE of South Dakota, Plaintiff and Appellee,
v.
Lloyd Steven ROWLEY, Defendant and Appellant.
No. 24881.
Supreme Court of South Dakota.
Considered on Briefs March 22, 2010.
Decided May 19, 2010.
*51 Marty J. Jackley, Attorney General, John Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Kenneth M. Tschetter, Tschetter & Adams Law Office, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
PER CURIAM.
[¶ 1.] Lloyd Steven Rowley (Rowley) appeals a judgment and sentence filed April 3, 2008. Rowley pleaded guilty to possession of a controlled substance, intentional damage to property in the first degree, and a habitual offender information. Rowley received twenty-one years on the possession conviction and twenty-one years for the intentional damage conviction. We affirm.
FACTS
[¶ 2.] On April 8, 2004, after several weeks of investigation, law enforcement attempted to execute a search warrant at Rowley's residence. A South Dakota Division of Criminal Investigation (DCI) agent watching the residence observed Rowley pulling into his driveway in a full-size van pulling a flatbed trailer. The DCI agent signaled the waiting SWAT team to deploy in an attempt to neutralize Rowley. When approached by the SWAT team, Rowley locked the van doors and refused to exit the van. Before the SWAT team was able to remove Rowley from his van, Rowley started the van and drove away. In his attempt to elude law enforcement, Rowley drove his van and trailer through his lawn, striking the vehicle of the DCI agent tasked with observing the residence.
[¶ 3.] A forty-five minute car chase ensued. During the chase, Rowley led the police down several gravel or dirt roads. Eventually, law enforcement spiked Rowley's tires. Rowley nonetheless continued to elude law enforcement. Finally, Rowley stopped at a dead-end road and attempted to hide from police in a corn field.
[¶ 4.] A search of Rowley's vehicle revealed methamphetamine and drug paraphernalia. A search of Rowley's home revealed more than an ounce of methamphetamine, marijuana, and more drug paraphernalia.
[¶ 5.] A Minnehaha County grand jury returned a nine-count indictment. On October 22, 2004, Rowley pleaded guilty to possession of a controlled substance, injury to property in the first degree, and the habitual offender information for both charges. On December 3, 2004, the circuit judge sentenced Rowley to a twenty-year sentence for each crime with the sentences to run consecutively.
[¶ 6.] Rowley appealed and his conviction was summarily reversed. State v. Rowley, 705 N.W.2d 266 (S.D.2005) (Table). On remand, Rowley was released on $100,000 cash bond. On February 21, *52 2006, the day before trial was to begin, Rowley appeared in court and requested a continuance. Rowley's request was denied. Rowley did not appear for trial the next day, and was arrested in Ohio over a year later in May 2007.
[¶ 7.] On October 7, 2007, Rowley again pleaded guilty to possession of a controlled substance, intentional damage to property in the first degree, and the habitual offender information. A different circuit court judge sentenced Rowley to twenty-one years on each of the charges, with the sentences to run consecutively. Rowley appeals raising two issues:
Did the circuit court fail to adequately establish a factual basis on the intentional damage to property in the first degree charge.
Did the circuit court violate Rowley's due process rights by sentencing Rowley to a sentence one year longer on each count than he originally received prior to exercising his right to appeal.
ISSUE ONE
[¶ 8.] Did the circuit court fail to adequately establish a factual basis on the intentional damage to property in the first degree charge.
[¶ 9.] Rowley claims his due process rights were violated, rendering his plea involuntary, when the circuit court failed to establish an adequate factual basis for his plea to the charge of intentional damage to property in the first degree. "To determine if a plea is voluntary and intelligent as required to satisfy due process requirements, we must look to the `totality of the circumstances.'" State v. Apple, 2008 SD 120, ¶ 14, 759 N.W.2d 283, 288. "Establishing a factual basis for each element of an offense is essential to a knowing and voluntary plea." Id. ¶ 18, 759 N.W.2d at 289 (citing State v. Nachtigall, 2007 SD 109, ¶ 11, 741 N.W.2d 216, 220-21). This Court reviews constitutional due process claims de novo. Id. ¶ 8, 759 N.W.2d at 286. "Before accepting a guilty plea, a court must be subjectively satisfied that a factual basis exists for the plea. The court must find a factual basis for each element of the offense. The factual basis must appear clearly on the record." State v. Schulz, 409 N.W.2d 655, 658 (S.D. 1987) (citations omitted). The factual basis may come from "anything that appears on the record. It is not necessary that a defendant state the factual basis in his own words." Id. (citations omitted).
[¶ 10.] At the time the offense was committed, the statute regarding intentional damage to property read as follows:
Any person who intentionally injures, damages, or destroys public property without the lawful consent of the appropriate governing body having jurisdiction thereof, ... is punishable according to the following schedule.... If the damage to property is more than five hundred dollars, the person is guilty of intentional damage to property in the first degree, which is a class 4 felony.
SDCL 22-34-1 (1990) (amended by SL 2005, ch. 120, § 97). Rowley argues the factual basis procured by the circuit judge was insufficient to establish the "intentional" element of the offense.
[¶ 11.] At the time of the incident, this Court had determined intentional damage to property to be a general intent crime. State v. Balint, 426 N.W.2d 316, 318 (S.D. 1988). Regarding the intentional language of the 1990 version of the statute at issue, this Court stated:
We cannot read such language to be words requiring more than a general intent. There is no additional mental state required beyond that accompanying the injurious or destructive act. Our present intentional damage to property *53 statute, which replaced the malicious mischief statute, does require an intentional act on the part of a defendant, but no other subjective intent. SDCL 22-34-1. In 1978, the State Legislature changed the applicable definitions within SDCL 22-1-2. "Intentionally," as a definition, was changed from requiring a specific "intention" to requiring only a specific "design." We hold that this change was made to lessen the burden of proving intent. Thus, the statute evolved from requiring a specific intent to avenge some wrong (malicious mischief) to requiring only a general intent to damage the property of another without their consent.
Id. This Court went on to hold regarding the specific facts at issue: "Clearly, Balint had a design to damage the plate glass window." Id. at 318-19.
[¶ 12.] Here, the colloquy between Rowley and the circuit judge confirmed Rowley's design to damage the vehicle. Rowley confirmed he intentionally drove his van through an area closed by the DCI agent's car in his attempt to escape. This is the injurious act that caused the damage. This act was intentional. As quoted above, "there is no additional mental state required beyond that accompanying the injurious or destructive act."
[¶ 13.] Rowley made it difficult for the circuit court to properly establish a factual basis for the crime during the plea hearing. "When a defendant equivocates while pleading guilty, the court must take extra care to ensure that the record demonstrates a clear factual basis." Nachtigall, 2007 SD 109, ¶ 14, 741 N.W.2d at 221. The circuit court did as required, producing an adequate factual basis despite Rowley's equivocations. The totality of the circumstances support the adequacy of the factual basis received.
[¶ 14.] Rowley argues the factual basis as established here could lead to prosecutions for intentional damage to property whenever a negligent motorist's intentional act of driving a car produces damage. In 2005, the legislature eliminated this possibility when it amended SDCL 22-34-1. The intentional damage to property statute now reads: "[a]ny person who, with specific intent to do so, injures, damages, or destroys...." SDCL 22-34-1 (emphasis added).
ISSUE TWO
[¶ 15.] Did the circuit court violate Rowley's due process rights by sentencing Rowley to a sentence one year longer on each count than he originally received prior to exercising his right to appeal.
[¶ 16.] Rowley first pleaded guilty to the charges of possession of a controlled substance and intentional damage to property in 2004. Based upon Rowley's 2004 guilty plea, he was sentenced to twenty years for each offense by the circuit court. After this Court reversed that conviction (and a fifteen-month hiatus due to Rowley's departure) Rowley again pleaded guilty to the same offenses. This time, however, a different circuit court judge sentenced Rowley to twenty-one years for each offense. Rowley claims the increased severity of the sentences violated his due process rights.
[¶ 17.] For support, Rowley relies on the United States Supreme Court decision, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The holding of Pearce and its progeny as relevantly applied, has been set out aptly by the Eighth Circuit Court of Appeals.
In North Carolina v. Pearce, 395 U.S. 711, 723 [89 S.Ct. 2072, 23 L.Ed.2d 656] (1969), the Supreme Court held that the imposition of a more severe sentence *54 following retrial or resentencing was, in general, permissible. The Court held, however, that an increased sentence motivated by vindictiveness on the part of a sentencing judge was impermissible and a significant violation of a defendant's due process rights. Id. at 725, 89 S.Ct. 2072 [23 L.Ed.2d 656]. The Court articulated a presumption of vindictiveness and imposed a duty on sentencing courts to fully explain more severe sentences:
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
Id. at 726, 89 S.Ct. 2072 [23 L.Ed.2d 656]. The Court did not discuss the impact that the use of a different sentencing judge might have on the analysis. See Texas v. McCullough, 475 U.S. 134, 140 n. 3, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) (noting that the facts of Pearce actually involved a different sentencing judge following remand but that "the Court did not focus on it as a consideration for its holding"). Rather, the Court suggested the blanket rule that only facts arising after an initial sentencing could justify a more severe sentence on resentencing. Pearce, 395 U.S. at 726, 89 S.Ct. 2072 [23 L.Ed.2d 656].
As explained by the Court in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), a series of sub-sequent rulings limited the effect of Pearce and clarified that a presumption of vindictiveness only arises where there is a "`reasonable likelihood' that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority." Id. at 799, 109 S.Ct. 2201 [104 L.Ed.2d 865] (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). "Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness." Id.
United States v. Anderson, 440 F.3d 1013, 1015-16 (8th Cir.2006).
[¶ 18.] Here, Rowley was sentenced by two different judges. In similar situations, the Pearce analysis has been held inapplicable. See, McCullough, 475 U.S. at 138, 106 S.Ct. at 978-79, 89 L.Ed.2d at 110 (noting other United States Supreme Court cases in which the presumption of vindictiveness did not apply when the more severe sentence was handed down by a different sentencing authority than the original sentence). The McCullough approach has been interpreted as follows: "when a different judge sentences a defendant after a retrial, and that judge articulates logical, nonvindictive reasons for the sentence, there simply is no sound basis to presume that the sentence is the product of judicial vindictiveness." State v. Mitchell, 670 N.W.2d 416, 424 (Iowa 2003) (citing decisions relying upon McCullough for this proposition); see also State v. Bruna, 14 Neb.App. 408, 710 N.W.2d 329, 336 (2006) ("Because the judge who imposed Bruna's second sentence is not the same judge who imposed the first sentence, we conclude that there is no reasonable likelihood that vindictiveness contributed to the sentence appealed in this case."). We adopt this line of cases and hold that the presumption of vindictiveness *55 does not apply when a defendant's sentence subsequent to reversal is handed down by a different sentencing judge.
[¶ 19.] Although the presumption of vindictiveness does not apply, Rowley could still obtain relief if he is able to articulate actual vindictiveness. See, Anderson, 440 F.3d at 1016. However, at the second sentencing the circuit court set out in detail the reasons Rowley received the sentence he did, leaving no trace that the increased sentence was punishment for appealing the original conviction.
[¶ 20.] Rowley also contends his sentence is unconstitutional as he received a harsher sentence the second time in part due to absconding. Rowley argues this is a violation of double jeopardy as he pleaded guilty to felony failure to appear and received a sentence for that crime, effectively punishing him twice for the same offense. Other courts addressing this issue in the context of an alleged double jeopardy violation hold otherwise: "[f]or the determination of sentences, justice generally requires consideration of more than the particular acts for which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60-61, 82 L.Ed. 43 (1937).
Included as part of this consideration is conduct arising subsequent to the conviction of the underlying crime and prior to final sentencing. Although this subsequent conduct may result in separate criminal charges, numerous federal courts have held that such subsequent action is not barred by the double jeopardy clause. See United States v. Carey, 943 F.2d 44 (11th Cir.1991); United States v. Mack, 938 F.2d 678 (6th Cir. 1991); United States v. Garcia, 919 F.2d 881 (3d Cir.1990); United States v. Troxell, 887 F.2d 830 (7th Cir.1989); Sekou v. Blackburn, 796 F.2d 108 (5th Cir.1986); United States v. Brown, 785 F.2d 587 (7th Cir.1986); United States v. Wise, 603 F.2d 1101 (4th Cir.1979).
State v. Garvin, 43 Conn.App. 142, 682 A.2d 562, 568 (1996). Based on this authority, Rowley's argument fails.
[¶ 21.] For the reasons stated above, the judgment of the circuit court is affirmed.
[¶ 22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, participating.
[¶ 23.] SEVERSON, Justice, deeming himself disqualified, did not participate.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
CORVEL CORPORATION, §
§ No. 513, 2013
Defendant Below- §
Appellant, § Court Below: Superior Court of the
§ State of Delaware, in and for
v. § New Castle County
§
HOMELAND INSURANCE § C.A. No. N11C-01-089
COMPANY OF NEW YORK, §
§
Plaintiff Below- §
Appellee. §
Submitted: December 3, 2014
Decided: March 6, 2015
Before STRINE, Chief Justice, HOLLAND, VALIHURA, and VAUGHN,
Justices, BOUCHARD,* Chancellor, constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Kevin G. Abrams, Esquire, John M. Seaman, Esquire, (argued), Steve C. Hough,
Esquire, Abrams and Bayliss LLP, Wilmington, Delaware; Somer G. Brown, Esquire,
(argued), Cox, Cox, Filo, Camel & Wilson LLC, Lake Charles, Louisiana, for
Appellant.
James W. Semple, Esquire, (argued), Corrine Elise Amato, Esquire, Morris James
LLP, Wilmington, Delaware; Michael J. Rosen, Esquire, Peter F. Lovato, III, Esquire,
Boundas, Skarzynski, Walsh & Black, LLC, Chicago, Illinois, for Appellee.
______________
* Sitting by designation under Del. Const. art. IV, § 12.
VAUGHN, Justice, for the Majority:
Defendant Below/Appellant, CorVel Corporation (“CorVel”), appeals from an
order of the Superior Court granting partial summary judgment in favor of Plaintiff
Below/Appellee, Homeland Insurance Company of New York (“Homeland”). The
case arises from class actions filed against CorVel and others in the State of
Louisiana. In those actions, medical service providers alleged that CorVel violated
notice provisions contained in a Louisiana statute known as the Preferred Provider
Organizations Act.1 CorVel eventually entered into a settlement in which it resolved
all of the Louisiana litigation.
CorVel was insured under an errors and omissions insurance policy issued by
Homeland. The policy had a number of exclusions, one of which was an exclusion
for “penalties.” The issue in this case is whether the amount that CorVel paid to settle
the Louisiana litigation was a “penalty,” and, therefore, not a covered loss under the
insurance policy. The Superior Court concluded that the amount paid was a
“penalty.” We have concluded that it was not a “penalty,” and that the policy’s
exclusion for “penalties” does not apply.
1
The act is also known as the “Any Willing Provider Act.”
2
I. FACTUAL AND PROCEDURAL HISTORY
CorVel, a Delaware corporation, owns and operates a Preferred Provider
Organization (“PPO”) network throughout the United States. As part of its national
network, CorVel had PPO agreements with medical providers in Louisiana. Under
the agreements, the medical providers agreed to discount rates on certain medical
services. CorVel also entered into agreements with group workers’ compensation
payers, such as employers, who utilized CorVel’s discounted PPO rates when paying
for workers’ compensation services.
By statute, the State of Louisiana has approved PPO networks and their
discounted rates, but has imposed certain statutory requirements. One requirement
is that the PPO give notice to a medical provider when a discount is to be applied.
The notice provisions of the Louisiana statute can be satisfied in either one of two
ways. One way is by issuing a benefit card to a patient that the patient can then
present to the medical provider. The other way is by issuing a written notice to the
medical provider that a certain group purchaser is a PPO participant.
Failure to comply with the notice requirements subjects a PPO to financial
consequences under La. R.S. § 40:2203.1(G), which reads as follows:
Failure to comply with the [notice provisions] of this
Section shall subject a group purchaser to damages payable
to the provider of double the fair market value of the
3
medical services provided, but in no event less than the
greater of fifty dollars per day of noncompliance or two
thousand dollars, together with attorney fees to be
determined by the court.
Two class actions were brought against CorVel and others in Louisiana state
court alleging that CorVel had failed to comply with the statutory notice provisions.
The actions sought damages under La. R.S. § 40:2203.1(G). Both actions made the
same allegations and sought the same relief. The first action was captioned SWLA
Hospital Assoc. d/b/a Lake Charles Memorial Hospital v. CorVel (the “LCMH
Arbitration”).2 The second action, filed September 30, 2009, was captioned George
Raymond Williams M.D. Orthopedic Surgery v. SIF Consultants of Louisiana, Inc.
(the “Williams Litigation,” and together with the LCMH Arbitration, the “Louisiana
Litigation”).3 On March 24, 2011, Homeland and Executive Risk Specialty Insurance
Co. (“Executive Risk”), another CorVel insurer, were also made parties to the
Williams Litigation under La. R.S. § 22:1269, which provides that under certain
conditions an “injured person . . . shall have a right of direct action against the insurer
within the terms and limits of the policy; and, such action may be brought against the
insurer alone.”4
2
See CorVel Corp. v. Sw. La. Hosp. Ass’n, 2007 WL 594904 (W.D. La. Feb. 21, 2007) (ordering
the parties to enter arbitration for statutory claims under La. R.S. § 40:2203.1).
3
Williams v. SIF Consultants of Louisiana, Inc., 2013 WL 7330225 (La. Dist. Ct. Jul. 29, 2013).
4
La. R.S. § 22:1269.
4
On July 23, 2011, CorVel agreed to settle the Louisiana Litigation and other
claims pending before the Louisiana Office of Workers’ Compensation for $9
million, including an amount for attorneys’ fees payable to plaintiff class counsel.
As part of the settlement, CorVel assigned to the plaintiff class its rights under the
insurance policy issued by Homeland and Executive Risk.5
On January 10, 2011, Homeland filed an action against CorVel in the Delaware
Superior Court seeking, among other things, declaratory relief that any amount paid
by CorVel to the plaintiff class as a result of the Louisiana Litigation was a “penalty”
under La. R.S. § 40:2203.1(G) and not a covered loss under the insurance policy.
The Homeland policy provided, in pertinent part, as follows:
The Underwriters will pay on behalf of the Insured any
Loss which the Insured is legally obligated to pay as a
result of any Claim that is first made against the Insured .
. . and reported to the Underwriter either during the Policy
Period or in any event within ninety (90) days after the end
of the Policy Period, in accordance with CONDITION (B)
of this Policy.
“Loss” means . . . Defense Expenses and any monetary
amount which an Insured is legally obligated to pay as a
result of a claim.
5
Appellant’s Op. Br. App. at A265-66 (“CorVel shall assign to the Class any and all of the its rights
to: (a) receive any and all proceeds available/awarded pursuant to CorVel’s insurance policies with
respect to the released claims . . . and (b) pursue declaratory judgment and/or damages action with
respect to indemnity coverage under these policies for the released claims.”).
5
Loss shall include:
(1) a claimant’s attorney’s fees and court costs, but only in
an amount equal to the percentage that the amount of
monetary damages covered under this Policy for any
settlement or judgment bears to the total amount of such
settlement or judgment . . .
(3) punitive, exemplary or multiplied damages where
insurable by law . . .
Loss shall not include:
(1) fines, penalties or taxes; provided that (A) punitive
damages shall not be deemed to constitute fines, penalties
or taxes for any purpose herein . . . .
Executive Risk sought and received approval to intervene in the Superior Court
action filed by Homeland.6 The Executive Risk policy contained language similar to
the Homeland policy, and, of importance to this case, also excluded penalties from
coverage.
On June 13, 2013, the Superior Court issued an opinion and order granting
summary judgment to Executive Risk and partial summary judgment to Homeland on
the ground that the amount that CorVel paid to settle the Louisiana Litigation was a
penalty.
When the Superior Court issued its June 13, 2013, opinion, a motion for partial
6
Executive Risk has since settled with CorVel and been dismissed from the case.
6
summary judgment filed by the plaintiff class against Executive Risk in the Williams
Litigation was pending in Louisiana. In the motion, the plaintiff class contended that
damages under La. R.S. § 40:2203.1(G) were statutory damages and not penalties.
Executive Risk contended, as Homeland does here, that the damages under the statute
were penalties. Because the insurance policy excluded penalties from the definition
of Loss, the insurance company argued that the amount paid by CorVel to the plaintiff
class was not covered under the policy issued to CorVel.
On July 29, 2013, almost seven weeks after the Superior Court issued its
opinion and order, the Louisiana trial court issued an opinion in the Williams
Litigation granting the plaintiff class’ motion for partial summary judgment and
holding that damages under La. R.S. § 40:2203.1(G) are statutory damages, not
penalties.7 Thus, according to the Louisiana trial court, the insurance policy issued
to CorVel covered the amount paid to the plaintiff class in the Louisiana Litigation.
Executive Risk appealed the trial court’s decision to the State of Louisiana
Court of Appeals for the Third Circuit. The appellate court affirmed the trial court’s
judgment. It also found that damages under La. R.S. § 40:2203.1(G) are statutory
damages, or damages punitive in nature, but not penalties.8 Based on these findings,
7
Williams v. SIF Consultants of Louisiana, Inc., 2013 WL 7330225 (La. Dist. Ct. Jul. 29, 2013).
8
Williams v. SIF Consultants of Louisiana, Inc., 133 So.3d 707 (La. Ct. App. 2014), reh’g denied
(Apr. 9, 2014).
7
the appellate court concluded that the settlement amount paid by CorVel was a
covered loss under the policy issued by Executive Risk. Executive Risk subsequently
settled in that case, and no appeal was taken to the Louisiana Supreme Court from the
decision of the appellate court.
Meanwhile, in Delaware, the Superior Court sent a letter to counsel on July 26,
2013, three days before the Louisiana trial court’s decision in the Williams Litigation
was issued, stating that “to the extent there are claims still pending in this litigation,
a trial date will be assigned promptly.”9 The Delaware Superior Court requested that
each party identify the claims it intended to present at trial and state the number of
trial days the party would need.
On August 15, 2013, after the Louisiana trial court’s decision in the Williams
Litigation was issued, counsel for Homeland and Executive Risk wrote to the
Delaware Superior Court that no issues remained and that the docket should be
marked closed. On August 22, 2013, counsel for CorVel responded with a letter
stating that a trial was still necessary on its affirmative defenses -- i.e., that
Homeland’s denial of coverage was barred by waiver and estoppel. But after further
correspondence between the court and counsel, the Superior Court entered an order
9
The judge who issued the June 13, 2013, opinion and order retired shortly thereafter. The July 26,
2013, letter was written by his successor.
8
on August 27, 2013, closing the case on the docket. In that order, the Superior Court
referred to its June 13, 2013, order as its final order and judgment.
On September 3, 2013, CorVel filed a Motion to Alter or Amend the August
27, 2013, order under Superior Court 59(d), or, alternatively, a Motion for Relief
from Judgment under Rule 60(b). The Superior Court denied both motions in a
September 20, 2013, order. In that order, however, the Superior Court referred to its
August 27, 2013, order as its final order.
On September 26, 2013, CorVel filed its appeal to this Court. Homeland filed
a Motion to Dismiss the Appeal on the grounds that the Superior Court’s final order
was its June 13, 2013, opinion and order, and that the appeal was therefore untimely.
This Court denied Homeland’s motion without prejudice.
II. DISCUSSION
Homeland has renewed its Motion to Dismiss the Appeal. Homeland argues
that the June 13, 2013, opinion and order granted the entirety of the relief it sought,
resolved all claims as to all parties, mooted the remaining arguments, and expressed
the Superior Court’s decision to resolve all of the claims presented. Homeland
contends that the trial court’s June 13, 2013, opinion and order clearly and
unambiguously granted Homeland’s motion for summary judgment, holding that there
was no coverage for the amount CorVel paid to the plaintiff class to settle the
9
Louisiana Litigation under the insurance policy.
The question of whether an order constitutes a final judgment depends on
“whether the judge has or has not clearly declared his intention in this respect in his
opinion.”10 CorVel had pled affirmative defenses. In June 2012, the Superior Court
entered an order that apparently was intended to stay discovery “on issues not
resolved through the Court’s adjudication of any dispositive motions.” The June 13,
2013, opinion and order did not expressly address affirmative defenses, and it appears
that CorVel, at least initially, contemplated proceeding on those defenses after the
motion for partial summary judgment was granted. On this record, we find that the
August 27, 2013, order was the Superior Court’s final order and that CorVel’s appeal
was timely filed.
We review a grant of summary judgment de novo.11 Interpretation of a statute
is a question of law, which we also review de novo.12
“Comity permits one state to give effect to the laws of a sister state, not out of
obligation, but out of respect and deference.”13 We have acknowledged that
10
J. I. Kislak Mortgage Corp. v. William Matthews, Builder, Inc., 303 A.2d 648, 650 (Del. 1973)
(quoting United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232 (1958)).
11
Kelty v. State Farm Mut. Auto. Ins. Co., 73 A.3d 926, 929 (Del. 2013) (citing E. Sav. Bank, FSB
v. CACH, LLC, 55 A.3d 344, 347 (Del. 2012)).
12
Kelty, 73 A.3d at 929 (citing Sussex Cnty. Dep’t of Elections v. Sussex Cnty. Republican Comm.,
58 A.3d 418, 421 (Del. 2013)).
13
Columbia Cas. Co. v. Playtex FP, Inc., 584 A.2d 1214 (Del. 1991) (quoting 16 Am. Jur. 2d,
Conflict of Laws § 10, at 28 (1979)).
10
“important and novel issues of other sovereigns are best determined by their courts
where practicable.”14 Where a foreign statute has been interpreted by courts of the
state of its origin, such interpretation should be followed in other states where the
statute is applied.15 Pursuant to the doctrine of comity, the courts of a sister state
should adopt the decision of the highest tribunal of the enacting state concerning
construction of the statute.16
CorVel argues that, in accordance with the doctrine of comity, we should show
deference to the Louisiana appellate court, and adopt its interpretation of La. R.S.
§ 40.2203.1(G). We agree. The Louisiana appellate court considered the same
Louisiana statute and analyzed almost identical insurance policy language as that
involved in this case. Because the Louisiana appellate court in the Williams
Litigation is the highest Louisiana appellate court to construe La. R.S.
§ 40.2203.1(G), we adopt its reasonable interpretation as our own. We find that La.
14
Martinez v. E.I. DuPont de Nemours and Co., Inc., 86 A.3d 1102, 1110 (Del. 2014).
15
2 Sutherland Statutory Construction § 37:3 (7th ed.) (internal citations omitted). See, e.g., Kahn
v. Pony Express Courier Corp., 20 P.3d 837, 849 (Or. Ct. App. 2001) (examining decisions of the
Montana appellate courts interpreting and applying a Montana statute to determine its intent);
Peterson v. Ely, 569 P.2d 1059 (Or. 1977) (construing Washington statute in accordance with
decisions of Washington Supreme Court); People ex rel. Shults v. Lombard, 398 N.Y.S.2d 932 (Co.
Ct. 1977) (“The decision of the foreign court of last resort is controlling on the question to be
decided by a court of this State, and this is especially true when a question arises with respect to the
statute and constitution of the foreign state.”) (internal citations omitted)); King v. Klemp, 57 A.2d
530, 533 (N.J. Ch. 1947) (“[W]here the construction of a foreign statute is involved, our courts will
accept as controlling the interpretation placed thereon by the courts of that state.”).
16
See supra footnote 15.
11
R.S. § 40.2203.1(G) provides for statutory damages, not penalties. Thus, we find that
the amount CorVel paid to settle the Louisiana Litigation, including attorneys’ fees,
is not excluded from the definition of “Loss” by the insurance policy provision that
excludes “penalties.”
In our view, the Dissent is based upon several flawed premises. The Dissent
maintains that the Superior Court rendered its decision well before the Louisiana trial
court issued its ruling. In other words, it takes to task the District Court of Louisiana
for the 27th Judicial District for not deferring to the Delaware Superior Court. The
fact is that the Louisiana Litigation had been in progress for many years prior to the
filing of the Delaware suit.17 The center of this litigation has been in Louisiana and
the dispute underlying the Delaware declaratory action arises out of the Louisiana
Litigation.
The Delaware suit was filed on January 10, 2011,18 after the Louisiana Court
of Appeals for the Third Circuit affirmed a ruling in another case that had negative
17
In 2004 and 2005, CorVel and LCMH were embroiled in legal action in Louisiana. On December
22, 2006, LCMH instituted a putative class arbitration against CorVel (Sw. La. Hosp. Ass’n. d/b/a
Lake Charles Mem’l Hosp. v. CorVel). LCMH claimed that CorVel violated Louisiana law, and
sought coverage from an insurance policy issued by Homeland. On September 30, 2009, the
Williams Litigation was filed. The lawsuit claimed the same violation of Louisiana law as claimed
by LCMH against CorVel (and against Homeland).
18
Homeland Ins. Co., et al. v. CorVel Corp., 2013 WL 3937022 (Del. Super. Jun. 13, 2013).
12
implications for the insurance carriers.19 Specifically, on June 30, 2010, the
Louisiana Court of Appeals for the Third Circuit affirmed a ruling by the trial court,
in which the trial court stated the following:
This Court notes from a very basic standpoint that [the
Louisiana statute § 40:2203.1(G)] makes no mentions of
fines or penalties . . . I believe from a very basic standpoint
that damages are covered by the Columbia policy. No one
is arguing that point.
Now, as to whether or not the quote, “damages” being
sought by the plaintiffs are in fact civil fines and penalties
this Court is of the position that they are not.20
Thus, the more compelling conclusion is that the Appellees filed in Delaware when
they saw the handwriting on the wall in Louisiana.
Moreover, there is very little connection to the State of Delaware in this
litigation. The only nexus with the State of Delaware is CorVel’s situs of
incorporation. CorVel is a Delaware corporation, with its principal place of business
in California. Homeland is a New York corporation, with its principal place of
business in Massachusetts. Executive Risk is a Connecticut corporation, with its
principal place of business in New Jersey.
19
Gunderson v. F.A. Richard & Associates, Inc., No. 2004-2417 (14th Jud. Dist. Ct., Parish of
Calcasieu, La. Jul. 20, 2007), aff’d, 44 So.3d 779 (La. App. 2010); Appellant’s Op. Br. App. at
A987.
20
Appellant’s Op. Br. App. at A987.
13
The connection this litigation has with the State of Louisiana is much stronger.
Although CorVel is incorporated in Delaware and maintains its headquarters in
California, the company owns and operates PPO networks throughout the United
States. One of the entities with which CorVel had a PPO agreement was Lake
Charles Memorial Hospital in Louisiana. This litigation first began about a decade
ago when LCMH brought suit against CorVel in Louisiana,21 alleging a violation of
Louisiana law, which by its own terms has no application outside that state’s
boundaries.22 Moreover, the parties agree that there is no difference between
Delaware and Louisiana regarding construing contracts. For example, they agree that
all potentially applicable state laws provide that coverage provisions should be
construed broadly and exclusions should be construed narrowly.
The Dissent maintains that Delaware law applies notwithstanding the absence
of a choice of law provision in the insurance policy. While the parties may have
agreed for purposes of this appeal that Delaware law applies to the construction of the
21
See CorVel Corp. v. Sw. La. Hosp. Ass’n, 2007 WL 594904 (W.D. La. Feb. 21, 2007) (ordering
the parties to enter arbitration for statutory claims under La. R.S. § 40:2203.1, and discussing the
filing of Sw. La. Hosp. Ass’n. d/b/a Lake Charles Mem’l Hosp. v. CorVel).
22
La. R.S. § 40:2203.1(A) (“Except as otherwise provided in this Subsection, the requirements of
this Section shall apply to all preferred provider organization agreements that are applicable to
medical services rendered in this state and to group purchasers as defined in this Part. The provisions
of this Section shall not apply to a group purchaser when providing health benefits through its own
network or direct provider agreements or to such agreements of a group purchaser.”).
14
policy, they disagree on which state’s law controls the central question of how to
characterize the judgment obtained in the Louisiana Litigation.
The Appellants contend that the Louisiana statute controls how the judgment
is characterized. The Delaware Superior Court agreed as evidenced by its statement
that “while the Court will apply Delaware law to interpret the insurance contracts,
Louisiana law will be applied regarding the penalty issue, as this Court must examine
a Louisiana Statute.”23 However, the Superior Court erred when it then applied
common law principles in answering this question, rather than Louisiana’s civil law
approach that was foreshadowed in the Gunderson decision. Under civil law, priority
is given to statutes and codes over common law jurisprudence.24 “Civil law codes
provide the core of the law-general principles[, which] are systematically and
exhaustively exposed in codes[,] and particular statutes complete them.”25 Quite
simply, in Louisiana, if the statute does not characterize the damage award entered
as a “penalty,” then it is not a “penalty” under Louisiana law.26
The Dissent refuses to accept the Louisiana court’s construction of its own
23
Homeland Ins. Co. v. CorVel Corp., 2013 WL 3937022, at *10 (Del. Super. Jun. 13, 2013).
24
See generally William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and
Uncodified), 60 La. L. Rev. 677, 701-05 (2000).
25
Id. at 703 (internal citations omitted).
26
See Williams v. SIF Consultants of Louisiana, Inc., 133 So.3d 707, 714 (La. Ct. App. 2014)
(explaining how “[t]he language of La. R.S. § 40:2203.01 denotes that a violator is subject to pay
‘damages’ and includes no language regarding penalties”).
15
statute. It rejects Louisiana’s civil law approach as tautological, and instead, applies
common law interpretation to the Louisiana statute to determine whether damages
under La. R.S. § 40:2203.1(G) constitute “penalties.” We submit that we should defer
to the Louisiana court’s civil law approach in the construction of its own statute.
Finally, we acknowledge that the Superior Court did not have the benefit of the
Louisiana trial and appellate court’s decisions in the Williams Litigation when it
rendered its June 13, 2013, opinion and order. But given our de novo review, we will
exercise comity in favor of our sister state, Louisiana, and, accordingly, hold that
Louisiana’s interpretation of its own statute is the correct interpretation.
III. CONCLUSION
Accordingly, the matter is REVERSED and REMANDED for further
proceedings consistent with this Opinion.
16
STRINE, Chief Justice, dissenting, with BOUCHARD, Chancellor, joining:
We share the Majority Opinion’s desire to respect principles of comity and to
avoid conflicting rulings. We respectfully dissent, however, from the Majority
Opinion’s view that by reversing the Superior Court’s careful determination of the
insurance coverage issues properly before it, our Court would be failing to accord
comity to our esteemed judicial colleagues in Louisiana. The record is clear that the
Superior Court rendered its decision on coverage well before the Louisiana trial court
issued its ruling on that same issue.27 And unlike the Louisiana Court or the Majority
Opinion, the Superior Court recognized that the proper analysis to determine
coverage under a contract starts with the language of the contract itself. This case
thus does not depend principally on the interpretation of a Louisiana statute, but
instead turns on the meaning of a contract that the parties to this appeal do not dispute
should be interpreted based on Delaware contract law principles.
The issues at stake in this case and its companion, First Health v. Chartis,
make little sense without understanding the full context behind this appeal. The
underlying claims for which insurance coverage was sought arise of the so-called
27
Indeed, the Louisiana trial court’s ruling referenced the earlier Delaware decision. Compare
Homeland Ins. Co. and Executive Risk Specialty Ins. Co. v. CorVel Corp., 2013 WL 3937022 (Del.
Super. June 13, 2013) [hereinafter Superior Court Opinion], with Williams v. SIF Consultants of
Louisiana, Inc., 2013 WL 7330225 (La. Dist. Ct. July 29, 2013).
17
PPO industry. A PPO, short for Preferred Provider Organization, essentially acts as
an intermediary between health insurance companies and medical providers,
including hospitals and individual doctors. The PPO creates a network of providers
who agree to receive a reduced payment for treating patients covered by the insurers.
This case and First Health’s arose from litigation brought by multiple groups
of medical providers in Louisiana alleging that a number of PPO owners and
operators, including CorVel and First Health, were violating La. R.S. § 40:2203.1, the
“PPO Act,” by improperly discounting payments for medical services without
providing adequate notice to providers. The Act requires that before PPOs can
discount payments to health care providers, either the patient must present a benefit
card identifying the PPO at the time of service or the provider must agree in writing
to receive the discounted rate.28 The provider plaintiffs alleged that the PPOs had
failed to provide the required notice for services provided to workers’ compensation
patients. The plaintiffs sought the remedies established in Section G of the Act:
“damages payable to the provider of double the fair market value of the medical
services provided, but in no event less than the greater of fifty dollars per day of
noncompliance or two thousand dollars, together with attorney fees to be determined
28
La. R.S. § 40:2203.1(B)-(C).
18
by the court.”29
The cases now before us are one step removed from those underlying claims.
They focus on a different but related issue; namely, whether the PPOs’ insurers owe
the PPOs reimbursement for the medical providers’ claims.
CorVel faced legal action for allegedly discounting payments in violation of
the PPO Act from two sets of providers. First, Lake Charles Memorial Hospital
brought a class arbitration against CorVel in 2006.30 While that case was pending,
another plaintiff, George Raymond Williams, M.D., sued PPO owners and operators
on behalf of the same class of providers in a Louisiana trial court (the “Williams
litigation”).31 CorVel was eventually added as a defendant to that suit. Under
Louisiana law, plaintiffs can pursue claims directly against insurers in certain
circumstances.32 Accordingly, CorVel’s two insurers, Homeland and Executive Risk,
were also named as defendants. Because the Lake Charles arbitration and the
Williams litigation involved identical claims on behalf of the same class of providers
29
La. R.S. § 40:2203.1(G).
30
Lake Charles Memorial Hospital initially filed claims with the Louisiana Department of Labor
Department of Workers’ Compensation, but CorVel filed suit in Louisiana federal district court to
compel arbitration in accordance with the parties’ contract.
31
George Raymond Williams, MD. v. SIF Consultants of Louisiana, Inc., Dkt. No. 09-C-5244-C,
27th Judicial District Court, Parish of St. Landry.
32
See La. R.S. § 22:1269(B)(1). That is, Louisiana law subjects an insurer who has no contractual
relationship with the tort plaintiffs to a lawsuit based on the insurance company’s policy with the tort
defendant.
19
(the “Provider Plaintiff Class”), CorVel was able to resolve both actions with a global
settlement for $9 million and an assignment of its insurance rights, which the
Louisiana District Court approved in November 2011. But both Homeland and
Executive Risk remained parties to the litigation. Put plainly, what CorVel did was
to pay $9 million and then unleash the Provider Plaintiff Class to proceed directly
against its insurers, Homeland and Executive Risk, as if the Provider Plaintiff Class
had the same contractual rights as an insured as CorVel.
A separate set of providers brought suit against another group of PPO owners
and operators, including First Health, in 2004.33 First Health eventually settled with
that plaintiff class (the “Settlement Class”) for $150.5 million and an assignment of
its insurance rights.34 That is, yet another PPO defendant paid money and then gave
the medical provider plaintiffs the right to go directly against their insurers as an
assignee.
Both CorVel and First Health had multiple layers of insurance coverage under
Errors & Omissions policies at the time of the alleged wrongdoing that they contend
should cover the underlying claims. As noted, CorVel’s coverage was provided by
Executive Risk and Homeland; First Health’s by four different companies, including
33
Gunderson v. F.A. Richard & Assoc., 2005 WL 5468586 (La. Dist. Ct., June 23, 2005).
34
See Gunderson v. F.A. Richard & Assoc., No. 2004-2417 (14th Jud. D.C., Parish of Calcasieu,
State of La., May 27, 2011).
20
Chartis. In September 2009, one of First Health’s insurers filed suit in the Delaware
Superior Court, seeking a declaration that it had no duty to indemnify First Health
under its policy for any claims related to the Louisiana litigation. After First Health
settled that litigation, in part by unleashing the plaintiff class to sue its insurers under
an assignment, the Settlement Class was added to the Delaware action against First
Health as the real party in interest.
The Settlement Class moved for partial summary judgment on the issue of
coverage on April 3, 2012, contending that the underlying claims constituted
damages, which were covered under the contract. Chartis agreed that there were no
material issues of fact to be decided, and cross-moved for partial summary judgment,
contending that the claims were instead for penalties, which were excluded.35 The
Superior Court held a hearing on the motions on June 13, 2012, and issued an opinion
denying the Settlement Class’ motion and granting Chartis’ motion for partial
summary judgment on May 7, 2013. After conducting a thorough analysis of the
insurance contract at issue, the Superior Court found that the policies were
unambiguous, and the providers’ claims under the PPO Act constituted penalties, not
35
At that point, Chartis was one of three defendant insurance companies, but the other two
eventually settled with the Settlement Class.
21
damages, and were therefore not covered.36
Litigation between CorVel and its insurers moved along a parallel track. In
January 2011, Homeland brought a claim in the Delaware Superior Court seeking a
declaration that the underlying claims for violations of the PPO Act were not
insurable losses under its policy because they were penalties, not damages. Executive
Risk was granted leave to intervene. Both insurers moved for partial summary
judgment, arguing that there were no material facts in dispute.37 Unlike in First
Health’s case, CorVel opposed both motions and argued that there were material facts
remaining to be decided. Focusing on the terms used by the PPO Act rather than the
language of the policies at issue, CorVel argued that under Louisiana law, the medical
providers’ claimed remedies were damages, not penalties. But CorVel claimed that,
at a minimum, the policy exclusions were ambiguous, and thus summary judgment
was inappropriate. The Superior Court heard arguments on January 31, 2013, and
issued its opinion granting the insurance companies’ motions on June 13. Just as in
First Health’s case, the court carefully analyzed the relevant insurance policies and
determined they were unambiguous in excluding the underlying claims as penalties.38
36
Executive Risk Specialty Ins. Co. v. First Health Group Corp., 2013 WL 1908664 (Del. Super.
May 7, 2013).
37
Executive Risk moved for summary judgment “on the issues of penalty, restitution, and contract”
on Aug. 29, 2012; Homeland moved for partial summary judgment in the same action on the same
day.
38
See Superior Court Opinion.
22
The Settlement Class and CorVel then both appealed to this Court.
Back in Louisiana, on May 24, 2014, after the Delaware Superior Court had
issued its decision in First Health’s case, but while the decision in CorVel’s case was
pending, the Provider Plaintiff Class moved for partial summary judgment against
Executive Risk in the Williams litigation. Although technically the Provider Plaintiff
Class is a separate party from CorVel, they share at least some of the same attorneys,
and there is no question that they have acted in coordination throughout this
litigation. Likewise, CorVel and the First Health Settlement Class have the same
attorneys and their briefing on appeal to this Court was substantively identical.
After the Delaware Superior Court issued its June 13 decision in CorVel’s case,
granting summary judgment to Executive Risk and Homeland, the Louisiana trial
court in Williams held a hearing on the Provider Plaintiff Class’ motion on June 28.
Rather than defer to the Delaware Superior Court’s well-reasoned rulings on the
identical coverage issues, the Louisiana court granted the motion for summary
judgment on July 29, holding that under the PPO Act, the remedies available to
providers were damages, not penalties. The Louisiana Third Circuit Court of Appeal
affirmed the trial court’s ruling on February 26, 2014.39 At that point, Executive
39
Williams v. SIF Consultants of Louisiana, Inc., 133 So.3d 707 (La. Ct. App. 2014). The Louisiana
Appeals Court’s decision references the earlier Delaware ruling as evidence that the plaintiff class’
motion for partial summary judgment was ripe for adjudication, but does not otherwise address
23
Risk settled with the Provider Plaintiff Class and was dismissed from CorVel’s appeal
then pending before this Court.
Without quibbling in any way with the Louisiana Court’s description of the
Louisiana statute that apparently motivated its decision on the relevant coverage
issues, we still find it impossible to reverse the Delaware Superior Court in the appeal
pending before this Court. The reasons for that are simple: the Superior Court did not
ignore principles of comity or commit any error of contract law. As to the first
issue—comity—the Superior Court considered an issue properly put to it in advance
of any requested ruling on that issue by the Louisiana trial court. As to the second,
the Superior Court did not understand the Louisiana statute to operate any differently
than the Williams court did. But the Superior Court, unlike the Williams court or the
Majority Opinion, gave meaning and effect to the core contractual terms the parties
had agreed to. The Superior Court’s legal conclusions on that score were
well-supported by respected authority,40 applying relevant principles of contract
Executive Risk’s claim that the Louisiana trial court’s ruling directly contradicted a previous
judgment that should have had preclusive effect. See id.
40
See, e.g., Katz v. Oak Industries, 508 A.2d 873, 880 (Del. Ch. 1986) (quoting Corbin on Contracts
(Kaufman Supp. 1984), § 570) (“If the purpose of contract law is to enforce the reasonable
expectations of parties induced by promises, then at some point it becomes necessary for courts to
look to the substance rather than to the form of the agreement, and to hold that substance controls
over form.”).
24
interpretation that are embraced by our courts and by most jurisdictions.41
The Superior Court’s analysis was faithful to the text of La. R.S. § 40:2203.1,
but properly recognized that the label the Louisiana statute used did not determine
whether the substance of what the underlying medical provider claimants obtained
were “damages” within the terms of the insurance contract-which would be
covered—or “penalties”—which would not. The meaning of terms in insurance
policies like the one involved here have to govern the operation of companies doing
business in many jurisdictions. As a result, the claims that arise under various
jurisdictions must be analyzed to determine whether they fall within the insurance
contract’s coverage or within excluded categories. That requirement of proper
contract analysis does not change, regardless of whether the jurisdiction takes a
common law or civil law approach in interpreting its statutes.
In conducting the appropriate contractual analysis, it is important that the
nature of the underlying claim and the law governing it be understood. But the
dispositive question of law is what the contractual terms mean, which here the parties
do not dispute is governed by Delaware, not Louisiana, law.42 In other words, the
41
See, e.g., ConAgra Foods, Inc. v. Lexington Ins. Co., 21 A.3d 62, 68 (Del. 2011) (“This Court has
adopted traditional principles of contract interpretation.”).
42
The insurance contract at issue did not include a choice of law clause. Although there were several
plausible contenders for which state’s law should govern the interpretation of the contract, the
Superior Court found that there was no conflict between any of the possible state laws and therefore
applied the law of the forum state, Delaware. CorVel did not challenge that determination on appeal.
25
issue is not what a state’s particular statute calls the remedy, or how that state’s courts
would interpret the statute; the question is whether the remedy afforded by the statute
in fact amounts to covered damages or excluded penalties as those terms are used in
the parties’ contract. In all controversies arising under the policy, regardless of the
location of the underlying claim, the contract definition governs. The Williams
decision ignored that reality and made no attempt to give any weight to the contract
or even consider the Superior Court’s careful ruling on that subject. In doing so, the
Louisiana Court failed to give comity to our state.43
The Majority Opinion, like the Williams court’s decision, does not point to any
errors in the Superior Court’s analysis of the contract at issue. That is because, as the
Superior Court found, the plain language in the contract is unambiguous. CorVel’s
policy with Homeland defines “loss” as:
any monetary amount which an Insured is legally obligated
to pay as a result of a Claim. Loss shall include . . .
punitive, exemplary or multiplied damages where insurable
by law; provided, that the law of the jurisdiction most
favorable to the insurability of punitive damages shall
control the insurability of such punitive damages . . . .
We note that it would aid in our resolution of coverage issues, which are frequently before this
Court, if insurance contracts more routinely included choice of law provisions so that the contracting
parties themselves could decide upfront whose law should govern.
43
See, e.g., Majority Opinion at 9 (quoting Columbia Cas. Co. v. Playtex FP, Inc., 584 A.2d 1214
(Del. 1991) (“Comity permits one state to give effect to the laws of a sister state, not out of
obligation, but out of respect and deference.”).
26
Loss shall not include: (i) fines, penalties or taxes;
provided that (A) punitive damages shall not be deemed to
constitute fines, penalties or taxes for any purpose herein,
and (B) Loss shall include fines and penalties imposed
under the Health Insurance Portability and Accountability
Act or in Claims for Antitrust Activity. . . . 44
The policy thus makes clear that penalties are not covered, unless they are
penalties related to “Antitrust Activity.”45 CorVel’s arguments about the proper way
to interpret insurance coverage or exclusions of coverage are therefore irrelevant; the
only relevant question is whether the underlying claims are for penalties.
As the Superior Court properly determined, when the language in a contract is
“clear and unambiguous,” we should give it “its ordinary and usual meaning.”46
Black’s Law Dictionary47 defines penalty as “a sum of money exacted as punishment
for either a wrong to the state or a civil wrong (as distinguished from compensation
for the injured party’s loss). Though [usually] for crimes, penalties are also
sometimes imposed for civil wrongs.”48 A civil penalty is defined as a “fine assessed
44
App. to CorVel Opening Br. at 486-87 (emphasis added).
45
If the underlying claims were for antitrust-related penalties, they could also be covered under the
unambiguous terms of the policy. But CorVel did not challenge the Superior Court’s finding that
the claims asserted in the underlying litigation did not constitute antitrust activity.
46
See O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 288 (Del. 2001).
47
As the Superior Court noted, dictionaries are an appropriate aid in discerning ordinary meaning.
See Superior Court Opinion at *13 (citing Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d
728, 738 (Del. 2006)) (“It is well-settled in Delaware that, in ascertaining the meaning of words not
defined in a contract, courts ‘look to dictionaries for assistance in determining the plain meaning of
terms which are not defined in a contract.’”).
48
Black’s Law Dictionary 562 (4th Pocket Ed. 2011).
27
for a violation of a statute or regulation.” A statutory penalty is a “penalty imposed
for a statutory violation; [especially], a penalty imposing automatic liability on a
wrongdoer for violation of a statute’s terms without reference to any actual damages
suffered.”49 By contrast, damages are defined as “money claimed by, or ordered to
be paid to, a person as compensation for loss or injury.”50 In the analogous contract
law context, this Court has defined “penalty” as “a sum . . . that serves as a
punishment for default, rather than a measure of compensation for its breach. In other
words, it is an agreement to pay a stipulated sum upon breach, irrespective of the
damage sustained.”51
Here, it is not disputed that the remedy scheme under the PPO Act bears no
relationship to any actual damages suffered by the medical provider plaintiffs.
Indeed, the Act itself makes no effort to tie the remedy to actual losses; the “damages
payable to the provider” are “double the fair market value of the medical services
provided,”52 not, for example, double the sum of the improper discount. The statute
unambiguously imposes “automatic liability on a wrongdoer for violation of a
statute’s terms without reference to any actual damages suffered,”53 or the dictionary
49
Id.
50
Id. at 195.
51
Delaware Bay Surgical Services, P.C. v. Swier, 900 A.2d 646, 650 (Del. 2006) (quoting S.H.
Deliveries v. TriState Courier & Carriage, 1997 WL 817883, at *2 (Del. May 21, 1997)).
52
La. R.S. 40:2203.1(G) (emphasis added).
53
Id.
28
definition of a statutory penalty.
In making its determination of coverage based on the contract at issue in this
case, the Superior Court was respectful of Louisiana authority, including the
Louisiana Supreme Court and the U.S. Court of Appeals for the Fifth Circuit,54 and
its understanding of the statute accords with how other courts in Louisiana have
viewed the remedies available.55 But contrary to the Majority Opinion, the Superior
Court did not rely on these cases to interpret the statute as a matter of common law;
rather, it cited Louisiana precedent as evidence to support its understanding of how
the statute operated and whether the statute imposed penalties within the meaning of
the term used in the parties’ contract. That is, what the Superior Court properly did
was to interpret an insurance contract’s language, using traditional tools of contract
interpretation. That was the judicial task the case assigned it. As the Superior Court
found by reference to established authority,56 the amount of damages set forth in the
54
See, e.g., Superior Court Opinion at *18 (citing previous Louisiana decisions referring to the
remedies under the statute as penalties).
55
See, e.g., Gunderson v. F.A. Richard & Assoc., 44 So.3d 779 (La. Ct. App. 2010); Gunderson v.
F.A. Richard & Assoc., 40 So.3d 418 (La. Ct. App. 2010) (characterizing the remedies under the
PPO Act as “penalties”); see also Cent. La. Ambulatory Surgical Ctr., Inv. v. Rapides Parish Sch.
Bd., 68 So.3d 1041 (La. Ct. App. 2010) (same); Touro Infirmary v. Am. Maritime Officer, 24 So.3d
948 (La. Ct. App. 2009) (same); see also Indian Harbor Ins. Co. v. Bestcomp, Inc., 2010 WL
5471005 (E.D. La. Nov. 12, 2010), aff’d, 452 F. App’x 560 (5th Cir. 2011) (“damages under section
40.2203.1(G) are excluded from the definition of damages under the policy . . . because the damages
more than compensate an injured party for losses incurred due to lack of notice.”).
56
See Superior Court Opinion at *14 (citing Black’s Law Dictionary 1247 (9th Ed. 2009), and
Landis v. Marc Realty, 919 N.E.2d 300, 307 (Ill. 2009)).
29
statute bears no relationship to the harm suffered by any provider and thus was not
of the kind considered “remedies” in the normal sense in which parties use term in
contracts.57 Thus, the Superior Court did not rely on the fact that the Act awards
remedies in a manner consistent with what other Louisiana courts have historically
termed to be penalties, including in an important Louisiana Supreme Court case cited
by the Williams court,58 but instead noted that reality to corroborate its own correct
reading of the Louisiana statute in relation to the parties’ contract.
Had the Louisiana trial court itself showed comity by staying its hand after the
Delaware Superior Court made the first ruling on the coverage issue and letting this
case run its course to finality, the conflict the Majority Opinion is trying to avoid
would not have arisen in the first instance. Because the jurisdiction of our Superior
Court was properly invoked, and the Superior Court issued its ruling first, the
Provider Plaintiff Class’ decision to pursue a new ruling on that same issue in another
forum and the decision of the Louisiana courts to issue that ruling has caused the
current logjam and any awkward comity issue that has arisen as a result. The party
57
Homeland Ins. Co. and Executive Risk Specialty Ins. Co. v. CorVel Corp., C.A. No. 11C-01-089
(June 13, 2013), at 33.
58
See Williams v. SIF Consultants of Louisiana, Inc., 2013 WL 7330225 (La. Dist. Ct. July 29, 2013)
(citing International Harvester Credit Corporation v. Seale, 518 So.2d 1039, 1042 (La. 1988)
(describing legislative intent to award penalty or punitive damages “by either denoting the award a
‘penalty,’ modifying the term ‘damages’ with such language as ‘punitive’ or ‘exemplary,’ or
specifically awarding an amount in excess of the claimant’s losses”) (emphasis added)).
30
that fairly prevailed on its motion for summary judgment has now lost all benefit from
its trial court victory, and will receive no recompense from the defendant for its costs
in obtaining that victory or for litigating this appeal. Those costs have been sunk for
no purpose.
Moreover, by reversing on the grounds of comity to the Louisiana court’s
decision as to Executive Risk, we are subjecting Homeland to the additional costs of
litigating the issues anew in Louisiana. When Executive Risk lost at the trial court
and at the first appellate level in Louisiana, it settled with the Provider Plaintiff Class
and left the decision in Williams unappealable.59 But the ruling that the Provider
Plaintiff Class obtained in that action should not run against Homeland, because the
Class did not seek summary judgment against—and therefore did not obtain a
judgment against—Homeland.60
Attempting to justify the Louisiana trial court’s decision to render a ruling on
the coverage issues more than six weeks after the Superior Court, the Majority
Opinion asserts that litigation against CorVel had been in progress in Louisiana many
years before the Delaware suit was filed against it. The fact of the matter, however,
59
See Joint Motion and Order of Dismissal, Williams v. SIF Consultants of Louisiana, Inc., No. 09-
C-5244-C, 27th Jud. District Court, Parish of St. Landry, La. (July 22, 2014).
60
See Charles Alan Wright, et al., 18 Fed. Prac. & Proc. Juris. § 4402 (2d ed.) (a non-party who was
not fairly represented in a proceeding cannot justly be bound by principles of claim or issue
preclusion).
31
is that Homeland was not named as a party in the Williams litigation in Louisiana
until March 24, 2011—more than two months after it filed suit in the Superior Court
on January 10, 2011. The principals may have been embroiled in litigation in
Louisiana many years earlier, but the record plainly shows that the coverage issues
under Homeland’s policy were first put in issue in Delaware.
Although we respect and share the desire expressed in the Majority Opinion to
avoid inconsistent rulings, we cannot embrace its solution. In our view, this is a
situation in which our Superior Court did nothing wrong, but another state’s courts’
failure to show comity to our courts has unnecessarily caused the potential for
inconsistent rulings and inefficiency. That might be a rational reason to stand down,
as the Majority Opinion has concluded, but it is demonstrably unfair to Homeland.
At a minimum, Homeland, as the party who has been victimized by its adversary’s
gamesmanship, should be reimbursed for its attorneys’ fees and costs in obtaining a
fair victory in our Superior Court and then having its victory taken away, not by a
traditional reversal on the merits on appeal, but because this litigation had been
rendered useless by collateral litigation to which this Court has now decided to defer.
That compensation should include Homeland’s fees and costs spent arguing this
appeal. We also hope for the sake of Homeland that our judicial colleagues in
Louisiana will look favorably upon Homeland’s right to have the important coverage
32
issues it raised decided on the merits based on what its contract states.
For all these reasons, we respectfully dissent.
33
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"pile_set_name": "FreeLaw"
} |
675 N.E.2d 1067 (1996)
Melvin J. MORGAN Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 27S02-9505-CR-595.
Supreme Court of Indiana.
December 31, 1996.
*1070 Brent Westerfeld, Indianapolis, for Appellant.
Pamela Carter, Attorney General, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, for Appellee.
ON PETITION TO TRANSFER
SELBY, Justice.
Melvin J. Morgan ("defendant") was convicted of Conspiracy to Deal in Cocaine, a Class A felony, Dealing in Cocaine, a Class B felony, and Possession of Cocaine with Intent to Deliver, a Class A felony. Defendant was sentenced to thirty years for conspiracy, ten years for dealing, and thirty years for possession (with fifteen years suspended). The dealing and possession counts were to be served concurrently, but consecutively to the conspiracy count. Defendant appeals the convictions and the sentence. We affirm in part and reverse in part.
FACTS
In the early morning of Sunday, November 15, 1992, Morgan sold one rock of crack cocaine to an undercover police officer for $30. During the course of the sale, defendant displayed a number of cocaine rocks and allowed the undercover police officer to select one. When the assisting officers rushed into the room to arrest him, Morgan dropped the $30 and the remaining eighteen individually wrapped cocaine rocks. Police arrested Morgan and seized the cocaine.
Following arrest, Morgan was advised of his rights. Later, after signing a waiver of rights form, Morgan admitted that he was working for a person known as Gemier Wilson. Morgan told police that on the preceding Friday, he and Wilson had traveled in a rental car from Detroit, Michigan to Marion, Indiana with $4000 worth of crack cocaine, for the purpose of selling cocaine. Morgan revealed that Wilson was staying at a nearby motel, and that Wilson had stopped by earlier that day to pick up the proceeds of defendant's sales. According to Morgan, Wilson was carrying about $1700 to $1800 in cash. Finally, Morgan admitted having made seventy to eighty cocaine sales since his arrival in Marion on the previous Friday.
Morgan's statement was used to secure a search warrant for Wilson's motel room. During the search, the police found a car key which was hidden in the closet. The key opened a rented Dodge Spirit, the type of car described by Morgan. A search of the car revealed $1610 in cash in the glove compartment and a paper bag containing at least ninety-four pre-packaged crack cocaine rocks.
At trial, the State's forensic chemist testified that the eighteen cocaine rocks seized at the time of Morgan's arrest weighed 3.80 grams, the single rock sold to the undercover police officer weighed 0.2 grams, and the ninety-four rocks found in the rental car weighed 20.36 grams.
At the conclusion of a jury trial, Morgan was convicted of conspiracy to deal cocaine, dealing in cocaine, and possession of cocaine with intent to deliver. The Court of Appeals affirmed the defendant's conviction for conspiracy but reversed the defendant's conviction on Count II, dealing in cocaine, holding that the conviction violated double jeopardy and on Count III, possession of cocaine with intent to deliver, based on an erroneous instruction. Additionally, the Court of Appeals held that the trial court erred by failing to determine the voluntariness of defendant's statement to police. Thus, the Court of Appeals remanded for a determination of voluntariness of the statement. Morgan v. State, 648 N.E.2d 1164 (Ind.Ct.App.1995).
The State sought transfer, arguing that the jury instruction did not constitute fundamental error. The State also argued that double jeopardy did not bar conviction on the dealing count. We grant transfer and affirm in part and reverse in part.
*1071 DISCUSSION
I. Jury Instruction
Morgan contends that the trial court erred when it instructed the jury that:
Possession of a quantity of a controlled substance, such as crack cocaine, in excess of what could be personally consumed or utilized, is circumstantial evidence of intent to deliver.
(R. at 89.) Morgan cites Chandler v. State, 581 N.E.2d 1233 (Ind.1991) for this proposition. In Chandler, we held that the following instruction constituted reversible error: "Possession of a large amount of narcotics is circumstantial evidence of intent to deliver." Id. at 1236. In that case, we found that such an instruction, although an accurate quotation from Montego v. State, 517 N.E.2d 74 (Ind.1987), is inappropriate as a jury instruction. This is because "the categorical form of the instruction does not invite the jury to consider the evidence of the possession by appellant of a large quantity of contraband as proof of intent to deliver, but commands the jury to do so and binds the conscience of the jury to do so." Chandler, 581 N.E.2d at 1236.
This case is distinguishable from Chandler. In Chandler, the trial judge gave the instruction over an objection. Morgan did not object at trial. Thus, the State urges, defendant has waived this issue. See, e.g., Townsend v. State, 632 N.E.2d 727 (Ind. 1994). Failure to object at trial constitutes waiver of the alleged error. However, defendant argues that the giving of this instruction constitutes fundamental error. Defendant cites David v. State, 646 N.E.2d 83 (Ind.Ct. App.1995) to demonstrate that a Chandler instruction constitutes fundamental error. Thus, defendant argues that he may appeal even without a contemporaneous objection.
Since defendant initiated this appeal, we granted transfer in David. In our recent opinion, David v. State, 669 N.E.2d 390 (Ind. 1996), we held that although giving an instruction which contained similar language may have been error, in light of additional information within the challenged instruction and within the instructions as a whole, it did not give rise to fundamental error. Thus, in David, we affirmed the conviction even though the jury was given an instruction which contained language similar to that in Chandler.
This case is analogous to David. In both cases, the defendant failed to raise a contemporaneous objection. Also in both cases, the instruction which contained the Chandler like instruction was modified by other language which lessened the effect that such an instruction might have had on the jury. In David, the instruction read:
Possession of a large amount of a controlled substance is circumstantial evidence of the defendant's intent to deliver. The greater the amount in possession, the stronger the inference he intends it for delivery and not for personal consumption.
Id. at 391. We held that the second sentence "removes any categorical finding of intent which may have been posited by the first sentence. Rather, it allows the jury to determine if the defendant had possession of enough heroin in order to infer intent to deliver." Id. at 393.
Likewise in this case, the phrase "in excess of what could be personally consumed or utilized" removes the categorical finding of intent. It, too, allows the jury to determine if the defendant had possession of enough cocaine in order to infer intent to deliver. Thus, as in David, we find no fundamental error with the challenged jury instruction. Moreover, the instruction did not constitute the linchpin on the question of the defendant's intent in this case. Morgan offered to sell cocaine to undercover officer Mike Andry, he displayed a bag containing a number of packaged rocks of cocaine, and he allowed Andry to select one. Indeed, the defendant admitted that he had traveled from Michigan to Marion, Indiana with a large quantity of cocaine for the purpose of selling it.
II. Admissibility of Confession and Statements
Morgan argues that the inculpating statement he made to the police was not voluntarily given. Although the trial court held a hearing on this issue outside the presence of the jury, defendant argues that the trial court did not make the required determination of voluntariness, but instead erroneously *1072 submitted the issue to the jury. The Court of Appeals agreed, finding that the trial court failed to rule on the voluntariness of defendant's confession and statements to police and erred by submitting the issue to the jury without first making this determination. On transfer, the State did not challenge this holding. We agree with Judge Kirsch on this issue, and we incorporate by reference this section of the Court of Appeals' opinion. IND.APPELLATE RULE 11(B)(3).[1] Thus, we remand to the trial court for a determination of voluntariness.
III. Double Jeopardy
Morgan raises two double jeopardy issues. First, he claims that his convictions for both the conspiracy and dealing charges violate principles of double jeopardy. Although it is possible for a defendant to be convicted of both crimes without a double jeopardy violation, see Derado v. State, 622 N.E.2d 181 (Ind.1993), Morgan argues that due to the way that he was charged and the jury was instructed, it was possible for the jury to have convicted him of conspiracy based on the overt act that he "did sell crack cocaine."[2] Thus, the overt act in furtherance of the conspiracy could have been the same act as required to convict him for dealing in cocaine. The Court of Appeals agreed that this was a double jeopardy violation, and vacated the dealing conviction. Morgan v. State, 648 N.E.2d 1164, 1172 (Ind.App. 1995). We also agree and incorporate by reference the Court of Appeals' double jeopardy analysis for the dealing and conspiracy convictions. APP. R. 11(B)(3). Thus, the dealing conviction is vacated.
Next, Morgan contends that double jeopardy was violated by his convictions for both dealing and possession, as possession with intent to deliver is a lesser included offense of dealing. Because we have already vacated the dealing conviction, we need not address this issue.
IV. Sentencing
Finally, Morgan argues that the sentence he received is manifestly unreasonable. The trial court ordered sentences of ten and thirty years respectively for the dealing and possession counts, to be served concurrently with each other, and to be served consecutively to a thirty year sentence for the conspiracy count. The judge also suspended fifteen years of the possession count. At the time of sentencing, the sentence imposed on each offense was the presumptive sentence for each count.[3] Although we have vacated the dealing count, the possession and conspiracy counts remain. We address the sentencing issue as it applies to these remaining convictions.
Sentencing decisions rest within the sound discretion of the trial court, and we will review sentencing only for abuse of discretion. Sims v. State, 585 N.E.2d 271 (Ind. 1992). A sentence which is authorized by statute will not be revised on appeal unless the sentence is manifestly unreasonable. A sentence is manifestly unreasonable only if no reasonable person could find the sentence appropriate to the nature of the offense and *1073 the character of the offender. Fisher v. State, 671 N.E.2d 119, 121 (Ind.1996).
Morgan claims that the trial court erroneously failed to articulate the reasons for selecting the sentence imposed in this case, as required by Indiana Code § 35-38-1-3. He points out that the record should contain the following three elements: 1) identification of all significant mitigating and aggravating circumstances found, 2) specific facts and reasons which lead the court to find the existence of each such circumstance, and 3) articulation demonstrating that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence. Dumbsky v. State, 508 N.E.2d 1274, 1278 (Ind.1987). He argues that the trial court failed to comply with these requirements.
When the sentencing court enhances a presumptive sentence or imposes consecutive sentences where such is not mandatory under I.C. § 35-50-1-2, the sentencing court must reveal its rationale for doing so. Saunders v. State, 584 N.E.2d 1087 (Ind. 1992). However, when a trial court imposes the presumptive sentence, it has no obligation to explain its reasons for doing so. Winfrey v. State, 547 N.E.2d 272 (Ind.1989). Thus, in order to sentence Morgan to thirty years for possession and thirty years for conspiracy, the trial judge need not have specified any aggravating or mitigating circumstances.
However, in order to impose consecutive sentences, the trial judge must find at least one aggravator. See Reaves v. State, 586 N.E.2d 847 (Ind.1992); Davis v. State, 642 N.E.2d 987 (Ind.Ct.App.1994). In imposing the sentences, the trial judge offered the following aggravating circumstances:
[1] such crimes were separate in time ... [2] that the defendant had sold more than seventy (70) $30.00 rocks of cocaine and [3] the imposition of any lesser sentence would depreciate the seriousness of the offenses committed by the defendant.
(R. at 125.) Defendant challenges the second aggravator because elements of the crime cannot be used to enhance a sentence, Ector v. State, 639 N.E.2d 1014 (Ind.1994), and Morgan claims that all of the sales were alleged as overt acts for the conspiracy charge. Although elements of a crime cannot be used to enhance a sentence, particularized circumstances of a criminal act may constitute separate aggravating circumstances. Id. We find that multiple crimes which were separate in time, including the more than seventy sales of crack cocaine admitted to by defendant, are such circumstances. Thus, we find that there were sufficient aggravating factors to support the consecutive sentences.[4]
Next, defendant argues that the trial court did not properly consider mitigating circumstances. Defendant argues that although the trial court did not articulate any mitigating circumstances, the court must have found them, as the court suspended part of defendant's sentence. He also argues that since the trial court did not articulate its findings, the trial court also did not properly weigh the mitigators against the aggravators.
We agree. Although a trial court is not required to make a finding of mitigating factors, nor explain why it has chosen not to do so, Fugate v. State, 608 N.E.2d 1370, 1374 (Ind.1993), if the court does find mitigators, it must state the reasons for selecting the sentence that it imposes. I.C. § 35-38-1-3. When a trial court decides to adjust a defendant's sentence by suspending a portion of the sentence, the record should disclose what factors were considered by the judge to be mitigating or aggravating circumstances. See Harding v. State, 457 N.E.2d 1098, 1104 (Ind.1984), cert. denied, 475 U.S. 1024, 106 S.Ct. 1218, 89 L.Ed.2d 329 (1986). In the present case, the court sentenced defendant to two presumptive sentences, then made them concurrent, and then suspended a portion of one of the sentences. At the sentencing hearing, the court spoke of circumstances which may be construed as mitigating circumstances (for *1074 example, his youth, his son, and his initial helpfulness to the police (R. at 636)); however, the court did not specifically identify these as mitigating circumstances nor show any specific indications of a balancing process. Also, the court orally thought out his sentencing decision. In the sentencing statement, the court listed the aggravating circumstances and enunciated the sentence, with no mention of mitigating circumstances or the balancing process. While it appears that the court did a thoughtful job of arriving at a sentencing decision, the law requires more. As noted above, the law requires first that the court identify all significant aggravating and mitigating circumstances, second that the court specifically explain why it found each circumstance, and third that the court balance the factors to arrive at a sentencing decision. These requirements serve the dual purpose of guarding against arbitrary sentences and providing an adequate basis for appellate review. Dumbsky, 508 N.E.2d at 1278. Because the record does not provide us with a basis from which we may review the identification and balancing of aggravators and mitigators, we must remand to the trial court for a more adequate explanation of its sentencing decision.
In an issue unaddressed by either party, we do find that the trial court erred in the manner in which it suspended a portion of defendant's sentence. This Court will set aside a sentence suspension only upon a showing that the trial court abused its discretion. See Reinbold v. State, 555 N.E.2d 463, 471 (Ind.1990), overruled on other grounds, Wright v. State, 658 N.E.2d 563 (Ind.1995). A trial court may not suspend a defendant's sentence below what the statute allows. Jackson v. State, 540 N.E.2d 1232, 1236 (Ind.1989). In the present case, defendant was convicted of a Class A felony for Possession of Cocaine with Intent to Deliver, I.C. § 35-48-4-1, and the trial court suspended fifteen (15) of the thirty (30) years of defendant's sentence. Under Indiana Code § 35-50-2-2, a court wishing to suspend part of a defendant's sentence for the Class A felony of Possession of Cocaine with Intent to Deliver may "suspend only that part of the sentence that is in excess of the minimum sentence." I.C. § 35-50-2-2(b)(4). The minimum sentence for a Class A felony is twenty (20) years. I.C. § 35-50-2-1. Thus, the trial court could only have suspended ten (10) years of defendant's thirty (30) year sentence. While the court could have suspended ten years under the Possession charge and five years under the Conspiracy charge, it could not suspend fifteen years under the Possession charge.
V. Disposition
As stated in section II above, the trial court erred in submitting the voluntariness of Morgan's confession to the jury, as it is the trial court's role to decide the question of voluntariness. As noted in the Court of Appeals' decision, when the trial court fails to conduct a voluntariness hearing, the defendant is not necessarily entitled to a new trial. Instead, the case should be remanded to the trial court for an evidentiary hearing on the issue of voluntariness. Craig v. State, 267 Ind. 359, 370 N.E.2d 880, 883 (Ind.1977). If the trial court finds on remand that the statement was made voluntarily, then the failure to conduct an earlier hearing is harmless error. However, if the trial court finds that the statement was not given voluntarily, then the conviction must be reversed because a conviction based on an involuntary confession cannot stand. Id. Thus, we must remand this case to the trial court for a determination of whether Morgan's statements were given voluntarily.
If the trial court determines that Morgan's statements were voluntarily made, then we dispose of Morgan's convictions and his sentence as follows:
1. Morgan's convictions for conspiracy and possession are affirmed.
2. Morgan's conviction for dealing is vacated on double jeopardy grounds. Retrial may not be had on this charge.
3. Morgan's sentence is vacated. As stated in section IV, the trial court failed to adequately explain its sentencing decision. The trial court must thus, on remand, provide a more detailed sentencing order. See Sweet v. State, 498 N.E.2d 924, 930 (Ind. 1986). Also, the court incorrectly suspended *1075 a portion of defendant's sentence. The trial court must thus, on remand, provide a sentencing order consistent with this opinion.
CONCLUSION
The Court of Appeals decision is affirmed in part and vacated in part. The case is remanded to the trial court for a determination on the voluntariness of the statements, and with further disposition as set forth in this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, JJ., concur.
NOTES
[1] We note, however, a difference over which convictions to affirm if the trial court should determine that the statement was voluntarily given. Thus, should the trial court find that the statement was voluntarily made, that determination will affect those counts which we otherwise affirm.
[2] Count I of the charging information, Conspiracy to Deal Crack Cocaine More than Three (3) Grams, a Class A Felony, alleged that, between the dates of November 1, 1992 and November 15, 1992, Morgan agreed with Gemier Wilson and others to deal in crack cocaine, and that in furtherance of such agreement, Morgan committed one or more of the following overt acts:
1. Did travel from Detroit, Michigan to Marion, Grant County, Indiana.
2. To transport to Grant County a quantity of crack cocaine in an amount greater than three (3) grams.
3. Did obtain rental cars to travel to Grant County and to facilitate the distribution of crack cocaine in and around Grant County, Indiana.
4. Did acquire small plastic bags approximately ½" x ½" for the purpose of packaging crack cocaine rocks.
5. Did establish locations in Grant County known as "spots" and/or "crack houses" to sell crack cocaine.
6. Did sell crack cocaine.
Count II, Dealing in Crack Cocaine Less than Three (3) Grams, a Class B Felony, alleged that on or about November 15, 1992, Morgan did knowingly deliver crack cocaine. (R. at 10-11.)
[3] I.C. § 35-50-2-4 (Class A felony); I.C. § 35-50-2-5 (Class B felony).
[4] We note that it was appropriate for the trial judge to consider the aggravator "the imposition of any lesser sentence would depreciate the seriousness of the offenses" in deciding to impose the presumptive, rather than a reduced sentence. Walton v. State, 650 N.E.2d 1134 (Ind.1995). As it is not necessary for this opinion, we decline to decide whether it is appropriate to use this aggravator to enhance or impose consecutive sentences. See Ector, 639 N.E.2d at 1016.
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No. 3--01--0892
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2002
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 99--CF--1048
)
CHRISTOPHER J. McAFEE, ) Honorable
) Joe R. Vespa,
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE HOLDRIDGE delivered the opinion of the court:
_________________________________________________________________
A jury found the defendant, Christopher J. McAfee, guilty of armed robbery (720 ILCS 5/18--1(a), 18--2(a) (West 1998)). He was sentenced to 21 years' imprisonment. On appeal, the defendant argues that (1) the State failed to prove him guilty beyond a reasonable doubt, and (2) the judge erred during sentencing by considering in aggravation that one of the defendant's witnesses may have perjured himself. We affirm the defendant's conviction, but vacate his sentence and remand for resentencing.
BACKGROUND
Amanda Turner testified that at about 8 p.m. on September 14, 1999, she met Jacob Brown in a parking lot behind the One World Coffee Shop in Peoria. Turner and Brown stood and talked near Turner's car. Turner was standing next to her car with the driver's side door open. She saw two men approach her and Brown. One of the men, whom Turner later identified as the defendant, positioned himself behind Brown and put a gun to Brown's neck. She could see the defendant's face as he peered over Brown's shoulder to speak to Turner and the other assailant. She testified that she was about four feet from Brown when the defendant put the gun on Brown's neck.
The other assailant positioned himself next to Turner and told her to get her purse. She turned and retrieved her purse from the front passenger seat of the car. The other assailant took the purse from her. The defendant then told the other assailant to let Turner get her identification from the purse. As the other assailant held the purse, Turner took her wallet out, got her driver's license and insurance card, and put the wallet back into the purse.
The other assailant told Turner to get her sweater out of the car, which she did. The assailant shook the sweater and then threw it back into the car. The defendant told Brown to give the defendant Brown's money. Brown reached in his pocket and gave the defendant the money he had in a money clip.
The defendant and the other assailant stepped away from Turner and Brown. Brown testified that he did not see the man who had the gun on his neck because the man was positioned behind him during the entire incident. The two men then left the parking lot on foot.
Turner and Brown got into Turner's car and locked the doors while they recovered from their ordeal. One of their friends walked by the car. Turner and Brown told the friend that they had just been robbed. The friend told Turner and Brown that she had seen police officers at a nearby Jimmy John's restaurant. The friend ran to the restaurant, where she told the officers about the robbery. The officers accompanied the friend to the parking lot.
Officer Kathryn Handing testified that she interviewed Turner and Brown in the parking lot following the incident. At first, Turner was "extremely upset" and "barely able to tell [Handing] what happened." After Turner calmed down, she told the officer that the man with the gun wore a blue hooded sweatshirt, but that the man did not have the hood on his head. Turner described the defendant as a black male, about six feet, one inch tall, and weighing about 160 pounds.
Turner testified that her purse had contained her checkbook. On the morning following the robbery, she went to the bank as soon as it opened, closed her checking account, and opened a different account.
Michael Woodcock was the branch manager of the bank where Turner had her checking account. He testified that on September 15, 1999, he was called to the drive-through teller's window. The teller advised Woodcock that Aaron Waithe had presented a check drawn on Turner's account payable to Waithe. Waithe and the defendant had come to the drive-through window in a taxi. Waithe came inside the bank while the defendant waited in the taxi. Woodcock called the police, who arrested Waithe and the defendant.
On September 23, 1999, Turner went to the police station to view a photographic line-up. She identified the photo of the defendant as the man with the gun during the robbery. On November 4, 1999, she identified the defendant again during an in-person line-up. The officer who conducted the in-person line-up stated that the defendant described himself as being five feet, nine inches tall, and weighing 148 pounds.
Aaron Waithe testified for the defendant. Waithe stated that at about 6 or 6:30 a.m. on September 15, 1999, he saw a purse with its contents scattered near a dumpster. The contents of the purse included Turner's checkbook. He picked up the checkbook and proceeded to a friend's house on Ellis Street. On cross-examination, Waithe said that he had known this friend for about a year and a half. Waithe knew the friend's first name as Steve, but could not remember Steve's last name, the address of Steve's house, or where Steve's house was located on Ellis Street.
Waithe said that he asked Steve to forge a check for $300 payable to Waithe from Turner's checkbook. In exchange, Waithe would give Steve $50 after cashing the check. Waithe stated that he then walked to the defendant's house, where he slept during part of the day. When Waithe awoke in the afternoon, he asked the defendant to go with him to the bank. Waithe testified that the defendant did not know about the check until they arrived at the bank.
The defendant testified to a version of events substantially similar to Waithe's version. Additionally, he stated that he was at home during the evening that the robbery occurred.
The jury found the defendant guilty of armed robbery. The cause proceeded to sentencing. Prior to imposing sentence the judge stated the following:
"That Waithe character that you caused to be put on the stand was a patent liar.
* * *
I'm also taking into consideration that you're offering this Waithe character to me or to the trier of fact, the jurors, to consider."
The judge then stated that no statutory mitigating factors applied. He said that the aggravating factors were the threat of serious harm caused by the defendant's conduct, the defendant's significant history of prior criminal activity, and the necessity to deter others from committing the same crime. The judge sentenced the defendant to 21 years' imprisonment.
The defendant filed a
pro
se
motion to reduce sentence, which was later supplemented by appointed counsel. In the supplemented motion, the defendant argued that it was improper for the trial court to consider "Waithe's alleged perjured testimony in aggravation." At the hearing, the judge stated, "This sentence, I felt, was appropriate and it still is appropriate in spite of the fact, or even considering the factors [the defendant] raises." The court denied the defendant's motion and the defendant appealed.
ANALYSIS
I. Reasonable Doubt
The defendant argues that the State failed to prove him guilty of armed robbery beyond a reasonable doubt. Specifically, the defendant submits that Turner's identification of the defendant was unreliable because her description of the height and weight of the defendant did not match his stated height and weight.
A person commits armed robbery when he takes property from the person of another by the use of force and is armed with a firearm. 720 ILCS 5/18--1(a), 18--2(a) (West 1998). When considering the sufficiency of the evidence to support a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, a reasonable fact finder could have found proof of the elements of the crime beyond a reasonable doubt.
People v. Chavez
, 327 Ill. App. 3d 18, 762 N.E.2d 553
(2001).
In evaluating witness identification testimony, the trier of fact should consider (1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the victim at the time of identification; and (5) the length of time between the crime and the identification.
People v. Gonzalez
, 326 Ill. App. 3d 629, 761 N.E.2d 198
(2001). A single witness' identification of the defendant is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. Discrepancies concerning physical features are not fatal but affect the weight to be given the identification testimony.
People v. Pearson
, 324 Ill. App. 3d 622, 756 N.E.2d 438
(2001).
In the instant case, the conviction was supported by the following facts: (1) Turner had the opportunity to view the defendant as he walked toward her, as he looked over Brown's shoulder from a distance of about four feet, and as he walked away; (2) Turner paid close attention to the defendant after he placed a gun on Brown's neck; (3) she described the defendant reasonably accurately to the police; (4) she positively identified the defendant at both a photo line-up and an in-person line-up; and (5) the time between the robbery and Turner's line-up identifications was not unreasonable. The discrepancy between her estimate of the defendant's height and weight and his stated height and weight was not fatal. This testimony only went to the weight the jury reasonably could have given her testimony.
The jury rationally could have inferred that the defendant forcibly took property from Turner and Brown while armed with a firearm. Taking the evidence in the light most favorable to the prosecution, we hold that the State did not fail to prove that the defendant committed armed robbery beyond a reasonable doubt.
II. Sentencing
The defendant contends that the trial judge erred in determining his sentence by considering in aggravation that the defendant presented Waithe as a witness, who may have perjured himself.
We review a sentencing order for abuse of discretion.
People v. Smith
, 321 Ill. App. 3d 523, 747 N.E.2d 1081
(2001). Consideration of an improper factor in aggravation affects a defendant's fundamental right to liberty, and therefore, is an abuse of discretion. Although consideration of an improper aggravating factor in sentencing does not always require remandment, resentencing is required where the appellate court is unable to determine the weight given to the improper factor.
People v. Joe
, 207 Ill. App. 3d 1079, 566 N.E.2d 801
(1991).
It is improper for a trial judge to consider as an aggravating factor that he believed that a witness testified falsely on the defendant's behalf. A defendant has a constitutional right to present witnesses in his defense. It is improper for a sentencing judge to impose a harsher sentence because the defendant exercises that right.
People v. McPhee
, 256 Ill. App. 3d 102, 628 N.E.2d 523
(1993).
In the present case, the trial judge stated during the sentencing hearing that he believed Waithe had testified falsely on the defendant's behalf. The judge said that he was considering that the defendant had presented Waithe as a witness to the jury. These were improper factors for the judge to consider in imposing the defendant's sentence. Therefore, the trial judge abused his discretion in sentencing the defendant.
At the hearing on the defendant's motion to reconsider sentence, the judge stated that the defendant's sentence was appropriate even considering the factors the defendant raised in his postsentencing motion. However, we cannot determine the weight the judge gave to the improper factor that Waithe may have offered perjured testimony as compared with other aggravating factors. Therefore, we must vacate the defendant's sentence and remand for resentencing. Further,
in order to remove any suggestion of unfairness, this case should be assigned to a
different judge on remand.
CONCLUSION
For the foregoing reasons, we affirm the defendant's conviction for armed robbery, but vacate his sentence and remand the matter to the Peoria County circuit court for resentencing before a different judge.
Affirmed in part and vacated in part; cause remanded.
SLATER and MCDADE, JJ., concurring.
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL CANTIN, DOCKET NUMBER
Appellant, SF-315H-16-0447-I-1
v.
DEPARTMENT OF THE NAVY, DATE: January 6, 2017
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Stephen J. Matcha, Esquire, San Diego, California, for the appellant.
Deana R. Jaeger, Esquire, and Traci Williams Jones, Esquire,
San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his probationary termination for pre-appointment reasons. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
*
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2 The agency terminated the appellant from his competitive -service position
as a WG-9 Pest Controller during his probationary period because he lacked the
ability, license, and experience to safely carry out the full range of duties he was
hired to accomplish. Initial Appeal File (IAF), Tab 5 at 10. The appellant
appealed his probationary termination to the Board. IAF, Tab 1. After notifying
the appellant of his burden of proof and holding the requested hearing, the
administrative judge affirmed the agency’s action, finding that, even though the
agency terminated the appellant for pre-appointment reasons and failed to provide
him the procedural protections set forth in 5 C.F.R. § 315.805, such error was not
harmful. IAF, Tab 20, Initial Decision (ID). The appellant has filed a petition
for review challenging the administrative judge’s determination that the agency’s
error was not harmful, and the agency has responded in opposition. Petition for
Review (PFR) File, Tabs 1, 3.
¶3 When an agency intends to terminate a probationary employee for reasons
based in whole or in part on conditions arising before his appointment, it must
provide him advanced written notice of the reasons for the proposed action, a
reasonable opportunity to submit a written response, and written notice of the
3
agency’s decision. 5 C.F.R. § 315.805. “A probationer whose termination is
subject to § 315.805 may appeal on the ground that his termination was not
effected in accordance with the procedural requireme nts of that section.”
5 C.F.R. § 315.806(c). In such appeals, the merits of the agency’s termination
decision are not before the Board. LeMaster v. Department of Veterans Affairs,
123 M.S.P.R. 453, ¶ 7 (2016). Rather, the only issue is whether the agency’s
failure to follow the procedures prescribed in section 315.805 was harmful error.
Id. If there was harmful error, then the agency’s action must be set aside. Id.
Harmful error cannot be presumed; an agency error is harmful only when the
record shows that it was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Id., ¶ 14; 5 C.F.R. § 1201.4(r).
¶4 Here, the administrative judge relied, in part, on the deciding official’s
hearing testimony that the appellant was not qualified to perform the duties of his
position and that he would have terminated the appellant on this basis even if he
had received a response to the proposed action containing all of the appellant’s
arguments raised on appeal. ID at 7. On review, the appellant argues that the
agency harmed him through its negligent hiring practice and that, if he had been
given an opportunity to respond to the termination action, he would have
proposed that the agency downgrade his position until he received the proper
training and certification. PFR File, Tab 1 at 4-5. These arguments, however,
even if true, provide no basis to disturb the administrative judge’s well -reasoned
conclusion that the appellant failed to show harmful error in connection with the
agency’s failure to provide him the procedural protections of section 315.805. ID
at 5-8.
¶5 The appellant also seeks to submit new evidence on review; namely, a copy
of the Department of Defense Manual pertaining to the Pest Management
Training and Certification Program. PFR File, Tab 1 at 7-42. We will not
consider the appellant’s new evidence submitted for the first time on review,
4
however, because he has failed to show that it is new or material. See Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (stating that, under 5 C.F.R.
§ 1201.115, the Board will not consider evidence submitted for the first time with
the petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence). In any event, we fail to discern
how the document shows harmful error in the agency’s action or otherwise affects
the outcome of this appeal.
¶6 After fully considering the filings in this appeal, we conclude that there is
no new, previously unavailable evidence and that the administrative judge made
no error in law or regulation that affects the outcome. 5 C.F.R. § 1201.115(d).
Therefore, we DENY the petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
5
Dec. 27, 2012). You may read this law and other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information is available at the court’s website, www.cafc.uscourts.gov. Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given c ase.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREGORY BARTKO,
Plaintiff,
v. Civil Action No. 17-781 (JEB)
UNITED STATES DEPARTMENT OF
JUSTICE, EXECUTIVE OFFICE OF
UNITED STATES ATTORNEYS, et al.,
Defendants.
MEMORANDUM OPINION
This case presents the latest in a long series of disputes between Plaintiff Gregory Bartko
and various branches of the federal government over the disclosure of records under the Freedom
of Information Act. For a number of years, Bartko has sought records from different agencies in
an effort to uncover information about alleged prosecutorial misconduct associated with his
conviction for criminal fraud in the Eastern District of North Carolina. He filed this particular
pro se suit in connection with several FOIA requests he made to Defendant Executive Office for
United States Attorneys. EOUSA now moves for summary judgment as to two of those requests
and dismissal as to another, contending that it properly withheld documents under several FOIA
exemptions and that Bartko’s claims are otherwise procedurally deficient. Finding that some but
not all of EOUSA’s withholdings were proper, and that one of Bartko’s claims is procedurally
barred but the other is not, the Court grants in part and denies in part EOUSA’s Motion.
1
I. Background
The Court has recounted the circumstances underlying Bartko’s convictions and demands
for records in several Opinions in his previous FOIA suit. See, e.g., Bartko v. U.S. Dep’t of
Justice, 62 F. Supp. 3d 134 (D.D.C. 2014). Rather than retread the same ground, the Court
confines its discussion of the factual and procedural background to the particulars of the three
FOIA requests at issue in Defendant’s Motion. (A fourth request is the subject of separate,
ongoing summary-judgment briefing.)
A. Request No. 2014-486
Bartko filed the first FOIA request at issue here, No. 2014-486, with EOUSA in 2013,
seeking records associated with his prosecution for criminal fraud in the Eastern District of North
Carolina. See ECF No. 12 (Answer), Exh. 1, Attachs. F & H. Concluding that the scope of the
request was so expansive that its search would take over 93 hours and stretch across 21 boxes of
records, EOUSA refused to process it without advanced payment of $2,618. Id., Attach. G.
Bartko initially sought judicial review of EOUSA’s response in a previous FOIA suit.
This Court dismissed the claim without prejudice because he had not exhausted his
administrative remedies. See Bartko v. U.S. Dep’t of Justice, 2014 WL 12787640, at *7 (D.D.C.
Sept. 9, 2014). The Court explained that Bartko “remains free to bring a new suit — or
conceivably seek to amend his current one — challenging those actions, provided he has fully
exhausted his administrative remedies before filing.” Id.
After the Court’s dismissal, Bartko tried to do just that. He filed an administrative appeal
with the Office of Information Policy, arguing that the fee demand was improper. See Answer,
Exh. 1, Attach. L. But OIP refused to hear the appeal on the ground that his request remained
the subject of litigation. Id., Attach. T.
2
Several years after this dismissal, Bartko filed this suit. He again seeks judicial review of
EOUSA’s refusal to process his request without advance payment of processing fees. See ECF
No. 1 (Compl.), ¶¶ 52–53. EOUSA asks for summary judgment as to this claim.
B. Request No. 2014-3847
Bartko originally submitted the second FOIA request, No. 2014-3847, to the Department
of Justice’s Office of Professional Responsibility. Id., ¶ 60. This request also sought records of
Bartko’s prosecution for criminal fraud — i.e., the same category of records subject to Request
No. 2014-486. Id. OPR released some records and referred others — either 610 pages, 619
pages, or 620 pages, depending on whom you ask — to EOUSA for further processing. Id.,
¶¶ 55–57; Answer, Exh. 1, Attach. P. EOUSA eventually released certain records, withheld and
redacted others, and declined to process 519 pages until Plaintiff paid a processing fee of $51.90.
Id.
Bartko initially sought judicial review of this claim in his previous FOIA suit. See
Bartko v. U.S. Dep’t of Justice, No. 13-1135, ECF No. 126 (Second Suppl. Compl.), ¶¶ 3–8.
This Court granted summary judgment to EOUSA there, see Bartko v. U.S. Dep’t of Justice, 102
F. Supp. 3d 342 (D.D.C. 2015), and Bartko appealed. The Court of Appeals recently reversed in
part — on the question of whether Bartko was entitled to a public-interest fee waiver — and
remanded the case to this Court. See Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 74–76 (D.C.
Cir. 2018).
While his appeal in the previous FOIA suit was pending, Bartko filed this action. He
again argues that EOUSA failed to properly respond to his request for the 620 or so pages of
records OPR had referred to Defendant. See Compl., ¶¶ 55–63. EOUSA asks the Court to
3
dismiss this claim because it violates the rule against “claim-splitting” — a sort of corollary to
res judicata.
C. Request No. 2015-759
Bartko’s third FOIA request in this case, No. 2015-759 — also originally submitted to
OPR — sought any records of misconduct committed by Assistant United States Attorney Clay
Wheeler, who prosecuted Plaintiff for criminal fraud in the Eastern District of North Carolina.
See Compl., ¶ 27. After processing and releasing certain records, OPR referred several hundred
additional pages — either 320 pages or 642 pages — to EOUSA. Id., ¶ 29. Invoking several
FOIA exemptions, EOUSA withheld the records in full. Id., ¶ 30. Plaintiff’s suit asks this Court
to order the agency to hand over the records. Id., ¶¶ 38–39. Defendant now also seeks summary
judgment as to this claim.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
4
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
The Court may grant summary judgment based solely on information provided in an agency’s
affidavits or declarations when they describe “the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” U.S. Dep’t
of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5
U.S.C. § 552(a)(4)(B)).
III. Analysis
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(quotation marks and citation omitted). In doing so, FOIA helps “to ensure an informed
citizenry, vital to the functioning of a democratic society, needed to check against corruption and
5
to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493
U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in accordance
with published rules . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See id. § 552(a)(4)(B); Reporters
Comm., 489 U.S. at 754–55. “At all times courts must bear in mind that FOIA mandates a
‘strong presumption in favor of disclosure.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d
26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).
Before the Court is Defendant’s Motion to Dismiss and for Partial Summary Judgment.
The Court addresses the requests separately and in the order in which the parties brief them.
A. Request No. 2015-759
EOUSA contends that summary judgment is appropriate as to Request No. 2015-759
because there is no genuine dispute of material fact over whether it properly withheld all
responsive records pursuant to FOIA Exemptions 5, 6, and 7(C). See ECF No. 20 (Def. MSJ) at
3–13. Bartko resists this position on two grounds. First, as a threshold matter, he asserts that the
Government possesses several hundred pages of responsive records that it has never processed or
disclosed. See ECF No. 25 (Pl. Opp.) at 2–4. Second, he argues that the invoked exemptions do
not apply to the records EOUSA has withheld. Id. at 4–24. On the first issue, the Court agrees
with the Government that it has processed the relevant pages of responsive documents. On the
second, with just one exception, the Court sides with Bartko that the agency is not entitled to
summary judgment at this stage based on its invocations of certain exemptions.
6
Responsive Records
The Court first takes up Bartko’s contention that EOUSA has failed to process all records
responsive to his FOIA request. In short, Plaintiff believes that there are 642 responsive pages,
but that EOUSA has only processed 320. See Pl. Opp. at 2–4. Bartko’s perturbation over
EOUSA’s position is understandable. In the letter it sent him in response to this request,
EOUSA averred that it had withheld 642 pages of records. Id., Attach 2. Then, in processing
Bartko’s appeal of its determination, the agency stated that it had reviewed only “320 pages of
responsive records.” Answer, Exh. 1, Attach. D. EOUSA has stuck to this latter position in the
current Motion.
The good news is that the agency has finally explained the discrepancy. In a declaration
attached to its Reply, it explains that OPR technically referred to it 642 pages of responsive
records, as Bartko suspected. See ECF No. 30 (Def. Reply), Exh. 1 (Second Declaration of
Tricia Francis). Those 642 pages, however, consisted of the following: 320 pages that OPR had
marked with preliminary FOIA determinations; a duplicate set of 320 pages that OPR had not
marked; and two cover pages. Id. Confirming the make-up of the referral, EOUSA attached to
the declaration a copy of the original referral letter OPR sent EOUSA stating that the referral
contained a duplicate set. Id., Attach. A.
This explanation resolves Bartko’s concerns. When the agency initially told Bartko that
it had withheld 642 pages, it was being truthful: that is the total number of pages of records it had
held back. When it told Bartko later as part of his administrative appeal that it had reviewed
only 320 pages, EOUSA likewise acted properly: the remaining 322 pages that it had ignored or
missed were merely duplicates or cover pages. With the discrepancies resolved, no evidence
7
remains that EOUSA possesses additional pages of responsive records that it has not yet
processed or disclosed.
Notwithstanding EOUSA’s most recent explanation, Bartko continues to believe that
there is a genuine dispute of material fact over whether EOUSA processed all records responsive
to this request. See ECF No. 33 (Pl. Surreply) at 3–6. He starts by questioning the veracity of
the most recent declaration, noting that it was not made under penalty of perjury. But Bartko
does not challenge the correctness of the document attached to the declaration — i.e., OPR’s
letter to EOUSA noting the presence of duplicate records as part of the referral. That document
eliminates any genuine dispute over the number of responsive records.
Bartko also asserts that EOUSA should have long ago explained the mix-up over the
number of pages of responsive documents. See Pl. Surreply at 4–5. The Court does not
disagree. But the tardiness with which EOUSA cleared up the matter does not necessarily
invalidate its eventual resolution. In the absence of evidence to the contrary, EOUSA’s
explanation of the differing page counts — supported not just by a potentially unsworn
declaration but by contemporaneous documentary evidence — eliminates the alleged dispute.
The Court also notes that, insofar as Bartko argues that EOUSA should have resolved the
discrepancy over the number of pages in his previous FOIA suit, such a claim was not before the
Court there. Bartko v. U.S. Dep’t of Justice, 128 F. Supp. 3d 62, 68 (D.D.C. 2015) (“The 320-
page batch [is] . . . not properly before the Court.”), aff’d in part and rev’d in part, 898 F.3d 51
(D.C. Cir. 2018).
To the extent Bartko argues more generally that EOUSA has responsive records it has
refused to produce, he offers “purely speculative claims about the existence . . . of other
8
documents” that cannot rebut the Government’s sound explanation of the number of responsive
records it has processed. See Ground Saucer, 692 F.2d at 771.
The number of documents at issue thus resolved, the Court may now turn to the
exemptions asserted.
2. Exemptions 5, 6, and 7(C)
The central question here is whether EOUSA properly withheld 320 pages of responsive
documents in reliance on FOIA Exemptions 5, 6, and 7(C). The answer, in short, is yes and no.
a. Exemption 5
Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). In other words, under Exemption 5, an agency may withhold from a FOIA
requester any “documents[] normally privileged in the civil discovery context.” NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 149 (1975); see also United States v. Weber Aircraft Corp., 465
U.S. 792, 799 (1984). This exemption thus encompasses three distinct categories of information:
deliberative-process privilege, attorney-work-product privilege, and attorney-client privilege.
See Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 216
(D.D.C. 2012). EOUSA relies on all three privileges to various extents; as none individually (or
together) supports all of its withholdings, the Court must consider each of them.
i. Attorney-Client Privilege
The attorney-client-privilege prong of Exemption 5 “protects confidential
communications from clients to their attorneys made for the purpose of securing legal advice or
services.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). EOUSA invoked this
privilege to withhold only one document — an email chain in which the U.S. Attorney’s Office
9
for the Eastern District of North Carolina asked for and received legal advice from the agency.
That document is labeled OPR-18 in the Vaughn Index. See Def. MSJ, Attach. 1-F (Vaughn
Index) at 6–7. Perhaps sensing that challenging this document would be a losing battle, Bartko
does not do so here. The Court therefore grants summary judgment to EOUSA as to its decision
to withhold OPR-18. One down, many more to go.
ii. Deliberative-Process Privilege
Next up is the deliberative-process privilege. That privilege shields internal agency
“advisory opinions, recommendations and deliberations” in order to “protect[] the decision
making processes of government agencies.” Sears, Roebuck & Co., 421 U.S. at 150 (citations
omitted). To qualify under this privilege, a record must meet two requirements. First, it must be
predecisional — i.e., “antecedent to the adoption of an agency policy.” Jordan v. U.S. Dep’t of
Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc) (emphasis omitted), overruled in part on
other grounds, Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1053 (D.C.
Cir. 1981) (en banc). Even when an agency subsequently makes a final decision on the issue
discussed in the record, the record remains predecisional if it was produced before that final
decision. See Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360 (1979).
Second, a record must be deliberative — i.e., “a direct part of the deliberative process in that it
makes recommendations or expresses opinions on legal or policy matters.” Vaughn v. Rosen,
523 F.2d 1136, 1144 (D.C. Cir. 1975). “A document that does nothing more than explain an
existing policy cannot be considered deliberative.” Pub. Citizen, Inc. v. OMB, 598 F.3d 865,
876 (D.C. Cir. 2010).
EOUSA invoked the deliberative-process privilege as to every single document it
withheld. It asserts that the documents would reveal “pre-decisional and deliberative
10
communications” on various matters, including “whether an OPR investigation was warranted”
and whether “a formal inquiry would be conducted into alleged misconduct by an AUSA during
the course of Mr. Bartko’s criminal trial.” Francis Decl., ¶ 15. Bartko, for his part, does not
contest the predecisional and deliberative nature of most of the documents. His arguments focus
instead both on whether EOUSA seeks to shield factual information from release and whether
the privilege is vitiated here by an exception for governmental misconduct. The Court concludes
that EOUSA has properly invoked the privilege as to certain documents but not as to others.
(a) Proper Invocation
The Court finds that, as a general matter, the agency properly withheld the following
documents: OPR-12, OPR-13, OPR-14, OPR-15, OPR-16, OPR-17, OPR-19, OPR-20, OPR-21,
OPR-22, OPR-23, OPR-23(a), and OPR-24. See Vaughn Index at 1–22. Most of those
documents contain communications among attorneys in various branches of the Department of
Justice considering how to handle the alleged misconduct of an AUSA. Id. Apart from his
arguments about the government-misconduct exception, Bartko offers no reason why those
communications fall outside the privilege. They are predecisional because they address various
future determinations, including whether an OPR investigation or other formal inquiry is
warranted. And they are deliberative because they reflect the give and take of the Department’s
processes in making those decisions.
Bartko principally maintains that the deliberative-process privilege is inapplicable to
those documents because of the “government misconduct” exception. See Pl. Opp. at 5–8.
Under this exception, “where there is reason to believe the documents sought may shed light on
government misconduct, the privilege is routinely denied, on the grounds that shielding internal
government deliberations in this context does not serve the public’s interest in honest, effective
11
government.” In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir.1997) (internal quotation marks
omitted). The exception applies only in cases of extreme government wrongdoing. See Nat’l
Whistleblower Ctr. v. Dep’t of Health & Human Servs., 903 F. Supp. 2d 59, 66–69 (D.D.C.
2012).
The party seeking release of withheld documents under this exception must “provide an
adequate basis for believing that [the documents] would shed light upon government
misconduct.” Judicial Watch of Fla., Inc., v. U.S. Dep't of Justice, 102 F. Supp. 2d 6, 15 (D.D.C.
2000). While there is little caselaw to guide the Court on what quantum of evidence must be
shown to support the exception, courts have recognized the need to apply the exception narrowly
because
[i]f every hint of marginal misconduct sufficed to erase the
privilege, the exception would swallow the rule. In the rare cases
that have actually applied the exception, the “policy discussions”
sought to be protected with the deliberative process privilege were
so out of bounds that merely discussing them was evidence of a
serious breach of the responsibilities of representative government.
The very discussion, in other words, was an act of government
misconduct, and the deliberative process privilege disappeared.
ICM Registry, LLC v. U.S. Dep’t of Commerce, 538 F. Supp. 2d 130, 133 (D.D.C. 2008).
Assuming Bartko’s allegations of misconduct rise to the appropriate level, they still do
not vitiate the deliberative-process privilege under these circumstances. As the Court found in
the previous Bartko case, government documents that “are part of the legitimate governmental
process [conducted by OPR],” which may relate to investigations of various forms of
government misconduct, are “intended to be protected by Exemption 5.” Bartko, 128 F. Supp.
3d at 73 (citation omitted). The government-misconduct exception does not generally apply
because the discussions contained in the documents are not themselves acts of misconduct. Id.;
see also ICM Registry, 538 F. Supp. 2d at 133. Because Bartko offered no evidence there that
12
the documents reflected misconduct on the part of OPR, the misconduct exception did not apply.
The Court of Appeals presumably agreed, as it affirmed the Court’s decision that OPR records in
the case were protected by the deliberative-process privilege, notwithstanding Bartko’s
misconduct-exception arguments. See Bartko, 898 F.3d at 70. The Court will thus follow its
prior determination. While applying the privilege to shield records that directly reflect
government misconduct is improper, applying it to protect the deliberations of investigative
bodies like OPR in their consideration of how to respond to past governmental misconduct is
fully consonant with the policies undergirding the privilege. The Court therefore rejects Bartko’s
argument that the misconduct exception erases the privilege here.
(b) Improper Invocation
The Court, conversely, concludes that, based on the information currently before it, the
following records fall outside the deliberative-process privilege: OPR-17(a), OPR-18(a), OPR-
18(b), OPR-18(c), OPR-18(d), OPR-18(e), OPR-18(g), OPR-18(h), OPR-20(a), OPR-21(a),
OPR-22(a), OPR-23(b), and OPR-Unnumbered.
OPR-23(b) and OPR-Unnumbered fall outside the privilege for the same reason: Those
documents appear to reflect existing policies, rather than predecisional communications about
appropriate policies to adopt in the future. Start with OPR-23(b). EOUSA describes the
document as a “Memorandum from the Director of EOUSA to all U.S. Attorneys” that
“discusse[d] guidance by EOUSA to the Districts regarding discovery policies.” Vaughn Index
at 20–21. Based on the description, that document may do “nothing more than explain an
existing policy” and therefore “cannot be considered deliberative.” Pub. Citizen, 598 F.3d at
876. The same appears true of OPR-Unnumbered. EOUSA describes the matter as an
“[i]nternal policy document for USAO-NCE” relevant to Justice Department attorneys’
13
discussion of a prosecutor’s misconduct. Vaughn Index at 20. As such, the document is not
deliberative and therefore not privileged.
The remaining records EOUSA seeks to withhold are judicial opinions or court filings
attached to emails among various agency officials. The agency asserts that those records are
privileged because they “indicate what information the attorneys considered and what they
determined was important to the OPR investigation.” Def. Reply at 5. Its argument may prove
too much. If all factual material an agency considers during a decisionmaking process were
exempt, an agency would never need to disclose factual matter raised during its policymaking
deliberations. That is wrong and the cases say so. “[T]he privilege applies only to the ‘opinion’
or ‘recommendatory’ portion of the [predecisional] report, not to factual information which is
contained in the document.” Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854,
868 (D.C. Cir. 1980) (quoting EPA v. Mink, 410 U.S. 73, 93 (1973)); see also Playboy Enters.,
Inc v. U.S. Dep’t of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982) (“Anyone making a report must
of necessity select the facts to be mentioned in it; but a report does not become a part of the
deliberative process merely because it contains only those facts which the person making the
report thinks material. If this were not so, every factual report would be protected as a part of the
deliberative process.”).
It is true, however, that the privilege protects factual material that “is so inextricably
intertwined with the deliberative sections of documents that its disclosure would inevitably
reveal the government’s deliberations,” In re Sealed Case, 121 F.3d at 737, or that “reflects an
exercise of discretion and judgment calls.” Ancient Coin Collectors Guild v. U.S. Dep’t of State,
641 F.3d 504, 513 (D.C. Cir. 2011) (internal quotation marks omitted). Those circumstances are
construed quite narrowly, see Coastal States, 617 F.2d at 868, and courts are admonished to
14
“beware of ‘the inevitable temptation of a governmental litigant to give [this exemption] an
expansive interpretation in relation to the particular records in issue.’” Soucie v. David, 448
F.2d 1067, 1078 (D.C. Cir. 1971) (quoting Ackerly v. Ley, 420 F.2d 1336, 1341 (D.C. Cir.
1969)). On the record as it stands, the Court finds that the judicial opinions and other public
filings are not privileged.
As to all the documents but OPR-22(a), EOUSA does not specifically explain what
disclosure of the opinions or filings would reveal about the deliberative process. It instead offers
conclusory statements that these documents were considered by various Justice Department
attorneys, leaving it to the Court to sort out how their disclosure would expose the agency’s
deliberations. See Francis Decl., ¶ 15; Vaughn Index at 7–8. Additionally, EOUSA fails to
show that disclosure of the opinions would reveal predecisional matters. As to all but OPR-
22(a), OPR does not identify the particular decision or decisionmaking process the opinions and
filings were informing. In the absence of further explanation, the Court concludes that the
agency has not met its burden of showing that disclosure of the denoted opinions and filings “so
expose[s] the deliberative process” as to fall within the deliberative-process privilege. Mead
Data Cent. v. U.S. Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977).
The agency provided a more thorough explanation in support of withholding OPR-22(a).
It explained in the Vaughn Index that the document might be understood to constitute “legal
authority that was reviewed and assessed by an OPR attorney in order to determine the direction
of OPR’s investigation into alleged misconduct.” Vaughn Index at 17–18. Having reviewed the
document in camera, however, the Court finds that it would not “inevitably reveal the
government’s deliberations.” In re Sealed Case, 121 F.3d at 737. The opinion merely reflects,
among other things, one court’s understanding of the due-process rights of criminal defendants;
15
it is not clear to this Court what the opinion has to do with OPR’s investigation, let alone what it
reveals about the internal, predecisional deliberations of OPR investigators. The Court
emphasizes again that if documents like this opinion, which do no more than stake out external
law or internal policy, were privileged, agencies would be able to shield from disclosure
numerous factual reports and policy manuals simply because they considered them in the process
of making a decision. Yet it is well established that those reports and manuals, like the opinions
and filings here, are just what the public is entitled to under FOIA. See, e.g., Soucie, 448 F.2d at
1078 (Office of Science and Technology report to President not exempt); Playboy Enterprises,
677 F.2d at 935 (FBI Task Force report on investigation into informant not exempt); Taxation
With Representation Fund v. IRS, 646 F.2d 666, 680–84 (D.C. Cir. 1981) (various technical and
policy memoranda reflecting working “agency law” not exempt).
iii. Attorney-Work-Product Privilege
Moving right along, the Court next considers the attorney-work-product privilege. “The
attorney work-product [prong of Exemption 5] protects ‘documents and tangible things that are
prepared in anticipation of litigation or for trial’ by an attorney.” Am. Immigration Council v.
DHS, 905 F. Supp. 2d 206, 221 (D.D.C. 2012) (quoting Fed. R. Civ. P. 26(b)(3)). As this Court
has noted in the past, this privilege is relatively broad, encompassing documents prepared for
litigation that is “foreseeable” even if not necessarily imminent. Id. The privilege, however, is
not boundless. No doubt potential “future litigation touches virtually any object of a[n agency]
attorney’s attention,” but “if the agency were allowed ‘to withhold any document prepared by
any person in the Government with a law degree simply because litigation might someday occur,
the policies of the FOIA would be largely defeated.’” Senate of Puerto Rico v. U.S. Dep’t of
Justice, 823 F.2d 574, 586–87 (D.C. Cir. 1987) (quoting Coastal States, 617 F.2d at 865).
16
When reviewing a withholding under the work-product privilege, the D.C. Circuit
employs a because-of test, inquiring “whether, in light of the nature of the document and the
factual situation in the particular case, the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.” FTC v. Boehringer Ingelheim Pharms. Inc., 778
F.3d 142, 149 (D.C. Cir. 2015) (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C.
Cir. 2010)). Where a document would have been created “in substantially similar form”
regardless of the litigation, work-product protection is not available. See Deloitte, 610 F.3d at
138 (quoting United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)). This means that
EOUSA here must at least demonstrate that the lawyer who prepared these documents possessed
the “subjective belief that litigation was a real possibility, and that belief must have been
objectively reasonable.” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). For the
Government to discharge its evidentiary burden under this test, it generally must provide a
description of the contents of the withheld document — which typically includes the document’s
author and the circumstances surrounding its creation — and provide some indication of the type
of litigation for which the document’s use is at least foreseeable. See Ellis v. U.S. Dep’t of
Justice, 110 F. Supp. 3d 99, 108 (D.D.C. 2015).
Although EOUSA invoked the work-product privilege as to every single document it
withheld, the Court needs to consider only whether the privilege applies to those documents not
otherwise protected: OPR-17(a), OPR-18(a), OPR-18(b), OPR-18(c), OPR-18(d), OPR-18(e),
OPR-18(g), OPR-18(h), OPR-20(a), OPR-21(a), OPR-22(a), OPR-23(b), and OPR-Unnumbered.
As to those documents, EOUSA offered the following explanation in the Vaughn Index (which is
practically identical for each relevant entry):
Exemption (b)(5), via the attorney work product privilege, was
asserted to protect inter-agency and intra-agency communications
17
between attorneys at the District/OPR, and/or EOUSA’s OGC,
regarding an OPR investigation into the alleged misconduct of an
AUSA during the prosecution of a criminal case. This court
opinion/court filing/legal research/internal policy document was
obtained along with the other records that were obtained from OPR
for this referral, and it relates to discussions that were held among
attorneys at the District, OPR, and/or EOUSA’s OGC, which
contain their personal evaluations and opinions, and mental
impressions regarding the issues they were assessing and discussing.
Because this information reflects attorney work product, EOUSA
has determined that no segregable material can be disclosed.
Vaughn Index at 20–21 (OPR-23(b)). The Declaration of EOUSA official Tricia Francis further
explained that the records reflect various attorneys’ discussions over whether “a matter was ripe
for referral to OPR.” Francis Decl., ¶ 13. The agency offers little additional detail in its Motion.
EOUSA’s justifications for withholding records on attorney-work-product-privilege
grounds all fall short for one obvious reason: none of them explains in what manner the records
were “prepared or obtained because of the prospect of litigation.” Boehringer, 778 F.3d at 149
(quoting Deloitte, 610 F.3d at 137). Perhaps EOUSA assumes that because the communications
concerned the prospect or pendency of a specific OPR investigation, they must have been
prepared because of litigation. That assumption would be incorrect. As the Court of Appeals
recently explained in the other Bartko case, an OPR investigation is “several steps removed from
. . . [an] ‘adjudicative or enforcement’ proceeding” or from “civil sanctions.” 898 F.3d at 68.
Rather than focus on external litigation, OPR’s investigations “focus primarily on internal
disciplinary matters.” Id. at 65. For that reason, the court held, records prepared as part of an
OPR investigation were not necessarily “law-enforcement records” under Exemption 7(C). Id. at
68. (More on 7(C) in just a moment.) EOUSA gives the Court no reason to reach a different
conclusion with respect to the work-product privilege under Exemption 5. If the agency seeks to
invoke the privilege as to documents related to an OPR investigation, it must assert that such
18
documents were prepared in anticipation of litigation and provide some indication of the type of
litigation for which each document’s use is foreseeable. It does not do either here.
For these reasons, on the record as it stands, the Court rejects EOUSA’s argument that it
properly withheld records under the work-product-privilege prong of Exemption 5.
b. Exemptions 6 and 7(C)
The Court last considers Defendant’s invocation of Exemptions 6 and 7(C). The former
protects “personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The latter excludes
“records or information compiled for law enforcement purposes . . . to the extent that the
production of such law enforcement records or information . . . could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). Both provisions
require agencies and reviewing courts to “balance the privacy interests that would be
compromised by disclosure against the public interest in release of the requested information.”
Beck v. U.S. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (quoting Davis v. U.S.
Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).
As with Exemption 5, EOUSA invokes Exemptions 6 and 7(C) to justify withholding
every responsive document. And once again, the Court need only consider whether those
exemptions properly apply to documents the Court has not already found properly withheld:
OPR-17(a), OPR-18(a), OPR-18(b), OPR-18(c), OPR-18(d), OPR-18(e), OPR-18(g), OPR-
18(h), OPR-20(a), OPR-21(a), OPR-22(a), OPR-23(b), and OPR-Unnumbered. It need not
linger long on these exemptions. In light of the Court of Appeals’s recent decision in the other
Bartko case, reliance on these exemptions does not survive scrutiny.
19
Take Exemption 7(C) first. That exemption applies only to “law enforcement records.”
5 U.S.C. § 552(b)(7)(C). In Bartko, the Court of Appeals concluded that the records Plaintiff
sought of AUSA Wheeler’s misconduct were not, on the record before it, law-enforcement
records. See 898 F.3d at 65 (“The government has not come close to showing that all records
. . . involving misconduct allegations against Wheeler would have been compiled for law
enforcement purposes.”); id. at 69 (noting that OPR’s investigation into Wheeler’s misconduct in
Bartko’s case was “not an investigation with an eye toward law-enforcement proceedings”).
Those conclusions apply with equal force to Bartko’s request here for records of Wheeler’s
misconduct — the same records request at issue in the previous matter, merely directed to
EOUSA rather than OPR. Perhaps EOUSA can make a particularized showing as to why the
responsive records are law-enforcement records, but it has not come close to making that
showing so far.
Exemption 6 gets EOUSA no farther. To invoke that exemption, the Government must
make a substantial individualized, document-by-document showing that disclosure would
inappropriately invade a privacy interest. See Bartko, 898 F.3d at 67. As with Exemption 7(C),
the agency does not clear that hurdle for the documents it seeks to withhold. It merely states that
Exemption 6 is “asserted to protect information about what materials OPR considered during its
investigation, on the grounds that disclosure could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” Vaughn Index at 9. EOUSA does not explain the
particular privacy interests at stake in each document nor why any invasion of those interests
would be unwarranted.
At certain points, EOUSA invoked Exemption 6 to protect the personal identifying
information of attorneys involved in the communications and third parties mentioned therein.
20
See Vaughn Index at 7; Francis Decl., ¶¶ 18–20. The Court has already upheld EOUSA’s
decision to withhold many of those communications under the deliberative-process-privilege
prong of Exemption 5, making further consideration under Exemption 6 unnecessary. Insofar as
EOUSA raises similar privacy concerns as to the documents not within Exemption 5, it does not
explain why those concerns require withholding the documents in full. Redactions of the
relevant documents appear likely to be sufficient to protect “the identifying information of staff
. . . and the third parties that are contained in the records,” if that is indeed necessary under
Exemption 6. Id. Suffice it to say for the moment that EOUSA has not shown that it properly
withheld the full contents of all responsive records under Exemption 6.
3. Segregability
On the home stretch (at least for this request), the Court turns to the matter of
segregability — viz., the requirement that an agency disclose non-exempt and segregable
portions of otherwise exempted documents. Before diving into that issue though, a brief recap of
what’s been decided so far. First, EOUSA properly withheld OPR-18 under the attorney-client-
privilege prong of Exemption 5. Second, it properly withheld the following documents under the
deliberative-process prong of the same: OPR-12, OPR-13, OPR-14, OPR-15, OPR-16, OPR-17,
OPR-19, OPR-20, OPR-21, OPR-22, OPR-23, OPR-23(a), and OPR-24. Third, EOUSA did not
properly invoke any FOIA exemption to withhold in full any of the remaining documents: OPR-
17(a), OPR-18(a), OPR-18(b), OPR-18(c), OPR-18(d), OPR-18(e), OPR-18(g), OPR-18(h),
OPR-20(a), OPR-21(a), OPR-22(a), OPR-23(b), and OPR-Unnumbered.
Notwithstanding the foregoing determination that EOUSA properly withheld certain
documents, it is well settled that an agency must “disclose all reasonably segregable, nonexempt
portions of the requested record(s).” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1167 (D.C.
21
Cir. 2011) (quotation marks and citation omitted). It is the Government’s burden to demonstrate
that no reasonably segregable material exists in such documents. See Army Times Publ’g Co. v.
U.S. Dep’t of Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993). The Government must
“provide[] a ‘detailed justification’ and not just ‘conclusory statements’ to demonstrate that all
reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110,
120 (D.D.C. 2010) (citing Mead Data, 566 F.2d at 261); see also Armstrong v. Exec. Office of
the President, 97 F.3d 575, 578 (D.C. Cir.1996) (determining government affidavits explained
non-segregability of documents with “reasonable specificity”). “Reasonable specificity” can be
established through a “combination of the Vaughn index and [agency] affidavits.” Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).
Bartko maintains that EOUSA has failed to meet its segregability burden. See Pl. Opp. at
23–24. The Court largely agrees. In the Vaughn Index, EOUSA stated only that “[b]ecause this
information reflects attorney work product, EOUSA has determined that there is no segregable
material that can be disclosed.” Vaughn Index at 8. It is true that work-product documents are
not subject to segregability analysis, see Judicial Watch, Inc. v. U.S. Dep’t of Justice, 432 F.3d
366, 371 (D.C. Cir. 2005), but the Court has already rejected EOUSA’s invocation of this
privilege. The Vaughn Index thus provides no useful detail on segregability. The Francis
Declaration offers little more. It merely says: “All information withheld was exempt from
disclosure pursuant to a FOIA exemption. After EOUSA considered the segregability of the
requested records, no reasonably segregable non-exempt information was withheld from
Plaintiff.” Francis Decl., ¶ 24. In light of the brief and conclusory nature of the Government’s
assertions, the Court concludes, subject to one exception, that EOUSA has not shown that the
documents it otherwise properly withheld under Exemption 5 contain no reasonably segregable
22
information. If the agency seeks to continue withholding the records in full, it must explain with
“reasonable specificity” why there are no factual portions or other non-exempt portions of those
documents that can be released. See Mead Data, 566 F.2d at 250 (holding that the Government
must do more than state without justification that “there were no factual portions of the
documents which could be reasonably segregated”); Perry-Torres v. U.S. Dep’t of State, 404 F.
Supp. 2d 140, 144 (D.D.C. 2005) (finding that the Government’s segregability justification as to
documents withheld in full was inadequate because it was conclusory and not sufficiently
specific).
The exception is OPR-18. The Court found that document properly withheld under the
attorney-client privilege. According to EOUSA, the email chain that makes up OPR-18 contains
an attorney’s request for legal advice from EOUSA and the EOUSA General Counsel’s
provision of that advice in response. Vaughn Index at 6–7. EOUSA has sufficiently shown that
there are no reasonably segregable portions of that document, such that the entire matter is
appropriately exempt from production.
* * *
Before moving on to the next FOIA request, a summary of the Court’s disposition as to
Request No. 2015-759 may prove helpful. It grants summary judgment to EOUSA as to its
withholding of Document OPR-18, but otherwise takes Plaintiff’s side, at least in part.
Documents OPR-17(a), OPR-18(a), OPR-18(b), OPR-18(c), OPR-18(d), OPR-18(e), OPR-18(g),
OPR-18(h), OPR-20(a), OPR-21(a), OPR-22(a), OPR-23(b), and OPR-Unnumbered are not, on
the record as it stands, protected by Exemptions 5, 6, or 7(C). Although OPR-12, OPR-13, OPR-
14, OPR-15, OPR-16, OPR-17, OPR-19, OPR-20, OPR-21, OPR-22, OPR-23, OPR-23(a), and
23
OPR-24 are generally protected by the deliberative-process privilege, EOUSA must show that
there are no reasonably segregable, non-exempt portions of those documents.
B. Request No. 2014-3847
With most of the heavy lifting out of the way, the Court now turns to Request No. 2014-
3847. EOUSA asks the Court to dismiss Bartko’s claim as to this request because it violates a
doctrine known as “claim-splitting.” This doctrine bars plaintiffs from maintaining “two actions
on the same subject in the same court, against the same defendant at the same time.” Clayton v.
District of Columbia, 36 F. Supp. 3d 91, 94 (D.D.C. 2014) (quoting Katz v. Gerardi, 655 F.3d
1212, 1217 (10th Cir. 2011)). EOUSA asserts that Bartko seeks to prosecute Request No. 2014-
3847 both in this suit and in his previously filed FOIA action. The Court agrees.
To start, there seems to be no dispute that Plaintiff seeks to maintain two actions in the
same court, against the same defendant, at the same time. As the Court has mentioned several
times over, before Bartko brought this action against EOUSA, he sought relief against it in a
prior FOIA suit. In that case, the Court considered and ruled on Bartko’s challenge to EOUSA’s
processing of No. 2014-3847. See Bartko, 102 F. Supp. 3d 342. Bartko appealed the Court’s
adverse ruling, and the Court of Appeals reversed in part and remanded the case. See Bartko,
898 F.3d at 76. The matter is therefore separately pending before this Court.
The only remaining question, then, is whether Plaintiff’s claim in this suit is on the “same
subject” as that in the remanded matter. Two suits address the same subject for claim-splitting
purposes if, “assuming the first suit was already final, the second suit would be precluded under
res judicata analysis.” Clayton, 36 F. Supp. 3d at 94 (quoting Katz, 665 F.3d at 1219). Res
judicata, in turn, “bars further claims by parties . . . based on the same cause of action,” Montana
v. United States, 440 U.S. 147, 153 (1979), “on any ground for relief which [the parties] already
24
have had an opportunity to litigate.” Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir.
1981). Two claims “implicate the same cause of action” when “they share the same nucleus of
facts.” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (internal quotation marks and citation
omitted). The Court must therefore decide whether Bartko’s current claim as to Request No.
2014-3847 and the claim in his remanded case share a common nucleus of facts.
This one’s easy: they do. Both seek review of the same FOIA request and the same
underlying records. Bartko even makes largely the same arguments in this suit that he made in
that one, including that EOUSA’s demand for a processing fee of $51.90 was improper and that
the agency failed to process responsive documents referred to it by OPR. Compare Compl., ¶¶
55–62, and Pl. Opp. at 26–28, with No. 13-1135, ECF No. 126 (Second Suppl. Compl.), ¶¶ 1–8,
and ECF No. 159 (Pl. Reply and Response to Cross-Motions for Summary Judgment) at 4–12.
Bartko nonetheless urges that dismissal on claim-splitting grounds is inappropriate
because certain of his arguments related to Request No. 2014-3847 — particularly his claim that
EOUSA has never processed the 610 pages of documents referred to it by OPR — have never
been adjudicated. See Pl. Opp. at 26–27. That argument falls wide of the mark. Claim-splitting
applies even if a certain claim has not yet been adjudicated in the earlier suit. In fact, those are
just the circumstances when the rule against claim-splitting should apply. To avoid “the burdens
and waste of overlapping litigation,” courts may require plaintiffs like Bartko to pursue their
claims in the prior suit, rather than pursuing simultaneously a new case that asks for the same
adjudication. See 18 Charles Alan Wright et al., Federal Practice and Procedure § 4404 (3d ed.
2018).
Bartko gets no farther by suggesting that he has not yet, and may not in the future, have
the opportunity to raise certain of his arguments in his other suit. Insofar as this specific issue is
25
no longer pending before this Court, that is because it issued a final judgment on the question,
and Bartko either chose not to bring those arguments on appeal or lost. It is well established that
res judicata “applies to claims a plaintiff had an opportunity ‘to litigate[], even if [he] chose not
to exploit that opportunity.’” Hudson v. Am. Fed. of Gov’t Employees, 308 F. Supp. 3d 388,
394 (D.D.C. 2018) (quoting Hardison, 655 F.2d at 1288). Because Bartko could have raised the
arguments he now offers — and, in many cases, did in fact raise those arguments — the Court’s
final judgment carries res judicata effects as to the claims implicating the same cause of action.
For these reasons, the Court concludes that Bartko’s claim as to Request No. 2014-3847
should be dismissed because it violates the rule against claim-splitting.
C. Request No. 2014-486
Nearing the end, the Court now turns to Request No. 2014-486. EOUSA asks for
summary judgment as to this request principally on the ground that Bartko has not exhausted his
administrative remedies. As noted, the Court dismissed this same claim from Bartko’s previous
FOIA suit on this ground. The question then is whether he took some actions subsequent to the
Court’s dismissal that satisfied or otherwise excused FOIA’s exhaustion requirement. The Court
concludes that he did.
A plaintiff seeking to bring a FOIA suit in federal court must generally exhaust her
administrative remedies before filing suit. See Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61
(D.C. Cir. 1990). Exhaustion typically requires a plaintiff to file a FOIA request with the
relevant agency and then appeal a denial of that request within the agency. Id. (If the agency
fails to comply with certain statutory timeframes associated with processing the initial request or
appeal, the plaintiff may be deemed to have constructively exhausted her remedies. Id. at 62.) If
a plaintiff does not receive a final determination from the agency on account of her failure to
26
comply with the agency’s FOIA regulations, she will generally be deemed not to have exhausted
her claim. See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (noting that many agencies
require compliance with regulations “to satisfy the FOIA exhaustion requirement”); see also
West v. Jackson, 448 F. Supp. 2d 207, 211 (D.D.C. 2006) (“The failure to comply with an
agency’s FOIA regulations is the equivalent of a failure to exhaust.”).
FOIA exhaustion is a “jurisprudential doctrine,” rather than a jurisdictional one. Hidalgo
v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). Failure to exhaust thus does not always require
dismissal. Rather, “failure to exhaust precludes judicial review if ‘the purposes of exhaustion’
and the ‘particular administrative scheme’ support such a bar.’” Wilbur, 355 F.3d at 677
(quoting Hidalgo, 344 F.3d at 1258–59). So, while dismissal (or summary judgment) is
generally appropriate if a plaintiff has failed to exhaust her FOIA claims, it is not warranted in a
particular case if enforcing the requirement would subvert the purposes of exhaustion and FOIA
more generally. Id.; see also Antonelli v. Fed. Bureau of Prisons, 591 F. Supp. 2d 15, 25
(D.D.C. 2008) (“The court need not dismiss a claim for failure to exhaust if it determines that the
purposes and policies underlying the exhaustion requirement would not be undermined by
reaching the merits.” (internal quotation marks and citation omitted)). The purpose of the
exhaustion requirement is to give the agency “an opportunity to exercise its discretion and
expertise on the matter and to make a factual record to support its decision.” Wilbur, 355 F.3d at
677 (quoting Oglesby, 920 F.2d at 61). FOIA’s purpose, of course, is to “open agency action to
the light of public scrutiny.” Rose, 425 U.S. at 372.
The Court concludes that, in light of the actions Bartko took after it dismissed his claim,
applying the exhaustion doctrine to preclude review would serve neither the purposes of
exhaustion nor those of FOIA. After the Court dismissed this claim with the admonition that
27
Bartko should seek to exhaust it within the agency, he filed an appeal with the relevant body, the
Office of Information Policy. See Answer, Exh. 1, Attach. L. Recall that the agency had
previously refused to process this particular request before Bartko paid $2,618 in search fees.
The appeal thus addressed only the correctness of the agency’s denial of a fee waiver. Id.
Instead of resolving the appeal, however, OIP dismissed it on the ground that Bartko’s FOIA
request remained “the subject of litigation.” Id., Attach. T. Because Bartko did not receive a
final determination from the agency on his FOIA request, he did not technically exhaust his
claim. In the ordinary case, then, he would be precluded from challenging in court the agency’s
decision to deny his fee waiver.
Preventing Bartko from pursuing relief in court on this particular claim, however, would
disserve the purposes of exhaustion and FOIA. Take the former first. Unlike a typical FOIA
matter requiring the agency’s discretion in searching and processing numerous records, Plaintiff
merely sought a public-interest fee waiver. Determining the propriety of such a waiver does not
require the agency to “exercise its discretion and expertise” or “make a factual record in support
of its decision.” Wilbur, 355 F.3d at 677 (citation omitted). In any event, the agency had the
opportunity to make its own determination on Bartko’s claim and declined to do so. Plaintiff’s
appeal remained pending for more than eight months before OIP ultimately informed him that it
could not be processed given his pending FOIA litigation. See Answer, Exh. 1, Attach. T (citing
28 C.F.R. § 16.8(b)(2)). Yet the pending litigation posed no barrier to OIP’s ruling on the appeal
because the Court had dismissed the particular claim that Bartko was appealing within the
agency. Bartko, 2014 WL 12787640, at *7. There was thus little chance that processing the
appeal could lead to duplicative or conflicting determinations — the concern presumably
28
motivating EOUSA’s policy not to process appeals of matters in litigation. See 28 C.F.R.
§ 16.8(b)(2).
Consider next the purposes of FOIA. Under EOUSA’s position, Bartko would not be
able to appeal administratively while any of his FOIA claims remained pending in court, even if
the particular claim on which he seeks to appeal was dismissed. That policy effectively
penalizes him for pursuing other FOIA claims that are properly in district court. Under such a
policy, the only avenues for Bartko to pursue this claim are to wait until all his other claims in
litigation have been resolved or to file a new FOIA request. Even those avenues may run into
barriers, like the time limits agencies impose on administrative appeals, see 28 C.F.R. § 16.8(a)
(90 days from the agency’s response), or rules district courts have adopted barring plaintiffs from
bringing identical FOIA requests to cure their failures to exhaust previous FOIA requests. See
Toensing v. U.S. Dep’t of Justice, 890 F. Supp. 2d 121, 140 (D.D.C. 2012). EOUSA’s response
in its briefing can be summed up in one word: tough. It seems to think that if a plaintiff’s failure
to properly exhaust her claim initially forever precludes her from getting a FOIA determination
in the agency or in court, that is the plaintiff’s fault for not getting it right the first time. See Def.
Reply at 25. That kind of one-strike-and-you’re-out approach is inconsistent with FOIA’s goal
of opening agency action to the light of public scrutiny.
The Court therefore concludes that it may consider the merits of Bartko’s claim as to
FOIA Request No. 2014-486. On this question, EOUSA argues that it deserves summary
judgment on the ground that “Plaintiff does not make any showing that he was entitled to a fee
waiver.” Id. While true, the Court of Appeals very recently determined that Bartko was entitled
to a fee waiver for Request No. 2014-3847, see Bartko, 898 F.3d at 76 — the request the Court
found above should be dismissed on claim-splitting grounds. That request, in addition to having
29
been filed by the same person, implicates the same subject matter as No. 2014-486. It follows
that a fee waiver may likewise be appropriate as to this request. In the absence of additional
briefing since the appellate decision, the Court withholds its ruling on this aspect of EOUSA’s
Motion.
The Court, accordingly, denies EOUSA’s Motion as to this claim, but it withholds
judgment on the question of Bartko’s entitlement to a fee waiver.
IV. Conclusion
For these reasons, the Court will grant in part, deny in part, and withhold judgment in
part on Defendant’s Cross-Motion for Partial Summary Judgment. It will also grant Defendant’s
Motion to Dismiss. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 25, 2018
30
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213 Ga. 291 (1957)
99 S.E.2d 113
WALLER
v.
THE STATE.
19704.
Supreme Court of Georgia.
Argued May 14, 1957.
Decided June 10, 1957.
George Richard Jacob, for plaintiff in error.
John H. Land, Solicitor-General, Eugene Cook, Attorney-General. Rubye G. Jackson, contra.
*292 HEAD, Justice.
1. Ground 1 of the amended motion for new trial asserts that the court erred in refusing the written request to charge as follows: "It can never be said that the death penalty is demanded by the evidence. After the offense of murder is established, it is solely within the province of the jury whether the accused shall be recommended to the mercy of the court. This discretion is not controlled by any rule of law."
In Glover v. State, 128 Ga. 1, 7 (57 S. E. 101) it was said: "It may be said . . . that as counsel for plaintiff in error practically abandoned the general grounds of the motion, we should look at the evidence to see whether the verdict was not demanded by the evidence. To this it may be replied that there may be a state of facts where the evidence, under the law, would demand a conviction of the crime of murder, but under our law, where the punishment to be inflicted for murder is left in the discretion of the jury, under no circumstances can this court say that the evidence demanded a general verdict of guilty which must be followed by the infliction of the death penalty." (Italics ours.) This language has been quoted and referred to in a number of cases. See Barfield v. State, 179 Ga. 293 (175 S. E. 582); Thompson v. State, 203 Ga. 416, 418 (47 S. E. 2d 54); Glenn v. State, 205 Ga. 32, 35 (52 S. E. 2d 319); Jones v. State, 207 Ga. 379, 380 (3) (62 S. E. 2d 187); Royals v. State, 208 Ga. 78, 82 (65 S. E. 2d 158); Parks v. State, 208 Ga. 508, 509 (4) (67 S. E. 2d 716).
The language quoted from Glover v. State, supra, and followed in the cases enumerated, states a principle governing this court in determining whether or not a new trial should be granted because of some error occurring during the trial in a case where the death penalty has been given, when the evidence demands a conviction of the crime of murder. It was not stated as a proper rule to be given by a trial judge in his charge to the jury. Although certain language may appear in a decision by this court, it does not necessarily follow that this language should be given in charge to the jury. Leonard v. State, 133 Ga. 435, 437 (66 S. E. 251).
In the present case the court charged the jury as follows: "If you believe that the State has established a case of murder *293 against the defendant, it is solely the province of the jury as to whether or not they recommend mercy. That is discretionary and optional with you entirely, gentlemen, the law puts no inhibition there. If you feel that it's a case where mercy should be recommended that is entirely your province, and if not, that again is your province." This was a proper instruction on the jury's right to recommend mercy, and it was not error to refuse to give the requested charge set out in this ground.
2. In ground 2 it is insisted that the court erred in denying the motion of counsel for the defendant, at the beginning of the trial, "that he was entitled to 48 qualified jurors from which to strike."
From the recitals made in this ground it appears that some sixty jurors were present, and the solicitor-general propounded the voir dire questions to them. It does not appear from this ground that the defendant was denied any right to which he was entitled. Gossett v. State, 203 Ga. 692, 693 (4) (48 S. E. 2d 71).
3. Ground 3 is as follows: "Because the court failed to charge the jury on the law of self-defense, and failed to mention `self-defense' in his charge, when the statement of the defendant (the movant) plainly showed the shot was fired after the movant had been attacked and cut severely by the deceased."
This ground is completely refuted by the record. The court charged the applicable portions of Code §§ 26-1011 and 26-1012, in regard to justifiable homicide, and specifically referred to "self-defense." Counsel for the defendant cites in support of this ground the case of Smith v. State, 203 Ga. 317, 321 (46 S. E. 2d 583), wherein it is stated that it is reversible error for the court to charge §§ 26-1011, 26-1012, and 26-1014 in such manner as to confuse the jury in a proper application of the principles of law contained in § 26-1014 (which is applicable only in cases involving mutual combat). In the present case the court did not charge the principles of law contained in § 26-1014, and the case cited is not in point here. Where the issue of justifiable homicide is involved, it is entirely proper to charge the jury the provisions of §§ 26-1011 and 26-1012. Marcus v. State, 149 Ga. 209 (2) (99 S. E. 614); Bryant v. State, 157 Ga. 195 (121 S. E. 574).
*294 4. In ground 4 it is stated that, upon the completion of the testimony of the witness Carrie Ross, the court, looking at the solicitor-general, inquired: "Venue?" The solicitor replied that he intended to prove venue by another witness, but after this inquiry, he proceeded to ask questions of this witness to prove venue. It is asserted that the court was without authority to call the attention of the solicitor to the failure to prove venue, and the court's question tended to give the impression that he was aiding the prosecution and desired the conviction of the defendant.
Whether or not this question by the trial judge was proper, it does not appear that any motion for mistrial was made at the time. There is no merit in this ground. Tanner v. State, 163 Ga. 121, 130 (135 S. E. 917); Herndon v. State, 178 Ga. 832, 850 (174 S. E. 597); Simmons v. State, 181 Ga. 761, 763 (184 S. E. 291); Callahan v. State, 209 Ga. 211 (3) (71 S. E. 2d 86).
5. In ground 5 it is asserted that the court erred in restricting counsel for the defendant in the cross-examination of the witness Carrie Ross, mother of the deceased. The question asked by counsel was: "How many children did Moon [the deceased] have?" The solicitor-general objected to this line of questioning unless counsel sought to show that the defendant and the deceased were legally married. The court stated that, if either the defendant or the deceased had a living spouse, they could not contract a marriage, whether ceremonial or common law, and said, "I'll restrict you to that." It is stated in this ground that the restricted cross-examination prevented counsel from showing that the defendant and the deceased were actually living together as man and wife.
While the right of cross-examination of the witnesses called against a party is a substantial right, the trial judge may restrict the cross-examination to matters material to the issues. Clifton v. State, 187 Ga. 502, 508 (2 S. E. 2d 102). The question asked this witness had no relevancy to the issues in this case. The court did not prevent counsel from proving a common-law marriage between the defendant and the deceased, if he could do so under the restriction of the law, as correctly stated by the court. Under the testimony of the witnesses for the State, the homicide *295 did not occur under circumstances which would have made it justifiable, even if the defendant and the deceased were living together as common-law man and wife. This ground shows no injury to the defendant in the restriction of the cross-examination of the witness Carrie Ross.
6. In ground 6 it is stated that the court charged the jury as follows: "A bare fear of any of those offenses to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing." The error assigned is that the court failed to clarify and explain this charge. There is no merit in this ground.
7. Grounds 7 and 10 apparently refer to the same occurrence. In ground 10 it is stated that counsel for the defendant propounded the following question to the witness Lina Jenkins: "And you know that Melvin [the defendant] was displeased because his wife was going out with somebody else?" The solicitor-general objected to this question as follows: "If it please the court, we object to any reference of his wife. He hasn't shown they were married, and the State denies they were married, incapable of being married, in fact. We ask that he phrase his question properly." Counsel for the defendant then asked the court to rebuke the solicitor for the intimation made in his objection. The court stated: "Proceed with your examination." It is asserted that the court erred in failing to reprimand the solicitor.
It is not shown that any motion for mistrial was made because of the statements made by the solicitor in his objection, and the court in effect overruled the objection of the solicitor when he instructed counsel for the defendant to proceed with his examination. There is no merit in this ground. Simmons v. State, 181 Ga. 761, supra.
8. In ground 8 it is contended that the court erred in failing to charge, without request, as follows: "Every person has a right to take human life when it becomes necessary to do so in order to save his own life, or in defense of his person against one manifestly intending or endeavoring, by violence or surprise to commit a felony on him."
The charge given amply covered the rules of law in relation *296 to justifiable homicide, and the court instructed the jury that, if they found the homicide to be justified, they should acquit the defendant. There is no merit in this ground.
9. Ground 9 is as follows: "Because the court failed to charge the law of manslaughter." This ground is incomplete, since it fails to show what principles of law in regard to "manslaughter" it is contended should have been charged.
Judgment affirmed. All the Justices concur.
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Case: 13-60312 Document: 00512501693 Page: 1 Date Filed: 01/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60312 January 15, 2014
Summary calendar
Lyle W. Cayce
Clerk
ERIC CHATMAN, JR., a minor, by and through his natural mother Audrey
Chatman,
Plaintiff-Appellant
v.
MISSISSIPPI HIGH SCHOOL ATHLETICS ASSOCIATION; GULFPORT
SCHOOL DISTRICT; HOWARD MCNEILL, in his individual capacity and
his official capacity as Athletic Director for GSD,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:11-CV-395
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Eric Chatman, Jr. brought this suit by and through his mother, alleging
inter alia claims under the Equal Protection Clause and 42 U.S.C. §§ 1981 and
1983 for racial discrimination in the application of rules for high school athletic
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-60312 Document: 00512501693 Page: 2 Date Filed: 01/15/2014
No. 13-60312
eligibility when a student transfers from one school district to another. 1 Those
rules provide that, absent special circumstances, a transferring student who
does not make a bona fide change in residence must sit out one year of athletic
eligibility at his new school. When Chatman transferred from Gulfport High
School to St. Stanislaus after his sophomore year, the defendant Mississippi
High School Athletics Association determined that he was ineligible to play
sports at St. Stanislaus because he did not change his residence. Chatman
appeals the district court’s grant of summary judgment to the defendants after
concluding that Chatman failed to show a discriminatory purpose or intent in
the application of the rules. Reviewing the record de novo, see, e.g., Floyd v.
Amite Cnty. Sch. Dist., 581 F.3d 244, 247 (5th Cir. 2009), we AFFIRM for
essentially the same reasons given by the district court.
Now proceeding pro se, Chatman concedes that he was ineligible under
the rules after his transfer, but he argues that the defendants investigate and
treat the eligibility of white students differently from black students. He
argues that several white students were permitted to participate in athletics
after transfers even though they did not make a bona fide move, but that he
was not similarly allowed to participate in sports. We agree with the district
court that Chatman fails to show that the defendants acted with the requisite
discriminatory purpose or intent. See Arguello v. Conoco, Inc., 330 F.3d 355,
358 (5th Cir. 2003) (holding that a claim under 42 U.S.C. § 1981 requires
showing that the defendant had an intent to discriminate); United States v.
Crew, 916 F.2d 980, 984 (5th Cir. 1990) (holding that a claim under the Equal
Protection Clause requires a plaintiff to establish a discriminatory intent or
purpose).
1 Since the filing of the lawsuit Chatman as attained the age of majority.
2
Case: 13-60312 Document: 00512501693 Page: 3 Date Filed: 01/15/2014
No. 13-60312
Chatman does not address in his brief the district court’s finding that
the defendants were unaware of Chatman’s race at the time of the eligibility
determination. That issue is therefore deemed abandoned. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Moreover, Chatman fails to show
that the white students who were allegedly permitted to participate in sports
were similarly situated to him. See Priester v. Lowndes Cnty., 354 F.3d 414,
424 (5th Cir. 2004). As noted by the district court, unlike Chatman, several
students who were allegedly assisted by defendant Howard McNeill were
transferring to the Gulfport School District, where McNeill was the athletic
director, rather than from that district. Those students were not similarly
situated to Chatman. Chatman argues that two white students transferred
from Gulfport to St. Stanislaus, as he did, but were not required to sit out for
a year. In the district court, Chatman relied on his mother’s affidavit averring
that those students did not make a bona fide move, and he asserts
conclusionally on appeal that they were identically situated to him. There is
nothing in the record, however, from which to evaluate the circumstances of
those students’ transfers or to determine whether they were in fact similarly
situated to Chatman. Chatman fails to show a genuine issue of material fact.
See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (a
non-movant may not defeat summary judgment “by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence”).
Chatman also argues that the district court erroneously denied his
motion to terminate his counsel and his motion to extend the discovery
deadline. The motion to terminate was filed by Chatman’s mother, who was
seeking to either represent her son pro se or obtain different counsel. But with
limited exceptions not applicable here, a pro se, non-lawyer parent or guardian
may not represent the interests of her minor child. See Myers v. Loudon Cnty.
Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005); see also Aduddle v. Body, 277 F.
3
Case: 13-60312 Document: 00512501693 Page: 4 Date Filed: 01/15/2014
No. 13-60312
App’x 459, 462 (5th Cir. 2008). Moreover, at the hearing on the motions, the
district court suggested after extended discussion with the parties that it
would be in the best interests of Chatman to have his current counsel continue
with the representation since the defendants had a motion for summary
judgment pending. Neither Chatman, Chatman’s mother, nor counsel raised
an objection. The court then ordered that the discovery deadline be extended
for Chatman’s counsel to conduct three depositions that had been sought before
the motion to terminate was filed. Under the circumstances here, there was
no abuse of discretion either in the district court’s denial of the motion to
terminate counsel or its handling of the discovery deadline. See, e.g., Matter of
Wynn, 889 F.2d 644, 646 (5th Cir. 1989) (district court’s ruling on withdrawal
of counsel is reviewed for an abuse of discretion); Crosby v. La. Health Serv. &
Indem. Co., 647 F.3d 258, 260 (5th Cir. 2011) (discovery rulings subject to
abuse of discretion review).
AFFIRMED.
4
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282 S.C. 573 (1984)
320 S.E.2d 51
CLO-CAR TRUCKING CO., INC., Respondent,
v.
CLIFFLURE ESTATES OF SOUTH CAROLINA, INC. and Frank V. Bailes, Defendants, of whom Frank V. Bailes, is, Appellant. Appeal of Frank V. Bailes.
0245
Court of Appeals of South Carolina.
Heard June 25, 1984.
Decided August 30, 1984.
*574 James R. Honeycutt, Fort Mill, for appellant.
Stephen R. McCrae, Jr. of Spratt, McKeown & Spratt, York, for respondent.
Heard June 25, 1984.
Decided Aug. 30, 1984.
GOOLSBY, Judge:
The appellant Frank V. Bailes appeals from a circuit court order confirming a special referee's report that found the respondent Clo-Car Trucking Co., Inc., entitled to foreclose a statutory mechanic's lien upon land previously owned by the defendant Clifflure Estates of South Carolina, Inc. The principal question we are asked to determine is whether a lien can exist under Section 29-5-10 of the South Carolina Code of Laws, as amended, where neither the building nor the structure for which the labor was performed is either erected, altered, or repaired.[1]
Between July and October, 1979, Clo-Car provided labor and materials in clearing and grading land for the construction of streets and roads in Arman Knoll and Clifflure Section III, two undeveloped York County subdivisions then owned by Clifflure Estates and thereafter conveyed to Bailes. There is no allegation in the complaint that the clearing and grading *575 were done in connection with the construction or erection of any building or structure upon the land other than "streets and roads," which, as we gather from the record, were never built.
Section 29-5-10 of the Code, as amended, provides in part as follows:
Any person to whom a debt is due for labor performed ... or for materials ... used in the erection, alteration or repair of any building or structure upon any real estate... by virtue of an agreement with ... the owner of such building or structure ... shall have a lien upon such building or structure and upon the interest of the owner thereof in the lot of land upon which it is situated to secure the payment of the debt so due to him....... As used in this section, labor performed... in the erection, alteration or repair of any building or structure upon any real estate shall include the work of making such real estate suitable as a site for such building or structure. Such work shall be deemed to include, but not be limited to, the grading, bulldozing, leveling, excavating and filling of land ..., the grading and paving of curbs and sidewalks and all asphalt paving, the construction of ditches and other drainage facilities and the laying of pipes and conduits for water, gas, electric, sewage and drainage purposes....
Bailes argues that the foregoing statute requires the existence of a building or structure in order for one to obtain a lien. Without a building or structure, he maintains, no lien can attach. Clo-Car, however, claims that there is no requirement that the land contain a building or structure.
Because a mechanic's lien exists only by virtue of statute [Abajian v. Hill, 42 Or. App. 695, 601 P. (2d) 837 (1979)], one's right to a mechanic's lien is wholly dependent upon the language of the statute creating it. Lamoreaux v. Andersch, 128 Minn. 261, 150 N.W. 908, LRA 1915D 204 (1915). Although the rule in several jurisdictions is that mechanic's lien statutes are to be given a strict construction as being in derogation of the common law [see, e. g., Girdler Corp. v. Delaware Compressed Gas Co., 37 Del. 344, 183 A. 480 (1936); Cronin v. Tatge, 281 Ill. 336, 118. N.E. 35 (1917)], we believe the *576 rule in this State is that mechanic's lien statutes, being remedial, are to be given a liberal construction. See National Loan & Exchange Bank of Columbia v. Argo Development Co., 141 S.C. 72, 139 S.E. 183 (1927); 53 Am. Jur. (2d) Mechanics' Liens § 23 at 540(1970). Still, we must take each mechanic's lien statute as we find it [Bushman Construction Co. v. Air Force Academy Housing, Inc., 327 F. (2d) 481 (10th Cir.1964)] for we are not at liberty to depart from the plain meaning of its language. Stone v. Rosenfeld, 141 Conn. 188, 104 A. (2d) 545 (1954).
[E]ven though [we] follow[] the view that the mechanic's lien law is to be construed in a most liberal and comprehensive manner in favor of lien claimants, a claim may not be sustained when that can be done only by a forced and unnatural interpretation of the language of the statute.... [We will] not ... apply the rule of liberal construction to create a lien where none exists or was intended by the legislature.
53 Am. Jur. (2d) Mechanics' Lien § 18 at 535 (1970); Id. § 23 at 542. Statutory liens, then, will not be extended by us to permit a claim not specified by the statute. Guignard Brick Works v. Gantt, 251 S.C. 29, 159 S.E. (2d) 850 (1968). As our Supreme Court stated in Williamson v. Hotel Melrose, 110 S.C. 1, 34, 96 S.E. 407 (1918), "He who sets up such a lien must bring himself fairly within the expressed intention of the lawmakers."
Here, as we noted previously, Clo-Car pursuant to its contract with Clifflure Estates cleared and graded land for the construction of streets and roads. Neither Clo-Car nor anyone else did anything more to the land. At no time, for example, was any gravel or other paving laid upon the cleared and graded areas or any curbs or gutters constructed upon them. Our first inquiry, therefore, is whether land cleared and graded for a street or road constitutes either a "building or structure" within the meaning of Section 29-5-10.
Manifestly, land cleared and graded for a street or road is not a "building." See Black, Sivalls & Bryson v. Operators' Oil & Gas Co., 37 S.W. (2d) 313 (Tex. Civ. App. 1931). As used in Section 29-5-10, the word "building" includes "an erection intended for use and occupation as a *577 habitation, or for some purpose of trade, manufacture, ornament, or use, such as a house, store, church, or shed." 53 Am. Jur. (2d) Mechanics' Liens § 59 at 570-71 (1970); 57 C.J.S. Mechanics' Liens § 21 at 513 (1948).
Land merely cleared and graded also does not constitute a "structure." Cf. Innie v. W & R, Inc., 116 N.H. 315, 359 A. (2d) 616 (1976) (holding that gravel roadways are subject to mechanics' liens); Britt v. McClendon, 213 Tenn. 232, 373 S.W. (2d) 457 (1963) (holding that a road is not a structure under mechanic's lien statute); Village of Niles Center v. Industrial Commission, 371 Ill. 622, 21 N.E. (2d) 745, 747 (1939) (holding that "a common dirt road is not a `structure,'" within meaning of Workman's Compensation Act). The term "structure," as used in Section 29-5-10, means "[s]omething made up of a number of parts that are held or put together in a particular way." THE AMERICAN HERITAGE DICTIONARY at 1308 ((2d) ed. 1982); see Favro v. State, 39, Tex. Cr. R. 452, 46 S.W. 932, 73 Am. St. Rep. 950 (1911); 53 Am. Jur. (2d) Mechanics' Liens § 62 at 574 (1970).
Turning now to the principal question involved in this appeal, our Supreme Court has made it plain that, in order to establish a mechanics' lien, it is necessary that the labor performed should have gone into something that became connected to and part of the land. Just last year in George A.Z. Johnson, Jr., Inc. v. Barnhill, 279 S.C. 242, 306 S.E. (2d) 216, 218 (1983), the Supreme Court stated, in holding that the work of a surveyor did not constitute an "improvement" to real estate within the meaning of Section 29-5-20 of the Code, that "[i]n order to establish a mechanic's lien, it is generally necessary that the labor performed go into something which has attached to and become a part of the real estate, adding to the value thereof." Here, as we pointed out above, nothing attached to and became a part of the land that Clo-Car cleared and graded.
Our statute, it is true, enables one to qualify for a mechanic's lien who makes real estate suitable as a site for the erection of a building or structure by "grading, bulldozing, [or] leveling" of land. But in such a case the lien issues only when the "grading, bulldozing, [or] leveling" of land is done in connection with "the erection, alteration or repair of any building or structure upon [the] real estate" and the lien *578 attaches only to "such building or structure and [to] the interest of the owner thereof in the lot of land upon which it is situated." S.C. Code of Laws § 29-5-10 (1976).
We therefore hold that, under Section 29-5-10, a mechanic's lien cannot attach to land or to an owner's interest in land where the work done is unconnected with and forms no integral part of the erection, alteration, or repair of either a building or a structure of some description. See Yellow Run Coal Co. v. Yellow Run Energy Co., 278 Pa. Super. 574, 420 A. (2d) 690 (1980); Sampson-Miller Associated Companies, Inc. v. Landmark Realty Co., 224 Pa. Super. 25, 303 A. (2d) 43 (1973); Alguire v. Keller, 68 Pa. Super. 279 (1917); Florin v. McIntire, 14 Pa. Co. 127 (1893); Pratt v. Duncan, 36 Minn. 545, 32 N.W. 709, 710 (1887); Annot., 39 A.L.R. (2d) 866, 872 (1955); 57 C.J.S. Mechanics' Liens § 20 at 513 (1948). For us to hold otherwise would amount to a usurpation of the functions of the General Assembly. If the scope of the statute discussed here is to be expanded, the legislature, not this court, should undertake to do it.
Reversed.
SANDERS, C.J., and GARDNER, J., concur.
NOTES
[1] Clo-Car seeks dismissal of Bailes' appeal on the ground that his several exceptions do not comply with Supreme Court Rule 4, Section 6. Because the issue sought to be raised can be readily determined and because the appeal is meritorious, we elect to consider the question presented by his exceptions rather than to dispose of the case on technical grounds. Sandel v. Cousins, 266 S.C. 19, 221 S.E. (2d) 111 (1975); Baker v. Weaver, 279 S.C. 479, 309 S.E. (2d) 770 (S.C. App. 1983).
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50 Ill.2d 302 (1972)
278 N.E.2d 756
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
CHRIS JOYNER et al., Appellants.
No. 43029.
Supreme Court of Illinois.
Opinion filed January 28, 1972.
*303 WESTBROOKS, HOLMAN & E.F. JOHNSON, and GEORGE C. HOWARD, all of Chicago, for appellants.
WILLIAM J. SCOTT, Attorney General, of Springfield, and EDWARD V. HANRAHAN, State's Attorney, of Chicago, (ROBERT A. NOVELLE and THEMIS N. KARNEZIS, Assistant State's Attorneys, of counsel,) for the People.
Reversed and remanded.
MR. JUSTICE DAVIS delivered the opinion of the court:
The defendants, Chris Joyner and J.T. Thomas, were indicted for the murders of Anthony Seyl and James C. Starr. They were tried in the circuit court of Cook County and the jury found them guilty of the murder of Starr and not guilty as to Seyl. They were sentenced to the State *304 Penitentiary for a term of not less than 30 nor more than 60 years.
At about 4:00 A.M., on August 22, 1968, the defendants and three other persons were leaving a drive-in restaurant in a car driven by Joyner. At that time, another car, driven by Starr, in which Seyl was a passenger, was entering the parking lot in the same traffic lane as the Joyner car. The defendants, and the others in their car, were black; Seyl and Starr were white.
There is some dispute as to what transpired. The defendants, and the defense witnesses, testified that Seyl yelled at them in a profane way, to move their car; that Joyner could not back up because another car was behind him; that Seyl then got out of his car, continued his profane language, added racial comments, approached Joyner and stated that "niggers" had no business being there.
As Joyner started to get out of the car, he saw that Seyl was taller and heavier than he, so he kept one foot in the car and they argued. Starr, who was shorter than Seyl, but weighed about 250 pounds, then got out of his car and approached Joyner while using profanity and making similar racial statements, and according to defense witnesses, struck Joyner in the face with a gun. Joyner then pulled a gun out of his belt and shot it in the air. Seyl grabbed him and the two started tussling. Starr also joined in the fracas and, at about this time, Thomas got out of the Joyner car and grabbed Starr's arm. Thomas and Starr then started fighting.
Joyner testified that shortly after he shot into the air, Seyl grabbed his right hand, which held the gun; that while they were fighting, he was thrown to the ground and Seyl was on top of him; that Seyl was holding onto the gun trying to point it toward him (Joyner); and that he was holding the gun tight and it went off twice and Seyl went limp. Joyner further testified that he did not pull the trigger.
*305 Seyl was shot three times, the fatal wound being in the back of his head on the right side. Another bullet inflicted a superficial wound above the right ear, went through the scalp and was not recovered. The third bullet entered the right shoulder.
Thomas and Starr were struggling at the same time. Starr was on top of Thomas, and according to defense witnesses, Starr had the gun in his right hand, and Thomas was holding Starr's right hand with both hands in an effort to keep the gun from being pointed at him. Meanwhile, Starr was hitting Thomas with his left hand.
After Seyl was shot, Joyner ran to the aid of Thomas. He told Starr to get off Thomas and then took hold of Starr and tried to dislodge him. Joyner stated that he grabbed Starr around the shoulder and head with both hands, and was pulling to get him off of Thomas when the gun went off. Starr was shot in the back of the head.
Most of the prosecution witnesses heard six or seven shots. One, a friend or acquaintance of the defendants, testified that he was driving right behind Joyner as they were leaving the restaurant. He heard Seyl and Starr cursing, but apparently heard no racial comments. He saw Starr strike Joyner and the latter pull out his gun. The witness then got out of his car and intended to try to stop the fight. He was about 20 to 25 feet from them. He then saw Thomas get out of the car and thought that Thomas had a gun in his hand, with which he hit Starr. The witness then continued walking around the building toward the restaurant and did not see the parties when the shots were fired, although he heard about six or seven gunshots. One witness testified that he could see Seyl when the shot was fired, and that Seyl was on the pavement with the other individual kneeling over him. He heard the three shots which were fired when the gun was pointed toward Seyl's head.
Another witness testified that she was in a car with her husband and saw the beginning of the incident; that *306 she saw Starr slap Joyner and that Starr had nothing in his hand. She further testified that she saw Joyner raise his hand and fire the gun in the air; that her husband then pulled her down below the car windows; that she heard scuffling near their car and heard three shots; that one of the bullets apparently hit their car and that shortly thereafter they heard three or four more shots. Her testimony of the statements made by Seyl or Starr did not indicate that they made the racial remarks testified to by the defense witnesses. Her husband substantiated her testimony.
We believe that it is necessary to reverse and remand this case for a new trial. The defendants tendered an instruction setting forth the law relative to voluntary manslaughter. The court refused the instruction. The State contends that the instruction was property refused in that it was not in conformance with IPI - Criminal No. 7.05. It is true that the tendered instruction was not in conformance with said IPI instruction but should have been. Ill. Rev. Stat. 1969, ch. 110A, par. 451(a).
However, an examination of the record reveals that no instruction was given relative to the law on voluntary manslaughter. Under the facts of this case, the defendants could have been found guilty of manslaughter under the indictments for murder. People v. Ostrand, 35 Ill.2d 520, 530; People v. Lewis, 375 Ill. 330, 335; Ill. Rev. Stat. 1967, ch. 38, par. 2-9.
The State does not contend that the facts of this case would permit only a conclusion of murder or not guilty by reason of self-defense. And, in homicide cases, if there is evidence in the record which, if believed by the jury, would reduce the crime to manslaughter, an instruction defining that crime should be given, if requested. (People v. Jones, 384 Ill. 407, 412; People v. Papas, 381 Ill. 90, 95.) Occasionally a defendant who raises the defense of self-defense to a charge of murder is convicted of manslaughter. (People v. Green, 23 Ill.2d 584, 588.) The *307 difference between a justified killing under self-defense and one not justified, amounting to voluntary manslaughter, is that in the former instance the belief that the use of force is necessary is reasonable under the circumstances, and in the latter, the belief is unreasonable.
This was a close case factually and it was possible for the jury to find the defendants guilty of murder, not guilty by reason of self-defense, or guilty of manslaughter. The last option should have remained open to the jury and the jury should have been instructed in this regard. IPI - Criminal 7.05 provides: "A person commits the crime of voluntary manslaughter who intentionally or knowingly kills another if, at the time of the killing, he believes that circumstances exist which would justify the killing, but his belief that such circumstances exist is unreasonable." The Committee Note to this instruction states: "When the charge is murder, the defense is self-defense, and the proof supports a voluntary manslaughter instruction and verdict, the order of instruction should be: first, Instruction 7.01 (Murder); second, this Instruction 7.05; third, applicable instruction from Chapter 24 Defenses."
Under the circumstances of this case, the defendants' failure to tender the appropriate IPI instruction was not as important with reference to the fundamental fairness of their trial as the requirement that the jury be fully and properly instructed. The failure to instruct on this important aspect of the case necessitates a remand for a new trial.
The defendants urge several grounds upon which we should enter judgment in this court discharging them. They contend that the verdicts in this case not guilty of the charge of murder of Seyl and guilty of the charge of murder of Starr were inconsistent, and, as such, violated their constitutional guarantee against double jeopardy, and they cite Ashe v. Swenson, 397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189. In Ashe, six men were playing poker when three or four masked persons robbed them. The defendant *308 therein was tried for the robbery of one of the victims. The only issue was the identification of the defendant as one of the robbers. He was found not guilty due to insufficient evidence, and was subsequently tried for the robbery of another of the victims and found guilty. He contended that the verdict of the jury in the first trial constituted a finding that he was not one of the robbers, and that under the doctrine of collateral estoppel that issue could not again be tried.
The Supreme Court agreed and held that collateral estoppel means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit, and that the doctrine of collateral estoppel, applicable to criminal proceedings, is also embodied in the fifth-amendment guarantee against double jeopardy. (397 U.S. at 445, 25 L.Ed.2d at 476, 477.) It further held that the finding in the first trial was necessarily that the defendant was not one of the robbers, and the State could not bring the defendant before a new jury to relitigate that issue.
We find that Ashe has no application to the case at bar where two offenses the murder of Starr and the murder of Seyl were joined for a single prosecution or trial. Thus, there was not, and could not be, a relitigation of an ultimate issue of fact previously determined by a valid final judgment in that the separate crimes were tried in a single proceeding. In such situation, an accused is not compelled to be tried a second time after having been once previously acquitted. It is the identity of the offense, and not the act, which is referred to in the constitutional guaranty against double jeopardy. People v. Hairston, 46 Ill.2d 348, 356-361; People v. Ciucci, 8 Ill.2d 619, 629, aff'd 356 U.S. 571, 2 L.Ed.2d 983, 78 S.Ct. 839.
The defendants contend that the two verdicts are inconsistent and cannot stand. In Hairston, we noted that logical consistency in verdicts is not necessary so long as *309 the verdicts are not legally inconsistent. We approved the view that: "In law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, but arising out of the same state of facts." (46 Ill.2d 348, 362.) The jury may have concluded that in his struggle with Seyl, Joyner might reasonably have believed that the shooting was necessary to prevent great harm to himself, or that the two men in struggling for the gun caused it to go off. At the same time, the jury might have concluded that in their struggle, Thomas, not Starr, had the gun and that when both Thomas and Joyner were joined in combat with Starr, the same justifications were not present as in Joyner's struggle with Seyl. Such conclusions could be justified by the evidence, and it is not a necessary conclusion that the verdicts are even logically inconsistent.
The defendants contend that the evidence conclusively showed that they acted in self-defense. This defense, however, is somewhat at variance with their testimony. Self-defense relates to the use of force which a person reasonably believes necessary to defend or protect himself. (Ill. Rev. Stat. 1967, ch. 38, par. 7-1.) By its very nature it relates to knowingly and intentionally using force to deter another and not to an accidental shooting. (People v. Jersky, 377 Ill. 261, 268.) Yet, Joyner testified that he did not pull the trigger of his gun, except for the first time when he shot into the air. He testified that the shooting of Seyl was the result of the gun going off because he and Seyl were holding it so tight; and as to the shooting of Starr, he testified that he was pulling and shaking Starr at the time the gun went off. Thomas testified that he did not shoot anyone, and that he did not have the gun in his hand, that Starr had it.
It seems clear that Seyl and Starr were the aggressors. Thereafter, however, the evidence is conflicting as to the subsequent altercations and as to who had one of the guns. Whether or not a killing is justified in a given case under *310 the law of self-defense is ordinarily a difficult determination to make where there are plausible facts which give rise to this defense. The decision is not necessarily less difficult because there are a number of witnesses to the incident.
In view of the fact that this case must be sent back for a new trial, certain of the other contentions raised by the defendants should be discussed.
The defendants contend that the court erred in refusing to suppress as evidence the two guns found by the police. The police arrived as the defendants were leaving the parking lot and blocked their exit. The first officer arrived on the scene quickly because he was in the area and heard the gunshots. When he arrived, people were yelling: "They are the ones that did the shooting." The officer ordered the occupants out of the car and directed them to place their hands on the car roof. When all of the occupants were out of the car and the doors open, he noticed one gun on the floor at the base of the front seat by the driver's side and he confiscated that gun.
Another officer testified that after he had been at the scene for some time he went over to the defendant's car; that Thomas and a girl were then in the back seat; that he ordered them out of the car; that he saw the girl attempt to push her purse up against some photographic equipment in the back seat and that he noticed a shiny object in the purse. After Thomas and the girl were out of the car, he searched the purse and found the chrome-plated revolver with the hammer cocked. He had been told by witnesses that two guns were involved. There were three empty chambers in this gun. Thomas testified that when he got into the car after the fight, he gave the gun in his hand to the girl and told her to put it somewhere.
The seizure of both of the guns was justifiable under the plain view doctrine. Both guns were in open view of the officers and were observed under suspicious circumstances. This did not constitute either a search or an unreasonable seizure. (People v. Wright, 41 Ill.2d 170, 174; *311 People v. Pickett, 39 Ill.2d 88, 95; People v. McCracken, 30 Ill.2d 425, 429.) The closer question is relative to the gun found in the purse. The police officer knew there had been a shooting and was told that the defendants had done the shooting. He had been told that there were two guns only one had been seized at that time and the officer saw the girl try to hide the purse and saw a shiny object in it. These facts are sufficient to warrant application of the plain view doctrine.
The guns were properly seized under another theory. While the defendants contend that the second gun, at least, was discovered as a result of a search subsequent to the arrest, we believe that the court was justified in believing otherwise. It appears to be a more reasonable conclusion under the evidence that Thomas and the girl got into the back seat of the car after the fight and the second officer then saw the shiny object in her purse and ordered them out of the car. To the extent that there was a search for either of the guns, the search was incidental to an arrest. The fourth amendment proscribes searches incidental to an arrest only if they go beyond the area from which the arrested persons might obtain weapons or evidentiary items. (Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034.) Under this standard, the search of the entire passenger section of the car was proper.
Totally apart from the right to make a search incidental to the arrest, where there is probable cause for the belief that the contents of a car offend against the law, a warrantless search may be reasonable. The standards applicable to motor vehicles, as opposed to structures, must of necessity be different because of the mobile nature of the former. Chambers v. Maroney, 399 U.S. 42, 48-50, 26 L.Ed.2d 419, 426, 427, 90 S.Ct. 1975; Carroll v. United States, 267 U.S. 132, 153, 69 L.Ed. 543, 551, 45 S.Ct. 280.
In Chambers, the defendants were arrested and the car involved was removed to the police station. The car was *312 then thoroughly searched, without a warrant. In holding that the search did not violate protection afforded by the fourth amendment, the court said that the car in that case could have been searched on the street where it was stopped. There was probable cause for such a search, and this cause continued and still obtained at the police station. The court noted that the mobility of the car remained in that the car itself could not be seized without a warrant. The car could have been removed by someone. Under such circumstances, "* * * there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained." (399 U.S. 42, 52, 26 L.Ed.2d 419, 429, 90 S.Ct. 1975.) If there is probable cause to search a car, there is no constitutional difference between seizing and holding it before presenting probable cause to a magistrate to obtain a search warrant, and permitting an immediate search at the station or garage. Also see: Cooper v. California, 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788; People v. Pickett, 39 Ill.2d 88, 92, 93; People v. Ricketson, 129 Ill. App.2d 365, 374.
We believe that the foregoing authorities also justify the search and seizure of the bullets from the glove compartment. It is true that it is not clear whether the glove compartment was searched at the scene of the arrest, on the way to, or at the police station or garage. Under the circumstances of this case, we believe there was no unreasonable search or seizure in any of those events.
The defendants further complain that the brother of Joyner, also a passenger in the car on the night in question, was improperly impeached by a statement taken without constitutional warnings having been given to him of his right to be silent and his right to counsel. The record appears to refute the contention that he was not given such warnings. Further, we have held that the constitutional rights to be protected by the warnings are personal *313 and may not be relied upon by others to bar the use of such statements. People v. Denham, 41 Ill.2d 1, 4.
The defendants set forth thirty instances in which they claim the trial court committed error in the conduct of the trial. We find but few errors in the conduct of the trial and cannot agree that the trial was conducted in a manner unfair to the defendants. Likewise, we believe that the defendants' numerous complaints with regard to the giving and refusing of instructions will be eliminated by use of IPI instructions.
For the reasons stated herein, the judgments of conviction are reversed and the cause is remanded for a new trial.
Reversed and remanded.
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672 F.2d 910
Jonesv.Duke Power Co.
80-1813
UNITED STATES COURT OF APPEALS Fourth Circuit
10/1/81
W.D.N.C. 501 F.Supp. 713
AFFIRMED
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Filed 7/22/14 In re Maya S. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MAYA S., a Person Coming Under B252723
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK96379
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Appellant,
v.
A.V., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Debra
Losnick, Juvenile Court Referee. Affirmed.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Tracey F. Dodds, Principal Deputy County Counsel for Plaintiff and Appellant.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and
Respondent A.V.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Respondent Luis S.
____________________________
The Department of Children and Family Services (DCFS) appeals the juvenile
court’s dismissal of a dependency petition concerning Maya S., claiming that the court
made a series of erroneous rulings while conducting the hearing on the petition. We
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A.V. is the mother of Maya S., born in 2003, and Luis S. is Maya S.’s father. In
2010, DCFS became involved with the family because of reports that Luis S. had
sexually abused A.V.’s two older daughters, I.V. and Amber V., when they were minors.
Luis S. admitted to sexually touching both of the older daughters, one when she was 14
years old and one when she was about 18 years old; he also admitted having intercourse
with one of the daughters when she was 18 years old.
Upon learning of the sexual abuse, A.V. reported it to the police, threw Luis S. out
of the family home, and began the process of filing for full custody of Maya S. Maya S.
denied any sexual abuse by her father. A.V. agreed not to leave Maya S. alone with her
father. Because of A.V.’s actions, DCFS concluded that she could protect Maya S. from
any risk of harm and closed the referral.
In June 2013, DCFS received a referral alleging that A.V. and Luis S. lived
together once more and that Maya S. was often left unsupervised in the swimming pool
of the apartment complex where they lived. A.V. initially lied to DCFS, stating that
Luis S. did not live in the family apartment; but after DCFS discovered evidence that
Luis S. lived there and Maya S. reported that she lived with both her parents, the parents
admitted that they lived together.
DCFS determined that A.V. had never gone through with the court proceedings to
obtain full custody of Maya S. A.V. questioned the credibility of her older daughters
because they had given conflicting accounts of the alleged abuse. She acknowledged that
it was possible that he had touched them inappropriately, but she believed that he would
not abuse his own biological daughter, Maya S. Luis S. had not undergone any treatment
relating to sexual abuse.
2
DCFS filed a dependency petition alleging that Maya S. came within the
jurisdiction of the juvenile court under Welfare and Institutions Code1 section 300,
subdivisions (b), (d), and (j). Maya S. was detained from her father and released to her
mother.
On the day set for the contested adjudication, DCFS had not secured the presence
of Maya S.’s older half-sisters in court and orally requested a continuance. The court
denied the continuance, and it also denied DCFS’s request that the two witnesses be
permitted to testify by Skype. The court also refused to receive into evidence some social
worker notes and a last-minute information document provided to the court. After
hearing evidence and argument, the court dismissed the dependency petition with
prejudice. DCFS appeals.
DISCUSSION
I. Denial of Continuance
Section 352 governs continuances in dependency hearings. Continuances must be
requested in writing at least two court days prior to the hearing date, unless the court for
good cause entertains an oral motion for a continuance. (§ 352, subd. (a).) A
continuance may be granted only upon a showing of good cause, and only if it is not
contrary to the interests of the minor. (Ibid.) In considering the minor’s interests, the
court is to give weight to the minor’s need for prompt resolution of his or her custody
status, the need to provide children with stable environments, and the damage to a minor
of prolonged temporary placements. (Ibid.) Here, the juvenile court denied DCFS’s
request for a continuance. We review the decision to deny a continuance for an abuse of
discretion (In re Giovanni F. (2010) 184 Cal.App.4th 594, 605), and we find none.
In the present case, DCFS did not file a written request for a continuance, but
requested one orally on the day set for the adjudication hearing. Counsel for DCFS stated
1 All further statutory references are to the Welfare and Institutions Code.
3
that the reason that a continuance was needed was that Maya S.’s older half-sisters, who
were described as “crucial to this case,” lived at a distance (one in Northern California,
and the other in Virginia), and that arrangements needed to be made for them to come to
testify. The juvenile court observed that it had been obvious for two weeks that I.V. and
Amber V.’s testimony would be required, and asked why this issue had not been
addressed when it became apparent that they would be needed to testify. Counsel for
DCFS explained that after hearsay objections were made under section 355, subdivision
(c), meaning that the half-sisters would be required to appear and testify, she had within
“a few days” asked for I.V.’s contact information: “The worker proceeded to contact
I[.V.] but did not get her address until yesterday. Amber [V.], as stated in the report, did
not return any of the [social worker’s] calls” until the day of the hearing.
The juvenile court found that DCFS had failed to establish good cause for the
continuance. The need for these witnesses had been clear for some time, the court
observed: “We knew back when this petition was filed . . . that these were the only two
witnesses, perhaps with the exception of the mother and father. It’s plain on its face who
the Department would need to file and to sustain this petition. It—it is incredulous for
me to imagine that an experienced dependency investigator somehow failed to, while
interviewing an extremely important and necessary witness, did not even concern herself
with where they were in order to subpoena them in. It is hard to imagine. It is very hard
to imagine. [¶] The other, Amber, I don’t know what happened there. The
representation has been made that the mother had both addresses. All they had to do was
ask her. It boggles the mind that this could have happened.” The court stated, “I don’t
think good cause exists. I think the Department and the County Counsel for that matter
had the names of these people and perhaps did not do their due diligence and did not have
them available for trial. Today is the day of trial. And, again, these are not surprise
witnesses.”
The record supports the juvenile court’s assessment. Based on DCFS’s showing,
the juvenile court was well within its discretion to conclude that DCFS had simply failed
to make appropriate arrangements to secure the presence of two witnesses and that it had
4
not demonstrated good cause for a continuance.2 DCFS had been on notice for two
weeks that the hearsay testimony of the two half-sisters would be necessary, because at
that time Luis S. had filed section 355, subdivision (c) objections to hearsay statements
presented in DCFS reports. Yet from the showing DCFS made in court, it did not appear
that DCFS had made diligent efforts to contact these essential witnesses. DCFS never
asked A.V. for the contact information for her daughters. DCFS had been in touch with
I.V., who lived in Northern California, and had obtained a statement from her, but had
not asked for her address. Although clearly it had the ability to communicate with I.V. at
all relevant times, DCFS did not obtain her address until the day before the adjudication.
Accordingly, DCFS did not establish that it had made any prompt efforts to secure I.V.’s
presence in court when the need for it became known. As far as Amber V., DCFS did not
demonstrate that it had made serious or consistent efforts to contact her in advance of the
hearing. The juvenile court asked counsel for DCFS about this: “And are these not
things that are noted before the day of trial? The Department shouldn’t have made
arrangements to have at least the person that lives out of state transported here for her
testimony?” Counsel for DCFS could only respond that the worker had been “trying to
get an address” and that she did not know why A.V. had not been asked for her
daughters’ contact information. DCFS’s showing fell short of demonstrating good cause
for a continuance.
This case is unlike the cases relied upon by DCFS. In In re John M. (2006) 141
Cal.App.4th 1564, 1572, the juvenile court refused a continuance despite a showing of
good cause; and in In re Mary B. (2013) 218 Cal.App.4th 1474, 1481, the language
quoted by DCFS pertains to a request to reopen for the presentation of further evidence.
2 Although the parties do not focus on the fact that the motion was made orally, we
note that DCFS also did not show good cause to merit an oral motion for a continuance,
as it made no showing of why it could not have filed a written motion two court days in
advance of the court hearing. As of two days before the adjudication, DCFS knew the
significance of the two half-sisters as witnesses, and it had not secured their attendance at
the hearing—yet it did not make a motion for a continuance that was obviously necessary
at that time if DCFS was to present a case that Maya S. was at risk of sexual abuse due to
Luis S.’s alleged prior sexual abuse of her older half-sisters.
5
Neither situation is presented here. In In re Hunter W. (2011) 200 Cal.App.4th 1454 at
pages 1460, 1464-1465, both parents had been present in the courthouse but had stepped
out while the court proceeded with a lengthy morning calendar after counsel told father
that he should come back for the afternoon calendar, yet the court refused to delay the
proceedings for two hours until they could be located. The Court of Appeal found that
the request to delay the proceedings while the parents were located was not a request for
a continuance, and noted that even if it were to be considered a continuance request, such
a brief delay could not be considered contrary to the child’s interests. (Id. at pp. 1464-
1465.) Here, DCFS was not asking for a case to be called later in the calendar the same
day; it had made no arrangements to get the witnesses to court at any time, and it did not
make any representations of when the witnesses would be available to testify. I.V.,
DCFS reported, did not drive, and she “was going to communicate with her boyfriend” to
see if he would drive her to court. DCFS made no prediction of how long it would take
to produce Amber V. as a witness. Such an open-ended delay, based on no showing of
good cause, would not advance Maya S.’s interest in a stable environment or in the
prompt resolution of her custody status with respect to her father. (§ 352, subd. (a).)
II. Request to Testify by Skype
DCFS asked the court to permit the half-sisters to testify by Skype in light of the
denial of the continuance. Counsel for A.V. and Luis S. both objected to the use of
Skype. The court declined to permit testimony by Skype based on a series of concerns,
including, inter alia, that (1) DCFS’s request was “a back door approach to asking me to
continue this when we first started,” (2) there was no evidence that the witnesses were
even available, and available information indicated that at least one was not; and (3)
counsel had not presented any authority for the use of Skype testimony.
The juvenile court did not abuse its discretion. There is no evidence in the record
that the witnesses were available to testify by Skype at the time counsel made that request
of the court. Counsel for DCFS had not made advance arrangements with the witnesses
to ensure they would be available that afternoon to testify by Skype, and she could only
6
represent to the court that she could check to see if they were available to testify at that
time. No information was provided to the juvenile court about whether I.V. could be
reached to testify, and the only information about Amber V.’s availability came from
A.V., who advised the court that Amber V. attended night school and therefore would not
be available at that time. Because DCFS made no showing that it was prepared to offer
the testimony it sought to present by Skype, the court did not abuse its discretion in
declining to authorize Skype testimony and to further delay proceedings while counsel
attempted to reach the witnesses.
DCFS argues that the refusal to grant a continuance obligated the court to accept
testimony by Skype: “Because the juvenile court would not allow a continuance to
obtain the physical presence of the witnesses, the court should have allowed virtual
testimony.” DCFS, however, has presented no authority authorizing such testimony in
dependency cases, let alone requiring a court to permit it. There is no statute or court rule
authorizing telephonic or Skype testimony in dependency court proceedings in
California, and the only court of which we are aware that has considered such testimony
in dependency court concluded that it was not an abuse of discretion to refuse to permit
telephonic testimony where the proponent of that testimony had other methods of
presenting the evidence. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176.) As DCFS
made no showing that it was unable to present the live testimony of I.V. and Amber V.
rather than simply being unprepared to do so, In re Nada R. does not compel a different
outcome here.
III. Exclusion of Evidence
DCFS argues that the court erroneously excluded two pieces of evidence at the
adjudication hearing. First, after a social worker testified using her notes to refresh her
recollection, DCFS requested that the notes be admitted into evidence. Luis S. objected
on the ground that the notes had not been provided ahead of time for review. The court
concluded that it was unnecessary to admit the notes into evidence because their author
had testified in person. Even if we assume that it was error to exclude these notes from
7
evidence, DCFS can establish no prejudice here because the social worker testified in
person about the interview that was documented in the notes. DCFS has not identified
any respect in which the social worker’s testimony failed to provide information that
would have been found in the notes.
Second, the court refused to accept a Last Minute Information for the court that
was submitted at approximately 3:30 p.m. on the day of the adjudication hearing. This
document contained Amber V.’s statement that Luis S. had molested and raped her when
she was a minor; her expression of willingness to testify; and her representation that she
lived in Virginia. The court said, “It is the same thing that we have already been
discussing all day long that whether I[.V.’s] or Amber’s statements come in, and this is
the issue that has been raised from the minute we started this hearing. [¶] I don’t feel it
is appropriate to then throw a report out at us at 3:30 and expect us all to read it, not have
objections, not have the person that wrote the report here, and have it part of the record. I
don’t think that is appropriate. [¶] I am respectfully denying the introduction of that
Last-Minute Report.” DCFS argues on appeal that it was prejudicial error to exclude this
report because the information it contained “would have supported the prior requests for
a continuance in order for the witness to testify.” By the time this report was received by
the court, however, it had already heard and ruled on the request for a continuance.
Moreover, the information about Amber V.’s location, her willingness to testify, and the
fact that she would be testifying about allegations that she was a victim of sexual abuse
by Luis S. had already been provided to the court by counsel during the discussion of
whether to grant a continuance. DCFS has not established any prejudicial error in
refusing to receive cumulative evidence bearing on a request for a continuance that had
already been denied.
8
DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
9
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United States Court of Appeals
For the First Circuit
No. 07-1452
BOSTON GAS COMPANY,
d/b/a KEYSPAN ENERGY DELIVERY,
Plaintiff, Appellee,
v.
CENTURY INDEMNITY COMPANY,
Defendant, Appellant.
__________
CERTAIN UNDERWRITERS AT LLOYD'S LONDON;
CERTAIN LONDON MARKET INSURANCE COMPANIES;
TRAVELERS CASUALTY AND SURETY COMPANY;
ASSOCIATED ELECTRIC & GAS INSURANCE SERVICES LIMITED;
AETNA CASUALTY & SURETY COMPANY;
THE HARTFORD INSURANCE COMPANY,
Third-Party Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Gelpi,* District Judge.
ORDER FOR CERTIFICATION OF QUESTIONS
TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
Entered: June 10, 2008
For the reasons stated in our decision in this case, submitted
with this order, we certify the following three questions to the
*
Of the District of Puerto Rico, sitting by designation.
Supreme Judicial Court of Massachusetts:
1. Where an insured protected by standard CGL policy language
incurs covered costs as a result of ongoing environmental
contamination occurring over more than one year and the insurer
provided coverage for less than the full period of years in which
contamination occurred, should the direct liability of the sued
insurer be pro rated in some manner among all insurers "on the
risk," limiting the direct liability of the sued insurer to its
share but leaving the insured free to seek the balance from other
such insurers?
2. If some form of pro rata liability is called for in such
circumstances, what allocation method or formula should be used?
3. If a single insurer in such circumstances is subject to
liability under more than one policy and each policy has a separate
deductible or self-insured retention, should the insured be able to
collect covered losses from a single policy subject only to that
policy's deductible or self-insured retention, or should liability
be reduced by the sum of the applicable self-insured retentions,
effectively allocating total liability across the policies of that
insurer in effect during the contamination period?
This court certifies that these questions are determinative of
the claim in this case and that it appears there is no controlling
precedent in the decisions of the Supreme Judicial Court. We would
also welcome any additional guidance about relevant Massachusetts
law that the Supreme Judicial Court may wish to offer.
The clerk of this court is to forward, under the official seal
of this court, a copy of the certified questions and our decision
in this case, along with the briefs and appendix filed by the
parties, to the Supreme Judicial Court of Massachusetts. In the
interim, we retain appellate jurisdiction.
By Order
Richard C. Donovan,
Clerk
United States Court of Appeals
For the First Circuit
Entered: June 10, 2008
/s/
Michael Boudin,
Chief Judge
United States Court of Appeals
For the First Circuit
cc: Hon. Rya W. Zobel, Ms. Sarah Thornton, Clerk, United States
District Court for the District of Massachusetts, Ms. Susan Mellen,
Clerk, Massachusetts Supreme Judicial Court, Mr. Koepff, Mr.
Fleishman, Ms. Bach, Ms. Maylor, Mr. Anderson, Mr. Kolman, Mr.
Firrolo, Mr. Harding, Mr. Conroy, Mr. Gibbons, Mr. Adams, Mr.
Roberts, Mr. Chaffin, Mr. Shoulkin, Ms. Foggan, Mr. Rivkin, Ms.
Barry, Mr. Gilbert, Mr. Rutkin, Mr. Cellucci, Mr. Goldstein, Mr.
Mekrut, Mr. Heskin, Mr. Kappus, Mr. Pentz, Mr. Nadas, Mr. Trotter,
Ms. Koh, Mr. Quinn, Mr. Snell, Mr. Elkind, Mr. McAndrews, Ms.
Gallagher,
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887 N.E.2d 1028 (2008)
GARCIA
v.
STATE.
No. 49A02-0709-CR-822.
Court of Appeals of Indiana.
May 27, 2008.
MAY, J.
Disposition of case by unpublished memorandum decision. Affirmed.
MATHIAS, J. Concurs.
VAIDIK, J. Concurs.
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47 Ill. App.3d 75 (1977)
361 N.E.2d 778
THE CHICAGO BOARD OF EDUCATION, Petitioner-Appellee,
v.
BONNIE JEAN TERRILE, Respondent-Appellant.
No. 60970.
Illinois Appellate Court First District (2nd Division).
Opinion filed March 22, 1977.
Kathy Hahn, of Chicago, for appellant.
Benito H. Smith, of Chicago, for appellee.
Order reversed.
Mr. JUSTICE STAMOS delivered the opinion of the court:
The instant appeal is from an order of the Circuit Court of Cook County, Juvenile Division, entered May 16, 1974, after a hearing, finding Bonnie Jean Terrile (hereinafter respondent), then 13 years and 9 months of age, guilty of habitual truancy and committing her to the Chicago Parental School.[1]
*76 Respondent raises four issues for our review: (1) whether respondent was denied due process of law by being committed to the parental school without an affirmative showing that commitment is the least restrictive viable means of providing respondent with a minimal level of education; (2) whether respondent was deprived of equal protection of law by being prosecuted, as a resident of Chicago, under a different statutory scheme than an alleged truant who resides outside the limits of Chicago, but within the boundaries of Cook County; (3) whether the terms "habitual truant" and "a fit person to be committed," as used in the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 34-117 et seq., repealed by Public Act 79-365, § 1, effective August 7, 1975) are unconstitutionally vague; and (4) whether evidence properly adduced at the adjudicatory hearing was legally sufficient to support beyond a reasonable doubt the finding that respondent is a fit person to be committed to the parental school.
Patricia Loughran, a truant (or attendance) officer of the Chicago Board of Education filed a petition on April 23, 1974 in the Circuit Court of Cook County, Juvenile Division, alleging that respondent was a habitual truant and praying that the court inquire into the matter and enter such orders as the court might deem fit and proper. The petition alleged that respondent was a minor child of compulsory school attendance age (under the provisions of Ill. Rev. Stat. 1973, ch. 122, pars. 26-1 through 26-11), namely 13 years and 9 months of age; that respondent had habitually, wilfully and without just cause absented herself from attendance at, and has been habitually truant from, the Graham School in which she is enrolled as a pupil, in that, on December 7, 1973, and on December 11, 1973, and on January 11, 1974, and on 48 other school days during the present and prior school year, she had absented herself from attendance at the said school; that respondent's father is unknown; that respondent currently resides with her mother at a specified street address in Chicago; and that respondent's mother does not consent to the commitment of respondent to the Chicago Parental School.
Prior to the adjudicatory hearings on the petition, respondent moved under Supreme Court Rule 215 (Ill. Rev. Stat. 1973, ch. 110A, par. 215) for a physical examination by an impartial medical expert appointed by the court. In support of said motion, respondent testified that her absences, totaling over 100 school days, were due to illness. Approximately two years before she had contracted a kidney ailment which required hospitalization. Since then she continued to suffer effects of the ailment, including vomiting and pains in her head, side, and stomach. She was taking medication and under the care of a physician, one Dr. Knapp. On cross-examination, respondent stated that a medical record reflecting her illness was given to the Graham School principal and notes explaining her absences were given to her teacher. Although most of the absences were *77 for approximately two days, one recent period of absence lasted three months. Respondent was not hospitalized during this lengthy period of absence; rather, she stayed at home and took medication.
The trial judge stated that before an impartial medical examination is ordered, a medical report should be obtained from Dr. Knapp. If the report corroborated respondent's testimony, the judge reasoned, and was not opposed by a medical report from petitioner, Dr. Knapp's report might control the case. Thus, there would be no need for an impartial examination. A continuance was granted respondent to obtain the report.
Respondent was unable to procure a definitive medical statement from Dr. Knapp. The trial judge reserved ruling on respondent's Rule 215 motion, and the cause proceeded to adjudicatory hearing on May 16, 1974.
Petitioner was the first witness called on behalf of the Board. She identified respondent in court and professed knowledge of respondent's attendance at school. The parties orally stipulated that respondent was absent 126 days between September 5, 1973, and the date of the hearing. During the course of her investigation, petitioner and the school nurse went to respondent's home on December 7, 1973. In the presence of respondent's mother, respondent explained her kidney and stomach problems. Papers were left to be filled out by Dr. Knapp regarding respondent's physical condition. These papers were never returned to school authorities. Petitioner returned to respondent's home the next month. Respondent then said she was under a doctor's care but would return to school. In a subsequent phone conversation, Dr. Knapp told the witness that he gave respondent a "complete workup," and that there was no reason why respondent should not be in school. To give respondent an incentive to attend school regularly, the school principal, on March 25, 1973, promoted respondent to the sixth grade and transferred her to the classroom of her choice. Respondent did not return to school after the transfer.
Norbert A. Hodanick, the Graham School principal, also testified for the Board. He discussed the attendance problem with respondent many times. He also made a home visit and requested a doctor's note detailing her medical problems. The note was never received. Respondent's promotion and transfer was her idea; she said she would attend school if the change was made. Her attendance did not improve subsequent to the change despite continuing efforts to help respondent.
On cross-examination, Hodanick stated that respondent was never referred to the doctor employed by the Board. Rather, she was referred to the school nurse. A home-bound teacher had not been assigned to respondent. Normally, when a doctor suggests that there is going to be a long illness, a form is completed and sent to the Board, which assigns such *78 a teacher. As school authorities did not receive a doctor's note, the procedure for assignment of a home-bound teacher for respondent was not initiated.
Respondent moved for a directed verdict at the close of the Board's case. After argument, the motion was denied. Thereafter, Arlene Terrile, respondent's mother, and respondent herself were called as witnesses for respondent.
Mrs. Terrile testified that she sought medical help for her daughter. The first doctor that examined respondent could not find a physical problem and suggested psychiatric help. But the witness did not know how to obtain such help. Three months later a second doctor, Dr. Knapp, treated respondent for her continuing medical problems. Hospital tests and X rays were taken of respondent. The doctor concluded that the difficulties probably stemmed from respondent's nerves; there was also the possibility of an ovarian cyst. Medication was prescribed. On cross-examination, Mrs. Terrile stated that Dr. Knapp did not return the school forms which she gave him. However, he did talk to school authorities on the phone and explained respondent's condition. Dr. Knapp did not recommend that respondent stay home from school.
Under examination by the court, the witness explained that respondent generally remained in her bedroom when home from school. At times she went outside, but she often returned with a stomach ache. Respondent also did a little babysitting for a neighbor. Assuming respondent did not attend Graham School, Mrs. Terrile did not have an alternate plan for her education.
Respondent testified that when she awakened in the morning, her head and side would hurt and she would be unable to go to school. Were it not for her illness, respondent stated she would attend school; but if she could not attend school, she would like a teacher to come to her home. She had never been referred to a physician or psychologist by the attendance officer or the principal.
At the close of all the evidence, respondent renewed her motion for an impartial medical examination. The motion was again taken under advisement. The record does not disclose a ruling on this motion.
The trial judge made a finding of habitual truancy. He then asked the Board's counsel if the parental school had facilities for psychiatric examinations. Counsel responded there were personnel at the parental school to examine respondent medically and psychologically. The trial judge then ordered her commitment.
1 The purpose of the compulsory school attendance law (Ill. Rev. Stat. 1973, ch. 122, pars. 26-1 through 26-11) is to assure that all children receive a minimum education. (People v. Levisen (1950), 404 Ill. 574, 90 N.E.2d 213.) Hence, the only legitimate interest of the State in a habitual *79 truant's commitment to a parental school is to provide the truant with a minimal level of education; punishment is clearly not a legitimate interest. (In re Urbasek (1967), 38 Ill.2d 535, 232 N.E.2d 716.) However, the State may not pursue a governmental purpose, albeit legitimate and substantial, by means which abridge fundamental liberties more broadly than necessary. The purpose must be achieved by means of the least restrictive viable alternative. Shelton v. Tucker (1960), 364 U.S. 479, 5 L.Ed.2d 231, 81 S.Ct. 247; Dunn v. Blumstein (1972), 405 U.S. 330, 31 L.Ed.2d 274, 92 S.Ct. 995.
2 The doctrine of least restrictive alternative has been applied to proceedings for involuntary civil commitment to a mental institution in numerous cases. (See, e.g., Welsh v. Likens (D. Minn. 1974), 373 F. Supp. 487; Lessard v. Schmidt (E.D. Wisc. 1972), 349 F. Supp. 1078, vacated and remanded on other grounds (1974), 414 U.S. 473, 38 L.Ed.2d 661, 94 S.Ct. 713; Dixon v. Attorney General (M.D. Pa. 1971), 325 F. Supp. 966; Covington v. Harris (D.C. Cir.1969), 419 F.2d 617; Wyatt v. Anderholt (5th Cir.1974), 503 F.2d 1305.) A few cases have applied the doctrine in the context of institutionalized juveniles. In re Harris, (Cook County Cir. Ct., Juv. Div., December 22, 1967), reported in 1 Juv. Ct. Dig. 9, 2 Crim. L. Rpts. 2412, involved a 17-year-old, deaf and mute minor who was declared a ward of the court by virtue of having been found a neglected minor. The Juvenile Court held his detention in the Arthur J. Audy home was in violation of the basic policy and purposes of the Illinois Juvenile Court Act, the requirements of 14th Amendment due process of law, and the 8th Amendment prohibition against cruel and unusual punishment. The Audy home had no facilities or personnel for treatment of the minor's problem. It was ordered that less restrictive arrangements be made to tutor the child. The school system was ordered to provide tutoring at home by a trained instructor, or, if private tutoring was not feasible, to arrange transportation for the minor to a public school which offered special classes for the deaf and mute. In Morales v. Turman (E.D. Texas 1974), 383 F. Supp. 53, which involved a class action brought by juveniles who had been adjudicated delinquent and involuntarily committed, the court went so far as to require the State to create alternatives to incarceration:
"The State may not circumvent the constitution by simply refusing to create any alternatives to incarceration; it must act affirmatively to foster such alternatives as now exist only in rudimentary form (foster homes, supervised probation and parole), and to build new programs suited to the needs of the hundreds of children that do not need institutional care (e.g., group homes, halfway houses, day care programs, out-patient clinics, home placements with close supervision). The Constitution of the United States and the laws of *80 the State of Texas require no less of defendants." 383 F. Supp. 53, 125.
Commitment of a habitual truant to a parental school involves a substantial abridgment of personal liberties, including the freedoms of association, movement, and privacy. (See Morales v. Turman.) The laudable governmental purpose of education must be achieved by the means which least infringe upon these liberties.
In the case at bar, the record is devoid of evidence that commitment is the least restrictive alternative. The Board failed to make a showing as to what alternatives to commitment were available, which of these alternatives were investigated, and why the investigated alternatives were not suitable to meet the needs of respondent. (See Lessard v. Schmidt.) There was evidence that respondent has significant medical and psychological problems. The school authorities were made aware of these problems. But respondent was never referred to either the Board's medical staff or psychological staff for an evaluation. Furthermore, except for the general representations made by the Board's counsel immediately prior to entry of the order of commitment, there is nothing in the record to show that the parental school has the facilities or personnel to meet respondent's educational needs.
3 We do not go so far as to order the Board to create new alternatives to commitment for the education of habitual truants. However, to satisfy the constitutional doctrine of least restrictive alternative, the Board must make an affirmative showing that: (1) its existing less restrictive alternatives are not suitable to meet the particular needs of the habitual truant, and (2) confinement in a parental school is a suitable means to meet those needs. Here, the Board failed to prove either of the above propositions.
In view of our holding that the commitment was a denial of due process of law, it is unnecessary for us to deal with the other issues raised by respondent.
For the foregoing reasons, the dispositional order of May 16, 1974, is hereby reversed.
Reversed.
DOWNING, P.J., and PERLIN[*], J., concur.
NOTES
[1] The Board of Governors of State Colleges and Universities, pursuant to Ill. Rev. Stat. 1973, ch. 144, par. 1155 (effective July 18, 1973), established a parental or truant school at Northeastern Illinois University. The Chicago Board of Education then discontinued maintenance of the Chicago Parental School and, until mid-1975, used the Northeastern Illinois Residential School as a parental or truant school for its habitual truants. In mid-1975, State funding for maintenance of the Illinois Residential School was discontinued, and, as a result, operation of said School ceased. Chicago Board of Education v. Kouba (1976), 41 Ill. App.3d 858, 354 N.E.2d 630.
[*] At the time of oral argument of this case Justice John C. Hayes sat with Justices Downing and Stamos. Subsequently Justice Hayes died. Since that time Justice Perlin was designated the third member of the panel and has listened to the tape of the oral argument, has read the brief and excerpts from the record.
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486 F.Supp. 1125 (1980)
UNITED STATES of America
v.
Vincent CIRAULO, a/k/a "Jimmy East," and Thomas Ragusa, Defendants.
No. 78 Cr. 434.
United States District Court, S. D. New York.
February 26, 1980.
*1126 *1127 Robert B. Fiske, Jr., U. S. Atty., S.D. N.Y., New York City, for the U. S.; Peter D. Sudler, Carl T. Solberg, Asst. U. S. Attys., New York City, of counsel.
Joel Winograd, New York City, for defendant Vincent Ciraulo.
Thomas J. O'Brien, New York City, for defendant Thomas Ragusa.
OPINION
EDWARD WEINFELD, District Judge.
The indictment charges the defendants, Vincent Ciraulo and Thomas Ragusa and others named as co-conspirators, with conspiracy to engage in a pattern of racketeering activity, the collection of unlawful debt and collection of extensions of credit by extortionate means. Ciraulo and Ragusa are also charged with substantive offenses of a pattern of racketeering activity and collection of unlawful debt, and extortionate collection of extensions of credit, and obstruction of justice with respect to a Grand Jury inquiry into the other alleged crimes. Ciraulo is charged separately in four counts with income tax offenses based upon income allegedly received as a result of the illegal activities charged in the extortionate credit transaction counts.[1]
The alleged criminal conduct extended over a period beginning in 1973 and terminating in 1976. The overt acts in the conspiracy count set forth threats, violence and physical beatings administered by the defendants to enforce payments of usurious loans, in many instances, alleged to have been made at the rate of 5% per week. The nature of the charges indicates that an extensive investigation was required to unearth the evidence necessary for presentation to the Grand Jury and for a successful prosecution.
The scope of the investigation included the use of electronic surveillance pursuant to Court orders. Following the electronic surveillance, 30 witnesses were called before the Grand Jury. The last government witness who testified with respect to defendants' alleged extortion, racketeering activities, and obstruction of justice appeared before the Grand Jury on December 30, 1976. The indictment, however, was not filed until June 7, 1978. In explanation of this delay, the government contends that during the investigation and prior to the return of the indictment Ciraulo had learned that he was under investigation and had fled the jurisdiction; that intensive efforts to locate him at his residence and usual haunts were unavailing. In this circumstance, the government was of the view that the arrest of Ragusa, whose whereabouts were known would alert Ciraulo and result in his becoming even more inaccessible and perhaps fleeing the country. Accordingly, for these reasons and others advanced in sealed affidavits, the indictment was sealed and remained so until January 21, 1980. On the day following its unsealing both defendants were arrested. The defendant Ragusa now moves to dismiss the indictment upon various grounds in which application Ciraulo joins.
1. Pre-Indictment Delay
The period between the last overt act alleged, November 16, 1976 and the return of the indictment on June 7, 1978, is almost nineteen months, but well within the shortest statute of limitations period of any of the offenses set forth in the indictment.[2] The government, in further explanation of the delay, states that when the defendants' alleged loan sharking activities came to light they triggered an additional investigation with respect to the income allegedly derived therefrom. This investigation was conducted by agents of the Internal Revenue Service, was time-consuming, and was hampered by the absence of Ciraulo, who *1128 was unavailable for interview and preliminary investigation by that agency. As to pre-indictment delay, it is well settled that "the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an `accused'"[3] an event that does not occur until the filing of the indictment. The defendants' principal protection against pre-indictment delay is the statute of limitations under which, as already noted, the shortest period will not expire until November 1981, almost twenty-two months after the defendants' arrest. Accordingly, there is no basis for the requested relief.
However, in Marion the Supreme Court noted that the due process clause of the Fifth Amendment may be brought into play to afford a defendant relief upon a showing that the pre-indictment delay "caused substantial prejudice to [a defendant's] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused."[4] But there has been no such showing in this case. First, the delay was the result of the nature of the various charges which necessarily required substantial investigation and also was due to an additional investigation of alleged income tax violations arising out of the initial inquiry. Indeed, the Supreme Court has held that a good faith investigative delay, even if it resulted in some prejudice, does not constitute a due process violation.[5] Second, the defendant Ciraulo's absence from the jurisdiction, whether he absconded, as the government contends, or as he now asserts was available but not found,[6] justified the government's continued efforts to locate him before arresting Ragusa since, in the light of his undoubted close relationship to Ciraulo, there was a strong probability that Ragusa's arrest would have alerted Ciraulo wherever he was and made him even more inaccessible.
Finally, defendants have made no showing of prejudice. The conclusory statement by Ragusa's attorney "[u]pon information and belief the delay was purposeful and unreasonable" and that "the passage of time has weakened the memory of potential witnesses and eliminated evidence which would otherwise have been available to him" is without the slightest evidential support. In the absence of such proof and considering the government's good faith efforts to locate the missing defendant and the return of the indictment twenty months before the earliest applicable statute of limitations, the Court concludes that defendants' motion to dismiss the indictment based upon alleged prejudicial pre-indictment delay must be denied.
2. Post-Indictment Delay
Similarly, defendants' motion for dismissal of the indictment on the ground of the nineteen-month delay between its filing on June 7, 1978 and its unsealing in January 1980 followed by defendants' arrest the next day must be denied. Ciraulo's claim borders on the frivolous since he was a fugitive until his arrest. As to the defendant Ragusa, again reliance is placed upon his attorney's "information and belief" affidavit referred to above. But chapter and verse as to any potential witness whose memory may have been dimmed by the passage of time or whom may now be unavailable has not been submitted; who these alleged witnesses may be is not stated; nor is the general nature of their purported testimony set forth. Upon the argument of this motion defense counsel did allude to a witness who had committed suicide, *1129 but it developed that the deceased was a potential government witness and the prejudice, if any by reason of the death of the witness, was against the government's interest and not that of the defense.
The government, in its affidavit in opposition to this branch of the motion, has convincingly established that the post-indictment delay in large measure was due to the efforts to locate the missing co-defendant Ciraulo and its belief that to have arrested the available Ragusa would have alerted Ciraulo, made his apprehension more difficult and might well have led him to flee the country. In the circumstances here presented, "it was realistic for the Government to believe that an arrest of one defendant would lead to the flight of one or more of the others"[7] and there is no basis to support Ragusa's claim of violation of his right to due process of law. Moreover, even if Ragusa had established substantial actual prejudice (which he has not), the government has met its burden of showing strong prosecutorial interest.[8]
3. Motion for Severance
Ragusa also moves for a severance based upon the inclusion in the indictment of the tax counts against Ciraulo. It is clear that with respect to the first seven counts in which both defendants are named a joint trial is proper since these involve "the same act or transaction or ... the same series of acts or transactions. ..."[9] The crimes are provable by the same evidence; it would serve judicial economy, without causing substantial prejudice, to try them together. Indeed, not to try them together would be a gross waste of judicial effort and time.[10]
Ragusa alternatively moves under Rule 14 for a severance of the income tax counts against Ciraulo on the ground that he would be prejudiced by a spill-over effect if these where to be tried together with the other counts in which he is jointly named with Ciraulo. The claim of prejudice is without substance. The evidence upon which the government necessarily will rely to establish the tax counts is the very evidence that will be introduced in presenting its case against both defendants that by loan shark interest rates and extortionate methods they derived income. The income tax charges directly flow from the substantive loan sharking and extortion charges made against both defendants. And it is only because Ragusa is a resident of the Eastern District that he is not charged with income tax violations in the instant indictment. With a plethora of evidence to be offered against both defendants in support of the conspiracy, racketeering, extortion and loan sharking activities which would necessarily include proof of monies received by both defendants, there is no basis for any prejudicial spill-over effect. Ragusa has failed to support his claim of substantial prejudice by a joint trial.[11]
4. Motion to Suppress
The defendants' motion to suppress the fruits of electronic surveillance upon the ground of lack of probable cause is denied. A fair reading of the affidavits *1130 reflects substantial probable cause for the issuance of the orders in question.
NOTES
[1] Ragusa was not charged with income tax offenses because venue in his case is in the Eastern District of New York where he resides and where it is stated such a prosecution is contemplated.
[2] Conspiracy, obstruction of justice and extortion counts each have a five-year limitation period (18 U.S.C. § 3282). A six-year limitation period governs the tax counts (26 U.S.C. § 6531) and a ten-year limitation applies to the racketeering charge (18 U.S.C. § 1961(5)).
[3] United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971).
[4] Id. at 324, 92 S.Ct. at 465 (citation omitted).
[5] United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see United States v. Mejias, 552 F.2d 435 (2d Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977).
[6] The Court indicated that if an appropriate affidavit was filed by Ciraulo with respect to this contention it would conduct a fact hearing on the issue. The defendant failed to file either an affidavit or request such a hearing and, accordingly, there is no basis for not accepting the government's contention.
[7] United States v. Watson, 599 F.2d 1149, 1153 (2d Cir. 1979).
[8] Cf. United States v. Lovasco, 431 U.S. 783, 793, 97 S.Ct. 2044, 2050, 52 L.Ed.2d 752 (1977).
[9] Fed.R.Crim.Proc. 8(b). The Rule provides:
JOINDER OF DEFENDANTS. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
[10] See United States v. Corr, 543 F.2d 1042, 1052 (2d Cir. 1976) (citing cases); United States v. Kahaner, 203 F.Supp. 78, 80-81 (S.D. N.Y.1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 62, 11 L.Ed.2d 65 (1963).
[11] See United States v. Papadakis, 510 F.2d 287, 299-300 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. DeSapio, 435 F.2d 272, 280 (2d Cir. 1970), cert. denied, 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971).
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐1396
ELIJAH REID,
Plaintiff‐Appellant,
v.
MARC BALOTA, Correctional Officer,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:16‐cv‐01378‐JBM‐JEH — Joe Billy McDade, Judge.
____________________
ARGUED APRIL 28, 2020 — DECIDED JUNE 16, 2020
____________________
Before EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.
RIPPLE, Circuit Judge. Elijah Reid, an inmate in the Illinois
prison system, brought this action under 42 U.S.C. § 1983
against a correctional officer. He alleged that the officer used
excessive force against him in violation of the Eighth
Amendment of the Constitution of the United States as made
2 No. 19‐1396
applicable to the States by the Fourteenth Amendment.1 The
district court dismissed the action, concluding that Mr. Reid
had not exhausted the prison’s administrative remedies be‐
fore filing the lawsuit, as required by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a). We now conclude that the
prison’s communications were so obscure that they made
further steps of its administrative process unknowable and,
thus, unavailable to Mr. Reid. We therefore vacate the judg‐
ment of the district court and remand the case for further
proceedings consistent with this opinion.
I.
BACKGROUND
A. Facts
We present the facts in the light most favorable to
Mr. Reid. King v. McCarty, 781 F.3d 889, 895 (7th Cir. 2015).
In his complaint, Mr. Reid, who adheres to a vegan diet for
religious reasons, alleged that when he told Officer
Marc Balota that he had been given the wrong meal, the Of‐
ficer reacted by slamming a fist full of keys against one of
Mr. Reid’s hands, breaking it. Officer Balota told Mr. Reid,
who is African‐American, “you [are] going [to] get w[hat]
the f*** I give you n****r.”2
Mr. Reid complained about this treatment through the
prison’s grievance process. According to the version of the
Illinois Administrative Code in effect at the time, that pro‐
cess has three steps: (1) the inmate submits a grievance to a
1 See Rhodes v. Chapman, 452 U.S. 337, 344–45 (1981) (internal citation
omitted).
2 R.31‐2 at 1.
No. 19‐1396 3
counselor and grievance officer; (2) the grievance officer
tenders a report and recommendation to the warden, who
“shall advise the offender of the decision in writing within
two months after receipt of the written grievance, where rea‐
sonably feasible under the circumstances”; and (3) if unsatis‐
fied with the warden’s decision, the inmate may appeal to
the Administrative Review Board by providing copies of the
grievance officer’s report and the warden’s decision. ILL.
ADMIN. CODE tit. 20, §§ 504.810, 504.830(d), 504.850. Alterna‐
tively, when there is a risk of imminent or irreparable harm,
an inmate may “request a grievance be handled on an emer‐
gency basis by forwarding the grievance directly” to the
warden. Id. § 504.840.
On the day of the incident, July 28, 2016, Mr. Reid filed
two grievances. He filed a “standard grievance” (i.e., the first
of the three steps) with the prison’s grievance officer, who
logged it as having been received on August 2. He also filed
a copy of this grievance with the warden on an emergency
basis, the alternative step when a situation involves a risk of
imminent or irreparable harm.
On August 9, Mr. Reid received a communication about
each of his grievances. The warden returned the emergency
grievance with a checked‐box response stating that “an
emergency is not substantiated [and Mr. Reid] should sub‐
mit this grievance in the normal manner.”3 Mr. Reid also re‐
ceived a memorandum, which the grievance officer had
completed on a stock form. On the memorandum, the griev‐
ance officer checked the box to indicate that she was return‐
ing the grievance to Mr. Reid because the “issue has been
3 R.31‐2 at 4.
4 No. 19‐1396
received on 8/02/16. No justification for further considera‐
tion.”4 She added two notations, writing that the “[i]ssue
[had been] previously submitted to Internal Affairs for re‐
view” and “[r]esponse pending per I.A.”5
Mr. Reid submitted an appeal to the Administrative Re‐
view Board on August 15. He attached both the grievance
officer’s memorandum and the returned emergency griev‐
ance. The Board returned the appeal to Mr. Reid, stating
that, in order to appeal, he should have provided two specif‐
ic documents—a copy of his standard grievance, including
the counselor’s response, if available, and the “Doc. 0047”
form, which the warden issues and which sets forth the re‐
sponses of the grievance officer and the warden. The Board
did not check the box that stated, “Please return the attached
grievance or correspondence with the additional information
requested.”6
On August 24, Mr. Reid filed with the warden a second
emergency grievance. In it, he repeated his allegations
against Officer Balota and protested that no one had re‐
sponded to the standard grievance he previously had sub‐
mitted. Without ruling on the merits of the grievance, the
warden again denied that there was any emergency.
Three weeks later, on September 15, the Board returned
Mr. Reid’s subsequent appeal. The Board, once again, in‐
structed Mr. Reid that to appeal, he needed to attach his
standard grievance and a Doc. 0047 form bearing responses
4 Id. at 7.
5 Id.
6 Id. at 8.
No. 19‐1396 5
from both the grievance officer and warden. As before, the
Board did not check the box that directed Mr. Reid to “re‐
turn the attached … correspondence with the additional in‐
formation requested.”7 The Board added a note informing
Mr. Reid that “if [he had] not forwarded [his] grievance
to … grievance officer, [his] grievance [would] be considered
untimely.”8
B. Procedural History
In October 2016, Mr. Reid brought this action against Of‐
ficer Balota and several other prison officials. Because
Mr. Reid is a prisoner, the district court screened his com‐
plaint under 28 U.S.C. § 1915A and dismissed it for failing to
state a claim upon which relief could be granted. Mr. Reid
appealed, and we vacated the dismissal of his Eighth
Amendment claim against Officer Balota on the ground that
Mr. Reid stated a claim by alleging that the officer had in‐
flicted pain without any penological justification. Reid v.
Melvin, 695 F. App’x 982, 984 (7th Cir. 2017) (unpublished).
On remand, Officer Balota moved for summary judg‐
ment. He asserted the affirmative defense that Mr. Reid had
failed to exhaust the prison’s administrative remedies before
filing suit, as required by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a). Mr. Reid, through counsel, countered
that administrative remedies were unavailable because the
absence of any response from the grievance officer and war‐
den prevented him from completing the administrative pro‐
cess.
7 Id. at 3.
8 Id.
6 No. 19‐1396
The district court entered summary judgment for Of‐
ficer Balota, ruling that Mr. Reid had failed to exhaust his
administrative remedies. Regarding the standard grievance,
the court explained that the prison had responded to it
through the grievance officer’s memorandum, but Mr. Reid
“abandoned any further efforts at exhaustion” because it
was “not clear whether he included this [memorandum] in
his appeal to the [Administrative Review Board].”9 The court
also determined that Mr. Reid, who filed suit “only nine
weeks after submitt[ing] the standard … grievance,” acted
too soon because an Internal Affairs “investigation was
pending,” and the warden had “two months to make a deci‐
sion” after receiving a recommendation from the grievance
officer.10 As for the emergency grievances, the court ruled
that the Board gave Mr. Reid “an opportunity to exhaust”
when it told him to attach specific documents to his appeal,
and he “failed to take advantage” of that procedure.11
Mr. Reid filed a motion to alter the judgment under Fed‐
eral Rule of Civil Procedure 59(e). He argued that (1) he at‐
tempted to appeal the grievance officer’s memorandum, but
the Administrative Review Board returned that appeal to
him as insufficient because it did not include a Doc. 0047
form with the grievance officer’s and the warden’s respons‐
9 R.37 at 3.
10 Id. at 5–6. Illinois law provides that the warden should respond to a
written grievance within two months “after receipt of the written griev‐
ance.” ILL. ADMIN. CODE tit. 20, § 504.830(d). The district court misstated
the deadline as arising two months from the grievance officer’s recom‐
mendation.
11 Id. at 8 (internal quotation marks omitted) (internal citations omitted).
No. 19‐1396 7
es; and (2) he was prevented from moving forward in the
administrative process by the warden’s failure to communi‐
cate a final decision about his standard grievance—a re‐
sponse that should have appeared on a Doc. 0047 form. The
district court denied the motion, reiterating that Mr. Reid
did not wait long enough for the warden to respond. This
appeal followed.
II.
DISCUSSION
The sole issue before us is whether Mr. Reid exhausted
the prison’s available administrative remedies before bring‐
ing this action. Specifically, we must consider whether any
further administrative avenue was open to Mr. Reid, given
the prison’s confusing responses and its failure to resolve his
standard grievance. Because exhaustion is an affirmative de‐
fense, Officer Balota bears the burden to show that remedies
were available and that Mr. Reid failed to use them. Hernan‐
dez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016). We review de
novo the grant of summary judgment for failure to exhaust.
Id.
The Prison Litigation Reform Act prohibits an inmate
from suing over prison conditions under § 1983 “until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). To exhaust available remedies, a prisoner
must comply strictly with the prison’s administrative rules
by filing grievances and appeals as the rules dictate.
See Woodford v. Ngo, 548 U.S. 81, 90–91 (2006); Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002).
The exhaustion requirement, however, “hinges on the
‘availab[ility]’ of administrative remedies: An inmate, that is,
8 No. 19‐1396
must exhaust available remedies, but need not exhaust una‐
vailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (al‐
teration in original). An administrative scheme can be “una‐
vailable” to a prisoner when a prison fails to respond to a
prisoner’s grievance and, in so doing, prevents that prisoner
from exhausting administrative remedies. Dole v. Chandler,
438 F.3d 804, 809 (7th Cir. 2006) (internal quotation marks
omitted). An administrative scheme also can be “so opaque
that it becomes, practically speaking, incapable of use.” Ross,
136 S. Ct. at 1859. Mere ambiguity might not make the ad‐
ministrative process unavailable; “[w]hen an administrative
process is susceptible of multiple reasonable interpretations,
… the inmate should err on the side of exhaustion.” Id. But if
“no ordinary prisoner can make sense of what it demands,”
the process is “unknowable” and thus unavailable. Id. (in‐
ternal quotation marks omitted).
Recently, in Williams v. Wexford Health Sources, Inc., 957
F.3d 828 (7th Cir. 2020), we emphasized the importance of
clear administrative schemes for processing prison grievanc‐
es. “Grievance procedures must be transparent. This helps
everyone: the institution is better able to investigate and re‐
solve grievances if they are presented under a
well‐understood system, and inmates are better able to com‐
ply with institutional expectations if the rules are clear.” Id.
at 834. In Williams, an Illinois prisoner appealed the denial of
his emergency grievance, and the Administrative Review
Board returned the appeal in the same manner it did
Mr. Reid’s: the Board checked the box stating that the appeal
was missing specific documents, but not the one stating that
the prisoner should resubmit the appeal with those docu‐
ments. We concluded that the prisoner, who did not resub‐
No. 19‐1396 9
mit the appeal (or file a new standard grievance) had ex‐
hausted the remedies that were available to him. Id.
In the present case, we conclude that the prison’s re‐
sponses so obscured the process that there was no conceiva‐
ble next step for Mr. Reid to take. First, the grievance of‐
ficer’s memorandum gave him conflicting messages—that
there was “[n]o justification for further consideration” of his
issue and that the issue had been “submitted to Internal Af‐
fairs for review.”12 Yet Mr. Reid “err[ed] on the side of ex‐
haustion”—as required of a prisoner who receives an am‐
biguous response to his grievance—and appealed that mem‐
orandum to the Administrative Review Board. Ross,
136 S. Ct. at 1859.
When he did so, the Board’s response further obscured
the next steps Mr. Reid was supposed to take. The Board
told him that his appeal was missing specific documents but,
like the Board in Williams, did not check the box specifying
that those documents needed to be provided or that some
explanation needed to be given for their absence. If, as Of‐
ficer Balota contends, exhaustion required that Mr. Reid ex‐
plain to the Board why certain documents were missing
from his appeal, nothing in the record shows that Mr. Reid
could have known about that requirement. See Williams, 957
F.3d at 833–34 (holding that an Illinois prisoner exhausted
“all the steps the prison offer[ed]” when the Board returned
the appeal as insufficient but did not check the box directing
the prisoner to provide missing documents).
12 R.31‐2 at 7.
10 No. 19‐1396
Even so, Mr. Reid submitted yet another grievance via
the only channel that had drawn a response from the prison.
He filed an emergency grievance, this time explaining that
no one had responded to his standard grievance. When the
warden and the Administrative Review Board returned that
grievance to him, neither mentioned a pending standard
grievance or an ongoing Internal Affairs investigation. Based
on those responses, it would have been impossible for
Mr. Reid to know whether the grievance officer was still
processing his standard grievance. Confusing matters fur‐
ther, the Board told Mr. Reid that if he had not yet submitted
a grievance through the normal channels, any newly submit‐
ted grievance would be considered untimely. That directive
ignored the substance of Mr. Reid’s grievance, which com‐
plained about the handling of his previously filed standard
grievance. It also conveyed to Mr. Reid that no further step
was available to him: his appeals had been returned to him,
he was told not to file a new grievance, and—as far as he
could tell—his standard grievance had been either lost in the
shuffle or resolved against him.
Officer Balota submits that Mr. Reid simply did not wait
long enough for the warden to respond to his standard
grievance. He relies on Ford v. Johnson, 362 F.3d 395, 400
(7th Cir. 2004), in which we ruled that a grievance process
with a similar aspirational timeline—there, it was sixty days,
“whenever possible”—does not necessarily trigger an in‐
mate’s right to sue once that period had passed. Because the
regulation governing Mr. Reid’s process, ILL. ADMIN. CODE
tit. 20, § 504.830(d), stipulates that the warden must respond
“within 2 months … where reasonably feasible,” Of‐
ficer Balota argues that Mr. Reid needed to give the griev‐
ance officer (and, relatedly, the warden) more than two
No. 19‐1396 11
months to review the merits of his grievance and provide
her recommendation.
However, unlike Ford, in which the inmate sued upon the
passage of the “aspirational” deadline despite knowing that
the prison was investigating his appeal, 362 F.3d at 400,
Mr. Reid had no reason to believe that anyone was looking
into his grievance. As we have already discussed, the re‐
sponses from the Administrative Review Board suggested
that no one was. In any case, Officer Balota cannot overcome
the fact that no prison official ever responded with an an‐
swer to Mr. Reid’s standard grievance. See Dole, 438 F.3d at
809; see also Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.
2002) (“[W]e refuse to interpret the PLRA ‘so narrowly as to
… permit [prison officials] to exploit the exhaustion re‐
quirement through indefinite delay in responding to griev‐
ances.’”) (second and third alterations in original) (quoting
Goodman v. Carter, 2001 WL 755137, at *3 (N.D. Ill. July 2,
2001)). Without that response, no further administrative av‐
enue was opened to Mr. Reid.
Conclusion
The prison’s communications with Mr. Reid so obscured
the administrative process that it became unknowable and,
thus, unavailable to him. Therefore, having concluded that
Mr. Reid satisfied the exhaustion requirement under the
Prison Litigation Reform Act, we VACATE the judgment
and REMAND for additional proceedings.
VACATED and REMANDED
| {
"pile_set_name": "FreeLaw"
} |
877 A.2d 1129 (2005)
163 Md. App. 129
Thomas C. WHITE
v.
PRINCE GEORGE'S COUNTY, Maryland et al.
No. 01293 September Term 2004.
Court of Special Appeals of Maryland.
July 6, 2005.
*1130 Ellis J. Koch, Rockville, for Appellant.
Rajesh Kumar (David S. Whitacre, County Atty., on the brief), Upper Marlboro, for Appellee.
Panel: HOLLANDER, SALMON, and KRAUSER, JJ.
HOLLANDER, Judge.
Claiming that he was the victim of police brutality during his arrest on April 23, 2001, Thomas C. White, appellant, filed suit on March 18, 2004, in the Circuit Court for Prince George's County, against appellees Prince George's County (the "County") and four of its police officers: Mark Elie; Herbert Pettiford, Jr.; Barba; and Evans.[1] As amended in May 2004, *1131 appellant alleged a violation of his civil and constitutional rights; battery and the use of excessive force; and negligent entrustment of a police dog and "continuing police powers" to Officer Elie. Appellees moved to dismiss, claiming appellant failed to provide the requisite notice under the Local Government Tort Claims Act ("LGTCA"), Md. Code (1974, 2002 Repl. Vol.), §§ 5-301 et seq. of the Courts and Judicial Proceedings Article ("C.J.").
After the court granted appellees' motions and then denied appellant's motion to alter or amend, White noted this appeal. He presents two questions, which we quote:
I. Did the Trial Court commit error by failing to find substantial compliance with the 180 day notice requirement of Courts and Judicial Proceedings (CJ) [§] 5-304?
II. Did the Trial Court commit error by failing to find good cause for not following the strict requirements of CJ [§] 5-304?
For the reasons that follow, we shall affirm.
FACTUAL SUMMARY
Appellant was arrested by Prince George's County Police officers on April 23, 2001, and was charged with first degree burglary.[2] The arrest led appellant to file the underlying suit, alleging police brutality during the arrest.
In response to a motion to dismiss filed by the County alleging, inter alia, that the County was misnamed, appellant filed an Amended Complaint on May 10, 2004.[3] White alleged that, after he "peacefully" surrendered, he was handcuffed and ordered to "lay on the floor." Then, according to appellant, "without cause or provocation," Officer Elie "released his [police] dog and ordered the dog to bite." Appellant averred that the dog "violently bit" him, "tearing flesh from [appellant's] leg." When appellant attempted to stand, Officer Elie struck him in the head with a baton, "splitting open" appellant's head and inflicting a wound that required twenty-four stitches. Although Officers Pettiford, Barba, and Evans "were present during the entire incident," White claimed that they "took no action to prevent Officer Elie from causing injury" to appellant.
Because the Amended Complaint failed to allege compliance with the statutory notice requirement in C.J. § 5-304, appellees moved to dismiss the suit.[4] In response, appellant filed a "Motion to Entertain Suit," claiming substantial compliance with the notice requirement and good cause for failing to follow "the strict requirements of C.J. § 5-304(a)."[5]
With his Motion to Entertain Suit, appellant submitted an undated affidavit. He averred, in part:
2. After the incidents alleged in the Complaint, I filed a Complaint with the Prince George's County Police.
3. I was visited by Sgt. Allen W. Dis[c]hinger who stated that he was from Internal Affairs and that my complaint was being investigated.
*1132 4. I was told to take no action while the investigation was taking place.
5. I received subsequent visits by Sgt. Allen W. Dis[c]hinger when I was again assured that the matter was being investigated and I would be advised.
6. I took no action as instructed and awaited action to be taken by the police.
7. Any delay in this matter was induced by the representations of the police.
White also submitted a copy of the business card of Sergeant Dischinger.
Thereafter, the County filed an Opposition to the Motion to Entertain Suit. Appellees also submitted an undated affidavit of Sergeant Allen Dischinger, who averred, in part:
1. I am currently employed as a sergeant for the Prince George's County police department, assigned to the homicide unit. I have been a Prince George's County police officer for 23 years and a detective for most of that time.
2. I was the iad investigator for the case referenced in Plaintiff's Complained [sic] filed in the above-captioned case.
3. I spoke with the Plaintiff on two occasions both at the Prince George's County Detention Center. The first visit was on 7/24/01, during which time I took a taped witness statement from him. I also visited the Plaintiff on 8/1/01 for purposes of photographing him.
4. At no time did I indicate to the Plaintiff that he was "to take no action" while the investigation was taking place.
The exhibits reflect that, in July of 2001, appellant filed with the Prince George's County Police Department (the "Department") a complaint of police brutality in connection with his arrest in April of 2001. In response, on July 18, 2001, Captain Ellis Jones, Commander of the Department's Internal Affairs Division ("I.A.D."), wrote a letter to appellant.[6] The letter-head on the stationery said, "The Prince George's County Government." Across the bottom of the letter, it stated: "HEADQUARTERS: 7600 Barlowe Road, Palmer Park, MD 20785," which is the primary address for the Department. The letter stated:
This is to advise you that your complaint was received by this Department on July 18, 2001. Since your complaint alleges brutality on the part of a member of this Department, it must meet certain conditions mandated by State law before any investigation can be conducted.
On July 1, 1977, the State legislature amended the "Law Enforcement Officers' Bill of Rights," Article 27, Section 727-734D of the Annotated Code of Maryland. Section 728B(4) states:
"A complaint against a law enforcement officer, alleging brutality in the execution of his duties, may not be investigated unless the complaint be duly sworn to by the aggrieved person, a member of the aggrieved person's immediate family, or by any person with first hand knowledge obtained as a result of the presence at and observation of the alleged incident, or by the parent or guardian in the case of a minor child, before an official authorized to administer oaths. An investigation which could lead to disciplinary action under this subtitle for brutality may not be initiated and an action may not be taken unless the complaint is filed within 90 days of the alleged brutality."
Therefore, the Police Department is prohibited, by law from conducting any investigation in regard to the brutality portion of your complaint due to the fact *1133 it has not been duly sworn to and notarized. Sgt. Allen W. Dischinger #972, will be contacting you to arrange a meeting to have your complaint notarized.
In the event you have any questions concerning the matter, please do not hesitate to contact any member of the Internal Affairs Division at (301) 896-2660.
Thereafter, on July 24, 2001, Sergeant Allen W. Dischinger, an I.A.D. investigator, met with appellant and took a recorded statement from him. He then photographed appellant on August 1, 2001.[7] No evidence was presented showing that appellant had any further contact with the Department or I.A.D. personnel.
In the meantime, on July 31, 2001, appellant completed and signed a notarized form with respect to the incident of April 23, 2001,[8] titled "Prince George's County Police Department Complaint Against Police Practices." In the space provided to describe the incident, appellant wrote, "I've Already Provided A Statement!" The top of the form included two preprinted addresses for the Department. One was for the Headquarters located in Palmer Park, and the other was for the Internal Affairs unit in Clinton. In the section asking for the names of the officers "involved" in the alleged brutality incident, appellant wrote "CPL Elie," "PFC Barba," "P.O. Pettiford," and "P.O. Evans."
In a "Memorandum Opinion of the Court" dated July 7, 2004, the court granted the Motion to Dismiss, without a hearing. The court said, in part:
Before the Court is the question of whether or not the Plaintiff in the above-referenced case provided the required notice or had good cause not to, before bringing an action for unliquidated damages against Defendants as outlined under the Local Government Tort Claims Act....
* * *
As outlined by the Court of Appeals, "the purpose of the notice requirements under the LGTCA is to ensure that the local government is made aware of its possible liability at a time when it is able to conduct its own investigation and ascertain, for itself, from evidence and recollection that are fresh and undiminished by time, the character and extent of the injury and its responsibility for it." Moore v. Norouzi, 371 Md. 154, 807 A.2d 632 (2002).
"Relevant to determining the amount of diligence with which an `ordinarily prudent person' under the circumstances of [his/her case] would prosecute his or her claim is the underlying purpose of the notice statute." Moore v. Norouzi, 371 Md. 154, 807 A.2d 632 (2002).
In the case sub judice, the Plaintiff asserts by affidavit that he filed a complaint with the Prince George's Police department and that [Sergeant Dischinger] advised him to take no action while the matter was being investigated. He also states that the same officer visited him and assured him that the matter was being investigated. Plaintiff offers the above as proof that he substantially complied with the notice requirements of the LGTCA and that he had good cause not to follow the strict statutory requirements thus the court may still entertain his suit.
The LGTCA statute explicitly states that actions for unliquidated damages may not be pursued unless notice is given within 180 days after the injury. In this instance, notice was not given until approximately two years later.[[9]]
*1134 While the Plaintiff's affidavit offers his reasoning for his untimely filing, relying on the internal affairs officer's advice, the Plaintiff offers no other evidence of any communications with the internal affairs officer.4 Additionally, he offers no evidence of an ongoing police investigation that would warrant excusing his lack of diligence. This court finds that an `ordinarily prudent person' would have, and should have, done more to ensure his action was proceeding in a timely manner.
Opinion and Order of the Court
Under the circumstances of this case the Plaintiff has failed to meet his burden of demonstrating good cause and substantial compliance. Viewing this case in []the light most favorable to the Plaintiff the court finds that he has offered no direct evidence of specific dates, times, or communications to support his allegations so that the court could justifiably infer that any of the Defendants were put on notice within the statutorily prescribed time limits. As such, the court need not address the issue of whether or not the Defendants have been prejudiced by lack of the required notice.
4. [Appellant] attached a copy of Sergeant Dischinger's business card to his affidavit, stating that Sergeant Dischinger gave it to him during a visit. While this may be the case, this by itself is not demonstrative evidence rising to the level of demonstrating good cause for failure to follow the statute.
On the same date, July 7, 2004, the court issued an "Order of Court," granting appellees' motions to dismiss the case. That ruling prompted appellant to file, on July 14, 2004, a "Motion to Alter and Amend Judgment (Rule 2-534) or in the Alternative to Revise (Rule 2-535)." With that motion, appellant submitted the letter of July 18, 2001, from the Department and his notarized complaint of July 31, 2001, along with an affidavit referring to the exhibits. Then, on August 3, 2004, White noted this appeal.
Thereafter, on August 5, 2004, appellees filed an opposition to the revisory motion. The court denied "Plaintiff's Motion for Reconsideration" by "Order of Court" dated August 9, 2004.
DISCUSSION
I.
Preliminarily, we shall address appellees' contentions that 1) appellant noted an appeal solely from the circuit court's ruling of July 7, 2004, and that 2) because appellant did not appeal from the denial of his revisory motion, it is not appropriate for us to consider the exhibits that appellant attached to his motion to alter or amend. Appellees assert:
Had Appellant noted an appeal from the Court's denial of his "Motion to Alter or Amend judgment (Rule 2-534) or in the Alternative to Revise (Rule 2-535)" these exhibits might properly be considered in an appeal from that judgment. They should not, however, be considered in a review of the Court's original judgment dismissing the case.
(Emphasis in original).
When, as here, a motion to alter or amend is filed within ten days after entry of judgment, the filing of the motion stays the time for filing an appeal until thirty days after the court rules on the revisory motion. Southern Mgmt. Corp. v. Taha, 378 Md. 461, 494 n. 13, 836 A.2d 627 (2003); Unnamed Attorney v. Attorney Grievance Comm'n, 303 Md. 473, 486, 494 A.2d 940 (1985); Pickett v. Noba, Inc., 114 Md.App. 552, 557, 691 A.2d 268 (1997), on reconsideration, 122 Md.App. 566, 714 *1135 A.2d 212 (1998), cert. denied, 351 Md. 663, 719 A.2d 1262 (1998); Stephenson v. Goins, 99 Md.App. 220, 225-26, 636 A.2d 481, cert. denied, 335 Md. 229, 643 A.2d 384 (1994). As we explained in Sieck v. Sieck, 66 Md.App. 37, 44-45, 502 A.2d 528 (1986), a motion to revise a court's judgment, "however labeled, filed within ten days after the entry of judgment will be treated as a Rule 2-534 motion...."
Of import here, if a notice of appeal is filed before the court has ruled on a post-judgment motion, the appeal "will not lose its efficacy ... but its effect will be delayed until the trial court rules on the pending motion...." Edsall v. Anne Arundel County, 332 Md. 502, 506, 632 A.2d 763 (1993). Because appellant filed his revisory motion within ten days of the Order granting the motion to dismiss, appellant is entitled to a review of both the motion to dismiss and the motion to alter or amend. This includes the exhibits that appellant appended to his revisory motion.
II.
In order to pursue a claim for unliquidated damages under the LGTCA, the claimant must comply with the 180-day notice requirement set forth in C.J. § 5-304. It states, in part:
§ 5-304. Actions for unliquidated damages.
(a) Notice required. Except as provided in subsection (c) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury.
(b) Manner of giving notice.
* * *
(2) In ... Prince George's County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county solicitor or county attorney.
(3) The notice shall be in writing and shall state the time, place, and cause of the injury.
(c) Waiver of notice requirement. Notwithstanding the other provisions of this section, unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown the court may entertain the suit even though the required notice was not given.
(Emphasis added).
Appellant concedes that he did not strictly comply with the notice provision of the LGTCA. Nevertheless, he contends that the court erred when it failed to find that he substantially complied with C.J. § 5-304. In his view, the County was put on notice when he timely filed his brutality complaint with the Department.
With respect to the matter of substantial compliance, appellant observes that 1) he timely sent a letter to the Department in July 2001, which was received on July 18, 2001; 2) the Department commenced an investigation and, to that end, Sergeant Dischinger met with appellant on two occasions, all within the statutory notice period; 3) based on the letterhead that appears on the Department's letter of July 18, 2001, it "would lead a reasonable person to believe that Prince George's County is on notice." He adds: "How can the County and the officers ... complain that they were not on notice to allow a timely investigation when they acknowledged the complaint and commenced the investigation?"
Appellees respond that the court below did not err in dismissing the suit based on appellant's failure to comply with C.J. § 5-304, because appellant did not provide the requisite notice within 180 days. In their *1136 view, the complaint filed with the Department did not constitute substantial compliance because "there is no allegation that it was a notice of claim for unliquidated damages, as required by C.J. § 5-304," nor was there any "allegation or evidence that the police department was authorized to investigate or settle tort claims on behalf of Prince George's County."
As the Court of Appeals explained in Housing Auth. v. Bennett, 359 Md. 356, 358, 754 A.2d 367 (2000), "[u]ntil the twentieth century, local governments generally had no immunity under Maryland common law in either tort or contract actions." See Rios v. Montgomery County, 157 Md.App. 462, 475, 852 A.2d 1005 (2004), affirmed, 386 Md. 104, 124, 872 A.2d 1 (2005). In the early twentieth century, however, the Court of Appeals recognized that local governments had "immunity in certain types of tort actions based on activity categorized as `governmental' but had no immunity in tort actions based on activity categorized as `private' or `corporate' or `proprietary.'" Bennett, 359 Md. at 359, 754 A.2d 367. Thus, "shaped largely by judicial decisions and by statutes dealing with specific agencies or specific matters," id. at 358, 754 A.2d 367, local governments enjoyed limited immunity from tort liability for "nonconstitutional torts based on activity categorized as `governmental.'" Id. at 361, 754 A.2d 367. See DiPino v. Davis, 354 Md. 18, 47, 729 A.2d 354 (1999) ("A local governmental entity is liable for its torts if the tortious conduct occurs while the entity is acting in a private or proprietary capacity, but, unless its immunity is legislatively waived, it is immune from liability for tortious conduct committed while the entity is acting in a governmental capacity"); Baltimore Police Department v. Cherkes, 140 Md.App. 282, 314, 780 A.2d 410 (2001) (stating that "local governmental bodies have common law governmental immunity only for acts that are governmental, and not for private or proprietary acts, and they do not have immunity from liability for State constitutional torts"); see also Harford County v. Town of Bel Air, 348 Md. 363, 373, 704 A.2d 421 (1998); Ashton v. Brown, 339 Md. 70, 101, 660 A.2d 447 (1995).
With the enactment of the LGTCA, codified at C.J. §§ 5-301, et. seq., the Legislature sought to "`provide a remedy for those injured by local government officers and employees acting without malice and in the scope of their employment.'" Faulk v. Ewing, 371 Md. 284, 298, 808 A.2d 1262 (2002) (citation omitted). At the same time, it sought to ensure "that the financial burden of compensation is carried by the local government ultimately responsible for the responsible public officials' acts." Ashton v. Brown, 339 Md. at 108, 660 A.2d 447.
C.J. § 5-304, set forth above, contains the notice requirement that applies to such tort actions. The Court of Appeals recently ruled that the 180-day notice requirement of § 5-304 is constitutional under both federal and state law. Rios v. Montgomery County, 386 Md. 104, 120, 135, 136, 872 A.2d 1 (2005).
As the Court explained in Neuenschwander v. Washington Suburban Sanitary Commission, 187 Md. 67, 76, 48 A.2d 593 (1946), overruled on other grounds as stated in Arnold v. Prince George's County, 270 Md. 285, 311 A.2d 223 (1973), the notice requirement derives from the Legislature's authority to grant or deny an individual the right to pursue a legal action against a municipal corporation. The Court said:
When the Legislature creates a municipal corporation as part of the machinery of government of the State, it is within its province to adjust the relative rights of the corporation and the citizens. The Legislature has thus the power to enact a statute requiring that, before suit for *1137 damages shall be instituted against a municipal corporation, a written notice of the claim shall be presented to the municipal authorities within a specified period after injury or damage is sustained.
Neuenschwander, 187 Md. at 76, 48 A.2d 593 (internal citations omitted).
The notice requirement under C.J. § 5-304 serves an important purpose. It is designed
"to protect the ... counties of the State from meretricious claimants and exaggerated claims by providing a mechanism whereby the ... county would be apprised of its possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, `sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.'"
Moore v. Norouzi, 371 Md. 154, 167-68, 807 A.2d 632 (2002) (citations omitted); see Rios, 386 Md. at 126, 872 A.2d 1; Faulk, 371 Md. at 298-99, 808 A.2d 1262; Williams v. Maynard, 359 Md. 379, 389-90, 754 A.2d 379 (2000). Among other things, the notice provision enables a governmental defendant to budget properly, to set aside appropriate reserves, and to account for payment of claims under complex accounting rules and tax statutes. Rios, 157 Md.App. at 477, 852 A.2d 1005.
As the Court of Appeals recently reiterated, the notice requirement under the LGTCA is "a condition precedent to maintaining an action...." Rios, 386 Md. at 127, 872 A.2d 1; see Faulk, 371 Md. at 304, 808 A.2d 1262. Indeed, a suit under the LGTCA is "fatally flawed if the condition is not satisfied." Rios, 386 Md. at 127, 872 A.2d 1. See Waddell v. Kirkpatrick, 331 Md. 52, 59, 626 A.2d 353 (1993) (defining a "condition precedent" as "`a condition attached to the right to sue at all'") (citation omitted).
The notice requirement operates independent of the limitations period that applies generally to the filing of suit. Serving timely notice is essential to preserve a claimant's right to file suit at any time during the limitations period. In contrast to the tolling of limitations, nothing in the LGTCA expressly provides for tolling the notice period. See American Gen. Assur. Co. v. Pappano, 374 Md. 339, 351, 822 A.2d 1212 (2003); Piselli v. 75th Street Medical, 371 Md. 188, 215, 808 A.2d 508 (2002); Frederick Road Ltd. Ptshp. v. Brown & Sturm, 360 Md. 76, 95-6, 756 A.2d 963 (2000); Doe v. Maskell, 342 Md. 684, 696, 679 A.2d 1087 (1996), cert. denied, 519 U.S. 1093, 117 S.Ct. 770, 136 L.Ed.2d 716 (1997).
There are circumstances, however, when a litigant is excused from strict compliance with the notice obligation, so long as "the purpose of the notice statute was fulfilled by substantial compliance with the statutory requirements." Williams, 359 Md. at 390, 754 A.2d 379; see Jackson v. Board of County Comm'rs, 233 Md. 164, 167-168, 195 A.2d 693 (1963). In Faulk, 371 Md. at 299, 808 A.2d 1262, the Court explained:
Where the purpose of the notice requirements is fulfilled, but not necessarily in a manner technically compliant with all of the terms of the statute, this Court has found such substantial compliance to satisfy the statute. Moore, 371 Md. at 171-72, 807 A.2d 632; Maynard, 359 Md. at 389-90, 754 A.2d 379; Jackson, 233 Md. at 167, 195 A.2d 693. Substantial compliance "requires some effort to provide the requisite notice and, in fact, it must be provided, albeit not in strict compliance with the statutory provision." Moore, 371 Md. at 171, 807 A.2d 632. See also Williams v. Montgomery *1138 County, 123 Md.App. 119, 131, 716 A.2d 1100 (1998), aff'd sub nom. Williams v. Maynard, 359 Md. 379, 754 A.2d 379 (2000) (noting that notice must be given even if it is deficient in some respects). In Condon v. Univ. of Maryland, 332 Md. 481, 496, 632 A.2d 753 (1993), we said that substantial compliance is "such communication that provides ... `requisite and timely notice of facts and circumstances giving rise to the claim.'" Id. (quoting Conaway v. State, 90 Md. App. 234, 246, 600 A.2d 1133 (1992)).
Relying on Moore, appellant maintains that the filing of his complaint with the Department constituted substantial compliance, because it satisfied the purpose of the notice provision. His reliance on Moore is misplaced.
Moore was a consolidated appeal, arising from separate vehicular accidents involving Montgomery County employees and two claimants, Moore and Mendelson. Moore, 371 Md. at 158-59, 807 A.2d 632. Within days of the accident, the claimants discussed the accidents with representatives of Trigon Administrators, Inc. ("Trigon"), Montgomery County's third party claims administrator. Id. at 162-64, 807 A.2d 632. Trigon's representative identified himself as the claims administrator for the county and advised that "formal notification" had been received. Id. at 165, 807 A.2d 632. However, notice was not provided directly to the County, in the manner directed by the statute. Id. at 159, 807 A.2d 632; see LGTCA, § 5-304(b)(1)(iii). Because the claimants failed to notify the County Executive, as required by the statute, Montgomery County argued that they failed to satisfy the statutory notice requirement under the LGTCA. Moore, 371 at 170, 807 A.2d 632.
The Court recognized that "strict compliance with the notice provisions of the LGTCA is not always required; substantial compliance may suffice," id. at 171, 807 A.2d 632, "even though not all of the details prescribed have been complied with." Id. However, of import here, the Court underscored that "[t]here must be some effort to provide the requisite notice and, in fact, it must be provided, albeit not in strict compliance with the statutory provision." Id. Moreover, the defective notice must satisfy "the purpose" of the notice provision. Id.
The Court then considered whether "notice to a third-party claims administrator, acting on behalf of a local government," constituted substantial compliance with the notice requirements of the LGTCA § 5-304. Id. at 158, 807 A.2d 632. The Court defined "substantial compliance" as "`such communication that provides the State "requisite and timely notice of facts and circumstances giving rise to the claim."'" Id. at 172, 807 A.2d 632 (citations omitted). In its view, "`[s]ubstantial compliance turns on ensuring that the County [or local government] has sufficient actual notice to perform a proper and timely investigation.'" Id. at 178, 807 A.2d 632 (citation omitted; alteration in Moore).
In the Court's view, the parties substantially complied with the notice statute, given the nature of the County's system of claims administration and the control that the County exercised over Trigon's activities. Id. at 177, 807 A.2d 632. The Moore Court stated:
[W]here the tort claimant provides the local government, through the unit or division with the responsibility for investigating tort claims against that local government, or the company with whom the local government or unit has contracted for that function, the information required by § 5-304(b)(3) to be supplied, who thus acquires actual knowledge within the statutory period, the tort claimant has substantially complied with the notice provisions of the LGTCA. *1139 This test is fair and has the advantage of taking account of the reality of how tort claims actually are handled.
Id. at 178, 807 A.2d 632 (emphasis added). See also Faulk, 371 Md. at 307-08, 808 A.2d 1262 (concluding that plaintiff's timely notice to town's insurer, rather then the town, constituted substantial compliance with statutory notice requirement, because notice was provided in sufficient time to enable the town to conduct a "timely investigation"; the "`evidence and recollection [were] fresh and undiminished by time'"; and the insurer was notified "that Plaintiff expected some type of compensation from its insured, the Town of Easton, for his personal injuries and property damage") (citation omitted).
Based on the foregoing, we are satisfied that appellant did not substantially comply with the statutory notice requirement by filing a complaint with I.A.D. about police brutality. Unlike in Moore, appellant did not provide notice to an entity with responsibility for investigating tort claims lodged against the County. Instead, appellant sent notice to the Department's Internal Affairs Division. The content of that complaint pertained to White's allegation of police brutality, not to tort claims arising from such conduct.
Moreover, the investigation that ensued was conducted by and for I.A.D., under a wholly separate procedure. Indeed, as the Department's letter of July 18, 2001 reflects, the Department indicated that appellant's brutality claim was governed by the statute pertaining to the Law Enforcement Officers' Bill of Rights ("LEOBR") under Md. Code (1999 Repl. Vol.) Art. 27, §§ 727-734 D.[10] Notice to I.A.D. simply was not notice to the County Attorney or County Solicitor, as required by C.J. § 5-304(b)(2).
To be sure, in Moore, the Court indicated that substantial compliance may be found when notice is provided to the entity responsible for investigating the tort claim, rather than to the party named in the statute. That is not what happened here, however. Indeed, there was no indication of a relationship between I.A.D. and the County Attorney or County Solicitor, akin to the working relationship between Montgomery County and Trigon. To the contrary, there was no evidence that the Department actually communicated with the County Attorney or County Solicitor, so as to apprise the County of its potential liability and enable it to conduct a thorough investigation while memories were still fresh. Moreover, unlike in Moore, the Department was not charged with the duty to investigate tort claims against the County, nor did the Department construe appellant's complaint of police brutality as a tort claim against the County. See Faulk, 371 Md. at 307, 808 A.2d 1262 (observing that it was "important to us in Moore, in accepting the claimants' substantial compliance arguments, that the intertwined information technology systems of the two existed, that Trigon had authority to settle unilaterally claims up to $2500 per claim, and that Trigon conducted extensive factfinding and other negotiations with the claimants, on behalf of the County").
The recent case of Chappelle v. McCarter, 162 Md.App. 163, 873 A.2d 458 (2005), supports our conclusion that there was no substantial compliance here. Chappelle, an employee of the Police Athletic League ("PAL"), brought suit in 2002 against an employee of the Baltimore City Police Department, alleging battery and stalking, violation of constitutional rights, and other claims, as a result of events that occurred *1140 in January 2000. Chappelle, 162 Md.App. at 165, 873 A.2d 458. The circuit court granted the defendant's motion to dismiss or for summary judgment based on plaintiff's failure to give the notice required by the LGTCA. Id., at 166-67, 873 A.2d 458.
On appeal, Chappelle averred that she had substantially complied with the notice requirement, because the City Solicitor received notice of her claim in March 2000, when she filed a workers' compensation claim which "she erroneously had asserted against Baltimore City in the belief that the Police Athletic League was an agency of that municipality." Id., at 171, 873 A.2d 458. Writing for this Court, Judge Rodowsky said: "[A]bsent the precise notice, we think it unlikely that a notice of a workers' compensation claim would be couched as a notice of a claim for unliquidated damages, but the latter is the type of notice required by CJ § 5-304(a)." Id. at 171-72, 873 A.2d 458
III.
Alternatively, appellant argues that he showed good cause for any delay in notice, because he "was instructed by the police to take no action while the investigation was ongoing." He asserts: "A reasonably prudent man, having been instructed on what to do by the police would do just as instructed." Appellant states:
There was a specific affirmative representation by the police to Mr. White while under incarceration to take no action. Mr. White obeyed the police instruction. His action in accord with that instruction constitutes good cause for delay....
The standard is what would the ordinarily prudent man in the same or similar circumstances do. That fictional person in this case is an incarcerated person under the complete control of the prison system. A person who, for purposes of this motion, was brutalized and beaten by the police. What does this prudent person do under those circumstances other than obey the police instructions to give them time to investigate? It is only after an unreasonable passage of time that he can be held to recognize that something is amiss and he better bring suit.
Appellees counter that the court did not abuse its discretion in declining to find good cause. They assert: "Failure to obtain counsel (and, thus, failure to be aware of the notice requirement) does not constitute the requisite `good cause' necessary to excuse a plaintiff from complying with the statute."
In appellees' view, White's affidavit "was remarkable for its vagueness and lack of detail." They claim that, even if Sergeant Dischinger told White that he should "`take no action'" during the investigation, White's affidavit "never says what action it is that Plaintiff would have taken had Dischinger not told him to `take no action'; nor does it tell us what action Sgt. Dischinger was referring to, or even what Plaintiff thought he was referring to at the time the statement was made." Appellees continue:
Is it reasonable to infer, from the face of the affidavit, that Plaintiff would have filed a notice of action for unliquidated damages with the County Attorney within the statutory time period (or even seen an attorney within that time frame), had he not been instructed to "take no action"? The fact that Plaintiff fails to plainly state as much in the affidavit suggests that this is not a reasonable inference, but merely the argument of counsel on behalf of a client that simply cannot make such a statement.
When, as here, a litigant has not substantially complied with the notice provision, C.J. § 5-304 permits a waiver of the notice requirement, so long as there is *1141 "good cause" for the dereliction. Moore, 371 Md. at 179, 807 A.2d 632; Heron v. Strader, 361 Md. 258, 270, 761 A.2d 56 (2000). Under C.J. § 5-304(c), if the plaintiff has met the burden of establishing good cause to excuse the failure to comply with the notice requirement, the defendant must "affirmatively show that its defense has been prejudiced" by untimely notice.
Maryland courts evaluate good cause based upon "`whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.'" Heron, 361 Md. at 271, 761 A.2d 56 (quoting Westfarm Associates v. Washington Suburban Sanitary Commission, 66 F.3d 669, 676-677 (4th Cir.1995)); see Rios, 386 Md. at 141, 872 A.2d 1 (same); Moore, 371 Md. at 179, 807 A.2d 632 (concluding that, by relying on the representations of Trigon, claimants acted as would an "ordinarily prudent person" under similar circumstances); Hargrove v. Mayor and City Council of Baltimore, 146 Md.App. 457, 463, 807 A.2d 149 (2002) (recognizing that "good cause is a test `of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances'") (citation omitted); Bibum v. Prince George's County, 85 F.Supp.2d 557, 565 (D.Md. 2000)("`[T]he test for [the] existence [of good cause] is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.' Ignorance of the statutory requirement does not constitute good cause.") (citations omitted; alterations in Bibum).
In Rios, 386 Md. at 121, 872 A.2d 1, the Court made clear that "[t]he question of whether good cause for a waiver of a condition precedent exists is clearly within the discretion of the trial court." See also Heron, 361 Md. at 270, 761 A.2d 56. An appellate court will not disturb the trial court's determination absent an abuse of that discretion. Rios, 386 Md. at 144, 872 A.2d 1; Moore, 371 Md. at 168, 807 A.2d 632; Heron, 361 Md. at 271, 761 A.2d 56.
What we said in Hargrove is pertinent:
"The discretion with which all courts determine whether good cause has or has not been shown is broad. It involves the exercise of one of the most important judicial functions. A ruling made in the exercise of that discretion is entitled to the utmost respect. It should not be overturned by an appellate court unless there is a clear showing that the discretion has been abused that the result falls outside its broad limits."
146 Md.App. at 463, 807 A.2d 149 (quoting Madore v. Baltimore County, 34 Md.App. 340, 346, 367 A.2d 54 (1976)).
Heron, 361 Md. 258, 761 A.2d 56, is noteworthy. There, the plaintiff sued Prince George's County under the LGTCA, claiming malicious prosecution, false arrest, and false imprisonment. Id. at 260-61, 761 A.2d 56. The case arose from the plaintiff's arrest on various charges on August 24, 1997. After he was acquitted of all the charges on March 3, 1998, id. at 261, 761 A.2d 56, the plaintiff filed a notice of claim under the Act on April 30, 1998. Id. The Court of Appeals held that the notice of claim was untimely as to the false arrest and false imprisonment claims, and that the plaintiff lacked good cause for the late filing. Id. But, it found that the notice was timely as to the malicious prosecution claim, id., because that cause of action did not accrue until the acquittal. Id. at 265, 761 A.2d 56.
With regard to the belated notice, the Court held that the trial judge did not *1142 abuse his discretion in finding that "the pendency of a criminal case was not sufficient to constitute good cause for late filing." Id. at 271, 761 A.2d 56. The Court agreed with the trial judge that "an ordinarily prudent person, in Petitioner's circumstances, would have been able, through the exercise of reasonable diligence, to file such a Notice of Claim." Id.
In its discussion of good cause, the Court considered the factors that have generally been found to constitute good cause for a belated notice. It said:
While courts generally consider a combination of factors, circumstances that have been found to constitute good cause fit into several broad categories: [1] excusable neglect or mistake (generally determined in reference to a reasonably prudent person standard), [2] serious physical or mental injury and/or location out-of-state, [3] the inability to retain counsel in cases involving complex litigation, and [4] ignorance of the statutory notice requirement.
Id. at 272, 761 A.2d 56 (footnotes and internal citations omitted). In Rios, the Court added that good cause has also been found to exist where representations made by local government representatives are "misleading." Rios, 386 Md. at 141-42, 872 A.2d 1.
The Court of Appeals decided Rios, 386 Md. 104, 872 A.2d 1, after the parties in this case submitted their appellate briefs. Rios is instructive as to the issue of good cause. If the trial court in Rios did not abuse its discretion in failing to find good cause, we are satisfied that the court below did not abuse its discretion.
Ms. Rios, a Bolivian immigrant with limited ability to speak or read English, received prenatal care through the Montgomery County Health Department. Her baby was born at Holy Cross Hospital, which is not operated by Montgomery County. Unknown to Ms. Rios, her obstetrician was a County employee. Id. at 112, 872 A.2d 1. At birth, it was apparent that the child sustained an injury to his shoulder. Id. at 113, 872 A.2d 1. Ten years later, Ms. Rios gave notice to the county of a medical malpractice claim. Id. The Court of Appeals upheld the trial court's determination that the delay was not excused by good cause because the claimant did not exercise due diligence. Id. at 117, 872 A.2d 1.
Writing for the Court, Judge Battaglia declined to find that a person's minority status constitutes good cause per se. Id. at 142, 872 A.2d 1. Moreover, the Court said, id. at 144-45, 872 A.2d 1:
The fact that the trial court, in its discretion, was not persuaded that Ms. Rios's limited English proficiency or immigrant status constituted good cause does not rise to the level of an abuse of discretion as it was not a determination that was exceptional, extraordinary, or egregious especially under the circumstances where Spanish-speaking nurses and translated forms were available. Therefore, we are not persuaded that Petitioner's immigrant status or limited English proficiency constitute good cause per se and find that the trial court did not abuse its discretion in considering it with the totality of the facts in this case.
* * *
The Circuit Court considered Luis's minority, the ten-year delay in filing the claim, Ms. Rios's limited knowledge of English, available means to investigate, the lack of any form of investigation during the ten years after Luis's injury, and the fact that the County did not impede or hamper any possibility of investigation or conceal material facts. From all of those factors, the court concluded that good cause did not exist. We do not find that such a determination *1143 is beyond the view that a reasonable person would take of the facts of the case sub judice. As such, we conclude that the trial court did not abuse its discretion in determining that good cause did not exist for waiving the notice requirement under the LGTCA.
Bibum, 85 F.Supp.2d at 565, is also instructive as to the issues of substantial compliance and good cause, because the case is factually similar to the one at bar. Bibum alleged that a Prince George's County Police Officer used excessive force in arresting him in 1997. Id. at 560. About a month after his arrest, he completed a form titled "Prince George's Police Department Complaint Against Police Practices," and sent it to the police department by regular mail. Id. at 564-65. One year later, Bibum filed suit against Prince George's County and the police officer, alleging assault, battery, malicious prosecution, false arrest, and state and federal constitutional claims. Id. at 560-61. He claimed that he substantially complied with the notice requirement when he completed the "form and mail[ed] it, by regular mail, to either the police headquarters or the police internal affairs department within a month after his arrest." Id. at 565. He also argued that he had good cause for the delay because he was misled by the police department. The federal court disagreed. Id.
The federal court held that a complaint of police brutality filed with the Department did not substantially comply with the notice requirement under C.J. § 5-304(b)(2), requiring, in Prince George's County, that the notice be furnished to the County Solicitor or County Attorney. Id. Moreover, it rejected the claim of good cause to excuse the failure to file the requisite notice, even though Bibum asserted that the police never told him that filing a complaint with the Department was insufficient to protect his rights. It said, id. at 565:
When Bibum went to the Prince George's County police station to complain about Officer Zelaya he was given a complaint form, which he completed and filed, but was not advised by the police that separate action would be required to preserve his right to sue the county or its employees. This, Bibum claims, was "misleading and deceptive," and would lead a reasonable person to believe that any notice requirement would be satisfied by returning the completed form. Bibum asserts that because he was misled and deceived, he had good cause for not complying with the statutory notice requirement The court, however, does not agree that Bibum was deceived. There is no allegation of an affirmative misrepresentation by police department employees, nor does the court believe there is an affirmative duty on the part of the police department to provide unsolicited advice (or solicited advice for that matter) to complainants regarding the steps they must take to preserve a claim against the county or one of its employees.
Further, the Bibum court reasoned:
That Bibum simply did not know about the formal notice requirement of the LGTCA does not constitute good cause for his failure to comply. An ordinarily prudent person in a similar situation would have made his own investigation into the existence of any formal notice requirements or consulted an attorney on the matter. Thus, the court finds that good cause does not exist for waiving the LGTCA's notice requirement.
Id. at 565-66 (footnote omitted). See also Downey v. Collins, 866 F.Supp. 887, 888, 890 (D.Md.1994) (concluding that claimant did not show "good cause" for belated *1144 notice, even though he had no memory of underlying event that led to injury, and it took three months to locate a witness to a police officer's beating; plaintiff still had three months in which to file timely notice, and the plaintiff's decision to wait until the county supplied him with evidence did not excuse the delay).
Claiming that he established good cause, White attempts to distinguish Bibum. He points out that, unlike in Bibum, Sergeant Dischinger affirmatively told him "to take no action while the investigation was ongoing"; he was an "incarcerated person under the complete control of the prison system"; and he was to be advised about the investigation. Thus, appellant contends that he was induced by Dischinger not to take action until the investigation was completed, and he relied on that representation.[11] He asserts:
In Bibum, a police complaint was filed and the fact that the police did not inform Mr. Bibum of the fact that other notice had to be given was not found to constitute "good cause." In the case at bar, precisely the opposite has occurred. There was a specific affirmative representation by the police to [appellant] while under incarceration to take no action. [Appellant] obeyed the police instruction. His action in accord with that instruction constitutes good cause for delay.
Appellant relies primarily on four exhibits: his affidavit; the letter from the Department dated July 18, 2001; the "Prince George's County Police Department Complaint Against Police Practices," notarized on July 31, 2001; and Dischinger's business card.
It is undisputed that Sergeant Dischinger twice had contact with appellant shortly after White filed his brutality complaint. Dischinger took a typed statement from appellant on his first visit in late July of 2001, and returned to photograph appellant on August 1, 2001. He also gave appellant his business card. Given the posture of the case, we also assume the truth of appellant's claim that Dischinger told him not to take any action during the pendency of the investigation. Yet, appellant never claimed that he had any communications with I.A.D. after August 1, 2001, nor does he claim that he ever inquired about the status of the police investigation.
Appellees contend that appellant failed to meet the burden of showing good cause to waive the statutory notice requirement. They state: "Ordinary citizens are required to seek out and obtain legal representation, within the statutory period, in order to ascertain their legal rights and obligations. Failure to obtain counsel (and thus, failure to be aware of the notice requirement) does not constitute the requisite `good cause' necessary to excuse [the appellant] from complying with the statute."
We pause to note that appellees' ignorance of the law argument does not persuade us. In a footnote in Heron, 361 Md. at 272 n. 13, 761 A.2d 56, the Court cited our decision in Williams v. Montgomery County, 123 Md.App. 119, 716 A.2d 1100, aff'd., 352 Md. 310, 721 A.2d 989 (1998), for the proposition that the Court of Special Appeals "has specifically rejected ignorance of the law requiring notice as good cause." But, the Heron Court indicated that Maryland has not adopted that position. See id.; see also Hargrove, 146 Md. App. at 467, 807 A.2d 149. Moreover, in Rios, 386 Md. at 141-42 n. 18, 872 A.2d 1, the Court reaffirmed that the question remains open as to whether ignorance of the statutory notice requirement constitutes good cause. Notably, however, appellant *1145 never asserted ignorance of the law as his excuse for the untimely notice.
The court below determined that appellant "failed to meet his burden of demonstrating good cause." It pointed to the lack of evidence of any continuing communications with I.A.D. after August 1, 2001, or of an "ongoing" police investigation, which would have "warrant[ed] [appellant's] lack of diligence." We are not persuaded that the trial court abused its discretion with regard to its good cause ruling.
As we indicated, good cause is determined by "whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances." Heron, 361 Md. at 271, 761 A.2d 56; see Madore, 34 Md.App. at 345, 367 A.2d 54. And, it is within the trial court's discretion to determine whether good cause exists to waive the notice requirement. Heron, 361 Md. at 270, 272, 761 A.2d 56. In our view, appellant's lack of follow up with I.A.D. belies any justification for his delay in giving notice to the County. Based on Dischinger's alleged representation to appellant, it may have been reasonable for appellant to delay any action for a period of months, but not years. Appellant simply took no action at all; his inaction did not amount to the requisite diligence of any ordinarily prudent person.
In sum, to justify his own inaction for such an extended period of time, appellant relied on a single comment allegedly made by Dischinger in July of 2001. He identified no other action or conduct by the police in the months that followed. Yet, the Sergeant's comments did not suggest that appellant should remain idle indefinitely, without further pursuing his complaint. Given appellant's prolonged failure to act or even inquire, the court below did not abuse its discretion in regard to its good cause ruling.
JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.
NOTES
[1] The Complaint is not in the Record Extract, and the Amended Compalint does not identify the first names of Officrs Barba and Evans.
[2] Appellant was subsequently convicted of first-degree burglary. On October 10, 2001, he was sentenced to fifteen years, with all but seven years suspended.
[3] Because of the filing of the Amended Complaint, the court denied the motion on May 18, 2004.
[4] The County and the police officers filed separate motions that were virtually identical.
[5] None of these pleadings are included in the record extract. Maryland Rule 8-501(c) (2004) provides that "[t]he record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal...."
[6] This exhibit was submitted with appellant's revisory motion.
[7] Appellant's statement to I.A.D. was not submitted in the proceedings below.
[8] This document was submitted in support of appellant's revisory motion.
[9] From the information provided to us, we cannot determine when notice was actually provided to the County.
[10] Effective October 1, 2001, LEOBR was recodified at Md.Code (2003), §§ 3-101 to 3-113 of the Public Safety Article.
[11] We have no knowledge as to the results of the I.A.D. investigation.
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351 F.2d 951
George E. McFARLAND, Appellant,v.UNITED STATES of America, Appellee.
No. 21114.
United States Court of Appeals Fifth Circuit.
October 29, 1965.
Appeal from the United States District Court for the Southern District of Mississippi; Sidney C. Mize, Judge.
George E. McFarland, in pro. per.
Robert E. Hauberg, U. S. Atty., Jackson, Miss., for appellee.
Before JONES, WISDOM and GEWIN, Circuit Judges.
PER CURIAM:
1
The record on this appeal does not disclose any prejudicial error. The judgment of the district court is
2
Affirmed.
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464 U.S. 879
104 S.Ct. 221
78 L.Ed.2d 217
Margaret M. HECKLER, Secretary of Health and Human Servicesv.Mario LOPEZ et alNo. A-145
Supreme Court of the United States
October 11, 1983
On Emergency Application for Stay.
The emergency application to vacate the stay entered by Justice REHNQUIST is denied.
Justice STEVENS with whom Justice BLACKMUN joins, dissenting in part.
The Secretary of Health and Human Services ("the Secretary") has taken the position that she may, at any time, terminate the payment of disability benefits to persons who have previously been found to be disabled and entitled to benefits under Titles II and XVI of the Social Security Act notwithstanding the complete absence of evidence that the recipient's medical condition has improved. In maintaining this position, the Secretary refused to follow the settled law in the Ninth Circuit, which requires her to adduce some evidence of medical improvement before terminating disability benefits. See Patti v. Schweiker, 669 F.2d 582 (CA9 1982); Finnegan v. Mathews, 641 F.2d 1340 (CA9 1981). Nevertheless, for the purposes of the stay application under review, the Secretary assumes that the Ninth Circuit's interpretation of the law is correct. Her stay application was predicated entirely on procedural grounds. A review of the procedural history of the case is therefore necessary.
Respondents filed a class action in the United States District Court for the Central District of California challenging the Secretary's policy. On June 16, 1983, the District Court entered an injunction requiring the Secretary to comply with the law of the Ninth Circuit with respect to recipients of disability benefits who reside in that circuit. The only portion of the District Court's injunction presently at issue in this Court is ¶ 4(c), which applies to all persons whose disability benefits have been terminated since August 30, 1981 (or August 25, 1980 in the case of recipients who were "grandfathered" into the federal program from state disability programs). Paragraph 4(c) enjoins the Secretary to notify all such persons that they may reapply for benefits, and upon reapplication, to reinstate their benefits pending a termination hearing at which the Secretary must produce some evidence of medical improvement.1 It is this portion of the District Court's injunction which Justice REHNQUIST, acting as Circuit Justice, stayed pending the Secretary's appeal to the Ninth Circuit.
Today the Court declines to vacate the stay entered by Justice REHNQUIST. Of course, in considering an application of this kind, substantial deference must be paid the judgment of the Circuit Justice. See Rosenberg v. United States, 346 U.S. 273, 286-287, 73 S.Ct. 1152, 1159, 97 L.Ed. 1607 (1953). The Circuit Justice's decision should not be disturbed simply because the other members of the Court would have declined to grant the stay as an original matter. Nonetheless, there are cases in which reexamination is proper, see id., at 287-288, 73 S.Ct., at 1159-1160; I am persuaded that this is such a case.
In Justice REHNQUIST's view, the District Court's injunction extended to persons over whom the District Court had no jurisdiction. That conclusion does not, however, justify a stay of the injunction to the extent that it granted relief to persons over whom the District Court does have jurisdiction. Moreover, the extent of the overbreadth is less than Justice REHNQUIST assumed when he was persuaded to enter his stay.
1
The jurisdiction of the District Court over this action was based on 42 U.S.C. § 405(g), which provides in pertinent part:
2
"Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow."
3
Under the statute, persons whose benefits have been terminated must seek judicial review of their termination within 60 days of a "final decision" of the Secretary. It is my understanding that this class action was filed on February 4, 1983, and that the class certified by the District Court includes persons who were entitled to, but did not seek judicial review of an adverse final decision by the Secretary more than 60 days before February 4, 1983 (December 6, 1982). As I understand ¶ 4(c) of the injunction entered by the District Court, it grants relief to class members over whom the District Court had no jurisdiction—specifically, to class members who had received "final decisions" from the Secretary more than 60 days prior to February 4, 1983, and who had not timely sought judicial review. To the extent that the stay entered by Justice REHNQUIST applies to such persons, I agree that it was properly entered. These persons' right to seek administrative or judicial review of their termination decisions had expired, and they could obtain benefits only by requesting that the Secretary reopen their cases. However, the District Court had no jurisdiction to review the Secretary's refusal to reopen these cases. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Hence, the District Court had no jurisdiction over these persons and should not have granted them relief, see Califano v. Yamasaki, 442 U.S. 682, 701, 704, 99 S.Ct. 2545, 2557, 2559, 61 L.Ed.2d 176 (1979); Mathews v. Diaz, 426 U.S. 67, 71, n. 3, 96 S.Ct. 1883, 1887, n. 3, 48 L.Ed.2d 478 (1976).
4
I believe, however, that the application to vacate the stay should be granted insofar as it applies to persons who sought judicial review of a termination of their benefits ordered by the Secretary on or after December 6, 1982, and persons whose right to administrative review of that termination had not expired before December 6, 1982. As to these persons, I believe both the waivable and non-waivable elements of 42 U.S.C. § 405(g) were satisfied; hence the District Court had jurisdiction to enter injunctive relief.
5
The non-waivable exhaustion requirement is simply the requirement that the Secretary have made some sort of decision on a claim for benefits. "The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary. Absent such a claim there can be no 'decision' of any type. And some decision by the Secretary is clearly required by the statute." Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976). As I understand the submissions of the parties, every class member had returned a questionnaire distributed by the Secretary and had thereby indicated in writing that he or she was still disabled and desired benefits. Thus, all of them had made adequate claims to continued benefits. Their benefits were terminated on the basis of a regulation that is assumed for the purpose of this proceeding to be invalid. In terminating benefits after receiving these questionnaires, it cannot be doubted that the Secretary knew these individuals claimed an entitlement to continue to receive disability benefits or that she then, by terminating their benefits, made a "decision" on the merits of their claims. That is all the non-waivable element of the statute requires. As the Court expressly held in Eldridge, "§ 405(g) requires only that there be a 'final decision' by the Secretary with respect to the claim of entitlement to benefits." Id., at 329, 96 S.Ct., at 900 (emphasis supplied). In fact, the questionnaires returned by these respondents made the same claim and received the same decision that was held sufficient to satisfy the statute in Mathews v. Eldridge.2
6
Mathews v. Eldridge also makes it clear that the waivable element of the statute has been satisfied. As was true in that case, further administrative review might have enabled a claimant to recover retroactive benefits but could not have vindicated the right to have correct procedures followed before the request for continued benefits was denied. As I understand respondents' position on the merits, they assert that a recipient need not respond at all to a claim that he or she is no longer disabled unless the Secretary first comes forward with some evidence that his or her condition has improved. There is no way that right can be vindicated in the administrative process—the Secretary has already taken a firm position on the issue which the administrative judges are not free to ignore.3 Even if the recipient is ultimately determined to be eligible for benefits for some other reason, the administrative process cannot vindicate the right asserted in this litigation, and hence further exhaustion of administrative remedies as to the claim made in this case is unnecessary. Eldridge, 424 U.S., at 330-332, 96 S.Ct., at 900-901. When exhaustion is futile, this element may be deemed waived even over the Secretary's objection. Mathews v. Diaz, 426 U.S. 67, 75-77, 96 S.Ct. 1883, 1889-1890, 48 L.Ed.2d 478 (1976); see also Eldridge, 424 U.S., at 328, 330, 96 S.Ct., at 899, 900. I agree with Justice REHNQUIST that respondents' contention that their claim is a "constitutional" one should be disregarded, but it should make no difference whether plaintiffs' claim is based on the statute or the Constitution. Even as to a statutory claim which could not be sustained on administrative review, "further exhaustion would not merely be futile for the applicant, but would also be a commitment of administrative resources unsupported by any administrative or judicial interest." Weinberger v. Salfi, 422 U.S. 749, 765-766, 95 S.Ct. 2457, 2466-2467, 45 L.Ed.2d 522 (1975). Congress could not have intended such a result.4
7
In reaching this conclusion, I express no opinion on the merits of the underlying controversy because the Secretary has assumed, for the purpose of our consideration of the stay application, that the Ninth Circuit's requirement that the Secretary produce some evidence of medical improvement is sound.
8
Of course, in considering the application to vacate the stay, it is also essential to balance the equities. However, as Justice REHNQUIST recognized, the equities in this case strongly favor respondents, who are elderly, sick or disabled persons to whom disability benefits may be crucial. Moreover, as Justice REHNQUIST also recognized, this is a stay pending appeal to the Court of Appeals rather than a stay pending disposition of a petition for certiorari to this Court, and in such a case the granting of a stay by a Circuit Justice should be extremely rare and great deference should be shown to the judgment of the Court of Appeals. When these factors are also considered, I am compelled to conclude that the stay entered by Justice REHNQUIST should be modified.
9
In summary, I would grant the application to vacate the stay insofar as it relates to those class members (a) whose benefits were terminated on or after December 6, 1982, as well as (b) those whose right to seek administrative review of the termination of their benefits had not expired as of December 6, 1982. To the extent that the Court declines to modify the stay in this fashion, I respectfully dissent.
10
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
11
Before the Court is an emergency application to vacate a stay granted by Justice REHNQUIST pending appeal to the United States Court of Appeals for the Ninth Circuit. In my view, the merits of the underlying jurisdictional issues are far from certain, while the equities clearly favor the class of recipients whose disability benefits have been terminated. I would therefore vacate the stay.
12
The stay is specifically directed at ¶ 4(c) of a preliminary injunction issued by the District Court, which would have required that the Secretary reinstate the disability benefits of any applicant who requests such reinstatement in response to a notice already distributed by the Secretary. The stayed portions of the injunction also would have allowed the Secretary to terminate these benefits, after subsequent hearings, but only if the Secretary properly applied prior decisions of the Court of Appeals for the Ninth Circuit when conducting those hearings. See Patti v. Schweiker, 669 F.2d 582 (CA9 1982) and Finnegan v. Matthews, 641 F.2d 1340 (CA9 1981) (in hearings to terminate disability benefits on the ground that the recipient is no longer disabled, the Secretary has burden of producing evidence of an improvement in medical condition). Thus, the question presented by the application to vacate Justice REHNQUIST's stay is whether the payment of interim benefits to approximately 30,000 disabled individuals whose Social Security benefits have been terminated by the Secretary should be continued pending final decision on the merits by the Court of Appeals.
13
The standard traditionally applied by a Circuit Justice when considering a stay application is whether there is a reasonable probability that four Justices would vote to grant certiorari, whether there is a fair prospect that a majority of the Court would conclude that the decision below was erroneous, and whether a balancing of the equities suggests that a stay should or should not be granted. See Gregory-Portland Independent School District v. United States, 448 U.S. 1342, 101 S.Ct. 20, 65 L.Ed.2d 1164 (1980) (REHNQUIST, J., in chambers); Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 2, 65 L.Ed.2d 1098 (1980) (BRENNAN, J., in chambers). Included within this last criterion, of course, is consideration of whether the applicant has demonstrated that irreparable harm is likely to result from the denial of the stay. Moreover, given the respect that is accorded interlocutory decisions of the lower federal courts, a stay application to a Circuit Justice on a matter still pending before a court of appeals, and on which the lower courts have already denied an interim stay, should be granted only in the most extraordinary cases. See O'Rourke v. Levine, 80 S.Ct. 623, 624, 4 L.Ed.2d 615 (1960) (Harlan, J., in chambers).
14
Justice REHNQUIST accepted the conclusion of the lower court that the "balance of hardships tips sharply toward the [recipients]." He nonetheless granted the stay because he was of the view that the likelihood that the Secretary would prevail on the various jurisdictional issues raised negates giving controlling consideration to the irreparable harm caused by the stay. I am not as optimistic, however, about the prospects for success on the merits of the Secretary's claims, and therefore I find the overwhelming hardships imposed on the recipients to be determinative.
15
For purposes of the present application, I accept Justice REHNQUIST's conclusion that there is a reasonable probability that issues relating to the proper scope of the injunction issued by the District Court would garner enough votes for plenary consideration by the Court. I do not agree, however, that there is a fair prospect of success on the merits of these claims such that the Court ultimately would vacate or substantially amend the injunction issued by the District Court. When refusing to issue a stay pending appeal, the Court of Appeals filed a lengthy opinion clearly explaining why the beneficiaries in this case satisfied the jurisdictional requirements of 42 U.S.C. §§ 405(g), 405(h). Specifically, the court concluded (1) that termination of benefits by the Secretary satisfies the nonwaivable requirement that recipients first present a claim to the Secretary, see, e.g., Mathews v. Eldridge, 424 U.S. 319, 328-330, 96 S.Ct. 893, 899-900, 47 L.Ed.2d 18 (1976); Wilson v. Edelman, 542 F.2d 1260, 1270-1271 (CA7 1976); (2) that the waivable requirement of a final decision by the Secretary has been met because regulations made exhaustion of administrative remedies futile or, alternatively, because exhaustion of the recipients' constitutional claim is not required, see, e.g., Mathews v. Diaz, 426 U.S. 67, 75-77, 96 S.Ct. 1883, 1889-1890, 48 L.Ed.2d 478 (1976); and (3) that the requirement that appeals be filed within 60 days of the Secretary's decision has been waived by the Secretary due to her failure to raise the issue before the District Court. Although after plenary consideration I might agree with much of Justice STEVENS' analysis, I do not believe it is necessary at this time to provide further support for the conclusions reached by the Court of Appeals. Suffice it to say that, largely for the reasons stated by that court's opinion, and for the reasons specified by the large body of case law to which that opinion referred, I am far from convinced that the injunction issued by the District Court was jurisdictionally barred. See also Kuehner v. Schweiker, 717 F.2d 813, (CA3 1983). Indeed, even if, as Justice STEVENS suggests, one or more of these holdings eventually proves erroneous and thereby eliminates jurisdiction over some members of the class, it is indisputable that many remaining recipients have properly presented their claims to the District Court. Accordingly, the probability of success on the merits is clearly not as certain as Justice REHNQUIST has suggested.
16
Nor does the alleged judicial interference in the administrative process, which Justice REHNQUIST's opinion emphasized, add to the likely success of the Secretary's appeal. In the situation presented by this application, it is clear to me that it is the Secretary who has not paid due respect to a coordinate branch of government by expressly refusing to implement the binding decisions of the Ninth Circuit. This is, indeed, the essence of the recipients' constitutional allegation of nonacquiescence on the part of the Secretary.
17
At most, therefore, the likelihood of success on the merits is very much in doubt. Therefore, when considering whether or not to grant a stay pending appeal, this factor cannot by itself dictate the result. Rather, it becomes necessary to balance the equities; and, in my view, the overwhelming evidence of irreparable harm that accompanies any termination of disability benefits should be the determinative factor in this emergency application.
18
As noted, on this consideration Justice REHNQUIST accepted the lower courts' assessment of the comparative harms. I agree. Indeed, as the courts below correctly concluded, termination of the benefits in this case has caused "deprivation of life's necessities, further illness, or even death from the very disabilities that the Secretary deemed [the class members] not to have." Any financial or administrative inconvenience suffered by the Secretary cannot outweigh, or even approach, the human suffering that has been imposed on those disabled recipients of Social Security benefits who have been wrongfully terminated. And as the courts below noted, the potential payment of retroactive benefits after final decision in this case will do little to compensate the recipients for their current deprivations.
19
In sum, there is little question in my mind that the extraordinary circumstances necessary to stay the decision of the lower court cannot be found in this case. Accordingly, I would grant the emergency application to vacate the stay, and allow the ordinary appeals process to proceed.
1
Once the Secretary meets her burden of production, the burden of proof is on the recipient to prove he or she remains disabled.
2
With respect to the non-waivable requirement, the Eldridge Court wrote,
"Eldridge has fulfilled this crucial prerequisite. Through his answers to the state agency questionaire, and his letter in response to the tentative determination that his disability had ceased, he specifically presented the claim that his benefits should not be terminated because he was still disabled. This claim was denied by the state agency and its decision was accepted by the [Secretary]." Id., at 329, 96 S.Ct., at 900.
All the members of the respondent class answered a questionnaire substantially identical to the one Eldridge answered, indicating that they believed they were still disabled and entitled to benefits. Thus, each class member specifically presented a "claim." The only difference between this case and Eldridge's is that in response to the letter informing Eldridge that he would be terminated and requesting any additional evidence Eldridge might choose to submit, Eldridge wrote a letter. Some unidentified percentage of the respondent class presumably also wrote letters similar to this one, and in any event the Secretary does not rely on the absence of a letter to distinguish this case from Eldridge. Moreover, Eldridge's letter hardly added to the "claim" he had already presented. In fact the letter did little more than state that Eldridge believed the Secretary already had enough evidence to decide the case. See id., at 324, 96 S.Ct., at 897; Mathews v. Eldridge, No. 74-204, O.T.1975, Appendix to Petition for Certiorari at 13-14. This letter was hardly a new "claim"; Eldridge's "claim" which satisfied the non-waivable element of the statute had already been made.
3
Moreover, "It is unrealistic to expect that the Secretary would consider substantial changes in the current administrative review system at the behest of a single aid recipient . . . in an adjudicatory context." 424 U.S., at 330, 96 S.Ct., at 900.
4
It is not clear that the Secretary disagrees with my view. In her memorandum opposing respondents' application to vacate the stay, she accepts the propriety of the District Court's injunction as to persons that have exhausted their administrative remedies within 60 days of the filing of this action, and argues, correctly in my view, that the stay was proper as to persons whose right to review had expired more than 60 days before the filing of the suit. She goes on to argue only that the injunction should not apply to persons who are still pursuing their administrative remedies at this time. She does not explicitly quarrel with my conclusion that the District Court's injunction was proper as to all other persons whose right to seek administrative review had not expired as of December 6, 1982. Therefore, it appears that my only difference with the Secretary is that I would not require persons currently seeking administrative review to exhaust what is a futile remedy.
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246 F.Supp.2d 334 (2003)
Angel TORRES, Plaintiff,
v.
William P. MAZZUCA, Superintendent, at Fishkill Correctional Facility, Thomas G. Eagen, Director of Inmate Grievance Program for the Department of Correctional Services, B. Depasquale Correctional Officer at Fishkill Correctional Facility, John Doe 1 Correctional Lieutenant at Auburn Correctional Facility, Captain Pelc, Correctional Captain at Fishkill Correctional Facility, Captain Rourke, Correctional Captain at Auburn Correctional Facility, Captain N. Bezio, Correctional Captain at Upstate Correctional Facility, Defendants.
No. 02 Civ. 2152 (VM).
United States District Court, S.D. New York.
February 25, 2003.
*336 Angel Torres, Romulus, NY, Pro se.
Nicola N. Grey, Michael J. Keane, Asst. Attorney General, NYS, New York City, for Defendants.
DECISION AND ORDER
MARRERO, District Judge.
Plaintiff Angel Torres ("Torres"), proceeding pro se, filed this action under 42 U.S.C. § 1983 alleging violations of his constitutional rights under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Defendant B. Depasquale ("Depasquale") answered the complaint. Defendants William Mazzuca ("Mazzuca"), Thomas Eagen ("Eagen"), Arlen Pelc ("Pelc"), John Rourke ("Rourke") and N. Bezio ("Bezio") filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure ("Fed. R. Civ.P.") 12(b)(6). On April 18, 2002, Torres identified defendant John Doe 1 as Lieutenant Kruger ("Kruger") but has not served that defendant. For the reasons discussed below, the motion is GRANTED in its entirety.
I. BACKGROUND
According to the Complaint, on or about June 10, 2001, while Torres was housed in a Special Housing Unit ("SHU") at Fishkill Correctional Facility ("Fishkill"), he translated a request to Depasquale, a corrections officer at Fishkill, for toilet paper made by the inmate housed in the cell adjoining his who did not speak English. In response, Depasquale swore and denied the request, telling Torres to mind his own business and instructing him to inform the other inmate to "wash up in the toilet or use his washcloth." (See Amended Complaint, dated February 15, 2002 (the "Compl"), ¶¶20-22.) Depasquale then left. Shortly thereafter, Torres reported this incident to the Sergeant on duty, who assured Torres that Depasquale would deliver toilet paper. When Depasquale delivered toilet paper ten or fifteen minutes later, he said: "Torres don't forget you snitched on me to the Sergeant. I am gonna be here on June 25th 2001 [the day Torres was to be released from SHU] and you're gonna get it, I promise." (Compl.¶ 25.) Torres did not grieve or otherwise inform prison officials of this threat.
The Complaint further alleges that on June 25, 2001, Depasquale again threatened Torres by stating "Torres, I'm here and I'm gonna get you!" (Id. at ¶26.) Shortly thereafter, Depasquale, along with two other lieutenants, appeared to release Torres from SHU confinement. Torres alleges that Depasquale handcuffed him and "pat frisked" him roughly, including intentionally grabbing him in the groin area. (Id. at ¶27.) When Torres objected to Depasquale's "improper pat frisk," Depasquale slammed his head against the wall. (Id.)
Once the officers waist chained and handcuffed Torres, Torres alleges that they took him to the "strip room" where Depasquale punched Torres in the face, causing him to fall to the ground unconscious. (Id. at ¶¶28, 29.) Torres regained consciousness when he was lifted from the ground, and noticed a pool of blood beneath him. The Court will refer to these alleged events as the "Incident".
Torres was then taken to the hospital and received 19 stitches around his mouth area. Torres was also examined by a dentist who diagnosed "apical root fractures" and had to pull two of Torres' front teeth. (Id. at ¶¶ 30, 31.) The Dentist opined that Torres would never recover from the nerve damage he suffered. (Id.) Torres *337 attached to the Complaint certain medical records reflecting this treatment. (See id. Exhs. I, P.) Upon his return from his medical appointments, Torres was again placed in SHU confinement.
On the same day as the Incident, Depasquale filed an Inmate Misbehavior Report charging Torres with assaulting staff, violent conduct, disobeying a direct order, interference with an employee, and violation of a search and frisk procedure. (See id. Exh. J (the "Misbehavior Report").) The Misbehavior Report sets forth a very different account of the Incident from Torres's, essentially stating that because of Torres's aggressive and disruptive behavior, Depasquale punched him in self-defense. At the June 29, 2001 hearing held in response to Depasquale's charges, Torres argued that the Misbehavior Report was a fabrication. Mazzuca, Superintendent of Fishkill, presided over the hearing. The hearing was adjourned to review evidence and to arrange for Torres's witnesses to be summoned. The hearing was never reconvened. Instead, on July 7, 2001, Torres was released from SHU. Torres filed a request for the hearing tape, the Misbehavior Report and disposition, as well as pictures that were taken of him after the Incident is alleged to have occurred. He was informed by letter from corrections officer T.L. Favro, dated October 18, 2001, that no file existed. (See id. Exh. L.)
On June 26, 2001, Torres filed a grievance regarding the Incident. Receiving no response, he submitted a second grievance on July 4, 2001. Again receiving no response, he filed a third grievance on July 17, 2001.
Torres finally was interviewed by Kruger, a correctional lieutenant at Auburn Correctional Facility, on August 13, 2001. According to Torres, Kruger submitted a report stating that Depasquale "denies in writing that he assaulted the grievant" and apparently did not interview any witness or review any video surveillance tapes that might exist. (Id. at ¶ 46.) Based on Kruger's findings, a report was issued denying Torres's grievance (the "Kruger Report"). (Id. Exh. E.) Torres appealed the Kruger Report to Eagen, Director of the Inmate Grievance Program. Bezio, another corrections officer, was then assigned to conduct a second investigation. On December 19, 2001, when Bezio appeared to interview Torres, Torres was distressed to find that Bezio was not able to interview Depasquale and did not have any videotapes to review. Bezio's investigation affirmed the Kruger Report and the appeal was denied. (Id. Exh. H.)
Torres wrote to Commissioner Goord ("Goord"), the Commissioner of the Department of Correctional Services, explaining the Incident, the existence of the video and audio tapes recording the Incident, the denial of his grievances and requested assistance in prosecuting his grievance. In response, he received a letter from Lucien J. Leclaire, Jr. ("Leclaire"), Deputy Commissioner of the Department of Correctional Services, dated December 5, 2001 (Id. Exh. O.) Leclaire informed Torres that the Incident had been recorded as an "unusual incident (assault on staff)." In addition, Leclaire pointed to the Doe Report investigation, and indicated that corrections officer Pelc had reviewed the video tape of Torres's escort from the gallery to the strip frisk area and found nothing to support Torres's claims. Further, Leclaire stated that the Misbehavior Report charges were dismissed because the disciplinary hearing was not completed in a timely manner. Thus, Leclaire found no factual support in the grievance record for Torres's assault claim.
In addition to the physical injuries he suffered, Torres argues that he was deprived *338 of due process because the prison investigations into his grievances were incomplete and did not address the severity of his injuries. Torres asserts that Mazzuca failed to protect him from the assault by Depasquale and then failed to ensure that a full investigation be conducted, thus violating the Eighth and Fourteenth Amendments. Torres claims that corrections officers Bezio, Doe, Pelc and Rourke failed to investigate or prepare fair reports. Torres also asserts that Rourke conducted an unfair Hearing by excluding witnesses and failing to issue a written disposition. Torres's claim against Depasquale for cruel and unusual punishment in violation of the Eighth Amendment are not put at issue by the motion to dismiss now before the Court.
II. DISCUSSION
A. STANDARD OF REVIEW
A district court may grant a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) only if it appears beyond a doubt that the non-moving party could prove no set of facts that would entitle it to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994). On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a Court accepts all well-pleaded factual assertions in the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Hishon, 467 U.S. at 73, 104 S.Ct. 2229; McGinty v. State of New York, 193 F.3d 64, 68 (2d Cir.1999).
When considering motions to dismiss the claim of plaintiffs proceeding pro se, courts are instructed to construe the pleadings liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Weinstein v. Albright, 261 F.3d 127, 131-132 (2d Cir.2001); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir.1999).
This is especially true when dealing with civil rights complaints. See, e.g., Herschaft v. N.Y. Board of Elections, 234 F.3d 1262 (2d Cir.2000). However, complaints "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward 814 F.2d 883, 887 (2d Cir.1987). The Court does not consider matters outside of the pleadings. To do so would convert the motion into one for summary judgment, which, at this stage of the proceedings, the Court declines to do. See Friedl v. City of New York, 210 F.3d 79, 83^84 (2d Cir.2000). Nevertheless, the district court's consideration of documents attached to, or incorporated by reference in, the complaint, and matters of which judicial notice may be taken, would not convert the motion to dismiss into one for summary judgment. See Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99,107 (2d Cir.1999).
B. EIGHTH AMENDMENT CLAIM AGAINST MAZZUCA
Defendants argue that Mazzuca was not personally involved in the alleged violation of Torres's Eighth Amendment rights and therefore the claim against him must be dismissed. Torres argues that the motion is "premature."
To establish a cognizable claim under 42 U.S.C. § 1983, a plaintiff must allege conduct under color of state law that deprives him of rights secured by the Constitution or laws of the United States. See, e.g., Katz v. Klehammer, 902 F.2d 204, 206 (2d Cir.1990). To survive a motion to dismiss, plaintiff must allege that the defendants were directly involved in the alleged violations of plaintiffs constitutional *339 rights. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987). Because Torres does not assert facts that indicate that Mazzuca was personally involved with the Incident alleged to have violated Torres's Eighth Amendment rights, the claim against Mazzuca must be dismissed.
It is clearly settled that "[i]n order to establish a violation of his Eighth Amendment rights, an inmate must show (1) a deprivation that `is objectively, sufficiently serious' that he was denied `the minimal civilized measure of life's necessities,' and (2) a `sufficiently culpable state of mind' on the part of the defendant official, such as deliberate indifference to inmate health or safety." Gaston v. Coughlin, 249 F.3d at 164 (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). A prison official may be found to have had a sufficiently culpable state of mind only if he (i) participated directly in the alleged event, (ii) learned of the inmate's complaint and failed to remedy it, (hi) created or permitted a policy that harmed the inmate, or (iv) acted with gross negligence in managing subordinates. Gaston, 249 F.3d at 164; see also Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986); Johnson v. Newburgh, 239 F.3d 246, 254 (2d Cir.2001); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Personal liability cannot be imposed on a state official under a theory of respondeat superior. Monell v. Deft of Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir.1999).
In Colon, the plaintiff claimed that Coughlin, then Commissioner of the Department of Correctional Services ("DOCS"), was grossly negligent in training and supervising the corrections officers under his management. 58 F.3d at 873. The plaintiffs verified complaint, however, set forth no facts indicating that Colon had any knowledge that would support a claim that Coughlin either knew of or should have known of the wrongs or risks alleged by Colon. See id. at 873-874. Accordingly, the claim was dismissed as to Coughlin. Similarly, in Gaston, the Circuit Court held that dismissal based on lack of personal involvement was inappropriate because the defendant prison officials were alleged to have had actual knowledge of the alleged unconstitutional prison conditions. 249 F.3d at 166. In both cases, the importance of pleading actual knowledge or direct involvement on the part of the defendant in order to hold the defendant liable for an Eighth Amendment violation is stressed.
Torres claims that Mazzuca failed to protect him from the assault, thus violating the Eighth Amendment. The Complaint in this action is well organized, setting forth Torres's factual allegations and legal claims in a coherent manner. Nevertheless, it contains no facts that show Mazzuca played a part in the Incident or that he had knowledge of, or reason to have knowledge of, any danger to Torres prior to the Incident that could place particular responsibility on Mazzuca for protecting Torres from the Incident. As such, it does not appear that Mazzuca was aware of any specific risk to Torres, which he ignored. Nor do the factual allegations in the Complaint suggest a custom or practice at Fishkill to deprive inmates of their rights of which Mazzuca was aware or personally responsible for. In fact, the only mention of Mazzuca in connection to the Eighth Amendment claim against him in the Complaint is a broad allegation that Mazzuca had a duty to protect Torres. Therefore, based only on the fact that the Incident occurred, Torres contends that Mazzuca violated Torres's Eighth Amendment rights by failing to protect him. Thus, any personal involvement of Mazzuca in the *340 Incident that is the basis for Torres's Eight Amendment claim would invoke respondeat superior and therefore is not cognizable. Accordingly, the Court finds that, as it is pleaded, the Complaint does not allege any personal involvement in the Incident by Mazzuca, and therefore, Torres does not state an Eighth Amendment claim against Mazzuca.
C. DUE PROCESS
Torress alleges two administrative processes that resulted in the denial of his due process rights. First, Torres alleges that his Fourteenth Amendment due process rights were violated by Rourke's failure to conduct a proper hearing and investigation with respect to the charges in the Misbehavior Report filed by Depasquale. Second, Torres alleges that Mazzuca, Eagen, Pelc, Kruger and Bezio violated his due process rights by failing to properly investigate Torres's grievances concerning the Incident. Torres's due process claims must be dismissed because he has not been deprived of a protected liberty interest that would afford him the constitutional right to more process than he was given.
It is well settled that "a prisoner asserting a § 1983 claim for denial of due process at a disciplinary hearing must first `identify a liberty interest protected by the Due Process Clause of which he was deprived.' " Williams v. Goord, 111 F.Supp.2d 280, 288 (S.D.N.Y.2000) (internal citations omitted). The deprivation of a state-created liberty interest does not rise to the level of a constitutional violation requiring due process before its imposition unless the punishment imposed amounts to an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); see also Welch v. Bartlett, 196 F.3d 389 (2d Cir.1999). Furthermore, the prisoner must establish that "the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). Only if the prisoner meets these two elements, the court then addresses " `whether the deprivation of that liberty interest occurred without due process of law.'" Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997) (quoting Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996)). After Sandin, a prisoner has no actionable due process claim if other prisoners typically experience approximately the same deprivation as a result of the "ordinary administration of the prison." Williams, 111 F.Supp.2d at 288 (quoting Welch, 196 F.3d at 393.) "Due process claims are reserved instead for those prisoners who endure hardships that are `substantially more grave' than those hardships that prisoners would ordinarily experience as members of the general population." Id. (internal citations omitted).
In this case, based on Torres's Complaint, upon his return from the doctor and dentist after the Incident on June 25, 2001, Torres was placed in SHU confinement and was released on July 7, 2001. (See Compl. ¶¶34-37.) The reason for his release was allegedly not disclosed to Torres, but appears to have been due to the fact that the hearing was not completed in a timely manner, and therefore all charges were dismissed. (See Compl. Exh. O.) As such, Torres admittedly spent approximately 12 days in SHU because of the Misbehavior Report filed by Depasquale. Torres does not allege that the SHU confinement was other than ordinary solitary confinement.
Twelve days in SHU confinement pending a hearing based on a prison officer's charges and its outcome, are not *341 "atypical and significant." In fact, the conditions of ordinary SHU confinement, at least for short intervals, may be imposed on prison inmates in the regular course of prison life, not connected with disciplinary punishment. See Sandin, 515 U.S. at 486, 115 S.Ct. 2293 ("disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody.") In this case, the SHU confinement appears to have been interim confinement pending the disciplinary hearing on charges which were then thrown out. The law in the Second Circuit is clear that such short-term confinement pending a disciplinary hearing is administrative, not punitive. See Bolden v. Alston, 810 F.2d 353, 357 n. 3 (2d Cir.1987); Garrido v. Coughlin, 716 F.Supp. 98, 102 (S.D.N.Y.1989). Therefore, in accordance with the holding in Sandin, Torres's twelve day SHU confinement did not "exceed similar, but totally discretionary, confinement in either duration of degree of restriction" creating an "atypical and significant hardship." 515 U.S. at 486, 115 S.Ct. 2293.
While there is no bright-line test in terms of the duration of SHU confinement that meets the "atypical and significant" standard, see Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999), the Second Circuit has held that SHU confinements under 101 days do not necessitate detailed factual records. See Colon v. Howard 215 F.3d 227, 232 (2d Cir.2000). Many district courts in this Circuit have found that periods much longer than the twelve days of ordinary SHU confinement alleged here could not meet the Sandin burden. See, e.g., Williams, 111 F.Supp.2d at 289 (75day confinement was not "onerous" or an "atypical and significant" burden under Sandin); Alvarado v. Kerrigan, 152 F.Supp.2d 350, 355 (S.D.N.Y.2001) (plaintiffs SHU confinement for 93 days was not found to be an "atypical and significant" deprivation). In fact, the Second Circuit recently noted that the longest confinement in normal SHU conditions ruled constitutional was 101 days. Howard 215 F.3d 227, 231 (citing Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.1999)). Furthermore, it appears that the Second Circuit's post-Sandin decisions are unanimous that keeplock confinements of sixty days or less in New York prisons are not "atypical hardship." See, e.g., Frazier, 81 F.3d at 317-18 (neither twelve-day confinement in SHU nor eleven-day confinement in Close Supervision Unit was the kind of atypical, significant deprivation in which New York might conceivably create a liberty interest); Harris v. Keane, 962 F.Supp. 397, 404 (S.D.N.Y.1997) (23 days SHU); Duncan v. Keane, No. 93 Civ. 6026, 1996 WL 511573, at *2 (S.D.N.Y. Aug. 22, 1996) (58 days keeplock); Camacho v. Keane, No. 95 Civ. 0182, 1996 WL 204483, at *2 (S.D.N.Y. April 25, 1996) (40 days keeplock); Zamakshari v. Dvoskin, 899 F.Supp. 1097, 1108 (S.D.N.Y.1995) (60 days SHU).
Torres does not even allege in his Complaint that such a confinement was atypical and significant; he focuses only on the injustices of the disciplinary hearing itself. Despite such alleged injustices, however, Torres was released from the charges after twelve days in SHU without receiving any punishment. Since Torres claims no protected liberty interest that he was deprived of because of the allegedly inadequate hearing, he can not claim due process violations at the hearing. Accordingly, Torres's claim against Rourke for due process violations at Torres's disciplinary hearing fails as a matter of law and is dismissed.
Next, Torres alleges that his due process rights were violated because a proper investigation into the Incident, including interviewing his named witnesses, and reviewing *342 the videotape, audiotape and other documents that Torres alleges would clearly demonstrate Depasquale's inappropriate behavior on June 25, 2001, was never conducted in response to Torres's submission of a number of grievances concerning the Incident.
To state any claim under § 1983, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States...." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) As has been discussed above, in order for the due process requirements of the Fourteenth Amendment to apply, Torres must have been deprived of a protected liberty interest. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1061-62 (2d Cir.1993) ("In order to succeed on a claim of deprivation of procedural due process, a plaintiff must establish that state action deprived him of a protected property or liberty interest.") For a state-created liberty interest to be protected, its deprivation must amount to an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483, 115 S.Ct. 2293.
The corrections officers' failure to properly address Torres's grievances by conducting a thorough investigation to his satisfaction does not create a cause of action for denial of due process because Torres was not deprived of a protected liberty interest. Prison grievance procedures do not confer any substantive right upon an inmate requiring the procedural protections envisioned by the Fourteenth Amendment. See Mahotep v. DeLuca, 3 F.Supp.2d 385, 390 n. 3 (W.D.N.Y.1998); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994); cf. Harris, 962 F.Supp. at 406 (prison regulations requiring that a grievance disposition be returned within 15 days do not create an interest to which due process rights attach). Moreover, Torres admits that he received various letters in response to his grievances and that prison officers were sent to interview him to investigate the Incident. The Kruger Report also indicates that Depasquale was questioned but denied Torres's version of the Incident. Torres complains that such responses were not adequate in that his witnesses were not interviewed and various forms of evidence that he alleges exists was not examined. However, the breadth of any investigation remains in the discretion of the officers conducting the investigation.[1] Torres does not have a protected liberty interest in having his grievances investigated at the level of thoroughness that he desires, and therefore he can not assert a due process claim as to such failures. Under the applicable standard in Sandin, the failure to conduct an extensive investigation into Torres's charges does not impose an "atypical and significant hardship" upon Torres sufficient to create a protected liberty interest. Accordingly, Torres's due process claims against Mazzuca, Eagen, Pelc, Kruger and Bezio concerning the failure to fully investigate his grievances are dismissed.
*343 III. ORDER
For the foregoing reasons, it is hereby
ORDERED that the motion to dismiss the Complaint as to Defendants Mazzuca, Rouge, Bee, Kruger, Eagen, and Pelc is granted.
SO ORDERED.
NOTES
[1] Torres does have the right appeal determinations with respect to a grievance, as he did. Furthermore, Torres ultimately has the right to have such determinations reviewed by this Court if they allege violations of his constitutional rights and were not satisfactorily redressed by the prison grievance system. Therefore, Torres's Complaint concerning the Incident properly comes to this Court for review, but any alleged inadequacies or unfavorable decisions concerning the prison's internal grievance process do not give Torres the right, as a matter of course, to have the Court consider not only the Eighth Amendment charge which was the subject of his grievance, but also due process allegations based on failures in the grievance system.
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770 F.2d 157
Aillonv.Connecticut
84-2389
United States Court of Appeals,Second Circuit.
6/25/85
D.Conn., 597 F.Supp. 158
AFFIRMED
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Jorge v Conlon (2015 NY Slip Op 08982)
Jorge v Conlon
2015 NY Slip Op 08982
Decided on December 8, 2015
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 8, 2015
Tom, J.P., Friedman, Saxe, Gische, JJ.
16359N 300803/12
[*1] Aldo Jorge, Plaintiff-Appellant, ——
vPolice Officer Edward Conlon, etc., Defendant-Respondent, The City of New York, et al., Defendants.
G. Wesley Simpson, P.C., Brooklyn (G. Wesley Simpson of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondent.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about April 2, 2014, which granted defendants' motion to renew and, upon renewal, denied plaintiff's motion for a default judgment against defendant Police Officer Edward Conlon, and directed plaintiff to accept service of defendants' amended answer upon certain conditions, unanimously affirmed, without costs.
The motion court providently exercised its discretion in granting defendants' motion to renew plaintiff's motion for a default judgment. Defendants were entitled to renewal in the interest of justice, even though the information in Officer Conlon's affidavit could have been, but was not, provided by defendants in opposition to plaintiff's original motion (see Cruz v Bronx Lebanon Hosp. Ctr., 73 AD3d 597, 598 [1st Dept 2010]). Plaintiff failed to show any prejudice resulting from the officer's delay in answering the complaint (see Hines v New York City Tr. Auth., 112 AD3d 528, 528 [1st Dept 2013]). At the time defendants filed their motion for renewal, discovery had not begun, and defendant City had already asserted in the amended answer filed on Officer Conlon's behalf the same defense of probable cause that it had asserted in its original, timely-filed answer (see Drawhorn v Iglesias, 254 AD2d 97, 97 [1st Dept 1998]). Moreover, defendants were not required to submit an affidavit of merit from Officer Conlon in opposition to
plaintiff's original motion (see Silverio v City of New York, 266 AD2d 129, 129 [1st Dept 1999]; see also Arrington v Bronx Jean Co., Inc., 76 AD3d 461, 462 [1st Dept 2010]).
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 8, 2015
CLERK
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10 N.Y.3d 750 (2008)
In the Matter of ROBERT M. RESTAINO, as Judge of the Niagara Falls City Court, Niagara County, Petitioner.
STATE COMMISSION ON JUDICIAL CONDUCT, Respondent.
Court of Appeals of the State of New York.
Submitted February 11, 2008.
Decided February 14, 2008.
Judge PIGOTT taking no part.
Motion by Phi Alpha Delta Law Fraternity, International for leave to appear amicus curiae on the request for review herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.
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965 So.2d 141 (2007)
AGOSTO
v.
STATE.
No. 4D06-2945.
District Court of Appeal of Florida, Fourth District.
October 3, 2007.
Decision without published opinion. 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
ELEVENTH CIRCUIT
No. 11-11776 DECEMBER 12, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 4:09-cv-02381-LSC
CARRI CARROLL,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 12, 2011)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Carri Carroll appeals the district court’s order denying her motion to remand
based on new evidence and affirming the denial of disability insurance benefits.
She contends that remand is necessary to allow the Social Security
Administration’s (SSA) Appeals Council to consider evidence of a later decision
finding Carroll disabled. Carroll further asserts that the Administrative Law Judge
(ALJ) failed to state adequate reasons for finding that neither she nor her physician
Dr. Farrukh Jamil were credible and that the ALJ’s credibility determination was
not supported by substantial evidence. Last, Carroll claims that the hypothetical
questions posed to the vocational expert (VE) at her hearing were improper and
led to an erroneous finding that she could perform medium work. After thorough
review, we affirm.
I.
On November 16, 2006, Carroll submitted an application for disability
insurance benefits. She alleged that beginning August 9, 2002, she was disabled
due to multiple psychological and physical afflictions. Her claim was initially
denied on March 13, 2007. Carroll then requested and was granted a hearing
before an ALJ, which took place on April 24, 2009. Carroll testified, and records
2
of her past psychological evaluations were introduced into evidence.1 Ultimately,
the ALJ denied benefits and specifically stated that the finding of no disability
covered the period from Carroll’s alleged onset date of August 9, 2002, through
the date she was last insured, December 31, 2007.2 After the Appeals Council
denied review, Carroll filed a complaint for judicial review in federal district
court.
While her case was pending in district court, Carroll filed a motion to
remand to the Appeals Council pursuant to sentence six of 42 U.S.C. § 405(g),
stating that new, material evidence warranted reconsideration of the denial of
benefits. Carroll attached a copy of an SSA decision dated January 12, 2010, in
which the SSA found Carroll disabled beginning June 22, 2009. The district court
denied the motion to remand and affirmed the denial of benefits.
II.
Carroll first challenges the district court’s denial of her motion to remand
1
These include the records of Dr. A. Bartow Ray, Jr., a clinical psychologist who saw
Carroll in November 2005; Jack Bentley, Jr., a psychologist who examined Carroll in February
2007; Dr. Robert Estock, who submitted an opinion on Carroll in March 2007; and Dr. Farrukh
Jamil, who treated Carroll beginning in January 2008.
2
The district court’s order slightly misstated the relevant time period for which benefits
were denied. That order characterized the original eligibility determination as extending until
June 15, 2009 (the date the administrative law judge entered his order denying benefits). The
administrative record, however, clearly reflects that eligibility was determined only up to the date
last insured, December 31, 2007.
3
pursuant to 42 U.S.C. § 405(g). She contends that remand is necessary to resolve
an alleged discrepancy between the denial she now appeals and a new judgment by
the SSA that entitles her to benefits. The latter judgment declared Carroll eligible
for benefits beginning June 22, 2009, while the former denial covered the period
from August 9, 2002 until December 31, 2007. We review de novo whether
remand is necessary based on new evidence. Vega v. Comm’r of Soc. Sec., 265
F.3d 1214, 1218 (11th Cir. 2001).
The sixth sentence of § 405(g) states:
The court . . . may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in a
prior proceeding . . . .
42 U.S.C. § 405(g) (emphasis added). Evidence is irrelevant and immaterial when
it relates to a time period after the eligibility determination at issue. See Wilson v.
Apfel, 179 F.3d 1276, 1278–79 (11th Cir. 1999) (per curiam) (explaining that a
medical opinion given one year after the denial of benefits “may be relevant to
whether a deterioration in [the claimant’s] condition subsequently entitled her to
benefits” but is not probative to the issue of eligibility during the time period for
which benefits were denied).
The judgment entitling Carroll to benefits starting June 22, 2009 is new
4
evidence that was unavailable at the prior proceeding. Furthermore, there is good
cause for not having this evidence at the prior proceeding, as the favorable
judgment had not yet been rendered when the first claim for disability benefits was
being considered. However, based on the time between decisions, and based on
Carroll’s failure to produce any additional evidence apart from the favorable
decision itself, that judgment alone is not material to the instant case. There is no
inconsistency between the eligibility determinations; the subsequent decision
merely shows that Carroll’s health deteriorated within the nearly year-and-a-half
period between the eligibility decisions.
Carroll also challenges the district court’s denial by asserting that it is a
deviation from agency procedures outlined in the SSA’s Hearings, Appeals, and
Litigation Law Manual (HALLEX). Carroll’s reliance on HALLEX to support her
claim for remand is misplaced. We have held that the sixth sentence of § 405(g)
“provides the sole means for a district court to remand to the Commissioner to
consider new evidence presented for the first time in the district court.” Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007) (emphasis
added). HALLEX is an agency handbook for the SSA not mentioned in § 405(g),
so it cannot serve as the basis to remand Carroll’s case. Moreover, we have held
that an agency’s violation of its own governing rules must result in prejudice
5
before we will remand to the agency for compliance. See Hall v. Schweiker, 660
F.2d 116, 119 (5th Cir. Unit A Sept. 1981) (per curiam).3 As discussed above, the
new judgment granting benefits for a completely different time period was
immaterial to the prior judgment. The agency’s failure to consider the subsequent
favorable decision thus resulted in no prejudice.
III.
Carroll next challenges the ALJ’s finding that both she and Dr. Jamil, her
treating physician at the time of the hearing, were not credible. We address each
individually.
Generally, the opinions of examining or treating physicians are given more
weight than nonexamining or nontreating physicians unless “good cause” is
shown. See 20 C.F.R. § 404.1527(d)(1), (2); Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997). Good cause exists to discredit a physician’s testimony
when a physician’s opinion is conclusory, contrary to or unsupported by the record
evidence, or inconsistent with the physician’s own medical records. Lewis, 125
F.3d at 1440. The ALJ may “reject the opinion of any physician when the
evidence supports a contrary conclusion.” Sryock v. Heckler, 764 F.2d 834, 835
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
6
(11th Cir. 1985) (per curiam) (citation and quotation marks omitted). Where an
ALJ articulates specific reasons for declining to accord the opinion of a treating or
examining physician controlling weight and those reasons are supported by
substantial evidence, there is no reversible error. Moore v. Barnhart, 405 F.3d
1208, 1212 (11th Cir. 2005) (per curiam).
The ALJ provided many reasons to discredit Dr. Jamil’s testimony. First,
Dr. Jamil does not appear to have been Carroll’s treating physician until January
17, 20084—after the last date insured. Dr. Jamil’s opinion finding Carroll
permanently disabled was issued on June 6, 2008, and did not show any treatment
or conclusion of disability during the eligibility period at issue here. Dr. Jamil’s
medical records do not reflect that he conducted any psychological tests during his
treatment of Carroll, much less any that could retrospectively establish her
disability. Moreover, Dr. Jamil’s own medical records reflect that Carroll’s global
assessment of function (GAF) was 56, 60, and 58 for her first three visits, each of
which indicate only moderate psychological symptoms. Based on the record,
substantial evidence supports the ALJ’s decision to accord little weight to Dr.
Jamil’s conclusion that Carroll is permanently disabled. Because the ALJ touched
4
Although Dr. Jamil wrote on his questionnaire that he first saw Carroll on October 23,
2007, medical records do not reflect any visit or treatment until January 17, 2008.
7
on each of these reasons, we find that he properly stated the justification for
rejecting Dr. Jamil’s opinion.
When a claimant attempts to establish disability through her own testimony
concerning pain or other subjective symptoms, the claimant must satisfy two parts
of a three-part “pain standard,” which requires (1) evidence of an underlying
medical condition and (2) either (A) objective medical evidence that confirms the
severity of the alleged pain stemming from that condition or (B) that the
objectively determined medical condition can reasonably be expected to cause the
alleged pain. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
curiam). “After considering a claimant’s complaints of pain, the ALJ may reject
them as not creditable, and that determination will be reviewed for substantial
evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (per curiam)
(citation omitted). The ALJ must explicitly and adequately articulate his reasons if
he discredits critical subjective testimony. Id. “A clearly articulated credibility
finding with substantial supporting evidence in the record will not be disturbed by
a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (per
curiam) (citation omitted).
Here, substantial evidence supports the ALJ’s finding that Carroll’s
testimony was not credible to the extent it exceeded the residual functional
8
capacity assessment (RFC). Carroll’s testimony that she hallucinated, heard
things, felt extreme anger, and entertained suicidal and homicidal thoughts
exceeded (and was more severe than) the documentary evidence. At least two of
Carroll’s doctors noted that during treatment Carroll denied ever having
hallucinations or suicidal thoughts. Moreover, her testimony is inconsistent with
evidence from the evaluating psychologists, who found that she exhibited only
moderate psychological symptoms. Based on the documentary evidence in the
record, substantial evidence supports the ALJ’s conclusion to discredit Carroll’s
testimony. We also find that the ALJ sufficiently articulated these reasons
underlying his finding.
IV.
Carroll next argues that substantial evidence does not support the finding
that she can perform medium work because the VE based his determination on an
improper hypothetical question.
The Social Security Regulations outline a five-step process used to
determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). If at any
step a disability determination or decision can be made, the inquiry need not
proceed further. Id. Under the first step, the ALJ must determine whether the
claimant is currently engaged in substantial gainful activity. Id.
9
§ 404.1520(a)(4)(i). At step two, the ALJ must determine whether the claimant
has a severe impairment or combination of impairments. Id. § 404.1520(a)(4)(ii).
Third, the ALJ must determine whether the claimant’s impairment meets or equals
the criteria contained in one of the Listings of Impairments. Id.
§ 404.1520(a)(4)(iii). Fourth, if the claimant cannot meet the criteria, the
claimant’s RFC is assessed, and the ALJ must determine if she has an impairment
that prevents her from performing her past relevant work. Id.
§ 404.1520(a)(4)(iv). Fifth, once a claimant establishes that she cannot perform
her past relevant work due to some severe impairment, the ALJ must determine
whether significant numbers of jobs exist in the national economy that the
claimant can perform. Id. § 404.1520(a)(4)(v). In this appeal, we are concerned
only with this final step.
One manner of determining the step-five inquiry is for the ALJ to ask a VE
a series of hypothetical questions “to establish whether someone with the
limitations that the ALJ has previously determined that the claimant has will be
able to secure employment in the national economy.” Phillips v. Barnhart, 357
F.3d 1232, 1240 (11th Cir. 2004). We will affirm if the ALJ’s finding that other
work exists is supported by substantial evidence. Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986) (per curiam). For a VE’s answer to a hypothetical question to
10
constitute substantial evidence, the question must encompass all of the claimant’s
mental and physical impairments. Phillips, 357 F.3d at 1240 n.7. However, the
ALJ is not required to include findings in the hypothetical that the ALJ has found
to be unsupported. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th
Cir. 2004) (per curiam).
To begin, the VE was asked hypothetical questions that incorporated the
mental and emotional RFC determinations that were supported by record evidence.
The ALJ properly excluded from the hypothetical questions Carroll’s subjective
symptoms that exceeded the RFC determination. See id. After reviewing all of
the hypothetical questions, we find that the ALJ properly posed hypothetical
questions that were supported by record evidence. The evidence as a whole,
including that elicited from the VE, supports the ALJ’s finding that Carroll could
perform a range of medium work that was present in the economy in significant
numbers.
In conclusion, we find that remand is not necessary in light of the recent
decision that Carroll is entitled to benefits. The ALJ properly weighed the
testimony of both Carroll and Dr. Jamil. Finally, the hypothetical questions posed
to the VE were proper, as they included the symptoms from the RFC
determinations.
11
AFFIRMED.
12
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02-12-118-CV
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00118-CV
$11,530.00 Current Money of the United States
APPELLANT
V.
The State of Texas
APPELLEE
----------
FROM THE 16th
District Court OF Denton COUNTY
----------
MEMORANDUM
OPINION[1]
----------
Ray
Lynn Millaway, pro se, attempts to appeal from the underlying trial court cause
number 2012-10167-16. On March 23, 2012, we notified Millaway of our concern
that we might not have jurisdiction over this appeal because the trial court
had not signed an order in the case, meaning there did not appear to be a final
judgment or appealable interlocutory order. We stated that unless Millaway or
any party desiring to continue the appeal filed a response showing grounds for
continuing the appeal on or before April 12, 2012, the appeal could be
dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. Millaway
filed a response, conceding that this court does not have jurisdiction but
stating, “I want my options open in case.” The response does not show grounds
for continuing this appeal.
The
general rule, with a few exceptions, is that an appeal may be taken only from a
final judgment. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
Here, the trial court has not signed any appealable interlocutory orders or a
final judgment. Accordingly, we dismiss this appeal for want of jurisdiction. See
Tex. R. App. P. 42.3(a), 43.2(f).
PER CURIAM
PANEL:
GARDNER,
WALKER, and MCCOY, JJ.
DELIVERED: May 10, 2012
[1]See Tex. R. App. P. 47.4.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3355
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Aaron Gonzalez, also known as Aaron *
Elizondo, also known as Aaron * [UNPUBLISHED]
Martinez, *
*
Appellant. *
___________
Submitted: April 6, 2004
Filed: April 12, 2004
___________
Before BYE, McMILLIAN, and RILEY, Circuit Judges.
___________
PER CURIAM.
Aaron Gonzalez (Gonzalez) appeals the sentence the district court1 imposed
after he pled guilty to participating in a drug conspiracy, in violation of 21 U.S.C.
§ 846. Gonzalez argues that the two felony convictions upon which the court relied
to classify him as a career offender did not qualify as convictions under U.S.S.G.
§ 4B1.1(a), because the Nebraska Department of Correctional Services had issued
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
certificates for both convictions that showed he had been “discharged” and “restored
all [his] civil rights as provided by law.” In support of this argument, Gonzalez
analogizes his case to United States v. Gallaher, 275 F.3d 784 (9th Cir. 2001), where
a divided panel of the Ninth Circuit Court of Appeals held that (1) if a state had
restored the defendant’s civil rights with respect to a prior conviction by issuance of
a certificate, and (2) the certificate did not expressly contain a restriction pertaining
to firearms, the prior conviction may not be used as a predicate offense under the
Armed Career Criminal Act, 18 U.S.C. § 924.2 Here, even if this court were to agree
with Gonzalez that Gallagher applies, Gonzalez’s argument fails because both
certificates on Gonzalez included the following disclaimer: “The issuance of this
Certificate of Discharge does not restore to the above captioned individual his/her
right to bear arms.” We conclude that a state certificate which merely reinstates a
former prisoner’s civil rights does not prevent the conviction from being counted
under section 4B1.1(a). See U.S.S.G. §§ 4B1.2 n.3, 4A1.2 n.10. Accordingly, we
affirm.
______________________________
2
Gonzalez’s reliance on United States v. Gallaher, 275 F.3d 784 (9th Cir.
2001), is misplaced. In Gallaher, the defendant was convicted of being a felon in
possession of ammunition. Moreover, the holding was based on the plain language
of 18 U.S.C. § 921(a)(20).
-2-
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, AtLee and Senior Judge Clements
PUBLISHED
Argued at Lexington, Virginia
JAMES WILLIS CAMPBELL, SR.
OPINION BY
v. Record No. 1404-15-3 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 25, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge Designate
Robert C. Goad, III (Shrader Law Office, on brief), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
An Amherst County grand jury indicted James Willis Campbell, Sr. (appellant) for
manufacturing or possessing methamphetamine with the intent to distribute it. See Code
§ 18.2-248. Appellant moved to suppress the evidence seized when the police entered his
property and searched it on August 6, 2014 pursuant to a search warrant. The trial court found
that the affidavit upon which the warrant was based was not filed as required by Code § 19.2-54,
Virginia’s statute prohibiting general warrants and detailing the procedures for filing warrants
and affidavits. Nonetheless, the trial court found that probable cause and exigent circumstances
existed to justify a search without a warrant, and denied the motion to suppress the evidence. On
appeal, appellant argues the trial court erred in denying the motion to suppress. For the reasons
that follow, we reverse the trial court’s ruling and remand the matter to the trial court.
BACKGROUND
“When reviewing a trial court’s denial of a defendant’s motion to suppress, we review the
evidence in the light most favorable to the Commonwealth, according it the benefit of all
reasonable inferences fairly deducible from the evidence.” Anderson v. Commonwealth, 279
Va. 85, 90, 688 S.E.2d 605, 607 (2010).
At about 10:30 p.m. on August 6, 2014, a magistrate issued a search warrant for premises
owned by appellant and located in Amherst County. The warrant authorized a search for items
related to the manufacture of methamphetamine. Investigator James Begley appeared before the
magistrate and executed the affidavit in support of the search warrant. The affidavit included
information Begley had received from an informant regarding the existence of a
methamphetamine lab on appellant’s property. The informant had advised Begley that a “meth
cook” was planned for later that evening.
Begley left the magistrate’s office with two signed copies of the warrant and the
underlying affidavit. He gave one copy to the Virginia State Police. Begley and officers with
the Virginia State Police tactical team executed the warrant at 11:52 p.m. on August 6, 2014.
The officers seized evidence related to the manufacture of methamphetamine. They arrested
appellant and others.
The magistrate retained one copy of the search warrant and affidavit, which contained
handwritten additions to indicate appellant’s property was located in Madison Heights, a
community within Amherst County. Documents relating to the warrant subsequently were faxed
from the magistrate’s office to the clerk of the circuit court for Amherst County, and were filed
there on August 7, 2014. However, only the first page of the affidavit and the search warrant
were received and filed. The second page of the affidavit, containing the facts constituting
probable cause, was not received or filed.
Appellant was indicted for the offense on February 10, 2015. Appellant filed a motion to
suppress the evidence on March 26, 2015 and an amended motion to suppress on April 2, 2015.
He alleged that the evidence seized pursuant to the warrant should be suppressed because the
-2-
complete affidavit supporting the warrant had not been filed as required by Code § 19.2-54.
Although initially finding the violation of the filing requirement was a procedural matter, the
trial court ultimately concluded that the failure to file the complete affidavit required suppression
of the evidence.
The Commonwealth moved for reconsideration of the trial court’s decision. It also
argued that, notwithstanding any violation of the statutory filing requirement, the good faith
exception to the Fourth Amendment exclusionary rule applied. The Commonwealth also
contended probable cause and exigent circumstances existed to justify a warrantless search of
appellant’s property.
At an evidentiary hearing on the motion to reconsider, the Commonwealth was unable to
produce the original copy of the second page of the search warrant affidavit. Placed before the
trial court, and made a part of the record, was the copy of the affidavit Begley had retained.
Begley’s copy of the affidavit differed from the document faxed to the circuit court clerk in that
Begley’s copy did not contain the handwritten notations that appellant’s property was in
Madison Heights. The trial court declined to disturb its prior ruling suppressing the evidence due
to the violation of Code § 19.2-54. The trial court took under advisement the Commonwealth’s
contention that probable cause and exigent circumstances existed to justify a warrantless search
of the property.
The trial court then proceeded to hear evidence of the substantive offense, including
evidence obtained from the search on August 6, 2014. At the conclusion of the
Commonwealth’s evidence, the trial court found that probable cause and exigent circumstances
justified a warrantless search of appellant’s property and that the prosecution’s evidence was
admissible. Appellant presented no evidence, and the trial court found him guilty of the charged
offense.
-3-
DISCUSSION
Code § 19.2-54 provides, in pertinent part:
No search warrant shall be issued until there is filed with
the officer authorized to issue the same an affidavit of some person
reasonably describing the place, thing, or person to be searched,
the things or persons to be searched for thereunder, alleging briefly
material facts, constituting the probable cause for the issuance of
such warrant and alleging substantially the offense in relation to
which such search is to be made and that the object, thing, or
person searched for constitutes evidence of the commission of such
offense. The affidavit may be filed by electronically transmitted
(i) facsimile process or (ii) electronic record as defined in
§ 59.1-480. Such affidavit shall be certified by the officer who
issues such warrant and delivered in person; mailed by certified
mail, return receipt requested; or delivered by electronically
transmitted facsimile process or by use of filing and security
procedures as defined in the Uniform Electronic Transactions Act
(§ 59.1-479 et seq.) for transmitting signed documents, by such
officer or his designee or agent, to the clerk of the circuit court of
the county or city wherein the search is made, with a copy of the
affidavit also being delivered to the clerk of the circuit court of the
county or city where the warrant is issued, if in a different county
or city, within seven days after the issuance of such warrant and
shall by such clerks be preserved as a record and shall at all times
be subject to inspection by the public after the warrant that is the
subject of the affidavit has been executed or 15 days after issuance
of the warrant, whichever is earlier . . . . Each such clerk shall
maintain an index of all such affidavits filed in his office in order
to facilitate inspection. No such warrant shall be issued on an
affidavit omitting such essentials, and no general warrant for the
search of a house, place, compartment, vehicle or baggage shall be
issued. The term “affidavit” as used in this section, means
statements made under oath or affirmation and preserved
verbatim.
Failure of the officer issuing such warrant to file the
required affidavit shall not invalidate any search made under the
warrant unless such failure shall continue for a period of 30 days.
If the affidavit is filed prior to the expiration of the 30-day period,
nevertheless, evidence obtained in any such search shall not be
admissible until a reasonable time after the filing of the required
affidavit.
(Emphasis added).
-4-
The statutory framework set forth in Code § 19.2-54 requires that the search warrant
affidavit be filed in the circuit court clerk’s office within a relatively brief period of time after the
search warrant is issued or executed. “Affidavit” means the statements made under oath by the
affiant when he sought the search warrant. See id. See also Quintana v. Commonwealth, 224
Va. 127, 136, 295 S.E.2d 643, 646 (1982) (under Code § 19.2-54, “‘the required affidavit’ means
the affidavit required to support issuance of a search warrant”).
In this case, only one page of the affidavit for the search warrant was filed with the clerk
of the Circuit Court of Amherst County. The single page that was filed did not contain Begley’s
sworn statements of material facts constituting probable cause. It is clear, and the parties do not
dispute, that the affidavit filing requirement of Code § 19.2-54 was not satisfied in this instance.
Thus, we must determine whether, and under what circumstances, a violation of the filing
requirement of Code § 19.2-54 mandates suppression of evidence seized pursuant to a warrant.
At the outset, it is important to distinguish the potential remedy of exclusion of evidence
pursuant to Code § 19.2-54 from the exclusionary rule recognized to redress violations of the
Fourth Amendment of the United States Constitution. The Fourth Amendment protects against
unreasonable searches and seizures by the police, but “is silent about how this right is to be
enforced. To supplement the bare text, [the United States Supreme Court] created the
exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence
obtained by way of a Fourth Amendment violation.” Davis v. United States, 564 U.S. 229,
231-32 (2011). This exclusionary rule applies only to constitutional violations, not to alleged
violations of state laws governing police encounters with members of the public. See Virginia v.
Moore, 553 U.S. 164, 178 (2008).
“Absent an infirmity of constitutional dimensions, the ‘mere violation of state statutory
law does not require that the offending evidence be suppressed, unless the statute expressly
-5-
provides for an evidentiary exclusion remedy.’” Cutright v. Commonwealth, 43 Va. App. 593,
600, 601 S.E.2d 1, 4 (2004) (quoting Seaton v. Commonwealth, 42 Va. App. 739, 757 n.7, 595
S.E.2d 9, 17 n.7 (2004)). The Supreme Court of the United States has made clear that states may
impose consequences for violation of a state statute, even where the search or seizure did not
also violate the Fourth Amendment. See Moore, 553 U.S. at 173 (observing that “when States
go above the Fourth Amendment minimum, the Constitution’s protections concerning search and
seizure remain the same”). “A State is free to prefer one search-and-seizure policy among the
range of constitutionally permissible options, but its choice of a more restrictive option does not
render the less restrictive ones unreasonable, and hence unconstitutional.” Id. at 174.
The Supreme Court of Virginia has observed that Code § 19.2-54 “deals with the
admissibility of evidence seized in the search” pursuant to a warrant. 1 Lane v. Commonwealth,
223 Va. 713, 719, 292 S.E.2d 358, 362 (1982). However, no known Virginia case law has
concluded that Code § 19.2-54 requires exclusion of evidence if the requirement for filing a
search warrant affidavit was not met. Most of the decisions considering the application of Code
§ 19.2-54 have focused on the “notice-based” purpose of the statute and whether the defendant
sustained any prejudice as a result of noncompliance.
In Quintana, the defendant moved to suppress evidence seized in a search because the
magistrate failed to strictly comply with the procedural requirements of Code § 19.2-54.
Specifically, the magistrate who issued the search warrant did not certify the supporting affidavit
before he filed it with the clerk of the circuit court, nor did he do so within thirty days after
issuance of the search warrant. Quintana, 224 Va. at 136, 295 S.E.2d at 646. The Court rejected
1
Code § 19.2-54 is titled, “Affidavit preliminary to issuance of search warrant; general
search warrant prohibited; effect of failure to file affidavit.” (Emphasis added). “A title may be
read in an attempt to ascertain an act’s purpose, though it is no part of the act itself.” Newton v.
Commonwealth, 29 Va. App. 433, 441-42, 512 S.E.2d 846, 850 (1999) (quoting Hawkins v.
Commonwealth, 255 Va. 261, 269, 497 S.E.2d 839, 842 (1998)).
-6-
the argument that “the required affidavit” had not been filed within thirty days and that
consequently the search was invalid. The Court found that the purpose of the certification
requirement “in our statute is to insure that the affidavit filed with the clerk for the information
of the accused is the same affidavit upon which the finding of probable cause was based.” Id. at
136, 295 S.E.2d at 646-47. See also Garza v. Commonwealth, 228 Va. 559, 566, 323 S.E.2d
127, 131 (1984) (stating the purpose of Code § 19.2-54 “is to give the defendant reasonable
opportunity to determine that the affidavit on file is the same one upon which the determination
of probable cause was based”).
In Lockhhart v. Commonwealth, 34 Va. App. 329, 335-36, 542 S.E.2d 1, 4 (2001), the
defendant moved to suppress evidence seized pursuant to a search warrant because the
magistrate himself did not file the supporting affidavit within thirty days of the issuance of the
warrant. Rather than the magistrate, the police officer who obtained the warrant filed the
warrant, inventory from the search, and the original supporting affidavit with the clerk of the
circuit court. Not until ten months after the warrant was issued did the magistrate file the
documents required by Code § 19.2-54. See Lockhart, 34 Va. App. at 336-37, 542 S.E.2d at 4.
This Court found that “[t]he purpose of the filing requirement, like the certification requirement,
‘is to give the defendant reasonable opportunity to determine that the affidavit on file is the same
one upon which the determination of probable cause was based.’” Id. at 338, 542 S.E.2d at 5
(quoting Robertson v. Rogers, 2 Va. App. 503, 507, 346 S.E.2d 41, 44 (1986)). We concluded:
[T]he supporting affidavit filed by [the officer] was the same one
he subscribed before the magistrate. The affidavit was on file in
the clerk’s office available for inspection by [the defendant] the
day after the search warrant was issued. We find, therefore, that,
even though the affidavit was delivered to the clerk’s office by the
officer who executed the search warrant rather than by the
magistrate who issued the warrant, the notice-based purpose of
-7-
Code § 19.2-54 was achieved and [the defendant] suffered no
prejudice as a result of the affidavit not having been filed by the
magistrate.
Id.
Unlike in Quintana and Lockhart, the incomplete affidavit that was filed in this case was
not the same one upon which the determination of probable cause was based. Obviously, a
second page, containing Begley’s statements to support probable cause, was missing. In
addition, the one page of the affidavit that was filed did not contain the handwritten notations
regarding Madison Heights that appeared on the copy of the affidavit later produced by Begley at
a suppression hearing. In the course of the proceedings in the trial court, the Commonwealth
was unable to produce the original affidavit certified by the magistrate.
As earlier noted, the final paragraph of Code § 19.2-54 states:
Failure of the officer issuing such warrant to file the
required affidavit shall not invalidate any search made under the
warrant unless such failure shall continue for a period of 30 days.
If the affidavit is filed prior to the expiration of the 30-day period,
nevertheless, evidence obtained in any such search shall not be
admissible until a reasonable time after the filing of the required
affidavit.
“The primary objective of statutory construction is to ascertain and give effect to
legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998).
In pursuit of this objective, “[c]ourts are required to apply the plain language of a statute when
possible and may not rewrite it.” Parker v. Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007).
The final paragraph of Code § 19.2-54 is no model of clarity regarding the consequences
intended by the General Assembly upon a failure to comply with the statutory filing requirement.
But, it provides implicitly that a search is invalid if the failure to file the required affidavit
continues for thirty days. To interpret the statute otherwise would give no meaning to the word
“unless.” “[W]e . . . presume that the legislature chose, with care, the words it used when it
-8-
enacted the relevant statute.” Seabolt v. Cnty. of Albemarle, 283 Va. 717, 720, 724 S.E.2d 715,
717 (2012) (quoting Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404 (2011)).
Accordingly, we find that, pursuant to the higher standard set in Code § 19.2-54 by the
General Assembly, see Moore, 553 U.S. at 173, a search is invalid and evidence obtained in the
search is inadmissible if the search warrant affidavit, including the sworn statements providing
probable cause, is not filed with the clerk for a period of thirty days from the issuance or
execution of the warrant. Having reached the conclusion that the evidence obtained pursuant to
the search warrant should have been suppressed by operation of state statute, the question of
whether the search and seizure of evidence also violated the Fourth Amendment is irrelevant.2
2
Although finding the evidence should be suppressed due to the violation of Code
§ 19.2-54, the trial court found the presence of probable cause and exigent circumstances
permitted a warrantless search of appellant’s property without violation of the Fourth
Amendment.
Although the text of the Fourth Amendment does not
specify when a search warrant must be obtained, this Court has
inferred that a warrant must generally be secured. “It is a ‘basic
principle of Fourth Amendment law,’” we have often said, “‘that
searches and seizures inside a home without a warrant are
presumptively unreasonable.’” Brigham City v. Stuart, 547 U.S.
398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559
(2004)). But we have also recognized that this presumption may
be overcome in some circumstances because “the ultimate
touchstone of the Fourth Amendment is ‘reasonableness.’”
Brigham City, supra, at 403. . . . Accordingly, the warrant
requirement is subject to certain reasonable exceptions. Brigham
City, supra, at 403.
One well-recognized exception applies when “‘the
exigencies of the situation’ make the needs of law enforcement so
compelling that [a] warrantless search is objectively reasonable
under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385,
394 (1978) . . . .
Kentucky v. King, 563 U.S. 452, 459-60 (2011).
The trial court’s application of the exigent circumstances exception to the warrant
requirement was inapposite. Regardless of the facts and circumstances facing the police officers
-9-
As a matter of state law, the evidence was inadmissible. “The doctrine of judicial restraint
dictates that we decide cases ‘on the best and narrowest grounds available.’” Commonwealth v.
Swann, 290 Va. 194, 196, 776 S.E.2d 265, 267 (2015) (quoting McGhee v. Commonwealth, 280
Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010)).
CONCLUSION
For the foregoing reasons, we reverse the trial court’s decision to admit evidence
obtained in the search executed pursuant to the warrant, and reverse appellant’s conviction. We
remand the matter to the trial court for retrial if the Commonwealth be so advised.
Reversed and remanded.
who arrived at appellant’s property to search it, the police had in fact obtained a search warrant.
There was no warrantless search or seizure in this instance.
- 10 -
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136 So.2d 377 (1962)
J. Ray PERMENTER, Appellant,
v.
BANK OF GREEN COVE SPRINGS, a banking Corporation, Appellee.
No. C-416.
District Court of Appeal of Florida, First District.
January 16, 1962.
*378 Evans, Stewart & Proctor, Jacksonville, for appellant.
Goldstein & Goldstein, Jacksonville, for appellee.
STURGIS, Judge.
The plaintiff below, Permenter, seeks reversal of an order of the Circuit Court of Duval County, Florida, dismissing this action at law upon motion of the defendant-appellee for want of venue.
Omitting dates, the complaint names "The Bank of Green Cove Springs, a banking corporation," as defendant and alleges in substance that for a consideration of $3,001.60 defendant issued and delivered to plaintiff its check in the amount of $3,000.00 drawn on The Atlantic National Bank of Jacksonville, at Jacksonville, Florida, and thereafter directed the Jacksonville bank not to pay the same, as a consequence whereof plaintiff has been deprived of said $3,001.60 which the defendant was and remains obligated to pay to plaintiff.
The defendant bank moved to "dismiss the complaint because of improper venue," but did not support the same with any proofs in the premises. Upon consideration thereof the following order was entered:
"This cause came on this day to be heard on defendant's motion to dismiss because of improper venue, and the same having been argued by counsel for the respective parties to this cause, upon consideration thereof, it is
"ORDERED AND ADJUDGED that said motion to dismiss be, and the same is, granted, and this cause be, and the same hereby is, dismissed."
*379 Section 46.04, Florida Statutes 1959, F.S.A., relating to venue in suits against corporations, provides:
"Suits against domestic corporations shall be commenced only in the county (or justice's district) where such corporation shall have or usually keep an office for the transaction of its customary business, or where the cause of action accrued, or where the property in litigation is located; and in the case of companies incorporated in other states or countries, and doing business in this state, suits shall be commenced in a county or justice's district wherein such company may have an agent or other representative, or where the cause of action accrued, or where the property in litigation is situated."
As appellant contends, for aught that appears from the record before this court the defendant, at the time of the institution of this suit, had an office in Duval County for the transaction of its customary business, or had an agent or other representative in that county, either of which circumstances would suffice under the statute. Opposing that contention, on oral argument counsel for appellee stated that when the motion to dismiss was argued before the trial court, counsel for plaintiff conceded that the defendant is a domestic corporation chartered and licensed to do business in Green Cove Springs, Florida, which is located in Clay County, that the transactions surrounding the issuance and delivery of the check in suit occurred at defendant's banking offices in Green Cove Springs, and that process in this cause was served upon the defendant in Clay County. We do not question that occurrence, and it is quite likely that it provided the basis upon which the order appealed was entered. We are compelled to observe, however, that the record is devoid of any affirmative showing to that effect, either by way of stipulation, proofs, recitation in the order, or otherwise. It is fundamental to appellate review that this court may not go beyond the record lodged here, except as to matters of which the court takes judicial notice. Even if it were established that the defendant is licensed to do business in Green Cove Springs, Clay County, Florida, and was served with process in that county, such factors have no bearing on the question of venue under the statute.
Rule 1.11(b), 1954 Florida Rules of Civil Procedure, 30 F.S.A., provides that improper venue may be asserted in the responsive pleading, if one is required, to any claim, counterclaim or cross-claim, or at the option of the pleader may be made by motion. Subdivision (d) of the rule provides that the defenses referred to in subdivision (b), whether made in a pleading or by motion, "shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof shall be deferred until the trial"; which presupposes the interposition of a competent defense or motion presenting an issue of fact with respect to one or more of the defenses specified in subdivision (b). Assuming the pleadings of the adverse party do not affirmatively show that venue is lacking, the challenging party has the burden of establishing its absence. A defense asserting a statutory privilege to be sued in a county other than the one in which the suit or action is brought should by specific averments negative a right of the plaintiff to maintain the suit or action in the county where brought, under any applicable provision of law; and to that end should contain specific averments as to the place where defendant resides, where the cause of action accrued, or where the property in litigation is located, with such degree of certainty as to exclude the idea that the suit was brought in the proper county. Bailey v. Crum, 120 Fla. 36, 162 So. 356; L.B. McLeod Const. Co. v. State, etc., 106 Fla. 805, 143 So. 594; Ritch v. Adams, 102 Fla. 983, 136 So. 719; Williams v. Peninsular Grocery Co., 73 Fla. 937, 75 So. 517. Where that is done the challenging party is entitled to a separate trial, in advance of the trial on the merits, on the questions of fact presented by the *380 defense or motion under Rule 1.11(b). Largay Enterprises Inc. v. Berman, Fla., 61 So.2d 366.
It does not affirmatively appear by the pleadings that venue in this cause lies elsewhere than in Duval County; and the motion to dismiss addressed by the defendant upon that subject is insufficient to constitute a defense on the ground of improper venue. Accordingly, the trial court committed error in granting the motion.
As stated, it is alleged that the subject check was payable at the Atlantic National Bank of Jacksonville in Duval County. While plaintiff failed to attach a copy thereof to the complaint, that omission is not an issue on this appeal and is not germane to the question of venue.
Appellee contends that Section 46.05, Florida Statutes 1959, F.S.A., relating to venue of action upon promissory notes, etc., controls venue in suits involving default in payment of checks, but we do not so construe it. That statute relates exclusively to "promissory notes * * * the payment of which is not secured by a mortgage or pledge of real or personal property," and does not remotely purport to govern venue of actions to enforce the obligation of a check.
We deem it advisable to discuss the question of whether or not the giving by the defendant of a check drawn on a bank in Duval County constitutes a contract on the part of defendant with a holder in due course to perform an obligation in that county, so that upon default in payment thereof a cause of action accrues against the defendant in that county. It is elemental that a check is a written contract to be performed at the place where is located the banking house or place of business of the person on whom it is drawn, and it is not necessary that the contract shall in express words require performance in a particular county. Where performance is a necessary implication from the context of the instrument, it answers the demands of Section 46.04, Florida Statutes 1959, F.S.A., with regard to where the cause of action accrues. The check in suit evidenced a promise on the drawer's part to pay the amount of the check in Jacksonville, Duval County, Florida, through a bank primarily, and if that was not done, then through itself, and the moment the Jacksonville bank refused to pay it the primary liability of the drawer asserted itself. Metropolitan Loan Co. v. Reeves, Tex.Civ.App., 236 S.W. 762.
Reversed and remanded for proceedings consistent herewith.
CARROLL, DONALD K., C.J., and WIGGINTON, J., concur.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 30 2000
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
WILLIE LEE NICKLEBERRY, JR.,
Petitioner-Appellant,
No. 00-6226
v. (W.D. Okla.)
(D.Ct. No. 99-CV-468-M)
GLYNN BOOHER,
Respondent-Appellee.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant, Willie Lee Nickleberry, Jr., a state inmate appearing pro se,
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
appeals the district court’s decision denying his habeas petition filed pursuant to
28 U.S.C. § 2254. We deny Mr. Nickleberry’s request for a certificate of
appealability and to proceed in forma pauperis, and dismiss his appeal.
In his federal habeas petition, Mr. Nickleberry challenged his Oklahoma
convictions of one count of larceny of merchandise from a retailer after two or
more felonies, and one count of assault and battery. As grounds supporting his
petition, Mr. Nickleberry contended the state trial court violated his constitutional
rights by: 1) restricting cross-examination of a witness, for impeachment
purposes, concerning the value of the stolen item, and 2) failing to properly
respond to a jury question without notifying defense counsel. The district court
referred the matter to a magistrate judge who issued a carefully written and
thorough Report and Recommendation, discussing the surrounding circumstances
and merits of Mr. Nickleberry’s claims and recommending his petition be denied.
In so doing, the magistrate judge determined Mr. Nickleberry failed to
demonstrate the Oklahoma court’s resolution of these claims was contrary to, or
an unreasonable application of, clearly established federal law, or involved an
unreasonable factual determination.
Mr. Nickleberry filed an objection to the Report and Recommendation, and
-2-
for the first time claimed the trial court erred in enhancing his sentence based on
his prior convictions. After considering Mr. Nickleberry’s objections, the district
court adopted the magistrate judge’s Report and Recommendation, but directed
the magistrate judge to consider Mr. Nickleberry’s newly raised sentence
enhancement claim. At the district court’s direction, the magistrate judge issued a
cogent Supplemental Report and Recommendation, explaining Mr. Nickleberry
failed to exhaust his sentence enhancement claim in the state courts. The
magistrate judge nevertheless decided to address Mr. Nickleberry’s sentence
enhancement claim on the merits. In rejecting his claim, the magistrate judge
concluded: (1) application of Oklahoma’s habitual criminal enhancement statute
to Mr. Nickleberry’s sentence raised a matter of state law, and (2) Mr.
Nickleberry failed to show the sentence imposed was outside the possible range of
punishment provided by statute. The magistrate judge then recommended Mr.
Nickleberry’s habeas petition be denied in its entirety. Accordingly, the district
court adopted the Supplemental Report and Recommendation and denied Mr.
Nickleberry’s habeas petition.
On appeal, Mr. Nickleberry raises the same claims addressed by the
magistrate judge and district court. He also claims his petition raises issues
debatable among jurists because two state appellate court judges dissented with
-3-
the majority in ruling on his direct appeal.
When reviewing the denial of a § 2254 petition, we review the district court
factual findings for clear error and its legal rulings de novo. See Rogers v.
Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944
(2000). Applying this standard and after a careful review of the record, we agree
with the thorough and well-reasoned assessment of Mr. Nickleberry’s claims in
the magistrate judge’s February 29, 2000 Report and Recommendation, and May
31, 2000 Supplemental Report and Recommendation. For that reason, we decline
to duplicate the same analysis.
In addition, we reject Mr. Nickleberry’s claim his petition raises issues
debatable among jurists because two state appellate court judges dissented from
the majority, which affirmed Mr. Nickleberry’s convictions on direct appeal. In
this case, the issue is not whether the state’s appellate justices actually disagreed
on the underlying merits of Mr. Nickleberry’s direct appeal, but whether
reasonable jurists would debate whether the state court’s adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
-4-
See Herrera v. Lemaster, 225 F.3d 1176, 1178 (10th Cir. 2000) (quoting 28
U.S.C. § 2254(d) (Supp. III 1997)). Applying this criteria, we conclude Mr.
Nickleberry fails to “demonstrate that jurists of reason would find the district
court’s assessment of the constitutional issues debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, ___, 120 S. Ct. 1595, 1604 (2000). In other words, Mr.
Nickleberry fails “to demonstrate that reasonable jurists could debate whether ...
the petition should have been resolved in a different matter or that the issues
presented were adequate to deserve encouragement to proceed further.” Tillman
v. Cook, 215 F.3d 1116, 1133 (10th Cir.) (quotation marks and alterations
omitted) (rejecting similar contention by petitioner in which individual state court
justices dissented in different proceedings on different issues, but the majority
nevertheless affirmed petitioner’s conviction and sentence), petition for cert.
filed, (U.S. Sept. 13, 2000) (No. 00-6580). Thus, we conclude Mr. Nickleberry
fails to make the substantial showing of the denial of a constitutional right
required for a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
Based on this reasoning, and for substantially the same reasons set forth in
the district court’s April 20, 2000 and June 19, 2000 Orders, and the magistrate
judge’s February 29, 2000 Report and Recommendation, and May 31, 2000
Supplemental Report and Recommendation, we deny Mr. Nickleberry’s motion
-5-
for a certificate of appealability, deny his motion to proceed in forma pauperis,
and DISMISS his appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
-6-
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307 F.2d 632
113 U.S.App.D.C. 295
Thomas C. KEININGHAM, Appellant,v.UNITED STATES of America, Appellee.
No. 16981.
United States Court of Appeals District of Columbia Circuit.
Argued June 29, 1962.Decided July 19, 1962, Petition for Rehearing En Banc DeniedEn Banc Sept. 18,1962.
Mr. Kenneth D. Wood, Washington, D.C., for appellant.
Mr. William C. Wetzel, Jr., Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Nathan J. Paulson and Frederick G. Smithson, Asst. U.S. Attys., were on the brief, for appellee. Mr. John R. Schmertz, Jr., Asst. U.S. Atty., also entered an appearance for appellee.
Before WILBUR K. MILLER, Chief Judge, and BURGER and WRIGHT, Circuit judges.
BURGER, Circuit Judge.
1
This is a paid appeal from judgment of conviction after trial before Judge Youngdahl without a jury. Our disposition of the case makes it important to relate the facts and circumstances, particularly in view of the observations in the opinion in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).1
2
The District Judge's memorandum opinion contains his finding of facts:
3
'The pertinent facts in this case are as follows: At approximately 2:35 P.M. on December 11, 1961, Deputy Chief John Layton of the Gambling Squad, Metropolitan Police Department, had occasion to be on the 700 block of 12th Street, N.W. in the District of Columbia. At that time he observed defendant Keiningham alighting from a cab together with another individual whose identity is unknown. Defendant carried a rather large brown briefcase. Keiningham and Layton passed close to each other. Layton testified that Keiningham saw him at that point. The police officer had had previous professional contacts with the defendant and knew him as a frequent violator of the District's gaming laws. Layton proceeded up the street but stopped and looked back at the defendant Keiningham had now situated himself between the show windows of a book store; the briefcase was no longer in his hand. Layton walked back toward the defendant and observed that the briefcase had been placed on the public sidewalk several feet from the defendnat. As Layton approached Keiningham, the following converstaion ensued:
4
'Layton: 'Hello Tom'.
5
'Keiningham: 'Hello Inspector.'
6
'Layton: 'What are you carrying?' Keiningham then patted his coat and pants pockets and said, (Nothing'.
7
'Layton: 'Hadn't you just carried that (briefcase) from the cab?'
8
'Keiningham: 'No, I don't know anything about the briefcase.'
9
'Layton: 'Do you have any idea what it contains?'
10
'Keiningham: 'No, I don't know anything about it.' 'Layton then remarked that it was careless to leave something like that around and that it might contain valuables.
11
'Keiningham: 'I have no idea, why don't you examine it'. 'Layton then looked inside the briefcase and observed a quantity of money as well as slips and records readily identifiable as 'numbers' paraphernalia. He then placed defendant under arrest; the time was 2:40 P.M.'
12
It was stipulated that the briefcase contained slips, notations and receipts used in a numbers lottery and testimony showed 797 slips representing $4201.99 of play and that these papers showed 104 codes indicating 104 individual 'writers.' The arresting officer testified that he did not arrest or even touch appellant until after he observed the incriminating contents of the briefcase. Appellant who did not testify, now urges that he was under arrest as soon as the officer asked a question about the briefcase.
13
Against the background of these undisputed facts it is clear (1) that the circumstances warranted the officer in making some inquiry about the ownership of the briefcase which was being abandoned in the presence of the officer, (2) that no arrest was made when the questions were asked, (3) that in view of appellanths denial of ownership or knowledge of the briefcase, which the officer had seen in his hand moments before, the officer's personal observations warranted, if not compelled, further inquiry, (4) that, in any event, the officer was justified in accepting appellant's suggestin that he 'examine it,' (5) that the officer's observation of the conents disclosed commission of a crime, and appellant's possession of those materials implicated him directly and provided abundant probable cause for immediate arrest at that point. Campbell v. United States, 110b U.S.App.D.C. 109, 289 F.2d 775 (1961); Dixon v. United States, 111 U.S.App.D.C. 305, 296 F.2d 427 (1961); Goldsmith v. United States, 107 U.S.App.D.C. 305, at 314, 277 F.2d 335, at 344, cert. denied 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960); Ellis v. United States, 105 U.S.App.D.C. 86, 264 F.2d 372, cert. denied, 359 U.S. 998, 79 S.Ct. 1129, 3 L.Ed.2d 986 (1959); Green v. United States, 104 U.S.App.D.C. 23, 159 F.2d 180 (1958), cert. denied, 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 578 (1959); Lee v. United States, 95 U.S.App.D.C. 156, 221 F.2d 29 (1954); Brooks v. United States, 159 A.2d 876 (D.C.Munn.App.1960); Dickerson v. United States, 120 A.2d 588 (D.C.Mun.App.1956); see Nash v. United States, No. 16015, D.C.Cir., aff'd by order, Feb. 14, 1961, but see facts disclosed in Joint Appendix.
14
On this record the appeal should be dismissed as frivolous and an order to that end will be entered.
15
Appeal dismissed as frivolous.
16
Before WILBUR K. MILLER, Chief Judge, EDGERTON, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER and WRIGHT, Circuit Judges, in Chambers.
ORDER
17
PER CURIAM.
18
On consideration of appellant's petition for rehearing en banc, it is
19
ORDERED by the court that the petition be, and it is hereby, denied.
20
BAZELON, Circuit Judge.
21
This paid appeal from a judgment of conviction was fully briefed and argued before a division of this court which considered the issues presented and entered an opinion finding them to be without merit. Instead of following the usual course of affirming the judgment of conviction, however, the court dismissed the appeal as frivolous.
22
Since the merits of the case were fully briefed, argued, and considered by the court, I see no significant difference in the result, as it affects appellant, between dismissal and affirmance. The critical fact is that appellant has had his day in court. If he had not, then wholly different consideration would apply. See Coppedge v. United States.2
1
Until recently there was no occasion for this court to dismiss paid appeals as 'frivolous' since there was no occasion for us to examine into the facts or merits until all briefs and other papers were filed and the case was argued. We usually disposed of such a case with a very short per curiam memorandum opinion
2
'Present federal law has made an appeal from a District Court's judgment of conviction in a criminal case what is, in effect, a matter of right. That is, a defendant has a right to have his conviction reviewed by a Court of Appeals, and need not petition that court for an exercise of its discretion to allow him to bring the case before the court. The only requirements a defendant must meet for perfecting his appeal are those expressed as time limitations within which various procedural steps must be completed.' 369 U.S. 438, 441-442, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962)
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 13, 2006
No. 05-15406
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-20652-CV-JAL
RICHARD JARZYNKA,
Plaintiff-Appellant,
versus
ST. THOMAS UNIVERSITY SCHOOL OF LAW,
et al.,
Defendants,
ST. THOMAS UNIVERSITY, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 13, 2006)
Before TJOFLAT, HULL and BOWMAN,* Circuit Judges.
PER CURIAM:
After review and oral argument in this diversity action, the Court concludes
that the district court properly granted summary judgment to the defendant St.
Thomas University on the claims of the plaintiff Richard Jarzynka.
AFFIRMED.
*
Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit,
sitting by designation.
2
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Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Samuel Deleon Garza, Appellant Appeal from the 196th District Court of
Hunt County, Texas (Tr. Ct. No. 28,998).
No. 06-14-00090-CR v. Memorandum Opinion delivered by Justice
Moseley, Chief Justice Morriss and Justice
The State of Texas, Appellee Burgess participating.
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, Samuel Deleon Garza, has adequately indicated his inability
to pay costs of appeal. Therefore, we waive payment of costs.
RENDERED MARCH 10, 2015
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk
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945 So.2d 463 (2005)
C.H.
v.
STATE of Alabama.
2040683.
Court of Civil Appeals of Alabama.
December 16, 2005.
Rehearing Denied January 27, 2006.
Certiorari Denied June 9, 2006.
*464 Tobie J. Smith, Legal Aid Society of Birmingham, Birmingham, for appellant.
Submitted on appellant's brief only.
Alabama Supreme Court 1050605.
THOMPSON, Judge.
On January 19, 2005, Jo Hollins, the attendance officer for the Birmingham City Board of Education, filed in the Jefferson Juvenile Court a verified complaint charging that C.H., a 14-year-old boy in the eighth grade, was a child in need of supervision ("CHINS") because he had been habitually truant, accumulating 10 absences and 2 tardies from school without providing a legitimate excuse. C.H. entered a plea of "not true" and the juvenile court set the case for a final hearing. After receiving ore tenus evidence, the juvenile court entered an order finding the allegations in the complaint to be "true," adjudicating C.H. a CHINS, and placing C.H. on probation. C.H. timely appealed.
The limited testimony presented at the final hearing consisted of the testimony of Angela Lee, an attendance officer for the Birmingham city school system, and D.H., C.H.'s mother. It is worthy of note that D.H. consistently asserted her Fifth Amendment right against self-incrimination during her short time on the witness stand.[1]
The evidence presented at the hearing established that C.H. had been late to school on 2 occasions and absent from school on 10 occasions from September 2004 to December 2004. A computer printout of C.H.'s attendance record admitted into evidence at the hearing revealed that the tardies and absences on C.H.'s school record at the time the complaint was filed were all unexcused. C.H. never submitted an excuse to the school for his absences; no written excuses are contained in his school records.
Lee testified that the attendance policy adopted by the Birmingham city school system provided for the prosecution of a child over 12 years of age. Lee explained that if the child were under the age of 12, the Birmingham city school system's policy is to hold the parent responsible.
Lee testified that the attendance of students in Birmingham city schools is monitored with the help of an "automated school map system." According to Lee, this system allows homeroom teachers to track a student's daily attendance using a computer program. Lee testified that the computer automatically marks the child *465 present and that the teacher must manually mark the child as absent. Lee testified that if a student is tardy, the student must report to the school's office, and the absence is changed to reflect a tardy.
Lee testified that another attendance officer met with C.H. regarding his absences but that there was no improvement. According to Lee, C.H. was referred to an "Early Warning" program on November 18, 2004, after receiving six unexcused absences and two tardies. Lee testified that C.H. and D.H. were notified by mail and by telephone of C.H.'s referral to the "Early Warning" program but that neither C.H. nor D.H. attended the program. C.H.'s attendance record reveals that he was absent from school four more times without excuse after he and D.H. failed to attend the "Early Warning" program.
"When ore tenus evidence is presented, a presumption of correctness exists as to the trial court's findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). . . . Moreover, `[u]nder the ore tenus rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness.' Transamerica [Commercial Fin. Corp. v. AmSouth Bank], 608 So.2d [375] at 378 [(Ala.1992)]. However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court's judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin's, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). `Questions of law are not subject to the ore tenus standard of review.' Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court's conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (`[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court's judgment carries no presumption of correctness.')."
City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).
On appeal, C.H. contends that the State failed to produce sufficient evidence indicating that D.H., as C.H.'s parent, could not control the child, and, therefore, failed to produce sufficient evidence under § 16-28-14, Ala.Code 1975, indicating that C.H. was habitually truant. Section 16-28-14, Ala.Code 1975, provides, in its entirety, as follows:
"In case any child becomes an habitual truant, or because of irregular attendance or misconduct has become a menace to the best interest of the school which he is attending or should attend, and the parent, guardian or other person files a written statement in court as provided in Section 16-28-13, stating that he is unable to control such child, the attendance officer must file a complaint before the judge of the juvenile court of the county, alleging the facts, whereupon such child must be proceeded against in the juvenile court for the purpose of ascertaining whether such child is a dependent, neglected or delinquent child."
*466 C.H. maintains on appeal that under § 16-28-14 the State had to prove that C.H.'s parent, D.H., could not control him before he could be found to be a CHINS on the basis of habitual truancy. According to C.H., § 16-28-14 places the legal responsibility for a child's failure to attend school on his or her parent. As best we are able to determine, C.H. asserts that the State improperly prosecuted him instead of D.H. for his failure to attend school.[2]
C.H. correctly notes that there is no Alabama caselaw addressing this issue, but, nevertheless, he maintains that the plain language found in § 16-28-14 mandates reversal under the circumstances of this case. Relating to the rules of statutory construction, this court, in W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001), stated:
"In construing a statute, this court looks to the plain meaning of the words used by the Legislature. Our supreme court has said:
"`"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect."'
"Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998)(quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).
"`It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.'
"DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala. 1998)."
W.L.S., 810 So.2d at 779.
Under the plain language of § 16-28-14, an attendance officer is required to file a complaint in the juvenile court when the child becomes an habitual truant and the parent files a written statement in open court saying that they are unable to control the child. Contrary to C.H.'s contention on appeal, § 16-28-14 merely places an affirmative duty on an attendance officer to file a complaint when the circumstances cited above are met. The State is not required under § 16-28-14 to present evidence of a parent's inability to control his or her child before the State may proceed with an action in the juvenile court to find a child to be a CHINS on the basis of habitual truancy as defined in § 12-15-1(4)a., Ala.Code 1975. Therefore, C.H. failed to demonstrate error as to this issue.
C.H. further argues on appeal that, regardless of the application of § 16-28-14 to the facts of this case, the State failed to establish that he was "habitually truant" because, he argues, the State presented insufficient evidence indicating that he refused to attend school and acted against the will of his parent, D.H. Section 12-15-1(4), Ala.Code 1975, defines a "child in *467 need of supervision" as, among other things, one who "[b]eing subject to compulsory school attendance, is habitually truant from school." § 12-15-1(4)a.
"At a hearing on a CHINS petition, the State must first establish, by `proof beyond a reasonable doubt, based upon competent, material, and relevant evidence, that a child committed the acts by reason of which the child is alleged to be . . . in need of supervision.' § 12-15-65(e). . . . If the juvenile court determines that the child committed the acts alleged, the juvenile court `may proceed immediately to hear evidence as to whether the child is in need of care or rehabilitation.' Id.
"Once the predicate act or `offense' has been established by proof beyond a reasonable doubt. . . . [t]he State must establish, by `clear and convincing evidence, competent, material, and relevant in nature, that the child is . . . in need of care or rehabilitation as a . . . child in need of supervision.' § 12-15-65(f), Ala. Code 1975. . . . "
S.H. v. State, 868 So.2d 1110, 1112-13 (Ala.Civ.App.2003)(emphasis omitted).
As discussed above, we do not agree with C.H.'s contention on appeal that the State was required to present evidence indicating that C.H. acted against the will of D.H. or, stated another way, that D.H. could not control C.H. before the juvenile court could adjudicate C.H. to be a CHINS because of his truancy. The undisputed evidence presented by the State in this case established that C.H. had been absent from school on 10 occasions and tardy on 2 occasions without providing the school with an excuse. Therefore, we cannot say that the State failed to present evidence from which the juvenile court could determine C.H. to be habitually truant.
AFFIRMED.
CRAWLEY, P.J., and PITTMAN, J., concur.
MURDOCK and BRYAN, JJ., concur in the result, without writing.
NOTES
[1] The record indicates that before the final hearing began, the juvenile court apprised D.H. of her Fifth Amendment rights and appointed an attorney to represent her.
[2] There is no indication in the record that a complaint was ever filed by the State against D.H. based on C.H.'s lack of attendance at school.
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354 N.W.2d 674 (1984)
Christ N. WEHNER and Helen Wehner, Plaintiffs and Appellees,
v.
Nick SCHROEDER, Ragina Linster, Katherine Kurtz, Louise Clark, John Tormaschy, and Eva Tormaschy, Defendants, and
Albert Tormaschy and Genevieve Tormaschy, Defendants and Appellants.
Civ. No. 10637.
Supreme Court of North Dakota.
July 27, 1984.
*675 Howe, Hardy, Galloway & Maus, Dickinson, for plaintiffs and appellees; argued by Michael J. Maus, Dickinson.
Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendants and appellants; argued by Ward M. Kirby, Dickinson.
GIERKE, Justice.
Albert and Genevieve Tormaschy appeal from a district court judgment quieting title to 50 percent of all oil, gas, and minerals under 160 acres of Stark County property in Christ and Helen Wehner. We affirm.
In 1981, the Wehners brought an action to reform a warranty deed which they had executed in 1950. In that deed, the Wehners conveyed the land at issue to Frank and Barbara Schroeder. No mineral reservation appears in the deed. However, a contract for deed executed between the parties earlier in 1950 states "[t]hat second parties [Schroeders] retain 50% of all oil gas and mineral on said land." Both documents were recorded. In 1963, the Schroeders conveyed the property to John and Eva Tormaschy through a warranty deed which contained no mineral reservation. John and Eva Tormaschy ultimately conveyed the property to their son and his wife, the appellants Albert and Genevieve Tormaschy.
The Wehners claimed that the language in the original contract for deed reserving 50 percent of the mineral interests in the "second parties", was a mistake and that *676 the contract should have stated that they, the "first parties", retained 50 percent of the minerals. The Wehners further asserted that the alleged mineral reservation in the contract for deed was omitted from the warranty deed because of an innocent mutual mistake by the Wehners and the Schroeders. Following a bench trial, the court determined that the Wehners' claim was barred by statutes of limitation and by § 32-04-17, N.D.C.C., which prohibits revision of a contract for fraud or mistake when revision would prejudice the rights acquired by third persons in good faith and for value.
The Wehners appealed, and in Wehner v. Schroeder, 335 N.W.2d 563 (N.D.1983), a majority of this Court reversed the judgment, holding that: (1) Albert and Genevieve Tormaschy had constructive notice of a possible claim by the Wehners through recorded instruments, and therefore reformation under § 32-04-17, N.D.C.C., was not barred because the Tormaschys were not third-party bona fide purchasers; and (2) the Wehners' cause of action was not barred by any statute of limitation in this instance. This Court therefore remanded "for a determination of whether or not the doctrines of estoppel or laches bar the Wehners' action, and, if not, whether or not the 1950 deed should be reformed on the basis of mutual mistake." Wehner, supra, 335 N.W.2d at 567.
On remand, the trial court determined that the Wehners were not estopped from seeking reformation and that laches did not bar their cause of action. The trial court also determined that the Wehners had proven that a mutual mistake was made between themselves and the Schroeders "in that the deed did not contain a reservation of 50 percent of all oil, gas and minerals on the land as the parties had agreed." The trial court therefore ordered reformation, quieted title in the Wehners, and dismissed the Tormaschys' counterclaim. The Tormaschys have appealed.
The issues properly before us for review[1] in this appeal are: (1) whether or not the trial court erred in determining that laches did not bar the Wehners' action; (2) whether or not the trial court erred in determining that the Wehners were not estopped from seeking reformation; and (3) whether or not the trial court erred in determining that the Wehners and Schroeders made a mutual mistake thus entitling the Wehners to reformation of the warranty deed.
LACHES
The Tormaschys argue that the doctrine of laches should bar the Wehners' action which was brought 31 years after the deed was executed.
Laches does not arise from a delay or lapse of time alone, but is such a delay in enforcing one's right as to work a disadvantage to another. Simons v. Tancre, 321 N.W.2d 495, 500 (N.D.1982); Frandson v. Casey, 73 N.W.2d 436, 446 (N.D.1955). Laches is an equitable doctrine, and as such, cases involving laches must stand or fall on their own facts and circumstances. Burlington Northern, Inc. v. Hall, 322 N.W.2d 233, 242 (N.D. 1982); Strom v. Giske, 68 N.W.2d 838, 845 (N.D.1954). This Court has often stated that in addition to the time element, the party against whom laches is sought to be invoked must be actually or presumptively aware of his rights and must fail to assert them against a party who in good faith permitted his position to become so changed that he could not be restored to his former state. E.g., Burlington Northern, Inc., supra; Adams v. Little Missouri Minerals Association, 143 N.W.2d 659, 667 *677 (N.D.1966). Furthermore, the general rule is that "laches do not commence to run against an action for the reformation of an instrument, until the fraud or mistake had been or ought to have been discovered." Annot., 106 A.L.R. 1338, 1345 (1937).
The trial court determined, on the basis of this Court's previous decision in Wehner, that the Wehners' action accrued in 1978 when they discovered that the warranty deed did not contain the mineral reservation. The trial court found that nothing occurred between 1978 and July 1981, when the suit was brought, to prejudice the Tormaschys in defending against the action. We have reviewed the record in this case and conclude that the trial court did not err in determining that the doctrine of laches did not bar the Wehners' action.
ESTOPPEL
The Tormaschys contend that the Wehners should be estopped from asserting their title to the 50 percent mineral interests.
The rule for determining whether or not a party should be estopped from asserting their title to property was first set out by this Court in Gjerstadengen v. Hartzell, 9 N.D. 268, 275-276, 83 N.W. 230, 232 (1900):
"The rule as to the requisites of an estoppel in pais as applied to the title to realty which appeals to us as the most equitable to all parties is that announced by Field, J., in Boggs v. Mining Co., 14 Cal. [279] on page 367. He said: `It is undoubtedly true that a party may in many instances be concluded by his declarations or conduct, which have influenced the conduct of another to his injury. The party is said in such cases to be estopped from denying the truth of his admissions. But to the application of this principle with respect to the title of property it must appear: First, that the party making the admission by his declaration or conduct was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, fourth, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved. * * * There must be some degree of turpitude in the conduct of a party before a court of equity will estop him from the assertion of his title; the effect of the estoppel being to forfeit his property, and transfer its enjoyment to another.'"
Thus, a party seeking to rely on estoppel must not only lack actual knowledge regarding the true state of title, but must also be destitute of the means of acquiring such knowledge. A public record is such a means. Gilbertson v. Charlson, 301 N.W.2d 144, 148 (N.D.1981).
In the prior appeal in this case, this Court determined that an examination of the title abstract would have disclosed the discrepancy between the two instruments executed by the Wehners and the Schroeders, and should have made the Tormaschys aware of the potential problem and caused them to investigate further. Thus, the Tormaschys were not destitute of the means of acquiring knowledge of the state of the title from the public record. The trial court did not err in determining that the Wehners were not estopped from asserting their title in this case.
MUTUAL MISTAKE
The Tormaschys assert that the trial court erred in finding that a mutual mistake was made between the Wehners and the Schroeders regarding the omission of the mineral reservation in the deed.
Section 32-04-17, N.D.C.C., is the pertinent statutory provision which provides for the equitable remedy of reformation:
"32-04-17. Revision of contract for fraud or mistake.When, through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention *678 of the parties, it may be revised on the application of a party aggrieved so as to express that intention so far as it can be done without prejudice to rights acquired by third persons in good faith and for value."
A court of equity will grant relief by way of reformation of a written instrument, resulting from a mutual mistake, when justice and conscience so dictate. Zabolotny v. Fedorenko, 315 N.W.2d 668, 671 (N.D.1982); Cokins v. Frandsen, 141 N.W.2d 796, 799 (N.D.1966). The party seeking reformation has the burden of proving that the written instrument does not accurately state what the parties intended with evidence that is clear, satisfactory, specific, and convincing that there was a mutual mistake of fact. Zabolotny, supra; Ives v. Hanson, 66 N.W.2d 802, 806 (N.D.1954). Each case must be determined on its own particular facts and circumstances and the court can take into consideration all facts which disclose the intention of the parties. Ell v. Ell, 295 N.W.2d 143, 150 (N.D.1980). We will not reverse a trial court's finding that the evidence of mutual mistake was clear, convincing, persuasive, and compelling, unless it is clearly erroneous. Zabolotny, supra.
The record reflects that Nick Schroeder, the son of Frank and Barbara Schroeder, testified through a deposition received in evidence that he recalled his father telling him that the Wehners retained 50 percent of the mineral rights to the land at issue. He further testified that he participated in the negotiations for the sale of the land between his parents and John and Eva Tormaschy, and that he wrote a letter to John Tormaschy informing him that they were to receive only those minerals then owned by the Schroeders. Helen Wehner testified that after John and Eva Tormaschy purchased the property, Eva telephoned her and stated, "`How come you were so piggish and kept half of your mineral rights back when you sold your land.'" Helen Wehner also testified that after she discovered the mistake in the deed, she spoke with John Tormaschy who denied that his wife made the statement concerning the mineral reservation and said, "`Furthermore, I already gave them to Albert so there's nothing you can do about it.'"
The evidence also reveals that the Wehners were involved in a similar transaction concerning a separate 80-acre tract of land which occurred at approximately the same time as the sale to the Schroeders. The same attorney handled both sales. The contract for deed involving the 80-acre parcel stated "[t]hat the parties of the first part [Wehners] retains [sic] 50% of all oil, gas, and mineral on said land." The word "first" appears immediately above the word "second", which was crossed out. This mineral reservation does not appear in the warranty deed. After discovering the mistake, the Wehners contacted the grantee, who voluntarily deeded back the minerals reserved in the contract for deed.
Under these particular circumstances, we cannot say that the trial court's finding of mutual mistake is clearly erroneous. Rule 52(a), N.D.R.Civ.P.
The Tormaschys also assert that before the Wehners are entitled to reformation, they must show that they were free from negligence in creating the problem for which the reformation is sought. The Wehners' failure to read the documents before signing them, the Tormaschys claim, should bar the Wehners from being granted reformation in this case.
Generally, the negligent failure of the complaining party to read an instrument before signing it does not, in itself, bar reformation.[2] 66 Am.Jur.2d Reformation of Instruments § 83 (1973); Restatement (Second) of Contracts § 157 comment *679 b (1981). This rule has also been applied to reformation of real estate instruments. 66 Am.Jur.2d Reformation of Instruments §§ 84 and 85 (1973); Annot., 81 A.L.R.2d 7, §§ 12 and 13 (1962 & Later Case Service). It has also been stated that "[w]here the parties entrust to an attorney or scrivener the duty of preparing a deed or other document in accord with their agreement, and he, by his own mistake or fraud, embodies in it stipulations and conditions other than those agreed upon, the party against whom it is sought to be enforced may have it reformed, although he signed it without reading it." 66 Am.Jur.2d Reformation of Instruments § 85 (1973).
We believe that in order to bar reformation under these particular circumstances, the fault of the party requesting relief must amount "to a failure to act in good faith and in accordance with reasonable standards of fair dealing." Restatement (Second) of Contracts, § 157 (1981). The trial court applied this test and noted in its memorandum opinion that the Wehners' negligence in not reading the deed before they signed it did "not rise to a high degree because one is entitled to rely on the product of an attorney." The trial court found no evidence that the Wehners failed to act in good faith or in accordance with reasonable standards of fair dealing. We have reviewed the record in this case and cannot say that the trial court erred in this regard.
The Tormaschys also assert that the doctrine of merger should be applied to bar reformation in this instance. In Zimmer v. Bellon, 153 N.W.2d 757, 761 (N.D. 1967), this Court stated:
"`As a general rule * * * a deed made in full execution of a contract of sale of land merges the provisions of the contract therein, and this rule extends to and includes all prior negotiations and agreements leading up to the execution of the deed, all prior proposals and stipulations, and oral agreements, including promises made contemporaneously with the execution of the deed. * * * Accordingly, although the terms of preliminary agreements may vary from those contained in the deed, the deed alone must be looked to for determination of the rights of the parties, in the absence of fraud or mistake, * * *.' (Emphasis supplied.) 26 C.J.S.Deeds § 91c, page 842."
The trial court found that a mutual mistake had occurred, and, as we stated earlier, that finding is not clearly erroneous. The doctrine of merger therefore does not bar reformation in this case.
Finally, the Tormaschys appear to argue that reformation based on mutual mistake should be allowed only in actions between the original contracting parties. However, the general rule is that reformation of a written instrument will be allowed as against the original parties to the instrument and all those who claim under said parties in privity, with the exception of bona fide purchasers or encumbrancers for value and without notice. Ell, supra, 295 N.W.2d at 153. In the previous appeal in this action, this Court determined that the Tormaschys were not third-party bona fide purchasers. Wehner, supra, 335 N.W.2d at 566.
For the reasons stated in this opinion, the judgment is affirmed.
ERICKSTAD, C.J., and VANDE WALLE and SAND, JJ., concur.
PEDERSON, Justice, dissenting.
I realize that this is not a rehearing to reconsider the majority decision in Wehner v. Schroeder, 335 N.W.2d 563 (N.D.1983). Nevertheless, the result could have provided justice but it does not. My views have not changedlife is going to be less stable as a result of action by this court.
NOTES
[1] The Tormaschys have raised several arguments relating to issues decided and statements made in the majority opinion authored by Justice Paulson in the previous appeal in this matter. The Tormaschys filed a petition for rehearing in that case addressing similar concerns and it was denied. No additional evidence was presented on remand. The trial court did not address these arguments raised by the Tormaschys, nor did the Wehners in their brief to this Court in the present appeal. This opinion will address only the undecided issues to which the remand was directed.
[2] It has also been stated that:
"The rule that carelessness or negligence of a person in signing an instrument estops him from asserting that it does not truly express the agreement of the parties does not apply where relief is sought on the ground the instrument was obtained by fraud, or entered into by mutual mistake of the parties." Lippire v. Eckel, 178 Neb. 643, 649, 134 N.W.2d 802, 806 (1965).
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934 F.2d 318Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Helen M. BELCHER, Plaintiff-Appellant,v.CITY OF POQUOSON, Joseph K. Bunting, in his former capacityas Mayor of the City of Poquoson, and, Gordon C. Helsel,Jr., L. Harold Quinn, Jr., H. Gray Forrest, William T.Watkins, Jr., Gordon Cox, now or formerly members of thePoquoson City Council, Defendants-Appellees,andJames T. Holloway, Jr., Benjamin Hahn, in his capacity asCity Attorney, Robert Murphy, in his capacity as CityManager, John White, in his capacity as Police Chief of theCity of Poquoson, Ronnie Singleton, in his capacity as aPolice Officer for the City of Poquoson, Defendants.
No. 90-2618.
United States Court of Appeals, Fourth Circuit.
Argued March 5, 1991.Decided May 29, 1991.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, District Judge. (CA-89-829-N)
Stanley E. Sacks, Sacks & Sacks, Norfolk, Va., for appellant.
Robert William McFarland, McQuire, Woods, Battle & Boothe, Norfolk, Va., for appellees.
E.D.Va.
AFFIRMED.
Before DONALD RUSSELL and WILKINSON, Circuit Judges, and FRANKLIN T. DUPREE, Jr., Senior United States District Judge for the Eastern District of North Carolina, sitting by designation.
PER CURIAM:
1
Appellant, Helen M. Belcher, filed this action against appellees, the City of Poquoson, Virginia, its city manager, and several of its city council members under 42 U.S.C. Sec. 1983, alleging that her First Amendment freedom of speech was "impermissibly restricted" when she was allowed only five minutes to speak at a city council meeting. She appeals the trial court's entry of directed verdict against her and also alleges error in the trial court's upholding a settlement agreement entered into by her former counsel. We find no error and affirm.
2
The action arose out of events which occurred at a Poquoson city council meeting on October 13, 1987. Belcher was scheduled to speak at the meeting regarding problems that she had with the construction of her home. Her primary complaint was that the structure was in violation of the city building code. The city building inspector had investigated the house on several prior occasions and found no violations. The mayor and some of the city council members had also visited the house, at Belcher's request, in attempts to address her grievances. She had brought her concerns before the city council on two prior occasions during the "Audience for Visitors," a portion of the meetings where the council opened the floor to any citizen and permitted them to speak about the subject of their choice for a period of three minutes.
3
Belcher apparently wanted the city council to override the decision of the building inspector and make a finding that her house did in fact violate the building code. After a thorough inquiry, and upon the advice of the city attorney, she was denied relief.
4
Still dissatisfied by what she perceived as the inaction of the council and the mayor in rectifying her problems, Belcher filed an action for damages against the builder who had constructed the house. A determination by the city inspector that the house had been constructed in violation of the building code would, of course, bolster her civil case against the builder. Therefore, in furtherance of her objectives, Belcher asked that she again be placed on the agenda of a city council meeting.
5
This request was granted, and she was scheduled to address the October 13 meeting. Except in the case of speakers appearing on the "Audience for Visitors" agenda, normally a time limitation was not imposed upon individuals scheduled to speak at a meeting. On the occasion in question, however, the mayor told appellant before she began her presentation that her time would be limited to five minutes. When the five minutes expired, Belcher refused to leave the podium and attempted to continue her harangue despite repeated requests by the city manager that she surrender the floor. Shortly thereafter at the instance of the mayor she was escorted out of the meeting by the police and taken into custody. She was later released unharmed, and no charges were filed.
6
Belcher subsequently filed this suit against defendants alleging that the five-minute time limitation infringed upon her First Amendment right to freedom of speech. Despite the fact that she was addressing the council for a third time to complain about the building inspector's failure to find her house in violation of the building code, she now takes the position that, even though she was given an opportunity to speak, she was not able to get her message across in the five minutes allotted her and that her speech rights were therefore violated. She claims that she presented evidence in support of this claim at trial and was, therefore, entitled to have the issue presented to the jury.
7
A directed verdict is properly entered when there is "no substantial evidence to support" a jury verdict in plaintiff's favor. Business Development Corp. of North Carolina v. United States, 428 F.2d 451, 453 (4th Cir.), cert. denied, 400 U.S. 957 (1970) (quoting Hawkins v. Sims, 137 F.2d 66, 67 (4th Cir.1943)). The test "is not whether there is any evidence, but whether 'there are no controverted issues of fact upon which reasonable men could differ.' " Proctor v. Colonial Refrigerated Transportation, Inc., 494 F.2d 89, 93 (4th Cir.1974) (quoting Pogue v. Retail Credit Co., 453 F.2d 336, 338 (4th Cir.1972), cert. denied, 409 U.S. 1109 (1973)).
8
Citizens have no constitutional right to voice their views whenever and wherever they so desire. Adderley v. Florida, 385 U.S. 39 (1966). In determining whether an individual's freedom of speech has been violated, the court must first consider the forum in which the speech took place. The Supreme Court has recognized three categories of forums in which free speech rights may be implicated. See Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983).
9
First, there are areas such as public parks and streets which have been deemed to be "held in trust for the use of the public." Id. at 45. In these forums, content-based speech regulations are only permissible if necessary to promote a compelling governmental interest. Content neutral regulations are likewise allowable if they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id.
10
Second, public property which is not a traditional public forum, but which the state has opened to allow expressive activity is a "created" public forum. See, e.g., id.; Widmar v. Vincent, 454 U.S. 263 (1981). Even though the government is not required to open such a forum, or to keep it open for an indefinite period of time, during the period in which it is accessible, state regulation is limited in the same manner as in a traditional public forum. Perry, supra.
11
The third category is public property which is not by tradition or designation a forum for public communication. The mere fact that the government owns property does not necessarily mean that it is open for public expression. In this third type of forum, "[i]n addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, supra at 46.
12
The regular portion of the Poquoson city council meeting falls into the third category. The purpose of city council meetings is to allow city officials to conduct the city's business and not to provide a public forum for all comers. While the "Audience for Visitors" portion of the Poquoson city council meetings could properly be classified as a created public forum, the regular portion cannot. Any person was allowed to speak about any topic for three minutes during the "Audience for Visitors." The council could not, therefore, regulate the content of the speech during this part of the meeting except to promote a compelling interest. In contrast, only speakers selected by the council were allowed to speak during the regular portion of the meeting. The council was entitled to restrict the meeting to persons addressing matters related to city business. "[W]hen government property is not dedicated to open communication, the government may--without further justification--restrict use to those who participate in the forum's official business." Perry, supra at 53.
13
Therefore, defendants decision to confine plaintiff's speaking time to five minutes was an entirely reasonable limitation which was necessary to keep the meeting running in an orderly fashion. Belcher was unable to present any evidence at trial that would tend to support a contrary finding. This is especially true in light of the fact that she had conveyed the very same message to the council members on several prior occasions and that the council was powerless to act on her demands. There is no evidence that defendants intended to suppress Belcher's speech because they opposed her views. Instead, they had listened to her views in the past and sought only to limit the time within which she was entitled to repeat those views.
14
In the absence of substantial evidence sufficient to support a verdict in plaintiff's favor the district court correctly granted the motion of defendants for a directed verdict at the close of plaintiff's evidence.
15
The remainder of Belcher's contentions on appeal are rejected. She claims that her Fourth, Fifth and Fourteenth Amendment rights were also violated, but these allegations were not pled in her complaint and no evidence was presented in support of them at trial. Consequently, she cannot raise them for the first time on appeal. Singleton v. Wulff, 428 U.S. 106 (1976).
16
Because the action was properly dismissed on the merits, her claim that the trial court erred in approving the settlement agreement is moot.
17
Finally, the court has considered the request of defendants for an award of attorney's fees and costs, and this request is denied.
18
AFFIRMED.
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[Cite as Perry v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-2830.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
RAY A. PERRY
Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant
Case No. 2010-09574
Judge Joseph T. Clark
Magistrate Matthew C. Rambo
ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
{¶ 1} On March 17, 2011, plaintiff filed a motion to “order all settlement offers to
be submitted” to the court. On March 23, 2011, plaintiff filed a motion for default
judgment. On March 24, 2011, defendant filed a memorandum contra to plaintiff’s
motion and a motion for summary judgment pursuant to Civ.R. 56(B). On March 30,
2011, plaintiff filed a response to defendant’s motion, and a motion to “order discovery.”
On March 31, 2011, plaintiff filed an additional response to defendant’s motion. The
motions are now before the court on a non-oral hearing pursuant to L.C.C.R. 4(D).
{¶ 2} With regard to plaintiff’s motion for default judgment, plaintiff argues that
defendant did not timely respond to his settlement demand and thus he is entitled to
judgment in his favor. Plaintiff’s motion “to order discovery” seeks an order from the
court finding that defendant failed to comply with certain statutes. Upon review,
plaintiff’s motions are not well-taken and are DENIED.
{¶ 3} Civ.R. 56(C) states, in part, as follows:
Case No. 2010-09574 -2- ENTRY
{¶ 4} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, 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. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
{¶ 5} Plaintiff alleges that he has been unlawfully subject to the supervision of
the Adult Parole Authority (APA), a department of defendant, since his release from
prison on August 2, 2010. Plaintiff claims that such supervision amounts to “false
imprisonment.”
{¶ 6} “False imprisonment occurs when a person confines another intentionally
‘without lawful privilege and against his consent within a limited area for any appreciable
time * * *.’” Bennett v. Ohio Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 109,
quoting Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71. The elements of a false
imprisonment claim are: 1) expiration of the lawful term of confinement; 2) intentional
confinement after the expiration; and 3) knowledge that the privilege initially justifying
the confinement no longer exists. Corder v. Ohio Dept. of Rehab. & Corr. (1994), 94
Ohio App.3d 315, 318.
{¶ 7} In support of its motion for summary judgment, defendant filed the affidavit
of Melissa Adams, chief of defendant’s Bureau of Sentence Computation. Adams
states, in part, that in 1993 plaintiff was convicted of felonious assault, aggravated
Case No. 2010-09574 -3- ENTRY
burglary, and carrying a concealed weapon by the Cuyahoga County Court of Common
Pleas, and that he was sentenced to a three-year prison term for a gun specification
consecutive with an eight to 25-year prison term for the felonious assault and
aggravated burglary charges. Adams further avers that plaintiff has been granted
parole several times, but he has violated the conditions of his release on many of those
occasions. Accordingly, plaintiff was declared a “violator at large” on January 15, 2002,
November 15, 2004, and September 29, 2005, and convicted of additional felonies in
2003, 2005, and 2007, all by the Cuyahoga County Court of Common Pleas. Adams
states that the result of plaintiff’s time “at large” and additional convictions is that the
expiration of his maximum sentence is April 13, 2023.
{¶ 8} Based upon the undisputed averments made by Adams, the court finds
that inasmuch as plaintiff’s lawful term of confinement does not expire until April 13,
2023, defendant was privileged to imprison or supervise plaintiff at all times relevant.
To the extent that plaintiff is challenging the sentences imposed upon him by the
Cuyahoga County Court of Common Pleas, it is well-settled that a plaintiff may not
substitute an action in the Court of Claims for a right of appeal in a different court. See
Hardy v. Belmont Corr. Inst., Ct. of Cl. No. 2004-09631, 2006-Ohio-623. “R.C. 2743.02
does not embrace jurisdiction to review criminal proceedings occurring in courts of
common pleas.” Donaldson v. Court of Claims of Ohio (May 19, 1992), Franklin App.
No. 91AP-1218; see also Troutman v. Ohio Dept. of Rehab. & Corr., Franklin App. Nos.
03AP-1240 and 04AP-670, 2005-Ohio-334.
{¶ 9} Based upon the foregoing, the court finds that defendant is entitled to
judgment as a matter of law. Accordingly, defendant’s motion for summary judgment is
GRANTED and judgment is rendered in favor of defendant. Court costs are assessed
against plaintiff. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.
Case No. 2010-09574 -4- ENTRY
_____________________________________
JOSEPH T. CLARK
Judge
cc:
Emily M. Simmons Ray A. Perry
Assistant Attorney General 1550 Superior Avenue
150 East Gay Street, 18th Floor Cleveland, Ohio 44114
Columbus, Ohio 43215-3130
MR/cmd
Filed May 24, 2011
To S.C. reporter June 7, 2011
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Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-4-2002
Chukwuezi v. Ashcroft
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2575
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"Chukwuezi v. Ashcroft" (2002). 2002 Decisions. Paper 635.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/635
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________
Nos. 01-2575, 01-2863
__________________
KINGSLEY CHUKWUEZI,
Appellant
v.
JOHN ASHCROFT, Attorney General
US ATTORNEY GENERAL
____________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. Civil No. 99-cv-02020)
District Judge: Hon. Thomas I. Vanaskie, Chief Judge
____________________
Argued: May 24, 2002
_____________________
Before: ALITO, McKEE, and WALLACE* Circuit Judges.
(Opinion Filed: October 4, 2002)
Daniel I. Siegel, Esq.
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Melinda C. Ghilardi Esq. (argued)
*
The Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Office of the Federal Public Defender
116 North Washington Avenue
Kane Professional Building, Suite 2C
Scranton, PA 18503
Counsel for Appellant Kingsley Chukwuezi
Mary Jane Candaux Esq. (argued)
U.S. Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P. O. Box 878
Washington, DC 20044
Counsel for Appellee Attorney General John Ashcroft
____________
OPINION OF THE COURT
____________
McKEE, Circuit Judge.
Kingsley Chukwuezi, a citizen of Nigeria, appeals the District Court’s denial of his
petition for a writ of habeas corpus. Chukwuezi claims that retroactive application of the
Immigration and Nationality Act, (“INA”) as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 et. seq.
(1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 et. seq. was improper. For the
reasons that follow, we will affirm.
I.1
1
Inasmuch as we write only for the parties, we will set forth the factual and rather
intricate procedural history in explaining our holding only to the extent necessary to assist
our discussion.
2
Chukwuezi was lawfully admitted into the United States as a non-immigrant
visitor on September 21, 1990, and he became a lawful temporary resident of the United
States on December 22, 1992. On March 31, 1995, he was interviewed by an INS agent as
part of a criminal investigation being conducted by the INS. Chukwuezi executed INS Form
I-214 as part of that interview. That form was entitled “Waiver of Rights,” and it explained
various rights the signatory was waiving by participating in the interview. Those rights
included the rights usually referred to as “Miranda rights.”2 By signing the form,
Chukwuezi agreed to proceed with the interview and answer questions. In doing so, he was
aware of his constitutional rights, including the right to remain silent and the right to
counsel, and he also knew that any statements he made during the interview could be used
against him in any subsequent court or immigration proceeding.
On May 14, 1997, Chukwuezi was granted lawful permanent resident status.
However, on June 16, 1997, he was charged with two counts of possessing forged or
counterfeited alien registration cards, social security cards and other forged government
documents in violation of 18 U.S.C. § 1546(a) in the District of Maryland. He was found
guilty of those charges on October 30, 1997, and subsequently sentenced to 18 months
imprisonment.
Upon completion of that sentence in May of 1999, the INS served Chukwuezi with a
Notice to Appear charging him with being deportable as an alien convicted of an aggravated
2
See Miranda v. Arizona, 384 U.S. 436 (1966)
3
felony pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) & 1101(a)(43)(P). An Immigration
Judge subsequently ruled that Chukwuezi’s conviction made him deportable as an
“aggravated felon” and ordered his removal to Nigeria. The judge also concluded that
Chukwuezi was ineligible for Cancellation of Removal because his conviction constituted
an aggravated felony. The Immigration Judge also held that Chukwuezi was not eligible for
a waiver under INA § 212(c), formerly codified at 8 U.S.C. § 1182(c), because that
provision had been repealed before Chukwuezi was placed into removal proceedings.
Chukwuezi appealed to the Board of Immigration Appeals, and while that appeal was
pending, he also filed a petition for a writ of habeas corpus in the District Court. Although
the District Court addressed some of the procedural claims Chukwuezi asserted in his
habeas petition, the court did not address the merits of his challenge to being classified as
an aggravated felon because the court believed that that issue was still pending before the
Board.
The Board subsequently affirmed the Order of Removal, and Chukwuezi attempted
to appeal the Board’s ruling directly to this court as a “final order” of removal. However, by
order dated August 2, 2001, we granted the INS’ motion to dismiss his petition for review.
In dismissing his petition, we stated that we “lacked jurisdiction over Chukwuezi’s petition
for review because he is an aggravated felon and he has failed to allege facts that would
impeach that conclusion.” Chukwuezi v. INS, No. 00-1707 (citing Drakes v. Zimski, 240
F.3d 246, 247 (3d Cir. 2001)). App. at 581.
The District Court denied Chukwuezi’s amended habeas petition in all respects,
4
except that the court granted Chukwuezi a hearing on his due process challenge to his
continued detention, and this appeal of the District Court’s denial of his petition for
habeas relief is now before us.
I.
The District Court held that Chukwuezi’s conviction for violating 18 U.S.C. §
1546(a) after the effective date of IIRIRA, (September 30, 1996), brought him within the
definition of “aggravated felony.” The District Court also relied on our opinions in Steele
v. Blakman, 236 F.3d 130, 132 (3d Cir. 2001); DeSousa v. Reno, 190 F.3d 175, 178-79
(3d Cir. 1999); and Scheidemann v. INS, 83 F.3d 1517, 1522 (3d Cir. 1996); holding that
Chukwuezi was not entitled to the discretionary relief previously available under INA §
212(c) even though he committed his offense before that provision was repealed. Dist. Ct.
Op. at 18-19. In addition, as noted above, the District Court relied upon Drakes v. Zimski,
240 F.3d 246 (3d Cir. 2001), in refraining from deciding if Chukwuezi’s conviction
qualified as an “aggravated felony” because Chukwuezi’s appeal to the BIA appeared to still
be pending. Id.3
Chukwuezi presents two issues to us on appeal. He first contends that the definition
of “aggravated felon” as revised and expanded by AEDPA and IIRIRA, cannot be applied to
3
The District Court also declined review of the BIA decision concerning a claim
Chukwuezi asserted under the Convention Against Torture, because he did not assert a
violation of a constitutional right. The Court held that it therefore lacked jurisdiction. 28
U.S.C. § 2241. The District Court also dismissed his due process claim. Chukwuezi does
not contest either of these decisions on appeal.
5
him because he committed his offense before the definition of “aggravated felony” was
changed. He also contends that he is entitled to seek relief under the former INA § 212(c).
We address each contention in turn. 4
II.
Chukwuezi argues that because the government contacted him in 1995 and he signed
the I-214 waiver prior to the IIRIRA amendments changing the definition of “aggravated
felon,” only the pre-IIRIRA definition applies to him. We disagree.
IIRIRA became effective on September 30, 1996. Section 321(a)(3) of IIRIRA
amended INA § 101(a)(43)(P) to extend the term “aggravated felony” to any violation of §
1546(a) for which the term of imprisonment was at least 12 months. 8 U.S.C. §
1101(a)(43)(P). As noted above, Chukwuezi was convicted of Fraud and Misuse of an
Alien Registration Card in violation of 18 U.S.C. § 1546(a), and this conviction resulted in
a term of imprisonment of 18 months. Thus, under the current definition, it is clear that
Chukwuezi would qualify as an aggravated felon, though he would not have qualified before
the definition was broadened.
Chukwuezi argues that he was arrested and detained by the INS on March 31, 1995,
(when he signed a Waiver of Rights Form I-214), and he committed his felony offense in
4
Chukwuezi filed a pro se Notice of Appeal on June 13, 2001. Subsequently, his
appointed counsel, the Federal Public Defender, filed a Notice of Appeal on his behalf on
June 22, 2001. Those two appeals have been consolidated.
The INS already removed Chukwuezi from the United States to Nigeria on
September 30, 2001, however, this in no way affects our resolution of the issues he is
raising on appeal.
6
1995. Therefore, he insists that the applicable law is that which existed in 1995, and he
does not qualify as an aggravated felon under the statute as it existed then. If Chukwuezi is
not an aggravated felon, he may be considered for “Cancellation of Removal” under INA §
240A(a), 8 U.S.C. § 1229b(a).
The Attorney General contends that the August 2, 2001, order of the motions panel
of this court rejecting his earlier appeal is conclusive, and binds our resolution of
Chukwuezi’s retroactivity argument citing Gavilan-Cuate v. Yetter, 276 F.3d 418, 420 (8th
Cir. 2002) (“Because our dismissal [of the petition for review] was premised on the fact
that Gavilan-Cuate was convicted of an aggravated felony, that decision is binding on this
[habeas appeal].”); and Santos v. Reno, 228 F.3d 591, 597 (5th Cir. 2000). Chukwuezi
counters by attempting to distinguish his appeal from the circumstances in Gavilan-Cuarte
and Santos based upon a purported procedural distinction between the posture of his
appeals and the procedural posture in Gavilan-Cuarte and Santos. As noted above,
Chukwuezi’s habeas petition was pending in the District Court when a motions panel of
this court dismissed his earlier appeal based upon the panel’s conclusion that Chukwuezi’s
status as an aggravated felon precluded this court’s jurisdiction. That is the distinction
Chukwuezi argues upon us. However, Chukwuezi has not explained why that distinction
between this case and the procedural posture in Gavilan-Cuarte and Santos, makes a
difference. Moreover, we do not think that it does, and the motion court’s determination is
therefore now the law of the case. See generally James Wm. Moore, Jo Desha Lucas &
Thomas S. Currier, 1B Moore's Federal Practice ¶¶ 0.404[1] (Matthew Bender, 2d ed.
7
1992) cited in In re School Asbestos Litigation, 977 F.2d 764, 788, n. 32 (3d Cir. 1992)
(decision of motions panel to merely refer matter to a merits panel did not constitute law
of the case because the order transferring the matter decided only that the merits panel
would decide all legal issues in the case.).
Moreover, we need not even address Chukwuezi’s attempted distinction of Gavilan-
Cuate, and Santos because we have already decided the issue of the retroactive application
of the Immigration Act amendments against him. See DeSousa 190 F.3d at 187, and
Scheidemann, 83 F.3d at 1520. Other Circuit Courts of Appeals that have addressed this
issue have reached the same conclusion. See Mohammmed v. Ashcroft, 261 F.3d 1244,
1250 (11th Cir. 2001) (“It is hard to imagine a clearer statement of Congressional intent to
apply the expanded definition of aggravated felony to convictions . . . pre-dating IIRIRA.”);
Sousa v. INS, 226 F.3d 28, 32-33 (1st Cir. 2000); Aragon-Ayon v. INS, 206 F.3d 847,
853 (9th Cir. 2000) (“We are satisfied that Congress intended the 1996 amendments to
make the aggravated felony definition apply retroactively to all defined offenses whenever
committed, and to make aliens so convicted eligible for deportation notwithstanding the
passage of time between the crime and the removal order.”); Mendez-Morales v. INS, 119
F.3d 738 (8th Cir. 1997).
Accordingly, Chukwuezi’s challenge to the retroactive application of AEDPA’s
expanded definition of “aggravated felony” fails.
III.
Chukwuezi’s claim that he is nevertheless entitled to discretionary relief from
8
deportation under the former INA § 212(c) must also fail. Section 212 of the INA, 8 U.S.C.
§ 1182, excludes certain classes of aliens from readmission to the United States. Section
212(c), (the waiver provision), previously provided that
Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an
order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be
admitted in the discretion of the Attorney General . . . .
8 U.S.C. § 1182(c) (repealed). Thus, by its terms, § 212(c) applied only to exclusion
proceedings involving aliens who “temporarily proceed abroad.” Id. However, “§ 212(c)
has been interpreted by the [BIA] to authorize any permanent resident alien with ‘a lawful
unrelinquished domicile of seven consecutive years’ to apply for a discretionary waiver
from deportation.” INS. v. St. Cyr, 533 U.S.289, 294 (2001) (citing Matter of Silva, 16 I.
& N. Dec. 26, 30, 1976 WL 32326 (1976)).
Chukwuezi’s argument against the retroactive denial of § 212(c) relief is based upon
his claim that he relied upon the availability of that relief when he waived his rights by
executing Form I-214 in 1995, and submitting to questioning by INS agents. This claim is
based upon the Supreme Court’s holding in St. Cyr.
There, the alien pled guilty to a criminal offense before the effective date of IIRIRA
and the repeal of § 212(c). Thus, at the time of his plea, he was deportable but under §
212(c), he was eligible for a waiver of deportation. Deportation proceedings were initiated
after the effective date of AEDPA and IIRIRA, and St. Cyr challenged the deportation
arguing that he could not be denied the possibility of a § 212(c) waiver because he relied
9
upon it in entering his guilty plea. The Supreme Court agreed. The Court held that
subsequent repeal of § 212(c) could not be enforced against St. Cyr because he had entered
his guilty plea in reliance upon the possibility of subsequently obtaining that relief. The
Court concluded that subsequent legislative enactments could not interfere with the “quid
pro quo” that is endemic to guilty pleas. 533 U.S. at 322. However, this case is not St.
Cyr, because Chukwuezi can not establish the reliance that was so crucial to the Court’s
ruling in St. Cyr.
As noted, Chukwuezi argues that his 1995 INS interrogation constituted the
initiation of removal hearings and that the governing law must therefore be the law in effect
when he waived his rights by executing INS Form I-214 and submitting to questioning.5
However, Chukwuezi concedes in his brief that he first came to the United States on
September 21, 1990. Appellant’s Br. at 11. Therefore, even assuming that his March 31,
1995 interrogation constitutes the beginning of removal proceedings, he had then
established only four and one-half consecutive years of lawful unrelinquished domicile.6
Accordingly, he was not eligible for § 212(c) relief when questioned in 1995 because he
had not yet satisfied the seven year domiciliary requirement. Thus, unlike the alien in St.
Cyr, Chukwuezi can not establish that he surrendered any constitutional rights in reliance
upon statutory relief that was subsequently repealed. Simply put, Chukwuezi “would [not]
5
See Appellant’s Br. at 17.
6
He was not lawfully admitted for permanent residence until May 14, 1997.
10
have been eligible for § 212(c) relief at the time” he was interviewed by the INS, and he
therefore can not establish that he relied on any such relief in waiving his rights. 533 U.S.
at 326.
Accordingly, he is not eligible for a § 212(c) waiver in any event, and the District
Court properly denied his request for relief.
V.
For the foregoing reasons, we will affirm the decision of the District Court.
_________________________
TO THE CLERK:
Please file the foregoing precedential opinion.
/s/ Theodore A. McKee
Circuit Judge
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785 F.2d 304
Bosticv.Stephens
85-7078
United States Court of Appeals,Fourth Circuit.
2/10/86
1
E.D.N.C.
DISMISSED
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 3, 2019*
Decided June 4, 2019
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18‐3607
J.P. MORGAN CHASE BANK, N.A., Appeal from the United States
Plaintiff‐Appellee, District Court for the Northern District
of Illinois, Eastern Division.
v. No. 1:14‐cv‐04278
LINDSAY JENKINS, Robert W. Gettleman,
Defendant‐Appellant. Judge.
ORDER
Lindsay Jenkins took out a secured mortgage on a Chicago condominium but
soon stopped making payments. A few months later, J.P. Morgan Chase Bank, N.A.,
holding the promissory note to her loan, filed a mortgage‐foreclosure action against her
in Illinois court. Jenkins removed the suit to federal district court on diversity grounds
and asserted that Chase did not have standing to seek foreclosure. The district court
disagreed and entered summary judgment against her. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18‐3607 Page 2
The facts are taken from Chase’s statement of undisputed facts, which Jenkins
did not adequately contest and which therefore was accepted as true by the district
court. See N.D. Ill. Loc. R. 56.1(b)(3)(C); Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir. 2016).
In 2005, Jenkins entered into a promissory note and mortgage with Washington Mutual
Bank, secured by a condominium unit in downtown Chicago. Soon after, the Office of
Thrift Supervision—a now‐dissolved federal agency that oversaw savings and loan
banks—closed Washington Mutual and named the Federal Deposit Insurance
Corporation as its receiver. In September 2008, Chase, through a purchase agreement
with the FDIC, took ownership of all of Washington Mutual’s loans and
commitments—commitments that, Chase says, included Jenkins’s mortgage. A few
months after this transition, Jenkins defaulted on her loan by failing to make her
monthly mortgage payments.
Chase accelerated the balance due and filed this foreclosure action in Illinois
court. See 735 ILCS 5/15‐1101 et seq. After removing the case to federal court on diversity
grounds, Jenkins argued that Chase did not own her mortgage, so it lacked standing to
file a foreclosure action (she did not contest that she was in default).
After protracted discovery, the district court granted Chase’s motion for
summary judgment and entered a foreclosure order against Jenkins. Chase, the court
explained, had provided prima facie evidence that it owned the original mortgage: an
attached copy of the promissory note, endorsed in blank. See Rosestone Invs., LLC v.
Garner, 2 N.E.3d 532, 539 (Ill. App. Ct. 2013). The court deemed inadmissible Jenkins’s
principal evidence of Chase’s lack of ownership—a document entitled “Securitization
Analysis” that was prepared by a foreclosure‐defense firm—because it was unsworn,
unsigned, and undated. The court went on to explain that even if Chase had not owned
the mortgage at the time of filing, the holder of a promissory note endorsed in blank is
entitled to enforce it, so Chase’s foreclosure action against her was proper.
On appeal, Jenkins reprises her argument that Chase lacked standing to bring a
foreclosure case against her. She contends that Chase has not proved that it actually
owned her mortgage at the time it filed its complaint, and she maintains that she
produced evidence—the securitization report—proving that it did not. Essentially,
Jenkins believes that Chase would have standing to bring a foreclosure action against
her only if it was the actual owner of her mortgage at the time it filed its complaint
against her.
No. 18‐3607 Page 3
As the district court correctly explained, the possession of a promissory note
endorsed in blank entitles the bearer to bring a foreclosure action under Illinois law;
ownership of the mortgage itself is not required. Under Illinois law, a note endorsed in
blank is “payable to [the] bearer,” 810 ILCS 5/3‐205, and the bearer is “entitled to
enforce” it. 810 ILCS 5/3‐301; Rosestone Invs., LLC v. Garner, 2 N.E.3d 532, 539 (Ill. App.
Ct. 2013) (“A note endorsed in blank is payable to the bearer.”). Chase, as the holder of
the promissory note to her mortgage, endorsed in blank, had standing to enforce it.
Rosestone Invs., LLC, 2 N.E.3d 532 at 539.
Jenkins’s remaining arguments lack merit. Most of her arguments continue to
dispute whether Chase was the owner of her mortgage at the time it filed its complaint
(these include unfounded assertions that Chase defrauded the district court by
concealing its ownership status, and that the district judge repeatedly ignored her and
denied her due process rights during discovery). But Chase did not need to own
Jenkins’s mortgage to enforce the note, so these arguments fail. She also argues that the
district court discriminated against her because of her gender, but she provides no
evidence to support this, nor do we see any. Her remaining arguments are too
undeveloped to discuss. See FED. R. APP. P. 28(a)(8); United States v. Hassebrock, 663 F.3d
906, 914 (7th Cir. 2011).
AFFIRMED
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868 N.E.2d 347 (2007)
372 Ill. App.3d 994
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Kelly J. DENBO, Defendant-Appellant.
No. 4-05-0516.
Appellate Court of Illinois, Fourth District.
April 19, 2007.
*348 Justice APPLETON delivered the opinion of the court:
A jury found defendant, Kelly J. Denbo, guilty of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2004)) in that she persisted in an act of vaginal penetration after the victim withdrew her consent. The trial court sentenced defendant to imprisonment for seven years. She appeals on the ground of insufficiency of the evidence, arguing that the State failed to prove the victim's withdrawal of consent or her own use of force.
Defendant put her hand into R.H.'s vagina during otherwise consensual sexual relations. R.H. pushed defendant twice harder the second timeintending to signify that she no longer consented to the sexual penetration. Defendant removed her hand from R.H.'s vagina on the second push. Looking at the evidence in a light most favorable to the prosecution, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that the first push objectively communicated to defendant a withdrawal of consent. The State failed to prove the element of force. Therefore we reverse the trial court's judgment.
I. BACKGROUND
The information charged that on September 27, 2004, defendant committed aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2004)) "in that[,] by the use of force[,][s]he placed her fist into the vagina of [R.H.] and, in doing so, * * * caused bodily harm, vaginal trauma, to * * * [R.H.]."
At trial on April 20, 2005, the State called R.H., the adult complainant, as its first witness. Because she was extremely hard of hearing, practically deaf, she testified through an interpreter. R.H. first met defendant in June 2004 at a nursing home, where they both worked. They developed a romantic relationship. On September 27, 2004, they both had the day off and spent it together, taking defendant's one-year-old nephew and three-year-old niece to McDonald's, Rockome Gardens, and a video store. Afterward, R.H. stayed for a cookout at defendant's house in Tuscola. Defendant drank beer while grilling the steaks, but R.H. abstained from alcohol that evening. After supper, R.H. went to defendant's bedroom "and just kept waiting and waiting and waiting" while defendant talked on the telephone. "[O]kay," R.H. thought. "[She] waited a little longer[ ] and * * * thought [that defendant] was going to give the kids a bath." Eventually, she told defendant she was "go[ing] to the store [to] get a diet [C]oke and would be right back." Defendant appeared to be "out of it": "she was very slow to respond and * * * slurred her words." Upon returning from the store, R.H. noticed the lights were off in the bedroomthey were on when she leftand three candles were burning. She did not see defendant. R.H. lay down, clothed, on defendant's bed. Defendant entered the bedroom. "She had a robe on," R.H. testified, "and like a ballet outfit or something. I really don't know. I was kind of hum."
Here is what happened next, according to R.H.:
"Well, I was [lying] on the bed[,] and she was on mekind of straddled me[]and kissing my face[,] and then she pulled me forward. She grabbed both my arms[,] and then she took off my top and my bra[,] and all of that was withinsay[,] a short period of time. Then she shoved me, and she was rough. I thought, [H]um. I had no clue as to what was going on, and then she took my shorts off and my underwear off.
Q. What happened next?
*349 A. Well, then she went right through my vagina. I didn't scream. I didn't do anything. I knew the kids were asleep. Knew the kids were asleep[,] and she kept pushing me.
Q. What did you do to her?
A. And it continued[,] and then the second time I tried to push her away[,] and it was hard enough. I was able to get up. I went to the bathroom[,] and I was bleeding.
Q. Let's back up a little bit. You indicated you were [lying] on the bed. How was Kelly on you?
A. Kelly was kneeling on top of me and had my legs spread apart so she was in between my legs.
Q. You said she `went through' you. Explain what was used to go through you?
A. Right there, her hand. (Indicating)
Q. Where did she place her hand?
A. Went through the pelvic area. I tried to push her back, but she continued[,] and she just kept continuing, and then I pushed her again, and then I went to the bathroom, and I was bleeding. I came back out and was looking for her[,] and she was outside at that point and crying.
Q. You went to the bathroom and noticed you were bleeding?
A. Yes.
Q. Where was the bleeding from?
A. Well, the reason I was bleeding is because she hurt me. She used her hand to go direct[ly] through my vagina, yes, my vagina.
Q. When was the next time you saw the [d]efendant?
A. Well, I went to the bathroomI went into the bathroom[,] and I came back out and was talking to her[,] and I asked her at that point why she did it. She said she didn't know why she hurt me. I continued to ask her. I stayed at Kelly's because I needed an answer from her as to why she hurt me."
Because R.H. was deaf, she and defendant often communicated with one another in writing. R.H. offeredand the trial court admitted into evidence, over defendant's foundational objectioneight handwritten letters R.H. had received from defendant. According to R.H., defendant wrote People's exhibit No. 1 on September 27, 2004, shortly after the incident. It says: "I will let you know tomorrow night. Is [illegible] us. Okay[?] I love you. I'm taking a shower."
R.H. testified she received People's exhibit No. 2 on September 28, 2004. That letter reads as follows:
"I know that no amount of apologies [is] going to be okay. I am sorry that that happened. Okay[?] I can't believe that I could do what someone did to me. It makes me fucking sick to my stomach[,] and I am sorry. I am worried. I do want you to be okay. I should have said something sooner. I've done wrong[,] and it will never be forgiven or forgotten. I am truly sorry[,] though. Be careful. I don't want to lose you. That's not what I want. I scared you, yes. I can apologize forever for that. There [is] no amount of apologies I can give you. Yes, you are to[o] good for me. I love you[,] and I hurt you. This is something that can't be forgiven. I'm so sorry. I never meant for this to happen. We probably need some time apart for awhile. I need to straighten out my scary side. Med[ication]s or something. I don't want to break up. Maybe I need to get rid of [the] scary side of me. I know I have one. We need time apartokay[?] I'm sorry it had to end this way. I will not quit [because] I love my residents. I am *350 sorry I hurt you last night. I don't want to hurt anyone else that way again[,] [including] you. I'm sorry. I swear to you that I did not hear you say no. I am not the kind of person that does this. I care that I hurt you. I'm sorry you're shocked. I'm sorry I did this. I'm just sorry. Okay[?] I knew you can't take me back. That's understandable. There [is] no amount of sorrys I can give you. I'm sorry. Please let me know if you're going to send me to jail or tell work. Okay[?] So I can quit and go elsewhere. I am sorry about what happened." (Emphasis in original.)
R.H. testified that defendant sent her the remaining letters in October 2004 through an intermediary at work. People's exhibit No. 3 reads as follows:
"I do love you and care for you. I'm very worried about you. I know you said not to. I'll do it anyway. My feelings about what I've done are mixed. I should die for what I've done. I feel like I should not be with you because of this. I want to be with you. But after what I've done[,] I feel horrible, sick. I don't feel like I deserve you. We need time[,] okay[?] I'm going to have to feel right about myself before I can go on with you[,] okay[?] Please understand. I do want you[,] okay[?] I just need time to fix myself."
People's exhibit No. 4 appears to consist of three letters. Here is the first one:
"I did read your note. I do get mean sometimes, when I'm drinking. Not always[,] though. And I'm sorry that I hurt you when I do. I do realize that I've done it[,] and I'm sorry. It makes me feel like shit when I do[,] and no amount of apologizing can make up for it. I only hope I can change and give you the life and love you want[,] because I want it with you. I love you. Very much. I'll try to show it better. I'm learning[.] I'm thinking that I love you and I don't want to hurt you anymore. I do have a temper. It comes out quick[ly]. I'll learn to deal with it[,] okay[?] I love you. I don't want to lose you[,] okay[?] Right now I'm by myself on [the] west hall[,] and it's a lot of work right now. I'm sorry I'm late writing you. I'll do my hardest to please you forever. You are my only true love. I will always love you. Let me know if you are coming over tonight."
The second letter in People's exhibit No. 4 reads as follows:
"I know it seems like I don't care. But I do. It just so happens that I am under a great deal of stress. The kids, my parents, brother. My job. I have blood in my bowels because I am under too much stress. Then I broke a blood vessel in my eye. It[']s been a very stressful week. Also I hurt you. That[']s just making it all the more stressful. I do care. But I'm at my stress point right now. I do love you. But I asked [for] time away to sort out my life. I need to unstress myself. I[']m getting to the point of saying fuck it to life and go[ing] away. But I know I can't. I just need time[,] okay[?] Not forever. I'm sorry I haven't been nice. I'm just stressed out. A lot of crap is piling on me[,] and I'm sorry for taking it out on you. [The] [r]eason I touched you like that down [there] is I thought you would be okay with that kind of lovemaking. I was way to[o] rough. I[']m never like that[,] okay[?] I should have asked you about it. I was to[o] rough when I should have been gentle with you[,] and I take full responsibility for what I've done. Now all you can do is give me time and space. I love you[,] okay[?]"
In the third letter in People's exhibit No. 4, defendant said:
*351 "I am so sorry I hurt you that way. I can't believe I was capable of doing that to anyone. What exactly do they have to do to fix you[?] I am responsible for this. I feel the need to be killed in some horrible way right now. I feel that I don't need to be forgiven, ever. I am very sorry this happened. We do need time because I need to fix my temper, drinking. Basically, myself. I am truly sorry that I did this. I love you and did not want to hurt you. Please believe me when I say it wasn't intentional. I am sorry. I know we need to talk. We will. I need time to sort out what you just told me. I am sorry."
People's exhibit No. 5 says: "I really do hope you[']r[e] not upset with me. I want you on Sunday and Monday. Is that okay[?] I won't go if you[']r[e] going to be upset. I love you and wanna a few days with you. But I promised my cousins. Don't be angry."
The final letter, People's exhibit No. 6, says: "First of all[,] I know in my heart I did not rape you. I did[,] however[,] make you bleed[,] and for that I'm sorry."
The prosecutor asked R.H. the following:
"Q. Was this touching without your consent?
* * *
A. No, no[,] I did not consent to that. I did not consent to that."
On cross-examination, defense counsel asked R.H.:
"Q. You said earlier, I think, that Kelly was kneeling on the bed[,] on top of you?
A. I had my legs spread apart[,] and she was in between them, between my legs.
Q. You said she removed your top and your bra?
A. Yes.
Q. Did you try to stop her from doing that?
A. No.
Q. And you said she removed your pants and underwear?
A. Yes, yes[,] that is correct.
Q. Did you try to stop her from doing that?
A. No.
Q. I think you said[,] in your direct testimony[,] that then Kelly [']went['] and your words were[ ][']right through my vagina[']?
A. That is correct.
Q. Could you explain what you mean by that[,] exactly?
A. Well, the hand itself went right through my privates. I tried to push her back, but she continued[,] and then I pushed her again[,] and then I was able to get up and go to the bathroom[,] and that is when I noticed I was bleeding."
R.H. admitted spending the rest of the night with defendant in her bed. She admitted having sex with defendant on three occasions before the incident. These sexual encounters were all in defendant's bedroom. After September 27, 2004, R.H. visited defendant's house one time. It was defendant's idea that she come over, but when she saw that defendant had been drinking, she went home.
On redirect examination, the prosecutor asked R.H. why she did not immediately leave the premises after defendant pushed her hand through her vagina. R.H. answered: "Because I wanted to know why she had hurt me[,] and I had no clue. I never * * * could understand why." The trial adjourned for the day.
On April 21, 2005, the State called a Tuscola police officer, Richard A. Lamb, as its next witness. He testified he interviewed *352 R.H. on November 9, 2004. The interview was originally scheduled to occur two weeks earlier, but he had to cancel that appointment because of difficulty finding an interpreter. "[D]ue to the time frame," the letters (People's exhibit Nos. 1 through 6) were the only physical evidence the police collected in the case.
The State then called Marlene Kremer, a family practice physician from Sarah Bush Lincoln Health Center in Mattoon. She testified that on September 30, 2004, she received a message at her office requesting that she telephone R.H.'s roommate, Donna Goad. "The message said that [R.H.] had been raped and was very upset and she needed an appointment." Kremer returned the telephone call and scheduled an appointment for that same day. R.H. arrived at the office with Goad, looking "very anxious and upset." The prosecutor asked Kremer:
"Q. How did she describe that she had been injured?
A. She said that three days before, her long[ ]time girlfriend had was intoxicated[] and had forced her to have using some type of an object, which I do not know what the object was, had repeatedly thrust this object into her vagina. Then she was able to fight her off and left."
The wall of R.H.'s vagina "was very abraded. It was kind of like a rug burn. There were no obvious lacerations. There was no bleeding at the time of this exam, but it was just very abraded, irritated" as if the vagina had suffered from "[e]xcessive friction." Kremer would have expected R.H.'s vagina to look like this if R.H.'s girlfriend had done what R.H. said. It was possible that the vagina bled at the time of the injury.
The prosecutor asked Kremer whether posttraumatic stress syndrome was "accepted as a behavioral condition that [could] result from sexual assault" and whether she had "dealt with" this condition in the course of her profession. To both questions, Kremer answered yes. The prosecutor asked her to describe the "model characteristics" of the syndrome. Kremer answered:
"It's a person who has either witnessed or been a victim of a severely traumatic
event, where they felt very hopeless, helpless had no control and[,] subsequent to that[,] * * * they have either [sic] flashback recollections. They avoid situations or things that make them recall that event. They have changes in their behavior, either [sic] difficulty sleeping, you know, more irritable, those type[s] of behaviors."
Kremer continued treating R.H. after September 30, 2004 who, in fact, was her patient before then. Kremer saw her again on October 22, 2004. At that time, she diagnosed posttraumatic stress disorder. R.H. was "having crying spells. She was still able to go to work[ ] but was otherwise not doing much of anything else." She saw R.H. again on November 12, 2004, and found her to be still suffering from the disorder. She saw no symptoms of the disorder before September 30, 2004.
The State rested, and defendant moved for a directed verdict on the ground that the State had failed to prove "the use of force or threat of force." See 720 ILCS 5/12-14(a), 12-13(a)(1) (West 2004). Defense counsel argued: "All of the evidence points to the fact that this was a voluntary interaction. It occurred in Ms. Denbo's home, in her bedroom, on her bed, where the alleged victim came in and la[y] down and voluntarily * * * allowed Ms. Denbo to undress her * * * and then engaged in a sexual act that she didn't object to." The prosecutor responded that because R.H. *353 objectively showed her lack of consent by pushing defendant and defendant nevertheless continued to ram her hand into R.H.'s vagina, the State had proved the element of force. The trial court denied the motion for a directed verdict.
Defendant called her mother, Nancy Denbo, as her first witness. Denbo testified she lived in a small two-bedroom house on Overton Street in Tuscola. In the summer of 2004, R.H. began visiting defendant at Denbo's house two or three times a week. On September 27, 2004, Denbo worked from 2 to 10 p.m. at the nursing home. After coming home between 10:30 and 10:45 p.m., she took a shower and watched television with her husband, her son, her grandchildren, defendant, and R.H. Nothing unusual happened that evening after she got home; she was aware of no disturbance. Because "the kids" (apparently, defendant's nephew and niece) typically "g[o]t up pretty early," Denbo probably rose between 7 and 7:30 a.m. on September 28, 2004. R.H. was still in the house, and nothing seemed amiss. After breakfast, Denbo and R.H. "drank coffee out in the carport" for a couple of hours while the children played outside. R.H. left between 11 and 11:30 a.m. because Denbo had to go in and start getting ready for work. After September 27, 2004, R.H. came over twice for dinner and even stayed overnight sometime in October 2004.
Defendant called Goad as her next witness. She testified she lived in Atwood with her son and R.H. For the past four years, Goad had been a dietary supervisor at the nursing home. She was R.H.'s boss. Goad was only casually acquainted with defendant; she knew that defendant worked at the nursing home and had a relationship with R.H. The evening of September 28, 2004, Goad saw R.H. at home and noticed nothing unusual about her behavior at that time. On September 29, 2004, R.H. came to work an hour early to speak with Goad. R.H. did not finish her shift that day; "she * * * said that she was bleeding." She also missed work on September 30, 2004, because "she was still having problems and she wasn't going to be able to work." Goad explained to her the nursing home's policy: "if you miss two days because of illness, * * * you have to go to the doctor." Therefore, on September 30, 2004, Goad accompanied R.H. to the doctor's office. A week or two later, at R.H.'s request, Goad set up an appointment for her with a counselor.
The defense next called Mary Burton, who testified that she lived in Tuscola, across the street from defendant. She had seen R.H. visiting at defendant's residence during the summer of 2004, when they were dating. R.H. was there "[u]p to four or five times a week, given their schedule at work." R.H. typically arrived in her white "mini-truck."
Defendant then took the stand. She testified that she lived with her mother, brother, nephew, and niece in Tuscola. She met R.H. around the end of May 2004, and by the end of June 2004, they were lovers. From June until October 2004, R.H. visited defendant's house three or four times a week and usually stayed overnight. On September 27, 2004, R.H. came over for a cookout. Defendant had two beers that evening but did not become intoxicated. After dinner, she and defendant watched a couple of movies with the children. Defendant then bathed and dressed the children and handed them over to her brother's care so that she could be alone with R.H. Defendant took a shower around 9 or 9:30 p.m., and while R.H. was at the store, she set the scene in the bedroom: lit the candles, put on some music, and turned off the lights. Upon returning, R.H. lay on the bed. Defendant *354 entered the bedroom, wearing a robe and a silky negligee "a white[,] strange teddy thing." She lay down next to R.H. and talked with her for a few minutes. (R.H. could understand her if she raised her voice.) Then they "started getting intimate," "kissing and touching." Defendant helped R.H. remove her top and bra and then her shorts and boxer underwear.
Defendant testified:
"We were having I was giving her oral sex[,] and I was[,] I guess[,] down in that area, and I began to digitally[,] with two fingers, insert them into her vagina[,] and we had sex relations that way.
Q. Okay. Now[,] at that point[,] what did [R.H.] do, if anything?
A. Well, I guess she was enjoying it. She didn't tell me to stop. She didn't push me away.
Q. During this time, up to this point, had she said anything to you?
A. Not that I can recall.
Q. What happened next[,] then?
A. I guess she was done, and my head was still in that particular area, so she nudged my shoulder. And I didn't hear her the first time, because music was on and my head was in an uncompromising [sic] position.
Q. Okay.
A. But she nudged my shoulder[,] and I looked up[,] and she said she was finished[,] and I said okay, and at that time she went to the bathroom.
Q. Okay.
A. She came back and said she was bleeding a little. She said she was hurting[,] and I apologized. I didn't know that I might have hurt her a little bit digitally, doing that to her.
Q. How did she appear to you then?
A. She was a little scared about the bleeding. She was bleeding a little bit. I do admit that. But she was okay. We talked, and then we wound up going to bed not too long after[ward].
Q. Did she, during the time you were having sexual relations together, did she ever scream or cry out, or anything?
A. No, not that I can recall.
Q. And did she stay there the night with you?
A. Yes.
Q. And slept there with you in your bed?
A. Yes."
R.H. was still in bed with defendant the next morning when the children leaped onto the bed and awaked them. After defendant made breakfast for the children and got them dressed, she and R.H. went outside with defendant's mother and drank coffee.
According to defendant, R.H. spent the night at defendant's house on two occasions after September 27, 2004. Her relationship with R.H. deteriorated, and defendant broke it off about the second week in October 2004. Defendant disagreed that all of the letters in People's exhibit Nos. 1 through 6 pertained to the incident of September 27, 2004. According to her, some of the letters predated the incident. She claimed to have written People's exhibit Nos. 1, 2, and 5 during the summer of 2004 (before September). She claimed to have written People's exhibit No. 3 at work around September 30, 2004, and People's exhibit Nos. 4 and 6 right after September 27, 2004. Defendant denied forcibly having sex with R.H.
On cross-examination, defendant testified that when she gave oral sex to R.H. in the bedroom on September 27, 2004, R.H. had an orgasm. Defendant denied using force when digitally penetrating her, although she remarked that "fingernails [could] scrape." Defendant rested.
*355 In its case in rebuttal, the prosecutor presented People's exhibit No. 7, a record of defendant's conviction in Georgia for deposit account fraud. The State also recalled R.H., who denied that defendant performed oral sex on her the night of September 27, 2004, and denied having an orgasm when defendant digitally penetrated her that night. According to R.H., she visited defendant's house once after September 27, 2004: on October 1 or 2, 2004. Defendant telephoned her, and R.H. came over and stayed with the children for about 10 minutes, until she perceived that defendant had been drinking, whereupon she left. R.H. denied spending the night at defendant's house anytime after September 27, 2004. The State rested, and the jury found defendant guilty of aggravated criminal sexual assault.
On May 25, 2005, the trial court sentenced defendant to 7 years' imprisonment, with credit for 66 days, followed by 3 years of mandatory supervised release.
This appeal followed.
II. ANALYSIS
The State charged defendant with aggravated criminal sexual assault within the meaning of section 12-14(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-14(a)(2) (West 2004)). That section provides as follows:
"(a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during * * * the commission of the offense:
* * *
(2) the accused caused bodily harm * * * to the victim * * *." 720 ILCS 5/12-14 (a)(2) (West 2004).
Thus, to commit aggravated criminal sexual assault, one must commit criminal sexual assault. According to the information, defendant committed criminal sexual assault within the meaning of section 12-13(a)(1) of the Code (720 ILCS 5/12-13(a)(1) (West 2004)). That section provides as follows:
"(a) The accused commits criminal sexual assault if he or she:
(1) commits an act of sexual penetration by the use of force or threat of force[.]" 720 ILCS 5/12-13(a)(1) (West 2004).
"Sexual penetration" includes "any intrusion, however slight, of any part of the body of one person * * * into the sex organ * * * of another person." 720 ILCS 5/12-12(f) (West 2004). Section 12-12(d) defines "force or threat of force" as follows:
"(d) `Force or threat of force' means the use of force or violence, or the threat of force or violence, including but not limited to the following situations:
(1) when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat; or
(2) when the accused has overcome the victim by use of superior strength or size, physical restraint[,] or physical confinement." 720 ILCS 5/12-12(d) (West 2004).
"Force," within the meaning of sections 12-12(d) and 12-13(a)(1) of the Code, does not mean the force inherent to all sexual penetration for example, the exertion of the hand in the act of pushing into the vagina but physical compulsion, or a threat of physical compulsion, that causes the victim to submit to the sexual penetration against his or her will. People v. Haywood, 118 Ill.2d 263, 274-75, 113 Ill. Dec. 236, 515 N.E.2d 45, 50-51 (1987); *356 People v. Kinney, 294 Ill.App.3d 903, 908, 229 Ill.Dec. 394, 691 N.E.2d 867, 870-71 (1998).
In its case in chief, the State has the burden of proving the element of force beyond a reasonable doubt. Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50. By proving force, the State necessarily proves nonconsent, for "if * * * one was forced to perform an act, it follows that [one's] act was nonconsensual; and if one freely consents to the performance of an act upon oneself, clearly [one] has not been forced." Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50; see also People v. Roberts, 182 Ill.App.3d 313, 317, 130 Ill.Dec. 751, 537 N.E.2d 1080, 1083 (1989). The defendant may raise the defense of consent to rebut the State's evidence of force. Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50; 720 ILCS 5/12-17(a) (West 2004); see also Roberts, 182 Ill.App.3d at 318, 130 Ill.Dec. 751, 537 N.E.2d at 1084 (characterizing consent as a defense but not as an affirmative defense). Section 12-17(a) of the Code provides as follows:
"(a) It shall be a defense to any offense under [s]ection 12-13 through 12-16 of this Code [(720 ILCS 5/12-13 through 12-16 (West 2004))] where force or threat of force is an element of the offense that the victim consented. `Consent' means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent." 720 ILCS 5/12-17(a) (West 2004).
If the defendant raises the defense of consent, "the State has a burden of proof beyond reasonable doubt on the issue of consent as well as on the issue of force." Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50.
In its brief, the State concedes that R.H. "implicitly consented to some sort of penetration by allowing defendant to undress her, to spread her legs apart, and to position herself between [R.H.'s] legs." We agree with that concession. When defendant sexually penetrated R.H. by inserting her fingers or hand into R.H.'s vagina, she did so with R.H.'s consent and, therefore, not by "force," as that term is defined in section 12-12(d) of the Code (720 ILCS 5/12-12(d) (West 2004)). One may infer that in performing the act of penetration, defendant was as she admitted in one of her letters "to[o] rough when [she] should have been gentle." Nevertheless, R.H. consented to the penetration itself; therefore, defendant did not accomplish the penetration by overcoming R.H.'s will with force or the threat of force.
The State contends this is a case of postpenetration aggravated criminal sexual assault. On July 25, 2003, the General Assembly passed Public Act 93-389 (Pub. Act 93-389, § 5, eff. July 25, 2003 (2003 Ill. Laws 2872, 2872-73)), adding subsection (c) to section 12-17 of the Code (720 ILCS 5/12-17 (West 2004)). Section 12-17 is entitled "Defenses," and (as we have discussed) subsection (a) provides that consent is a defense to criminal sexual assault and to other sex crimes in which force or the threat of force is an element. 720 ILCS 5/12-17(a) (West 2004). Subsection (c) limits or clarifies the defense in subsection (a) by making the consent effective only up to the withdrawal of consent: "A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of *357 that sexual penetration or sexual conduct." 720 ILCS 5/12-17(c) (West 2004).
In the minds of some commentators, the concept of withdrawal of consent makes the element of force problematic. In re John Z., 29 Cal.4th 756, 764, 60 P.3d 183, 188, 128 Cal.Rptr.2d 783, 789-90 (2003) (Brown, J., dissenting); N. Walsh, The Collusion of Consent, Force, & Mens Rea in Withdrawal of Consent Rape Cases: The Failure of In re John Z., 26 Whittier L.Rev. 225, 252 (2004); J. Emlen, A Critical Exercise in Effectuating "No Means No" Rape Law, 29 Vt. L.Rev. 215, 248 (2004); Note, Acquaintance Rape & Degrees of Consent: "No" Means "No," But What Does "Yes" Mean?, 117 Harv. L.Rev. 2341, 2363 (2004). If, initially, A sexually penetrates B with B's consent (and, therefore, without force) but merely remains inside of B after B says, "Stop, I don't want to do this any longer," where is the force? "To prove the element of force is implicitly to show nonconsent" (Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50); but, in a case of postpenetration criminal sexual assault, it is unclear that proving the withdrawal of consent implicitly proves force. One writer has drawn a distinction between "[p]ostpenetration rape [as] a doctrine of unwanted sex" and "prepenetration rape [as] a doctrine of forced sex." 117 Harv. L.Rev. at 2363. Another writer argues: "[O]nce the victim unequivocally revokes consent, the force required to accomplish continued penetration is sufficient to complete the crime." A. Davis, Clarifying the Issue of Consent: The Evolution of Post-Penetration Rape Law, 34 Stetson L.Rev. 729, 757 (2005). The question is whether mere persistence in sexual penetration, after the withdrawal of consent, can serve as a "proxy" for force (117 Harv. L.Rev. at 2363), considering that "force" must be something more than the force inherent to sexual penetration (Haywood, 118 Ill.2d at 274-75, 113 Ill.Dec. 236, 515 N.E.2d at 50-51; Kinney, 294 Ill.App.3d at 908, 229 Ill.Dec. 394, 691 N.E.2d at 870-71). See State v. Robinson, 496 A.2d 1067, 1070 (Me.1985) ("We emphasize that the ongoing intercourse, initiated[,] we here assume[,] with the prosecutrix's consent, did not become rape merely because she revoked her consent. It became rape if and when the prosecutrix thereafter submitted to [the] defendant's sexual assault only because `[force or the threat of force made her] unable to physically repel the [defendant] or [too frightened to do so]'").
Perhaps, as a practical matter, this question will seldom arise because if B wishes to have sex no longer, B will surely disengage if he or she is able to do so, and if, by his or her physical posture, A prevents B from disengaging for example, by continuing to lie on top of B (John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786) A thereby forces B to continue with the sexual penetration. In John Z., 29 Cal.4th at 759, 60 P.3d at 185, 128 Cal.Rptr.2d at 786, for example, the California decision that inspired section 12-17(c) (720 ILCS 5/12-17(c) (West 2004)) (T. Bohn, Yes, Then No, Means No: Current Issues, Trends, & Problems in Post-Penetration Rape, 25 N. Ill. U.L.Rev. 151, 164-65 (2004)), the defendant constrained the victim to continue with sexual penetration, when she was on top of him, by grabbing her hips and pulling her back down when she tried to pull away. Then he rolled her over so he was on top of her. John Z., 29 Cal.4th at 759, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. "`No,'" she said, "`I need to go home,'" but he persisted in sexual intercourse for another minute or minute and a half, all the while asking for more time. John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. The victim testified: "`[H]e just stayed inside of me and kept like basically forcing it on *358 me.'" John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. In affirming the conviction, the Supreme Court of California held: "[T]he offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection." (Emphasis added.) John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. She no doubt felt "forced" in both positions not only when the defendant grabbed her hips and pulled her down but also when he was on top of her. One can, in a manner of speaking, passively force someone to continue with the sex act by using one's own bodily inertia to prevent the partner from disengaging. This would be force beyond that inherent to the sex act itself.
One may reasonably infer that R.H. pushed defendant because disengagement was, for her, physically impossible until defendant withdrew. Defendant withdrew when R.H. pushed her a second time. If an aggravated criminal sexual assault happened at all, it happened during the very short duration between the first and second push, when defendant, by not moving, prevented R.H. from immediately disengaging. Even though, subjectively, R.H. no longer consented, her withdrawal of consent was ineffective until she communicated it to defendant in some objective manner (see People v. Carlson, 278 Ill. App.3d 515, 520, 215 Ill.Dec. 282, 663 N.E.2d 32, 36 (1996)) so that a reasonable person in defendant's circumstances would have understood that R.H. no longer consented (see Kinney, 294 Ill.App.3d at 908, 229 Ill.Dec. 394, 691 N.E.2d at 871). Defendant used force on R.H. only if the first push operated as an objective withdrawal of consent.
Looking at the evidence in a light most favorable to the State, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that a reasonable person, in defendant's circumstances, would have understood that initial push as a withdrawal of consent. See People v. Schott, 145 Ill.2d 188, 203, 164 Ill.Dec. 127, 582 N.E.2d 690, 697 (1991). According to a letter from defendant that the State presented at trial, R.H. was capable of talking ("I swear to you that I did not hear you say no"). R.H.'s excuse was that she did not want to wake the children by screaming. Even if one credited that excuse, it would not solve the problem of an uncommunicated withdrawal of consent. R.H. could have said no and, evidently, defendant expected her to say no, or at least say something, if she wanted defendant to stop the sexual penetration. This expectation seems reasonable. R.H. did not say no or stop. Instead, she pushed defendant. The problem is, people push one another during sexual congress. We do not mean to suggest that a push can never signify nonconsent or a withdrawal of consent. In fact, the second push here was clearly made with enough force to both be distinguished from a caress and to effectively communicate the withdrawal of consent. "`Force' and `consent' simply do not have static meanings. The significance of various factors a cry for help, level of resistance, attempt to escape depend[s] on the circumstances of each case." Kinney, 294 Ill.App.3d at 909-10, 229 Ill.Dec. 394, 691 N.E.2d at 871 (Knecht, J., specially concurring). Under the circumstances of this case, a single push to the shoulders, without more, cannot serve as an objective communication of R.H.'s withdrawal of consent.
III. CONCLUSION
For the foregoing reasons, we reverse the trial court's judgment.
Reversed.
*359 McCULLOUGH, J., concurs.
TURNER, J., dissents.
Justice TURNER, dissenting:
I respectfully dissent.
When a defendant challenges the sufficiency of the evidence, the reviewing court does not retry the defendant. People v. Janik, 127 Ill.2d 390, 401-02, 130 Ill.Dec. 427, 537 N.E.2d 756, 761 (1989). The jury possessed the responsibility to choose between competing versions of fact, assess the witnesses' credibility, draw inferences from the evidence, and decide whether the evidence as a whole ultimately proved defendant to be guilty of the charged offense beyond a reasonable doubt. See Janik, 127 Ill.2d at 401, 130 Ill.Dec. 427, 537 N.E.2d at 761; People v. Anderson, 325 Ill.App.3d 624, 634, 259 Ill.Dec. 603, 759 N.E.2d 83, 92 (2001). To avoid intruding upon the jury's prerogative as the finder of fact, we are to use a deferential standard of review. See Janik, 127 Ill.2d at 401, 130 Ill.Dec. 427, 537 N.E.2d at 761. Thus, looking at all the evidence in a light most favorable to the prosecution, we address whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Anderson, 325 Ill.App.3d at 634, 259 Ill. Dec. 603, 759 N.E.2d at 92.
A rational trier of fact could have found (1) the first push sufficiently informed defendant of R.H.'s withdrawal of consent and (2) defendant did not immediately disengage. It is a reasonable conclusion defendant wrote all of the letters following the September 27, 2004, incident. In these letters, she confesses wrongdoing, deplores the "scary side" of herself, admits that she "get[s] mean sometimes," and asks R.H. if she is going to "send [her] to jail." The jury could have reasonably inferred defendant knew, from the start, at the very moment of penetration, she was being "way to[o] rough" and that when R.H. first pushed her (signifying her withdrawal of consent), defendant already knew she did not consent to this violent manner of penetration. Because someone had once done the same thing to defendant (as she revealed in People's exhibit No. 2), defendant knew she was inflicting excruciating pain upon R.H. and that the first push meant "Stop!" Nevertheless, she continued ramming her hand into R.H.'s vagina until R.H. succeeded in pushing her away. Looking at the evidence in a light most favorable to the prosecution, I conclude a rational trier of fact could have found the elements of aggravated criminal sexual assault beyond a reasonable doubt.
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683 F.Supp. 1139 (1988)
UNITED STATES FIDELITY AND GUARANTY COMPANY, a foreign insurance company, Plaintiff,
v.
THOMAS SOLVENT COMPANY; a Michigan corporation, et al., Defendants.
Catherine ALLEN, Individually, and as Next Friend of Eric Allen, Troy Allen and Richard Allen, Minors et al., Intervening Plaintiffs.
v.
GRAND TRUNK WESTERN RAILROAD COMPANY, Intervening Defendant/Cross-Plaintiff,
v.
CONTINENTAL CASUALTY COMPANY, a foreign insurance company, et al., Cross Defendants.
GRAND TRUNK WESTERN RAILROAD COMPANY, Intervening Defendant/Counter Plaintiff,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, a foreign insurance company, Counter Defendant.
No. K85-415.
United States District Court, W.D. Michigan.
January 8, 1988.
On Motion for Reconsideration, March 17, 1988.
On Motion for Reclarification, April 14, 1988.
*1140 *1141 *1142 Miller, Canfield, Paddock & Stone by Michael B. Ortega, Kalamazoo, Mich., by Charles E. Ritter, for U.S. Fidelity and Guar. Co.
Smith, Haughey, Rice & Roegge by John M. Kruis, Grand Rapids, Mich., for Guaranty Nat. Ins. Co.
Rhoades, McKee & Boer by F. William McKee and Michael T. Small, Grand Rapids, Mich., for Hartford Acc. & Indemnity.
Nelson and Krueger by James R. Nelson, Grand Rapids, Mich., for Admiral Ins. Co.
Kitch, Saurbier, Drutchas, Wagner & Kenney by Gregory G. Drutchas, Detroit, Mich., by Stephen M. Kelley, for St. Paul Fire & Marine.
Piatt, Bartosiewicz & Tiderington by Gary P. Bartosiewicz, Kalamozoo, Mich., for Auto-Owners Ins. Co.
Ryan, Jamison & Hubbell by Daniel K. Jamieson, Kalamazoo, Mich., for Integrity Ins. Co.
Bremer, Wade, Nelson & Alt by Michael D. Wade, Grand Rapids, Mich., for Great American Surplus.
Cholette, Perkins & Buchanan by William D. Buchanan, Grand Rapids, Mich. by Kenneth L. Block, Pretzel & Stouffer, Chartered by Samuel B. Isaacson, Chicago, Ill., for Gibralter Cas. Co. (Co-Counsel).
Denenberg, Tuffley, Bocan, Jamieson, Black, Hopkins & Ewald by William J. Ewald, Ronald G. Musto, Grand Rapids, Mich., for Northstar Re-Insurance Co.
*1143 Early, Lennon, Peters & Crocker by J. Richardson Johnson, Kalamazoo, Mich., for First State Ins. Co.
Sullivan, Hamilton & Schultz by Robert P. Hamilton and James M. Sullivan, Battle Creek, Mich., for Thomas Solvent Co. and Thermo-Chem, Inc.
Gemrich, Moser, Domrowski, Bowser & Fette by William L. Fette, Kalamazoo, Mich., for applicants for intervention.
Tolley, Fisher & Verwys, P.C. by Peter R. Tolley, Grand Rapids, Mich., for Northbrook Excess and Surplus Ins. Co.
Lilly, Domeny, Durant, Byrne & Schanz, P.C., by Terrence J. Lilly, Kalamazoo, Mich., for Canadian Universal Ins. Co.
Straub, Seaman & Allen, P.C. by Drew F. Seaman, St. Joseph, Mich., for Continental Cas. Co.
Bodman, Longley & Dahling by Fredrick J. Dindoffer, R. Craig Hupp, Detroit, Mich., for Grand Trunk Western R. Co. (proposed intervener).
Law Offices of Joseph William Moch by Joseph William Moch, Grand Rapids, Mich. by Terry E. Heiss, for intervening plaintiffs.
Allen, Lippes and Shonn by Richard Lippes, Buffalo, N.Y., Brown & Transeth by James B. Brown, Lansing, Mich., for Adkins Group.
Landman, Latimer, Clink & Robb by Steven C. Kohl, Muskegon, Mich., for Thermo Chem Participating Co.
OPINION
ENSLEN, District Judge.
On September 11, 1987, I filed an opinion and order granting plaintiff USF & G's motion for clarification and reconsideration. The September 11th opinion essentially returned this case to the status quo prior to August 7, 1987. See Opinion filed September 11, 1987 in K85-415.
Presently before me is that portion of USF & G's motion for summary judgment filed March 5, 1987 which seeks a declaratory judgment with respect to the duty to defend issue as to the "General Liability Policy Issuers"[1] and the "Automobile Policy Insurers."[2] USF & G originally moved for a declaratory judgment only as to defendants Canadian, Northbrook, St. Paul and Hartford. I note that pursuant to the stipulation entered into between USF & G and Continental filed May 8, 1987, Continental is now included in that list. The remainder of the defendants in the declaratory judgment action are "excess" or similarly described carriers whose policies of insurance do not contain a primary duty to defend provision although some of the excess policies may contain duty to defend provisions which are activated only after underlying limits have been exhausted.[3]See USF & G's Motion for Summary Judgment at 4, n. 2. The parties have agreed that at this time a determination of their duty to indemnify is premature. Pursuant to my Order of August 18, 1987 and the discussion between Magistrate Rowland and counsel during the hearing of August 15, 1986, the parties agreed that I should rule upon the duty to defend issue before entertaining motions concerning the duty to indemnify.
Plaintiff USF & G issued Comprehensive General Liability ("CGL") and Comprehensive *1144 Automobile Liability policies covering November 1, 1968 to November 17, 1978 when the last policy was cancelled. USF & G believes that the November 17th cancellation was later made effective as of November 1, 1978 the date on which other insurance apparently obtained by Thomas Solvent became effective. See USF & G's Brief in Support of Motion for Partial Summary Judgment at 5. USF & G further asserts that it has no policies or declarations pages for any policies before November 1, 1975. Apparently USF & G's named insureds at all times included the Thomas Solvent Company and Thermo-Chem, Inc., and included Thomas Transportation Co., Fred E. Thomas, Letha D. Thomas and Thomas Development Corp. for various periods of time.
Canadian issued General Liability policies to Thomas Solvent Company and Thermo-Chem, Inc., covering November 1, 1978 to November 1, 1981.
Northbrook covered Thomas Solvent Company, Thomas Development Corp. and Thermo-Chem, Inc., for CGL insurance under two policies covering November 1, 1981 through November 1, 1983. Several more Thomas Solvent entities, including T.S.C. Transportation, Inc., were added in 1982, via endorsements.
St. Paul's CGL insurance policy was issued to cover November 1, 1983 to November 1, 1984, but St. Paul alleges that it was effectively cancelled March 19, 1984. St. Paul's named insureds include seven of the Thomas Solvent entities, including Thomas Solvent Co., Thomas Development Co., and Thermo-Chem, Inc.
Hartford issued a Commercial Automobile policy for November 1, 1981 to November 1, 1984, covering Thomas Solvent and Thermo-Chem, Inc. Apparently, it also issued one or more earlier Commercial Auto policies, the last of which expired on November 1, 1981. The latter policy, however, was apparently destroyed and is no longer available. Hartford also issued a Business Auto policy for November 1, 1984 to November 1, 1985. That policy named additional insureds, including T.S.C. Transportation, Inc. See, in general, Defendants' Answers to USF & G's interrogatories, attached to USF & G's Brief in Support as Exs. "B," "C," "D," and "E." (The policy allegedly issued by Continental is the so-called "phantom" policy. The Court will address that matter in due course in a separate discussion.)
Facts
In order to place this motion in its proper context, it is necessary to briefly identify the major parties and to describe, in general terms, the underlying substantive claims brought by and against those parties. Thomas Solvent Company is a Michigan corporation which was originally founded in the 1930s by Fred Thomas who operated the business as a sole proprietorship until it was incorporated on February 7, 1963. Thomas Solvent Company was engaged in the sale and distribution of industrial solvents and operated from two principal locations during the times relevant to this and other pending litigation.
The principal place of business was located at 1180 North Raymond Road, Battle Creek, Michigan (hereinafter "Raymond Road Site"). The other site was located approximately ¼ mile away ("The Annex"). The Annex included railroad siding facilities, one above-ground storage tank and one below-ground storage tank. Railroad cars containing solvent products were unloaded at the Annex and were stored and/or distributed in motor vehicle tankers or barrel containers. Underground tanks which were connected to an underground distribution system were situated at the Raymond Road Site. Industrial solvents were delivered to these latter facilities. The solvents were then extracted from the tanks and distributed by motor vehicle tankers or by barrels to various industrial customers. The Battle Creek City well water supply wells, commonly referred to as the "Verona Wells," are located northwest of these two sites.
Surrounding the Thomas Solvent operation sites are other industrial operations including the Grand Trunk Western Railroad Regional Switchyards and Roundhouse and Administration Facilities, the Michigan Livestock Exchange Stockyards, *1145 Reith-Riley Asphalt Plant, and other commercial enterprises. There are also a number of private homes scattered throughout the same general area. Thomas Solvent contends that it not only secured insurance coverage in the form of general comprehensive liability insurance to cover its operations, but secured automobile liability insurance coverage to cover its transport vehicles as well. Thomas Solvent Brief in Support of Insurance Carriers' Duty to Defend at 4.
In 1984, the State of Michigan, through its Attorney General and the Department of Natural Resources, filed suit in the Circuit Court for the County of Calhoun, alleging that the groundwater beneath the lands and premises occupied by Thomas Solvent Company was contaminated by the presence of industrial solvents. The suit also alleged that the aquifer, or groundwater flow, carried the contaminated groundwater to the City of Battle Creek. It was further alleged that not only the Verona Wells but also individual private wells surrounding the residential area were being contaminated from the same source. After an emergency hearing, the court found that the earth and groundwater beneath the Thomas Solvent sites indeed contained contaminants and granted injunctive relief. The court entered a cease and desist order of operations with respect to the company's handling of hazardous industrial chemicals and ordered the parties to devise a remedial plan. When the projected costs of the proposed plan allegedly exceeded the assets of the company, Thomas Solvent Company filed a petition in bankruptcy. A plan of liquidation of the corporation is apparently still pending.
Plaintiff USF & G filed this declaratory judgment action against its insured, Thomas Solvent Company and Thermo-Chem, Inc., and against other insurers of Thomas Solvent or one or more of its related corporate entities (hereinafter collectively referred to as "Thomas Solvent"). In addition to the previously mentioned Calhoun County suit, Thomas Solvent is a named defendant in several other lawsuits which allege that Thomas Solvent is responsible for groundwater pollution in and around the Verona Well Field in Calhoun County, Michigan. Those suits (hereinafter collectively referred to as the "underlying actions") include Kelley, et al. v. Thomas Solvent, Calhoun County Circuit Court File No. 84-72-CE ("Kelley"); Allen, et al. v. Thomas Solvent, et al., Calhoun County Circuit Court File No.'s CA84-3331-NO and 85-1971-NO ("Allen"); Adkins, et al. v. Canadian National Railways, et al., Calhoun County Circuit Court No. 84-3081-CE ("Adkins"); Kelley, et al. v. Thomas Solvent, et al., U.S. District Court File No. K86-164CA8; and United States v. Thomas Solvent, et al., United States District Court No. K86-167CA8 ("CERCLA actions"). See, respectively, Exs. "H," "I," "J," "K," and "L" attached to USF & G's Motion for Summary Judgment.
The "Allen" and "Adkins" actions are still pending. There are approximately seventy-five (75) party plaintiffs in each action all of whom are residents of the immediate area surrounding the Thomas Solvent sites. Those plaintiffs seek recovery for personal injuries alleged to have occurred or which may occur as a result of contamination of their private wells and the ingestation of contaminants, and for the diminution of real estate property values as well.
The Allen plaintiffs have intervened, with permission, in this lawsuit seeking "to preserve indemnification for Thomas Solvent and thereby secure a source of recovery should they prevail in their state claims." See Intervening Plaintiffs' Response to Motion for Summary Judgment at 7. In addition, intervening defendant Grand Trunk Western Railroad has joined this action seeking indemnification from the insurance carriers for any liability attributed to it as the owner of a parcel of land used by Thomas Solvent in its Battle Creek operation. Id.
The other two actions are, of course, still pending in this Court. Plaintiff Frank J. Kelley, Attorney General of the State of Michigan, seeks relief under provisions of the Comprehensive Environmental Response Compensation & Liability Act ("CERCLA") for remedial costs, damages *1146 to the environment and clean-up costs in order to eliminate the contamination of the Verona Wells. Similarly, plaintiff United States seeks relief for remedial and cleanup costs pursuant to CERCLA (collectively referred to as the "CERCLA" actions).
I must make a determination, guided by Rule 56 of the Federal Rules of Civil Procedure, as to each of these suits with respect to each of the previously mentioned insurers only on the issue of the duty to defend. The affidavits of James M. Sullivan and Robert P. Hamilton (Exs. "F" and "N") as well as the Answers of Canadian, Northbrook, St. Paul and Hartford to USF & G's interrogatories (Exs. "B," "C," "D," and "E") establish that Thomas Solvent notified its insurers of the actions filed against it and requested that each insurer provide a defense in the previously mentioned underlying actions. All of the carriers, with the exception of USF & G, refused to provide a defense. At this time USF & G seeks only a determination as to which of the previously mentioned insurance companies have a duty to defend their insureds in the underlying lawsuits. In addition, USF & G asks me to rule on which, if any, of the companies must pay a pro rata share of the past and future defense costs and to determine the amount of each pro rata share. USF & G argues that the complaints in the underlying actions make general allegations of a series of events alleged to have occurred over a number of years and do not allege specific dates for individual occurrences. Plaintiff argues further that only after the underlying suits have been completed can there be a determination of the number of dates, if any, of "occurrences" a finding, plaintiff argues, more relevant to the duty to indemnify.
In the main defendants argue the following: 1) that the damage upon which the claim is based was expected and/or intended by the insured and that therefore there is no "occurrence" within the meaning of the policy; 2) that the damage did not take place during the policy period; and 3) that the existence of a so-called "pollution exclusion" clause relieves it from its duty to defend. Some variation of all three of these arguments is raised by various individual carriers either in response to USF & G's motion or by St. Paul's motion for summary judgment perhaps, more accurately, a cross-motion for summary judgment. I note that Canadian has not filed a separate brief but has filed instead a memorandum response in which it incorporates by reference the arguments set forth in Northbrook's response brief and St. Paul's brief. I will structure my opinion, in part, by responding to each of these arguments seriatim.
Moreover, I believe it proper to consider those arguments and motions only as they relate to the duty to defend. For example, it is clear that where an insurer specifically excludes coverage with clear and unambiguous policy language, that express exclusion will relieve the insurer of the obligation to defend. In addition, such exclusion issues are routinely raised and considered in motions for summary judgment. Cf. e.g., American States Ins. Co. v. Maryland Cas. Co., 587 F.Supp. 1549 (E.D.Mich. 1984).
Here, those "defenses," at least with respect to the duty to defend issue, have already been raised and adequately briefed by the parties. USF & G's motion to defer consideration of issues raised in defendants' motions was clearly filed for the purpose of deferring consideration of the duty to indemnify issue raised in the motion for summary judgment filed by St. Paul and in Northbrook's motion in opposition. See USF & G's Motion to Defer Consideration at 2-3 (Pl. # 182). Plaintiff's concern was that a "premature examination of the ultimate issues in this case" would bind it and other insurers by one ruling. Id. at 3, ¶ 8. While I agree, in general, with plaintiff's latter statement and concerns, I note that courts routinely address those arguments when raised. I understand the purpose of the Magistrate's order and the spirit of the agreement of the parties to be merely a case management device, and I find that it was not intended, nor was it considered to function as, a motion in limine or advanced ruling with respect to the duty to indemnify issue. Nonetheless, I have allowed plaintiff to respond to the occurrence and *1147 exclusion issues insofar as the Magistrate's previous order indicated that those issues would not be considered at all in my decision. Plaintiff has filed a supplemental brief on those issues on December 1, 1987. In addition, on December 8, 1987, St. Paul filed a response brief to USF & G's supplemental brief re: "occurrence."
However, because I find that there are factual issues as to all these arguments or "defenses" concerning the duty to defend, I, as the following analysis will make clear, cannot grant St. Paul's cross-motion for summary judgment. I believe, however, that USF & G's motion for summary judgment must be granted in part.
Although USF & G did not formally brief all these previously mentioned arguments, apparently in reliance on the Magistrate's previous order now vacated by me USF & G argued early on that those issues are "irrelevant" to a proper analysis of the duty to defend. Put differently, I understand plaintiff's argument in part to be that there are factual issues with respect to those defenses which are primarily relevant to the duty to indemnify and that therefore I should not consider them in a motion for summary judgment. I believe that USF & G will not be prejudiced by an analysis concerning the duty to defend in that I do not find it necessary to make any factual findings relating to the ultimate issues in this case or otherwise "prematurely" examine or finally decide the issue of "occurrence" as it relates to the duty to indemnify. In addition, of course, I now have USF & G's supplemental brief.
Finally, plaintiff's original motion for summary judgment reveals that it recognizes the necessity for some discussion of, at least, the exclusion clause. It is clear that in order to be relieved from its duty to defend, the insurer must demonstrate that the allegations of the complaint bring the complaint solely within the province of the policy exclusions and that the allegations, when taken as a whole, can be put to no other reasonable interpretation. Plaintiff's argument implies as much. Plaintiff asserts that "unless and until it can be shown [in the underlying cases] that the polluting events were not in fact `sudden and accidental,' this Court should not find that the pollution exclusion relieves these insurers of their contractual duty to defend." Plaintiff's Brief in Support at 19.
Nevertheless, in appropriate cases courts have found that there is no duty to defend and/or indemnify because there has been no "occurrence" and/or because the allegations of the complaint fall within the pollution exclusion clause. See e.g., Great Lakes Container v. National Union Fire Insurance Company, 727 F.2d 30 (1st Cir. 1984). In any event my initial inquiry should be confined to whether the complaint, on its face, establishes coverage or lack of coverage.
I emphasize that even without plaintiff's supplemental brief there are ample materials filed in support of plaintiff's motion which address the occurrence and exclusion arguments with respect to the duty to defend. See e.g., Brief in Support of Determination of Insurance Carriers' Duty to Defend at 14-19; 30-41 (Pl. # 198); see also Intervening Plaintiffs' Response to St. Paul's Motion for Summary Judgment (Pl. #202).
Plaintiff concludes that if I find a duty to defend, plaintiff ought to be reimbursed for its past defense costs and that the future defense costs ought to be divided equally among those carriers whom I find have a duty to defend. Plaintiff, of course, argues that those carriers should include itself (USF & G), Canadian, Northbrook, St. Paul, Hartford, and, apparently, Continental. In the alternative, USF & G argues that should I find that there is no duty of defense owed by the respondent insurers, then I should find that USF & G has no continuing duty to defend and may therefore withdraw its defense in the underlying suits.
The Policies
USF & G's argument is straightforward. USF & G argues that all of the policies issued by the carriers contain essentially identical provisions with respect to the duty to defend. Plaintiff asserts that under Michigan law an insurer must defend a claim where any of the allegations of the complaint *1148 fall within, or arguably fall within, the coverage provided. Cf. St. Paul Fire and Marine Insurance Company v. Parzen, 569 F.Supp. 753, 755 (E.D.Mich.1983). In Detroit Edison Co. v. Michigan Mutual Ins. Co., 102 Mich.App. 136, 301 N.W.2d 832 (1980), the Michigan Court of Appeals described in some detail an insurer's duty to defend.
The duty of the insurer to defend the insured depends upon the allegations in the complaint of the third party in his or her action against the insured. This duty is not limited to meritorious suits and may even extend to actions which are groundless, false, or fraudulent, so long as the allegations against the insured even arguably come within the policy coverage. An insurer has a duty to defend, despite theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. Dochod v. Central Mutual Ins. Co., 81 Mich.App. 63; 264 N.W.2d 122 (1978). The duty to defend cannot be limited by the precise language of the pleadings. The insurer has the duty to look behind the third party's allegations to analyze whether coverage is possible. Shepard Marine Construction Co. v. Maryland Casualty Co., 73 Mich.App. 62; 250 NW2d 541 (1976). In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured's favor. 14 Couch on Insurance 2d, § 51:45, p. 538.
102 Mich.App. at 141-142, 301 N.W.2d 832. (Emphasis in original.)
One party, Northbrook, has also raised a choice of laws question. While I will address that concern in due course, for now, I will merely examine the relevant provisions of each of the CGL policies and then turn to the allegations of the underlying complaints, considering the theories of liability advanced in each, as a first step in determining whether and to whom the duty to defend as defined by Michigan law attaches.
The CGL insurance policies issued by USF & G, St. Paul and Northbrook and the general liability policies issued by Canadian all contain the following standard form language.
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:
A. Bodily injury; or
B. Property damage.
To which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company's liability has been exhausted by payment of judgments or settlements.
Occurrence is defined: `Occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
The policies also contain a standard `pollution exclusion' which indicates that the policies do not apply.
"(f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental;"
The Hartford Business Auto Policies contain the following similar language:
A. WE WILL PAY.
1. We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to *1149 which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.
2. We have the right and duty to defend any suit asking for these damages. However, we have no duty to defend suits for bodily injury or property damage not covered by this policy. We may investigate and settle any claim or suit as we consider appropriate. Our payment of the Liability Insurance limit ends our duty to defend or settle.
The USF & G Comprehensive Automobile Liability policies, at least since 1975, contain the following language:
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:
A. Bodily injury; or
B. Property damage.
To which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company's liability has been exhausted by payment of judgments or settlements.
The Complaints and the Duty to Defend
Plaintiff argues that all of the underlying complaints are based upon the alleged release of pollutants by Thomas Solvent into the surrounding groundwater. Plaintiff argues that both the enforcement actions seeking "injunctive relief" as well as the citizens' suits seeking damages for property damages and personal injuries give rise to a duty to defend. The complaints all allege that contamination was discovered in 1981 and all allege or imply that the contamination emanating from Thomas Solvent began a number of years before 1981 possibly as early as 1970.
Before proceeding with an analysis of the individual complaints, there is a threshhold jurisdictional issue which must be resolved. (I believe that I have previously exhausted the standing issue and have, in a manner of speaking, put it to rest. To summarize, I have determined that with respect to the duty to defend issue presently before me, there is a justiciable controversy and that USF & G has standing to raise that issue.) See Court's Opinions of August 7, 1987 and September 11, 1987 (vacating August 7th opinion and granting plaintiff's motion for reconsideration and clarification).
Northbrook's Objections to the Magistrate's Report and Recommendation
On July 10, 1986, I directed all parties to submit briefs on the issue of whether this case should be dismissed in light of three recent decisions of the Sixth Circuit: Manley, Bennett, McDonald & Co. v. St. Paul Fire & Marine Ins. Co., 791 F.2d 460 (6th Cir.1986); American Home Assurance Co. v. Evans, 791 F.2d 61 (6th Cir.1986); and Grand Trunk Western R. Co. v. Consolidated Rail Corp., 746 F.2d 323 (6th Cir. 1984) (hereinafter "the Sixth Circuit cases.") On August 18, 1986, Magistrate Rowland entered a Report and Recommendation indicating that I should retain jurisdiction. Defendant Northbrook argues that the Sixth Circuit cases send a clear message that district courts ought to exercise their discretion to hear this type of declaratory judgment action "very sparingly." Northbrook's Brief in Support of Objection to Magistrate's Order Retaining Jurisdiction at 4.
Plaintiff argues that Northbrook's objections and arguments were previously raised in its original brief dated July 21, 1986 as well as in its brief in support of objections dated August 27, 1987. Plaintiff emphasizes that Magistrate Rowland previously addressed these arguments at a status conference held August 15, 1986 which *1150 Northbrook did not attend. In any event, I have reviewed this issue de novo. Not only do I find no error in the Magistrate's order, I find that intervening case law has actually provided additional support for the Magistrate's decision.
In Allstate Insurance Company v. Green, 825 F.2d 1061 (6th Cir.1987), the Sixth Circuit sent a clear message that district courts should use their discretion when faced with declaratory judgment actions of this type rather than simply dismiss based upon an allusion to the Sixth Circuit cases mentioned above. Moreover, Green emphasized that where the grant of declaratory relief in insurance coverage cases would undoubtedly settle the controversy over the insurer's liability to provide a defense for and/or to indemnify its insured, a district court can entertain the action.
Further, here I see no evidence of "procedural fencing," nor is there any indication that my decision would increase friction between federal and state courts or otherwise encroach, improperly, upon state jurisdiction. Finally, it appears to me that there is no alternative remedy which can be said to be better or more effective. At this point, I believe an "early" resolution of this matter will benefit all the parties. Put differently, I do not believe that "considering the purposes of the Federal Declaratory Judgment Act, the [insurer] should be forced into a waiting period of legal uncertainty respecting the obligations it has incurred in its policy." Green, 825 F.2d at 1066. In sum, I find it proper to proceed in my determination of the duty to defend issue with respect to the three state complaints at issue as well as the two CERCLA claims and find that the holding in Green actually encourages such action. Accordingly, I will enter an order rejecting Northbrook's objections to the Magistrate's Report and Recommendation and Order of August 28, 1986.
I will not return to an analysis of the underlying complaints.
The Adkins Complaint
Paragraph 85 of the Adkins complaint alleges that defendants:
... have been engaged and interwoven as a long standing common enterprise in the business of selling industrial solvents and other dangerous toxic chemicals and transporting liquid industrial waste, particularly used solvents, to recycling and disposal facilities.
Paragraph 86 alleges that Thomas Solvent was licensed to haul liquid industrial wastes from 1970 through 1981.
Paragraph 99 alleges:
... at all times during the emergence, development and use of these industrial sites (as described in paragraphs 81 and 98) dangerous toxic chemicals and industrial wastes were permitted to and did seep, leak, drain, pour or empty into the porous soils of said site, fence, filtrating, percolating and migrating into and through the aquifer system ... (emphasis added).
Paragraph 111 alleges:
... throughout the span of time encompassing the activity involved at the ... Thomas Solvent sites ... numerous reported incidents involving the accidental or intentional release of such substances occurred, attesting to the process of contamination underway. (emphasis added).
Paragraphs 114 and 116 (sic) allege the relevant time period to be "more than a 12 year period."
Paragraph 131 alleges:
... the filtration, percolation, migration and escape of dangerous toxic chemicals and industrial waste products as described above has occurred on occasion in a sudden and accidental manner. (emphasis added).
More specifically, paragraphs 134 and 135 allege:
... an occurrence or occurrences took place whereby dangerous toxic chemicals, industrial waste and chemical vapors were permitted to escape ... (and) the occurrences described in 134 above took place in a sudden and accidental manner. (emphasis added).
*1151 The Duty to Defend
I note that, in general, CGL insurers, including those involved in this case, must provide a defense to their insureds where the insured is charged with causing damage or injury arising out of the dumping, transporting, generating or handling of hazardous waste. See e.g., Travelers Indemnity Co. v. Dingwell, 414 A.2d 220 (Me.1980). Further, where an insurer's arguments disclaiming a duty to defend hazardous waste claims are factual and/or are based upon facts outside the complaint(s) against the insured, courts generally rule that such claims must be defended. See e.g., Mercury Refining Co. v. Hartford Fire Insurance, 84-CV-495 (N.D.N.Y. July 19, 1985) (granting plaintiff's motion for partial summary judgment on issue of insurer's duty to defend an underlying Superfund action); see also Technicron Electronics Corp. v. American Home Assurance Co., No. 08811/85 (N.Y.Sup.Ct. Feb. 13, 1986) (granting plaintiff's partial summary judgment finding insurers had duty to defend where insurers failed to establish that there was no possible factual or legal basis on which they might eventually be obligated to indemnify insured); Niagara County v. Utica Mutual Insurance Co., 80 A.D.2d 415, 439 N.Y.S.2d 538 (4th Dep't 1981) (insurer must defend if only some of the allegations arguably fall within the coverage provisions even if others do not).
I concede that there is some contrary authority which indicates that insurers should not be required to defend until unresolved issues concerning the nature of the claims in the underlying actions and the timing of the damage can be addressed. See e.g., CPS Chemical Co. v. Continental Insurance Co., 203 N.J.Super. 15, 495 A.2d 886 (1985) (reversing trial court's grant of summary judgment against insurers on the issue of duty to defend a pollution liability claim). These cases, however, clearly represent the minority view and there is no indication that this is the trend under Michigan law.
It is clear that here the CGL insurers' duty to defend attaches if the plaintiffs in the underlying complaints have advanced any theories of recovery which arguably fall within the coverage. On the other hand, if an insurer specifically excludes coverage with clear and unambiguous policy language, such express exclusions will relieve the insurer of the duty to defend. North River Insurance Company v. Endicott, 151 Mich.App. 707, 391 N.W.2d 454 (1986); Illinois Employers Insurance v. Dragovich, 139 Mich.App. 502, 362 N.W.2d 767 (1984). As I have indicated, many of the allegations contained in the Adkins' complaint obviously fall within policy coverage. Moreover, under Michigan law the duty to defend is distinct and independent of an insurer's duty to pay. Stockdale v. Jaimison, 416 Mich. 217, 330 N.W.2d 389 (1963).
St. Paul's Motion for Summary Judgment
To the extent that St. Paul's Motion for Summary Judgment contains arguments germane to the duty to defend issue, the Court believes that it is proper to consider them here. St. Paul asserts that it issued a policy to Thomas Solvent on November 1, 1983 and cancelled the policy on March 19, 1984. St. Paul argues that the policy is void ab initio because the insurance was fraudulently obtained and because the insurance would never have been issued had St. Paul known of Thomas Solvent's "pollution history." I note that there are genuine issues of material fact as to whether the St. Paul policy was obtained by fraud and misrepresentation. Therefore, its motion for summary judgment based on its ab initio argument must fail.
Although St. Paul argues that Alexander & Alexander ("A & A") misrepresentated basic facts by failing to reveal Thomas Solvent's pollution history, the original "submission letter" of A & A indicated at least that Thomas Solvent was in the business of repacking, mixing, blending wholesale solvents but was not a manufacturer of solvents. See Ex. A. at 38, attached to Defendant Grand Trunk's Brief in Response to St. Paul's Motion for Summary Judgment. Moreover, St. Paul apparently declined to offer coverage to Thomas Solvent, *1152 but arguably agreed to provide coverage "as a favor" to A & A. See Deposition of Frederick Hanbury, at 28, in. 23; 29, In. 12; Dept. of Richard Dunn Paraventi, at 11, Ins. 4-11. Grand Trunk argues, and the Court agrees, that there is a genuine issue of material fact here as to whether the initial refusal juxtaposed with the subsequent "favor" to A & A indicates or suggests that St. Paul knew of the pollution risk but was asked to provide and did provide coverage "as a favor."
In addition, Grand Trunk argues there is also a question of fact as to whether St. Paul would have issued a policy had it known of Thomas Solvent's "pollution history." The affidavit of Benjamin Lane, a St. Paul underwriter, asserts that had all of the past facts, the so-called history of pollution including any on-going investigations and/or the EPA or MDNR claims been known, "under no circumstances would [Mr. Lane] have authorized [that] a comprehensive general liability policy be issued by St. Paul...." See Ex. 5 of St. Paul's Motion for Summary Judgment, ¶ 10; and ¶¶ 9-12. However, Grand Trunk argues that Mr. Lane's affidavit is inconsistent with the language of the policy itself which attempts to exclude only certain types of pollution, that is, that which is not "sudden and accidental," from its coverage. Again, Grand Trunk argues that the existence of the exclusion clause suggests that St. Paul knew of the pollution risk and made a decision to exclude certain types of pollution from coverage and to insure other types.
Finally, I find there are questions of fact which pertain to the issue of whether A & A was actually acting as the agent of St. Paul or Thomas Solvent. Accordingly, I find that St. Paul has not carried its burden of establishing the non-existence of any genuine issue of material fact that it is entitled to summary judgment based upon its first argumentwith respect to the duty to defend. See Rule 56(c) of the Federal Rules of Civil Procedure. I note that my review of the numerous documents attached to St. Paul's response brief re: occurrence does not alter my view that there still remain genuine issues of material fact concerning whether the St. Paul policy was obtained by fraud and misrepresentation. I offer, of course, no opinion with respect to the ultimate outcome of the ab initio argument or the merits of the case, but merely hold that St. Paul's motion must be denied at the present time.
St. Paul's second argument is that the contamination of the Battle Creek water supply and the alleged resulting harm occurred long before November 1, 1983 the date when St. Paul's policy commenced. However, the Adkins complaint filed December 12, 1985 indicates, for example, that "... the trespass [migration of toxic chemicals] upon the property and into the dwelling place of the Plaintiffs was injurious to the health and well being of the Plaintiffs [and] the trespass continues to this day." (emphasis added). See Adkins complaint at ¶¶ 151-152.
The Definition of Occurrence
St. Paul argues further that there has been no "occurrence" as that term is defined in the policy. An "occurrence," as I have previously indicated, is defined in these CGL policies as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured." (emphasis added). See Ex. 23 attached to St. Paul's Brief in Support of Motion for Summary Judgment.
When does an "occurrence" occur? I start from the basic proposition that "an `occurrence' policy protects the policy holder from liability for any act done while the policy is in effect, whereas a claims made policy protects the holder only against claims made during the life of the policy." St. Paul Fire and Marine Ins. Co. v. Barry, 438 U.S. 531, 535, 98 S.Ct. 2923, 2926, 57 L.Ed.2d 932 (1978). It is undisputed that the policies at issue here are occurrence policies. Plaintiff argues that since the complaints allege continuous releases, that is, at least up to the time the suits were filed, for that reason the complaints necessarily include all of the carriers, and *1153 since it is impossible to tell from the allegations in the complaint at least precisely when the releases occurred, I should hold that all the insurers have a duty to defend.
St. Paul concludes that the facts of this case establish that it cannot be said that any bodily injury or property damage which allegedly occurred during the St. Paul policy period was not expected or intended from Thomas Solvent's standpoint. St. Paul argues that the facts establish that at the very least Thomas Solvent expected bodily injury or property damage during the St. Paul policy period. In support of its position, St. Paul argues that the deposition of Mr. Thomas Solvent establishes that prior to the mid-1970's residual chemicals from the drums would be discharged into the ground as part of the regular drum cleaning process. Thomas Dep. at 47, In. 5; at 48, ln. 1 (Ex. 25). St. Paul argues further that Mr. Thomas's deposition indicates that the cleaning process was changed in the mid-1970s so that material was then put in drums and shipped off-site or stored on site. Id. at 48, lns. 2-5. Moreover, St. Paul asserts that Mr. Thomas's deposition establishes that he was aware of relevant legislation which at the time put him on notice that allowing chemicals to seep into the ground was dangerous. Id. at 48. ln. 6-8.
St. Paul considers it more significant with respect to Thomas Solvent's expectations of bodily injury or property damage that funds were provided by Thomas Solvent in late 1982 to supply bottled water to residents who had been using contaminated wells. St. Paul concludes that any bodily injury or property damage which occurred during the policy was expected by Thomas Solvent and is therefore excluded from coverage since the policy does not provide coverage for damages which are expected or intended by the policyholder.
In response to St. Paul's argument, Thomas Solvent argues that his testimony actually indicates that since the mid-1970s any surface spillage was completely accidental and unintentional. Thomas Solvent also offers the affidavit of Charles S. Annett, a water quality expert, which attests that "it is a realistic possibility that the total volume of contaminants detected at the site could be attributed to a gradual, long-term leakage from five underground tanks at a non-detectable rate of release." (emphasis added). See Aff. of Charles S. Annett attached to Thomas Solvent's Brief in Support of Insurance Carriers' Duty to Defend at Ex. 13. Further, Thomas Solvent offers the letter of John Voelpel which indicates that although Thomas Solvent did provide funds for bottled water at the request of the Michigan DNR, he did so with the clear understanding that his actions were not an acknowledgement that any injury, loss or damage had been caused or was being caused by him. See Ex. 16 attached to St. Paul's Brief.
After reviewing the relevant depositions and supporting documentation, I find that there are material facts as to whether any, or all, of the pollution was expected or intended. I have set forth the argument above in part to demonstrate that St. Paul would have me go beyond the complaint in determining the duty to defend. I find that inquiry unnecessary and its undertaking unpersuasive at this point with respect to the duty to defend. The Adkins complaint clearly alleges that the discharge was sudden and accidental. It is true that the complaint does not use the words "unintended or unexpected" with respect to its allegation that there has been a (continuous) occurrence. Nevertheless, the common meaning of the words "sudden and accidental" satisfies me that the complaint alleges, among other things, that the occurrence(s) were unintended, that is, "accidental" from the standpoint of the insurer. Cf. Adkins Complaint at 23, ¶ 135 ("the occurrences described ... took place in a sudden and accidental manner.")
Accordingly, it is clear to me that an occurrence may have happened during all the policy periods in question and for that reason St. Paul as well as the other CGL insurers, have a duty to defend. Cf. Fireman's Fund Ins. Companies v. Ex-Cell-O Corp., 662 F.Supp. 71, 73 (E.D.Mich.1987) (Judge Feikens noting that "each exposure of the environment to a pollutant constitutes an occurrence and triggers coverage."); *1154 see also Travelers Indemnity Co. v. Dingwell, 414 A.2d 220 (Me.1980) (court found an "occurrence" and a duty to defend where the complaint contained allegations that were arguably covered. The allegations indicated that the release of toxic substances might be shown to have been unexpected and unintended.)
I note that St. Paul makes much of the argument that the terms "[un]expected or [un]intended" are contained in the policy's definition of "occurrence" and refer to unintended and unexpected damages, as opposed to the action or event of discharging hazardous wastes. St. Paul insists that what constitutes an "occurrence" is a wholly separate test from that of the sudden and accidental release of contaminants. This is important, argues St. Paul, because another policy provision, the "pollution exclusion," excludes coverage for all discharges of hazardous wastes unless they are "sudden and accidental."
Put differently, St. Paul asserts that the pollution exclusion focuses on the discharge or release, not the damages resulting from the discharge or release. Ironically, as support for its contention that the "narrow pollution exclusion is clear and unambiguous" it refers the Court to Transamerica Ins. v. Sunnes, 77 Or.App. 136; 711 P.2d 212, 214 (1985) ("The exception to the exclusion clause is concerned only with whether the discharge or release of pollutants is accidental or intended and not with whether the resulting damage was also intended.") St. Paul's Brief in Support at 30, n. 41. Here, of course, the Transamerica court itself to some extent conflated or perhaps confused the "precise" and purportedly unambiguous language defining the two "tests": "sudden" and "accidental" (the exception to the exclusion exemption) on the one hand, and "[un]intended" or "[un]expected" (the qualifying language relating to the definition of "occurrence") on the other. That is, the language drawn from Transamerica asserts that the "narrow and unambiguous" pollution exclusion terms "sudden and accidental" can be glossed "accidental or intended." Transamerica replaces the conjunctive with the disjunctive and substitutes "intended" for "sudden."
In Transamerica, the Oregon Court of Appeals actually held that because the pollution damage arising out of the insured's water deionization and softening business was not intentional, there was an "occurrence" within the meaning of the policy. Yet, the court concluded that the exclusion provision barred coverage because the insured intended to discharge the waste material directly into the sewer system and did so regularly over a ten-year period.
On the other hand, St. Paul takes a recent Michigan Court of Appeals panel to task for "improperly equat[ing] the unintentional and unexpected release of waste with the sudden and accidental exception to the pollution exclusion." St. Paul's Brief in Support at 30. See Jonesville Products, Inc. v. Transamerica Insurance Group, 156 Mich.App. 508, 402 N.W.2d 46 app. den. Jonesville Products, Inc. v. Transamerica Ins. Group, 428 Mich. 897 (1987). While I will discuss the Jonesville decision in more detail in the following section which analyzes the exclusion clause and its exception, I have alluded to the Jonesville and the Transamerica decisions within this "occurrence" section, in part, to demonstrate the difficulty courts have in finding and/or in supporting a finding that either the terms "accidental and sudden" or "[un]intended" or "[un]expected" are unambiguous contract terms.
A number of courts have succeeded, in part, in illustrating the linguistic labyrinth and conceptual conundrum that these policy provisions have created. In interpreting the identical policy language defining an "occurrence," the Ohio Court of Appeals in Buckeye Union Ins. v. Liberty Solv. & Chemicals Co. Inc., 17 Ohio App. 3d 127, 477 N.E.2d 1227 (1984) said:
... the term `occurrence' is much broader than the term `accident' ...
To begin with, the word `occurrence,' to the lay mind, as well as to the judicial mind, has a meaning much broader than the word `accident.' As these words are generally understood, accident means something that must have come about or *1155 happened in a certain way, while occurrence means something that happened or came about in any way. Thus accident is a special type of occurrence, but occurrence goes beyond such special confines and, while including accident, it encompasses many other situations as well.
... while the activity which produced the alleged damage may be fully intended, and the residual results fully known, the damage itself may be completely unexpected and unintended.
[F]or the purposes of determining [the] duty to defend ... [c]ourts and commentators alike are in agreement that the term `occurrence' is to be broadly and liberally construed in favor of extending coverage to the insured. (citations omitted) (emphasis added).
Further, in United Pacific Insurance Company v. Vans Westlake Union Inc., 34 Wash.App. 708, 664 P.2d 1262 (1983) the court determined that a gasoline leak which emanated continuously (for several months) from a small hole in an underground gasoline pipe was an `occurrence' within the meaning of a typical CGL policy. Area businesses sued after traffic was closed off for a number of weeks so that the gasoline could be pumped out of the ground. The court noted that the underlying events were `occurrences' within the meaning of plaintiff's CGL policies. The court said:
[2] In the case before us, the liability insurance policy on the one hand covers an `occurrence,' which by policy definition includes conditions which are continuing in nature (as the insured argues), while on the other hand the pollution exclusion clause in the policy excludes from coverage damages arising out of the escape of liquids, gases and other substances unless the escape is sudden (as the insurer argues is the situation presented). Both cannot be true yet both positions are reasonable, hence, the policy is ambiguous and requires judicial interpretation. It then follows that ambiguities in the policy are to be construed against the insurer which wrote the policy and in favor of the insured particularly where an exclusion is involved as it is here. Witherspoon v. St. Paul Fire & Marine Ins. Co., 86 Wash 2d 641, 650, 548 P2d 302 (1976).
664 P.2d at 1265.
Finally, in Jackson Township Municipal Utilities Authority v. Hartford Accident & Indemnity Co., 186 N.J.Super. 156, 451 A.2d 990 (1982), the court found a duty to defend in an action brought by private citizens alleging negligent contamination of groundwater resulting from seepage from a municipal landfill site. The court found the "occurrence" unexpected or unintended from the standpoint of the insured. The court noted that "[v]iewed from the standpoint of the (insured), the function of depositing the waste may have been intentional, but it was never expected or intended that the waste would seep into the aquifer resulting in damage and injury to others." Id., 451 A.2d at 994.
I conclude that the Adkins complaint has alleged an "occurrence" within the meaning of the CGL policies at issue here so as to trigger the duty to defend.
The Pollution Exclusion Clause
The positions of plaintiff USF & G and the other carriers with respect to the meaning of the term, or terms, "sudden and accidental" are clearly antipodal. The gravaman of St. Paul's argument is that the pollution exclusion set forth in its policy bars coverage (and thus the duty to defend), and that the sudden and accidental exception to the exclusion does not apply. Plaintiff argues, by implication, that the defendant insurers cannot rely on the pollution exclusion clause because there are factual resolutions which must be made before I can make such a ruling. Specifically, plaintiff argues that "[u]nless and until it can be shown in [the underlying actions] that the polluting events were not in fact `sudden and accidental,' this court should not find that the pollution exclusion relieves these insurers of their contractual duty to defend." Plaintiff's Brief in Support at 19.
Further, the fact that each side has marshalled substantial, albeit conflicting, authority from other jurisdictions with respect *1156 to the "correct" interpretation of the exclusion provision and the correlative exemption terms suggests to me that the terms, as contract terms, may well be ambiguous. Put differently, while I concede that in a litigious society such as ours the mere controversy concerning the meaning of a contract term does not establish that it is ambiguous, this type of comprehensive debate comes close to proving the point. Perhaps more important, the insurance policy itself does not define the meaning of the terms "sudden and accidental." Cf. Buckeye Union Ins. v. Liberty Solv. & Chemicals Co., Inc., 17 Ohio App.3d 127, 477 N.E.2d 1227 (1984) (noting that several courts have held that the fact that the terms "sudden and accidental" are not defined in a policy of insurance is itself enough to establish that the polluters exclusion clause is ambiguous).
Moreover, the Michigan Supreme Court recently catalogued six rules which it indicated were to be used in construing insurance exclusion clauses. See Powers v. DAIIE, 427 Mich. 602, 623-24, 398 N.W.2d 411 (1986) (in discussing whether an owned-automobile exclusion clause was contractually ambiguous, the court relied upon six general principles derived from case law interpretations of automobile and life insurance policies). The Powers court noted:
1) `[E]xceptions in an insurance policy to the general liability provided for are to be strictly construed against the insurer.' (citations omitted)
2) An insurer may not `escape liability by taking advantage of an ambiguity....' Hooper, supra at 393. `[W]herever there are two constructions that can be placed upon the policy, the construction most favorable to the policyholder will be adopted.' (citation omitted)
3) An insurer must `so ... draft the policy as to make clear the extent of nonliability under the exclusion clause.' (citation omitted)
4) An insurer may not `escape liability by taking advantage of ... a forced construction of the language in a policy....' Hooper, supra. `[T]echnical constructions of policies of insurance are not favored....' (citation omitted)
5) `The courts have no patience with attempts by a paid insurer to escape liability by taking advantage of an ambiguity, a hidden meaning, or a forced construction of the language in a policy, when all question might have been avoided by a more generous or plainer use of words.' (citation omitted)
6) `[N]ot only ambiguous but deceptive.' `[T]he policyholder must be protected against confusing statements in policies....' (citation omitted)
Powers, 427 Mich. at 623-624, 398 N.W.2d 411.
The Court will endeavor to apply these principles, to the extent that they are applicable, in order to determine whether any or all of the carriers should be relieved of their duty to defend when the exclusion clause is applied to the allegations in the complaint.
Plaintiff relies heavily upon a recent Michigan Court of Appeals decision, Jonesville, supra. In Jonesville, the underlying complaint alleged that Jonesville Products Inc., "had permitted continuous discharge of Tricholorethylene ("TCE") onto its property, resulting in contamination of the Lapes' soil, contamination of its well water, and possible physical harm to the Lapes."
The court said:
We find that the circuit court [in holding that the insurer had no duty to defend] failed to distinguish between the frequency of acts which resulted in the release of contaminants and plaintiff's [insured's] knowledge or notice of the release of pollutants as a result of those acts. The ... [underlying complaint] did not specify ... how the toxic wastes entered the ground. There may have been either intentional dumping or burial, unintentional spills or leaks from inadequate containers, or other accidents. The allegations.... are couched in general terms and encompass unintentional release into the ground.
....
The circuit court erred in finding that the allegation of "continuous" negligent *1157 discharge of waste ... took [the underlying complaint] ... out of defendant's [insured's] exception for "sudden and accidental" release. It is possible that the releases could have been sudden, i.e., unexpected, and accidental, i.e., unintended, and thus outside the exclusion.
Jonesville, 156 Mich.App. at 512, 402 N.W. 2d 46.
I concede that the Adkins complaint alleges both intentional and non-intentional (negligent) act(s) that is, a continuous negligent discharge from approximately 1973 to the time the complaint was filed in 1985, but as I have previously indicated, when determining the duty to defend, so-called mixed theories or conflicting theories of liability will not relieve a carrier of its obligation to defend. This rule is consistent with the Jonesville court's conclusion that "[i]t was the duty of defendant [insurer] to undertake the defense until it could confine the claim to a recovery that the policy did not cover.") (emphasis added). This pronouncement of a broad duty to defend is consistent with and is in part a restatement of the test set forth in Detroit Edison, 102 Mich.App. at 142 (duty to defend exists where claims are merely arguably within the province of the policy). Cf. Mt. Hope Inn v. Travelers Indem. Co., 157 N.J.Super. 431, 384 A.2d 1159 (Law Div. 1978).
I observe that in Jonesville, a court once again used the words "sudden," "unexpected," "accidental," and "unintended" almost interchangeably. Cf. Lansco, Inc. v. Dep't of Environmental Protect. of State, 138 N.J.Super 275, 282, 350 A.2d 520 (Ch. Div.1975), aff'd 145 N.J.Super. 433, 368 A.2d 368 (App.Div.1976), cert. den. 73 N.J. 57, 372 A.2d 322 (1977) (noting that the common meaning of "sudden" is "happening without previous notice or on very brief notice: unforeseen; unexpected; unprepared for." Webster's International Dictionary (2d ed. unabrid. 1954); Black's Law Dictionary (4 ed. 1968)." It may well be that this matter is simply beyond the judicial ken. At least one court has observed that "the words `sudden' and `accidental' have been interpreted by recognized dictionary definitions to include unexpected and unintended events." CPS Chemical Company, Inc. v. The Continental Insurance Company and United States Fidelity and Guaranty Company, 199 N.J.Super. 558, 489 A.2d 1265 (1984) (emphasis added). Perhaps it will take the etymological efforts of the late John Ciardi, or perhaps a column from William Safire or some other contemporary wordsmith to adequately trace and retell the history of these contractual cognates as they developed distinct connotations from their [apparently] once common form. Until that day it appears we will have to live with and within the ambiguity.
I have given the matter much thought and after independent research believe that the better reasoned cases rely upon the "unintentional/intentional" dichotomy in interpreting the pollution exclusion clause and the exceptions to that clause, rather than upon the apparent distinction between the term "continuous" (drawn from the contractual definition of "occurrence") and "sudden" (the key words drawn from the "sudden and accidental" exception to the exclusion clause). Whereas the latter line of cases necessarily finds the exclusion clause clear and unambiguous, the former line concludes that the clause is clearly ambiguous.
In Jackson Township, supra, the court demonstrates how the exclusion clause can be read to include continuous actions so long as the resulting "injury" or damage was neither expected nor intended.
Thus almost unanimously, the courts in other jurisdictions go one step beyond Lansco, Inc. v. Dep't of Environmental Protect. of State, supra, in finding that the pollution clause is ambiguous. In Lansco, the occurrence was sudden and accidental because the event was unexpected, whereas in each of the other cases the court held the occurrence to be sudden and accidental because the result or injury was unexpected or unintended.
When viewed in light of the case law [previously] cited, the clause can be interpreted as simply a restatement of the definition of "occurrence" that is, that the policy will cover claims where the *1158 injury was "neither expected nor intended." It is a reaffirmation of the principle that coverage will not be provided for intended results of intentional acts but will be provided for the unintended results of an intentional act. (citations omitted) The chemical manufacturer or industrial enterprise who discharges, disburses or deposits hazardous waste material knowing, or who may have been expected to know, that it would pollute, will be excluded from coverage by the clause. The industry, for example which is put on notice that its emissions are a potential hazard to the environment and who continues those emissions is an active polluter excluded from coverage. A municipal utilities authority, in the collection of liquid waste and the deposit of the waste in a township landfill, designated as authorized to accept the waste, is carrying out its public function. Viewed from the standpoint of the municipal utilities authority, the function of depositing the waste may have been intentional but it was never expected or intended that the waste would seep into the aquifer resulting in damage and injury to others. (citation omitted). Alternative language in the clause to indicate that the act of depositing, if intentional, would exclude coverage regardless of whether the pollution is expected or intended would have put the matter beyond reasonable question. (citation omitted).
Although the third-party complaint against the plaintiff is unclear as to how many times it deposited waste at the site, the frequency of dumping is not dispositive of the issue of whether the occurrence was sudden or accidental. If the inquiry is, as it should be, whether the pleadings charged the insured with an act resulting in unintended or unexpected damage, then the acts or acts are sudden and accidental regardless of how many deposits or dispersals may have been gradual rather than sudden, the behavior of the pollutants as they seeped into the aquifer is irrelevant if the permeation was unexpected. (citation omitted).
Also the word sudden as used in liability insurance need not be limited to an instantaneous happening (citation omitted). The term "sudden and accidental" must be construed in its relevant context. The relevant context to be considered is the fact that it is a term employed by an insurer in the contract and should be given the construction most favorable to the insured. Thus, regardless of the initial intent or lack thereof as it relates to causation, or the period of time involved, if the resulting damage could be viewed as unintended by the fact-finder, the total situation could be found to constitute an accident....
I find that the pollution exclusion clause can be interpreted so as to support a meaning favorable to plaintiff, Jackson M.U.A. I therefore find that the carriers owe a duty to defend.
Jackson Township, 451 A.2d at 994-95 (emphasis added).
I believe that to the extent there exists a contrary line of cases that has found the exclusion clause clear and unambiguous, that line has at best ignored the context and connotations of "contract language" and, at worst, engaged in contractual revision. It seems to me that that mode of analysis certainly cannot be said to have adequately considered, must less advanced, the objectively reasonable expectations of the insured.
Commentators have observed that in 1966 the insurance industry broadened the meaning of accident in switching to "occurrence-based coverage" "`in response to consumer demands for broader liability protection and in acquiesence to the judicial trend toward a more expansive reading of the term accident.'" Tyler and Wilcox, Pollution Exclusion Clauses: Problems in Interpretation and Application Under the Comprehensive General Liability Policy, 17 Idaho L.Rev. 497, 499 (1981) cited in Broadwell Realty Services Inc. v. Fidelity & Cas. Co. of New York, 218 N.J.Super. 516, 528 A.2d 76 (1987) (providing the most complete and scholarly account of the origin and development of the pollution exclusion clause in CGL policies). But to draft *1159 an insurance policy that appears, on the one hand, to cover a pollution discharge that is "continuous" because it is an "occurrence," but, on the other hand, to say that the same policy is intended to exclude all "continuous discharges" unless they are "sudden and accidental," glossed "unintentional and immediate," is to make every accidental, albeit continuous, "occurrence" fall outside of coverage. In almost Orwellian fashion, it is to make an "occurrence" an "unoccurrence." It is to deny coverage to all instances of "continuous discharge" the most omnipresent and insidious form of pollution whether such discharges are intentional or unintentional; whether they are "deliberate" or accidental.
Maybe the insurer intended to exclude all long-term, that is, "continuous" pollution claims without consideration of "culpability" of the policyholder. Perhaps all instances of groundwater pollution whether the dispersal of contaminants is intentional or unintentional are to be excluded. But to write a policy which includes a broad definition of occurrence ("continuous discharge") and where the exclusion clause is, in the main, coextensive with the definition of occurrence and then to allow for a very narrow exception to the exclusion that is, where the pollution is "sudden and accidental" is, at the least, confusing, if not deceptive to the policyholder. CPS Chemical Company, Inc. v. The Continental Insurance Company and United States Fidelity and Guaranty Company, 199 N.J.Super. 558, 489 A.2d 1265 (1984) (noting that while the drafters of the "sudden and accidental" clause may have believed that the phrase "connoted a sense of a dramatic catastrophe, limited in duration and immediate in its consequences," ... "it cannot fairly be said that this was unambiguously expressed.") It invokes a "hidden meaning" as to what, if any, instances of "unintentional" but continuous pollution will be covered and what instances will be excluded.
But the Michigan Supreme Court has cautioned that "[t]he courts have no patience with attempts by a paid insurer to escape liability by taking advantage of an ambiguity, a hidden meaning, or a forced construction of the language in a policy, when all question might have been avoided by a more generous or plainer use of words." Powers, supra, 427 Mich. at 624, 398 N.W.2d 411, citing Hooper v. State Mutual Life Assurance Co., 318 Mich. 384, 392, 28 N.W.2d 331 (1947). Further, "[t]he policyholder must be protected against confusing statements in policies...." Powers, supra, at 624, 398 N.W.2d 411, citing Deland v. Fidelity Health & Accident Mutual Ins. Co., 325 Mich. 9, 17, 37 N.W.2d 693 (1949) (emphasis supplied).
Moreover, such "coverage" is inherently deceptive. It, in effect, excludes all longterm instances of pollution whether the insured is a knowing or an "innocent" polluter, that is, one who not only never intended to pollute the environment, but also took some positive, albeit in retrospect, insufficient, action to safeguard against unintentional spills or leaks.
Defendant argues that applying Jonesville to this case will thwart the important policy arguments supporting the pollution exclusion. See Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688; 340 S.E.2d 374, 381 (1986) ("The policy reasons for the pollution exclusion are obvious: if an insured knows that liability incurred by all manner of negligent or careless slips and releases is covered by his liability policy, he is tempted to diminish his precautions and relax his vigilance."). St. Paul also cites American States, supra, for the same proposition. Whether the pollution exclusion would actually fulfill its stated purpose of bringing about a more careful handling of toxics and hence, less pollution, by imposing on businesses that handle toxics the "full" costs of the risks they breed is less than clear especially when one considers the vintage of most CGL policies, the latency of the pollution menace, and the relative recentness of most pollution claims.[4]
*1160 I concede that there is currently a trend to find no duty to defend where the pollution at issue can be said to be clearly not sudden and accidental. These cases rely in part on the fact that the pollution at issue arises out of the insured's ongoing business activity. See e.g., Great Lakes, supra. In Great Lakes, the First Circuit found that when the policy was read against the allegations in the complaint those allegations unambiguously fell within the pollution exclusion clause. Accordingly, it held that there was no duty to defend. The court noted that the soil and water contamination took place as a concomitant of the plaintiff's regular business activity (reconditioning barrels containing hazardous material) and concluded that no "occurrence" had taken place.
The First Circuit also emphasized that there were no allegations of a sudden and accidental discharge. Id. at 33, 34. Moreover, it is apparent from my reading of those sections of the complaint reproduced in Great Lakes, that the plaintiff polluters discharged, continuously, without permit, wastes directly onto the ground and into a nearby stream. The court concluded:
In light of the allegations of the complaint, the words of the policy, and the type of activity in which Great Lakes was engaged, we do not think that "a more than casual reading of the policy" by "an ordinary intelligent insured" could result in a reasonable expectation that National Union had a duty to defend Great Lakes.
727 F.2d at 34. I do not read Great Lakes to stand for the proposition that whenever one's ongoing business involves in some way hazardous wastes that there is a mandatory presumption that no instance of pollution can be "sudden and accidental" or unexpected or unintended. Here, of course, the Adkins complaint expressly alleges that the release(s) were sudden and accidental. Moreover, I have indicated that there have been numerous arguments raised indicating that there are material facts in dispute with respect to whether the pollution was caused by a release or releases that can be said to be "sudden and accidental."
Similarly, in American States, supra, a case upon which St. Paul also relies, the court held that given "the continuous nature of alleged dumping ... and the absence of any suggestion that it was accidental," there was no duty to defend or indemnify. American States, 587 F.Supp. at 1553. Although the complaint was drafted in general terms and never expressly alleged that dumping was a regular part of the polluter's business, the court found it significant that there was no suggestion that the dumping was "unintended, unexpected, sudden or by accident." Id. at 1553. Put differently, the court concluded that all of the allegations in the four complaints suggested that the release of toxic materials was continuous and not in any way sudden or accidental, and for that reason they did not even arguably state an "occurrence" within the meaning of the policy. Id.
*1161 To the extent that American States turns on a temporal reading of the term "sudden," I simply disagree for the reasons previously given. In addition, there are express and specific allegations in the Adkins complaint that the releases, that is, the occurrences were "sudden and accidental." Moreover, American States did not involve allegations concerning multiple defendants and the correlative problems of determining causality given the overlap of possibly "intentional" as well as unintentional occurrences. American States clearly involved a claim for property damage which was caused by the "insured's regular business practice of illegally dumping toxic wastes." Fireman's Fund, 662 F.Supp. at 76 n. 8 (characterizing the holding in American States).
I admit that both in the definition of the triggering term "occurrence" as well as in the terms comprising the exception to the pollution exclusion there is a clear indication that an active polluter should not be permitted to benefit from his or her continued wrongdoing by spreading the risks of loss via insurance. Cf. Niagara County v. Utica Mut. Ins. Co., 103 Misc.2d 814, 427 N.Y.S.2d 171, 174 (Sup.Ct.1980) (noting that statutorily mandated pollution exclusion was intended solely to deprive active polluters of coverage), aff'd 80 A.D.2d 415, 439 N.Y.S.2d 538 (1981). Put differently, courts rightfully ask whether the incident at issue was "accidental" or "intentional." The corollary to this inquiry is that an unintentional release must be accidental and hence would be covered. Cf. All State Ins. Co. v. Klock Oil Co., 73 A.D.2d 486, 488-89, 426 N.Y.S.2d 603, 604-605 (1980).
Commentators have correctly observed that "[t]he standard for showing intent has ... become quite high. The insurer must show that the insured intended to dispose of the waste and to have the disposal result in an improper release. The rule now appears to be that coverage will be denied only if the damage resulting from the particular course of action of the insured could have been foreseen with a high degree of certainty." Developments in the Law, Toxic Waste Litigation, 99 Harv. L.Rev. 1458, 1583 (1986) (emphasis added). Cf. Fireman's Fund, 662 F.Supp. at 76 n. 8 (discussing American States and noting that "[a]n occurrence policy containing a pollution exclusion covers property damage caused by pollution only if both the property damage and the release of pollutants is unexpected and unintended.").
In sum, I find that none of the CGL insurers at this point has been able to demonstrate that the underlying claims in the Adkins complaint are totally outside the scope of their policies' coverage. Put differently, the defendants may not deny a defense because they have not been able to establish that the allegations in the complaint fall within the pollution exclusion, nor have they been able to demonstrate that there has been no "occurrence." It is clear that the underlying claims involve allegations of continuous injury. This fact does not disturb my analysis. I am unpersuaded that under the complex and unique facts of this multi-party case that Mraz v. Canadian Universal Ins. Co., 804 F.2d 1325 (4th Cir.1986) is dispositive with respect to the duty to defend.
Mraz was a waste burial case which dealt with contamination which seeped from a supposedly "leakproof" pit. The Fourth Circuit held that because setting the time of actual leakage of contaminants from the pit was almost impossible to determine, the "occurrence" should be judged by the time at which the leakage and damage are first discovered. Significantly, Mraz involved a CERCLA action brought by the state (Maryland) and federal governments to recover costs of removing hazardous wastes. The question of property damage was the only issue before the court in Mraz. Even assuming, arguendo, that the "first discovery of actual damage rule" is applicable here, the complaints are ambiguous as to that date and suggest 1981 or 1980 or perhaps an earlier date of "first" discovery.
Moreover, the Allen and Adkins complaints also contain allegations of [continuous] bodily injury as well as property damage. It is clear to me that with respect to the bodily injuries the allegations albeit somewhat inartfully drawn may be read *1162 to suggest coverage for a progressive disease (cancer, etc.) so that a different theory of "occurrence" than that of "first discovery" may well be appropriate for the bodily injury claims. See e.g., National Standard Insurance Co. v. Continental Insurance Co., CA-3-81-1015-D (N.D.Tex. Oct. 4, 1983) (in context of bodily injury claims arising out of exposure to chemical carcinogens, court found that all insurers on the risk between the initial exposure and the time of manifestation are obligated to defend). Cf. Insurance Company of North America v. Forty-Eight Insulations, Inc., 451 F.Supp. 1230 (E.D.Mich. 1978) (discussing in some detail the problems of cumulative tort cases in a case of first impression involving products liability claim based on asbestos exposure). Although the court in Forty-Eight adopted an "exposure" theory as opposed to a manifestation theory, it is clear from the opinion that the court found "bodily injury" and "occurrence" inherently ambiguous in the progressive disease context. Moreover, the court settled on the exposure theory because under the facts before it, it concluded that the relevant state courts (Illinois and New Jersey) would strictly construe contract language in favor of the injured and to promote coverage. Id. at 1231 and 1232.
Although the Mraz first manifestation approach is one of a number of possible theories through which the facts of this case could be and may ultimately be filtered, at this point I believe that I do not have to and should not confine myself to one theory of occurrence in order to find that these insurance companies have a duty to defend at least with respect to the Allen and Adkins complaints which allege both [continuous] bodily injury and property damage. Further, in Independent Petrochem. Corp. v. Aetna Cas. & Sur., 654 F.Supp. 1334, 1345 (D.D.C.1986), the court noted that "[p]rior to determining which trigger mechanism to use, a court can still find that a defendant insurance company is liable to provide a defense. Emons Indus., Inc., v. Liberty Mut. Fire Ins. Co., 481 F.Supp. 1022 (S.D.N.Y.1979)."
As the parties themselves have already recognized, because the settling of the "occurrence" issue has implications on the question of indemnification and because a finding by this Court could effect the state court actions which are still pending (Allen and Adkins), I find yet another reason to refrain from fixing a single occurrence theory at this time. I simply find "no reason why the insured, whose insurer is obligated by contract to defend him, should have to try the facts in a suit against his insurer in order to obtain a defense." Independent Petrochem., 654 F.Supp. at 1346.
In this regard I note that I am not persuaded that I ought to adopt the specific occurrence theory set forth in Michigan Chemical Corp. v. American Home Assurance Co., 728 F.2d 374, 379 (6th Cir. 1984) (applying the so-called "cause test" the court held that under Illinois law the number of occurrences was determined by the number of causes of injury rather than by the number of injuries). (The "effect test," on the other hand, holds that it is the number of injuries rather than the [continuous] proximate cause which determines the number of occurrences. See Elston-Richards Storage Co. v. Indemnity Insurance Co., 194 F.Supp. 673 (W.D.Mich.1960) (applying effect test and finding a number of occurrences of property damage within policy period)).
Further, it does not appear that the factual or procedural contexts set forth in Michigan Chemical are properly analogous. In Michigan Chemical, hundreds of claims were brought against Michigan Chemical by farmers who had sustained property damage which resulted from the distribution of contaminated livestock feed. It was clear that damage from exposure to the toxic substance occurred during a two-year period. Moreover, there was evidence that the cause of the damage was but a single misshipment of the contaminant. Under those facts, the Sixth Circuit noted that "the general rule is that an occurrence is determined by the cause or causes of the resulting injury ... and ask[ed] if there was but one proximate, uninterrupted and continuing cause which resulted in all of the injuries and damages." However, even *1163 applying the "cause test" set forth in Michigan Chemical, I believe that the unique facts of this case place it outside the general rule spelled out there.
Moreover, there have been very few cases which have had occasion to address the multiple occurrence issue in the hazardous waste context. Again, here the complaint indicates that the claims for [continuous] bodily injury as well as the property damage claims could have been caused by a multitude of causes (different contaminants) as well as by a number of different defendants for different periods of time. Cf. Township of Jackson v. American Home, No. L-29236-8 (Super.Ct.Law Div. 1984) (applying a hybrid "cause and effect" test in the context of personal injury claims allegedly resulting from exposure to different contaminants in a toxic waste site. The court noted that a variety of injuries could have been caused by different defendants and by different contaminants for different periods of time. American Home is cited in Delayed Manifestation Personal Injury and Property Damages Cases: CGL: Insurance Coverage Issues, 320 PLI/LIT 119 available on WestLaw, NTP Library).
Although plaintiff has analyzed the duty to defend issue under at least four different theories which courts have currently fashioned concerning what constitutes an "occurrence," what is clear is that the common denominator of these decisions is that courts have consistently chosen and/or fashioned a theory to maximize coverage. There is no reason why some variation of the "continuous trigger" theory should not be seen as applicable here at least at this juncture where the facts are quite complex and the issue of precisely when the so-called "continuous occurrences" should be "fixed" is so hotly disputed. Such a "hybrid" continuous trigger theory would clearly require all the insurers to defend where the date upon which the "continuous" damage first occurred has not been settled and/or where continuing exposure (damage) is also alleged. Under such a theory every policy in effect at any time during the (continuous) injury process from the initial exposure(s) until the last manifest development of bodily injury or property damaged would be triggered for coverage.
I have found that the Adkins complaint states claims, which qua claims, comprehend injuries potentially within the coverage of these CGL policies despite the fact that each policy protected the insured for different periods of time. Different interpretations of "occurrences" and different theories of bodily injury and property damage may, of course, ultimately determine a different outcome with respect to the duty to indemnify. But as I have emphasized, the duty to defend extends beyond the duty to indemnify. Where, as here, the underlying complaints allege continuing releases and continuing injuries and damages, an occurrence has been satisfactorily alleged during all the GCL insurers' policy periods with respect to the Adkins complaint. Before extending my analysis to the remaining complaints, I must first address Northbrook's choice of laws argument.
Northbrook's Choice of Law Argument
Northbrook argues and plaintiff agrees that because the Northbrook policy was issued and countersigned in Illinois that the substantive law of the State of Illinois governs. USF & G argues that because the law among the states is essentially the same with respect to the duty to defend, it is of little significance which state's law is chosen as controlling for a given insurance contract. See e.g., Smith v. Pierpont, 123 Mich.App. 33, 35, 333 N.W.2d 165 (1983) and Severine v. Ford Aerospace, 118 Mich.App. 769, 771, 325 N.W.2d 572 (1982). USF & G argues further that Northbrook would not be able to demonstrate that construing the policy under Illinois law with respect to the duty to defend would lead to a different result as the law on that issue is the same in Michigan as it is in Illinois as indeed it is in most other states. Cf. e.g., Elas v. State Farm, 39 Ill.App.3d 944, 352 N.E.2d 60 (1976); see also, Thornton v. Paul, 74 Ill. 2d 132, 223 Ill.Dec. 541, 384 N.E.2d 335 (1979).
Northbrook argues that several issues in this case have not been decided by the *1164 Illinois courts and that I will have "to attempt to determine what Illinois law would be on these issues were they to be decided by the Illinois State Supreme Court." Northbrook's Brief in Opposition at 8. Northbrook further argues that an Illinois court deciding this issue would not follow Michigan law but would look to the law of other states where a large number of insurance companies are headquartered. Northbrook then cites a Pennsylvania case, Fischer & Porter Co. v. Liberty Mutual Ins. Co., 656 F.Supp. 132 (E.D.Pa.1986) which indicates that while an insurer has the burden of proving a defense or an exception to coverage, the insurer would not have the burden of proving both coverage and the defense. Northbrook also cites a New Jersey decision, CPS Chemical Co., Inc. v. Continental Ins. Co., 203 NJ Super 15, 495 A.2d 886, 889 (1985) (denying summary judgment for plaintiff where there was a question of intentionality of plaintiff's conduct and holding that insurer's obligation to defend did not require insurer to defend a claim while it contested issue of coverage).
Although it is self-evident why Northbrook singled out these particular decisions from other jurisdictions, I am not persuaded in the first instance that Illinois would follow the law of these states or, for that matter, these particular decisions. Moreover, even assuming Illinois would look to these states for guidance, it is by no means clear that their courts would decide the matter now before me to Northbrook's liking. See e.g., CPS Chemical Company, Inc. v. The Continental Insurance Company and United States Fidelity and Guaranty Company, supra (1157 of this opinion); see also Jackson Township, supra (at 1157-59 of this opinion).
More important, the Sixth Circuit has recently provided guidance concerning the "hierarchy of authority" which a federal court should follow in diversity cases. In Grantham and Mann v. Amer. Safety, 831 F.2d 596 (6th Cir.1987), the Sixth Circuit said:
In diversity cases, the federal courts must apply law `in accordance with the then controlling decision of the highest state court.' United States v. Anderson County, Tennessee, 761 F.2d 1169, 1173 (6th Cir.) (quoting Vandenbark v. Owens-Glass Co., 311 U.S. 538, 543 [61 S.Ct. 347, 350, 85 L.Ed. 327] (1941)), cert. denied, [474 U.S. 919] 106 S.Ct. 248 [88 L.Ed.2d 256] (1985); see Erie R.R. V. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188] (1938). If the forum state's highest court has not addressed the issue, the federal court must ascertain from all available data, including the decisional law of the state's lower courts, restatements of law, law review commentaries, and decisions from other jurisdictions on the "majority" rule, what the state's highest court would decided if faced with the issue. See Bailey v. V & O Press Co., 770 F.2d 601, 604 (6th Cir. 1985) citing cases); Mathis v. Eli Lilly & Co., 719 F.2d 134, 141 n. 15 (6th Cir.1983) (quoting Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151, 1153 (6th Cir.1981)). Nevertheless, although a decision by a lower court is not controlling where the highest state court has not spoken, Commissioner v. Estate of Bosch, 387 U.S. 456, 465 [87 S.Ct. 1776, 1782, 18 L.Ed.2d 886] (1967); see Bailey, 770 F.2d at 604, the decision of `an intermediate appellate state court ... is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.' Estate of Bosch, 387 U.S. at 465 [87 S.Ct. at 1776] (quoting West v. American Tel. & Tel. Co., 311 U.S. 223, 237 [61 S.Ct. 179, 183, 85 L.Ed. 139] (1940)) (emphasis supplied by Bosch); see also Woodruff v. Tomlin, 616 F.2d 924, 928-29 (6th Cir.) cert. denied, 449 U.S. 888 [101 S.Ct. 246, 66 L.Ed.2d 114] (1980).
Grantham, 831 F.2d at 608-609.
Following Grantham, I believe that I should first look at what the intermediate Illinois state court has decided with respect to the pollution exclusion clause issue. Moreover, the Illinois Supreme Court also provided guidance with respect to the duty to defend. Reliance Ins. Co. of Illinois v. *1165 Martin, 126 Ill.App.3d 94, 81 Ill.Dec. 587, 467 N.E.2d 287 (1984) concerned the issue of whether a parking garage permitted carbon monoxide and soot to regularly escape into a nearby condominium unit. The insurer sought a declaratory judgment concerning its duty to defend or indemnify pursuant to the pollution exclusion clause in its comprehensive general liability policy. The appellate court reversed the trial court's ruling in favor of the insurer and held that there was a material fact concerning whether the soot and fumes were "sudden and accidental" within the meaning of the pollution exclusion.
Reliance noted that:
[a]n insurer must defend a claim where any of the allegations of the complaint fall within, or potentially within, the coverage provided. Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24, 27 (1976). Where the terms of an insurance policy are ambiguous or are subject to more than one reasonable construction, the policy should be construed in favor of the insured and strictly against the insurer. Willett Truck Leasing Co. v. Liberty Mutual Insurance Co., 88 Ill.App.3d 133, 43 Ill.Dec. 376, 410 N.E.2d 376 (1980) (other citations omitted).
I note that this analysis appears quite similar to that supplied by Michigan law. Reliance concluded that because there was an issue of fact with respect to the question of whether the soot and fumes generated by the company were sudden and accidental, summary judgment was improperly granted to the insurer. Reliance noted that the complaint alleged that the fumes and soot entered the condominium "at diverse times and over a period of time." Id. at 289. The insurer argued that these assertions precluded any question as to whether the entrance of the fumes was sudden and accidental. Noting that Illinois courts had not addressed this precise issue, the appellate court went on to conclude that the relevant question was "not the time frame involved but whether the insured could have intended or expected carbon monoxide and soot to enter the ... condominium unit." Id. The Reliance court based its analysis on a broad reading of "accidental" as provided in a New York appellate court decision, Allstate Insurance Co. v. Klock Oil Co., 426 N.Y.S.2d 603, 73 A.D.2d 486 (1980). Klock interpreted a pollution exclusion clause identical to that at issue in Reliance and in this case. I, of course, have also relied in part upon the Klock analysis. (See this opinion at 1161).
In sum, I am not persuaded that the Illinois courts would diverge from Michigan law upon the points which are critical to this decision. Consequently, I reject defendant Northbrook's argument that it should not be required to defend the Thomas defendants on the basis that facts might theoretically be shown which would bring the claims in question within NESCO's coverage, [but] "[r]ather ... should be required to reimburse its insureds and USF & G for the costs of defense if, and only if, facts are established which bring the claim within NESCO's coverage." Northbrook's Brief at 10. Finally, Reliance noted that "[t]he rule in Illinois appears to be well established that in cases of doubt as to coverage, an insurer has an obligation to the insured either to defend under a reservation of the right to deny coverage at a later date, or to seek a declaratory judgment as to its obligation. Thornton v. Paul, 74 Ill.2d 132, 23 Ill.Dec. 541, 384 N.E.2d 335." (other citations omitted).
The Allen Complaint
It is true that the Allen complaint is not as artfully drafted as is the Adkins complaint. Again, the leading Michigan case on the duty to defend, Detroit Edison Company, supra, 102 Mich.App. at 141-142, 301 N.W.2d 832, noted that "the duty to defend cannot be limited by the precise language of the pleadings. The insurer has the duty to look behind the third party's allegations to analyze whether coverage is possible. Shepard Marine Construction Company v. Maryland Casualty Company, 73 Mich.App. 62, 250 N.W.2d 541 (1976)."
*1166 In Shepard Marine, the Michigan Court of Appeals noted:
Cases which seem to hold that the duty to defend depends on the allegations, (citations omitted), are essentially upholding another general principal, that the duty to defend encompasses even frivolous and unfounded allegations if, as in the case at bar, a policy clause so provides. This principal cannot be reversed, however, to make the insurer's duty to defend depend upon the skill and pleading of a third party. As the California Supreme Court has stated:
Defendant cannot construct a formal fortress of the third party's pleadings and retreat behind its walls. The pleadings are malleable, changeable and amendable.
....
To restrict the defense obligation of the insurer to the precise language of the pleadings would not only ignore the thrust of the cases but would create an anomaly for the insured.
73 Mich.App. at 64-5, 250 N.W.2d 541.
In Travelers Indemnity Company v. Dingwell, 414 A.2d 220 (1980), the Supreme Court of Maine observed:
`[a] defendant [to an underlying action] has no power to amend a complaint which contains an incomplete statement of facts. Whether he can obtain a defense from his insurer must depend not on caprice of the plaintiff's draftsmanship, nor the limits of his knowledge, but on a potential shown in the complaint that the facts ultimately proved may come within the coverage.'
The dominant rule in other jurisdiction is that the insured has a right to a defense whenever the allegations show a potential that liability will be established within the insurance coverage, even when the allegations are broad and uncertain as to specific facts. (citations omitted).
414 A.2d at 226.
Many of the allegations in the Allen complaint mirror those of the Adkins complaint. Paragraph 28 of the Allen complaint alleges:
"The defendants knew, or in the exercise of reasonable care should have known that dangerous toxic chemicals and industrial waste generated, produced, used, handled, shipped, transported, transferred, hauled, stored, sold and/or disposed of by Defendants were permitted to seep, leak, drain, pour or otherwise enter the earth and soils in and about the property surrounding the THOMAS SOLVENT COMPANY and allowed to enter water, drains, ditches, and other conduits and to filtrate, percolate and migrate into the wells, water, homes, and environments occupied by plaintiffs."
Paragraph 32 alleges in part:
"... the defendants negligently, carelessly, willfully, wantonly, recklessly and improperly engaged in the generating, producing, using, handling, shipping, transporting, transferring, hauling, storing, selling and/or disposing of said dangerous, toxic chemicals and industrial waste ... and the defendants allowed or caused said chemicals to seep, leak, drain, and pour onto and into the ground and into the well systems of the surrounding area and into the land and property of the plaintiffs."
Paragraphs 28 and 32 mirror paragraphs 122 and 128 of the Adkins complaint, respectively. Although the Adkins complaint expressly alleges that the occurrences were sudden and accidental, given the policy considerations concerning the broad reading of the duty to defend set forth in Shephard Marine, Detroit Edison, and Dingwell, I do not believe that those omissions are fatal in this instance.
Moreover, defendants make no specific objections with respect to the Allen complaint that were not also made in the Adkins complaint. Accordingly, I adopt my analysis and conclusions concerning "occurrences" and the exclusion clause and find that there is a duty to defend the Allen complaint on the part of all of the CGL insurers.
The Kelley Complaint
For the sake of brevity, I will, in the main, not repeat in full the allegations *1167 in the remaining three complaints, but rather merely cite to them to the extent that it is appropriate.
Paragraph 41 alleges that:
"large quantities of various organic compounds, both `new' solvents ... and used or `recoverable' solvent wastes awaiting recycling or disposal have, for more than twelve years, been stored and handled without secondary containment over and near unprotected permeable soils at Defendant's facilities."
Paragraph 67 of the Kelley complaint alleges:
"Since January 11, 1982, DNR staff have repeatedly directed Defendant to: remove contaminated soils, install adequate secondary containment, implement an approved Pollution Incident Prevention Plan, as required by law, and conduct hydrogeological and soil testing needed to determine the full extent of soil and groundwater contamination at each of its facilities. Despite those requests, and clear evidence that Defendant has contaminated, and continues to contaminate soil and vital groundwater resources with toxic organic chemicals, Defendant has refused to firmly commit to, let alone take, adequate remedial and preventive measures."
At first blush the allegations in the Kelley complaint appear to differ significantly from those in the Adkins and Allen complaints in one respect. The Adkins complaint expressly alleged continuous occurrences which were "sudden and accidental" the Allen complaint implied as much. On the other hand, the Kelley complaint alleges via paragraph 67 that the "defendant has refused to firmly commit to, let alone take, adequate remedial and preventive measures at least since January 11, 1982 when the complaint alleges that the DNR staff repeatedly directed defendant to take action." (emphasis added).
I emphasize that in the so-called "comparison test" the allegations of the complaint are lined up side-by-side with the provisions in the policy. It appears at first blush that the complaint itself indicates that there is no duty to defend after January 11, 1982. It appears that unlike the Adkins and the Allen complaints, the Kelley complaint makes specific allegations with respect to specific dates as to the failure of defendant to take certain actions when directed to do so by the DNR. (It is true that in the Adkins complaint there are two paragraphs which allege certain dates concerning the denial of defendant's license application by the DNR [see ¶¶ 86-87], but these paragraphs are informational and are arguably qualitatively different than that of paragraph 67 set forth above. Moreover, I have previously described and analyzed in detail the allegations contained in the Adkins complaint.)
The question here is whether after January 11, 1982 the complaint so unequivocally asserts that the defendant "constructively intended" the damages which flowed from his conduct because those damages were so readily forseeable from his refusal to respond to the DNR directives that the insurer has no duty to defend.
Put differently, the narrow question is: Should any insurer on board after January 11, 1982, be expected to defend on the basis of the allegations contained in the Kelley complaint? Again, this inquiry should be made using the comparison test without any judgment being made as to whether the underlying claims are meritorious.
I note that it is not easy to articulate the standard which requires a court to find that the conduct was "constructively intentional." One of the best known commentators in this area has suggested that the difference between unintended damages and damages which can be considered "constructively intended" is best expressed as the less than unequivocal distinction between highly expectable losses and losses that are less expectable. See R. Keeton, Basic Text on Insurance Law (1971), note 51, at 299. Although the Kelley complaint alleges continuing occurrences, it appears that it alleges that losses after January 11, 1982 could only be considered highly expectable.
Paragraph 66 indicates that "defendant continues to store and handle at both of its facilities many of the same types of organic *1168 chemicals which it previously spilled, leaked or otherwise discharged into the soil...." However, both paragraph 11 and paragraph 12 clearly indicate that the defendant submitted a proposed "Pollution Incident Prevention Plan (PIPP) in 1982. Thus from the insured's perspective it cannot be said that it failed to take any measures, but perhaps that the submitted plan and measures were considered inadequate. Considering the broad reading given to the duty to defend under Michigan law, I cannot say at this point without the ascertainment of material facts which are in dispute and which are beyond the complaint that the injuries caused by the alleged pollution were actually intended or "constructively intentional."
Accordingly, I find that all of the CGL policyholders have a duty to defend the Kelley complaint. Defendants raise an additional issue concerning whether the complaint actually seeks equitable relief rather than property damages. Because the resolution of that argument also affects the CERCLA claims, I will address it in the next section.
The CERCLA Claims
Both CERCLA claims involve the related issue of whether the complaints allege [property] "damages" within the meaning of the policies.
Paragraph 1 of the United State's complaint alleges, in part:
"The United States seek reimbursement of costs incurred and to be incurred in responding to the releases and threatened releases of hazardous substances into the environment from facilities owned and operated by defendant, in the vicinity of the Verona Well Field in Battle Creek, Michigan."
Defendant argues that claims by the EPA for remedial and response costs are not covered by the standard CGL policy language as claims for "damages." Cf. Mraz v. Canadian Universal Ins. Co., 804 F.2d 1325, 1329 (4th Cir.1986); Maryland Casualty Co. v. Armco, Inc., 643 F.Supp. 430, 435 (D.Md.1986).
In Maryland Casualty, the court found that "black letter insurance law holds that claims for equitable relief are not claims for `damages' under liability insurance contracts." 643 F.Supp. at 432. The court went on to hold that claims for Superfund (CERCLA) clean-up costs could not be considered equitable for seventh amendment purposes as indeed all courts ruling on that discrete issue have held and essentially monetary for purposes of interpreting an insurance contract. Id. at 430. Maryland Casualty concluded that insurance contracts "drew the line at the historic division between law and equity ... arbitrary as it may appear ..." and found in favor of the insurer.
Maryland Casualty rejected the recommendation of the special master who suggested in my view a more reasonable view of property damage from the standpoint of the insured. It is clear to me that once property damage is found as a result of environmental contamination, clean-up costs should be recoverable as sums that the insured was liable to pay as a result of property damage. In this context the argument concerning the historical separation of damages and equity is not convincing and it seems to me that the insured ought to be able to rely on the common sense expectation that property damage within the meaning of the policy includes a claim which results in causing him to pay sums of money because his acts or omissions affected adversely the rights of third parties. While such claims might be characterized as seeking "equitable relief," the cleanup costs are essentially compensatory damages for injury to common property and for that reason the insurer has a duty to defend. Cf. United States Aviex Company v. Travelers Insurance Company, 125 Mich.App. 579, 336 N.W.2d 838 (1983). The short answer is that from the standpoint of the insured damages are being sought for injury to property. It is that contractual understanding rather than some artificial and highly technical meaning of damages which ought to control.
Plaintiff also argues that even conceding that there is a split in legal authority on this issue, in the absence of higher Michigan authority, I ought to follow the Michigan *1169 Court of Appeals decision in Aviex. Compare, e.g., Port of Portland v. Water Quality Ins. Syndicate, 796 F.2d 1188 (9th Cir.1986) and Continental Ins. v. N.E. Pharm. & Chem. Co., 811 F.2d 1180 (8th Cir.1987), reh. granted sub nom. Continental Ins. v. State of Mo., 815 F.2d 51 (8th Cir.1987) (finding duty to defend) with Mraz v. Canadian, supra and Maryland Casualty, supra (finding no duty to defend because the government's complaint failed to assert claims for property damages within the meaning of the policies).
Following the paradigm of authority set forth in Grantham and emphasizing that I fail to find persuasive case law to the contrary, I am convinced that the Michigan highest court would adopt, if not expand upon, the definition of "damages" set forth in Aviex with respect to an insurer's duty to defend a cleanup action. Although, I realize that the Aviex decision is more directly "persuasive" with respect to the Kelley complaint, I nonetheless find the arguments set forth in Aviex persuasive and applicable in the CERCLA context. For all these reasons, it is worth examining the holding in Aviex in more detail.
In Aviex, the Michigan Department of Natural Resources attempted to compel U.S. Aviex to undertake an investigation and remedy groundwater contamination which occurred after a fire was put out at its chemical manufacturing plant. Water had been used to put out the fire, and toxic chemicals had subsequently migrated into groundwater located on Aviex's property and then spread beyond its property. The Michigan Attorney General filed suit as well.
The issue of the duty to defend was before the Aviex court. Michigan Court of Appeals said:
Defendant also questions the trial court's ruling that defendant is `obligated to defend any claim or action, and to pay for any costs of (plaintiff) for correcting chemical contamination, imposed by or resulting from a determination by a tribunal of competent jurisdiction.' Defendant argues that this ruling incorrectly construes the insurance agreement to cover sums of money expended by plaintiff in response to equitable or injunctive orders, instead of covering only money paid or ordered to be paid as compensation for injury or loss.
125 Mich.App. at 587-588, 336 N.W.2d 838. (original emphasis).
The court then examined the policy which contained virtually the same language as before me. The court said:
The contract between defendant and plaintiff obligates defendant to `defend any suit against (plaintiff) seeking damages' and to pay `all sums which (plaintiff) shall become obligated to pay by reason of liability imposed by law upon (plaintiff) ... as damages because of ... property damage.' Thus, both the obligation to defend and the obligation to pay depend on the definition of `damages.' As stated earlier, defendant interprets `damages' as compensation for injury or loss, and argues that costs incurred by plaintiff in complying with equitable or injunctive orders are non-compensatory. Plaintiff and intervenor interpret `damages' as sums which the insured is obligated to pay by reason of liability imposed upon him by law (in this case, MCL 323.6, MSA 3.526 and MCL 323.10; MSA 3.529(1)).
Id. at 588, 336 N.W.2d 838.
The court concluded:
In our opinion, this reasoning interprets `damages' too narrowly. Under MCL 323.10; MSA 3.529(1), the Attorney General is empowered to file a suit `to recover the full value of the injuries done to the natural resources of the state....' This language clearly indicates the state's interest in its natural resources. Defendant agrees that the contamination of subterranean and percolating water as a result of the fire is `physical injury to tangible property' within the terms of the insurance policy. If the state were to sue in court to recover in traditional `damages,' including the state's costs incurred in cleaning up the contamination, for the injury to the ground water, defendant's obligation to defend against the lawsuit and to pay damages would be *1170 clear. It is merely fortuitous from the standpoint of either plaintiff or defendant that the state has chosen to have plaintiff remedy the contamination problem, rather than choosing to incur the costs of clean-up itself and then suing plaintiff to recover those costs ... We therefore affirm the trial court. Defendant must defend and indemnify plaintiff against such claims and costs under the insurance policy.
125 Mich.App. at 589-590, 336 N.W.2d 838. (emphasis added).
The Kelley action, injunctive in form, clearly seeks compensation for damages to common property. In its prayer for relief, plaintiffs sought an order "directing defendant to pay damages ... to compensate ... for Defendant's pollution, impairment and destruction of the environment caused by the discharge of hazardous chemical toxicants from Defendant's property onto the soils and into the ground water of this state." Kelley Complaint, Ex. H at ¶ D, attached to USF & G's Motion and Brief for Summary Judgment (emphasis added). Moreover, as I have previously indicated, I find the Maryland Casualty contractual analysis hypertechnical from the insured's standpoint and ultimately unpersuasive.
A very recent decision, New Castle County v. Hartford Accident and Indemnity Company, 673 F.Supp. 1359 (D.Del. 1987) (available November 3, 1987 on WESTLAW, Westlaw Legal Bulletin [WLB] database) provides support for my analysis and conclusions.[5] The New Castle court rejected a legal, technical reading of "damages" relied upon by Maryland Casualty and adopted a dictionary definition of damages. The Court specifically rejected the reasoning in Mraz and found that the policy definition of damages included claims for injunctive relief as well as statutory response costs (CERCLA claims) or costs resulting from other remedial actions. Moreover, the court cited with approval Aviex and Ex-Cello-Corp. Significantly, the court found the policy language ambiguous and interpreted the language so as to adhere to the reasonable expectations of the insured.
The State (CERCLA) Claim Kelley, et al. v. Thomas Solvent, et al., No. K86-164.
Paragraph 2 of the State of Michigan's complaint alleges in part:
"Plaintiffs seek a judgment requiring the defendant to compensate the State of Michigan for its costs in responding to the pollution emanating from the sites; for damages to the natural resources at the State of Michigan; and for statutory penalties." (emphasis added).
Again, to the extent that it is necessary, I adopt my previous analysis concerning the pollution exclusion clause and "occurrences." In this regard, I specifically note that under the majority view "property damage," within the meaning of a CGL policy, occurs when the toxic material is disposed of, and it is clear that the complaints allege that these "occurrences" may well have taken place during the time when the earliest of the relevant insurers (USF & G) was supplying coverage. Put differently, the complaints allege that the toxic releases at issue were emanating from Thomas Solvent's facilities on a "continuing basis" for a period of time extending back more than twelve years prior to the filing of the complaints. Thus an insurer during any of these "exposure times" may be held liable for cleanup costs incurred after an "earlier" policy may have expired. Again, although the final fixing of precise "occurrence dates" [in "fact"] *1171 properly awaits proof at the underlying trials, I find that in light of the broad duty to defend previously discussed, I must hold that all of the CGL insurers have a duty to defend both CERCLA actions.
The Automobile Policies
I have previously set forth the general provisions of the automobile policies. Although these policies use the word "accident" rather than "occurrence," accident is defined as including continuous or repeated exposure to the same conditions resulting in bodily injury or property damage that the insured neither expected nor intended.
It is clear that the policies require that the discharge be sudden and accidental and that the accident involves a covered auto. Defendant Hartford argues that the alleged discharge(s) are not "sudden and accidental," the complaints do not allege that the accident(s) resulted from the ownership, maintenance or use of a covered auto and that the defendant never advised them of any accidents.
It is clear that the terms "accident" and "occurrence," are, in this context, functionally equivalent. It is also clear that I have previously addressed the arguments set forth by Hartford regarding the pollution exclusion clause and the "occurrence" issue in the CGL context and have provided a thorough analysis and rationale of my position. I simply adopt that analysis and see no reason to repeat it here.
I find that the previously quoted allegations in the Adkins, Allen and Kelley actions (see also ¶ 12 of Kelley "hoses are used to transfer materials between the underground tanks and tank trucks.") all arguably fall within the policy provisions of the automobile policies at issue here. Accordingly, all have a duty to defend with respect to those three actions.
Further, both CERCLA complaints indicate as a matter of information and identification that Thomas Solvent transports solvents. However, I can find no allegation in the United States's CERCLA complaint even reading it very broadly which indicates that the contamination of the soil or groundwater resulted from the use, maintenance or operation of any motor vehicle. There is no allegation that any material was improperly transferred, shipped, hauled, or even "handled." Therefore, I find that no automobile insurer has a duty to defend with respect to the United States's CERCLA complaint.
This is not the case however with respect to the State of Michigan's CERCLA claim. "Improper handling" (paragraph 1 of the State CERCLA complaint) can be broadly read to refer to and include the shipping, transportation, transferral, and hauling of the toxic chemicals at issue here. Because the allegations in the complaint arguably come within the policy coverage, I find that all the automobile policy insurers have a duty to defend with respect to the State CERCLA claim.
The "Phantom Policy" Defendant Continental's Motion for Summary Judgment
None of the parties has been able to locate certain policies of insurance which Thomas Solvent alleges were issued by defendant Continental Casualty. Continental concedes that discovery has produced certain generic forms which may have been issued in conjunction with these policies, but argues that these forms are not the complete policies that would have been issued. Continental argues further that it is unknown if Thomas Solvent was the insured on the alleged policies. Further, the location and amounts of coverage, the dates of coverage and whether the policies were even in fact issued, are all unknown.
Defendant concedes that there is some evidence that the billing forms of Thomas Solvent's agent indicate "Continental." However, Continental argues that a review of Best's list of insurance companies identifies a number of "Continental Companies" which are not associated with Continental Casualty Company, including Continental American Life Insurance Company, Continental Insurance, Continental Insurance Company of Canada, Continental Reinsurance Corporation and Continental Western Insurance Company. Moreover, at the *1172 time Continental Casualty Company was using the CL and CCP prefixes, other companies were using the same alpha numeric numbering systems and Continental argues that these numbers may correlate with the policy number of these other companies. In addition, one of the alleged policy numbers, XXXXXXXXX, is a number which apparently does not relate to any policies which were ever issued by Continental Casualty Company.
Plaintiff USF & G argues that although the deposition of Thomas Lucas, a "records management" employee of Continental, indicates that Continental has not been able to locate any boxes or records associated with the alleged policy years or the alleged type of policy, Mr. Lucas did indicate that Continental retains samples of past standard policy forms. See Lucas Deposition at 14-15. Further, Mr. Lucas also indicated that the prefixes to the number supplied by the Worgess Agency the insurance agency which represented Thomas Solvent during this period of time that is, "CCP" and "CL," represent Continental's designations for general liability and general auto coverage, respectively. Id. at 18-19. Mr. Lucas also indicated that Continental issued those types of policies from 1964 to 1968. Id. at 18-19.
Mr. Lucas could not at the time of his deposition testify from his own knowledge that the insurance industry practice in the years 1964 to 1968 was to adopt standard forms such as those promulgated by the Insurance Services Office ("ISO"). However, after the Lucas deposition, Continental produced four groups of standard forms which were taken from its records. USF & G argues that the four policy numbers alleged to reflect Continental Insurance policies coincide with policies which could have been issued by Continental. Plaintiff argues that this conclusion is supported by the "coincidence of the prefix "CL" or "CCP," the policy number and the dates of coverage. See USF & G's Supplemental Response to Continental's Motion for Summary Judgment at 5. Put differently, USF & G argues that each of the four alleged policies, the policy prefixes and numbers are consistent with Continental's practices during the alleged time period.
USF & G argues that it has demonstrated the existence of sufficient extrinsic evidence to support its argument that there were policies issued which "in all likelihood contained the standard language on the duty to defend" and that "at least one of those policies contained a provision establishing a duty to defend the underlying cases." See USF & G's supplemental response to Continental's motion for summary judgment at 6 & 8. USF & G concludes that Continental's motion for summary judgment should be denied and USF & G's amended motion for summary judgment should be granted.
Continental argues that even assuming that it is determined that Continental issued a policy of insurance to Thomas Solvent and that as a part of that policy the "generic forms" previously discussed were issued, this Court is nevertheless without sufficient evidence with which to determine that a duty to defend exists. Continental emphasizes that plaintiff has not established the dates of coverage, policy amount, the location of the insured's premises, the name or identity of the insured, the risk and loss insured, the extent of coverage available or any other specifics. See Continental Casualty Company's Supplemental Brief in Support of Motion for Summary Judgment at 2.
I find that under these facts, plaintiff USF & G has simply failed to meet its burden to present the existence and/or the details and specifics of coverage in order to allow me to carry out a "comparison" test in order to determine the duty to defend. See Strong v. Hercules Life Insurance Company, 284 Mich. 573, 280 N.W. 55 (1938) (noting burden is on plaintiff to produce proof of the existence of the policy). Accord American Home Assur. Co. v. Evans, 528 F.Supp. 1276 (E.D.Mich.1984) (citing Hercules for the same proposition). Accordingly, I will enter an order granting Continental's motion for summary judgment.
*1173 Allocation of Defense Costs
Plaintiff USF & G argues that until the number and dates of occurrences if any are established, each insurer shares equally USF & G's duty to defend. Accordingly, USF & G seeks an order which equally divides responsibility for past and future defense costs among USF & G, Canadian, Northbrook, St. Paul and Hartford.
Northbrook argues that the defense costs should be apportioned among the carriers based on the number of years of coverage afforded by each carrier's policy. Northbrook relies upon Ins. Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980) clarified on rehearing, 657 F.2d 814 (1981), cert. den., 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). In addition, Northbrook asks for a separate briefing and argument on this issue.
Similarly, defendant St. Paul argues that the defense costs should be prorated, based upon time of risk rather than by the number of primary insurance carriers. St. Paul has submitted a chart indicating the total number of days each insurer was "on the risk." See St. Paul's Supplemental Response in Opposition to Plaintiff USF & G's Motion at 4.
Forty-Eight concerned bodily injuries resulting from exposure to asbestos. The Sixth Circuit, addressing the bodily injury problem, found that the exposure theory it adopted allowed for a reasonable means of proration and therefore prorated defense costs. The Court noted that "the insurer has not contracted to pay defense costs of occurrences which [take] place outside the policy period." 633 F.2d at 1224-1225.
I believe that it would be inappropriate to adopt the reasoning set forth in Forty-Eight. I have made clear that the duty and extent of liability is not capable of precise determination at this time. It is not clear, for example, which theory or theories of "occurrences" will be applied in the various cases now pending in this and other courts and, beyond this, all the companies are at this point potentially liable. See e.g., Emons Industries Inc. v. Liberty Mut. Fire Ins. Co., 481 F.Supp. 1022, 1026 n. 8 (S.D.N.Y.1979) (discussing Forty-Eight and refusing to prorate defense costs where both insurance companies at issue stood on "equal footing with respect to potential liability and their concomitant duty to defend.")
Accordingly, I will enter an order indicating that each insurer which I have found to have a duty to defend, must share past and future defense costs equally with USF & G.
Conclusion
What appeared to be, at first blush, simply a "duty to defend" case, has, upon closer inspection, turned out to be a rather complex case involving numerous legal issues. Unfortunately, the law in this area is unsettled to say the least. Some decisions appear to turn on contractarian principles. Others appear to include public policy concerns of "maximizing coverage." More recently, there is a discernable trend to deny coverage out of an apparent concern for the "liability crisis." Commentators have noted that much of the litigation concerns relatively "old" CGL insurance policies given the fact that our understanding of the scope of environmental damage caused by toxic wastes and other forms of pollution is a relatively recent phenomenon and that "new" policies are difficult to secure and the costs, prohibitive. Developments in the Law, Toxic Waste Litigation, 99 Harv.L.Rev. 1458, 1576 (1986). Moreover, the stakes have become so high and these issues so frequently litigated that at least "[o]ne insurance company writes insurance for the cost of litigating against one's own insurance company." Id., at 1576 n. 15 (emphasis added). Each year dozens of new law review articles appear on the subject. My review of the mounting case law in this area reveals that there continues to be a "split" in authority within and between circuits.
There are two things that are clear to me at this point. First, I do not think it wise or necessary that so much financial resources are spent trying these duty to defend issues. These and other related issues need to be clarified. Insureds apparently *1174 must often seek insurance just to cover the cost of litigating against their own insurance company! The expenditure of such funds by the insured diminishes the amount available to actually clean up the environment and/or reimburse the government or private parties for the costs of cleaning up the environment assuming liability is found.
What is also evident is that if so-called "environmental insurance" is ever going to be available to businesses on a large-scale basis, the issues raised in this case as well as other legal issues concerning environmental litigation must be clarified so that businesses and local governments which engage in toxic-related enterprises can secure adequate insurance that will permit them to remain solvent and, at the same time, to put in place effective pollution safeguards. On the other hand, until these and other related legal issues are clearly defined, insurance companies will not have enough confidence in their ability to predict risk and, consequently, will continue to sell environmental insurance at premiums which no business or local government can afford to pay. It is obvious that this state of affairs benefits no one. While every case is to some extent fact specific, the standards which are to be applied concerning the issues of "damages" and the pollution exclusion clause, for example, can and should be stabilized.
It is my hope that this analysis while aimed at resolving the legal issues presented to me by the particular facts of this case will also help to focus the public policy issues which inform the case law debate on the scope of the duty to defend and, by implication, the duty to indemnify "toxic waste" litigation. I do not believe that this dilemma can be properly resolved by simply reading the pollution exclusion clause so broadly as to preclude claims for continuous occurrences especially where, as here, there are specific allegations that the occurrences at issue were sudden and accidental. Nor is it any help to read actual or constructive intent with respect to environmental damage so broadly as to presumptively preclude any insured in a business related to toxic or hazardous wastes from coverage. The resolution of the question of whether an insured is an active polluter in most cases awaits factual determinations in the underlying suits. Here, I believe that plaintiff USF & G has properly interpreted its policy provisions and has responded by defending the suits at issue. I have found that the other insurers for the most part have a similar duty. I add that I have, of course, tried to decide these confused and confusing issues as I believe the Michigan Supreme Court would have decided them.
ON MOTION FOR RECONSIDERATION
Defendant St. Paul, Hartford, and Northbrook have all filed motions for reconsideration, clarification and certification for appeal. Defendant Northbrook simply concurs in St. Paul's motion of January 19, 1988. Defendant Hartford's motion similarly adopts some of the same arguments set forth in St. Paul's brief. On February 8, 1988, plaintiff USF & G responded to those motions for reconsideration and/or clarification.
The Court notes that plaintiff USF & G has provided and/or is currently providing a defense to Thomas Solvent Company, Thermo-Chem, Inc., and Richard E. Thomas. See Affidavit of Barry Gee, attached as Exhibit "G" to USF & G's Motion for Summary Judgment. As plaintiff USF & G correctly argues, the Court did not intend for its January 8, 1988 opinion to require a defense to any party except Thomas Solvent Co., Thermo-Chem, Inc., and Richard E. Thomas. Accordingly, the Court agrees with St. Paul that there is no duty to defend Thomas Solvent Company of Detroit, Inc., Thomas Solvent Company of Muskegon, Inc., Thomas Solvent Company of Indiana, Inc., TSC Transportation Company, and Thomas Development Company, Inc. for the reason that claims against those entities are based upon alleged successor liability and/or alleged fraudulent conveyances. Moreover, plaintiff USF & G's motion for summary judgment did not include those entities because it is apparently not providing a defense to those entities.
*1175 Defendant St. Paul argues that all of the primary liability carriers for the Thomas entities should share in these defense costs and that while additional liability carriers have recently been identified they have not been made a party to these proceedings contrary to Rule 19 of the Federal Rules of Civil Procedure. Defendant provides no legal argument or case law support for its conclusory statement. Rule 19(a)(1) requires a court to determine whether complete relief can be accorded between those already parties and not as between a party and an absent party whose joinder is sought. As the Court's previous opinions have indicated, USF & G receives the same rights as those of Thomas Solvent. USF & G has simply chosen to sue certain interested parties. The Court notes that declaratory relief may be withheld for nonjoinder of interested persons, but given the procedural posture of this case the Court believes that declaratory relief would serve a useful purpose.
Further, the Court notes that in the alternative defendant St. Paul has argued that the Court amend its January 8, 1988 order to provide that the amended order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation pursuant to 28 U.S.C. § 1292(b). Because the Court agrees that its amended order should be certified for interlocutory appeal, defendants will receive the alternative remedy prayed for in their brief. The Court also agrees that Hartford is only an automobile liability insurer and not a general liability insurer and the Court will vacate its earlier order so that the amended order is consistent with the Court's January 8, 1988 opinion.
The Court finds persuasive the argument that the Court should reallocate the cost shares among the carriers so that USF & G, Canadian, Northbrook and St. Paul receive one share as general liability insurers and that Hartford and USF & G allocate one cost share as automobile liability insurers. Accordingly, USF & G would bear two-sixths of the defense costs during post-November 1, 1983 years and the remaining carriers would bear one-sixth of the defense costs.
It is clear from the text of the Court's opinion entered January 8, 1988, that USF & G issued policies from November 1, 1978 through November 17, 1978; Canadian issued policies from November 1, 1978 through November 1, 1981; Northbrook, from November 1, 1981 through November 1, 1983; St. Paul from November 1, 1983 through March 19, 1984; and Hartford from November 1, 1981 through November 1, 1985.
The Court finds that the duty to defend arose upon the filing of the respective complaints against one or more of the insureds in the underlying actions. On January 12, 1984, the first action against one or more of the Thomas Solvent insureds which is covered by the policies listed above was filed. See Kelley, et al. v. Thomas Solvent, Calhoun County Circuit Court File No. 84-72-CE ("Kelley"). The Adkins, et al. v. Canadian National Railways, et al., Calhoun County Circuit Court File No. 84-3081-CE ("Adkins") complaint was filed on November 26, 1984; the Allen, et al. v. Thomas Solvent, et al., Calhoun County Circuit Court File No. CA 84-3331 ("Allen") complaint was filed on August 5, 1985; and the two CERCLA complaints, were filed on May 28, 1986. See Kelley, et al. v. Thomas Solvent, et al., U.S. District Court File No. K86-164 CA8; and United States v. Thomas Solvent, et al., United States District Court No. K86-167 CA8 ("CERCLA actions").
It is clear that all of the primary insurers had policies in effect before the first "Kelley" complaint was filed. Further, as plaintiff USF & G points out, "pre-suit" costs are not at issue here. Moreover, while no costs could have been incurred by any party prior to January 12, 1984, USF & G indicates that it seeks reimbursement for legal expenses which it incurred starting on February 6, 1984. See affidavit of Barry Gee attached to USF & G's Supplemental Brief Re: Duty to Defend.
*1176 The Court will also certify its order pursuant to § 1292(b). Although, St. Paul's prayer for relief asks the Court to certify its order pursuant to § 1292(a), it is clear from the body of its brief, that it seeks certification pursuant to 28 U.S.C. § 1292(b).
In considering whether to certify an interlocutory order for appeal, the Court must determine whether: (1) the order involves a controlling question of law; (2) there is a substantial difference of opinion concerning the order; and (3) an immediate appeal would materially advance the ultimate termination of the litigation. 28 U.S. C. § 1292(b); Kennard v. United Parcel Service, Inc., 531 F.Supp. 1139, 1148-49 (E.D.Mich.1982); Berry v. School District of City of Benton Harbor, 467 F.Supp. 721, 727 (W.D.Mich.1978); 16 Wright & Miller, Federal Practice and Procedure § 3930 at 156, 166-67 (1977). As the Court noted in Berry, section 1292(b) is "`to be used only in extraordinary cases where the decision of an interlocutory appeal might avoid protracted and expensive litigation. It was not intended merely to provide review of difficult rulings in hard cases.'" Berry, 467 F.Supp. at 727 (quoting, United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir.1966)).
Courts have long recognized that the controlling issue in a request for certification is whether the subsequent appeal would "appreciably shorten the time, effort and expense exhausted between the filing of a lawsuit and its termination." Berry, at 727; 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure, § 3930 at 163; J. Moore, J. Lucas, T. Currier, Moore's Federal Practice, § 110.22[22], and cases cited. As the court recognized in Kennard, certification loses much of its appeal when it is probable that a reversal of the district court would dispose of the case in its entirety rather than result in a lengthy retrial. Kennard, 531 F.Supp. at 1149. To this end, courts often speak of avoiding "piecemeal appeals" by allowing appeal only after a final order or judgment has been entered. See, e.g., Milbert v. Bison Laboratories, Inc., 260 F.2d 431 (3rd Cir.1958); E.I. DuPont De Nemours & Co. v. Mallinckrodt, Inc., 654 F.Supp. 890 (S.D. Ohio 1987); Lorentz v. Westinghouse Electric Corp., 472 F.Supp. 954 (W.D.Pa.1979).
The Court believes that its proposed order insofar as it relates to the difficult duty to defend issues as well as the proper allocation of defense costs reflects controlling questions of law and that there is a substantial difference of opinion concerning that order. Indeed the analysis set forth in the Court's previous opinionsif nothing else evidences the truth of the latter assertion. Further, the Court believes that an immediate appeal would materially advance the ultimate termination of the litigation here. Indeed, if the Court is reversed in whole or in part, a remand will be necessary and, in any event, the pending duty to indemnify issues will also be "materially advanced" by an immediate appellate decision.
Accordingly, I will grant defendant St. Paul and defendant Northbrook's requests for certification. Specifically, the Court certifies the following three issues for interlocutory appeal:
1. Whether defendants Canadian, Northbrook, and St. Paul as well as plaintiff USF & G all have a duty to defend Thomas Solvent in the underlying state court actions ("Kelley," "Adkins," and "Allen" actions) as well as in the two CERCLA actions filed in this Court (USA v. Thomas Solvent, et al. and Kelley, et al. v. Thomas Solvent, et al.) based on the issuance of the general liability policies set forth and discussed in this Court's opinions of January 8, 1988 and March 16, 1988; and
2. Whether plaintiff USF & G and defendant Hartford as automobile insurers have a duty to defend the "Kelley," "Adkins," and "Allen" actions as well as the Kelley, et al. v. Thomas Solvent, et al. CERCLA action and whether plaintiff USF & G and defendant Hartford do not have a duty to defend the United States v. Thomas Solvent, et al. CERCLA action based upon the automobile policies discussed in the above-mentioned opinions; and
*1177 3. Whether the defense costs incurred by USF & G in the "Kelley," "Adkins," and "Allen" and CERCLA actions from February 6, 1984 until the present as well as all future defense costs incurred in these same actions should be shared among USF & G, Canadian, Northbrook, St. Paul, and Hartford in the following manner: USF & G, two-sixths of the defense costs; Canadian, one-sixth of the defense costs; Northbrook, one-sixth of the defense costs; St. Paul, one-sixth of the defense costs; and Hartford, one-sixth of the defense costs.
For the sake of clarity, the Court will enter an order vacating its order of January 8, 1988. It is clear that defendant Hartford's motion to reconsider and/or clarify has been granted in full. Further, defendant St. Paul and defendant Northbrooks' motions for reconsideration, clarification and certification for appeal have been granted in part and denied in part.
ON MOTION FOR RECLARIFICATION
In its amended order of March 16, 1988, the Court clearly granted Hartford's January 26, 1988 motion for clarification and also ordered that defendant Hartford did not have a duty to defend the U.S. v. Thomas Solvent "CERCLA" action.
The last paragraph of the first page of the March 16th amended order indicated that defense costs incurred in all five actions at issues would be shared among USF & G, Canadian, Northbrook, St. Paul and Hartford in the following manner: USF & G two-sixths of the defense costs; Canadian, one-sixth of the defense costs; Northbrook, one-sixth of the defense costs; St. Paul, one-sixth of the defense costs; and Hartford, one-sixth of the defense costs. The Court should have indicated that that formula of allocating defense costs is only appropriate for four of the above-mentioned actions. USF & G was apportioned "two" shares because it issued both general liability and automobile policies.
The Court agrees that the above-formula is "mathematically" incorrect as applied to the U.S. v. Thomas Solvent CERCLA action and will therefore grant Hartford's motion. Because the Court found that both Hartford and USF & G as automobile insurers did not have a duty to defend the U.S. v. Thomas Solvent CERCLA action, it appears that the defense costs for that particular action should be apportioned only among the four remaining general liability insurers: USF & G, Canadian, Northbrook and St. Paul. Therefore, each of these insurers will thus bear one-fourth of the defense costs for the U.S. v. Thomas Solvent CERCLA action.
The Court notes that this change also requires a change in the wording of the third issue which the Court has certified pursuant to 28 U.S.C. § 1291(b). Although these changes are minor compared to the overall length of the amended order, the Court believes that vacating the amended order of March 16, 1988 and entering a second amended order will make it easier for the parties to understand these changes and for the Sixth Circuit to review the issues presented provided certification is accepted.
NOTES
[1] Defendants Continental Casualty Company ("Continental"), Canadian Universal Insurance Company ("Canadian"), Northbrook Excess and Surplus Insurance Company ("Northbrook"). St. Paul Fire & Marine Insurance Company ("St. Paul") and Ideal Mutual Insurance Companies ("Ideal"), as well as plaintiff United States Fidelity and Guaranty Company ("USF & G") are all considered and collectively referred to as "General Liability Policy Issuers." The Court notes that Ideal has failed to appear and respond in this action.
[2] Defendants Hartford Accident and Indemnity Company ("Hartford"), Continental Casualty Co. ("Continental") as well as plaintiff United States Fidelity and Guaranty Company ("USF & G") are all considered and collectively referred to as "Automobile Policy Issuers."
[3] Defendants Auto-Owners Insurance Company ("Auto-Owners"), Great American Surplus Lines Insurance Company ("Great American"), Admiral Insurance Company ("Admiral"). First State Insurance Company ("First State"), Guarantee National Insurance Company ("National"), Gibralter Casualty Company ("Gibralter") and Integrity Insurance Company ("Integrity") are all considered and collectively referred to as "Excess Policy Issuers."
[4] A logical corollary of the proposition that the more individual responsibility imposed, the more careful one's behavior becomes resulting in the societal good of less pollution would be that maximum benefits could be achieved by doing away with the exception to the pollution exclusion altogether. Abolishing the pollution exclusion would, apparently, force those who handle toxics and hazardous wastes to bear full liabilities for any pollution that results from their activities. The wisdom and economic efficiency of that proposition has recently been challenged.
In the effort to impose on waste-handling firms the full costs of the risk they generate, a regime of full insurance with premiums tailored tightly to risks is preferable to a regime of no insurance with firms directly bearing all liabilities. The insurance industry is expert in collecting and evaluating risk data, identifying methods of risk reduction, and charging premiumns that reflect broad risk experience. (citation omitted). Individual firms lack such expertise, and society would pay large transaction costs if each firm had to determine the proper price of every risk it incurred. In addition, large insurance pools provide for the compensation of tort victims and the funding of cleanup agencies, whereas individual firms are often overwhelmed by their waste-releated liabilities. (citation omitted). For arguments challenging the notion that insurance premiums can force firms to internalize costs, see Kunzman, The Insurer as Surrogate Regulator of the Hazardous Waste Industry: Solution or Pervesion?, 20 Forum 469, 481-88 (1985).
Developments in the Law, Toxic Waste Litigation, 99 Harv.L.Rev. 1458, 1578-79 n. 40 (1986).
[5] New Castle County is interesting for another reason. It demonstrates that insurers can and do know how to write "unambiguous" insurance policies in the pollution context even as early as 1975. The New Castle County court indicated that the insurance company involved issued three different policies with three significantly different pollution clauses. The policy which was in effect from May 11, 1973 to July 1, 1975 contained essentially the same language as the CGL policies here. In addition, there was a policy from July 1, 1975 to July 1, 1976 which excluded coverage for all pollution related incidents. Finally, a policy issued from July 1, 1976 to July 1, 1978 stated that "pollution was not covered `whether or not such discharge, dispersal, release or escape is sudden and accidental.'" See New Castle County, supra, 673 F.Supp. at 1364.
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196 Ill. App.3d 711 (1990)
554 N.E.2d 1006
MICHAEL S. WILSON, Plaintiff-Appellee,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants (John Fluke Manufacturing Company, Defendant).
No. 1-89-0536.
Illinois Appellate Court First District (1st Division).
Opinion filed March 30, 1990.
Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellants.
Michael S. Wilson, of Des Plaines, appellee pro se.
Judgment reversed.
*712 JUSTICE MANNING delivered the opinion of the court:
Defendant, the Illinois Department of Employment Security, appeals from the judgment of the circuit court of Cook County which reversed its decision and found plaintiff, Michael Wilson, eligible for unemployment insurance benefits. Defendant contends that plaintiff was terminated for misconduct connected with his employment and is therefore ineligible for benefits.
Plaintiff was employed as a technician at the John Fluke Manufacturing Company (Fluke) from June 27, 1983, until his resignation on May 18, 1988. After resigning, he applied for unemployment insurance benefits stating that he had resigned to avoid being fired. Fluke contested plaintiff's eligibility. After interviewing plaintiff and the personnel manager of Fluke, a claims adjudicator determined that plaintiff had actually been terminated for poor performance instead of voluntarily leaving and was therefore eligible for benefits. Fluke sought a reconsideration, submitting a letter stating that plaintiff would have been fired if he had not resigned because he had been absent 386.25 hours in the past year and only 176 hours were taken as medical leave. Further, his work efficiency average for the last six months had dropped to 36% of what was expected. The claims adjudicator upon reconsideration did not change his prior decision and found that plaintiff had been discharged for poor work performance and absenteeism, but the situation was beyond plaintiff's ability or control.
On July 6, 1988, at a hearing before a referee, Fluke's personnel director testified that plaintiff had been absent from work on May 12, 13, 16, 17 and 18 of that year. Plaintiff had telephoned Fluke May 12 to request time off for both that day and the following day. Duane Smith, Fluke's service manager, testified that plaintiff did not call in on May 16, 17 or 18, but on May 18 he had telephoned plaintiff to find out where he was. Smith advised plaintiff he was going to be terminated, and plaintiff requested to resign instead. Plaintiff testified that he did not telephone his employer because he was too sick. However, he later testified that he had telephoned his doctor within the same three-day period.
The record indicates that Fluke's policy regarding days off requires an employee to notify the company of the intended absence by 9 a.m. that day. If the employee does not comply with the policy for three consecutive working days, he may be automatically terminated. The record also indicates that on May 9, 1988, plaintiff received a letter from Fluke warning him that his performance during the month of April was substandard and that his performance would have to improve or he might be terminated.
*713 The referee ruled that the claimant's final absence was without notification to the employer and circumstances beyond his control did not exist to warrant such conduct. Accordingly, he ruled that plaintiff was discharged because of misconduct connected with his employment and was ineligible for unemployment insurance benefits.
The Board of Review (Board) affirmed the decision of the referee, although plaintiff had submitted a copy of an itemized telephone bill indicating that one-minute calls had been made to the employer in the afternoon of May 16 and May 17. The Board stated that plaintiff did not testify at the hearing that he telephoned the employer to notify him of his absence and that the evidence given at the hearing prevails.
On administrative review the circuit court of Cook County reversed the Board's decision as being contrary to the manifest weight of the evidence.
Defendant contends that plaintiff's unauthorized absences from work constituted misconduct connected with his work and plaintiff is therefore ineligible to receive unemployment insurance benefits.
1, 2 In Illinois, the findings and conclusions of an administrative agency on questions of fact are to be held as prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3-110), and should not be disturbed on review unless they are contrary to the manifest weight of the evidence. (Popoff v. Department of Labor (1986), 144 Ill. App.3d 575, 576-77, 494 N.E.2d 1266.) A reviewing court will not substitute its judgment for that of the administrative agency, and where it appears that there is evidence to support the administrative findings, the findings should be affirmed. Komarec v. Illinois Department of Labor (1986), 144 Ill. App.3d 1105, 1108, 494 N.E.2d 1257.
3 Section 602A of the Unemployment Insurance Act states in part:
"For purposes of this subsection, the term `misconduct' means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instructions from the employing unit." Ill. Rev. Stat. 1987, ch. 48, par. 432A.
4 Here the record indicates that in his final five-day absence plaintiff did not telephone Fluke to report his absence for the last three days. Although plaintiff stated that he had been too sick to telephone, he also testified that he had telephoned his doctor on those *714 same days. We find that plaintiff's failure to telephone his employer to report his absence falls within the definition of the term "misconduct" as found in section 602A of the Unemployment Insurance Act. Ill. Rev. Stat. 1987, ch. 48, par. 432A; see also Bochenek v. Department of Employment Security (1988), 169 Ill. App.3d 507, 525 N.E.2d 893.
We therefore find that the administrative decision of the Board of Review was not against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Cook County is reversed.
Reversed.
CAMPBELL and O'CONNOR, JJ., concur.
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56 U.S. 281 (1853)
15 How. 281
HOLLINGSWORTH MAGNIAC, DANIEL SMITH MAGNIAC, AND WILLIAM JARDINE, LATE TRADING UNDER THE FIRM OF MAGNIAC & COMPANY, APPELLANTS,
v.
JOHN R. THOMSON.
Supreme Court of United States.
*283 The cause was argued here by Mr. E. Ingersoll and Mr. C. Ingersoll, for the appellants, and by Mr. John M. Read and Mr. Cadwallader, for the appellee.
*296 Mr. Justice DANIEL delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of the United States for the Eastern District of Pennsylvania.
The appellants, by their bill in the Circuit Court, alleged that, being creditors of the appellee in a very large amount of money previously lent and advanced to him, they, in the year 1828, instituted their action for its recovery on the law side of the court, when it was agreed, by writing filed of record, that a judgment should be entered against the appellee as of the 26th of November, 1827, in favor of the appellants, for the sum of $22,191.71. That this judgment, with a large accumulation of interest, remained unappealed from and unsatisfied, either in whole or in part. That the appellants, after obtaining this judgment, believing that the appellee was possessed of concealed means of satisfying it, and especially that when in a state of insolvency, and with a view of defeating his creditors, he had settled upon his wife a large amount of property, and, as afterwards appeared, made transfers of property to her between the date of the judgment and of the execution thereon, they sued out upon the said judgment a writ of capias ad satisfaciendum, returnable to the April term of the court, 1830, and in virtue of that process caused to be taken into actual custody the body of the appellee. That under the exigency of this process and arrest, the appellee would have been compelled to continue in close confinement, or could have obtained his release therefrom solely by the laws of Pennsylvania passed for the relief of insolvent debtors, which laws would have exacted of the appellee an assignment to his creditors of all estate, property, or interests whatsoever, held by himself or by others for him, or unlawfully settled upon his *297 wife; and would have conferred upon him only an immunity against further bodily restraint by reason of the non-payment of such debts as were due and owing from him at the date of such proceedings in insolvency; but that the appellee, being at the time of his arrest a citizen of the State of New Jersey, could not have been admitted to the benefits of the insolvent laws of Pennsylvania until after remaining three months in actual confinement under the writ of capias ad satisfaciendum.
That on the 19th of November, 1825, a marriage contract was executed between the appellee and Annis Stockton, his intended wife, and Richard Stockton, the father of said Annis, by which agreement the said Richard Stockton was invested with a large amount of real and personal property in trust for the benefit of the appellee and his intended wife during their joint lives, and if the said appellee should survive his intended wife and have issue by her, in trust for his benefit and for the maintenance and support of his family, and if there should be no child or children of the said marriage, then after the death of the husband or wife, in trust to convey the property to the survivor in fee-simple.
That the appellee being arrested and in actual custody under the capias ad satisfaciendum, sued out as aforesaid, it was then and there agreed in writing between the appellants and the appellee, that the former should, without prejudice to their rights and remedies against the latter, permit him to be forthwith discharged from custody under the said process, and that the appellee should go to the next session of the Circuit Court of the United States for the Eastern District of Pennsylvania, and on the law side of that court make up an issue with the appellants, to try the question whether the appellee was possessed of the means, either in or out of the marriage settlement, of satisfying the judgment against him; the said issue to be tried without regard to form, or to the time when the jury for the trial thereof should be summoned, the appellee also giving security to abide the result of the trial of said issue. That upon the execution of this agreement, the appellee was released from custody, and the marshal for the Eastern District of Pennsylvania, to whom the writ of capias ad respondendum was directed, made a return upon the writ that he had taken the body of the appellee into custody, and that he had been discharged by the consent and direction of the appellants. That the trial of the issue, which was provided for in the said agreement, actually took place, and resulted in a verdict by which, so far as concerned the purposes of the said trial, it was found that the appellee had not the means, either in or out of the said marriage settlement, of satisfying the judgment of the appellants.
*298 The bill alleges that by the force and effect of the agreement in writing and of the proceedings in pursuance thereof, the appellee obtained no farther or other right or advantage, than a present discharge from close custody, and the judgment of a court of competent jurisdiction that he was then possessed of no means, whether in or out of the said marriage settlement, wherewith to satisfy the judgment of the appellants. It farther states, that since the judgment upon the issue made up and tried as aforesaid, the wife of the appellee had died without issue, and in consequence of that fact, all estate and property vested in the trustee by the marriage settlement, and found by the issue tried as aforesaid to be then protected thereby from the creditors of the appellee, had become the absolute property and estate of the appellee, and had either by the original trustee in the marriage settlement or by his successor, been conveyed and delivered over to the appellee as his own estate and property, free and clear of any trust whatsoever.
That the trust created by the marriage settlement, and by which the above property comprised therein was adjudged to be protected against creditors, having expired by its own limitation, that property had become liable to the creditors of the appellee, who was bound to a full account of the value thereof and for the satisfaction of the rights and demands of the appellants out of the same. That the appellants had accordingly applied to the appellee for payment of their judgment, to be made out of the property comprised in and protected by the marriage settlement or out of any other resources at his command, but had been met by a refusal on the part of the appellee, founded not upon his inability to satisfy the just claim of the appellants for money actually loaned, but upon an alleged exemption from all liability resulting from the facts of his having been once arrested under a capias ad satisfaciendum, and subsequently released from custody by consent of the appellants. The bill alleges this refusal, and the foundation on which it is placed, to be in direct violation of the written agreement, which explicitly declared that it was made for the accommodation of the appellee, and without any prejudice whatever to arise to the plaintiffs' (the appellants') rights, by the defendant's (the appellee's) enlargement. It charges the refusal and objection now interposed to be fraudulent, and made in bad faith, and as such, though it might avail at law to embarrass or prevent the enforcement of the judgment of the appellants, yet that a court of equity should prohibit a resort thereto on account of its unconscientious and fraudulent character. The bill concludes with a prayer, that the appellee may be enjoined from setting up, as a discharge from the judgment against him, his release from custody under *299 the circumstances of the case set forth; that an account may be taken of the several subjects of property comprised in the marriage settlement, and of the rents, profits, interest, and dividends accruing therefrom, since the death of the wife of the appellee; that satisfaction out of those subjects, of the judgment and claim of the appellants may be decreed: the bill seeks also for general relief.
To this bill the appellee (the defendant in the Circuit Court) demurred, assigning, for causes of demurrer, that if the taking into custody of the body of the defendant under the capias ad satisfaciendum was a legal discharge of the alleged debt, the complainants are not relievable in equity from the effect thereof for or by reason of any act, matter, or thing in the bill alleged; and if the taking into custody was not such a legal discharge, then the complainants have full, adequate, and complete remedy at law; and farther that the taking into custody under the said writ was and is to be deemed to have been a discharge and extinction of the judgment of the plaintiffs at law, and a discharge and extinction as well at law as in equity of the debt for which the same was obtained; and the cause coming on to be heard upon the demurrer, the court by its decree sustained the demurrer and dismissed the complainants' bill with costs.
The correctness, or incorrectness of the decree thus pronounced, are now the subjects of our consideration.
Extensive or varied as may be the range of inquiry presented by the bill with respect to what is therein averred to appertain to the merits of this controversy, or to the character of the acts of the parties thereto, the view and the action of this court in relation to that cause must be narrowed necessarily to the questions of law arising upon the demurrer. In approaching these questions there may be propounded as postulates or legal truisms, admitting of no dispute, the following propositions:
1. That wherever the rights or the situation of parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation, but in all such instances the maxim equitas sequitur legem is strictly applicable. 2. That wherever there exists at law a complete and adequate power, either for the prosecution of a right or the redressing of a wrong, courts of equity, with the exception of a few cases of concurrent authority, have no jurisdiction or power to act.
To the test of these rules the case before us, in common with every appeal to equity, should be brought, and if the effect of such test should prove to be adverse, that effect should be sought in the character of the appeal itself, and not in objections to maxims which judicial experience and wisdom have long established. Recurring now to the history of this cause, let us inquire *300 what was the precise situation of the parties, what their legal rights and responsibilities at the date of the judgment and arising therefrom, what have been their acts and proceedings subsequently to that judgment, and the consequences flowing from their acts to their previous relative position. Upon the recovery of their judgments the appellants had their election of any of the modes of final process known to the courts of law, or they might in equity have impeached the marriage settlement for any vice inherent in its consideration, or for an attempt fraudulently to interpose that settlement between the appellants' judgment and its legal satisfaction. But in their election of any of the forms of final process, the appellants must be held to have known the nature of that process, and the consequences incident to its choice and consummation. To permit an ignorance of these, or in other words an ignorance of the law, to be alleged as the foundation of rights, or in excuse for omissions of duty, or for the privation of rights in others, would lead to the most serious mischief, and would disturb the entire fabric of social order. In choosing the writ of capias ad satisfaciendum, therefore, for the enforcement of their judgment, the appellants can derive no benefit from a presumption of ignorance or misapprehension as to the effects of calling into activity this severest and sternest attribute of the law. Such a presumption is wholly inadmissible. They must be affected with knowledge of whatever has been settled as to the nature of this writ, and of whatever regularly follows a resort to its use. They were bound to know, 1st, that the service of a capias ad satisfaciendum, by taking into custody the body of the debtor, operates a satisfaction of the debt; and for that reason deprives the creditor of all recourse to the lands, or chattels, or property of any description belonging to his debtor. For a doctrine well settled and familiar as is that, it may appear superfluous to cite authorities; but we may refer to some of these, commencing with the early cases of Foster v. Jackson, Hob. 52; Williams and Criteris, Cro. Jac. 136, and Rolle's Abr. 903; and coming down through the more modern authorities of Mr. Justice Blackstone's Commentaries, vol. 3, p. 415; 4 Burrow, 2482; 1 T.R. 557; 2 East, 243, and 13 Ves. 193. To these cases might be added many decisions in the courts both of England and in the different States of this country; and, as conclusive of the same doctrine, in this court the case of Snead v. M'Coull, 12 Howard, 407. So unbending and stringent was the application of the doctrine maintained by the earlier cases, that prior to the statute of 21st Jac. 1, cap. 24, the death of a debtor whilst charged in execution, an event which rendered the process absolutely unvailable to the creditor, deprived the latter nevertheless of a right to a farther *301 execution; the jealousy of the common law denying to him any power beyond that he had exerted in the privation of the personal liberty of the debtor. The statute of James authorized the exception of the death of the debtor to this inhibition of the common law, and to this exception has been added the instances of escape or rescue, seemingly upon the ground that in these instances the debtor should not be regarded as legally out of custody. The taking of the body under a capias ad satisfaciendum being thus held the complete and highest satisfaction of the judgment, it would follow ex consequenti, that a discharge of the debtor by the creditor would imply an acknowledgment of such satisfaction, or at any rate would take from that judgment the character of a warrant for resorting to this highest satisfaction in repeated instances for the same demand. But the authorities have not stopped short at a mere technical restraint upon the creditor who may seek to repeat the arrest of the debtor whom he once had in confinement; they have gone the length of declaring, that if a person taken on a capias ad respondendum was discharged, the plaintiff had no farther remedy, because he had determined the choice by this kind of execution, which, affecting a man's liberty, is esteemed the highest and most rigid in the law. See the cases from Hobart, Croke Jac. and Rolle's Abr. before cited. Again it has been ruled that if the plaintiff consent to the defendant being discharged out of execution, though upon an agreement, he cannot afterwards retake him although the security given by the defendant on his discharge should be set aside. 4 Burr. 2482; 1 T.R. 557; 2 East, 243; and the Lord Chancellor, in 13 Ves. 193, uses this explicit language, "It is clear, that by taking the body in execution, the debt is satisfied to all intents and purposes."
Many American cases may be avouched in support of the same doctrine. In the case of the United States v. Stansbury, 1 Peters, 573, Chief Justice Marshall says, "It is not denied that at common law the release of a debtor `whose person is in execution,' is a release of the judgment itself. The law will not permit a man to proceed at the same time against the person and estate of his debtor; and when the creditor has elected to take the person, it presumes satisfaction if the person be voluntarily released. The release of the judgment is, therefore, the legal consequence of the voluntary release of the person by the creditor."
In the case of Wendrum v. Parker, 2 Leigh, 361, it is said by Carr, J., that the "levy of a ca. sa. and the release of the debtor from execution by the plaintiff or his agent, is an extinguishment of the debt, I have considered as well settled as any point can be by an unbroken series of decisions." And in *302 the case of Noyes v. Cooper, 5 Leigh, 186, Brockenbrough, J., says, "It has been undoubtedly established by a series of decisions, that where a defendant in execution has been discharged from imprisonment by direction or with the consent of the plaintiff, no action will ever again lie on the judgment, nor can any new execution issue on that judgment, even though the defendant was discharged on an express understanding that he should be liable again to be taken in execution on his failure to comply with the terms on which the discharge took place."
Upon a collation of the authorities applicable to the acts and proceedings of the parties to this controversy at the time, and subsequently to the judgment in favor of the appellants against the appellee, we are led to the following conclusions, viz.: that by suing out a capias ad satisfaciendum upon their judgment, and by taking into actual custody the body of the appellee under this process, the appellants had obtained that complete and highest satisfaction of their demand, of which they could be deprived only by the act of God, by operation of law, or by their own voluntary acknowledgment, or by a release of their debtor; that by entering into the arrangement stated in the bill, and by discharging the appellee from custody, the appellants have, in all legal intendment, admitted satisfaction of their demand, released the appellee from all liability therefor, and destroyed every effect of their judgment as the foundation of legal rights. Such being our conclusions upon this branch of the case, and the same conclusions being implied in the application of the appellants for equitable interposition, the inquiry here presents itself, whether a court of equity can be called upon to abrogate or impair or in any manner or degree, to interfere with clear, ascertained, and perfect legal rights? The simple statement of such an inquiry suggests this ready and only correct reply:
Equity may be invoked to aid in the completion of a just but imperfect legal title, or to prevent the successful assertion of an unconscientious and incomplete legal advantage; but to abrogate or to assail a perfect and independent legal right, it can have no pretension. In all such instances, equity must follow, or in other words, be subordinate to the law. With the view doubtless of giving color to their application, the appellants have intimated (for they can hardly be said to have charged it positively and directly) that the marriage settlement of the appellee was made in fraud of his creditors, and they have directly averred that the refusal of the appellee after the death of his wife to apply the property comprised in that settlement, in satisfaction of the judgment of the appellants, was at once fraudulent, and in direct violation of the agreement in *303 pursuance of which the appellee was discharged from custody. With respect to each of these allegations, however, the appellants are entirely deficient in their proofs, and in the latter, the statement does not accord with the document, that is, the written agreement between the parties on which this averment is founded. No evidence seems to have been adduced upon the trial which took place in pursuance of the agreement, to impeach the fairness of the marriage contract; and the absence of any attempt to establish its unfairness, together with the charge of the court to the jury, would seem to exclude the existence, or at that time the belief of the existence, of fraud in the settlement. The agreement entered into at the time of the appellee's release from custody contains no stipulation that he would hold himself liable to another execution dependent on the event that the issue contemplated by that agreement, or that he would consider the judgment as still in full force against him. And if there had been a stipulation of the kind, we have seen that it could not have averted the consequences flowing from the discharge of the appellee from custody; but the only conditions for which the appellee covenanted were that he would make up and try the issue proposed and would abide the result of the trial; with both of which conditions the appellee has literally complied. This charge of fraud then, even if it could in any aspect of this question have been available, is entirely unsustained.
With regard to the question raised by the demurrer as to the obligation of the appellants to pursue their remedy at law, under the allegation in the bill, that such legal remedy had been reserved to them by the terms of the agreement, there can be no doubt, upon the supposition that this remedy remained unimpaired, that the appellants could not arbitrarily abandon it, and seek the interposition of equity in a matter purely legal. The averment therefore by the appellants of the continuation of their judgment, and of their right to enforce it by execution in all their original force and integrity, is wholly irreconcilable with any known head or principle of equity jurisdiction, and their bill is essentially obnoxious to objection on that account.
We are of the opinion that the decree of the Circuit Court, sustaining the demurrer to the bill of the appellants, (the complainants in the Circuit Court,) is correct, and ought to be, as it is, hereby affirmed, with costs.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and was argued by counsel. On *304 consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.
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93 Okla. Cr. 106 (1950)
225 P.2d 193
Ex parte HUNT.
No. A-11471.
Criminal Court of Appeals of Oklahoma.
December 6, 1950.
*107 Auborn Hunt, pro se.
Mac Q. Williamson, Atty Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
BRETT, J.
This is an original petition in habeas corpus brought by Auborn Hunt against Clarence P. Burford, warden of the Oklahoma State Penitentiary. In his verified petition, the petitioner alleges in substance that he is being unlawfully restrained of his liberty by *108 Clarence P. Burford at the penitentiary of Oklahoma under an illegal judgment and sentence and commitment. He says said judgment and sentence under which he is being unlawfully restrained was entered on September 27, 1927, in the district court of Blaine county, Oklahoma, wherein he was charged with the crime of murder of Martin Mousetrial in case No. 1097-A. He alleges that the said judgment and sentence is unlawful in the following particulars: First, he says that at the time his plea of guilty was received he was a lad 19 years of age, ignorant and wholly inexperienced in legal procedure and that he was denied the aid of counsel. Under these conditions he says he was unable to determine whether the information pending against him was good or bad. Under these conditions he contends he was denied his constitutional right to aid of counsel. In this connection he offers no proof in support of the said allegations.
Next he contends that the trial court sentenced him to life imprisonment to be served in the Granite Reformatory at Granite, Oklahoma. He says in so sentencing him the court denied him due process of law under the statutes of the State of Oklahoma, §§ 105, 281, Title 57, O.S.A. 1941, which provisions of statute limited the sentence for which a convict could be confined in the reformatory to 5 years. To sustain this contention he relies on the statutes and Ex parte Neighbors, 85 Okla. Cr. 183, 187 P.2d 276, so holding.
If the allegations as to petitioner's first contention that he was denied the aid of counsel were true we would be compelled to grant the writ. Ex parte Cornell, 87 Okla. Cr. 2, 193 P.2d 904, 906, wherein it was said:
"In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of immature youthfulness, ignorance, *109 feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law. * * *
"Judgment and sentence for a term of life imprisonment in the State Penitentiary on a plea of guilty to murder by uneducated and inexperienced youth seventeen years of age, will be vacated and set aside where record discloses that upon day that information was filed against the accused in District Court, he was arraigned and entered his plea of guilty without counsel and no counsel was appointed to represent him."
See, also, Ex parte Cook, 84 Okla. Cr. 404, 183 P.2d 595, 596, therein cited.
In connection with the petitioner's contention that he was denied the aid of counsel we caused to be procured the court minutes of the trial proceedings in this case. In the case of Ex parte Hampton, 87 Okla. Cr. 416, 198 P.2d 751, 752, we said:
"Where a disputed question arises as to what occurred upon arraignment of one accused of crime great weight will be given to the recitations in the minutes of the court proceedings as to what occurred."
The petitioner's prior record and the minutes of the trial court proceedings had in Blaine county in the instant case do not bring the case within the foregoing rules. The facts in the case at bar, while disclosing petitioner was at the time of sentencing only 19 years of age, disclose that he was received at the Reformatory at Granite, Oklahoma, on February 1, 1926, for automobile theft, hence the proceeding herein complained of was not his first experience in legal procedure. Moreover, the facts as revealed by the court minutes show he was not denied the aid of counsel. In this case the court minutes of the district court of Blaine county, in *110 the case of State v. Auborn Hunt, No. 1097 Murder, disclose that on August 5, 1927, he was brought before the court for arraignment at which time he entered a plea of not guilty. Thereafter it appears, on September 5, 1927, Frank Cooper was appointed by the court to represent the defendant, and that the defendant Hunt was present in person in the courtroom at said time. Thereafter it appears from said court minutes that on September 19, 1927, after having had the aid of counsel for 2 weeks at the request of defendant, Hunt, his attorney F.M. Cooper was discharged by the court. On September 22, 1927, it appears that defendant, Hunt, was present in person, admitted his true name, and withdrew his plea of not guilty and entered a plea of guilty and sentence was thereafter pronounced on said plea of guilty. In Ex parte Motley, 86 Okla. Cr. 401, 193 P.2d 613, 614, we said:
"Every presumption favors regularity of the proceedings had in the trial court. The general rule often announced by this court is that error must affirmatively appear from the record; it is never presumed."
In Ex parte Seale, 75 Okla. Cr. 183, 129 P.2d 862, we said:
"Where a petition for a writ of habeas corpus is filed, the burden is upon petitioner to sustain the allegations thereof. It is only when the record and the evidence reveals that the judgment and sentence under which petitioner is being held is void will relief be granted by habeas corpus."
Such is the situation herein as to petitioner's first contention. He has not only failed to sustain the burden of his allegations, but, to the contrary, it affirmatively appears that he was provided the aid of counsel.
As to the second contention, that he was sentenced to the Reformatory at Granite when he should have been *111 sentenced to the penitentiary at McAlester, it appears that he is now confined in the penitentiary as by law provided. In the case of Ex parte Hampton, supra, we were confronted with the identical question herein involved. Therein we said:
"In his second contention the petitioner alleges that the judgment and sentence is void since the court was without authority of law to sentence him to the reformatory at Granite, Oklahoma. This contention is predicated upon the provisions of [Title] 57 O.S.A. 1941 § 105, in effect that `the trial judge shall sentence * * * to the State Penitentiary at McAlester, Oklahoma, * * * all persons whose term of confinement is for life', etc. This contention might have been made at the outset of the petitioner's incarceration while he was confined in the Reformatory at Granite, but under the state of his present confinement such contention is wholly without merit since petitioner is now confined at the penitentiary as by law provided. This holding is in keeping with the rule announced in Ex parte Combs, 87 Okla. Cr. 164, 195 P.2d 772, 773, to the effect that:
"`Custody and place of confinement is an administrative matter and not a judicial act'. And `where in a habeas corpus proceeding it appears from the petition and the facts involved that the present custody and place of confinement of a person convicted of crime is according to law the writ will be denied.'" [87 Okla. Cr. 416, 198 P.2d 754.]
Moreover, this petition falls within the rule announced in Ex parte Snow, 84 Okla. Cr. 423, 183 P.2d 588, and Ex parte Matthews, 85 Okla. Cr. 173, 186 P.2d 840, 841, wherein we said:
"The right to relief by habeas corpus may be lost by laches, when the petition for habeas corpus is delayed for a period of time so long that the minds of the trial judge and court attendants become clouded by time and uncertain as to what happened, or due to dislocation of *112 witnesses, the grim hand of death and the loss of records, the rights sought to be asserted have become mere matters of speculation, based upon faulty recollection, or figments of imagination, if not outright falsifications."
For all the above and foregoing reasons the petition for writ of habeas corpus is accordingly denied.
JONES, P.J., and POWELL, J., concur.
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2 So.3d 279 (2009)
TIMMONS
v.
STATE.
No. 5D08-4137.
District Court of Appeal of Florida, Fifth District.
January 27, 2009.
Decision without published opinion. Affirmed.
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Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2019.05.28
09:12:58 -05'00'
People v. Jamison, 2018 IL App (1st) 160409
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ISMAAEEL JAMISON, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-16-0409
Filed December 28, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-22847; the
Review Hon. Kenneth J. Wadas, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Manuela Hernandez, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary L. Boland, and Kathryn A. Schierl, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and
opinion.
OPINION
¶1 Defendant-appellant, Ismaaeel Jamison, was arrested and convicted of three counts of
aggravated battery. At trial, the State presented evidence that demonstrated defendant punched
Hector Hernandez while he attempted to board a Chicago Transit Authority (CTA) bus. The
evidence also showed that while on the bus, defendant made insulting or provoking contact
with the bus driver, Thomas Hojnacki. After the jury convicted defendant, the trial court
sentenced defendant to nine years’ imprisonment.
¶2 Defendant timely appealed to this court. He raises several arguments before this court:
(1) the State failed to prove he acted knowingly when he committed both aggravated batteries;
(2) the State failed to prove he knew the victim, Thomas Hojnacki, was over 60 years old;
(3) trial counsel provided ineffective assistance when he promised testimony from two
witnesses but never called them during the trial; (4) the trial court violated Illinois Supreme
Court Rule 431(b) (eff. July 1, 2012); and (5) he established a prima facie Batson claim so this
case should be remanded for a second and third stage Batson proceeding. See Batson v.
Kentucky, 476 U.S. 79 (1986).
¶3 After reviewing the record and for reasons stated more fully below, we affirm the
defendant’s convictions for aggravated battery. The State presented sufficient evidence from
which the jury could infer defendant acted knowingly when he committed the batteries. Trial
counsel did not provide ineffective assistance for failing to call two witnesses mentioned in
opening statements. The evidence was not closely balanced so defendant is not entitled to
remand on the Rule 431(b) violation nor is he entitled to remand for the alleged Batson
violation.
¶4 JURISDICTION
¶5 On September 4, 2015, a jury found defendant guilty of three counts of aggravated battery
and not guilty on two other counts of aggravated battery. Defendant filed a motion for a new
trial, which the court denied on October 2, 2015. On December 11, 2015, the trial court
sentenced defendant to nine years’ concurrent imprisonment on the two aggravated batteries.
A notice of appeal was filed December 29, 2015. Accordingly, this court has jurisdiction
pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules
603 and 606, governing appeals from a final judgment of conviction in a criminal case entered
below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).
¶6 BACKGROUND
¶7 The State charged defendant with six counts of aggravated battery for his conduct on a
CTA bus on November 22, 2012. The State proceeded to trial on five of the six counts:
aggravated battery causing bodily harm to transit passenger Hector Hernandez (count II),
aggravated battery causing bodily harm to transit employee Thomas Hojnacki (count III),
aggravated battery caused by contact of an insulting or provoking nature with transit employee
Thomas Hojnacki (count IV), aggravated battery causing bodily harm to an individual
(Thomas Hojnacki) 60 years or older (count V), and aggravated battery caused by contact of an
insulting or provoking nature to a victim (Thomas Hojnacki) 60 years or older (count VI).
-2-
¶8 Prior to the start of trial, defense counsel moved for a behavioral clinical examination of
defendant “for physical incapacity to assist the defense” based on a claim defendant had no
recollection of the events leading to his arrest. On November 2, 2014, the court held a fitness
hearing in which forensic psychologist, Dr. Christopher Cooper, chief of psychology and clinic
coordinator for Forensic Clinical Services, testified regarding the interview he conducted with
defendant on August 22 and August 29, 2014.
¶9 Dr. Cooper testified that he examined defendant and found no signs of acute psychological
symptoms. During the examination, defendant indicated he understood the relevant aspects of
his prosecution and the roles of all the various court personnel. Defendant informed Dr.
Cooper that he had no memory of the incident that led to his arrest. Based on defendant’s
claim, Dr. Cooper administered two memory malingering tests to objectively assess cognitive
malingering or memory impairment. Defendant’s scores on both tests were “highly indicative
of malingering current memory dysfunction or currently a malingering memory impairment.”
Dr. Cooper opined that defendant was fit to stand trial and assist in his own defense. After
hearing from Dr. Cooper, the trial court found defendant fit to stand trial.
¶ 10 Jury selection began on September 1, 2015. During voir dire, defense counsel raised two
Batson objections alleging the State improperly dismissed African-American venirepersons
based solely on their race. Of the four peremptory strikes utilized by the State, three were used
against African-Americans. After hearing from defense counsel, the trial court (on both
motions) concluded defendant failed to establish a prima facie case of systematic exclusion
because the State had accepted other African-Americans to sit on the jury.
¶ 11 During opening statements, defense counsel argued defendant committed the acts
attributed to him but was not guilty because he had not committed the acts “knowingly.”
Defense counsel informed the jury that defendant’s girlfriend would testify and describe to
them defendant’s actions and demeanor prior to the events on the bus. He also told the jury that
Officer Glenn Manguerra, the first responding officer who shot defendant twice, would relay
to the jury the appropriate procedure that should have been followed that day. Defense counsel
went on to suggest that Officer Manguerra did not follow proper police procedures and the case
against defendant was an attempt to justify the officer’s misdeeds.
¶ 12 Hojnacki testified that on November 22, 2012, he was 67 years old and working as a CTA
bus driver. His route that day was on California Avenue from 71st Street up to the north side of
the city. While driving the bus, he wore his CTA issued shirt, tie, and coat. The bus only had
one passenger when defendant boarded at either 68th Street or 67th Street and California
Avenue. Upon entering the bus, defendant wore a winter coat and cap and did not display any
unusual behavior. Almost immediately, defendant began arguing with the other passenger on
the bus. Hojnacki stopped the bus at 65th Street, and the other individual exited while
defendant remained on the bus. Another black male boarded the bus at this time. Hojnacki
immediately heard defendant and the new passenger arguing, and when he turned around, the
men were punching each other. Hojnacki hit the panic button and pulled over at 63rd Street.
After pulling over, he hit the panic button again and dialed 911. Defendant and the other man
continued to fight even after Hojnacki yelled at them to leave and that the police were on the
way.
¶ 13 While stopped, defendant moved toward the front of the bus and without warning punched
a Hispanic man, Hernandez, attempting to enter. Defendant hit the man with a closed fist,
causing the man’s head to hit a metal bar inside the bus. Hernandez exited the bus, and
-3-
defendant again confronted the black man at the back of the bus. This man then ran out the
back door. Hojnacki was still seated in the driver’s seat when defendant came back to the front
of the bus. Defendant exited through the front door, grabbed a teenage girl from the sidewalk,
and dragged her back onto the bus. The girl’s mother followed defendant screaming and hitting
him.
¶ 14 Hernandez, who had fled to a nearby currency exchange, observed the situation and went
back to the bus to lend assistance. Hernandez approached defendant, who punched him in the
face again. Despite the punch, Hernandez was able to get the defendant’s attention long
enough for the teenage girl to escape off the bus. Hernandez also exited the bus and returned to
the currency exchange until the police arrived.
¶ 15 Defendant remained on the bus and proceeded to remove both his coat and shirt. He yelled
at Hojnacki, “this is my m*** bus” and ordered him to drive. Hojnacki told defendant the bus
had broken down and he had called for help. Defendant then grabbed Hojnacki by the sleeve of
the shirt. Hojnacki told defendant “[Y]ou don’t want to fight me, I’m just an old man.”
Defendant then released Hojnacki from his grip.
¶ 16 Officer Manguerra of the Chicago police was the first officer to arrive on the scene. He had
been flagged down by a bystander, Ana Torres, and was alone in his car. Defendant exited the
bus to confront the officer. Hojnacki remained on the bus but could see the pair and heard the
officer tell defendant to “take it easy.” Officer Manguerra drew his weapon as defendant
walked toward him and then away. Defendant returned to the bus several times in an attempt to
retrieve his shirt and coat, but Hojnacki would not open the door. Defendant again approached
Officer Manguerra “as if he wanted to tackle” the officer. Officer Manguerra responded by
shooting the defendant twice. Defendant fell to the ground. He attempted to stand back up but
was tased by other officers at the scene.
¶ 17 Several other witnesses also testified as to what they observed that day. Hernandez
explained that he was on his phone as he attempted to enter the bus and had not even paid his
fare before defendant punched him in the face. When he saw defendant grab the teenage girl,
Hernandez intervened, and defendant punched him again. He described defendant as very
aggressive and looking for a fight. Torres was at the corner of 63rd Street and California
Avenue when the incident occurred. She observed defendant being aggressive and threatening
people. While she called 911, she also flagged down a passing patrol car. She saw the initial
confrontation between the officer and defendant but ran inside when she heard gunshots. Even
after the shooting, defendant continued to be aggressive toward the police and fire personnel.
¶ 18 Chicago Fire Department Lieutenant John Knightly responded to a call of a battery victim
aboard a CTA bus. When he arrived, he observed a Chicago police officer confronting a
shirtless black man, who he identified as defendant. Defendant had an “extremely aggressive”
demeanor and Lieutenant Knightly called for additional assistance. Lieutenant Knightly saw
defendant make aggressive movements toward the officer who continued to order defendant to
the ground. After defendant was unable to reboard the bus, he lowered himself into a “football
stance” and charged both him and the officer. The officer responded by firing two shots. Even
after being shot, defendant continued to crawl toward them. It took several officers and a taser
to subdue defendant.
¶ 19 Chicago Fire Department engineer John Haran provided similar testimony to Lieutenant
Knightly. After arriving at the scene, he observed defendant shirtless and in a rage. Defendant
was ranting and raving with his fists clenched. Defendant ignored the officers’ commands
-4-
while making several advances in their direction. Haran witnessed defendant get into the
“football stance” and charge the officers before being shot.
¶ 20 Chicago police officer Denis Solner and Officer Lule 1 also testified as to their
observations. Officer Solner testified that witnesses described defendant’s actions as “crazy.”
Officer Lule arrested defendant, and he testified that during the arrest, defendant turned to him
and said, “[N]ow, shoot me.”
¶ 21 Two videos of the incident were admitted into evidence. The first video depicted the inside
of the CTA bus and shows that part of the incident. The second video came from a camera
belonging to a nearby currency exchange that captured the police shooting defendant. It also
depicts defendant attempting to get back up after being shot and the police utilizing a taser
against defendant. Both videos show defendant’s actions as well as his physical demeanor
throughout the event.2
¶ 22 Following closing arguments, the jury found defendant guilty on count II (aggravated
battery causing bodily harm to a transit passenger), count IV (aggravated battery based on
insulting or provoking contact against a transit employee), and count VI (aggravated battery
based on insulting or provoking contact against an individual 60 years or older). Defendant
was acquitted of counts III (aggravated battery causing bodily harm to a transit employee) and
count V (aggravated battery causing bodily harm to a person 60 years or older). The trial court
merged count VI into count IV and then sentenced defendant to nine years on both counts II
and IV to run concurrently.
¶ 23 This timely appeal follows.
¶ 24 ANALYSIS
¶ 25 Before this court, defendant raises two sufficiency of the evidence arguments. Defendant
argues the State failed to present sufficient evidence from which the jury could infer that he
acted knowingly when he committed the aggravated batteries against Hojnacki and Hernandez.
Additionally, defendant argues the State failed to present sufficient evidence to demonstrate
that he knew Hojnacki was 60 years or older. We analyze each argument in turn.
¶ 26 When a defendant argues the evidence was insufficient to sustain his conviction, the
inquiry is whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People
v. Collins, 214 Ill. 2d 206, 217 (2005). In reviewing the sufficiency of the evidence, the
appellate court will not retry the defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). It is
the trier of fact’s function to assess witness credibility, weigh and resolve conflicts in the
evidence, and draw reasonable inferences from the evidence. People v. Williams, 193 Ill. 2d
306, 338 (2000). While the trier of fact’s findings regarding witness credibility are entitled to
great weight, the determination is not conclusive. Smith, 185 Ill. 2d at 542. The fact finder’s
acceptance of testimony as true does not guarantee that it was reasonable to do so. People v.
Cunningham, 212 Ill. 2d 274, 280 (2004). However, an appellate court will only reverse a
1
The record does not disclose Officer Lule’s first name.
2
While the record contains a DVD purporting to contain the videos, defendant’s brief indicates
appellate counsel could not get the video to play. This court was also unable to view the video.
-5-
conviction where no “rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Smith, 185 Ill. 2d at 541.
¶ 27 In his first sufficiency argument, defendant contends the State failed to prove he knowingly
caused bodily harm to Hernandez or that he knowingly made physical contact of an insulting or
provoking nature with Hojnacki. The aggravated battery statute requires the actions be
committed “knowingly.” See 720 ILCS 5/12-3.05 (West 2016) (requiring a person to
knowingly commit one of the prohibited actions). The Criminal Code of 2012 further states,
“A person knows, or acts knowingly or with knowledge of:
(a) The nature or attendant circumstances of his or her conduct, described by
the statute defining the offense, when he or she is consciously aware that his or her
conduct is of that nature or that those circumstances exist. Knowledge of a material
fact includes awareness of the substantial probability that the fact exists.
(b) The result of his or her conduct, described by the statute defining the
offense, when he or she is consciously aware that that result is practically certain to
be caused by his conduct.” Id. § 4-5.
Since “knowingness” is a state of mind, it will rarely be proven by direct evidence. Rather, the
State will often have to prove “knowingness” based on the surrounding circumstances of the
event, “including the character of the assault and the nature and seriousness of the injury.”
People v. Williams, 165 Ill. 2d 51, 64 (1995).
¶ 28 After reviewing the evidence in a light most favorable to the State, a rational trier of fact
could reasonably conclude that defendant acted knowingly when he punched Hernandez and
grabbed Hojnacki while he sat in the driver seat of the bus.
¶ 29 Defendant argues that the evidence presented by the State demonstrates he was not acting
“normally” and therefore his actions were not done knowingly. He further argues the videos
show he was in a “strange rage” and that he was picking fights with random people. He
removed his jacket and shirt for no reason. Bystanders saw him pacing back and forth, arms
extended with clenched fists. Lieutenant Knightly testified that by the time he responded,
defendant was “mumbling” or “uttering words I could not understand.” Before being shot,
defendant apparently got into a “football tackling position” when confronting the police
officers. Even after being shot, defendant was combative and resisted first aid attempts.
¶ 30 While the above facts were presented as evidence, the jury concluded that despite the
strange conduct, defendant’s actions toward Hernandez and Hojnacki were done knowingly.
The evidence demonstrated that defendant confronted Hernandez as he tried to enter the CTA
bus. Defendant, without provocation or warning, then punched Hernandez in the face before
Hernandez had an opportunity to pay his fare. The punch caused Hernandez to bleed, and
Hernandez would eventually receive medical treatment for his injuries. After the incident with
the teenage girl, defendant yelled at Hojnacki to keep driving. When Hojnacki responded that
the bus was inoperable, defendant confronted Hojnacki and grabbed him. When Hojnacki
implored defendant to not hit an old man, defendant released him. Despite the bizarre nature of
defendant’s actions on November 22, the jury concluded the actions against Hernandez and
Hojnacki were undertaken knowingly.
¶ 31 Defendant’s argument is based on reweighing the evidence and viewing it based on his
interpretation, an action reviewing courts should not take. People v. Collins, 106 Ill. 2d 237,
261-62 (1985). It is well settled that appellate courts should not retry a defendant. Smith, 185
-6-
Ill. 2d at 541. It is the trier of fact’s function to assess witness credibility, weigh and resolve
conflicts in the evidence, and draw reasonable inferences from the evidence. Williams, 193 Ill.
2d at 338. In this case, the jury heard all of the testimony concerning defendant’s strange
behavior and viewed the corresponding video evidence. The jury ultimately concluded that the
actions taken against Hernandez and Hojnacki were done knowingly. The evidence supports
the jury’s verdicts, and we decline to reverse it based on defendant’s view of the evidence.
¶ 32 In affirming the aggravated battery convictions, we find defendant’s reliance on People v.
Jackson, 2017 IL App (1st) 142879, misplaced. In Jackson, another division of this court
reversed a defendant’s convictions for battery and resisting a peace officer. Id. ¶ 31. In
Jackson, the responding paramedics characterized the conduct that led to the criminal charges
as “defensive” in nature and not “violent.” Id. ¶ 13. Unlike the actions of the defendant in
Jackson, the defendant in this case was at all times the aggressor and his actions were violent.
Moreover, we agree with Justice Mason’s dissent in Jackson that “irrational behavior does not
necessarily indicate that [defendant] was not consciously aware of the results of his actions.”
Id. ¶ 87 (Mason, J., dissenting). The evidence presented, taken in a light most favorable to the
State, allows for a rational finder of fact to conclude defendant acted knowingly when he
punched Hernandez and grabbed Hojnacki.
¶ 33 In his second sufficiency argument, defendant argues we should reverse his conviction
under count VI because the State failed to prove he knew Hojnacki was 60 or older at the time
of the offense. The State responds that this court lacks jurisdiction to consider the merits of
defendant’s conviction under count VI because it was merged into count IV and no sentence
was imposed on it. Citing In re T.G., 285 Ill. App. 3d 838, 845 (1996), and People v. Burrage,
269 Ill. App. 3d 67, 77 (1994), defendant replies that this court may consider the merits of a
merged conviction when the case is properly on appeal from a final judgment on another
offense.
¶ 34 After reviewing the relevant case law, we agree with the State that we lack jurisdiction to
consider defendant’s unsentenced conviction under count VI. Defendant’s cited cases rely on
People v. Dixon, 91 Ill. 2d 346 (1982). See In re T.G., 285 Ill. App. 3d 838, 846 (1996) (citing
Dixon, 91 Ill. 2d at 353-54); Burrage, 269 Ill. App. 3d at 72 (citing People v. Frantz, 150 Ill.
App. 3d 296, 300 (1986), which relied on Dixon). However, Dixon’s scope has been narrowed
by People v. Relerford, 2017 IL 121094.
¶ 35 As background, in Dixon, the defendant was convicted of armed violence, aggravated
battery, mob action, and disorderly conduct. 91 Ill. 2d at 349. The trial court imposed sentences
on the armed violence and aggravated battery convictions but did not impose a sentence on the
mob violence and disorderly conduct convictions, holding that they merged into the other two
offenses. Id. The appellate court reversed the defendant’s armed violence conviction, and the
State urged a remand to impose a sentence on either the mob action or disorderly conduct
conviction. Id. at 351. The supreme court ultimately found that the appeal was properly before
the appellate court with regard to the convictions for armed violence and aggravated battery
and the failure to impose sentences on the unappealed convictions (for mob violence and
disorderly conduct) had been “intimately related to and ‘dependent upon’ the appealed
convictions within the meaning of Rule 615(b)(2),” so the appellate court could remand the
case to impose a sentence. Id. at 353-54. The court noted that the situation was “an anomalous
one,” in that the trial judge’s failure to impose a sentence for mob violence and disorderly
-7-
conduct stemmed from an erroneous belief that they merged into the other two offenses upon
which he did impose sentences. Id. at 353.
¶ 36 In Relerford, 2017 IL 121094, ¶ 75, our supreme court stated Dixon had been applied too
broadly. There, the appellate court had found that it had jurisdiction to address the validity of
the defendant’s unsentenced convictions based on Dixon. Id. ¶ 71. Our supreme court
disagreed, explaining that to the extent “the appellate court had any jurisdiction to address the
nonfinal convictions, that jurisdiction was limited to ordering remand for imposition of
sentences on the lesser convictions.” Id. ¶ 75. The court further stated that “Dixon must be
understood to be limited to the type of factual situation presented in that case,” where the
circuit court incorrectly determined that lesser offenses had merged into the other offenses. Id.
¶ 74.
¶ 37 Here, this matter does not present a factual scenario akin to Dixon, and even if it did, all we
could do is remand to impose a sentence on the lesser conviction. Id. ¶ 75. In accordance with
Relerford, we lack jurisdiction to review the merits of defendant’s unsentenced conviction
under count VI.
¶ 38 In his next issue, defendant contends his trial counsel was ineffective for promising certain
testimony during his opening statement but never presenting it at trial. During opening
statements, defense counsel stated that defendant’s girlfriend would testify as to defendant’s
activities prior to the incident in order to demonstrate that defendant had been behaving
normally. Also during opening statements, defense counsel stated the first officer to encounter
defendant, Officer Manguerra, mishandled the situation and the ensuing prosecution was an
effort to justify the improper police response. Defense counsel never called defendant’s
girlfriend or Officer Manguerra.
¶ 39 Claims of ineffective assistance of counsel are judged under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 685-87 (1984). In order to succeed on a Strickland
claim, a defendant must demonstrate that (1) counsel’s performance fell below an objective
standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the trial would have been different. Id. at 687. Under the
first prong, the defendant must show that under the circumstances, counsel’s actions or
inaction could not be considered “sound trial strategy.” (Internal quotation marks omitted.)
People v. Rogers, 172 Ill. App. 3d 471, 479 (1988). Trial counsel’s conduct must have so
undermined “the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. In certain circumstances, the failure to present promised
evidence from an opening statement can qualify as ineffective assistance of counsel. People v.
Ortiz, 224 Ill. App. 3d 1065, 1073 (1992).
¶ 40 Under the second prong, a defendant establishes prejudice by showing “but for counsel’s
unprofessional errors, there is a reasonable probability that the result of the proceeding would
have been different.” People v. Houston, 229 Ill. 2d 1, 4 (2008). The reasonableness of
counsel’s actions must be determined in light of the totality of the circumstances. People v.
Atkins, 161 Ill. App. 3d 600, 608 (1987). A defendant’s failure to establish either prong
precludes a finding of ineffective assistance. People v. Patterson, 217 Ill. 2d 407, 438 (2005).
If a defendant cannot establish the prejudice prong, then a reviewing court does not need to
engage in an analysis of the performance prong. Strickland, 466 U.S. at 697. Whether trial
counsel’s actions support a claim of ineffective assistance represents a question of law that this
court reviews de novo. People v. Max, 2012 IL App (3d) 110385, ¶ 64.
-8-
¶ 41 Defendant’s contention at trial was he did not act “knowingly” when he punched
Hernandez and grabbed the shirt of Hojnacki. He argues the girlfriend’s testimony would show
he “was just a regular person on that day,” “that he wasn’t angry at anybody,” “wasn’t drunk,”
and “wasn’t taking illegal or legal drugs.” Based on the failure to present this testimony,
defendant contends his trial counsel “could not substantiate that [defendant] was having a
perfectly normal day and his behavior was some type of mental breakdown rather than a
possible response to an earlier event.” Defendant’s argument regarding a possible mental
breakdown is pure speculation. See People v. Olinger, 176 Ill. 2d 326, 363 (1997) (stating that
pure speculation is insufficient to establish prejudice under Strickland). Defendant never
contended he was suffering from mental illness. Neither at trial nor before this court does
defendant identify the “type of mental breakdown” he allegedly suffered. Defendant also never
requested the jury be instructed regarding a verdict of guilty but mentally ill. See Illinois
Pattern Jury Instructions, Criminal, No. 24-25.01I (4th ed. 2000). Defendant never argued he
suffered from a mental breakdown and the failure to call the girlfriend to testify on an issue
never argued did not result in prejudice.
¶ 42 We also conclude the failure to call Officer Manguerra did not prejudice defendant.
Whether or not Officer Manguerra followed proper police protocol upon confronting
defendant after defendant had already committed the crimes has no bearing on whether
defendant committed those crimes “knowingly.” Moreover, defendant does not explain how
any alleged improper conduct by Officer Manguerra means he did not knowingly punch
Hernandez or grab Hojnacki. Finally, we reject this argument because it implies, without any
evidence, the state’s attorney’s office is colluding with the police to cover up police
misconduct. Based on the above, defendant’s ineffective assistance of counsel claim fails
because he cannot establish the failure to call either witness resulted in prejudice pursuant to
Strickland.
¶ 43 In his next issue, defendant argues he is entitled to a new trial because the trial court
violated Rule 431(b) when it failed to ask potential jurors whether they understood each of the
principals contained in the rule. See Ill. S. Ct. R. 431(b) (eff. July 1, 2012) (listing the four
principles a trial judge must ask jurors if they understand and accept). Defendant
acknowledges he failed to object to the trial court’s error and asks us to review the issue under
the first prong of the plain error doctrine. The State concedes that the trial court committed a
“clear and obvious error” under the first prong but argues the evidence was not closely
balanced. See People v. Herron, 215 Ill. 2d 167, 187 (2005) (concluding that under the first
prong of a plain error analysis a party must show both that an error occurred and the evidence
was closely balanced so that the error alone threatened to tip the scales of justice). The State’s
position is that an error did occur, but defendant is not entitled to a new trial because the
evidence of defendant’s guilt was overwhelming. Given the State’s concession, we confine our
analysis to whether the evidence was closely balanced.
¶ 44 When deciding if the evidence presented at trial is closely balanced, “a reviewing court
must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment
of it within the context of the case.” People v. Sebby, 2017 IL 119445, ¶ 53 (citing People v.
Belknap, 2014 IL 117094, ¶¶ 52-53). In making this determination, the court must assess the
evidence presented at trial against the elements of the charged offense, along with any
evidence concerning a witnesses’ credibility. Id. “Whether the evidence is closely balanced is,
of course, a separate question from whether the evidence is sufficient to sustain a conviction on
-9-
review against a reasonable doubt challenge.” People v. Piatkowski, 225 Ill. 2d 551, 566
(2007).
¶ 45 As discussed supra, the only element defendant contested at trial was whether he acted
knowingly when he punched Hernandez and grabbed the shirt of Hojnacki. In arguing the
evidence is closely balanced, defendant again points to the testimony of witnesses who
described his actions as not “normal” and “crazy.” He points to the testimony of Lieutenant
Knightly, who described defendant as out of control and unable to comprehend the officer’s
commands because defendant “was in such a rage.”
¶ 46 We disagree with the defendant that the evidence at trial was closely balanced. Defendant
does not argue that his conduct was the result of some involuntary action over which he had no
control. Instead, defendant points to witness testimony and asks this court to infer he must have
been suffering from some unknown mental breakdown, which meant his actions were
committed in an unknowing fashion. Acting abnormally or “being in a rage” does not lead to
the conclusion defendant was incapable of acting knowingly. Equally true, the witnesses’
description of defendant’s actions as “crazy” does not mean defendant suffered a mental
breakdown.
¶ 47 Defendant never raised an insanity affirmative defense or requested a jury instruction on
the issue. See People v. Burnett, 2016 IL App (1st) 141033, ¶ 46. Defendant never presented
any evidence regarding a possible mental breakdown, and this court will not engage in
speculation on the matter. See People v. Givens, 237 Ill. 2d 311, 323 (2010) (“ ‘a reviewing
court should not normally search the record for unargued and unbriefed reasons to reverse a
trial court judgment’ ” (emphasis in original) (quoting Saldana v. Wirtz Cartage Co., 74 Ill. 2d
379, 386 (1978))). The evidence established that defendant confronted Hernandez and
punched him in the face. Later, defendant grabbed Hojnacki when he refused to drive the bus.
¶ 48 Defendant has failed to meet his burden demonstrating the evidence was closely balanced.
People v. Nitz, 219 Ill. 2d 400, 419 (2006). Consequently, defendant is not entitled to a new
trial. See Piatkowski, 225 Ill. 2d at 568 (no new trial under the first prong of plain error if the
evidence is not closely balanced).
¶ 49 In his last issue, defendant argues he made a prima facie showing of discrimination based
on the State’s use of peremptory challenges against African-American venirepersons.
Defendant insists we should remand this proceeding for a second and third stage Batson
hearing.
¶ 50 Batson represents a seminal case in federal constitutional jurisprudence. In Batson, the
Supreme Court reaffirmed the principle “that the State denies a black defendant equal
protection of the laws when it put him on trial before a jury from which members of his race
have been purposefully excluded.” Batson, 476 U.S. at 85. Batson establishes “a three-step
process for evaluating alleged discrimination in jury selection.” People v. Rivera, 221 Ill. 2d
481, 500 (2006). First, the objecting party is required to establish a prima facie case of
purposeful discrimination “by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” Batson, 476 U.S. at 94 (citing Washington v. Davis, 426
U.S. 229, 239-42 (1976)). If a prima facie case is established by the objecting party, the burden
shifts to the challenged party to proffer a nondiscriminatory, “neutral” explanation. Id. at
97-98. In the third stage, the trial court considers the reason provided by the challenged party
for the venirepersons removal. Rivera, 221 Ill. 2d at 500. The objecting party is free to argue
- 10 -
that the proffered reasons are pretextual. Id. The trial court makes the final determination as to
whether discrimination has been established. Batson, 476 U.S. at 98.
¶ 51 In Johnson v. California, 545 U.S. 162, 170 (2005), the Supreme Court explained the
threshold for establishing a prima facie Batson claim is not high: “a defendant satisfies the
requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred.” Case law has provided seven factors to
aid in determining whether a prima facie case exists:
“(1) racial identity between the defendant and the excluded venirepersons; (2) a pattern
of strikes against African-American venirepersons; (3) a disproportionate use of
peremptory challenges against African-American venirepersons; (4) the level of
African-American representation in the venire as compared to the jury; (5) the
prosecutor’s questions and statements during voir dire examination and while
exercising peremptory challenges; (6) whether the excluded [black] venirepersons
were a heterogeneous group sharing race as their only common characteristics; and
(7) the race of the defendant, victim, and witnesses.” People v. Williams, 173 Ill. 2d 48,
71 (1996).
See also Rivera, 221 Ill. 2d at 501. Our supreme court has also held comparative juror analysis
from the Miller-El v. Dretke, 545 U.S. 231, 241 (2005), decision may be utilized “in
determining whether a prima facie case exists in the first instance.” People v. Davis, 231 Ill. 2d
349, 361-62 (2008).3 A trial judge’s determination of whether a defendant has demonstrated a
prima facie case of discriminatory jury selection will not be overturned unless it is against the
manifest weight of evidence. People v. Heard, 187 Ill. 2d 36, 54 (1999); People v. Hudson, 157
Ill. 2d 401, 426 (1993).
¶ 52 During voir dire, the defendant’s attorney raised a Batson objection at two different points
and both times the trial court found that defendant had failed to establish a prima facie case of
discrimination. The State used its first peremptory strike against Devenda Beals, an
African-American venireperson, but defense counsel did not immediately object. The State
then used its second peremptory strike against William Rody, but the record does not disclose
Rody’s race. Immediately after dismissing Rody, the State used its third peremptory challenge
against Robert Jones, an African-American. This did draw a Batson objection from defense
counsel. The following exchange then occurred:
“[DEFENSE ATTORNEY]: Can we approach?
[SECOND DEFENSE ATTORNEY]: May we approach, Judge, for a second.
THE COURT: With the court reporter.
[STATE’S ATTORNEY]: We need you.
[SECOND DEFENSE ATTORNEY]: No. One we have an obligation—we—
previous to this there is a Batson obligation because Ms. Beals was also excused and
my client is black. Ms. Beals is black, Ms. [sic] Jones is black so we’d ask the Court,
was race a reason they have for excluding?
3
A comparative jury analysis looks at “a prosecutor’s proffered reason for striking a black panelist”
to determine if it “applies just as well to an otherwise-similar nonblack who is permitted to serve.”
Miller-El, 545 U.S. at 241. Comparative jury analysis cannot be used here because the State never
proffered a reason for striking any of the African-American venirepersons.
- 11 -
[STATE’S ATTORNEY]: I don’t believe the Defense has made a prima facie
showing that there was any type of bias or any real reason for the excuse.
THE COURT: Have any African[-]Americans been accepted on the jury?
[STATE’S ATTORNEY]: Yes, they have. I believe that Ms. Annette Brown, the
juror number two, was accepted by the State.4
THE COURT: All right. Okay. The Defense has [not] established a prima facie
showing of a systematic exclusion of African[-]Americans at this point in time, and
accordingly to [sic] the Motion for Batson relief is denied.”
Voir dire then continued and the second panel of four venirepersons was seated as jurors
without issue. During voir dire for the final group of four jurors, the State exercised a
peremptory challenge against Stacey Anaman, an African-American venireperson. This drew
an immediate objection from defense counsel. The following exchange then occurred:
“[DEFENSE ATTORNEY]: Your Honor, we have an objection if we can go in the
back.
THE COURT: All right. Come to the back, court reporter. Defense objection.
[DEFENSE ATTORNEY]: It’s the same objection Batson.
THE COURT: Renewing the Batson Motion, prosecution, the State is using a
peremptory challenge on Ms. Anaman.
[STATE’S ATTORNEY]: I don’t believe that this challenge was based on the basis
of race.
THE COURT: Within this panel of four right now as far as—is the State accepting
another African[-]American juror or excusing one so once again I don’t think the
Defense has established a prima facie showing of systematic exclusion in light of the
fact that they’re accepting multiple African[-]Americans so the Defense Motion for
Batson relief is denied.”
After this second Batson objection, the parties completed the final panel of four venirepersons
and also seated the two alternates.
¶ 53 After reviewing the record and relevant case law, we cannot say that the trial court’s
determinations to deny the Batson challenges were against the manifest weight of the
evidence. As the transcript demonstrates, when defense counsel raised both Batson objections,
she only pointed to the fact that the venirepersons were African-Americans and defendant was
African-American. This was insufficient under our case law.
¶ 54 Our supreme court has repeatedly cautioned, “the mere fact of a peremptory challenge of a
black venireperson who is the same race as defendant or the mere number of black
venirepersons peremptorily challenged, without more will not establish a prima facie case of
discrimination.” (Emphasis added.) Davis, 231 Ill. 2d at 360-61 (citing Heard, 187 Ill. 2d at
56). While defendant established that he and the excluded venirepersons were from the same
cognizable racial group, he failed to raise the “ ‘other relevant circumstances’ ” from which a
trial court could find a prima facie showing of discrimination. Johnson, 545 U.S. at 169
(quoting Batson, 476 U.S. at 96). It was defendant’s burden to produce evidence from which
the trial court could draw an inference of discrimination, and he failed to do so here. See id. at
4
The record demonstrates that Annette D. Brown, an African-American, was part of the first panel
of four venirepersons accepted to be part of the jury.
- 12 -
170 (noting that defendant satisfies the first requirement by producing sufficient evidence).
Defendant argues the trial court failed to conduct a proper analysis but ignores that it was his
burden to present the court with correct information in the first place.5
¶ 55 Defendant’s attempt to engage in a first step analysis before this court is unavailing.
Defendant argues that several factors counsel in favor of finding a prima facie case of
discrimination including the fact that defendant is African-American, three challenged
venirepersons were African-American, three of the four peremptory challenges made by the
State were against African-Americans, and the three excluded African-American
venirepersons were a heterogeneous group sharing race as their only common characteristic.
Defendant engages in an incomplete analysis because the above represent only part of the
relevant factors a court should look at to determine whether a prima facie case has been
established. Williams, 173 Ill. 2d at 71.
¶ 56 Several other facts that are germane to a first stage Batson inquiry are not present in the
record. The record does not demonstrate the level of African-American representation on the
venire as compared to the jury nor does the record include the race of the victims or witnesses.6
The Illinois Supreme Court has held the “unchallenged presence of jurors of that race on the
seated jury is a factor properly considered [citations] and tends to weaken the basis for a
prima facie case of discrimination.” Rivera, 221 Ill. 2d at 513. Moreover, “racial
characteristics of a crime are important factors to be considered in determining whether a
prima facie case has been established.” People v. Andrews, 146 Ill. 2d 413, 433 (1992) (citing
People v. Evans, 125 Ill. 2d 50, 66 (1988)). Defendant has the responsibility for “preserving
the record and any ambiguities in the record will be construed against [defendant].” Davis, 231
Ill. 2d at 365 (citing Rivera, 221 Ill. 2d at 512). We will not speculate as to the race of
witnesses, victims, the venire panel, or members of the jury. Defendant’s failure to preserve a
complete record prevents an analysis of all relevant first stage Batson factors.
¶ 57 It was defendant’s obligation to present the trial court with all relevant facts from which a
prima facie case of discrimination could be inferred. Defendant failed to make a complete
presentation and failed to properly preserve the relevant facts to allow for an all-encompassing
inquiry on appeal. Accordingly, defendant has failed to demonstrate the trial court’s rulings on
the Batson objections were against the manifest weight of the evidence.
¶ 58 CONCLUSION
¶ 59 For the foregoing reasons, we affirm defendant’s convictions.
¶ 60 Affirmed.
5
In the last paragraph of his brief, defendant states “the trial court improperly applied a ‘systematic
exclusion’ standard as its basis for summarily denying defense counsel’s motion.” We are aware that
the trial court made passing reference to “systematic exclusion,” which references pre-Batson case law.
See Swain v. Alabama, 380 U.S. 202 (1965). Any argument that the trial court applied the wrong
standard has been forfeited because defendant failed to object below (People v. Wiley, 156 Ill. 2d 464,
472-73 (1993)), and the mere passing reference means the issue has been forfeited for being
insufficiently briefed (People v. Nere, 2018 IL 122566, ¶ 25 (citing Ill. S. Ct. R. 341(h)(7) (eff. July 1,
2012))).
6
While Brown is identified as an African-American, the record indicates one or two other
individuals on the petit jury were African-American, but they are not identified for the record.
- 13 -
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701 S.E.2d 251 (2010)
STATE of North Carolina
v.
Carl Steve OWENS.
No. 203P10.
Supreme Court of North Carolina.
August 26, 2010.
Carl Steve Owens, pro se.
Sarah Y. Meacham, Assistant Attorney General, for State of North Carolina.
ORDER
Upon consideration of the petition filed on the 12th of May 2010 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Dismissed Ex Mero Motu by order of the Court in conference, this the 26th of August 2010."
Upon consideration of the petition filed by Defendant on the 12th of May 2010 in this matter for a writ of certiorari to review the decision of the North Carolina Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Denied by order of the Court in conference, this the 26th of August 2010."
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Case: 16-40139 Document: 00513722693 Page: 1 Date Filed: 10/18/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40139
Conference Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 18, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE RODRIGO PENA-PEREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-1189-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent Jose Rodrigo Pena-
Perez has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d
229 (5th Cir. 2011). Pena-Perez has filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein, as well
as Pena-Perez’s response. We concur with counsel’s assessment that the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-40139 Document: 00513722693 Page: 2 Date Filed: 10/18/2016
No. 16-40139
appeal presents no nonfrivolous issue for appellate review. Accordingly,
counsel’s motion for leave to withdraw is GRANTED, counsel is excused from
further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR.
R. 42.2.
2
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 27, 2010
No. 09-11889 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-03583-CV-ODE-1
TAKUMA OWUO-HAGOOD,
Petitioner-Appellant,
versus
ROBERT H. SULLIVAN,
S. JAMES TUGGLE,
RISK MANAGEMENT,
et al,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 27, 2010)
Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Takuma Owuo-Hagood, proceeding pro se, appeals the
dismissal of his civil rights complaint, 42 U.S.C. § 1983. The district court granted
Defendants’ motion for judgment on the pleadings, Fed.R.Civ.P. 12(c), and
dismissed the complaint because Plaintiff’s claims were barred by absolute
immunity. No reversible error has been shown; we affirm.
In his complaint, Plaintiff alleged that he was tried illegally for failing to
maintain his lane while driving in Carroll County, Georgia. He contended that
Defendant Robert Sullivan, the state court judge who presided over his trial, acted
in the clear absence of all jurisdiction because Plaintiff never contracted himself
into the state court’s jurisdiction by hiring a lawyer, signing a traffic citation, or
signing a bond agreement. Plaintiff also alleged that Defendant S. James Tuggle,
the state solicitor who prosecuted his case, violated Plaintiff’s constitutional rights
because he failed to call the arresting officer or the victim as witnesses at
Plaintiff’s trial. The district court determined that Sullivan was entitled to judicial
immunity and that Tuggle was entitled to prosecutorial immunity.
“We review de novo a district court’s entry of judgment on the pleadings,
accepting the facts in the complaint as true and viewing them in the light most
favorable to the nonmoving party.” Abdur-Rahman v. Walker, 567 F.3d 1278,
2
1280-81 (11th Cir. 2009).1 On appeal, Plaintiff maintains that he demonstrated in
his complaint that Defendants were unentitled to immunity. We disagree.2
Judges are entitled to absolute judicial immunity from damages under
section 1983 for those acts taken while they are acting in their judicial capacity
unless they acted in the clear absence of all jurisdiction. Sibley v. Lando, 437 F.3d
1067, 1070 (11th Cir. 2005). A judge does not act in the “clear absence of all
jurisdiction” when he acts erroneously, maliciously, or in excess of his authority,
but instead, only when he acts without subject-matter jurisdiction. Dykes v.
Hosemann, 776 F.2d 942, 947-48 (11th Cir. 1985).
Here, Plaintiff challenged Sullivan’s act in presiding over his trial, an act
clearly taken in a judicial capacity. And contrary to Plaintiff’s assertion, Sullivan
did not act in the clear absence of all jurisdiction: under Georgia law, a state court
has jurisdiction over misdemeanor cases where the underlying acts take place
within the county in which the court is located. See O.C.G.A. § 15-7-4(a). Thus,
1
In addition, we liberally construe pro se pleadings. Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
2
Plaintiff points to the district court’s incorrect statement in its order that
Plaintiff had not responded to Defendants’ motion for judgment on the pleadings.
Plaintiff did file a reply to Defendants’ motion; but this misstatement by the district
court does not bear on the disposition of this appeal. The district court clearly
considered the merits of Defendants’ motion, and Plaintiff presented nothing in his
response showing that Defendants were unentitled to immunity.
3
Sullivan had subject-matter jurisdiction over Plaintiff’s case and was entitled to
absolute judicial immunity.
Likewise, because Tuggle, the state prosecutor, acted within the scope of his
role as the government’s advocate when he prosecuted Plaintiff, he was entitled to
absolute prosecutorial immunity. A prosecutor is entitled to absolute immunity for
all acts he takes while performing his function as an advocate for the government,
including pursuit of criminal prosecution, examining witnesses, and presentation of
evidence. Rivera v. Leal, 359 F.3d 1350, 1353 (11th Cir. 2004). Thus, Tuggle’s
decision about which witnesses to call was within the scope and jurisdiction of his
office.3
Plaintiff named “Risk Management” as a party in his complaint and sought a
default judgment against this party when it failed to respond to his complaint.
Plaintiff maintained that Risk Management was part of Carroll County. On appeal,
Plaintiff argues that he clearly named Carroll County as a party and that it was
error for the district court to deny his motion for default judgment. We review the
denial of a motion for default judgment for an abuse of discretion. Mitchell v.
3
Plaintiff’s argument that Defendants were not immune from suit because
they committed the criminal infraction of abuse of process and, therefore, willfully
deprived him of his constitutional rights in violation of 18 U.S.C. § 242 is
meritless. Section 242 provides no basis for damages under section 1983. See
Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960).
4
Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002).
The district court abused no discretion in denying Plaintiff’s motion for
default judgment. Plaintiff failed to show that Risk Management was an actual
entity, failed to name Carroll County as a party to his complaint, and failed to
allege wrongdoing on the part of Risk Management or Carroll County.
AFFIRMED.
5
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379 F.2d 796
Harry A. DECATO et al., Plaintiffs, Appellants,v.The TRAVELERS INSURANCE COMPANY, Defendant, Appellee.
No. 6881.
United States Court of Appeals First Circuit.
July 11, 1967.
N. George Papademas, Lebanon, N.H., for appellants.
Irving H. Soden, Concord, N.H., with whom Sulloway, Hollis, Godfrey & Soden, Concord, N.H., was on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
1
In this action plaintiffs seek to recover alleged excessive charges paid by them to the defendant company as insurance premiums. Their claim is based upon an alleged misrepresentation by the defendant as to the maximum amount of premiums chargeable under the insurance plan in question.
2
Plaintiffs own and operate a trucking business in Lebanon, New Hampshire, and for some time had placed their insurance coverage with the defendant company. In November 1958, pursuant to a discussion as to how plaintiffs could reduce their insurance costs, the parties entered into a new insurance agreement, effective for the three year period beginning November 20, 1958, and covering a variety of risks relating to plaintiffs' business. The premiums under this new agreement were based on a so-called retrospective plan.1 Defendant acknowledges that plaintiffs paid them a total of $60,681.16 in premiums under this plan.
3
Plaintiffs allege that in November 1958 when they changed over to the new plan, defendant represented that the premiums under it for the three year policy period would not exceed $50,772; that this was a misrepresentation of fact made with the intention of inducing them to enter into this plan; that plaintiffs entered into it in reliance upon this misrepresentation and now seek to recover the amount of premiums paid in excess of $50,772. Defendant denies that it ever represented to plaintiffs that their premiums would be other than those computed in accordance with the formula set forth in the agreement. In addition, defendant claims that under the plan the total amount of premiums for the entire policy period is $75,376.23, of which amount there is still a balance due of $14,695.07,-- and filed its counterclaim for that amount.
4
Plaintiffs dispute the amount of defendant's counterclaim on the ground that there was substantial evidence that the amount demanded was much less.2 On this point the trial court instructed the jury that if it found that defendant is entitled to recover from plaintiffs for additional premiums, it must then determine the amount thereof and it could find 'either a lesser amount than what was demanded or as much as was demanded or what the evidence will justify * * *.'3
5
After a two day trial4 the jury returned a verdict for the defendant on plaintiffs' misrepresentation claim and also found in favor of the defendant for $8,577.07 on its counterclaim. Thereupon, defendant moved for judgment on its counterclaim, notwithstanding the jury's verdict, in the amount of $14,695.07.5 The court granted this motion and entered judgment for the defendant for said amount on the ground that no issue of fact existed with respect to the amount due to defendant on its counterclaim.
6
In our opinion the decisive question here is whether, under the facts and circumstances above stated, the trial court erred in thus increasing the amount of damages awarded by the jury.6 With respect to this question, defendant argues that Fed.R.Civ.P. 50(b) gives the trial court authority to correct a previous error through the medium of a motion for judgment notwithstanding the verdict. While this may be true it must also be borne in mind that in so utilizing 50(b), the court may not invade the province of the jury. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).7 Cf. Bentley v. Sunset House Distributing Corp.,359 F.2d 140, 143 (9th Cir. 1966).
7
Although there is a paucity of authority on the subject, we think the constitutional rule against additur, see Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1934), is not violated in a case where the jury has properly determined liability8 and there is no valid dispute as to the amount of damages. In such a case the court is in effect simply granting summary judgment on the question of damages. 6A Moore Fed.Prac. P59.08(4), 3804 and n. 67; Id., P59.05(3), 3748 and n. 41; Rocky Mountain Tool and Mach. Co., Inc. v. Tecon Corp. (Hartford Accident & Indemnity Co. v. Tecon Corp.) 371 F.2d 589 (10th Cir. 1967); cf. Dimick v. Schiedt, supra, 293 U.S. at 479, 55 S.Ct. 296; Cummings v. Boston & M.R.R., 212 F.2d 133, 136-137 (1st Cir. 1954); DePinto v. Provident Security Life Ins. Co., 323 F.2d 826, 837 (9th Cir. 1963), cert. denied, 376 U.S. 950, 84 S.Ct. 969, 11 L.Ed.2d 970 (1964). The only question here is whether the damages were truly in dispute, or were conclusively shown.9 Just because a party chooses to litigate does not necessarily mean that there is a dispute as to damages. Even in a contract case for amounts certain we must look to the record.
8
Except for the question of misrepresentation, which the jury found against them, plaintiffs' only dispute with defendant's figures was with reference to the accuracy of some of them. This stemmed from the fact that defendant's underlying records were destroyed after certain basic figures ahd been transferred to other records. Applying the summary judgment rule, we feel that where, as here, proof of damages relates to matters solely within the defendant's control and the defendant has the burden of proof, summary judgment was not appropriate. Accordingly, the court's increase of the jury verdict cannot stand.
9
By increasing the verdict the court necessarily ruled that the verdict as returned was, at the least, against the weight of the evidence. Therefore the judgment must be set aside and a new trial granted but, in view of what the district court indicated by its action, we hold that this new trial should be on damages only. DePinto v. Provident Security Life Ins. Co., supra, 323 F.2d at 838; 28 U.S.C. 2106. Cf. Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967); Gebhard v. Royce Aluminum Corp., 296 F.2d 17 (1st Cir. 1961).
10
Judgment will be entered affirming that portion of the district court's judgment with respect to liability; vacating that portion of said judgment with respect to damages and remanding the case for a new trial on the issue of damages on the counterclaim; no costs on appeal.
1
This plan differed from the insurance previously carried by plaintiffs in that the amount of the premiums which, under the plan, were computed yearly with a final computation made within eighteen months after the expiration of the three year policy period, were based on various factors such as number of employees, number and type of fleet, amount of losses, etc. during the policy period. If, for example, the losses are low the premiums would be lower than those payable under standard rates. Thus, by curtailing their losses plaintiffs could reduce the amount of their premiums
2
Plaintiffs introduced in evidence two separate invoices dated December 14, 1962 and January 21, 1963, which is more than a year after the expiration of the policy period, sent to them by or on behalf of the defendant. Both were for $8,577.07. On the basis of these invoices, plus other documentary evidence, plaintiffs contend that the jury could have found that this figure represented the balance due. In addition, plaintiffs apparently challenged the amount of the losses under the plan by questioning defendant's destruction of certain of its records of these losses
3
Defendant's counsel objected to this portion of the charge, contending that in the event the jury were to find for defendant on the counterclaim 'they must necessarily return a verdict in the amount of $14,695.07, there being absolutely no evidence in the case to contradict any of the figures which have been submitted in evidence.' In overruling this objection, the court remarked that if defendant's contention is correct this 'could be corrected after any verdict.'
4
At the conclusion of all the evidence, defendant moved for a directed verdict on its counterclaim, which motion was denied
5
Plaintiffs moved to set aside the judgment and verdict and that judgment be entered for plaintiffs for $9,909.07-- the amount of plaintiffs' alleged overpayment of premiums. This motion was quite properly denied
6
Plaintiffs made several contentions with respect to the question of liability, including the effect of a numerical error in the premium formula which appeared in a company work sheet, but we find no merit in these contentions
7
In this case the Court, at page 501, 79 S.Ct. at page 952, admonished, as it had done earlier that '* * * Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.'
8
As to compromise verdicts, see Young v. International Paper Co., 322 F.2d 820 (4th Cir. 1963). The court's ruling necessarily implied a finding that this verdict was not a compromise. We have no reason to disagree
9
Where the damages are unliquidated ipso facto there is a legitimate dispute. Dimick v. Schiedt, supra
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7544
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ERNEST LELAND KEGLER, JR., a/k/a Boonie,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:04-cr-00012-1; 2:06-cv-00339)
Submitted: December 15, 2009 Decided: December 21, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Ernest Leland Kegler, Jr., Appellant Pro Se. Monica Lynn
Dillon, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Leland Kegler, Jr., seeks to appeal the
district court’s order accepting the recommendation of the
magistrate judge and denying relief on his 28 U.S.C.A. § 2255
(West Supp. 2009) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability
will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Kegler has
not made the requisite showing. Accordingly, we deny Kegler’s
motion to appoint counsel, deny a certificate of appealability,
and dismiss the appeal. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
2
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931 F.2d 50
Green (Jerrell)v.Sullivan (Louis, M.D.)
NO. 90-1777
United States Court of Appeals,Third Circuit.
MAR 15, 1991
Appeal From: E.D.Pa.,
Cahn, J.
1
AFFIRMED.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-2517
GULF STATES INSURANCE CO.,
Plaintiff-Counter
Defendant-Appellee,
versus
ALAMO CARRIAGE SERVICE, ET AL.,
Defendants,
ALAMO CARRIAGE SERVICE, INC.,
Defendant-Counter
Plaintiff-Appellant.
HERJE CARLSSON,
Plaintiff,
versus
ALAMO CARRIAGE SERVICE, INC.,
Defendant-Appellant,
versus
GULF STATES INSURANCE CO.,
Intervenor-Defendant
Appellee.
Appeal from the United States District Court
for the Southern District of Texas
ON PETITIONS FOR REHEARING
(May 12, 1994)
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
IT IS ORDERED that Alamo Carriage Service, Inc.'s petition for
rehearing is hereby DENIED.
IT IS ORDERED that Gulf States Insurance Co.'s petition for
rehearing is hereby GRANTED for the limited purpose of
supplementing our opinion to award sanctions and just damages under
Federal Rule of Appellate Procedure 38, 28 U.S.C. § 1912, and the
inherent discretionary authority of this court.
Alamo's appeal was dismissed as frivolous. Granting in part
Gulf States' motion for sanctions and damages, we award to Gulf
States, and order Alamo to pay, (1) $398 as double costs, (2) $620
as attorneys' fees and costs incurred by Gulf States in filing and
serving its petition for rehearing, and (3) $1,000 as reasonable
(but limited) attorneys' fees for sanctions.
2
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841 F.Supp. 58 (1993)
The GREENERY REHABILITATION GROUP, INC., Plaintiff,
v.
Barbara SABOL, as Commissioner of the New York City Human Resources Administration, the City of New York, and Greg Kaladjian, as Commissioner of the New York State Department of Social Services, Defendants.
Barbara SABOL, as Commissioner of the New York City Human Resources Administration, the City of New York, and Greg Kaladjian, as Commissioner of the New York State Department of Social Services, Third Party Plaintiffs,
v.
Donna E. SHALALA, as Secretary of the United States Department of Health and Human Services, Third Party Defendant.
No. 93-CV-309.
United States District Court, N.D. New York.
December 28, 1993.
*59 Bond, Schoeneck & King, Albany, NY (Hermes Fernandez, of counsel), for plaintiff.
NYC Corp. Counsel, New York City (Norma Cote, of counsel), for defendant and third party plaintiff Sabol and New York City.
New York State Attorney General, Albany, NY (Deirdre Roney, of counsel), for defendant and third party plaintiff Kaladjian.
United States Attorney's Office, Albany, NY (James C. Woods, of counsel), for third party defendant Shalala.
MEMORANDUM-DECISION AND ORDER
McAVOY, Chief Judge.
The third party defendant Donna E. Shalala moves to dismiss the third party complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Two theories have been advanced in support of the said motion. First, it is alleged that the third-party complaint is not ripe for judicial review. Second, it is alleged that the State and City defendants failed to exhaust administrative remedies. Furthermore, the third party defendant has also moved to stay discovery pending the outcome of the instant motion to dismiss. Oral arguments were heard on November 8, 1993.
I. BACKGROUND
According to the underlying complaint, the Greenery Rehabilitation Group, Inc., (hereinafter "the Greenery") is a leader in the field of traumatic brain injury treatment, and it operates facilities in several states. The Greenery entered into an agreement with the New York City Human Resources Administration (hereinafter "HRA"), an agreement which provided that the Greenery, with the approval of the New York State Department of Social Services (hereinafter "DSS"), would admit into its specialized brain injury programs New York City residents who are in need of such services and who are eligible for Medicaid. The Greenery admitted three New York City residents into its specialized brain injury programs who met the financial eligibility criteria, but for whom HRA has *60 refused to pay. These three patients are aliens.
Because of the high level of specialized care provided by the Greenery, the complaint states that the three named aliens could not be admitted without the prior approval of the New York State Department of Health (hereinafter "DOH"). According to the complaint, DOH did in fact approve the admission of the three aliens into the Greenery's specialized brain injury programs. The Greenery has since provided care to the three aliens, the cost of which, at the rates approved by the State of New York, amounts to $152,612.28, $213,916.10 and $181,604.76 respectively, through November 30, 1992. Plaintiff Greenery now seeks a declaration which states that the care and services provided to the three aliens have been for the treatment of emergency medical conditions, and thus, it is entitled to Medicaid reimbursement for the care provided.
The State and City defendants removed the instant case to this Court and filed a third party complaint against defendant Shalala as the Secretary of the United States Department of Health and Human Services (hereinafter "HHS"). The relief sought in the third party complaint is that if the Court determines that the cost of care for the three patients must be borne by the State Medicaid program, the Court should then determine that HHS, which is the Federal agency that administers the Medicaid program, should also bear part of that cost pursuant to Federal statutes which provide that Medicaid costs are to be divided among the Federal, State, and City governments. See 42 U.S.C. §§ 1396a, 1396b.
II. STATUTORY BACKGROUND
Title XIX of the Social Security Act (hereinafter "the Act") establishes a jointly funded, cooperative federal-state program known as Medicaid designed to enable each State to furnish medical assistance to eligible individuals. See Atkins v. Rivera, 477 U.S. 154, 156-57, 106 S.Ct. 2456, 2458, 91 L.Ed.2d 131 (1986). The program, enacted in 1965, was established "for the purpose of providing federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons." Schweiker v. Hogan, 457 U.S. 569, 571, 102 S.Ct. 2597, 2600, 73 L.Ed.2d 227 (1982) (quoting Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980)). If a state chooses to participate in the program, it must do so in accordance with the broad framework set by the federal government through the Act. If the state satisfies these requirements, it has wide discretion in administrating its program "including the responsibility for determining the eligibility of recipients, enlisting medical service providers, and paying those providers for services rendered." De Gregorio v. O'Bannon, 500 F.Supp. 541, 545 (E.D.Pa.1980).
New York State Regulations provide that, in general, aliens lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law who meet Medicaid requirements are eligible to receive the full range of Medicaid benefits. 18 N.Y.C.R.R. § 360-3.2(f). However, aliens who meet Medicaid program requirements but who are not lawfully admitted for permanent residence, or otherwise permanently residing in the United States under color of law, or who have not been granted lawful permanent resident status under the Federal Immigration Reform and Control Act of 1986, are not eligible to receive medical assistance unless the care and services are necessary for the treatment of an "emergency medical condition." 18 N.Y.C.R.R. § 360-3.2(f)(2). The New York statutory language is substantially the same as the language of the Act. See 42 U.S.C. § 1396b(v).
An "emergency medical condition" is defined as
a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions, or (C) serious dysfunction of any bodily organ or part. *61 42 U.S.C. § 1396b(v)(3). It is the interpretation of this section which is at the heart of the present litigation. The Greenery contends that the patients in question are within the statutory language. The State and City defendants contend otherwise and look to HHS for the correct interpretation of the section in question. HHS argues that it should not be part of this litigation at all.
The third party plaintiffs allege that HHS' refusal to provide guidance to DSS resulted in the instant litigation. Prior to commencing this litigation, the Greenery's attorney contacted the State agency concerning the Greenery's claim that Medicaid should pay for the cost of the chronic care it was providing to the three patients in question. After receiving the inquiry, DSS referred the issue to HHS, and requested that the Federal agency evaluate the circumstances of the patients in question and give guidance concerning whether Medicaid should pay for this care. The third party plaintiffs allege that HHS refused to give such guidance.
HHS now moves to dismiss the third party complaint against it on the ground that this court lacks subject matter jurisdiction either because the claim against it is not ripe, or because the State and City defendants have failed to exhaust administrative remedies. HHS also moves to stay discovery pending the outcome of the motion to dismiss.
III. ANALYSIS
Although HHS is silent as to the basis for its motion to dismiss, the court assumes that the motion is made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because HHS has indicated that the third party complaint should be dismissed "for lack of subject matter jurisdiction."
As the Supreme Court explained in Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986), "[f]ederal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Therefore, a court has an obligation to satisfy itself of its own jurisdiction prior to addressing the merits of the claims in question. See id.
A party may move to dismiss for lack of subject matter jurisdiction at any time during the course of an action. See John B. Hull, Inc. v. Waterbury Petroleum Products., Inc., 588 F.2d 24, 27 (2d Cir.1978). Once challenged, the burden of establishing subject matter jurisdiction rests on the party asserting the jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942). On such motions, the court must construe the complaint broadly and liberally, and in conformity with the principles set forth in Rule 8(f) of the Federal Rules of Civil Procedure.
When subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the movant and the pleader may use affidavits and other pleading materials to support and oppose such motions. Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006, 1011 (2d Cir.1986). The courts, when resolving claims that they lack subject matter jurisdiction, have acted in a fashion suggestive of Rule 56(f): "they have required that the party asserting jurisdiction be permitted discovery of facts demonstrating jurisdiction, at least where the facts are peculiarly within the knowledge of the opposing party." Kamen, 791 F.2d at 1011; see Investment Properties International, Ltd. v. IOS, Ltd., 459 F.2d 705, 707-08 (2d Cir.1972); Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir.1981). Since HHS has contended that this court lacks subject matter jurisdiction, it is incumbent for the State and City defendants to demonstrate the jurisdiction of this Court in order for them to defeat HHS' motion to dismiss.
HHS has advanced two theories for its contention that this Court lacks subject matter jurisdiction. First, HHS contends that the third party complaint presents neither a justiciable case or controversy "ripe" for judicial review, nor an allegation that any event occurred which would give rise to a "final agency action" by HHS creating a controversy between HHS and the State. Second, HHS contends that subject matter jurisdiction is lacking due to the State and City defendants' failure to exhaust administrative remedies established by the Medicaid provisions *62 of the Social Security Act for determining claims for federal financial participation (hereinafter "FFP").
The State and City defendants oppose HHS' instant motion to dismiss on two grounds. They allege that, at a minimum, discovery should be allowed so they may demonstrate subject matter jurisdiction of this Court. Additionally, they allege that even without discovery, they could establish subject matter jurisdiction because the case is ripe for judicial review and that they are not required to exhaust administrative remedies as set forth under the Act.
A. DISCOVERY
The State and City defendants assert that HHS' motion to dismiss should be denied because they are unable to thoroughly respond to such a motion until the discovery requests addressed to HHS have been answered.
Searching the record submitted to this Court for review, it is revealed that the State defendant, prior to filing the third party complaint, had attempted to obtain HHS' position on the interpretation of § 1396b(v). Such an attempt was made to no avail. Unable to obtain the information voluntarily, the State sought certain discovery consisting of three interrogatories, one document request and two notices of deposition from HHS, all seeking information on whether Greenery should be entitled to Medicaid payment under § 1396b(v). These discovery requests have yet to be answered.
As stated earlier, in a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, the party opposing the motion must be allowed discovery of facts demonstrating jurisdiction "at least where the facts are peculiarly within the knowledge of the opposing party." Kamen, 791 F.2d at 1011. The State defendant alleges that if and when HHS complies with the discovery requests, the State will be able to establish subject matter jurisdiction.
HHS' claim that the third party complaint is merely "hypothetical" may be cured if the discovery requests are fully complied with. At the present moment, the State is in no position to respond to the argument that it should pay the cost of medical care for the patients in question. Such knowledge is "particularly within the knowledge of" HHS. If the State can tap into that knowledge, it may well be able to refute the present Rule 12(b)(1) motion to dismiss since such knowledge will reveal HHS' position on the issue. Thus, the answer to the question of ripeness may hinge on the information gained through discovery: for example, if discovery reveals that the patients in question are indeed covered under the Act, then the assertion that the third party complaint is merely hypothetical is no longer a viable assertion. If such is the case, then HHS, under the Act, will be required to pay a portion of the medical bills, and thus, a concrete injury can be demonstrated and subject matter jurisdiction of this Court can be established.
HHS' own failure to affirmatively answer inquiries made as to the interpretation of the section is what is contributing to the argument that the present third party claim is purely hypothetical. The State, armed with the answers to its discovery requests, may be able to demonstrate subject matter jurisdiction. Thus, HHS cannot escape the grips of subject matter jurisdiction by simply failing to comply with discovery requests which are designed to establish exactly such jurisdiction.
This Court is mindful that such scenarios are speculative at this time because it is uncertain as to what discovery will eventually reveal. This is why the State and City defendants should be given a chance to take discovery to explore the issue further. Without such discovery, it would be wholly inappropriate for this Court to determine the issue of subject matter jurisdiction. Consequently, HHS' motion to dismiss must be denied at the present time.
B. EXHAUSTION OF ADMINISTRATIVE REMEDIES
HHS has advanced another theory for its motion to dismiss. It contends that the State and City defendants have failed to exhaust administrative remedies, and therefore, subject matter jurisdiction is lacking in the instant third party claim against HHS.
*63 According to HHS, administrative remedies will be exhausted and this Court will have subject matter jurisdiction if, and only if, the State takes the following steps: defend the present lawsuit brought by Greenery; if the State loses, then pay the judgment; request federal financial participation from HHS; obtain HHS' determination on the request; if request is denied, then appeal that denial to the agency's Departmental Appeals Board; if the appeal is unsuccessful, then the State may initiate a new proceeding in the district court.
The doctrine of exhaustion of administrative remedies provides that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). Since the present issue of whether the State can implead HHS on an unpaid Medicaid claim against the State without exhausting its administrative remedies is one of first impression, it is vital that we decide on the applicability of the doctrine with an understanding of the purpose behind such a doctrine.
The most common application of the exhaustion doctrine is in cases where the relevant statute provides that certain administrative procedures shall be exclusive. Id. The doctrine arises from compelling policy considerations of efficiency and agency autonomy. See, e.g., Health Equity Resources, Inc. v. Sullivan, 927 F.2d 963 (7th Cir.1991); Wayside Farms, Inc. v. United States Dept. of Health and Human Services, 663 F.Supp. 945 (N.D.Ohio 1987). The Supreme Court in McKart stated that the "primary purpose [of the doctrine] is, of course, the avoidance of premature interruption of the administrative process." McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969).[1] Since the agency is created for the purpose of applying a statute in the first instance, "it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions ... frequently require expertise, the agency should be given the first chance to ... apply that expertise." Id. at 193-94, 89 S.Ct. at 1662-63. The McKart Court further stated that the doctrine gives the agency an opportunity to establish a final decision without premature interruption so that it may discover and correct its own errors. Id. at 194, 89 S.Ct. at 1663. The complaining party may be successful in the administrative process, and as a result, the courts may never have to intervene. Id. at 194-95, 89 S.Ct. at 1663. Thus, the exhaustion requirement serves to reduce the possibility that "frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures." Id. at 195, 89 S.Ct. at 1663.
With these considerations in mind, we now look to the facts of our case. It is apparent that the circumstances of the instant case do not warrant the application of the exhaustion doctrine for several reasons.
The primary concern which the doctrine seeks to redress is unnecessary judicial intervention. In our instant case, judicial intervention has already occurred. The suit brought by Greenery against the State and City defendants inevitably forces this Court to interpret sections of the Social Security Act dealing with Medicaid. This determination must be made with or without HHS. Judicial intervention is inescapable, and thus, the concern of unnecessary judicial intervention is not present. Moreover, the doctrine's concern of allowing the agency to develop the facts prior to judicial review and giving the agency a chance to bring its expertise to bear on the issue is also not present in the case at bar. In fact, such concerns weigh heavily in favor of not applying the doctrine to the instant motion brought by HHS. As stated earlier, the Court will inevitably be forced to interpret sections of the Act with or without *64 the help of HHS. By allowing HHS to be a third party defendant, HHS' expertise can be utilized to interpret the very sections which HHS was given authority to enforce.
Additionally, a mandate that the State exhaust all administrative remedies prior to bringing suit against HHS would foster judicial redundancy and inconsistency. For example, if HHS is not a party to the instant action, this Court will be forced to determine whether the patients in question are aliens entitled to Medicaid benefits under 42 U.S.C. § 1396(v). If it is determined that they are within the section, then the State will be forced to pay for their medical expenses. The State and City will then have to request for FFP from HHS. If HHS determines that the patients were not within the section of the Act, then HHS will be able to flout this Court's decision and deny FFP to the State and City defendants. Thereafter, the State and City Defendants would be forced to initiate a new proceeding in federal court on the exact same issues fronting this Court today. Such result would smack of judicial inefficiency and is wholly contrary to the purpose of the exhaustion doctrine. It is abundantly apparent that the concerns of the exhaustion doctrine is better served by allowing the instant third party complaint to stand.
Consequently, it is this Court's determination that exhaustion of administrative remedies is not a prerequisite for the State and City defendants to bring a third party complaint against HHS.[2]
IV. CONCLUSION
For the stated reasons, HHS' motion to dismiss pursuant to Rule 12(b)(1) is dismissed at this time to allow the State and City defendants to obtain discovery. Furthermore, HHS is directed to respond to outstanding discovery requests within 30 days.[3] The motion to stay discovery pending the outcome of the present motion to dismiss has been mooted since the motion to dismiss has now been determined.
IT IS SO ORDERED.
NOTES
[1] HHS heavily relies on this case to support its contention that the State and City defendants must exhaust administrative remedies prior to bringing suit against HHS. A closer examination of the case, however, reveals that the case actually supports a finding inapposite to HHS' position. It supports a finding that exhaustion of administrative remedies is not a prerequisite to bringing a suit against HHS.
[2] There are no cases paralleling the case at bar. There are, however, several cases where HHS was a third party defendant in Medicaid related cases. See, e.g., Lamore v. Ives, 977 F.2d 713 (1st Cir.1992); Whitehouse v. Ives, 736 F.Supp. 368 (D.Me.1990); Granito v. Sunn, 594 F.Supp. 410 (D.Hawaii 1984). In these cases, the question of exhaustion of administrative remedies was a non-issue. HHS was a third party defendant in these lawsuits, but no one questioned whether the State had to exhaust administrative remedies prior to bringing its third party complaint against HHS.
[3] All of the discovery requests were made close to five months ago.
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09-5110-cv
Guzman v. United States of America
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of New
4 York, on the 1 st day of October, two thousand and ten.
5
6 PRESENT: JON O. NEWMAN,
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 ISABELLE GUZMAN,
14
15 Plaintiff-Appellant,
16
17 -v.- 09-5110-cv
18
19 WACKENHUT CORPORATION,
20
21 Defendant-Appellee,
22
23 UNITED STATES OF AMERICA, L-3 COMMUNICATIONS, SECURITY
24 DETECTION SYSTEMS CORPORATION,
25
26 Defendants. *
27
28
*
The Clerk of the Court is directed to amend the
official caption to conform with the caption above.
1 FOR APPELLANT: GREGORY R. PRESTON, Preston, Wilkins,
2 Martin & Rodriguez, PLLC, New York, NY.
3
4 FOR APPELLEE: BRENDAN T. FITZPATRICK, Ahmuty, Demers &
5 McManus, Albertson, NY.
6
7 Appeal from the United States District Court for the
8 Southern District of New York (Sweet, J.)
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be VACATED
12 and REMANDED.
13 Plaintiff-Appellant, Isabelle Guzman appeals from a
14 judgment of the United States District Court for the
15 Southern District of New York (Sweet, J.), which granted
16 summary judgment in favor of Defendant-Appellee Wackenhut
17 Corporation. We assume the parties’ familiarity with the
18 underlying facts, the procedural history, and the issues
19 presented for review. 1
20 Under New York Law, a plaintiff seeking recovery for
21 personal injuries under a negligence theory must show duty,
22 breach, actual and proximate causation, and damages.
23 Williams v. Utica College of Syracuse Univ., 453 F.3d 112,
1
Plaintiff, Guzman, sued the United States of America
as owner and operator of the Statue of Liberty and Liberty
Island thus invoking the district court’s jurisdiction. 28
U.S.C § 1346(b). Claims against other defendants, including
Wackenhut Corporation, were included pursuant to the
district court’s supplemental jurisdiction. 28 U.S.C §
1367. The United States is no longer party to this action.
Plaintiff’s remaining negligence action against Wackenhut is
a matter of New York State law. We review de novo a grant
of summary judgment. Huminski v. Corsones, 396 F.3d 53, 69
(2d Cir. 2005).
1
1 116 (2d Cir. 2006). An existence of a duty of care is
2 usually a question of law for the court. Palka v.
3 Servicemaster Mgmt. Serv. Corp., 83 N.Y.2d 579, 585 (1994).
4 It is for the fact-finder to determine whether the duty was
5 breached and, if so, whether the breach was the proximate
6 cause of plaintiff's injury. Id.
7 Wackenhut is an independent contractor, hired by the
8 National Park Service (“NPS”) to provide security services
9 at the Statue of Liberty. As the district court correctly
10 noted, a contractor generally does not owe an independent
11 tort duty of care to a non-contracting third party. Espinal
12 v. Melville Snow Contractors Inc., 98 N.Y.2d 136, 138—139
13 (2002); see also Church v. Callanan Indus., Inc., 99 N.Y.2d
14 104, 111 (2002).
15 However, there are three circumstances in which a duty
16 of care to non-contracting third parties may arise out of a
17 contractual obligation or the performance thereof: “(1)
18 where the contracting party, in failing to exercise
19 reasonable care in the performance of his duties, launche[s]
20 a force or instrument of harm,” Espinal, 98 N.Y.2d at 140,
21 or, stated differently, “negligently creates or exacerbates
22 a dangerous condition;” id. at 141—42; “(2) where the
23 plaintiff detrimentally relies on the continued performance
24 of the contracting party's duties; and (3) where the
2
1 contracting party has entirely displaced the other party's
2 duty to maintain the premises safely,” id. at 140 (internal
3 quotations and citations omitted); see also Church, 99
4 N.Y.2d at 111 (describing the first Espinal exception as
5 applying to circumstances “where the promisor, while engaged
6 affirmatively in discharging a contractual obligation,
7 creates an unreasonable risk of harm to others, or increases
8 that risk”).
9 We conclude that Guzman’s claim against Wackenhut for
10 the negligent operation and supervision of the x-ray machine
11 is viable under the first Espinal exception. Wackenhut was
12 employed, among other things, to operate the x-ray machines
13 at the Statue of Liberty. The protocol that NPS developed
14 to clean the machines required Fedcap employees, like
15 Guzman, to hold a rag on the x-ray machine’s conveyor belt
16 while the belt was moving. To facilitate this process,
17 Wackenhut employees, at the request of Fedcap employees,
18 would activate the conveyor belt and turn it off after
19 cleaning was completed. Guzman was injured while executing
20 this protocol. The Wackenhut employee started the conveyor
21 belt, running it in Guzman’s direction, and then left the
22 controls to retrieve a log book to mark down that the
23 machine was cleaned. At that moment, Guzman’s hand became
3
1 caught between the conveyor belt and the first metal roller.
2 While executing the cleaning protocol in cooperation
3 with Guzman, the Wackenhut employee controlled, and was
4 capable of launching, a potential instrument of harm.
5 Espinal, 98 N.Y.2d at 140. As the one responsible for
6 starting and stopping the machine while Guzman cleaned the
7 conveyor belt, the Wackenhut employee was in a position to
8 create or increase an unreasonable risk of harm to Guzman.
9 See Church, 99 N.Y.2d at 111. Under these circumstances,
10 Wackenhut owed a duty to Guzman to operate the conveyor belt
11 with reasonable care. Therefore, the district court’s grant
12 of summary judgment on the ground that Wackenhut owed Guzman
13 no duty of care was incorrect. 2
14 Moreover, we disagree with the district court to the
15 extent it suggested that there exist alternative grounds for
16 granting summary judgment, namely that there are no facts to
17 suggest that Wackenhut breached its duty of care or that
18 such breach caused Guzman’s injuries. Under New York law,
19 breach and proximate cause are questions for the finder of
20 fact. See Palka, 83 N.Y.2d at 585. Guzman’s expert raises
2
Wackenhut corporation is liable for any negligence of
its employee arising from acts committed within the scope of
the employee's employment. Brown v. Poritzky, 30 N.Y.2d
289, 292 (1972). There is no dispute that the Wackenhut
employee was acting within the scope of his employment.
4
1 issues of material fact as to whether, by turning the belt
2 on in her direction and/or by stepping away from the
3 controls while Guzman cleaned the belt, the Wackenhut
4 employee created an unreasonable risk of harm, thereby
5 breaching its duty of care, and whether those alleged
6 breaches caused Guzman’s injuries. The existence of these
7 issues of material fact render summary judgment improper.
8 See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.
9 2000). Accordingly, we remand to the district court for
10 further proceedings consistent with this Order.
11 For the foregoing reasons, the judgment of the district
12 court is hereby VACATED and REMANDED.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
5
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2019 IL App (1st) 181126
FIRST DISTRICT
SIXTH DIVISION
May 10, 2019
No. 1-18-1126
ADVANTAGE MARKETING GROUP, INC., ) Appeal from the Circuit
) Court of Cook County.
Plaintiff-Appellant, )
)
v. ) No. 17 CH 05559
)
JAMES P. KEANE, SR., ) Honorable
) Neil H. Cohen,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Cunningham and Harris concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Advantage Marketing Group, Inc. (AMG) filed a two-count amended complaint
seeking relief against defendant James P. Keane, Sr., for breach of fiduciary duty and tortious
interference with prospective economic advantage. Plaintiff alleged that Keane failed to disclose
a corporate opportunity to purchase a competing business and exploited a client referral to his
advantage. Keane moved to dismiss the amended complaint pursuant to section 2-615 (735 ILCS
5/2-615 (West 2016)) of the Illinois Code of Civil Procedure (Code). Keane argued that the
corporate opportunity doctrine did not apply to him because, at the time of the alleged conduct,
he served as a mere employee of AMG and not as an officer or director of the company. Keane
also contended that even if the corporate opportunity doctrine applied, he disclosed the corporate
opportunity to AMG consistent with the obligations of the doctrine. Finally, Keane argued that
AMG failed to properly plead the allegations for tortious interference with a prospective
1-18-1126
economic advantage. The circuit court granted Keane’s motion to dismiss. We find that AMG
properly stated claims for breach of fiduciary duty and tortious interference with a prospective
economic advantage. We reverse and remand this cause for further proceedings.
¶2 BACKGROUND
¶3 AMG filed its amended complaint on January 23, 2018. The amended complaint alleged
that AMG, an Illinois corporation, is a marketing services company that provides letter-shop and
fulfillment services for its clients. AMG creates and administers print and mailing programs for
its clients from its facility in Elk Grove Village. Keane had formerly served as a director, officer,
and employee of AMG. He was an original founder of AMG and maintains a 35% shareholding
stake in the company.
¶4 The amended complaint alleges that for several years prior to his resignation, Keane
served as a “principal employee of AMG with wide-ranging responsibilities equivalent to those
of an officer.” For example, Keane consistently held himself out to third parties as an AMG
owner when developing customer relationships. Keane had substantial responsibility for AMG
employment decisions, including hiring and termination of staff. He had access to all AMG
books and records, including client lists, employee records, tax documents, vendor information,
and billing data. Keane received a bonus equal to that of Patty Hermann, AMG’s director and
majority shareholder. He was responsible for developing and maintaining AMG’s financial
records and had full access to the company’s accounting system. Throughout his tenure with
AMG, Keane’s job duties included exploring strategic acquisitions, including the purchase of
competing letter-shop businesses, their equipment, and customer lists. The amended complaint
detailed instances when Keane participated in the negotiation and acquisition of related
2
1-18-1126
businesses, stating that he was “a key point of contact throughout 2013 regarding AMG’s
opportunity to move or acquire property to conduct business operations.”
¶5 On July 10, 2013, Keane’s son, James Jr., also an AMG employee, sent an email to
Keane and Hermann with the subject line, “Mailhouse – Rebranded Website – Is that the same
ownership group as before?” The body of the e-mail included a website link for The Mail
House, a competing business located a few blocks away from AMG’s office. The amended
complaint alleged that during the summer and fall of 2013, Keane and Hermann discussed The
Mail House and whether it was a viable acquisition target. The amended complaint stated,
“Though Hermann is unaware of when Keane ultimately began his own discussions about
buying The Mail House, the business was one that AMG had explored acquiring.”
¶6 The amended complaint alleged that at some point before Keane’s departure from AMG
on September 4, 2015, he started to withhold information for himself and communicated outside
AMG channels using his personal e-mail account while failing to forward information that would
have benefitted AMG. On March 10, 2014, Keane transferred his assigned corporate cell phone
number to his own personal account, outside the view of AMG. The amended complaint alleged
that this action allowed him to retain and use the same phone number following his resignation
from AMG and further prevented AMG from controlling communications that he had during his
employment with AMG.
¶7 The amended complaint also alleged that Keane began preparations to acquire The Mail
House before his September 4, 2015 resignation. For instance, on August 3, 2015, he registered a
new internet domain name, “mailhousedm.com,” along with seven other domain names that each
contained the word, “mailhouse.” On August 12, 2015, he formed Keane, Inc. d/b/a The Mail
House. The alleged complaint stated that “Upon information and belief, Keane formed this
3
1-18-1126
corporation to acquire The Mail House,” and that “[a]t all times, The Mail House has conducted
letter-shop and fulfillment services similar to, and competitive with, those offered by AMG.”
¶8 During the week before his resignation, Keane failed to disclose and tender to AMG a
referral he received from another company, JD Graphics. James, Jr., forwarded the referral from
JD Graphics to Keane’s personal e-mail account. The amended complaint alleged that Keane
exploited this referral after he began operating The Mail House. In addition, Keane approached
and told clients and vendors of AMG that AMG was in danger of closing its business due to
financial issues.
¶9 On September 5, 2015, the day after Keane resigned, AMG discovered its security
cameras were turned off and that its security tapes were missing. On September 9, 2015, Keane
allegedly disabled AMG’s website. He refused to transfer AMG’s website materials back to the
company for more than one week. Out of business necessity, AMG established an entirely new
website. The day before Keane transferred the website content back to AMG, James, Jr.
registered a new website domain, “amgltd.co,” which differed by only one letter from AMG’s
domain name. The amended complaint alleged that Keane either was aware of or actively
encouraged James, Jr. to disable AMG’s website and then register a substantially similar domain
name. During Keane’s employment with AMG, James, Jr. reported directly to Keane. James, Jr.
tendered his resignation to AMG on September 7, 2015.
¶ 10 The amended complaint alleged that Keane solicited James, Jr. to leave AMG and join
him at The Mail House. Keane did not seek AMG’s consent before soliciting James, Jr. to leave
AMG and join a direct competitor. Further, Keane never sought AMG’s consent to appropriate
the JD Graphics referral or to interfere with AMG’s website operation. Additionally, before his
resignation, James, Jr. had obtained samples of confidential client material that belonged to
4
1-18-1126
AMG. Keane kept the samples for himself, resigned, and then returned the client materials after
AMG’s then-counsel demanded their return. Since his acquisition of The Mail House, Keane has
continued to perform lettershop and print work for this particular client.
¶ 11 The amended complaint alleged that “At all times before Keane’s resignation, The Mail
House was known to AMG as a competitor. The Mail House provided comparable products and
services to the same type of clientele that AMC had serviced and cultivated. Accordingly, The
Mail House was, and remains, in the same line of business as AMG.” Further, “[a]t no point in
2015 did Keane disclose to Hermann or AMG that he sought to acquire The Mail House. Nor did
Keane ever advise Hermann or AMG that the prior owners of The Mail House were interested in
selling their business to a third party.” Finally, the amended complaint alleged that “[h]ad Keane
brought The Mail House acquisition opportunity to AMG, AMG would have been interested in
pursuing it.”
¶ 12 Count I of the amended complaint alleged breach of fiduciary duty, stating that “[a]s a
key AMG employee with responsibility equivalent to those of an officer, Keane owed a fiduciary
duty of loyalty, fidelity, rectitude, candor, and good faith.” This fiduciary duty prohibited Keane
“from actively exploiting his position within AMG for his own personal benefit and from
hindering the ability of AMG to continue the business for which it was developed.” The
amended complaint alleged that Keane owed AMG a fiduciary duty to disclose and tender all
corporate opportunities, including all material facts to AMG. Keane allegedly breached this duty
by secretly negotiating and purchasing a directly competing business, The Mail House, while
still employed by AMG as “a key AMG employee.” Keane failed to disclose and tender a
corporate opportunity – the potential acquisition of The Mail House – to AMG for its full and
complete consideration. In addition, Keane allegedly breached his fiduciary duty to AMG by: (1)
5
1-18-1126
soliciting James, Jr. to leave AMG and join The Mail House; (2) misappropriating referrals for
existing lettershop work sent to AMG; (3) misappropriating client samples; and (4) disabling or
otherwise interfering with AMG’s website. AMG sought the imposition of a constructive trust on
The Mail House business to be held for the benefit of AMG, and other relief.
¶ 13 Count II of the amended complaint alleged that Keane tortiously interfered with AMG’s
prospective economic advantage “[b]y acquiring The Mail House for himself and by
appropriating the client referral,” which caused “a termination of AMG’s expectation of entering
into, or continuing, valid business relations.”
¶ 14 On February 20, 2018, Keane moved to dismiss the amended complaint pursuant to
section 2-615 of the Code. Keane argued that the corporate opportunity doctrine has no
application to him as a former employee and applies only to officers and directors. Keane
contended that even if the corporate opportunity applies in this case, he disclosed the corporate
opportunity to AMG consistent with the obligations of the corporate opportunity doctrine. Keane
and Hermann had discussed whether The Mail House was a viable acquisition, as pled in the
amended complaint. Finally, Keane argued that the amended complaint failed to plead
allegations addressing the elements necessary to establish a claim for tortious interference of a
prospective economic advantage.
¶ 15 On May 1, 2018, the circuit court granted Keane’s motion to dismiss. The court found
that AMG failed to allege any facts establishing that Keane was an officer of AMG at the time of
any of the events set forth in the amended complaint. The court stated that being a “key
employee” is not the equivalent of being a corporate officer. The court also held that Keane was
entitled to form a competing business and purchase The Mail House while still employed by
AMG so long as he did not begin to compete against AMG. The court stated that the amended
6
1-18-1126
complaint failed to allege specific facts showing that Keane actively competed with AMG while
still employed by AMG. Finally, the court found that AMG failed to allege any facts showing
that it had a valid business relationship with JD Graphics or a valid expectancy for such a
relationship and, therefore, did not state a claim for tortious interference with a prospective
economic advantage. This appeal followed.
¶ 16 ANALYSIS
¶ 17 On appeal, AMG argues that it stated a proper claim against Keane for breach of
fiduciary duty. Essentially, AMG contends that Keane owed a fiduciary duty to disclose and
tender The Mail House acquisition opportunity to AMG before he resigned. AMG argues that the
corporate opportunity doctrine’s parameters depend on the scope of the fiduciary’s agency
relationship rather than the employee’s title. AMG contends that Keane’s “preparing to compete”
defense does not apply in cases alleging a usurpation of corporate opportunity. Finally, AMG
argues that the factual allegations arising from Keane’s appropriation of The Mail House
opportunity place it within a cognizable tortious interference claim. We address these issues in
turn.
¶ 18 Standard of Review
¶ 19 “A section 2-615 motion to dismiss tests the legal sufficiency of a complaint.” Hadley v.
Doe, 2015 IL 118000, ¶ 29. The question presented by a section 2-615 motion to dismiss is
whether sufficient facts have been pled in the complaint which, if proved, would entitle the
plaintiff to relief. Bogenberger v. Pi Kappa Alpha Corp., 2018 IL 120951, ¶ 23. We construe all
well-pleaded facts in the light most favorable to the plaintiff and take those facts and all
reasonable inferences which flow from those facts as true. Napleton v. Village of Hinsdale, 229
Ill. 2d 296, 320 (2008). A complaint can be dismissed under section 2-615 only when it clearly
7
1-18-1126
appears that no set of facts could be proved under the pleadings that would entitle the plaintiff to
relief and where the circuit court can determine the relative rights of the parties solely from the
pleadings. Tuite v. Corbitt, 224 Ill. 2d 490, 510 (2006). We review dismissal pursuant to section
2–615 de novo. Napleton, 229 Ill. 2d at 305.
¶ 20 Claim for Breach of Fiduciary Duty
¶ 21 In count I of the amended complaint, AMG claimed that Keane breached his fiduciary
duty when he misappropriated a corporate opportunity to acquire The Mail House. Keane argues
that he was not an officer or director subject to the corporate opportunity doctrine. Keane
contends that he was permitted under Illinois law to take the preparatory steps of outfitting a
competing business. He also argues that he disclosed the potential acquisition of The Mail House
and that AMG failed to allege in its amended complaint that it took any further action with
regard to The Mail House.
¶ 22 A claim for breach of fiduciary duty must allege: “(1) that a fiduciary duty exists; (2) that
the fiduciary duty was breached; and (3) that such breach proximately caused the injury of which
the party complains.” Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 69. A duty
of loyalty to the employer extends to officers, directors, and employees. Id. (citing Mullaney,
Wells & Co. v. Savage, 78 Ill. 2d 534, 546-47 (1980)). “Accordingly, a fiduciary cannot act
inconsistently with his agency or trust and cannot solicit his employer’s customers for himself.”
Id.
¶ 23 The corporate opportunity doctrine prohibits a corporation’s fiduciary from
misappropriating corporate property and from taking advantage of business opportunities
belonging to the corporation. Lindenhurst Drugs, Inc. v. Becker, 154 Ill. App. 3d 61, 67 (1987).
“A corporate opportunity exists when a proposed activity is reasonably incident to the
8
1-18-1126
corporation’s present or prospective business and is one in which the corporation has the
capacity to engage.” Id. Our supreme court has held that it is a breach of fiduciary obligation for
a person to seize for his own advantage a business opportunity which rightfully belongs to the
corporation by which he is employed. Mullaney, 78 Ill. 2d at 545-46 (citing numerous Illinois
Supreme Court cases holding similarly).
¶ 24 In contrast, “corporate competition” occurs when the corporate employer by definition
already has an existing business relationship with a third party or is actively seeking to establish
such a relationship, only to have its efforts thwarted by its own employees seeking the same third
party relationship for themselves. See William L. Schaller, Corporate Opportunities and
Corporate Competition in Illinois: A Comparative Discussion of Fiduciary Duties, 46 J.
Marshall L. Rev. 1, 26 (2012). For example, in Everen Securities, Inc. v. A.G. Edwards & Sons,
Inc., 308 Ill. App. 3d 268 (1999), the defendant Sidney Carlson, while still employed by the
plaintiff Everen Securities (1) created a customer data base from which the defendant A.G.
Edwards could generate letters notifying Carlson’s customers of his change in employment to
A.G. Edwards; (2) made photocopies of documents containing customer account information;
and (3) extended offers of employment on behalf of A.G. Edwards to Everen employees. These
actions supported a finding that Carlson breached his fiduciary duty to Everen. Id. at 276; see
also ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc., 90 Ill. App. 3d 817,
826-28 (1980) (employees breached fiduciary duty by actively promoting interests of rival
business and diverting personnel and customers to employer’s competitors).
¶ 25 In corporate competition cases, an employee or agent may legitimately take certain
preparatory steps during the agency relationship so long as they do not directly conflict with the
employer or principal. “As a general rule, employees may plan, form, and outfit a competing
9
1-18-1126
corporation while still working for the employer, but they may not commence competition.”
Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 736 (2009)). “In addition, absent fraud, a
contractual restrictive covenant, or the improper taking of a customer list, former employees may
compete with their former employers and solicit former customers provided there was no
demonstrable business activity before termination of their employment.” Id. Although employees
“may go so far as to form a rival corporation and outfit it for business while still employed by the
prospective competitor, an employee is held accountable for breaching his fiduciary duty to his
employer when he goes beyond such preliminary competitive activities and commences business
as a rival concern while still employed.” E.J. McKernan Co. v. Gregory, 252 Ill. App. 3d 514,
530 (1993).
¶ 26 Here, taking AMG’s allegations as true, the amended complaint alleged that Keane “was
a principal employee of AMG with wide-ranging responsibilities to those of an officer,” and that
he misappropriated for himself a corporate opportunity, the acquisition of The Mail House, a
company that competed directly with AMG. In short, this case involves an alleged usurpation of
a corporate opportunity to obtain a competing business so that the defendant could enter into
direct competition with his former employer. This case does not only involve corporate
competition, as Keane would prefer to characterize it. Here, the allegations of corporate
opportunity and corporate competition are intertwined and, thus, we examine both accordingly in
the context of the breach of fiduciary duty claim.
¶ 27 We first consider whether the amended complaint properly pled that a fiduciary duty
between Keane and AMG existed at the time in question. Generally, “[e]very person who accepts
the responsibility of acting on behalf of another is a fiduciary.” Graham v. Mimms, 111 Ill. App.
3d 751, 760 (1982). “An agency is ‘a consensual fiduciary relationship between two legal
10
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entities’ whereby ‘the principal has the right to control the conduct of the agent, and the agent
has the power to effect [sic] the legal relations of the principal.’ ” State Security Insurance Co. v.
Frank B. Hall & Co., 258 Ill. App. 3d 588, 595 (1994) (quoting Gunther v. Commonwealth
Edison Co., 126 Ill. App. 3d 595, 598 (1984)); see also Restatement (Third) of Agency § 1.01
(2006) (defining agency as “the fiduciary relationship that arises when one person (a ‘principal’)
manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf
and be subject to the principal’s control, and the agent manifests assent or otherwise consents so
to act”). “An employee need not be an officer or a director to be accountable since an agent must
act solely for the principal in all matters related to the agency and refrain from competing with
the principal.” E.J. McKernan, 252 Ill. App. 3d at 530. Indeed, “[w]hen a principal-agent
relationship is present, a fiduciary relationship arises as a matter of law.” Stathis v. Geldermann,
Inc., 295 Ill. App. 3d 844, 859 (1998) (citing State Security Insurance, 258 Ill. App. 3d at 595).
The fiduciary owes a duty of loyalty to the entity for whom the fiduciary is acting. Graham, 111
Ill. App. 3d at 761 (citing Dick v. Albers, 243 Ill. 231, 236 (1909)). “Among other factors, the
precise nature and intensity of the duty of loyalty depends upon the degree of independent
authority exercised by the fiduciary [citation] and the reasonable expectations of the parties at the
beginning of the relationship.” Id.
¶ 28 In this case, AMG pled that Keane served as a key employee upon his resignation. Keane
allegedly “held himself out to third parties as an AMG owner when developing customer
relationships.” He “had substantial responsibility for AMG employment decisions, including
hiring and termination of staff.” AMG alleged that Keane had access to all AMG books and
records, including client lists, employee records, tax documents, and vendor information. He
received a compensation bonus equivalent to the director and majority shareholder of the
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company. He was responsible for developing and maintaining AMG’s financial records. In
addition, Keane was expected to research and develop strategic acquisitions, including the
purchase of competing lettershop businesses, their equipment, and customer lists. Finally, AMG
alleged that at the time of his resignation, Keane owned a 35% shareholder stake in the company.
¶ 29 Even if Keane is not considered to be an officer or director of AMG, his considerable
duties and responsibilities as an employee, his compensation, and his status as a minority
shareholder put him in the position to act solely for the benefit of the principal in all matters
connected with his agency. In Anest v. Audino, 332 Ill. App. 3d 468, 476-77 (2002), the court
found that the counterdefendant Bill Anest was more than a minority shareholder in a close
corporation – he had management responsibilities in the company. “His role in the entity was,
like that of his fellow members, akin to that of an officer or director in a corporation.” Id. at 477.
The Anest court held that it was against the manifest weight of the evidence for the circuit court
to conclude that Anest did not owe any fiduciary duty to the counterplaintiff David Audino. Id.
Simply put, when “employees continue to receive substantial salaries and continue to take part in
top-level management meetings, negotiations and strategy discussions, their employer is entitled
to their undivided loyalty and their utmost good faith.” Regal-Beloit Corp. v. Drecoll, 955 F.
Supp. 849, 864 (N.D. Ill. 1996) (applying Illinois and Wisconsin law). Following Anest and
Regal-Beloit, we conclude that the amended complaint properly pled the existence of a fiduciary
duty between AMG and Keane. Anest, 332 Ill. App. 3d at 477; Regal-Beloit, 955 F. Supp. at 864.
¶ 30 However, Keane argues that the corporate opportunity doctrine as pled in the amended
complaint applies to officers and directors, but not employees and, therefore, AMG did not
properly plead a breach of fiduciary duty. Our supreme court’s holding in Mullaney belies that
contention.
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¶ 31 In Mullaney, the supreme court specifically held that even though the defendant, Barnard
Savage, was just an employee, and not an officer or director, he still had a duty under standard
agency doctrine “to act solely for the benefit of the plaintiff [employer] in all matters connected
with his agency and to refrain from competing with the plaintiff.” 78 Ill. 2d at 546. The plaintiff
employer, Mullaney, Wells and Company (Mullaney), was engaged in underwriting corporate
securities that included the occasional creation of investments on its own account (“two-party
transactions”) and acting, for a fee, as a broker between businesses in need of funds and potential
investors (“three-party transactions”). Id. at 547. While employed by Mullaney, Savage learned
of the undervalued stock of Blossman Hydratane Gas and contacted Blossman about procuring
financing for the company – an example of a three-party transaction. When the proposed
financing failed to materialize, Savage and S.C. Williams, a person with whom Savage had
invested in other deals, offered to buy Blossman’s stock in the gas company – a two-party
transaction. After Savage and Williams bought the Blossman shares, Mullaney sued them for an
accounting and to impose a constructive trust on the proceeds stemming from the Blossman
transaction. The appellate court found that Mullaney had told Savage that he could engage in
transactions on his own account to supplement his income and concluded that Mullaney rarely
purchased stock for its own benefit. Thus, Mullaney did not expect to be provided by its
employees with stock purchase opportunities.
¶ 32 The supreme court disagreed, holding that Savage, while still remaining an employee of
Mullaney, could not “ ‘begin to act on his own’ ” because the ultimate transaction differed from
those in which the plaintiff normally engaged. Id. at 549.
“To accord Savage the option of substituting himself as the investing party
without the consent of the plaintiff is to place himself in a position where his
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personal interests will conflict with his duties to the principal. The situation is in
principle indistinguishable from that of a real estate broker engaged to sell
property owned by his principal who, without full disclosure of all material facts,
acquires an interest in the property himself.” Id.
¶ 33 More recently, the supreme court reaffirmed the holding that employees, as well as
officers and directors, owe a duty of loyalty to their employer. See Lawlor, 2012 IL 112530, ¶ 69
(citing Mullaney, 78 Ill. 2d at 546-47 and E.J. McKernan Co., 252 Ill. App. 3d at 530).
Accordingly, we reject Keane’s argument that the corporate opportunity doctrine does not apply
to employees of a company. The amended complaint adequately pled that Keane, both as a mere
“employee” and, more importantly, in his duties similar to that of an officer or director, owed a
fiduciary duty to AMG. Mullaney, 78 Ill. 2d at 546-47; Anest, 332 Ill. App. 3d at 477.
¶ 34 Next, we determine whether AMG properly pled a breach of fiduciary duty under the
corporate opportunity doctrine. First, we consider whether AMG sufficiently pled the existence
of a corporate opportunity, because if no opportunity existed, the fiduciary cannot commit a
breach of duty in availing himself of the opportunity. Then the question becomes whether AMG
sufficiently pled Keane’s misappropriation of the alleged opportunity.
¶ 35 “A corporate opportunity exists when a proposed activity is reasonably incident to the
corporation’s present or prospective business and is one in which the corporation has the
capacity to engage.” Dremco, Inc. v. South Chapel Hill Gardens, Inc., 274 Ill. App. 3d 534, 538
(1995). In determining whether the fiduciary may take advantage of a business opportunity in
which a corporation is interested, “courts consider whether the corporation had an interest, actual
or in expectancy, in the opportunity and whether the acquisition thereof by the [fiduciary] would
14
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hinder or defeat plans and purposes of the corporation in carrying on or developing the legitimate
business for which it was created.” Id. Significantly,
“[w]hen a corporation’s fiduciary wants to take advantage of a business
opportunity which is in the corporation’s line of business, the fiduciary must first
disclose and tender the opportunity to the corporation, notwithstanding the fact
that the fiduciary may have believed that the corporation was legally or
financially incapable of taking advantage of the opportunity.” Id. at 542.
Our supreme court has stated:
“[I]f the doctrine of business opportunity is to possess any vitality, the corporation
or association must be given the opportunity to decide, upon full disclosure of the
pertinent facts, whether it wishes to enter into a business that is reasonably
incident to its present or prospective operations. If directors fail to make such a
disclosure and to tender the opportunity, the prophylactic purpose of the rule
imposing a fiduciary obligation requires that the directors be foreclosed from
exploiting that opportunity on their own behalf.” (Emphasis added.) Kerrigan v.
Unity Savings Ass’n, 58 Ill. 2d 20, 28 (1974).
¶ 36 The amended complaint alleged that Keane and Hermann discussed The Mail House in
the summer and fall of 2013 “and whether it was a viable acquisition target.” The amended
complaint alleged that The Mail House “was known to AMG as a competitor,” and that it
“provided comparable products and services to the same type of clientele that AMG had serviced
and cultivated.” AMG alleged, “[t]hough Hermann is unaware of when Keane ultimately began
his own discussions about buying The Mail House, the business was one that AMG had explored
acquiring.” The amended complaint alleged that “[a]t no point in 2015 did Keane disclose to
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Hermann or AMG that he sought to acquire The Mail House. Nor did Keane ever advise
Hermann or AMG that the prior owners of The Mail House were interested in selling their
business to a third party.” Finally, the amended complaint pled that “[h]ad Keane brought The
Mail House acquisition opportunity to AMG, AMG would have been interested in pursuing it.”
¶ 37 Taking the pleadings as true, as we must, AMG has sufficiently pled the existence of a
corporate opportunity, namely, the acquisition of The Mail House, a competing business. AMG
properly pled that The Mail House was in the same “line of business” as AMG because it
provided comparable products and services to the same clientele as AMG. Id.
¶ 38 Under Kerrigan, when a corporate opportunity within the same line of business arises,
the corporate fiduciary must fully disclose and timely tender the opportunity to the corporation.
Id. Keane argues that AMG “has pleaded itself out of court by expressly alleging that Keane
disclosed and discussed The Mail House acquisition opportunity” with AMG. According to
Keane, those allegations establish that he satisfied any possible duty owed to AMG. Further,
Keane contends that because he informed AMG of the alleged opportunity and AMG declined to
pursue it, he was free to pursue the opportunity himself. See id. at 27-28 (“It may be conceded
that if a corporation has been informed by a director of a business opportunity, which it declines,
the director may then be free to pursue the opportunity himself.”).
¶ 39 In this case, however, AMG did not allege in its amended complaint that it declined to
pursue the acquisition of The Mail House. Instead, AMG specifically claimed that it would have
pursued the acquisition of The Mail House if Keane had disclosed the opportunity. The amended
complaint alleged that Keane and Hermann discussed whether The Mail House was a viable
acquisition target in 2013. AMG alleged that Keane never disclosed that he sought to acquire
The Mail House. He also purportedly failed to disclose that the prior owners of The Mail House
16
1-18-1126
were interested in selling their business to a third party. In short, the pleadings reveal that Keane
allegedly failed to fully disclose the pertinent facts involving the corporate opportunity to acquire
The Mail House, a business that was reasonably incident to AMG’s present operations. Id. at 28.
¶ 40 Moreover, Illinois law requires more than disclosure and tender of the corporate
opportunity. The Mullaney court specifically held that a fiduciary cannot begin to act on his own
“without the consent” of the principal because otherwise, the fiduciary places himself “in a
position where his personal interests will conflict with his duties to his principal.” (Emphasis
added.) 78 Ill. 2d at 549. Similarly, the court in Regal-Beloit issued an injunction against the
defendants, employee-fiduciaries who secretly sought to purchase the same business as their
employer. 955 F. Supp. at 864. The Regal-Beloit court held that:
“the Individual Defendants’ failure to disclose any and all facts relevant and
material to Regal-Beloit’s pursuit of Brad Foote – including Ward’s and Iglar’s
refusal to deal with Regal-Beloit, Brad Foote’s business concerns with Regal
Beloit’s original purchase offer, and the Individual Defendants’ desire and efforts
to acquire Brad Foote on their own account – prior to exploiting that ‘corporate
opportunity’ likely constitutes a breach of their own fiduciary duties of loyalty
and good faith to Regal Beloit.” Id.
¶ 41 Further, a fiduciary’s disclosure of his intent to pursue an opportunity for himself does
not by itself free the fiduciary to pursue the opportunity. See Patient Care Services, S.C. v. Segal,
32 Ill. App. 3d 1021, 1031 (1975) (rejecting the defendant’s argument that once he gave notice
of his intent to pursue the corporate opportunity, “he is ipso facto free to contest with the
corporation the business opportunity”). Indeed, in circumstances where the fiduciary attempts to
seize the business opportunity away from the corporation, which manifested its desire to retain it,
17
1-18-1126
“the mere fact that such [fiduciary] has announced his intention in advance to throw down the
gauntlet and do battle with his corporation over the opportunity will not constitute good faith.”
Id. at 1032. In Lindenhurst, 154 Ill. App. 3d at 71, the court found the defendant breached his
fiduciary duties to the plaintiff corporation by competing with the plaintiff and taking an
opportunity belonging to the plaintiff for himself. The court concluded that the defendant
“cannot use the fact that he originally disclosed the opportunity to plaintiff, who then made a low
initial offer, to excuse his breach of fiduciary duties in taking the opportunity for himself.” Id. at
70.
¶ 42 Based on these findings, we reject Keane’s argument that his disclosure of the potential
acquisition of The Mail House excused him from his fiduciary duty. The amended complaint
alleges that Keane failed to disclose he was interested in pursuing the acquisition of The Mail
House himself. Under Mullaney and Kerrigan, Keane was required to disclose all the pertinent
facts surrounding the acquisition of The Mail House, including his own personal interest, and
obtain AMG’s consent before pursuing the opportunity himself. 78 Ill. 2d at 549; 58 Ill. 2d at 28.
Taking the allegations as true, we find AMG sufficiently pled a breach of fiduciary duty.
¶ 43 We also reject Keane’s argument that he was permitted to take the preparatory steps of
outfitting a competing business. AMG pled that it remained interested in acquiring The Mail
House and Keane, in direct conflict with that interest, allegedly negotiated for and purchased The
Mail House while still employed by AMG. The pleadings also allege he went beyond mere
preparation. For example, he allegedly solicited James, Jr. to resign from AMG and join him at
The Mail House, misappropriated referrals for existing lettershop work sent to AMG,
misappropriated client samples, and disabled AMG’s website. Taken as a whole, AMG
sufficiently pled that Keane’s conduct violated the rule that an agent (or employee) may not
18
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compete with his principal (or employer) concerning matters within the scope of this agency (or
employment) for purposes of usurping a corporate opportunity. Mullaney, 78 Ill. 2d at 549.
¶ 44 Finally, we find AMG adequately pled that Keane’s alleged breach proximately caused
injury to AMG. The amended complaint alleged that Keane usurped the corporate opportunity of
acquiring The Mail House and, since that acquisition, he has solicited and served customers of
AMG with his competing company. AMG seeks the imposition of a constructive trust on The
Mail House business to be held for the benefit of AMG.
¶ 45 The circuit court erred in granting Keane’s section 2-615 motion to dismiss as to count I
of the amended complaint. We find that AMG properly alleged a claim for breach of fiduciary
duty against Keane.
¶ 46 Tortious Interference With Prospective Economic Advantage
¶ 47 Next, AMG argues that count II of its amended complaint properly alleged that Keane’s
misappropriation of The Mail House opportunity constituted tortious interference with
prospective economic advantage. To state a claim for tortious interference with prospective
economic advantage, a plaintiff must show “(1) the existence of a valid business relationship or
expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) an
intentional and malicious interference inducing or causing a breach of termination of the
relationship or expectancy; and (4) resultant damage to the party whose relationship has been
disrupted.” Small v. Sussman, 306 Ill. App. 3d 639, 648 (1999). “A plaintiff states a cause of
action only if he alleges a business expectancy with a specific third party as well as action by the
defendant directed toward that third party.” Associated Underwriters of America Agency, Inc. v.
McCarthy, 356 Ill. App. 3d 1010, 1020 (2005). “A claim of intentional interference ‘must set
forth facts which suggest that defendant acted with the purpose of injuring plaintiff’s
19
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expectancies.’ ” Kapotas v. Better Government Ass’n, 2015 IL App (1st) 140534, ¶ 80 (quoting
J. Eck & Sons, Inc. v. Reuben H. Donnelley Corp., 213 Ill. App. 3d 510, 515 (1991)).
¶ 48 In this case, taking the pleadings as true, AMG alleged the existence of a valid business
expectancy in that Hermann and Keane had discussed whether The Mail House was a viable
acquisition target and that AMG had remained interested in acquiring The Mail House. AMG
alleged that Keane had knowledge of the expectancy, as he discussed the potential acquisition
with Hermann as early as 2013. As discussed more fully above, the amended complaint alleged
facts showing that Keane acted with the purpose of injuring AMG’s expectancies in that he
usurped a corporate opportunity for his own benefit and to the detriment of AMG. In discussing
the scope and nature of Keane’s fiduciary duties, numerous factual questions exist regarding his
conduct prior to his resignation from AMG. His acquisition of The Mail House terminated
AMG’s alleged expectancy to acquire the same business. Finally, AMG alleged that it incurred
damages from Keane’s actions in the form of customers who defected to The Mail House after
Keane acquired it.
¶ 49 Accordingly, we find AMG sufficiently pled a claim for tortious interference with
prospective economic advantage. We find the circuit court erred in dismissing count II of the
amended complaint.
¶ 50 CONCLUSION
¶ 51 We reverse the judgment of the circuit court and remand the cause for further
proceedings.
¶ 52 Reversed and remanded.
20
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458 F.Supp.2d 713 (2006)
Thomas POWERS, Petitioner,
v.
Nedra CHANDLER, Warden, Roger Walker, I.D.O.C. Director, and Lisa Madigan, Illinois Attorney General, Respondents.
No. 06 C 50030.
United States District Court, N.D. Illinois, Eastern Division.
October 23, 2006.
Thomas James Powers, Dixon, IL, Pro se.
Leah C. Myers, Illinois Attorney General's Office, Chicago, IL, for Respondents.
MEMORANDUM OPINION AND ORDER
BUCKLO, District Judge.
Thomas Powers ("Powers") has brought a petition for a writ of habeas corpus under 28 U.S.C.A. § 2254 (2006). Powers is currently in the custody of the State of *714 Illinois Department of Corrections and is incarcerated at the Dixon Correctional Center.[1] Thomas filed a petition for post-conviction relief pursuant to 725 ILL. COMP. STAT. ANN. 5/122-1, et seq. (2005) in the Illinois trial court on August 15, 2002, but that court has yet to resolve his petition. Powers' petition for a writ of habeas corpus was assigned to this court on August 23, 2006. The judge previously hearing Powers' petition ordered respondent to file a limited response to the petition addressing whether the delay by the Illinois court in addressing Powers' post-conviction petition was cause for allowing Powers to bypass his state court remedies. The parties have now briefed this limited issue, and I dismiss Powers' petition without prejudice.
I.
I generally may only grant a petition for a writ of habeas corpus where "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C.A. § 2254(b)(1)(A). "This rule reflects the policy of providing the state courts a full and fair opportunity to review the petitioner's claims through its own judicial processes before asserting federal review." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991)(internal citation omitted). The exhaustion requirement in § 2254 normally dictates that a petitioner may not receive federal relief while collateral proceedings are pending in state court. Fernandez v. Sternes, 227 F.3d 977, 980-81 (7th Cir.2000). However, § 2254 includes an exception to the exhaustion requirement where (1) there is an absence of available State corrective process; or (2) circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C.A. § 2254(b)(1)(B). The Seventh Circuit has concluded that these exceptions apply where there is an inordinate and unjustifiable delay in the state court's resolution of a petitioner's claims. See, e.g., Sceifers v. Trigg, 46 F.3d 701, 703 (7th Cir.1995) (quoting Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir.1981)). Here, Powers filed his petition for post-conviction relief in state court over four years ago, and is still waiting for resolution. This is an inordinate delay. See Sceifers, 46 F.3d at 703 (noting that courts in Dozie v. Cody, 430 F.2d 637 (7th Cir.1970), and Lowe found delays of seventeen months and three and one-half years, respectively, to be inordinate).
However, this delay is not unjustifiable. In Lowe, the Seventh Circuit instructed that where a delay is inordinate, "the district court must hold a hearing to determine whether the delay is justifiable." 663 F.2d at 43. However, the Seventh Circuit in Lane v. Richards, 957 F.2d 363 (7th Cir.1992), did not order a hearing to explore a lengthy delay in the state court proceedings where the reasons for the delay were clear. Id. at 365. Here, as in Lane, the reasons for the delay are similarly clear: Powers and his appointed counsel have delayed the proceedings. A review of the docket sheet for Powers' case, current through April of this year, shows that Powers filed his post-conviction petition on August 15, 2002. The trial court considered his petition and, on October 16, 2002, found the petition had merit and appointed counsel for Powers. The court also held his petition in abeyance pending the outcome of his direct appeal.[2]*715 Powers subsequently filed several supplemental post-conviction petitions (on March 25, 2003, July 12, 2004 and August 18, 2004). Powers has also moved to substitute his counsel several times, and had new counsel appointed on July 16, 2003, September 7, 2004, and October 28, 2004. In addition, Powers' various counsel, combined, have moved for nearly thirty continuances in his case.[3] Powers' counsel also failed to appear for status on one occasion, March 23, 2005, necessitating another continuance. Powers argues that he objected to each one of the continuances by his counsel, and in general alleges that his counsel has been ineffective and dilatory in pursuing his petition.[4] While this may be true, and has resulted in an unfortunate delay for Powers, errors by counsel representing a prisoner on collateral attack are not attributable to the state for purposes of determining whether a delay is justifiable. See Lane, 957 F.2d at 365 (citing Coleman v. Thompson, 501 U.S. 722, 752-53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). The only delays in Powers' case even arguably attributable to the state are continuances by the court totaling 155 days, many because the court was on trial or otherwise considering the issues in the case.[5] This is not unjustifiable, although it is extremely troubling that Powers' petition has taken so long to resolve.
II.
One of Powers' grounds in his petition for a writ of habeas corpus is that the delay in resolving his petition for post-conviction relief violates his right to due process and his right to equal protection. However, as the Seventh Circuit held in Montgomery v. Meloy, 90 F.3d 1200 (7th Cir.1996), delay by a state court in ruling on a petition for post-conviction relief is not a ground for federal habeas corpus relief because there is no constitutional right to state collateral review. Id. at 1206; see also Jackson v. Duckworth, 112 F.3d 878, 879-80 (7th Cir.1997) (affirming Montgomery).
The Montgomery opinion does leave open the possibility of habeas corpus relief where a petitioner alleges that a delay violated his right to equal protection, 90 F.3d at 1206. Powers has alleged that his right to equal protection was violated *716 because, had he been able to afford paid counsel, he would not have suffered the delays of "disinterested [attorneys] that were appointed by the trial judge." The problem with this argument is that Powers must allege that an "action of the state" violated his right to equal protection. See Sceifers, 46 F.3d at 704 (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 n. 6, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)). Public defenders and appointed counsel are not state actors for purposes of the Fourteenth Amendment. Id. (citing Polk County v. Dodson, 454 U.S. 312, 317 n. 4, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Georgia v. McCollum, 505 U.S. 42, 53 n. 9, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992)) (holding that actions of public defenders and appointed counsel in causing delay in resolution of state post-conviction petition does not constitute state action). Powers has no cognizable equal protection claim for the actions of his appointed counsel in delaying his petition for post-conviction relief.
III.
Because the delay by the state court in resolving Powers' petition for post-conviction is justifiable, I cannot consider Powers' petition for a writ of habeas corpus at this time. I dismiss Powers' petition without prejudice.
NOTES
[1] Petitioner has named Roger Walker and Lisa Madigan as defendants, but since they do not hold Powers in custody they are improperly named as defendants. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). I therefore dismiss them from this action.
[2] Powers filed his petition for post-conviction relief before his direct appeal had concluded. The state court ended his direct appeal by denying his petition for leave to appeal to the Supreme Court on April 2, 2003. See People v. Powers, 203 Ill.2d 564, 273 Ill.Dec. 142, 788 N.E.2d 733 (2003).
[3] Many of these continuances were only for a week or two, but collectively they became significant. Examples include a continuance from November 26, 2003 to January 14, 2004; four separate month-long continuances stretching from February 11, 2004 to June 9, 2004; two consecutive continuances stretching from October 24, 2004 to March 2, 2005; and most significantly, a series of twelve straight continuances from May 25, 2005 to June 12, 2006.
[4] On September 7, 2004, the state filed a motion to dismiss the most recent supplement post-conviction petition Powers had filed on August 18, 2004. There is no indication that Powers' counsel has ever filed a response to this motion to dismiss.
[5] These delays include continuances from March 12, 2003 to April 16, 2003; June 11, 2003 to July 16, 2003; January 14, 2004 to February 11, 2004; October 6, 2004 to October 28, 2004; November 17, 2004 to November 24, 2004; and March 2, 2005 to March 30, 2005. The court also granted other continuances because in the interim Powers filed other motions, including a motion for relief from judgment under 735 ILL. COMP. STAT. ANN. 5/2-1401, to which the court gave the state time to respond and on which the court gave itself time to rule. Respondent calculates that there are combined periods totaling 490 days in which the case was set for status or continued for a decision without any indication that petitioner agreed to or requested the continuance; this period includes time that petitioner requested new counsel, time petitioner or his counsel were not present, and time the court allowed the parties to file responses to various motions.
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852 F.2d 1293
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Gary J. ROBERTS, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 88-3151.
United States Court of Appeals, Federal Circuit.
June 13, 1988.
Before ARCHER, MAYER and MICHEL, Circuit Judges.
PER CURIAM.
1
The decision of the Merit Systems Protection Board, Docket No. SF07318710493, sustaining the determination of the Office of Personnel Management that petitioner was unsuitable for federal employment in the competitive service, is affirmed on the basis of the administrative judge's Initial Decision dated July 17, 1987.
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Case: 08-40958 Document: 00511104202 Page: 1 Date Filed: 05/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 7, 2010
No. 08-40958
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL JOSEPH DERROW,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 9:98-CR-6-9
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Michael Joseph Derrow, federal prisoner # 03199-286, appeals the denial
of his 18 U.S.C. § 3582 motion to reduce his 480-month sentence following his
conviction for conspiracy to possess with the intent to distribute crack cocaine
and possession with the intent to distribute crack cocaine. Derrow sought a
reduction in his sentence based on Amendment 706 to the crack cocaine
Guidelines. The Government has filed a motion for summary affirmance or,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 08-40958 Document: 00511104202 Page: 2 Date Filed: 05/07/2010
No. 08-40958
alternatively, for an extension of time to file a brief on the merits. Derrow has
moved to respond to the Government’s motion.
Although the district court’s decision whether to reduce a sentence
ordinarily is reviewed for an abuse of discretion, a court’s interpretation of the
Guidelines is reviewed de novo. United States v. Doublin, 572 F.3d 235, 237 (5th
Cir.), cert. denied, 130 S. Ct. 517 (2009). Contrary to Derrow’s argument that
the district court failed to provide reasons for its denial, the sentencing court is
not required to provide reasons for its denial of a § 3582 motion. See United
States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), petition for cert. filed, (Jan.
28, 2010) (09-8939). The district court did not provide reasons for its denial, but
the order was entered after the Government filed its response arguing that
Derrow’s guidelines range was not altered by the amendments. Because the
district court’s denial of Derrow’s motion was presumably based on a
determination that Derrow’s sentence remained the same under the amended
Guidelines, review is de novo. See id.
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission, “if such a reduction is consistent with the policy statements issued
by the Sentencing Commission.” United States v. Gonzalez-Balderas, 105 F.3d
981, 982 (5th Cir. 1997). Sentence reductions under § 3582 are thus governed
by the policy statements of the Guidelines. Doublin, 572 F.3d at 237.
Under the amended Guidelines, Derrow’s offense level was altered, but his
guidelines range remained the same. Thus, a reduction was not permitted under
§ 3582(c)(2). See § 3582(c)(2). Derrow’s arguments regarding the applicability
of United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530
U.S. 466 (2000), are unavailing because those concerns “do not apply in an 18
U.S.C. § 3582(c)(2) proceeding.” Doublin, 572 F.3d at 238. Although the
Guidelines must be treated as advisory in an original sentencing proceeding,
Booker does not prevent Congress from incorporating a guideline provision “as
2
Case: 08-40958 Document: 00511104202 Page: 3 Date Filed: 05/07/2010
No. 08-40958
a means of defining and limiting a district court’s authority to reduce a sentence
under § 3582(c).” Id. at 239 (internal quotation marks and citation omitted).
The district court did not err in denying Derrow’s motion for a reduction
of sentence. The district court’s judgment is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED, and its motion for an extension
of time is DENIED. Derrow’s motion to file a response to the Government’s
motion for summary affirmance is DENIED.
3
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575 F.3d 1069 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
Daniel COLLINS, Defendant-Appellant.
No. 08-3119.
United States Court of Appeals, Tenth Circuit.
August 4, 2009.
*1070 John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant-Appellant.
Donald Oakley, Assistant United States Attorney (Marietta Parker, Acting United States Attorney, and Matthew T. Treaster, Assistant United States Attorney, with him on the briefs), Wichita, KS, for Plaintiff-Appellee.
Before LUCERO, EBEL, and TYMKOVICH, Circuit Judges.
LUCERO, Circuit Judge.
A jury convicted Daniel Collins of maliciously damaging a building by means of an explosive in violation of 18 U.S.C. §§ 844(i) and 2. He was sentenced to 60 months' imprisonment and two years' supervised release. At trial, the district court overruled Collins' hearsay and prejudice objections to the admission of a two hour and twenty minute audio recording of investigators interrogating him the day of *1071 the crime. On appeal, he argues that the admission of this evidence was in error and seeks a new trial. However, we need not decide if the district court erred in admitting the entire recording because any such error was harmless on this record. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On August 17, 2007, Collins and two acquaintances, Antonio Ray and Nathan Gunter, acquired three explosives. They then detonated those explosives at a Wichita, Kansas school and two apartment buildings, including the Kingsborough Apartments. Collins, Ray, and Gunter were arrested shortly after the explosions, and Collins was subsequently charged with two counts of maliciously damaging the apartment buildings by means of an explosive in violation of 18 U.S.C. §§ 844(i) and 2 and one count of knowingly stealing explosive materials that have moved in interstate commerce in violation of 18 U.S.C. §§ 844(k) and 2.
At trial, several eyewitnesses testified to Collins' involvement in the charged incidents. Ray, who had pled guilty to lesser charges, testified that Gunter drove him and Collins in a white SUV to each of the locations. Ray explained that at the Kingsborough Apartments, he held a stairwell door open while Collins placed a lit explosive inside.
Several residents of the Kingsborough Apartments also testified. Michael Vickers stated that he saw two males near a door to the building, one with a lighter complexion than the other. He said that the lighter complected male held the door open while the other threw something inside. Vickers saw a trail of smoke and then the explosion occurred. At trial, Vickers identified Collins as the darker complected male he had seen on August 17. Tina Disabatino also testified to seeing two males in the vicinity of the Kingsborough buildings moments before and after the explosion, and she too identified Collins as one of the individuals. Angela Chandler testified to seeing a white SUV immediately prior to the explosion and two males get into it immediately after the explosion, identifying Collins as one of those two men. Both Vickers and Chandler called 9-1-1, and Chandler provided police with a license plate number that partially matched the plate on the white SUV stopped by police shortly thereafter.
When the SUV was stopped, Gunter was driving, Ray was in the front passenger seat, and Collins was in the rear. At the scene, Officer Daniel Brown of the Wichita Police Department ("WPD") handcuffed Collins and searched his pockets, finding a lighter. Officer Brown testified to this at trial, and the government also called a number of other police officers and agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), who testified to the course of the investigation and the explosives involved.
After the ATF agents, the government called WPD Detective Sarah Hamilton. Hamilton explained that she and ATF Special Agent Greg Heiert interviewed Collins the day he was arrested for approximately three and a half hours, with an hour and a half break in the middle. As part of Hamilton's testimony, the government played an audio recording of this interview for the jury.[1] Before Hamilton testified, Collins objected to introduction of the unredacted recording, arguing that seventy to eighty percent of the dialogue consisted of inadmissible hearsay statements made by *1072 Hamilton and Heiert. He objected further that the recording was unduly prejudicial because it contained many ad hominem attacks on Collins. Although Collins' counsel acknowledged that Collins' own statements were not hearsay, he contended that the bulk of the recording did not consist of such statements.
Collins' objections on these grounds were overruled.[2] On the theory that the officers' statements provided context for Collins' statements, the district court allowed the government to play the recording. Before it was played, however, the court admonished the jury:
I want to caution you .... [Y]ou'll hear that the officers said to the Defendant that they knew what the evidence what had happened, they had talked to other people, I don't know what all; but in total, in total, everything the officers say to the Defendant on this tape is not evidence. So you can hear it, you have to hear it to place everything in context, but if the officers say, for example, and I don't know that they do, but if they say that we've talked to Antonio Ray and he told us, that's not evidence. You must not consider it as evidence. The only evidence is the statement, statements of the Defendant.
As Collins accurately characterizes, significant portions of the recording do not reflect Collins' substantive statements. On more than one occasion, Hamilton speaks at length without attempting to prompt a response from Collins. One example of such an soliloquy:
[Hamilton]: OK; here's the thing[. W]e were in here talking to you for a long time earlier alright and we[ ]I told you what we were gonna do[.] [W]e're gonna go out[,] we're gonna talk to the other detectives who are um going through your all[']s car OK, who have been talkin to the other folks that you were arrested with today and you know what, your story's a heap of [expletive] OK, so we're back in here again because your story is the worst of all OK and we're just gonna lay it out like it is OK[. Y]ou're not tellin us the whole truth OK, and you need ta start[.] [O]K like we said earlier, there's parts to it that are true but you're not tellin us everything and you know what[,] the only person that hurt[ ]the only person that that hurts is you; I know that there's things on the back seat of that car OK, when you when you guys got picked up today remember that you do, you're shacking [sic] your head yes, you remember that[.]
[Collins]: Uh huh[.]
At other times, the statements by the officers are shorter, but consist of the officers representing the state of the evidence:
[Heiert]: There's four people that put you at, at those scenes
[Hamilton]: Who have never seen you before in their entire life but they remember you because you just blew some part of their house up[.]
[Collins]: Four people remember me at the scene[?]
[Hamilton]: Uh huh[.]
[Collins]: I didn't even get out of the car you know[.]
[Hamilton]: Yes you did[.]
More than once, Hamilton accused Collins of sheer callousness, such as:
[Hamilton]: But it matters to you in the long run because it affects how you go through this process here[. P]eople need to know why you did something and how OK, the big thing is why are you so cold and heartless that you can sit here and say that I don't care that *1073 there were babies sleeping next door to that hallway, they're not my babies[,] I don't live there[. B]y you not sayin something and not saying why you did something [ ]that's the big question out there and you know what[.]
Although the recording was rife with such exchanges, it also contained many occasions when Collins answered questions and spoke at length. Near the end of the second session, Collins admitted involvement in the Kingsborough Apartments incident and admitted that he had lied earlier in the interview. Collins did not object to the jury hearing these latter admissions.
When the court instructed the jury prior to deliberations, it included Instruction No. 22 regarding the recording:
Evidence has been presented about a statement attributed to the defendant alleged to have been made after the commission of the crimes charged in this case but not made in court. Such evidence should always be considered by you with caution and weighed with care....
... Statements of law enforcement officers made at the time of questioning are not to be considered for their truth, but only as a consideration of how the defendant's statement was given.
Collins was convicted of maliciously damaging the Kingsborough Apartments by means of an explosive but acquitted of the other two charges. He timely appealed.
II
On appeal, Collins challenges only the admission of the audio recording. He contends first that the district court erred in allowing the jury to hear countless hearsay statements contained in the first two hours of the recording. We review the admission of evidence at trial for abuse of discretion. United States v. Chavez, 229 F.3d 946, 950 (10th Cir.2000). "Because hearsay determinations are particularly fact and case specific, our review of those decisions is especially deferential." Id. (quotation omitted). Further, "[t]his court applies a harmless error standard when reviewing trial courts' rulings on hearsay objections resting solely on the Federal Rules of Evidence." United States v. Jones, 44 F.3d 860, 873 (10th Cir.1995) (citation omitted). "A harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect." Id. (citation omitted).
"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Because a party's own out of court statements offered against that party are not hearsay, Fed. R.Evid. 801(d)(2)(A), we are confronted with a single exhibit that contains numerous statements that are indisputably not hearsay those made by Collins and other statements made by the officers that arguably are hearsay. Contending that Hamilton's and Heiert's statements are not hearsay, the government relies on the malleable notion that an interviewer's statements are offered to provide context for the interviewee's answers, rather than for the truth of the matter asserted. See United States v. Gajo, 290 F.3d 922, 930 (7th Cir.2002) (collecting cases supporting the proposition that "[i]t is well settled that [admitting evidence of both sides of a conversation] is appropriate because statements are not hearsay to the extent they are offered for context and not for ... the truth of the matter asserted" (citations omitted)).
We are skeptical of the government's argument that all of Hamilton's and Heiert's statements in the recording provide meaningful context for Collins' statements. *1074 Ad hominem attacks, accusations of lying, and general posturing may be standard in police interrogations, but they have little evidentiary value unless the government intended for the jury to believe the truth of those statements. Perhaps more problematically, Hamilton's and Heiert's statements in the recording unequivocally corroborated evidence that had just been presented to the jury and vouched for the credibility of individuals who had just testified. Invoking the word "context" does not permit an end-run around the hearsay rules such that the government may smuggle into evidence all interviewer statements. We view such evidence with a particularly jaundiced eye when, as here, the officers' statements regularly overwhelm the defendant's.
Nonetheless, we are mindful that the district court faced an unenviable task in deciding if and how to redact a lengthy recording in which both problematic and perfectly admissible statements are scattered throughout. See Chavez, 229 F.3d at 950. But we need not decide whether it was error to admit the entire recording because we conclude that if it was error, the error was harmless. See Jones, 44 F.3d at 874 ("Even if the district court erroneously admitted testimony of the contents of [the] conversation, we nonetheless conclude that the admission of this testimony was harmless error."). Given the strength of the evidence against Collins on the count of conviction, we conclude that Hamilton's and Heiert's statements did not have a substantial influence on the outcome of the trial. See id. at 873.
Collins was convicted only for the explosion at Kingsborough Apartments. He concedes that his own statements heard in the recording were admissible non-hearsay. In those statements, he admits involvement in that incident and admits to lying earlier in the interview when he said he remained in the car. Even without the remainder of the recording, Collins' admissions alone provide strong evidence of guilt. Moreover, two eyewitnesses, including Collins' codefendant, testified to seeing Collins throw an explosive into the stairwell, and a police officer testified to finding a lighter on his person when he was arrested. Two other eyewitnesses testified that they saw Collins walking back to the car after the explosion, providing strong evidence of aiding or abetting. See 18 U.S.C. § 2(a). All four of these witnesses testified that Collins was laughing at the time. We also consider that the jury was instructed not to consider the statements of the officers as evidence. See United States v. Lauder, 409 F.3d 1254, 1262 (10th Cir.2005) (relying in part on curative instruction to render error harmless). Taking into account all of the evidence against Collins and the presumption that juries follow curative instructions, United States v. Jones, 530 F.3d 1292, 1303 (10th Cir. 2008), we conclude that admission of Hamilton's and Heiert's statements as part of the recording, if error, was harmless.
III
Collins also argues that the admission of the entirety of the recording was substantially more prejudicial than probative in violation of Federal Rule of Evidence 403. To this end, Collins contends that only his admissions in the concluding minutes of the recording were relevant, and that the rest of the recording was both irrelevant and inflammatory because Hamilton and Heiert referred to hypothetical injuries and improperly challenged Collins' veracity and humanity. As with hearsay, error in the admission of unduly prejudicial evidence is susceptible to harmless error. See United States v. Smith, 534 F.3d 1211, 1220 (10th Cir.2008) (declining to determine whether a district court erred under Rule 403 because any possible error was harmless).
*1075 We held in Part II that even if Hamilton's and Heiert's statements were hearsay, their admission did not have a substantial influence on the outcome of the trial. Because the inflammatory statements cited by Collins are a subset of those he argues are hearsay, it follows that the admission of such statements was also harmless under Rule 403.[3]
IV
AFFIRMED.
NOTES
[1] The recording itself was missing approximately the last hour of the first session and the final ten minutes of the second session because Hamilton's digital recorder ran out of space.
[2] The court did grant two more specific objections and redacted brief portions of the recording revealing aspects of Collins' juvenile history.
[3] Before this court, Collins also argues that the admission of unduly prejudicial evidence violates his due process rights under the Fifth Amendment. Because he raises this argument for the first time on appeal, we decline to decide it. See United States v. Jarvis, 499 F.3d 1196, 1202 (10th Cir.2007) ("[We] exercise [our] discretion to hear issues not raised below only in the most unusual circumstances." (quotation omitted)).
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Gorman v Gorman (2018 NY Slip Op 07104)
Gorman v Gorman
2018 NY Slip Op 07104
Decided on October 24, 2018
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 October 24, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
MARK C. DILLON
JEFFREY A. COHEN
LINDA CHRISTOPHER, JJ.
2017-02156
(Index No. 7849/11)
[*1]John Gorman, respondent-appellant,
vKaren Gorman, appellant-respondent.
Larkin, Ingrassia & Tepermayster, LLP, Newburgh, NY (William J. Larkin and Theresa Cayton of counsel), for appellant-respondent.
H. Scott Ziemelis, Middletown, NY, for respondent-appellant.
DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of the Supreme Court, Orange County (Maria Vazquez-Doles, J.), dated December 14, 2016, and the plaintiff cross-appeals from stated portions of the same judgment. The judgment, insofar as appealed from, upon a decision of the same court dated April 5, 2016, made after a nonjury trial, inter alia, awarded the defendant maintenance in the sum of only $4,500 per month for eight years, commencing January 1, 2012, equitably distributed marital property, and imputed income to the defendant to calculate pendente lite support arrears. The judgment, insofar as cross-appealed from, inter alia, failed to award the plaintiff an equitable share of certain bank accounts and awarded the defendant pendente lite support arrears, maintenance, and $20,000 in attorney's fees.
ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof requiring the plaintiff to pay the defendant maintenance in the sum of $4,500 per month for eight years, commencing January 1, 2012, and substituting therefor a provision requiring the plaintiff to pay the defendant maintenance in the sum of $2,750 per month until the earliest of the defendant's remarriage, her attainment of the age at which she becomes eligible for full Social Security benefits, or the death of either party, (2) by deleting the provision thereof terminating the plaintiff's maintenance obligation as of the earliest to occur of January 30, 2010, the plaintiff's remarriage, or the death of either party, and substituting therefor a provision terminating the plaintiff's maintenance obligation upon the earliest to occur of the defendant's remarriage, the defendant's attainment of the age at which she becomes eligible for full Social Security benefits, or the death of either party, (3) by deleting the provision thereof requiring the plaintiff to pay to the defendant the sum of $22,980.71 for child support arrears, payable in the sum of $200 per month, (4) by deleting the provision thereof requiring the plaintiff to pay the defendant temporary maintenance arrears in the sum of $104,706.08, (5) by adding a provision thereto requiring the plaintiff to maintain a life insurance policy in the sum of $500,000, naming the defendant as irrevocable beneficiary for as long as the plaintiff is obligated to pay maintenance to the defendant, (6) by adding a provision thereto directing the plaintiff to provide health insurance for the defendant, effective February 7, 2012, until she becomes eligible for coverage through employment or through Medicare, whichever shall first occur, (7) by adding a provision thereto providing that the proceeds of the parties' joint checking account, with a [*2]commencement date value of $95,981.18, and the parties' joint savings account, with a commencement date value of $44,458.50, be equally divided between the parties, and (8) by adding a provision thereto providing the defendant with a $1,600 credit toward her distributive award; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for the calculation of the amounts, if any, due to the defendant from the plaintiff for child support and temporary maintenance arrears in accordance herewith, and for a determination as to what, if any, amounts are due to the defendant from the plaintiff based on our direction that the plaintiff must provide health insurance for the defendant, effective February 7, 2012.
The parties were married on May 16, 1987. During the marriage, the defendant, after having worked as a legal secretary for a period of time, quit the workforce to become a homemaker and to care for the parties' two children, who now are in their mid-to-late twenties, while the plaintiff worked in various capacities connected with the United States military, including defense contracting work that took him overseas to Iraq.
This action for a divorce and ancillary relief was commenced on August 2, 2011, after the plaintiff vacated the marital residence. Thereafter, the defendant moved for and was awarded pendente lite maintenance and child support, and she has had exclusive occupancy of the marital residence during the pendency of this action. While the Supreme Court awarded the defendant unallocated temporary maintenance and child support in the sum of $6,300 per month in May 2013, the plaintiff unilaterally decided to pay the defendant, as of February 2014, the sum of only $2,500 per month. A nonjury trial was held on the ancillary economic issues attendant to the divorce. By judgment of divorce dated December 14, 2016, which incorporated by reference the court's decision after trial dated April 5, 2016, the court, inter alia, determined issues of maintenance, equitable distribution, pendente lite support arrears, and the defendant's application for attorney's fees. The defendant appeals and the plaintiff cross-appeals from stated portions of the judgment.
The defendant contends that her maintenance award of $4,500 per month for eight years, commencing January 1, 2012, is inadequate both in duration and amount, arguing, inter alia, that the Supreme Court improperly found, in setting the award, that she was capable of earning $26,000 per year and directed that maintenance shall terminate upon the plaintiff's remarriage. The plaintiff contends that the award is excessive, arguing, inter alia, that the court improperly imputed income to him.
"The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its unique facts" (Culen v Culen, 157 AD3d 926, 928; see Carroll v Carroll, 125 AD3d 710, 711). In cases, like this one, commenced prior to amendments to the Domestic Relations Law effective January 23, 2016 (see L 2015, ch 269, § 4), factors to be considered include "the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and future earning capacity of the parties, the ability of the party seeking maintenance to be self-supporting, the reduced or lost earning capacity of the party seeking maintenance, and the presence of children of the marriage in the respective homes of the parties" (Gordon v Gordon, 113 AD3d 654, 655; see Domestic Relations Law former § 236[B][6][a]).
Here, considering the relevant factors, including the ages of the parties, the long duration of the marriage and the extended absence of the defendant from the workforce, the distribution of the marital assets, the parties' respective past and future earning capacities, and the availability of retirement funds and pensions, the Supreme Court providently exercised its discretion in awarding the defendant durational, as opposed to lifetime, maintenance (see Hartog v Hartog, 85 NY2d 36, 50-51; Levitt v Levitt, 97 AD3d 543, 544; Siskind v Siskind, 89 AD3d 832, 833; Litvak v Litvak, 63 AD3d 691, 691-692). However, rather than providing for a durational limitation of eight years and subjecting that award to termination upon the plaintiff's remarriage, under the circumstances of this case, the maintenance award should continue until the earliest of the defendant's remarriage, her attainment of the age at which she becomes eligible for full Social Security benefits, or the death of either party (see Repetti v Repetti, 147 AD3d 1094; Carroll v [*3]Carroll, 125 AD3d 710; Giokas v Giokas, 73 AD3d 688).
We disagree with the determination of the Supreme Court to impute to the plaintiff an annual income of $151,192. It is undisputed that from 2008 through late 2013, the plaintiff was employed overseas in Iraq and, as a result of such employment, received a significantly augmented salary, enhanced overtime, and no-cost room and board. In December 2013, the plaintiff returned to the United States, taking up residence in Ohio, where he resides with his fiancée. As of the time of trial, the plaintiff was employed by the Department of Defense as a quality assurance inspector at a salary of $81,079 per year. The plaintiff did not submit a current statement of net worth. He acknowledged that his earnings are deposited into a joint checking account with his fiancée and that all of his monthly expenses are shared with his fiancée. The plaintiff also acknowledged that he regularly gambles, to the point that he has received free hotel accommodations, airfare, vacations (including a cruise), and other free or discounted items because of his frequent gambling. In 2013, he reported gambling winnings of $11,250 on his tax return. He acknowledged winning $1,800 over two days of gambling in September 2014.
Taking into account the plaintiff's lack of candor in his testimony as to his finances, his history of gambling winnings and related benefits, and his failure to submit a current net worth statement and disclose his living expenses (which he shares with his fiancée), it is appropriate to impute to the plaintiff additional income above his basic governmental salary (see Fenech v Fenech, 141 AD3d 683, 685-686). However, we disagree with the Supreme Court's determination as to the amount of income to be imputed to the plaintiff. The full amount of the enhanced income attributable to the plaintiff's employment in Iraq should not be imputed to him given that the plaintiff has returned from Iraq and no longer receives such heightened compensation. It would be unreasonable to expect that the plaintiff would remain in Iraq indefinitely. Under the circumstances presented, we find it appropriate to impute to the plaintiff an annual income of $100,000, which attributes to the plaintiff enhanced income from his gambling activities and reflects an adjustment for the savings that the plaintiff should obtain from sharing living expenses with his fiancée.
While we agree with the defendant that the Supreme Court should not have imputed income to her based on statistical information from the New York State Department of Labor that was not admitted in evidence at trial (see McAuliffe v McAuliffe, 70 AD3d 1129, 1132-1133), there was evidence, nonetheless, that the defendant had earned $15 per hour as a legal secretary during the early part of the marriage. Even though she has been out of the work force for an extended period of time and does not have a college degree, she is in good health and has a sufficient employment history to warrant the conclusion that she is capable of earning at least the sum of $26,000 annually, which is the amount of income imputed to her by the court.
Taking into account the parties' respective imputed incomes and all the factors to be considered in awarding maintenance, we determine that the amount of maintenance payable by the plaintiff to the defendant to be $2,750 per month, which sum shall be neither tax deductible by the plaintiff nor taxable to the defendant.
The plaintiff contends that the Supreme Court erred in its determination of arrears under the temporary order for child support and maintenance and failed to properly credit him for payments he made for support. With regard to child support arrears, the court determined that no support was due for the period prior to January 2012, and that child support was due for the one then-minor child for the period from January 2012 through August 2014, when the child attained the age of 21. The court determined that the plaintiff was responsible for a total of $64,406.56 in child support during this period, subject to credits for documented payments. We disagree with this approach.
It is axiomatic that child support awards are effective as of the date of the application therefor and that the court has no discretion to reduce or cancel arrears which accrue prior to application for a downward modification of the child support obligation (see Matter of Gardner v Maddine, 112 AD3d 926, 927; Sinanis v Sinanis, 67 AD3d 773, 774). Likewise, the court may not impose a child support obligation with respect to a child who has attained the age of 21 (see Ciampa [*4]v Ciampa, 47 AD3d 745, 748). Therefore, the Supreme Court should not have determined, nearly two years after the parties' youngest child had attained the age of 21, what the child support would have been for that child based on the trial testimony. On the other hand, the record shows that a temporary order of support was issued at a preliminary conference held on May 31, 2012, which required the plaintiff to pay to the defendant the sum of $6,300 per month in unallocated maintenance and child support. At the time the order of support was made, one of the parties' two children was under 21. Thus, for purposes of determining the retroactivity of support, we determine that one-half (i.e., $3,150) of the temporary support order is attributable to child support and that the plaintiff is responsible for that amount for the period from May 31, 2012, to August 24, 2014, when the subject child turned 21.
The plaintiff admits that, as of February 2014, he paid the sum of only $2,500 per month toward the unallocated support award of $6,300 per month. The plaintiff explained that he did not make full payment, at least in part, because he perceived that he would not be able to recoup any determined overpayments at the end of the case. The support payments made by the plaintiff under the order dated May 31, 2012, to the extent made prior to August 24, 2014, should be allocated one-half to maintenance and one-half to child support and, thus, the plaintiff shall be entitled to a credit for one-half of any monthly support payments he made during the period between May 31, 2012, and August 24, 2014, against his obligations for child support during that period as herein determined. We remit the matter to the Supreme Court, Orange County, for purposes of calculating the amount due for child support arrears during the period between May 31, 2012, and August 24, 2014. Any amounts due to the defendant shall bear interest from the date of each default, due to the plaintiff's willful conduct in refusing to comply with his court-ordered obligations, notwithstanding that he was earning enhanced compensation and enjoying free room and board and other benefits during the entire period involved (see Domestic Relations Law § 244; Perri v Perri, 265 AD2d 539, 540; Lewis v Weiner, 191 AD2d 172). The amount due to the defendant for arrears shall be entered as a judgment and, if the judgment is not satisfied as of the closing of the sale of the marital residence, shall be payable to the defendant out of the plaintiff's share of the proceeds.
The issue of arrears in temporary maintenance is subsumed within the determination as to the effective date of the permanent maintenance award. An award of maintenance is effective as of the date of the application therefor, which, in this instance, is February 7, 2012, the date of the defendant's answer which contained a demand for maintenance (see Burns v Burns, 84 NY2d 369, 377; Diaz v Gonzalez, 115 AD3d 904, 906; Augustin v Bullen, 112 AD3d 658, 659). The plaintiff is entitled to a credit against the amounts due retroactively for temporary maintenance in the amount of one-half of the monthly support payments he made commencing May 31, 2012, and continuing to August 24, 2014, and for the full amount of the monthly support payments, if any, he made after August 24, 2014. We remit the matter to the Supreme Court, Orange County, for purposes of calculating the amount due as and for retroactive maintenance. Any amounts due to the defendant shall bear interest, due to the plaintiff's willful conduct in refusing to comply with his court-ordered temporary support obligations. The amount due to the defendant for retroactive maintenance arrears shall be entered as a judgment and, if the judgment is not satisfied as of the closing of the sale of the marital residence, shall be payable to the defendant out of the plaintiff's share of the proceeds.
We agree with the defendant that the Supreme Court should have directed the plaintiff to purchase, pursuant to Domestic Relations Law § 236(B)(8)(a), a life insurance policy in the amount of $500,000, designating the defendant as sole irrevocable beneficiary for only as long as the plaintiff is obligated to pay maintenance to the defendant (see Maloney v Maloney, 137 AD2d 666, 668). The court also should have directed the plaintiff to provide health insurance for the plaintiff until she becomes eligible for coverage through employment or through Medicare (see Domestic Relations Law § 236[B][8][a]; Costello v Costello, 304 AD2d 517). Since this direction should be effective as of the date of the defendant's verified answer, February 7, 2012, we remit the matter to the Supreme Court, Orange County, for a determination as to what, if any, amounts are owed by the plaintiff to the defendant on account of this direction.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in directing the sale of the marital residence because the parties' children have reached [*5]majority, there is no need of a spouse as a custodial parent to occupy the residence for the children (see Litwack v Litwack, 237 AD2d 580, 581), and neither party submitted a market-based valuation of the marital residence.
We agree with the defendant's contention that the Supreme Court erred in failing to provide for the distribution of two joint bank accounts: a joint savings account with a commencement date balance of $44,458.50, and a joint checking account with a commencement date balance of $95,981.18. Therefore, we direct that the proceeds of these accounts be equally divided between the parties.
Property acquired during the marriage is presumed to be marital property, and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property (see Massimi v Massimi, 35 AD3d 400, 402). Here, the plaintiff purchased a diamond engagement ring for $3,200 for his fiancée prior to commencement of this action, and failed to prove that it was separate property. Accordingly, the Supreme Court should have given the defendant a 50% credit of the ring's purchase price, i.e., $1,600, toward her distributive award.
In view of, inter alia, the relative financial circumstances of the parties and the relative merits of the parties' positions at trial, the Supreme Court providently exercised its discretion in awarding the defendant $20,000 in attorney's fees (see Margolis v Cohen, 153 AD3d 1390, 1394; Nadasi v Nadel-Nadasi, 153 AD3d 1346, 1351).
The parties' remaining contentions are either not properly before us or without merit.
SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0448V
Filed: January 24, 2018
UNPUBLISHED
BETTY CHALLY,
Special Processing Unit (SPU); Joint
Petitioner, Stipulation on Damages; Influenza
v. (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
SECRETARY OF HEALTH AND (SIRVA)
HUMAN SERVICES,
Respondent.
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION 1
Dorsey, Chief Special Master:
On March 28, 2017, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury as a result of
receiving an influenza (“flu”) vaccine on November 13, 2015. Petition at ¶ 2; Stipulation,
filed January 24, 2018, at ¶ 4. Petitioner further alleges that the vaccine was
administered in the United States, she suffered the effects of the injury for more than six
months, and there has been no prior award or settlement of a civil action for damages
as a result of her condition. Petition at ¶¶ 1, 2-16, 19-20; Stipulation at ¶¶ 3-5.
Respondent “denies that the flu vaccine caused petitioner’s alleged SIRVA or any other
injury and further denies that her current disabilities are a sequela of a vaccine-related
injury ” Stipulation at ¶ 6.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on January 24, 2018, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. The undersigned
finds the stipulation reasonable and adopts it as the decision of the Court in awarding
damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:
A lump sum of $122,000.00 in the form of a check payable to petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under 42 U.S.C. § 300aa-15(a). Id.
The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
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780 F.2d 1020
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.(The decision of the Court is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter.)CARLOS E. CHAVIS, Plaintiff-Appellant,v.PERRY M. JOHNSON, DIRECTOR MICHIGAN DEPARTMENT OFCORRECTIONS; DEAN H. MILLS, HEARING OFFICER,MICHIGAN DEPARTMENT OF CORRECTIONS,Defendants-Appellees.
84-1420
United States Court of Appeals, Sixth Circuit.
11/6/85
AFFIRMED
E.D.Mich.
ORDER
BEFORE: LIVELY, Chief Judge; and MARTIN and JONES, Circuit Judges.
1
Chavis appeals pro se from the district court's judgment dismissing his prisoner's civil rights case. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and Chavis' brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
2
Chavis is a prisoner at the state prison in Jackson, Michigan. The defendants are Michigan Department of Corrections officials. Chavis alleges that he was strip-searched by prison guards and that a $100 bill was confiscated from his person. The bill was later forfeited at a hearing, and Chavis received additional punishment for the offense. He alleges that these punishments constituted a due process violation because the rules governing his offense were not properly promulgated under state law.
3
The district court held that Chavis had failed to state a valid claim because his case raised merely a question of state law that did not rise to the level of a constitutional violation. Paul v. Davis, 424 U.S. 693, 698-99 (1976). The court also held that Chavis had received proper due process during the disciplinary hearing procedures. Wolff v. McDonnell, 418 U.S. 539, 563-7 (1974). We agree with these conclusions of the district court.
4
In his brief, Chavis argues that it was incorrect for the district court to dismiss his case sua sponte under Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983). However, it is proper for a district court to dismiss a case sua sponte if the complaint is frivolous under 28 U.S.C. Sec. 1915(d). Brooks v. Warden Mike Dutton, 751 F.2d 197, 199 (6th Cir. 1985). Because the complaint in this case was frivolous, it was proper for the district court to sua sponte dismiss the case.
5
The judgment of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4544
ELIJAH JEROME WHITE, a/k/a Dice,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-98-455)
Submitted: November 27, 2002
Decided: December 17, 2002
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
M. Gordon Widenhouse, Jr., RUDOLF, MAHER, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. J. Strom Thur-
mond, Jr., United States Attorney, Miller W. Shealy, Jr., Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WHITE
OPINION
PER CURIAM:
Elijah Jerome White, a/k/a "Dice," was convicted pursuant to a
plea agreement for conspiracy to possess with intent to distribute and
to distribute cocaine and cocaine base. He received a 360-month sen-
tence. On appeal, White argues that the district court erred in: (1)
denying his motion to compel the government to file a motion for a
downward departure based on his cooperation; (2) imposing a sen-
tence greater than 240 months imprisonment given that the drug quan-
tity was not specified in the indictment; (3) enhancing his sentence in
light of the government’s failure to provide notice of his prior felony
convictions; (4) sentencing him as a career offender under the sen-
tencing guidelines; (5) denying his motion for a downward adjust-
ment for acceptance of responsibility; and (6) using a prior conviction
that had been expunged to sentence him. Finding no reversible error,
we affirm.
White first argues that the district court erred in denying his motion
to enforce the plea agreement because the agreement required the
government to move for a downward departure based on his coopera-
tion. White’s plea agreement contained no unconditional promise to
file a motion for downward departure, but instead left the decision to
the Government’s discretion. Furthermore, there is no evidence or
allegation that the Government’s refusal to move for a downward
departure was based upon an unconstitutional motive or that the Gov-
ernment acted in bad faith. See Wade v. United States, 504 U.S. 181,
185-86 (1992). Accordingly, we find this claim without merit.
White next contends that the district court erred in imposing a sen-
tence in excess of twenty years because drug quantity was not alleged
in the indictment, and therefore he should not have been sentenced in
excess of 240 months under Apprendi v. New Jersey, 530 U.S. 466
(2000). In his plea agreement, White stipulated and agreed that the
quantity of cocaine involved was at least 5 to 15 kilograms, and that
the amount of cocaine base was at least 50 grams with a base offense
level of at least 32 for purposes of calculating his sentence. He further
stipulated that he had at least two prior felony drug convictions within
UNITED STATES v. WHITE 3
the meaning of 21 U.S.C. § 851 (1994), and that the filing of the
agreement constituted the filing of an adequate § 851 information.
We find that the Supreme Court’s holding in Apprendi is not impli-
cated in this case. Because White stipulated to having a prior drug fel-
ony conviction and to the Government’s filing of a proper information
with the district court in that regard pursuant to 21 U.S.C. § 851, his
statutory maximum sentence under 21 U.S.C. § 841(b)(1)(C) (2000)
was thirty years. Because § 841(b)(1)(C) authorizes a ten-year
enhancement based solely on a defendant’s prior felony convictions,
and Apprendi explicitly exempts prior convictions from its scope, 530
U.S. at 490, White’s thirty-year sentence does not contain an
Apprendi defect. The Apprendi rule simply does not apply to penalty
enhancements based on prior convictions. Id. Accordingly, this claim
is also without merit.
In a related argument, White maintains that the district court erred
in enhancing his sentence where the Government failed to provide the
required statutory notice of prior convictions before the guilty plea.
He maintains that the Government sought to enhance his sentence
under § 841(b)(1)(A) because he committed the subject offense "after
a prior conviction for a felony drug offense has become final." He
states, however, that it was incumbent upon the government to file an
information with the court stating in writing the previous convictions
relied upon before entry of a guilty plea, pursuant to 21 U.S.C.
§ 851(a)(1). We also find this claim non-meritorious. White stipulated
to "a prior conviction for a felony drug offense" in his plea agreement.
He does not contend on appeal that the plea agreement is somehow
invalid or that his plea was not knowingly and voluntarily entered.
Accordingly, he is bound by the terms of his plea agreement. United
States v. Williams, 29 F.3d 172, 174-75 (4th Cir. 1994); United States
v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).
Additionally, White argues that the district court erred in finding
he was a career offender under U. S. Sentencing Guidelines Manual
§ 4B1.1 (2000), because the earlier convictions upon which the classi-
fication was based were merely part of an ongoing conspiracy involv-
ing the same people with whom he was charged with conspiring in
the instant offense. Hence, he contends, they were part of the instant
4 UNITED STATES v. WHITE
offense and therefore should not have been considered "prior convic-
tions" under the guidelines.
This court conducts de novo review of legal interpretation of the
guidelines and reviews the underlying factual findings for clear error.
United States v. Williams, 977 F.2d 866, 869 (4th Cir. 1992); United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Because
White challenges the district court’s determination of whether his pre-
vious convictions qualified as a prior felony conviction under the
career offender guideline, this court reviews this issue de novo.
United States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996). White
specifically argues that his prior convictions were a part of the ongo-
ing conspiracy that formed the basis for the subject conviction, and
therefore should not be considered "prior felony convictions" within
the meaning of the guideline. The superseding indictment alleges that
the conspiracy for which White was convicted began in 1995. The
three prior felony convictions in question occurred well before 1995.
We find this claim is wholly without merit.
White also argues that the district court erred in denying him a
reduction in his offense level for acceptance of responsibility pursuant
to USSG § 3E1.1(a). The denial of an adjustment for acceptance of
responsibility is a factual determination reviewed for clear error.
United States v. Miller, 77 F.3d 71, 74 (4th Cir. 1996). The determi-
nation of the district court is due great deference on review. United
States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996) (citing U.S. Sen-
tencing Guidelines Manual § 3E1.1, cmt. n.5 (1993)). The burden is
on the defendant to establish by a preponderance of the evidence that
he is entitled to the adjustment. United States v. Urrego-Linares, 879
F.2d 1234, 1238-39 (4th Cir. 1989). In all but extraordinary cases, a
defendant who receives an enhancement in his sentence for obstruc-
tion of justice is not entitled to a reduction for acceptance of responsi-
bility. USSG § 3E1.1, cmt. n.4 (2000). Here, White received a two-
level enhancement for obstruction of justice under USSG § 3C1.1.
White fled the jurisdiction in violation of his bond and did not appear
for sentencing. Although he claimed to have fled because he was in
fear for his life, White was ultimately arrested in North Carolina dur-
ing the course of a new drug crime. In light of these facts, we find
no clear error in the court’s denial of White’s motion for a downward
adjustment based on acceptance of responsibility.
UNITED STATES v. WHITE 5
Last, White contends that a prior conviction that had been
expunged was used against him in calculating his criminal history, in
violation of USSG § 4A1.2(j), which provides that sentences for
expunged convictions cannot be counted in computing criminal his-
tory points. The record discloses, however, that White was not
assessed criminal history points for the November 1997 incident in
question as there was no conviction. We conclude that there was no
violation of USSG § 4A1.2(j). To the extent that White argues that the
use of this incident as relevant conduct was also prohibited by USSG
§ 4A1.2(j), the argument is baseless. See United States v. Watts, 519
U.S. 148, 155-57 (1997) (holding that an absence of a conviction does
not prevent the sentencing court from considering conduct underlying
the acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence).
Accordingly, we affirm White’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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49 F.Supp. 738 (1943)
McCONNOR
v.
KAUFMAN et al.
District Court, S. D. New York.
March 12, 1943.
*739 Harry Weinberger, of New York City (W. E. Aronberg, of New York City, of counsel), for plaintiff.
Howard E. Reinheimer, of New York City (Irving Cohen, of New York City, and Lee Moselle, of counsel), for defendants George S. Kaufman and Moss Hart.
Robert W. Perkins, of New York City (Joseph D. Karp and Stanleigh P. Friedman, both of New York City, of counsel), for defendant Warner Bros. Pictures.
Weil, Gotshal & Manges, of New York City (Horace S. Manges, of New York City, of counsel), for defendant Random House, Inc.
O'Brien, Driscoll & Raftery, of New York City (Benjamin Pepper, of New York City, of counsel), for executors of estate of Sam H. Harris.
GALSTON, District Judge.
This action accuses "The Man Who Came to Dinner", a very successful comedy played on the stage in New York City and elsewhere in the United States, produced also as a moving picture and published as a book, of infringement of plaintiff's copyright in an unpublished and unproduced play entitled "Sticks and Stones", the copyright title of which was "The Murder Issue". Of the defendants named, George S. Kaufman and Moss Hart were the playwrights; Sam H. Harris, deceased, had presented the play on the stage; Random House, Inc., had published the play; and Warner Bros. Pictures, Inc., had produced the motion picture. James Monks, named as a defendant, is alleged to have been a co-owner of the plaintiff's play, but since the filing of the complaint has assigned all his right, title and interest in and to the copyright to the plaintiff. It is conceded that the defendants stand or fall with the determination of the issue of infringement.
The material allegations of the complaint are denied and Kaufman and Hart also deny that either of them had read plaintiff's play or copied any part thereof.
It will suffice to adopt as descriptions of the two plays the summaries given by the plaintiff when testifying before trial. He said of his own play:
"It is the story of Wainright, a famous radio columnist and writer, who is working on a book with his friend who is the editor of a magazine. They are working in Wainright's apartment. His servant is a man named Herbert. The other members of the staff of the magazine begin to come into the apartment for a meeting to decide upon a form for a novel edition of *740 the magazine. Among those are Paula Harper, Freddie, Steve, George Solomon, the music critic, and Homer Adams, the art editor. The first act is a creation of this special edition of the magazine with the various members of the staff coming in. It develops that all of the staff members know a well-known actress, named Stella Morgan. She is the sister of Freddie. She has been seen with Steve with whom Freddie is in love. She is involved with all the other members of the staff in one way or another. During the conference, various suggestions are given as a title for the special issue of the magazine. Through this, the servant, Herbert, keeps reappearing, serving drinks, etc. Paula Harper arrives with her husband who has been drinking too much and who has been in a fight. The mumbling of this character in which he says that he will murder someone brings up the idea of a special issue on murder and they decide to call the issue a murder issue. At this point, a detective comes in with a policeman announcing that Stella Morgan has been murdered and that Steve is suspected of the murder, which is the curtain of the first act.
"The second act begins at a radio broadcast by Wainright. This broadcast is a satirical speech in which Wainright closes the broadcast and an announcer reads the commercial. This broadcast is given from his apartment because Wainright has an injured leg and is unable to move from the sofa. At the end of the broadcast, Freddie and Steve and other characters begin to come into the apartment. It develops that Steve is still suspected of the murder, but has been allowed his freedom and the police are trying to solve the mystery. The magazine material has turned out to be a complete flop and the various editors have to rewrite their material before the magazine comes out. During the act, it develops that every character has been even more thoroughly involved with Stella Morgan than was previously known. She had been seen with most of them and Freddie becomes very jealous of Steve's attitude toward Stella before she died. The police have still not solved the murder and Wainright is resolved that he is going to. His injury is a fake. He has used it to get the radio broadcast and these people to his apartment, which his servant knows. The detective, Duffy, comes to the apartment and questions Wainright, implying that he is suspicious of him. All the other characters leave after recriminations among all of them. Leaving Wainright with the detective and his servant, Herbert, it develops that the detective remembers having seen the servant some place and Wainright discloses that he was an acquitted hatchet murderer. The detective leaves and Wainright gets to his feet. He then prepares to leave with Herbert on an errand which he hopes will solve the mystery, ending the second act.
"In the third act, Wainright is back at his apartment, the same night. Some of the other characters begin to return, saying that they have been working with Madison trying to save the murder issue. It develops that Wainright has discovered the murderer and expects him to come to the apartment. Several of the characters return, including Louise, the fashion expert, and finally the murderer comes Homer Adams. Wainright persuades him to dictate a confession which he does. The murderer then tries to force Wainright to sign the confession, planning to shoot him after he does so. At this point, the police arrive but before they get in Wainright convinces Adams that he should escape to his summer home on an island in Nova Scotia and after convincing Adams that he is not trying to catch him, Adams agrees to catch the train and leaves. The police break in and arrest Wainright for the murder of Stella Morgan. Paula Harper also arrives and Wainright tells her that the murderer's confession has been recorded on the equipment which was earlier used in his broadcast and she can obtain these records from the broadcasting company the next day. They are to be used as a scoop in the murder issue of the magazine. The play ends with the police taking Wainright off to jail. That is the curtain of the last act."
Of the defendants' play his summary recites:
"It is the story of a radio personality a writer who is visiting a town somewhere where in the Midwest and while having dinner with some of the local people, slips and breaks his hip. He is confined to the house during his convalescence and to the house come various of his friends. In the house is a middle-aged, married couple, with two children and a sister of the husband, whom Whiteside vaguely remembers. The play is a series of visitors from New York and London, including a famous actress, a man who plays the piano, a Hollywood *741 actor. With Whiteside is his secretary, who falls in love with a reporter actually the owner of the local newspaper, who has written a play. During Whiteside's stay at this house, he realizes that his secretary is in love for the first time and that he will have to break it up to keep her as his secretary. He uses the various visitors who come to see him to break the romance. He does his Christmas broadcast in the house as a result of being held there by his injury. This injury it develops is not a real injury. The doctor had read the wrong X-rays and he can get up and walk around, which he does.
"Whiteside sends for a famous actress knowing that she is looking for a play and that the play the newspaper man has written can be a vehicle for her. This he hopes will break up the romance between his secretary and the newspaperman. The actress arrives. The plan works successfully. The secretary, however, is really in love with the newspaperman and when Whiteside discovers this, he regrets having mixed up the affair. He then proceeds to get rid of the actress by shipping her off in a mummy crate.
"Meanwhile, the people in the house have been trying to get rid of him and after several weeks of warning that he must be out that day or they will have sheriffs put him out. Just as the sheriffs arrive, Whiteside remembers where he has seen the face of Mr. Stanley's sister. She was a famous and acquitted hatchet murderer. Using this, he forces Stanley to leave him alone, but now that the secretary and her newspaperman are happily engaged, he is free to go and starts off again back to New York ostensibly. He falls down the steps and is brought back this time apparently with a broken hip, which ends the play."
From these summaries, and more particularly from a reading of the two plays, it appears that the plaintiff's is a mystery play, the defendants' a comedy. The two plays have in common the character of Alexander Woolcott, a wellknown dramatic critic, book reviewer and radio monologist. In "Sticks and Stones" he is the Wilmer Wainright, a member of the staff of "The Manhattan". In the defendants' play he is Sheridan Whiteside. At the trial Woolcott was described as an individual of varied interests, of many social facets, and unpredictable alike in utterance and mood. The plaintiff seized upon Woolcott's interest in mystery murders and accordingly built up his drama around the mystery involved. In a somewhat conventional way suspicion is directed first to one and then to another of "The Manhattan" group. Rather cleverly the confession of the murderer is obtained with the aid of a concealed recording disc. The purpose of the broadcast scene thus is not only to bring the group to Wainright's apartment, but more particularly to enable the installation of a dictaphone by means of which the murderer may be trapped.
To a widely different theme, the defendant playwrights contribute a far richer delineation of Woolcott's character. Without unfairness, perhaps it could be said that the plaintiff's Woolcott is static, whereas that of the defendants is dynamic, passing through various stages from offensive irrascibility to temporary gentleness and contrition. The plaintiff was at a disadvantage in never having met Woolcott. So he had to build his character on knowledge within the public demesne. On the other hand, Kaufman and Hart were intimate friends of Woolcott. Hart had known him for thirteen years and Kaufman for twenty-five years. As joint owners with Woolcott of a camp in Vermont, they had lived under the same roof. They frequently visited his home, as he did theirs. They belonged to the same social coterie. Their opportunities for personal character study were in consequence far superior to those of the plaintiff. So it is easy to understand that the Wainright of "Sticks and Stones", though three-dimensional, does not leap from the page as does the Whiteside of "The Man Who Came to Dinner".
The character delineations are explainable also on other grounds. In the plaintiff's play Wainright is not always the focal interest; but there is no moment in "The Man Who Came to Dinner" during which Whiteside fails to rivet attention. The nature of the plots also affords explanation of that contrast. As is common expedient in mystery drama, the focus of attention through the medium of diverted suspicion is directed to various persons by the employment of the not unfamiliar ruse of true and false alibis. The Woolcott personality is in no way essential to the development of the plaintiff's play. As a mystery play, any of the well-known fictional detectives would have carried out the solution of the murder without loss of interest *742 in the play. But in the defendants' play no substitution of character could have been effected without a breakdown of the play. Almost an equation was established by the playwrights of "The Man Who Came to Dinner". Whiteside was Woolcott. Other evidences of this fundamental difference in the plot structure and characterizations are not hard to find. In the plaintiff's play there are sub-plots; there is the desire of the publisher of "The Manhattan" to get out a novel issue to increase circulation of the periodical; there is the effort to write a new mystery play; there is threatened blackmail to account for the murder. None of these sub-plots radiates from the character Wainright. In the defendants' play there are no sub-plots except such as are developed by Whiteside himself. The evident purpose of the playwrights was to use these sub-plots for the sole purpose of revealing the personality of Whiteside. In "The Man Who Came to Dinner" we find a development evidencing an original and varied background. The characterization is kaleidoscopic, as apparently was Woolcott, the man. One gets no such visualization from the reading of the plaintiff's play. Indeed it is not too much to say that given the plaintiff's play, one could read it from cover to cover and study it to the proverbial doomsday without drawing the slightest suggestion of the plot, setting, sequence, dialogue or dramatis personae (Wainright alone excepted, but not with anything like the development of the defendants' treatment) of "The Man Who Came to Dinner".
That leads to the discussion of the question of access. The proof discloses that the plaintiff, through the medium of a play-broker, caused his play to be submitted to Kaufman some time early in 1936. This press agent, Arthur Levy, asked Kaufman to read the script. Kaufman handed the play to his secretary, Myra Streger, and requested her to read it. After she had reported orally, Kaufman wrote a letter, which bears no date, to Levy, wherein he said that he thought the play "pretty good, but there is just nothing I can do about it. I have to work on my own things * * *; twice this season I dabbled in outside shows and each time they ran a week. So I am cured, for the present at least.
"Specifically, I think the Woolcott character is fine, but Ross is rather dull too much whining and prodding. The scenes in which he is involved seem repetitious. Also the general swinging of the finger of suspicion in Act Two is somewhat conventional and not always sufficiently motivated.
"But it is pretty good, and I don't know why somebody should not put it on with you. It just cannot be me and I regret it.
"George".
Both Kaufman and Hart deny that they had read the play. Mrs. Streger had read it, and she was present when Kaufman typed the letter to Levy. Indirect access, therefore, was established, at least so far as Kaufman was concerned. Despite the similarities, which will presently be discussed, I accept his testimony and Hart's that they had not read "Sticks and Stones", though it may be that Mrs. Streger's oral report to Kaufman was a more detailed review than she was able to recall at the trial. Mrs. Streger explained, and Kaufman himself testified, that he was not interested in putting on mystery plays, for they offered no lure of financial success. It is significant that after the Kaufman rejection there was no production or other publication of the plaintiff's play. Two years elapsed before the defendants began the writing of their play. The origin was plausibly explained by Hart. It seems that Woolcott had visited Hart's home in Bucks County, Pennsylvania, in December, 1937, and had proved himself a thoroughly disagreeable visitor. At the conclusion of the visit he inscribed in Hart's guest book, under date of January 3, 1938, this comment:
"This is to certify that, on my first visit to Moss Hart's manor house I had one of the most unpleasant evenings I can recall ever having spent.
"Alexander Woolcott."
To which there is appended a post-script, written by Moss Hart:
"Through no fault of mine Mr. Woolcott was drunk and Max Gordon was here."
Following that visit Hart discussed with Kaufman Woolcott's behavior at his home and Woolcott's desire to have a play. Thus they saw the possibility of writing a play which revolved about Woolcoot himself.
Assuming for the moment direct and not merely indirect access, what is the evidence of copying? The plaintiff points out certain similarities, and correctly, but as will be observed they are of a minor *743 nature and only superficially alike. For example in both plays we find a line referring to calves' foot jelly a time honored gift to an invalid. Then there is the matter of baby talk by the Woolcott characters. However, as was explained by Hart, this was one of Woolcott's irritating weaknesses. It was apparently known to the public as well as to his intimates and is made use of in "Entirely Surrounded", a novel written by Charles Brackett. That book, it may be observed, in addition to having Woolcott recite a favorite jingle of Woolcott, "I'se des a ittle wabbit", etc., which is recited by Whiteside, is a vivid portrayal of Woolcott in all his moods. It was published in 1934, prior to the plays of both plaintiff and defendants, and Hart testified that he had read "Entirely Surrounded" shortly after its publication. Equally available to the public was "Brief Moment", a play by S. N. Behrman and published in book form in 1931, The cast of that play includes one "Harold Sigrift * * * very fat; * * * and lies down whenever possible. He somewhat resembles Alexander Woolcott, who conceivably might play him." Other Woolcottian traits depicted in defendants' play may be found in Behrman's play. Both Brackett and Behrman had been friends of Woolcott.
Thus the defendants had access to material which served them far more abundantly than access to the plaintiff's play. The matter of public demesne is in consequence important. See Sheldon v. MetroGoldwyn Pictures Corp., 2 Cir., 81 F.2d 49, at page 54.
Thirdly there is the device of a feigned injury. Whiteside's injury, however, was not feigned. He had fallen on the ice and sustained an actual injury. It cannot be argued that because the doctor's original diagnosis was disproved by a subsequent reading of an X-ray plate, Whiteside had not suffered pain and discomfort sufficient to keep him in a wheeled chair for a time. That situation is quite different from the injury feigned by Wainright and designed by him to throw suspicion on himself as the murderer of Stella Morgan.
Again, plaintiff makes much of the adoption by Kaufman and Hart of the radio broadcasts from the Stanley home, because the same instrumentality is employed in "Sticks and Stones". Even here, however, the plaintiff fails to show copying because the testimony establishes that Woolcott, while he was a patient at the Doctors' Hospital, had on at least two occasions broadcast from his room in that institution. Moreover, even as a stage device it was not new with the plaintiff, but had been known to and actually used by Kaufman in several of his earlier plays.
Not so readily explainable are the similarities found in the use by the defendant of the names "Ginger Rogers", "Tiny Tim", "Lord Fauntleroy" and "Florence Nightingale", except as one might find a sufficient explanation in the text itself. Just why Ginger Rogers, famous as she is as a moving picture actress, was hit upon in both plays, is not clear. The reporter who, in Scene 1 of the plaintiff's play, seeks her, might just as well be looking for any other moving picture actress. The name is used, I believe, only once in each play. Likewise in defendants' play, the name of any well-known actress could have been used with equal effect. Indeed, in the so-called final script of defendants' play her name does not appear. In a closely related passage almost immediately following, Whiteside refers to "Martha Raye", also a well-known screen actress. Nevertheless it is to be noted that just as the name "Ginger Rogers" did not appear in the final script of "The Man Who Came to Dinner", neither does the name "Little Lord Fauntleroy". It may be observed that Hart was doubtless in error in testifying that Defendants' Exhibit C was their final script, for in addition to the variations heretofore noted between the final script and the alleged infringing play, the dialogue between Whiteside and Maggie in Act One, Scene 1, relating to the cablegram Whiteside has received from Beverly Carlton, differs in the two versions.
As to "Tiny Tim", in the plaintiff's play, in the second scene of Act One, during the discussion among the members of the staff of "The Manhattan", Madison, the publisher or editor, says: "Damn the lot of you!" and Wainright adds: "Said Tiny Tim". Just how meaningful that observation was is doubtful. In "The Man Who Came to Dinner", in Act Three, after Christmas greetings have been expressed by Dr. Bradley, Bert, the young newspaper man, exclaims "God bless us all and Tiny Tim". This at least has some meaning, since one inevitably associates "Tiny Tim" with the Christmas celebration.
I believe the only reference to Lord Fauntleroy in the plaintiff's play is that *744 in which Paula, an associate editor of "The Manhattan", says to her inebriated spouse, Jerry, also an associate editor of "The Manhattan": "Take it easy, Lord Fauntleroy! You're covering a show tonight." In the defendants' play, Maggie, Whiteside's secretary, delivering a tongue lashing to Whiteside for his interference in her love affair, concludes the tirade with: "That's my message to you, Big Lord Fauntleroy."[1]
A reference to "Florence Nightingale" is made by the defendants as well as by the plaintiff. But it must be remembered that "Tiny Tim", "Florence Nightingale" and "Lord Fauntleroy", when used as rhetorical personifications, though they might well predicate access, are in themselves not copyrightable, and their adoption by the defendants in totally different settings from the rather pointless use of the plaintiff, falls far short of "copying" within the law of copyrights.
Again, in the final scene of "Sticks and Stones" Paula says to Wainright as he is arrested for the murder of Stella: "We'll get you out! We'll get Max Steuer". In defendants' play, in the very beginning of the play, Whiteside, asked about his condition by Stanley, replies that he is suing for $150,000. Whereupon Mrs. Stanley exclaims: "You mean because you fell on our steps, Mr. Whiteside?" to which he responds: "Samuel J. Leibowitz will explain it to you in court. * * *. In both plays also there is a reference to a "hatchet murder". Duffy, the detective in "Sticks and Stones", says to Herbert, Wainright's butler: "I have seen you some place before * * * been trying to place your face for over a week." In "The Man Who Came to Dinner", Whiteside, on meeting Harriet Stanley, the sister of his host, exclaims: "You know, I have seen that face before somewhere." Herbert, so it developed, had been accused of a "hatchet murder" as had Harriet Stanley. The two incidents are, however, used for totally different purposes in the two plays. In "Sticks and Stones" the situation is of interest only as pointing out another possible murderer. In "The Man Who Came to Dinner", Whiteside's memories are finally sufficiently stirred to enable him to identify Harriet Stanley as the woman who had murdered her parents with an axe twenty-five years before. This was apparently not known to the Mesalia community in which the Stanleys lived, and Whiteside's identification enables him to compel Stanley to call off the officers whom Stanley had summoned to eject Whiteside from his home. In this connection it may be mentioned that Woolcott was known to have had an absorbing interest in the famous Lizzie Borden murder trial in which the defendant was accused of slaying her mother and father with a hatchet.
The defendants are charged also with having used the mechanism of the love triangle. Whiteside's secretary and the young newspaper man are indeed in love with each other, but there is nothing to indicate that Lorraine Sheldon has any affection for the young man, nor the young fellow for her. Lorraine's activities were wholly instigated by Whiteside. In the end the whole incident serves as a means of portraying first the selfish, conceited, exhibitionist phases of Whiteside's character, and then his gentler nature. In the plaintiff's play, the triangle is wholly unrelated to Wainright and at best is but faintly indicated. It serves only to point the finger of suspicion at another candidate for the roll of murderer.
In sum, these similarities are of the most trivial nature and even when they occur are not in the same setting. Judge Mayer observed years ago in Stevenson v. Harris, D.C., 238 F. 432, 436: "It will never do to hold that, because an incident here or there is used in the later production which was used in another relation and situation in the former copyrighted book or play, therefore the later production infringes the copyright of the former." See, also, Bein v. Warner Bros. Pictures, Inc., 2 Cir., 105 F.2d 969; Nichols v. Universal Pictures Corporation et al., 2 Cir., 45 F.2d 119.
Even on the assumption that all of the suggested similarities stemmed from the plaintiff's play, there remains such gross dissimilarity in all the other aspects of the two plays, particularly in the important subjects of theme, dialogue, setting and sequence, as to defeat the charge of substantial copying. Without such evidence plaintiff must fail. Dymow v. Bolton, *745 2 Cir., 11 F.2d 690; Frankel v. Irwin et al., 2 Cir., 34 F.2d 142; and Carr v. National Capital Press, Inc., 63 App.D.C. 210, 71 F.2d 220. The ordinary reader would find no connection between the two plays. Bachman v. Belasco, 2 Cir., 224 F. 817. And the ordinary observer rule is an accepted test. Nichols v. Universal Pictures Corporation et al., supra; Dymow v. Bolton, supra; Frankel v. Irwin et al., supra; Carr v. National Capital Press, Inc., supra; and Kustoff v. Chaplin, 9 Cir., 120 F.2d 551. However, neither the ordinary observer nor the keenest critic could recognize "The Man Who Came to Dinner" as a reproduction or copy of "Sticks and Stones". It would take more than a play doctor to transmute one into the other. White-Smith Co. v. Apollo Co., 209 U.S. 1, 17, 28 S.Ct. 319, 323, 52 L.Ed. 655, 14 Ann. Cas. 628, wherein it is said: "What is meant by a copy? We have already referred to the common understanding of it as a reproduction or duplication of a thing. A definition was given by Bailey, J., in West v. Francis, 5 B. & A. 743, quoted with approval in Boosey v. Whight, supra [80 L.T.R. 561]. He said: `A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original.'" See, also, King Features Syndicate v. Fleischer, 2 Cir., 299 F. 533.
In passing it may be observed that there are differences between plaintiff's copyrighted play and the version submitted to Kaufman. Scene 1 is set in Stella Morgan's apartment in the copyrighted play, whereas in the altered version, Scene 1 is in the bar of "21". The copyrighted version does not disclose Wainright as a nonalcoholic, as does the latter, nor is there a love triangle in the copyrighted play. Neither "Tiny Tim" nor "Steuer" is mentioned in the copyrighted version. The copyrighted play makes it clearer, if that were necessary, that the main purpose of the radio broadcast from Wainright's home was to enable him to conceal the microphone and thus make a permanent record of the murderer's confession.
However, "The Man Who Came to Dinner" infringes neither the copyrighted version nor the play submitted by the plaintiff to Kaufman. Accordingly the complaint will be dismissed with reasonable counsel fees and costs. On the subject of what are reasonable counsel fees, counsel will be heard at the time that the proposed decree is submitted. There will be filed separately findings of fact and conclusions of law in conformity with the foregoing opinion.
NOTES
[1] This quoted sentence does not appear in the final script of defendants' play, Defendants' Exhibit C.
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36 F.3d 1093
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Randall J. KEYES, a/k/a Randall Jack Keyes, Plaintiff Appellant,v.Charles J. CEPAK, Warden of the Central CorrectionalInstitution, Defendant Appellee.
No. 94-6331.
United States Court of Appeals, Fourth Circuit.
Submitted: July 12, 1994.Decided: Sept. 28, 1994.
Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (CA-94-596-3-17BC)
Randall J. Keyes, appellant pro se.
D.S.C.
AFFIRMED.
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
PER CURIAM:
1
Appellant appeals from the district court's order denying relief on his 42 U.S.C. Sec. 1983 (1988) complaint. Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Keyes v. Cepak, No. CA-94-596-3-17BC (D.S.C. Mar. 7, 1994). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
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Filed 2/5/14 P. v. Bray CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059821
v. (Super.Ct.No. FBA04809)
MAURICE BRAY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant Maurice Bray is serving a term of 23 years and four months, plus 125
years to life, after a jury convicted him of multiple counts stemming from an armed bank
robbery. Defendant appeals from the trial court’s order denying his motion to recall his
1
sentence under the Three Strikes Reform Act of 2012, also known as Proposition 36.
(Pen. Code, § 1170.126).1 As discussed below, we affirm.
On March 11, 1998, defendant and two accomplices donned masks and robbed a
bank at gunpoint. They were arrested later that day. A jury convicted defendant of three
counts of second degree robbery (§ 211), five counts of assault with a firearm (§ 245,
subd. (a)(2)), and one count of being a felon in possession of a firearm (§ 12021, subd.
(a)(1)). The jury also found true as to each of the robbery counts that defendant used a
firearm during a violent felony (§ 12022.53, subd. (b)) and as to each of the assault
counts that he used a firearm during the commission of a felony (§ 12022.5, subd. (a).)
Finally, the jury found that defendant had two prior strike convictions—for robbery in
1982 and involuntary manslaughter (§ 192, subd. (a)) in 1993.
As a result, on December 3, 1998, defendant was sentenced under the three strikes
law to a determinate term of 23 years and four months, to be followed by five
consecutive terms of 25 years to life.
On November 6, 2012, the electorate passed Proposition 36. This ballot measure
enacted section 1170.126, which permits persons currently serving an indeterminate life
term under the three strikes law to file a petition in the sentencing court, seeking to be
resentenced to a determinate term as a second-striker. (§ 1170.126, subd. (f).) If the trial
court determines that the defendant meets the criteria of section 1170.126, subdivision
(e), the court may resentence the defendant. (§ 1170.126, subd. (f).)
1 All section references are to the Penal Code unless otherwise indicated.
2
Section 1170.126, subdivision (e)(1) provides, as pertinent here, that a defendant
is eligible for resentencing if he or she is “serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.”
On August 30, 2013, defendant filed a propria persona petition for resentencing
under section 1170.126. The court denied the petition on September 12, 2013, finding
that defendant’s current commitment offense for robbery is a serious felony under section
1192.7, which makes him ineligible for resentencing under section 1170.126.
DISCUSSION
Defendant timely appealed from the trial court’s denial of resentencing and, upon
his request, this court appointed counsel to represent him. Counsel has filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967)
386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential
arguable issues, and requesting this court conduct an independent review of the record.
The only arguable issue presented by defendant’s counsel was whether the trial court
erred by denying defendant’s petition for resentencing pursuant to section 1170.126.
Robbery is a serious felony. (§ 1192.7, subds. (c)(19).) Accordingly, defendant is
not eligible for resentencing pursuant to section 1170.126, subdivision (f).
3
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
KING
J.
4
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586 S.W.2d 664 (1979)
CORPUS CHRISTI BANK & TRUST et al., Appellants,
v.
William R. CROSS, David R. Baker and Lawrence Kieschnick d/b/a Cross, Baker & Kieschnick, Appellee.
No. 1390.
Court of Civil Appeals of Texas, Corpus Christi.
August 30, 1979.
Rehearing Denied September 21, 1979.
*665 Charles R. Cunningham, Corpus Christi, for appellants.
Scott T. Cook, Larry G. Hyden, Harris, Cook, Browning & Barker, Inc., Corpus Christi, for appellee.
OPINION
BISSETT, Justice.
This is an appeal from a judgment awarding plaintiff damages and attorney's fees in its suit for accountant's fees against the defendant bank in its individual capacity for services furnished the estate of a decedent while the defendant was temporary administrator of the estate. We affirm.
The present controversy arose out of the performance by William R. Cross, David R. Baker and Lawrence Kieschnick d/b/a Cross, Baker & Kieschnick (hereinafter referred to as "plaintiff") of certain accounting services for Corpus Christi Bank & Trust (hereinafter referred to as the "Bank"), the temporary administrator of the Estate of Mrs. Rose Van Cura Kosar (hereinafter referred to as the "Estate"). As a result of these services, a suit for accountant's fees was brought by plaintiff against the Bank in its individual corporate capacity. Trial was to a jury. Judgment was rendered in favor of plaintiff against the Bank in its individual corporate capacity. The Bank and Darlene Van Cura have appealed.[1]
*666 A threshold issue of a procedural nature has been raised by the Bank's seventh point of error. By this point, it is alleged that the trial court committed reversible error in three particulars: 1) in nonsuiting Darlene Van Cura (hereinafter referred to as "Van Cura") as a co-defendant in the plaintiff's suit for accountant's fees; 2) in ordering a separate trial of Van Cura's counterclaim for malpractice; and, 3) in ordering a severance of Van Cura's counterclaim for malpractice. In disposing of this point, we deem it necessary to briefly review the complex procedural history of this case.
The Bank and Van Cura were originally joined as co-defendants in the plaintiff's suit for accountant's fees. The Bank answered plaintiff's petition with a general denial and further brought a cross action for indemnity against Van Cura. The latter answered plaintiff's petition with general and special denials, and filed a counterclaim for malpractice. Van Cura was then non-suited by plaintiff, and the trial court ordered that her counterclaim be tried separately from the main action. The record does not reveal that any objections were raised by either of the defendants at that time.
Later, the Bank and Van Cura entered into an agreed partial summary judgment disposing of the Bank's cross action for indemnity against Van Cura. This agreed judgment ordered Van Cura, in her capacity as executrix of the Estate, to indemnify the Bank against any recovery which might be had by plaintiff in its main suit for accountant's fees. At this point, there was a certain merging of interests between the Bank and Van Cura, and the attorney for Van Cura was designated as additional counsel for the Bank. Trial of the main action was conducted before a jury which returned a verdict favorable to plaintiff. After return of the verdict, but before rendition of judgment, plaintiff moved to sever Van Cura's counterclaim. This was done, but not until after judgment had been rendered for plaintiff against the Bank and for the Bank against Van Cura. Hence, the posture of this case, as it stood when the judgment of the trial court was appealed, was that Van Cura had been removed from the law suit except insofar as the final judgment reflected the prior agreement of the parties evidenced by the partial summary judgment of indemnity.
We can find no reversible error alleged in the Bank's seventh point of error. The right to take a nonsuit when affirmative relief is not sought by defendant is absolute and cannot be denied by the trial court. State v. Gary, 359 S.W.2d 456 (Tex. Sup.1962); Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600 (1944); Brooks v. O'Connor, 120 Tex. 121, 39 S.W.2d 22 (1931); Ex parte Helle, 477 S.W.2d 379 (Tex.Civ. App.Corpus Christi 1972, no writ). Where defendant has filed a counterclaim seeking affirmative relief, however, plaintiff shall not be permitted, by a discontinuance of its suit, to prejudice the right of defendant to be heard on such counterclaim. Spence v. State National Bank of El Paso, 294 S.W. 618 (Tex.Civ.App.El Paso 1927) aff'd, 5 S.W.2d 754 (Tex.Com.App.1928); Valdez v. Gill, 537 S.W.2d 477 (Tex.Civ.App. San Antonio 1976, writ ref'd n. r. e.). Thus, Van Cura was not prejudiced by the trial court's action in nonsuiting plaintiff's claim against her for accountant's fees. Her claim for malpractice was alive and well at that moment. Coining the Bank's phraseology, Van Cura was not judicially stripped of her right to pursue her counter-claim against plaintiff by virtue of the non-suit.
Prior to Van Cura's nonsuit, her counterclaim for malpractice was compulsory under Rule 97(a), T.R.C.P. See In Re McCoy, 373 F.Supp. 180 (W.D.Tex.1974). The nonsuit had the effect of transforming the malpractice claim from a compulsory counterclaim into a separate action for damages. This is because Rule 97(a) does not contemplate a situation where the counter-plaintiff is no longer a party to the main action. See Valdez v. Gill, supra; Astro Sign Company v. Sullivan, 518 S.W.2d *667 420, 427 (Tex.Civ.App.Corpus Christi 1974, writ ref'd n. r. e.); Robertson v. Estate of Melton, 306 S.W.2d 811, 813 (Tex. Civ.App.Beaumont 1957, writ ref'd); Heights Funeral Home v. McClain, 288 S.W. 839, 843 (Tex.Civ.App.Beaumont 1956, no writ).
When the trial court ordered that Van Cura's malpractice claim be tried separately from the plaintiff's action for accountant's fees, Van Cura had the burden at that time to raise any error allegedly resulting from piecemeal litigation. See Lewis v. Texas Employers' Insurance Association, 151 Tex. 95, 246 S.W.2d 599 (Tex.Sup.1952). The record does not indicate that any such objection was raised by anyone at that time. Therefore we will not review the trial court's action in ordering separate trials.
Regarding the trial court's order severing Van Cura's claim for malpractice from the plaintiff's claim for accountant's fees (See Rule 41, T.R.C.P.), the record indicates that such decision was made by the trial court on March 9, 1978, the date the final judgment was signed. Acknowledging the general rule that severance of compulsory counterclaims usually will constitute an abuse of discretion, Bohart v. First National Bank in Dallas, 536 S.W.2d 234 (Tex.Civ.App.Eastland 1976, writ ref'd n. r. e.); Ball v. Cooper-Stanley Company, Inc., 413 S.W.2d 467 (Tex.Civ.App.Dallas 1967, no writ); Ulmer v. Mackey, 242 S.W.2d 679 (Tex.Civ.App.Fort Worth 1951, writ ref'd n. r. e.), it has already been noted that Van Cura's claim ceased to be a compulsory counterclaim after the plaintiff's nonsuit as to her. While severance of claims which are not compulsory counter-claims can also, in some circumstances, constitute an abuse of discretion, Cruz v. Guajardo, 502 S.W.2d 610 (Tex.Civ.App.Corpus Christi 1973, no writ), we find that Van Cura has not been prejudiced. Moreover, any waste of judicial economy or prejudice to Van Cura caused by piecemeal litigation was already an accomplished fact when the court finally ordered a severance of the claims. No abuse of discretion has been shown.
Finding no reversible error concerning the nonsuit of Van Cura or the severance of her malpractice claim, we are thus faced with a simple suit for accountant's fees brought by plaintiff against the Bank, the temporary administrator of the Estate, in its individual corporate capacity. The material facts of the case are not really in dispute, at least insofar as they relate to the appeal. The significance of the facts, though, is hotly contested by the parties; therefore, we shall endeavor to relate the events which gave rise to the controversy in as much detail as necessary.
Mrs. Kosar died on April 26, 1974, in Corpus Christi, Texas. Shortly after her death, Richard B. Stone, an attorney who had prepared a will for her in 1971, visited the Bank and advised David Brannon, an officer in its trust department, that the decedent, in the 1971 will, had named the Bank as independent executor. Brannon, acting for the Bank, agreed to attempt to qualify as independent executor, and requested Stone the identity of Mrs. Kosar's accountant. Stone told him that plaintiff had attended to the testatrix's accounting needs before her death. Stone testified that Brannon then indicated an intention of the Bank to retain plaintiff as an accounting firm in connection with its handling of the Estate. Brannon, however, had no personal recollection of any conversation with Stone concerning, specifically, the hiring of an accounting firm. Brannon testified that plaintiff was not retained by the Bank to furnish accounting services for the Estate until after the Bank became temporary administrator thereof. This was disputed by Cross, who testified to a telephone conversation with Brannon that took place about one week after Mrs. Kosar's death, in which, according to Cross, Brannon requested that plaintiff prepare a federal estate tax return for the Estate.
Stone further testified that he was given authority to deal with plaintiff on behalf of *668 the Bank, and that he personally informed plaintiff that the Bank desired it to perform accounting services in connection with the Estate. This was consistent with Cross's testimony relating to the aforesaid telephone conversation with Brannon about a week after Mrs. Kosar's death.
It soon became apparent to all concerned that the contemplated probate of the 1971 will would not be a simple matter. About the time that Stone filed the 1971 will for probate he was advised that another will (hereinafter referred to as the "second will") also had been offered for probate. A will contest developed, and the Bank was appointed temporary administrator of the Estate on June 18, 1974. It was specially authorized to:
"... take possession of the property of the estate, collect all monies and debts due the estate, and pay all debts due by the deceased, after the same are properly verified as the law requires under administration and approved by the court and to do and perform all such acts as may be necessary for the preservation of the estate ...." (Emphasis supplied).
In furtherance of these duties, the probate court, on June 11, 1974, granted the Bank's request to retain plaintiff to prepare the federal estate tax return, the state inheritance tax return and income tax returns on behalf of both the decedent and the Estate.
The temporary administration lasted into November, 1975, during which time the will contest continued and attempts were made by the opponents of the 1971 will to have the Bank removed as temporary administrator. The will contest was settled on November 5, 1975, and Van Cura qualified as independent executrix of the Estate pursuant to her nomination as such by the appropriate provisions of the second will, which by agreement of all parties and the concurrence of the probate court, was duly admitted to probate as the last will and testament of Mrs. Kosar. Pursuant to the settlement agreement, the Bank delivered all records and assets of the Estate to Van Cura on November 7, 1975. Temporary administration was closed per order of the probate court, which was signed on November 16, 1975. The instant suit was filed by plaintiff on February 18, 1976.
It is undisputed that plaintiff performed accounting services for the Bank in connection with the Estate sometime between the date of Mrs. Kosar's death, and November 7, 1975. Those services included: determining the extent and location of all assets of the Estate; gathering those assets together; preparing a summary of monies received by Mrs. Kosar from her husband's estate during the three years next preceding her death, apparently to determine whether a claim should be brought by the Bank on behalf of the Estate against the husband's estate; assistance in obtaining extension of time for filing the state inheritance tax return; and assistance in responding to discovery launched by opponents of the 1971 will in relation to the ongoing will contest and their attempts to remove the Bank as temporary administrator of the Estate.
Mention has already been made of evidence that plaintiff was hired as early as a week after Kosar's death to prepare the Estate Tax Return. Brannon denied that Stone was ever given authority to retain plaintiff. This was disputed by Stone, who testified that he called upon plaintiff for assistance in preparing the Bank's application for appointment as temporary administrator. Stone also testified that, while no tax returns were prepared by plaintiff before June 18, 1975, the date of the Bank's appointment as temporary administrator, work necessary to the preparation of such returns had commenced shortly after the date of Mrs. Kosar's death. Cross and Baker testified that, during the weeks immediately following Mrs. Kosar's death, they worked closely with Stone in preparing an inventory of the Estate and the Bank's application for probate of the 1971 will.
The first statement presented by plaintiff to the Bank for services rendered was dated August 19, 1975. That statement, which was neither itemized nor verified, showed a total of $7,800.00 due and owing as compensation *669 for the preparation of the three different tax returns, hereinbefore mentioned. It was addressed to the Estate in care of the Bank in its capacity as temporary administrator thereof. A second such statement was presented to the Bank on or about November 7, 1975. This statement carried over the balance due under the August bill and, in addition, indicated that an additional $1,225.00 was due and owing for services rendered in connection with discovery relating to suits involving the Bank as temporary administrator of the Estate. The monies evidenced by the statements were not paid. In response to special issues, the jury found that the Bank had authorized plaintiff to perform services in connection with the Estate and that plaintiff had performed such services, worth $9,025.00, in a good, accountant-like manner. In addition, the jury awarded attorneys' fees for the prosecution of its suit against the Bank. Judgment was rendered upon the verdict.
There is, in our opinion, abundant evidence to support the jury findings. The question to be resolved, however, is whether those findings will support a judgment against the Bank in its individual capacity.
The liability of an estate for professional services rendered to it, whether directly to the person furnishing such services upon a proper claim therefor or to the administrator of the estate upon his account for expenses of administration, is limited to such services as are necessary, and to such amount of fees as is reasonable. However, the necessity for the services and the reasonableness of the fees are questions to be determined by the probate court, and not by the administrator. Jones v. Gilliam, 109 Tex. 552, 212 S.W. 930 (Tex.Sup.1919).
When a personal representative contracts for anything necessary to an administration of the estate. As such, he is totally free to contract for necessary services in his representative capacity. Portis v. Cole, 11 Tex. 157 (1953); Hare v. Pendleton, 214 S.W. 948 (Tex.Civ.App.Texarkana 1919) rev'd on other grounds, 231 S.W. 334 (Tex. Com.App.1921, jdgmt. adopted). However, unless otherwise stipulated, it is assumed that the personal representative, in contracting with a third party for professional services to the estate, did so in his individual capacity. McGloin's Ex'rs v. Vanderlip, 27 Tex. 366 (1864); Morton's Estate v. Ferguson, 45 S.W.2d 419 (Tex.Civ.App.Eastland 1932, writ ref'd). Consequently, in the absence of a stipulation to the contrary, the third party may elect to hold the representative to a personal liability. Morton's Estate v. Ferguson, supra; McGloin's Ex'rs v. Vanderlip, supra; Kitchens v. Culhane, 398 S.W.2d 165 (Tex.Civ.App.San Antonio 1965, writ ref'd n. r. e.). In such a case, the representative has a right of reimbursement against the estate to the extent that the third party's services were necessary and his fees were reasonable. The possibility that a representative of an estate may be held personally to a greater liability than can be chargeable to the estate may be avoided by a proper stipulation in the contract for the furnishing of professional services. Morton's Estate v. Ferguson, supra.
The Bank relies upon United States v. Swan, 441 F.2d 1080 (5th Cir. 1975) and two Texas authorities cited therein, Portis v. Cole, 11 Tex. 157 (1853) and Hare v. Pendleton, 214 S.W. 948 (Tex.Civ.App.Texarkana 1920) rev'd on other grounds, 231 S.W. 334 (Tex.Com.App.1921, jdgmt. adopted) for the proposition that a personal representative cannot be held to a personal liability for necessary services rendered to the estate. We disagree. The Texas cases cited merely stand for the rule that the personal representative may elect to contract solely in his representative capacity. Moreover, the authorities relied upon by the Bank merely acknowledge the fact that ultimately the estate is liable for all reasonable and necessary services. See Brandenburg v. Dante, 49 App.D.C. 141, 261 F. 1021, 1022-23 (D.C.Cir. 1919).
Even if the cases relied upon by the Bank actually hold that a personal representative cannot be held liable in his individual capacity, in doing so it does not correctly state the current law in this State. The court in *670 Morton's Estate, supra, unequivocally held that, absent a stipulation in the contract, a third party could elect to hold the personal representative to a personal liability for professional services rendered to the Estate. The Supreme Court unqualifiedly refused a writ of error in the case. When it refused the writ, the Court had before it both cases subsequently relied upon by the Fifth Circuit Court in Swan. Hence, only two inferences may be drawn from the Supreme Court's refusal of the writ of error, both of which support our position that a personal representative, unless he stipulates otherwise, may be held liable in his individual capacity for the value of services rendered. First, by refusing a writ in Morton's Estate, the Supreme Court could have reasoned that Portis and Pendleton did not go as far as Swan later held. Second, by refusing the writ, the Court could have disapproved of language in either the Portis or Pendleton case tending to exclude a personal representative from individual liability. Regardless of our Supreme Court's reasoning, however, we are bound by its refusal of a writ of error in Morton's Estate.
The Bank's reliance upon El Paso National Bank v. Leeper, 538 S.W.2d 803 (Tex.Civ. App.El Paso 1976, writ ref'd n. r. e.) is misplaced because that case dealt solely with a suit brought against a temporary administrator in his representative capacity. The case at bar involves a suit brought against a past temporary administrator in its individual capacity.
In the case at bar, it was conclusively shown that the Bank had a right to offer the 1971 will (wherein it was named as independent executor) for probate. It had a duty to oppose the probate of the second will, and after its appointment as temporary administrator, was required to timely attend to all matters, including tax matters, which affected the Estate. It was undisputed that there were no stipulations in plaintiff's contract that required it to look solely to the Estate for compensation for services furnished, which in effect, were held by the trial court to be reasonable compensation for necessary professional services to the Estate. Furthermore, the contract originated with the Bank. The plaintiff, under the undisputed facts of this case, could elect to hold the Bank personally responsible for payment of fees due for professional services rendered to the Estate.
Application of the aforesaid rules to the facts of this case does not work an injustice or hardship on the Bank since it was fully indemnified by Van Cura against any recovery which might be awarded plaintiff. Moreover, the Bank had an independent right of reimbursement against the Estate provided the services were necessary and the fees were reasonable. To that extent, the Estate likewise has not been subjected to any injustice, since it was the beneficiary of the services. Finally, the Bank was free to shield itself from individual liability by merely stipulating to that effect in its contract with plaintiff.
We do not reach the question of the extent to which a designated executor can bind the estate for services rendered at his request before probate of the will where such probate ultimately fails. Our holding that the Bank can be held to an individual liability does not necessitate any extended discussion of this point.
We have carefully considered all of appellants' points of error. They are all overruled. We find no reversible error in the judgment of the trial court.
AFFIRMED.
NOTES
[1] Darlene Van Cura was originally included in the plaintiff's suit for accountant's fees as a defendant in her capacity as executrix of the Estate. She was nonsuited, however, before the case ever went to trial. Nevertheless, she is a named appellant before this Court by virtue of the seventh point of error, which alleges error in the trial court's order of nonsuit, as well as the fact that she is technically aggrieved by the judgment below in that it awards the bank indemnity against her in her capacity as executrix of the estate. This judgment for indemnity was based upon a prior agreed partial summary judgment which is discussed more fully in the text of the opinion. Mention of it is made here merely to clarify the position of the parties regarding the seventh point of error.
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[Cite as Kuhn v. Kuhn, 2011-Ohio-307.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GREGORY KUHN : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
DELOISE KUHN : Case No. 10CA86
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 2008DIV0010
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 26, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
PATRICK HEAGERTY THOMAS L. COLE
150 East Mound Street 76 North Mulberry Street
Suite 301 Mansfield, OH 44902
Columbus, OH 43215
Richland County, Case No. 10CA86 2
Farmer, J.
{¶1} On March 10, 2009, appellant, Gregory Kuhn, and appellee, Deloise
Kuhn, were granted a divorce, and appellant was ordered to pay appellee $1,300.00 a
month for spousal support. A final decree of divorce was filed on May 4, 2009.
{¶2} On December 10, 2009, appellant filed a motion to modify the spousal
support order. A hearing was held on May 28, 2010. By judgment entry filed June 4,
2010, the trial court denied the motion.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED WHEN UPHOLDING SPOUSAL SUPPORT
IN THE AMOUNT OF $1300.00 TO BE PAID TO THE APPELLEE PER MONTH FOR
THE NEXT TEN YEARS."
I
{¶5} Appellant claims the trial court erred in denying his motion to modify
spousal support. Specifically, appellant claims the trial court erred in finding no
substantial change of circumstances, in failing to adequately evaluate his income at the
original divorce hearing, and in finding he hid income in a retirement account. We
disagree.
{¶6} The modification of spousal support lies in the trial court's sound
discretion. Booth v. Booth (1989), 44 Ohio St.3d 142; Cherry v. Cherry (1981), 66 Ohio
St.2d 348. In order to find an abuse of discretion, we must determine the trial court's
Richland County, Case No. 10CA86 3
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
{¶7} Modification of spousal support is warranted only when a substantial
change in the circumstances of the parties exists. Leighner v. Leighner (1986), 33 Ohio
App.3d 214. "[A] change in the circumstances of a party includes, but is not limited to,
any increase or involuntary decrease in the party's wages, salary, bonuses, living
expenses, or medical expenses." R.C. 3105.18(F).
{¶8} R.C. 3105.18 governs spousal support. Subsection (C)(1) states the
following:
{¶9} "In determining whether spousal support is appropriate and reasonable,
and in determining the nature, amount, and terms of payment, and duration of spousal
support, which is payable either in gross or in installments, the court shall consider all of
the following factors:
{¶10} "(a) The income of the parties, from all sources, including, but not limited
to, income derived from property divided, disbursed, or distributed under section
3105.171 of the Revised Code;
{¶11} "(b) The relative earning abilities of the parties;
{¶12} "(c) The ages and the physical, mental, and emotional conditions of the
parties;
{¶13} "(d) The retirement benefits of the parties;
{¶14} "(e) The duration of the marriage;
Richland County, Case No. 10CA86 4
{¶15} "(f) The extent to which it would be inappropriate for a party, because that
party will be custodian of a minor child of the marriage, to seek employment outside the
home;
{¶16} "(g) The standard of living of the parties established during the marriage;
{¶17} "(h) The relative extent of education of the parties;
{¶18} "(i) The relative assets and liabilities of the parties, including but not limited
to any court-ordered payments by the parties;
{¶19} "(j) The contribution of each party to the education, training, or earning
ability of the other party, including, but not limited to, any party's contribution to the
acquisition of a professional degree of the other party;
{¶20} "(k) The time and expense necessary for the spouse who is seeking
spousal support to acquire education, training, or job experience so that the spouse will
be qualified to obtain appropriate employment, provided the education, training, or job
experience, and employment is, in fact, sought;
{¶21} "(l) The tax consequences, for each party, of an award of spousal support;
{¶22} "(m) The lost income production capacity of either party that resulted from
that party's marital responsibilities;
{¶23} "(n) Any other factor that the court expressly finds to be relevant and
equitable."
{¶24} In its judgment entry filed June 4, 2010, the trial court concluded the
following:
{¶25} "The Court is befuddled to fully understand the trucking business based
upon the lack of documentation provided. It is clear that the hauling business is
Richland County, Case No. 10CA86 5
rebounding somewhat. Most compelling is the $331,000 proceeds from the sale of real
property, admittedly separate property of the Plaintiff, which he chose to invest in a
retirement account instead of paying off the truck, the credit card, or other obligations.
Invested at 3%, a conservative return, would net $9,980 annually. This is nearly
$10,000 more potential income available to him than on the date of the Decree of
Divorce. If he had paid off his debts, which the Court can only presume that he is
paying more than 3% to service, the income producing capability of those funds would
create an even greater yield. Income available to either Party is a proper factor for the
Court to consider in determining a proper spousal support award. A Party cannot
choose to simply hide the income in a retirement account and then claim poverty to
avoid a spousal support obligation already imposed. Yet Plaintiff is attempting to do just
that.
{¶26} "The Court, therefore, cannot find sufficient evidence of a substantial
change of circumstance not contemplated by the Parties that justifies the Court reducing
Plaintiff's obligation to pay Defendant $1,300 per month."
{¶27} In the original award filed March 10, 2009, the trial court evaluated
appellant's income from 2006 to 2008 as follows:
{¶28} "In 2006 he had net earnings of $37,414.00. In 2007 those net earnings
increased to $48,736.00. In 2008, he ceased operating under a corporate structure.
His income in 2008 was $42,517.00. In 2008 Plaintiff paid to Candy Weisenauer
$9,321.15 as business expense. In 2009 through February 15 he has paid to Candy
Weisenauer $2,250, which annualizes on a monthly basis of about $1,500 per month.
In 2008, payments to Candy Weisenauer amounted to $51,658, dramatically increasing
Richland County, Case No. 10CA86 6
in the later half of the year. All of this suggests to the Court that the Plaintiff has
funneled some portion of his trucking income through Candy Weisenauer and thus his
argument that his trucking income is declining is not credible."
{¶29} In its June 4, 2010 judgment entry, the trial court re-evaluated appellant's
income as follows:
{¶30} "Plaintiff continues to work as an owner/operator of a trucking business
that has one (1) truck, which he drives. He hauls primarily for Mar-Zane Materials.
Their business 2009 is off over 50%. Herb Harsar, plant manager, testified the Plaintiff
is sixth on the list of truckers to be called, on an as-needed basis. He testified that
Plaintiff, in 2009, was only called to work about fourteen (14) days. This year business
appears to be back up, but no testimony was offered as to what that means in terms of
loads available for Plaintiff to haul. At the time of the Divorce, Mar-Zane moved
approximately 150,000 tons of aggregate annually. To date they have orders on the
books for 100,000 tons. The Court can only speculate to what extent additional orders
may be available for the Company.
{¶31} "Plaintiff's 2009 tax return was admitted into evidence. It shows income of
$19,285. This includes depreciation of $3,433. Plaintiff's exhibit 2, the transaction
detail driving the tax filing, is unsupported by any documentation. Plaintiff earned
minimal income as a temp employee, claiming he was unable to do repetitive factory
work, thus limiting his temporary work opportunities. Defendant has a budget of $3,162,
including $700 rent he has not paid in over a year, a truck payment of $1,500 and a
minimum credit card payment of $150 on a credit card indebtedness of $28,014.00,
mostly incurred since the Decree of Divorce."
Richland County, Case No. 10CA86 7
{¶32} Appellant argues the trial court's findings and decision ignore Mr. Harsar's
testimony relative to the sharp decline in the economy in 2009. We note the original
award was filed on March 10, 2009. Therefore, the time period to be examined is from
March 10, 2009 to May 28, 2010, the date of the hearing.
{¶33} Mr. Harsar testified that during 2009, he contracted appellant as an owner-
operator for "10 to 15 days***[m]aybe $10,000.00." T. at 9. Mr. Harsar opined the
amount of work for the company in 2009 was "50 to 60%, 70% down." T. at 13. The
"plant averaged between 150,000 and 200,000 tons – last year I ran 66,000." Id.
However, as of May 2010, the month of the hearing, the amount on the books was
already 100,000 tons. T. at 13. Mr. Harsar admitted he had no knowledge of what
appellant was paid for hauling in 2009 and 2010. T. at 15. He further admitted he had
no knowledge of whether appellant was hauling for other parties. T. at 15-16.
{¶34} Appellant testified his net income for 2009 was $19,285.00 with gross
receipts of $39,302.00. T. at 24. Appellant worked some temporary jobs throughout the
winter. T. at 27-28.
{¶35} As noted by the trial court, despite appellant's profit gained from the sale
of his real property ($331,000.00), he has chosen not to pay off his $28,000.00 credit
card bill which he claims he has used to pay his $1,300.00 monthly spousal support
obligation to appellee. T. at 29-30, 31, 42-44. Appellant testified the $331,000.00 is in
a retirement account through his accountant, but he does not know what account the
money is in and has not received any statements. T. at. 44-45. Appellant testified he
subsidized his living by paying bills through his company's petty cash. T. at 48-49.
Richland County, Case No. 10CA86 8
{¶36} We find the trial court's summation of the evidence to be consistent with
the testimony given. Appellant was essentially requesting a change in spousal support
awarded to appellee after a nineteen year marriage with appellee's gross income being
$1,073.75 per month. It is appellant's position that a less than nine months downturn in
the economy from the original spousal support award to the filing of the motion to
modify merits a reduction in spousal support, despite the clear evidence that during the
first five months of 2010, Mr. Harsar testified business was picking up. No evidence
was presented to establish that appellant's income from hauling could not again reach
the 2006-2008 figures. The substantial change in circumstances from March 10, 2009
to the date of the hearing was appellant realizing $331,000.00 from the sale of his
property. See, R.C. 3105.18(C)(1)(a) and (i).
{¶37} We fail to find an abuse of discretion by the trial court. For a trial court to
modify spousal support on a nine month apparent temporary downturn in the economy
would encourage a revolving door to the courthouse.
{¶38} Upon review, we find the trial court did not abuse its discretion in finding a
temporary downturn would negate the original spousal support award based upon the
factors in R.C. 3105.18(C).
{¶39} The sole assignment of error is denied.
Richland County, Case No. 10CA86 9
{¶40} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 107
Richland County, Case No. 10CA86 10
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GREGORY KUHN :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
DELOISE KUHN :
:
Defendant-Appellee : CASE NO. 10CA86
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to
appellant.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Patricia A. Delaney________________
JUDGES
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433 F.Supp.2d 772 (2006)
Donna ROGERS and Homer Rogers, Plaintiffs
v.
NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY; Larry Whitehead; The Nowell Agency; and Stacy Beckwith, Defendants.
Civil Action No. 3:06CV36LN.
United States District Court, S.D. Mississippi, Jackson Division.
May 12, 2006.
*773 *774 Wayne E. Ferrell, Jr., Attorney, Jackson, MS, for Plaintiff.
WIlliam C. Griffin, Eric Joseph Dillon, Currie, Johnson, Griffin, Gaines & Myers, Jackson, MS, for Defendant.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of plaintiffs Donna Rogers and Homer Rogers to remand pursuant to 28 U.S.C. § 1447. Defendant Nationwide Property and Casualty Company (Nationwide) has responded in opposition to the motion and the court, having considered the memoranda of authorities, together with attachments, concludes that plaintiffs' motion should be denied.
In the wake of a January 28, 2005 fire which destroyed their home, plaintiffs Donna Rogers and Homer Rogers sought to recover for their loss under their homeowners policy with Nationwide. After initially tendering plaintiffs a check for living expenses on the day of the fire, Nationwide undertook an investigation of the claim through its adjuster, Larry Whitehead, and ultimately denied the claim based on information that the fire was intentionally set in two places in the home, that the Rogers were experiencing financial difficulties prior to the fire and that Homer Rogers had the opportunity to set the fires.[1] Following that denial, plaintiffs filed the present action in the Circuit Court of Rankin County, Mississippi, against Nationwide and Whitehead, and also against the Nowell Agency and Stacy Beckwith, which were alleged to have sold the subject policy to plaintiffs, alleging various claims based on the denial of their claim.
Nationwide, a nonresident company, removed the case based on diversity jurisdiction, contending that all of the three named resident/nonresident defendants, Whitehead, the Nowell Agency and Beckwith, have been fraudulently joined to defeat diversity jurisdiction. Plaintiffs promptly moved to remand, arguing that the resident defendants are properly joined and that remand is thus required.
The relevant question here presented is whether Nationwide has shown that there is no reasonable possibility of recovery against any of the non-diverse defendants in state court. See Smallwood v. Illinois Cent. R.R., 385 F.3d 568, 573 (5th Cir.2004) (en banc). A mere theoretical possibility of recovery is insufficient. Travis v. Irby, 326 F.3d 644, 648 (5th Cir.2003).
The court first turns to plaintiffs' allegations/claims against the Nowell Agency and Beckwith. Plaintiffs allege in their complaint that they purchased the subject homeowners policy from defendants Beckwith and The Nowell Agency and "relied upon their professional advice and representations as to the type of policy; the necessary amount of insurance coverage; the language and wording of the various *775 types of insurance coverages; deductibles; and endorsements to the policy," and that Beckwith and The Nowell Agency "represented to the Plaintiffs that they would have full coverage and the policy would cover most of the perils (including loss by fire) that were a threat to them and their house." They further charge that Nationwide, Beckwith and The Nowell Agency "represented and warranted to the Plaintiffs . . . that they would promptly and fairly pay any and all claims of the Plaintiffs and all other claims which were covered by the policy," and "that they offered fair and prompt claims services to its [sic] insureds and those claiming under the terms of the Nationwide policy," and yet when plaintiffs submitted a proper claim under the policy for their fire loss, "Nationwide, instead of promptly and fairly paying the Plaintiffs' claims, unreasonably delayed processing Plaintiffs' claims and . . . Nationwide ha[s] refused to timely pay the Plaintiffs' claims." Plaintiffs conclude that all defendants, including Beckwith and The Nowell Agency, wrongfully delayed and ultimately wrongfully, intentionally and in bad faith denied payment under the policy in violation of the terms of the contract and in breach of their duties of good faith and fair dealing, and that all defendants "set about on a course of conduct to annoy and harass the Plaintiffs and to avoid or delay paying the Plaintiffs' claim."
In response to plaintiffs' motion to remand, Nationwide first asserts that plaintiffs' putative claims against Beckwith premised on her alleged conduct in connection with the sale of the subject policy cannot possibly succeed inasmuch as Beck-with, as attested in her affidavit accompanying Nationwide's response, did not sell the subject policy to plaintiffs and never talked to plaintiffs or made any representations to them of any sort.
Nationwide further points out that while plaintiffs allege that Beckwith and The Nowell Agency made unspecified "representations" relating to the policy and its coverage, they do not allege that these defendants made anything that could possibly be construed as an actionable misrepresentation. They do not allege any representations regarding the policy or its coverage were untrue or incorrect. And though they do implicitly charge that the alleged representation that Nationwide would provide "prompt" and "fair" claims processing was not true, such a representation would not be an actionable misrepresentation because it is not a statement of existing fact. See Addison v. Allstate Ins. Co., 58 F.Supp.2d 729, 732-33 (S.D.Miss. 1999) (concluding that allegations of promises and/or representations were conclusory and generic in nature and hence insufficient, as a matter of law, to state a claim). Finally, while plaintiffs allege they relied on Beckwith's and The Nowell Agency's "professional advice and representations," plaintiffs do not allege that these defendants failed to procure adequate and proper coverage for them,[2] and in any event, it is manifest that plaintiffs' alleged harm in this case is not the result of a failure to procure a policy which provides adequate and proper coverage but rather is the result of Nationwide's failure to pay benefits which plaintiffs contend are, in fact, payable under the policy. Accordingly, plaintiffs *776 have no possibly cognizable claim against Beckwith or The Nowell Agency for any representations or actions in connection with the sale of the policy.
Plaintiffs' further allegations throughout the complaint that Beckwith and The Nowell Agency breached the contract and their implied duties of good faith and fair dealing in failing to pay benefits under the insurance contract, and to do so in a timely manner, likewise do not present a viable claim for relief against these defendants. Mississippi law is clear: an agent of a disclosed principal is not a party to his principal's contract and cannot be liable for its breach. Jabour v. Life Ins. Co. of North America, 362 F.Supp.2d 736, 740-41 (S.D.Miss.2005). See also Jenkins v. Farmington Cas. Co., 979 F.Supp. 454, 457 (S.D.Miss.1997) (agent who is not party to insurance contract is not liable for payment of contractual benefits). "Similarly, it is clear that [an agent], as a nonparty to the contract ha[s] no implied duty of good-faith and fair-dealing with regard to the performance of the contract and thus, cannot be liable under a bad-faith theory of recovery." Jabour, 362 F.Supp.2d at 736.
An agent may incur liability under Mississippi law independent of the insurance contract for conduct which is grossly negligent, malicious or which shows a reckless disregard for the rights of the insured. See Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So.2d 777, 785 (Miss.2004) (citing Bass v. California Life Ins. Co., 581 So.2d 1087, 1089 (Miss.1991)). "In other words, agents for insurance companies can be held liable for conduct that constitutes an independent tort." Jabour, 362 F.Supp.2d at 741 (citing Gallagher). Although plaintiffs allege generally that the actions of all defendants, including Beckwith and The Nowell Agency, in connection with the investigation, adjustment and denial of their claim amount to "intentional wrongs constituting intentional torts," as to Beckwith and The Nowell Agency, these are conclusory allegations at best, for plaintiffs certainly have not identified any actions by either of these defendants that could potentially subject them to liability on this theory. See Peters v. Metropolitan Life Ins. Co., 164 F.Supp.2d 830, 834 (S.D.Miss.2001) (holding that allegations against non-diverse defendants "must be factual, not conclusory, because conclusory allegations do not state a claim"). Indeed, plaintiffs do not allege any facts suggesting involvement by Beckwith or The Nowell Agency in investigating, adjusting or denying their claim, and as is made clear in the uncontradicted affidavits of Mike Nowell and Beckwith, The Nowell Agency and Beckwith do not investigate claims; they do not adjust claims; they do not make payment on claims if payment is due; and they do not have any input in the investigation or adjustment of claims. For all these reasons, it is manifest that plaintiffs have no possibility of recovery against Beckwith or The Nowell Agency.
As alleged in plaintiffs' complaint, Larry Whitehead, an employee of Nationwide, was the claims representative assigned to investigate and adjust their claim. The gist of plaintiffs' allegations against Whitehead is that he and Nationwide, instead of promptly paying plaintiffs' claim, "engaged in a course of action to find reasons to deny Plaintiffs' claims and/or the delay [sic] paying Plaintiffs' claims," and after much needless delay, refused to pay plaintiffs' claim without any legitimate or arguable reason, all of which constitute a breach of the insurance contract, a breach of defendants' implied duty of good faith and fair dealing, and was intentional, or so grossly negligent and in reckless disregard of plaintiffs' rights as to *777 constitute an independent tort by Whitehead, namely, intentional infliction of emotional distress.
Of course, for the reasons stated supra, as a nonparty to the contract of his disclosed principal, Nationwide, Whitehead cannot be held liable for breach of contract, or for breach of the duty of good faith and fair dealing, and the question becomes whether plaintiffs' complaint discloses any other potentially viable claim. In this vein, plaintiffs' repeated incantation in their complaint that Whitehead's actions amounted to gross negligence, intentional misconduct, reckless, willfulness, wantonness, and the like, is perhaps understandable, given that "an insurance adjuster . . . may not be held liable for simple negligence in connection with adjusting a claim," but rather "`can only incur independent liability when his conduct constitutes gross negligence, malice, or reckless disregard for the rights of the insured'." Gallagher, 887 So.2d at 784 (quoting Bass). The court in Gallagher clarified and emphasized this principle, stating,
[A]n insurance adjuster, agent or other similar entity may not be held independently liable for simple negligence in connection with its work on a claim. Such an entity may be held independently liable for its work on a claim if and only if its acts amount to any one of the following familiar types of conduct: gross negligence, malice, or reckless disregard for the rights of the insured.
Id. The fact, though, that plaintiffs have used the magic words does not mean that they thus have the requisite possibility of recovery against Whitehead as would secure remand. In the court's opinion, plaintiffs have no reasonable possibility of recovery against Whitehead based on the allegations of their complaint.
Plaintiffs' complaint is replete with their conclusory allegation that Whitehead engaged in conduct which was intentional, grossly negligent or in reckless disregard of their rights; but as with Beckwith and The Nowell Agency, they fail to identify any conduct that would so qualify. There are, in fact, few factual allegations at all in plaintiffs' complaint. The only arguable factual allegation relating to Whitehead's adjustment of their claim is plaintiffs' charge that he and Nationwide engaged in a course of conduct designed to delay, and ultimately deny payment of plaintiffs' claim, with respect to which charge they specifically allege that Nationwide and Whitehead, "in an effort to defeat and/or delay payment of benefits to the Plaintiffs, required the Plaintiffs to submit additional qualifying tasks, including but not limited to" allowing Nationwide to inspect the property on numerous occasions; supplying financial information, including income records, tax returns, bank account records, credit card statements, mortgage payments, etc., covering a period of three years; and submitting to statements under oath.
Merely requiring insureds to allow inspections even numerous inspections of the insured property, to provide information regarding their financial condition and to submit to examinations under oath hardly qualifies as intentional or reckless misconduct. Rather, all of these "additional qualifying tasks" plaintiffs complain were required of them by Whitehead in his adjustment of their claim are manifestly legitimate aspects of any fire loss investigation. In short, it cannot reasonably be said that an investigation by Whitehead which consisted of numerous inspections of the property, review of several years of the insureds' finances and consideration of the insureds' sworn testimony constituted intentional or grossly negligent conduct or conduct in reckless disregard of the insured's rights; and as plaintiffs have suggested *778 nothing more that Whitehead did that could so qualify, they have no possibility of recovery against him.
Based on the foregoing, the court concludes that plaintiffs' motion to remand is not well taken and should be denied.
SO ORDERED.
NOTES
[1] Plaintiffs' motion to remand includes a request to strike portions of the notice of removal, and in particular, references therein that tend to suggest the Rogers were involved in burning their home. The request to strike is not well taken.
[2] Under Mississippi law, "[a]n insurance agent owes the duty to his principal to exercise good faith and reasonable diligence to procure insurance on the best terms he can obtain, and any negligence or other breach of duty on his part which defeats the insurance he procures will render him liable for the resulting loss." First United Bank of Poplarville v. Reid, 612 So.2d 1131, 1137 (Miss. 1992). Plaintiffs have made no such claim here.
| {
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
Keith Blakeney, )
)
Plaintiff, )
)
v. ) Civil No. 1:14-cv-01139 (APM)
)
Officer Thomas O’Donnell, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Keith Blakeney alleges that, on July 6, 2013, he was assaulted, battered, falsely
arrested, and falsely imprisoned by members of the District of Columbia Metropolitan Police
Department. He brought suit against the District of Columbia and the individual officers
involved—four named and others unnamed—seeking redress for the injuries he sustained. Before
the court is the District of Columbia’s partial Motion to Dismiss,1 as well as a Motion to Dismiss
filed by the named officers. The District of Columbia has moved to dismiss five claims under
Federal Rule of Civil Procedure 12(b)(6): (1) municipal liability under 42 U.S.C. § 1983; (2) civil
conspiracy; (3) malicious prosecution; (4) negligence; and (5) negligent training and supervision.
The civil conspiracy, malicious prosecution, and negligence claims are brought against the District
of Columbia under a theory of respondeat superior. The named officers have moved to dismiss
all claims for insufficient service of process.
1
The District filed an Answer to Plaintiff’s Amended Complaint as to Counts III (assault), IV (battery), VII (false
imprisonment and false arrest), and X (intentional infliction of emotional distress). See Def. District’s Answer to
Counts III, IV, VII, and X of Pl.’s Am. Compl., ECF No. 13 [hereinafter District’s Answer].
After considering the parties’ arguments, the court grants the District’s Motion to Dismiss
as to Plaintiff’s Section 1983, negligence, and negligent training and supervision claims, but denies
it as to his claims of civil conspiracy and malicious prosecution. The court denies the named
officers’ Motion in its entirety.
II. BACKGROUND
A. Facts Alleged in the Complaint
Plaintiff’s Amended Complaint alleges the following facts. On the evening of July 6, 2013,
Plaintiff travelled by foot from his mother’s home to his own in Southeast, Washington, D.C.
Am. Compl., ECF No. 7 ¶ 10. Across the street from his apartment building, located in the 400
block of Mellon Street, S.E., Plaintiff saw approximately nine to ten Metropolitan Police
Department (“MPD”) officers (“Defendant Officers”), including the four named officers (the
“Named Officers”), and approximately four to five handcuffed individuals. Id. ¶¶ 11-12. One of
the MPD officers said to Plaintiff, “There he is. What’s up Peaches?” Id. ¶ 14. Plaintiff ignored
the officer and walked towards his apartment building. Id. ¶ 15. An officer then said, “You hear
us talking to you. What’s up Peaches?” Id. ¶ 16. Plaintiff replied, “That is not my name,” and
continued walking towards his building. Id. Again an officer said, “What’s up with you,
Peaches?” Id. ¶ 17. Plaintiff responded, “Nothing was up with me. Just minding my business.
What’s up with ya’ll? It’s a shame that we can’t chill in our own neighborhood in peace without
ya’ll coming through and harassing us.” Id. An MPD officer wearing a green shirt and no vest—
“Officer 1”—then stated, “What did you say mother*****,” prompting Plaintiff to repeat himself.
Id. ¶ 18.
As Plaintiff walked into his apartment building, “Officer 1 grabbed him by his right arm,”
“turned him around and said, ‘You’re going to jail.’” Id. ¶¶ 19-20. Officer 1 pulled Plaintiff’s
hands together as Plaintiff asked, “Why am I going to jail?” Id. ¶ 23. Officer 1 and three to four
additional officers then “slammed” Plaintiff to the ground between two parked cars. Id. ¶ 24. A
white male officer—“Officer 2”—grabbed Plaintiff’s dreadlocks and twisted his head while a
black male officer—“Officer 3”—“repeatedly struck [him] approximately 10-12 times on the left
side of his face just below his left eye,” id. ¶ 25, as “other officers were kicking and stomping him
over his body, including his head,” id. ¶ 26. Officer 1 then placed Plaintiff in “extremely tight”
handcuffs. Id. ¶ 27. Plaintiff did not resist arrest. Id.
The officers brought Plaintiff before the other handcuffed individuals, “twisted [his] body
and again violently slammed him onto the ground on his chest.” Id. ¶ 29. Officer 2 placed his
knee into Plaintiff’s back and twisted Plaintiff’s head by his dreadlocks. Id. Plaintiff repeatedly
asked why he was being arrested. Id. ¶¶ 30-31. Officers 2 and 3 responded with obscenities. Id.
The MPD officers transported Plaintiff to a police station and then to a hospital “where he
was treated for right shoulder pain, mouth pain, torso pain, facial abrasions and numbness,” and
was given a pain relieving medication along with a muscle relaxant. Id. ¶¶ 32-33. Thereafter, the
officers transported Plaintiff to MPD’s Central Cell Block. Id. Two days later, on July 8, 2013,
Plaintiff appeared “before a judicial officer at D.C. Superior Court,” who informed him that he
had been charged with “Assault on a Police Officer.” Id. ¶ 35. Plaintiff alleges that “Defendant
Officers conspired to falsely accuse and charge [him] . . . even though they did not have probable
cause to prove that [he] had committed any illegal act.” Id. ¶ 34. Plaintiff further alleges that
Defendant Officers “conspired to file false reports and offer false testimony against [him] in order
to cover up their use of excessive force and battery of” him. Id. ¶ 75. On February 4, 2014, the
assault charge against Plaintiff was dismissed. Id. ¶ 37.
III. LEGAL STANDARD
In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court
must accept a plaintiff’s factual allegations as true and “construe the complaint ‘in favor of the
plaintiff, who must be granted the benefit of all inferences that can be derived from the facts
alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979). The court need not accept as true “a legal conclusion
couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986), or “inferences . . .
unsupported by the facts set out in the complaint,” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271,
1276 (D.C. Cir. 1994).
To survive a motion to dismiss, a complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
is facially plausible 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. (citing Twombly,
550 U.S. at 556). The factual allegations in the complaint need not be “detailed”; however, the
Federal Rules demand more than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (citing Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S.
at 555). If the facts as alleged fail to establish that a plaintiff has stated a claim upon which relief
can be granted, a court must grant defendant’s Rule 12(b)(6) motion. See Am. Chemistry Council,
Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013).
IV. ANALYSIS
A. Municipal Liability Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides a remedy for an individual who has been deprived of “any
rights, privileges, or immunities secured by the Constitution and laws” of the United States by a
person acting under color of state law. 42 U.S.C. § 1983. A municipality, like the District of
Columbia (the “District”), may be held liable under Section 1983 for the acts of its employees, but
only where “there is a direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). Only “when
execution of a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury,” can a municipality
be liable under Section 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
To establish municipal, or Monell, liability under Section 1983, a plaintiff must first
demonstrate an underlying constitutional violation, and second, show that the municipality’s
policy or custom caused the violation. Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.
Cir. 2003) (citations omitted). Here, Plaintiff has sufficiently alleged a constitutional violation: he
accuses Defendant Officers—employees of the District—of using excessive force against him in
violation of the Fourth Amendment.2 See Am. Compl. ¶¶ 23-30, 53, 67; see also Armbruster v.
Frost, 962 F. Supp. 2d 105, 11 (D.D.C. 2013) (“The Fourth Amendment’s prohibition on
2
Plaintiff alleged in his Amended Complaint that the District also violated his First and Fifth Amendment rights.
See Am. Compl. ¶¶ 58-59. He consented to dismissal of the First Amendment claim by failing to address it in his
opposition to the District’s Motion. See generally Pl.’s Opp’n to Def. District of Columbia’s Partial Mot. to Dismiss
Am. Compl., ECF No. 15 [hereinafter Pl.’s Opp’n]; see also Hopkins v. Women’s Div., Gen. Bd. of Global Ministries,
284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citations omitted) (“It is well understood in this Circuit that when a plaintiff
files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.”). As to Plaintiff’s Fifth Amendment claim, the
court need not assess it because Plaintiff has failed to present facts regarding any District policy or custom. Therefore,
even if the court were to find an underlying Fifth Amendment violation, Plaintiff’s Section 1983 claim would not
survive the District’s Motion to Dismiss.
unreasonable searches and seizures encompasses the right to be free from the use of excessive
force during an arrest, investigatory stop, or any other seizure.”) (citing Graham v. Connor, 490
U.S. 386, 395 (1989)). Taking the allegations in Plaintiff’s Amended Complaint as true and
drawing all inferences in his favor, the court concludes that the force Defendant Officers used
against Plaintiff was “excessive under objective standards of reasonableness.” Saucier v. Katz,
533 U.S. 194, 202 (2001). Plaintiff thus has sufficiently alleged a Fourth Amendment violation
and has satisfied the first requirement of Monell.
Plaintiff has not, however, sufficiently alleged that a District policy or custom caused the
violation of his Fourth Amendment rights. A plaintiff can plead municipal liability by alleging
facts that, if accepted as true, establish that: (1) the municipality “explicitly adopted the policy
that was ‘the moving force of the constitutional violation,’” Warren v. District of Columbia, 353
F.3d 36, 39 (D.C. Cir. 2004) (quoting Monell, 436 U.S. at 694) (citing City of St. Louis v.
Praprotnik, 485 U.S. 112, 123-30 (1988)); (2) a policymaker “knowingly ignore[d] a practice that
was consistent enough to constitute custom,” id. (citing Praprotnik, 485 U.S. at 130); or (3) the
municipality neglected to respond “to a need . . . in such a manner as to show deliberate
indifference to the risk that not addressing the need will result in constitutional violations,” id.
(quoting Baker, 326 F.3d at 1306) (internal quotation marks omitted).
The only remotely plausible theory of municipal liability advanced in the Amended
Complaint is that the District was deliberately indifferent to a known risk of the use of
unconstitutional excessive force by MPD officers.3 Plaintiff asserts, “[o]n information and belief,”
3
Plaintiff’s statement that “[t]he battering of the Plaintiff by the Defendant Officers was in direct violation of any and
all applicable regulation(s) and/or order(s) and/or standard(s), including but not limited to, General Orders 901.07,
201.26 and 501.07, Special Order 97-31, and the Spectrum of Force and Use of Force Continuum,” Am. Compl. ¶ 42,
makes clear that he does not contend that the District “explicitly adopted” a policy that caused the constitutional
violation at issue. And he does not point to any evidence that a District policymaker had knowledge of a consistent
practice that led to the constitutional violation, thereby precluding a theory of “knowing” ignorance.
that “there is a custom or practice in the [MPD] of subjecting certain arrestees to more than the
minimum force than is necessary to accomplish his or her mission despite clear MPD policy
prohibiting such a practice.” Am. Compl. ¶ 39. Because of this custom and practice, Plaintiff
alleges, the District “is liable for . . . damages under Monell.” Id. ¶ 59. In support of his assertion,
Plaintiff offers only a single factual averment: “This custom or practice is evidenced by the actions
of the named and unnamed officers in this Complaint of throwing, kicking, punching and stomping
[Plaintiff] for no justifiable reason since he had committed no crime.” Id. ¶ 39. However, “[p]roof
of a single incident of unconstitutional activity,” which is all Plaintiff offers here, “is not sufficient
to impose liability under Monell, unless proof of the incident includes proof that it was caused by
an existing, unconstitutional municipal policy.” City of Okla. City v. Tuttle, 471 U.S. 808, 841
(1985); see also Sanders v. District of Columbia, 522 F. Supp. 2d 83, 88 (D.D.C. 2007) (“Proof of
a single incident of unconstitutional activity is insufficient to impose liability [under Section 1983]
unless there was proof that there was a policy in place that was unconstitutional.”). Thus,
Plaintiff’s factual statement about a single incident—his July 6, 2013, encounter with Defendant
Officers—is not, standing alone, sufficient to give rise to an plausible inference that a District
custom or policy caused a violation of his Fourth Amendment rights.4
4
Plaintiff “doubles-down” on his reliance on a single-incident of misconduct in his Opposition Brief, arguing that:
[t]he joint actions of the police officers in committing these unconstitutional acts indicates that the
officers shared assumptions about the kind of conduct that was acceptable within their department,
even though there were MPD Orders to the contrary. Where such conduct is well-coordinated and
there is no discussion or disagreement regarding its propriety, it also tends to show that the practices
are long-standing or have at least been engaged in previously by officers within the department,
which is relevant to the existence of both policy and custom.
Pl.’s Opp’n at 6. That a single incident might give rise to some inference about policy and custom, however, does not
elevate a Monell claim “from conceivable to plausible.” Twombly, 550 U.S. at 570. As the Court observed in Connick
v. Thompson, 131 S. Ct. 1350, 1360 n.7 (2011), “contemporaneous or subsequent conduct cannot establish a pattern
of violations that would provide ‘notice to the cit[y] and the opportunity to conform to constitutional dictates.”
(quoting City of Canton, 489 U.S. at 395 (O’Connor, J., concurring in part and dissenting in part)).
Unable to predicate Monell liability on a single incident, Plaintiff offers another theory.
He asserts that the District “recklessly and without regard for the rights of others, breached [its]
duty to properly train, supervise, investigate and correct the improper actions of its employee
Police Officers.” Am. Compl. ¶ 110. But this alternative theory founders on the absence of any
factual allegations to support it.
“In limited circumstances, a local government’s decision not to train certain employees
about their legal duty to avoid violating citizens’ rights” may amount to deliberate indifference.
Connick, 131 S. Ct. at 1359; see also City of Canton, 489 U.S. at 388 (“We hold today that the
inadequacy of police training may serve as the basis for [Section] 1983 liability only where the
failure to train amounts to deliberate indifference to the rights of persons with whom the police
come into contact.”). Courts have found that inadequate training amounts to deliberate
indifference “when city policymakers are on actual or constructive notice that a particular omission
in their training program causes city employees to violate citizens’ constitutional rights,” and the
municipality fails to remedy that omission. Connick, 131 S. Ct. at 1360. To demonstrate that a
municipality is on active or constructive notice, a plaintiff “ordinarily” must show a “pattern of
similar constitutional violations by untrained employees.” Id. (citing Bd. of Bryan Cnty. Comm’rs
v. Brown, 520 U.S. 397, 409 (1997)).
Here, Plaintiff has not alleged any facts that, if proven, would establish that the District
was aware, or should have been aware, that its training was inadequate. He has not identified any
aspect of the District’s officer training program that allegedly was omitted or deficient. Nor has
he put forward facts showing a “pattern” of excessive force by MPD officers, which might give
rise to an inference that the District was on notice of unconstitutional conduct and did nothing to
correct it. All he has alleged is that his constitutional rights were violated during a single incident.
As the Supreme Court has said, “permitting cases against cities for their ‘failure to train’ employees
to go forward under [Section] 1983” without facts connecting the training deficiency to the
plaintiff’s injury, “would result in de facto respondeat superior liability on municipalities—a result
we rejected in Monell.” City of Canton, 489 U.S. at 392 (citing Monell, 463 U.S. at 693-94).5 The
court cannot allow Plaintiff’s unadorned Monell claim to proceed here. It therefore grants the
District’s Motion to Dismiss as to Plaintiff’s Section 1983 claim.
B. Civil Conspiracy Claim Against the District
Plaintiff alleges civil conspiracy against Defendant Officers directly and the District under
a theory of respondeat superior. He asserts that Defendant Officers, “by their actions and through
common design on July 6, 2013, unlawfully conspired to falsely arrest and detain[ ] the Plaintiff
without probable cause to do so” and “conspired to file false reports and offer false testimony
against the Plaintiff in order to cover up their use of excessive force and battery of” him.
Am. Compl. ¶¶ 73, 75, 105-07. The District moves to dismiss this claim on two grounds. First, it
argues that D.C. law does not recognize civil conspiracy as a stand-alone tort and that “Plaintiff
has raised his conspiracy claim as an independent tort, not a means for establishing vicarious liability
for another underlying tort.” Def. District’s Partial Mot. to Dismiss Pl.’s Am. Compl, ECF No. 12 at
8-9 [hereinafter District’s Mot.]. Second, it argues that Defendant Officers cannot be held liable for
conspiring with each other because, under the intracorporate conspiracy doctrine, “it is well-established
that governmental entities, including the District of Columbia, its agencies, and its officers, cannot
form a conspiracy because the government, the agency, and/or the employees constitute a single entity
and no one may conspire with him/herself.” Id. The court is not persuaded by either argument.
5
Plaintiff relies on Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996), for the proposition that conclusory
allegations of “a failure to train and an unusually serious instance of misconduct” are sufficient at the motion to dismiss
stage, id. at 422. Atchinson pre-dated Twombly and Iqbal, however, and this court must evaluate Plaintiff’s complaint
under those subsequent Supreme Court decisions, which have declared such conclusory pleading insufficient. See
Robertson v. District of Columbia, No. 09-CV-00188, 2010 WL 3238996, at *7 (D.D.C. Aug. 16, 2010).
1. Plaintiff Has Sufficiently Pled an Underlying Tort
To prove a civil conspiracy under D.C. law, a plaintiff must show “(1) an agreement
between two or more persons (2) to participate in an unlawful act, and (3) an injury caused by an
unlawful overt act performed by one of the parties to the agreement pursuant to, and in furtherance
of, the common scheme.” Paul v. Howard Univ., 754 A.2d 297, 310 (D.C. 2000) (citations
omitted). The District is correct that “[c]ivil conspiracy is not an independent tort.” Hill v.
Medlantic Health Care Grp., 933 A.2d 314, 334 (D.C. 2007) (citations omitted) (internal quotation
marks omitted). Rather, it is “a device through which vicarious liability for the underlying wrong
may be imposed upon all who are a party to it, where the requisite agreement exists among them.”
Riddell v. Riddell Wash. Corp., 866 F.2d 1480, 1493 (D.C. Cir. 1989) (citations omitted). “A claim
for civil conspiracy thus fails unless the elements of the underlying tort are satisfied.” Nader v.
Democratic Nat’l Comm., 567 F.3d 692, 697 (D.C. Cir. 2009) (citing Exec. Sandwich Shoppe, Inc.
v. Carr Realty Corp., 749 A.2d 724, 738 (D.C. 2000)).
Here, by answering some of Plaintiff’s alleged tort claims, the District has conceded that
Plaintiff has sufficiently alleged an underlying tort on which to rest his claim of conspiracy. The
District answered Plaintiff’s claims for assault, battery, intentional infliction of emotional distress,
and, most notably, false imprisonment and false arrest. See generally District’s Answer.
Plaintiff’s conspiracy claim alleges that Defendant Officers “unlawfully conspired to falsely arrest
and detain[ ] the Plaintiff without probable cause to do so” and “without probable cause to believe
that the Plaintiff was involved in any wrong-doing.” Am. Compl. ¶¶ 73-74 (emphasis added).
Having answered, and thus conceded the proper pleading of, Plaintiff’s stand-alone claim for false
imprisonment and false arrest, the District cannot now assert that Plaintiff’s claim of civil
conspiracy lacks a requisite underlying tort.
2. The Intracorporate Conspiracy Doctrine Does Not Apply
The court now turns to the District’s argument that Defendant Officers could not have
conspired with one another, as a matter of law, under the intracorporate conspiracy doctrine. “‘The
intracorporate conspiracy doctrine holds that . . . a corporation cannot conspire with its employees,
and its employees, when acting in the scope of their employment, cannot conspire among
themselves.” Exec. Sandwich Shoppe, 749 A.2d at 739 (quoting McAndrew v. Lockheed Martin
Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)). The District maintains that, here, where “Plaintiff
only implicates District employees as the alleged conspirators” and “the District and its employees
make up one entity, it cannot conspire with itself.” District’s Mot. at 9-10. Plaintiff does not
dispute that the intracorporate conspiracy doctrine may apply to District employees; nor does he
dispute that all of the alleged conspirators were employed by the District. See Pl.’s Opp’n at 8-9.
Instead, he argues that the intracorporate conspiracy doctrine is inapplicable in this case because
it “does not protect police officers when conspiring to cover up their own misconduct.” Id.
The D.C. Court of Appeals has discussed the intracorporate conspiracy doctrine on only
one occasion, and it did so in a cursory manner. In Executive Sandwich Shoppe, the court reversed
a lower court’s dismissal of a civil conspiracy claim. 749 A.2d 724. At the close of its opinion,
the D.C. Court of Appeals directed the trial court to “consider” on remand “the applicability of the
intracorporate conspiracy doctrine to the . . . civil conspiracy claim” and quoted the Eleventh
Circuit’s decision in McAndrew v. Lockheed Martin Corp. in defining the doctrine. Id. at 739.
The D.C. Court of Appeals ended its discussion of the intracorporate conspiracy doctrine there,
and to this court’s knowledge, has not revisited it again. The court’s instruction to the trial court
to “consider,” without further explanation, the doctrine’s “applicability,” leaves uncertain its status
under D.C. common law. See Rawlings v. District of Columbia, 820 F. Supp. 2d 92, 104 (D.D.C.
2011) (“The District of Columbia Court of Appeals does not appear to have addressed whether or
to what extent it recognizes the doctrine in regard to alleged violations of D.C. statutory or common
law.”).6
But even if applicable, the intracorporate conspiracy doctrine would not help the District
here. The sole case relied upon by the D.C. Court of Appeals, McAndrew v. Lockheed Martin
Corp., considered at length an exception to the doctrine for “criminal conspiracies.” 206 F.3d at
1035-41. McAndrew involved a federal law claim under Section 1985(2) “alleging a conspiracy
to deter a person by force, intimidation, or threat from testifying in a federal court proceeding.”
Id. at 1035. “The only issue before [the court was] whether the intracorporate conspiracy doctrine
applie[d] to and bar[red] a claim arising under Title 42 U.S.C. § 1985(2),” given the “long-
established conclusion that the intracorporate conspiracy doctrine does not apply to criminal
conspiracies.” Id. (emphasis added) (footnote omitted).7 The court found that the plaintiff’s civil
law claim “necessarily alleges criminal activity in violation of 18 U.S.C. § 1512—the criminal
statute prohibiting tampering with a witness—and a criminal conspiracy in violation 18 U.S.C. §
371.” Id. at 1039. And because it could “discern no basis for drawing [a] distinction,” id. at 1040,
between a conspiracy under criminal law and a conspiracy alleging criminal activity under civil
law, the court concluded that “the intracorporate conspiracy doctrine does not apply and . . . cannot
shield the [d]efendants from civil liability,” id. at 1036.
6
Our Court of Appeals has applied the intracorporate conspiracy doctrine to a claim of “civil conspiracy to act
negligently.” Okusami v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992). Okusami was an
antitrust case in which the plaintiff alleged that the defendants conspired to violate the Sherman Act. Id. at 1063-64.
Because the intracorporate conspiracy doctrine was originally developed in the antitrust context, see Copperweld
Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), its application to the civil conspiracy claim alleged in
Okusami was logical. This court does not, however, interpret Okusami to establish a broader principle that the
intracorporate conspiracy doctrine is applicable to any alleged conspiracy to commit a tort under D.C. common law.
7
The Supreme Court has acknowledged that the intracorporate conspiracy doctrine does not apply to criminal
conspiracies, noting that “it has long been the law of criminal conspiracy that the officers of even a single corporation
are capable of conspiring with each other or the corporation.” See Copperweld Corp., 467 U.S. at 786 (Stevens, J.,
dissenting) (citations omitted).
Here, like the claim of the plaintiff in McAndrew, Plaintiff’s civil conspiracy claim
“necessarily alleges criminal activity.” Id. at 1039. Under D.C. law, it is a crime to “make or
cause to be made to [MPD], a false or fictitious report of the commission of any criminal offense
within the District of Columbia . . . knowing such report to be false or fictitious.” D.C. Code § 5-
117.05. It is also a crime to “wilfully make[ ] a false statement that is in fact material, in writing,
directly or indirectly, to any instrumentality of the District of Columbia government, under
circumstances in which the statement could reasonably be expected to be relied upon as true.”
D.C. Code § 22-2405(a). Further, D.C. law criminalizes “conspir[ing] . . . to commit a criminal
offense.” D.C. Code § 22-1805a; see also Gilliam v. U.S., 80 A.3d 192, 208 (“Under D.C. law, a
conspiracy requires proof of both agreement and action: an agreement to commit a criminal offense
and, during the life of the conspiracy, and in furtherance of its objective, the commission by at
least one conspirator of at least one of the overt acts specified in the indictment.”) (citations
omitted) (internal quotation marks omitted). Plaintiff’s claim alleging a conspiracy to file false
police reports and give false testimony, like the conspiracy in McAndrew, “squarely and
unambiguously alleges a criminal conspiracy.” McAndrew, 206 F.3d at 1035-36. Thus, even if
the intracorporate conspiracy doctrine can serve as a shield to a civil conspiracy claim, that doctrine
does not protect the District here, where its employees are alleged to have conspired to commit
criminal conduct.
This conclusion is consistent with cases applying the intracorporate conspiracy doctrine to
conspiracy claims arising under the federal civil rights laws. Courts in this district, for instance,
have examined the doctrine extensively in relation to Section 1983 and 1985 conspiracies, and
concluded that it does not apply when the underlying alleged scheme involves conduct that is
outside the scope of employment and at least arguably criminal. See, e.g., Kenley v. District of
Columbia, No. 14-CV-01232, 2015 WL 1138274, at *5 (D.D.C. Mar. 13, 2015) (holding the
doctrine “inapplicable in cases alleging egregious police misconduct that cannot be fairly
characterized as involving routine business decisions”) (citations omitted); Rawlings, 820 F. Supp.
2d at 104 (“Where courts have recognized the doctrine, they have included an important caveat
that is implicated here: for the doctrine to apply, the individual defendants must have been acting
within the scope of their shared employment.”).
One such case, Kivanc v. Ramsey, is particularly illustrative because, like this case, it
involved an allegation that MPD officers had conspired “to conceal assault and battery with false
police reports.” 407 F. Supp. 2d 270, 275 (D.D.C. 2006), abrogated on other grounds by Harvey
v. Kasco, No. 14-CV-01571, 2015 WL 3777362 (D.D.C. June 17, 2015). The court refused to
apply the intracorporate conspiracy doctrine to dismiss the civil rights conspiracy claim because it
was “not persuaded [that the defendants’ alleged actions] could conceivably be classified as the
products of routine police department decision-making.” 407 F. Supp. 2d at 276. Similarly, here,
the alleged conduct of Defendant Officers of falsifying police reports to conceal their assaultive
behavior, Compl. ¶ 75, if accepted as true, cannot properly be characterized as a “routine business
decision” or conduct within the “scope of employment.” The intracorporate conspiracy doctrine
is therefore not applicable. The court denies the District’s Motion to Dismiss as to Plaintiff’s civil
conspiracy claim.
C. Negligence Claim Against the District
Plaintiff also has alleged a negligence claim against Defendant Officers directly and against
the District under a theory of respondeat superior. Am. Compl. ¶¶ 78-87, 105-107. He asserts
that “Defendant Officers were negligent and breached their duty of care by, among other things,
failing to comply with all applicable laws, statutes, regulations, training, police standards, police
special orders and general orders with regard to the treatment and actions of Plaintiff while he was
in their custody.” Id. ¶ 79. He also contends that “Defendant Officers had a duty to intervene and
prevent the attacking Officers from using inappropriate force vis-à-vis the Plaintiff.” Id. ¶ 85. To
establish these duties, Plaintiff points to three MPD “General Orders,” one MPD “Special Order,”
and MPD’s “Spectrum of Force” and “Use of Force Continuum” policies, which collectively
address the appropriate use of force, along with ethical and reporting obligations. Id. ¶¶ 80-84.
He alleges that Defendant Officers’ breach of these duties was “the direct and proximate cause of
[his] significant and several injuries.” Id. ¶ 86. The District moves to dismiss, arguing that
“Plaintiff has pled no separate facts to support a stand-alone negligent cause of action that is
distinct from his excessive force, assault, and false arrest claims.” District’s Mot. at 11. The court
agrees with the District.
There is some divergence in this jurisdiction as to whether a plaintiff can simultaneously
sustain claims for assault/battery and negligence, both premised on an excessive use of force.
Some courts in this district have allowed such pleading to proceed based on the general rule that a
plaintiff may plead inconsistent theories in the alternative, See, e.g., Harvey, 2015 WL 3777362,
at *3; Collier v. District of Columbia, 46 F. Supp. 3d 6, 19-20 (D.D.C. 2014). Others, however,
have dismissed the negligence claim, concluding that the two claims cannot co-exist because “a
person cannot negligently commit an intentional tort.” Sabir v. District of Columbia, 755 A.2d
449, 452 (D.C. 2000); see also Rawlings, 820 F. Supp. 2d at 109; Rice v. District of Columbia,
715 F. Supp. 2d 127, 132 (D.D.C. 2010); Austin v. District of Columbia, No. 05-CV-02219, 2007
WL 1404444, at *5-6 (D.D.C. May 11, 2007).
The D.C. Court of Appeals, however, has provided clear guidance. In District of Columbia
v. Chinn, 839 A.2d 701 (D.C. 2003), the court acknowledged the general rule that an “individual
who has been injured by a District police officer may sue under one or more common law theories
of legal liability such as assault and battery or negligence.” Id. at 705 (citation omitted). But to
sustain such alternative claims, the court held, the negligence claim cannot simply rest on the same
allegations as does the assault/battery claim. “[I]n a case involving the intentional use of force by
police officers, a negligence count . . . must be distinctly pled and based upon at least one factual
scenario that presents an aspect of negligence apart from the use of excessive force itself and
violative of a distinct standard of care.” Id. at 711. In Chinn, the court held that the plaintiff had
not established an aspect of negligence separate from the alleged assaultive behavior and thus both
claims could not proceed together:
The crux of Chinn’s claim is that the officers deliberately inflicted excessive force
upon him, and the evidence presented at trial was that officers continuously
assaulted him without provocation. Chinn did not argue that the officers mistakenly
or negligently thought Chinn was armed; Chinn did not allege that the officers
misperceived him as a threat. The negligence claim, under these circumstances,
should not have gone to the jury as no separate and distinct cause or theory of
negligence was presented before the court.
Id.
Although Chinn arose in the specific context of whether the trial court should have
submitted the alternative claims to a jury, Chinn’s requirement that a plaintiff must distinctly
present an aspect of negligence apart from the use of excessive force is pertinent here. To establish
the relevant standard of care and to sustain his negligence claim, Plaintiff’s pleading relies on
nothing more than MPD’s regulations and policies prohibiting the use of excessive force. These
regulations and policies provide that officers “shall use only that force which is reasonably
necessary to bring an incident under . . . control, while protecting the lives of the officers and
others,” Am. Compl. ¶ 80; “use only the minimal amount of force which is consistent with the
accomplishment of their mission, and to only use force to protect life and property, to make a
lawful arrest, to prevent escape of a law violator, to control an unlawful situation, and/or to
re[s]train a resisting suspect or prisoner,” id. ¶ 82; and, “not . . . strike or use any form of physical
force on a person with whom they are dealing, except when necessary to prevent an escape, when
acting in self-defense, or to prevent violence to another person, id. ¶ 84. Although regulations and
policies such as those cited by Plaintiff “may constitute evidence of a specific standard o[f] care,”
they do not themselves establish a distinct standard of care. Austin, 2007 WL 1404444, at *6
(citation omitted) (emphasis added); see also Rice, 715 F. Supp. 2d at 132 (citations omitted)
(finding that an MPD General Order regarding the use of firearms “functions as an internal
operating manual and not as a regulation whose violation constitutes negligence per se”). And
they certainly do not establish a standard of care different from the general standard to refrain from
using excessive force.8 Thus, because Plaintiff’s negligence claim is premised on the same exact
excessive-use-of-force allegations that serve as the basis for his claims for assault and battery, he
has not pled a separate, legally cognizable claim.9
Plaintiff’s negligence claim is not saved by his alternative assertion that Defendant Officers
were negligent with regard to their duty to intervene. The District is correct that a police officer
only has a duty to intervene where “the police and the individual are in a special relationship
different from that existing between the police and citizens generally.” Warren v. District of
Columbia, 444 A.2d 1, 5 (D.C. 1981); see also Martin v. Malhoyt, 830 F.2d 237, 259 (D.C. Cir.
8
In addition to regulations and policies regarding the use of excessive force, Plaintiff cites regulations addressing
ethics—“Pursuant to Special Order 97-31, Code of Ethics, Defendant Officers had a duty to not conduct themselves
in any way which may be construed as immoral, indecent, and/or unprofessional,” Am. Compl. ¶ 81—and reporting—
“Pursuant to General Order 201.26, Defendants had a duty to report any violations of the rules of the MPD by any
other member of the MDP to their immediate supervisor,” id. ¶ 83. Similar to the regulations and policies related to
the use of force, these regulations do not, on their own, establish duties of care. See Austin, 2007 WL 1404444, at *6.
Therefore, they too are insufficient to support Plaintiff’s negligence claim.
9
If, during discovery, Plaintiff were to uncover facts that would give rise to “an aspect of negligence apart from the
use of excessive force,” Chinn, 839 A.2d at 711, the court would consider an amendment of Plaintiff’s Amended
Complaint that reasserts his negligence claim.
1987). A special relationship is formed when there is “(1) a specific undertaking to protect a
particular individual, and (2) justifiable reliance by the [individual].” Morgan v. District of
Columbia, 468 A.2d 1306, 1314 (D.C. 1983) (en banc). In this case, Plaintiff has pled no facts to
support an inference that Defendant Officers specifically undertook to protect him or that he relied
on Defendant Officers to do so. He simply stated that, “under the guidelines and orders set forth”
in his Amended Complaint—none of which state or imply a duty to intervene or reference a special
relationship between Plaintiff and Defendant Officers—“Defendant Officers had a duty to
intervene and prevent the attacking Officers from using inappropriate force.” Am. Compl. ¶ 85.
Even when viewed in the light most favorable to Plaintiff, this statement is insufficient to support
his allegation of negligence. The court therefore grants the District’s Motion to Dismiss as to
Plaintiff’s negligence claim against the District.
D. Malicious Prosecution Against the District
Plaintiff has alleged malicious prosecution against Defendant Officers directly and against
the District under a theory of respondeat superior. Id. ¶¶ 99-107. To support a malicious
prosecution claim under D.C. law, “there must be (a) a criminal proceeding instituted or continued
by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused,
(c) absence of probable cause for the proceeding, and (d) ‘malice,’ or a primary purpose in
instituting the proceeding other than that of bringing an offender to justice.” DeWitt v. District of
Columbia, 43 A.3d 291, 296 (D.C. 2012) (citation omitted). Courts also generally require that a
“special injury [was] occasioned by plaintiff as a result of the original action.” Morowitz v. Marvel,
423 A.2d 196, 198 (D.C. 1980)). Defendant moves to dismiss this claim as insufficiently pled,
arguing first, that “Plaintiff has pled no facts to indicate that the underlying suit terminated in his
favor,” and second, that “Plaintiff has failed to plead any ‘special injury’ that he suffered as a result
of the underlying action.” District’s Mot. at 12. The court disagrees.
1. Plaintiff Has Sufficiently Pled that the Underlying Case Terminated in His
Favor
Under D.C. law, a plaintiff need not show that he was found innocent after a trial in order
to demonstrate that a case terminated in his favor. See Brown v. Carr, 503 A.2d 1241, 1245 (D.C.
1986). All that is required is termination of the kind that “tends to indicate the innocence of the
accused.” Id. (citations omitted). In Brown, on which the District relies in its Motion, the
D.C. Court of Appeals stated:
[N]o favorable termination is found where the earlier action is dismissed on the
ground of the statute of limitations or laches because these dispositions do not
reflect on the merits of the underlying claim. By contrast, dismissal for failure to
prosecute has been held to be a favorable termination where the facts of the case
indicate that such a disposition reflects on the innocence of the defendant in the
underlying suit.
Id. (internal citations omitted); see also Feld Entm’t Inc. v. Am. Soc’y for the Prevention of
Cruelty to Animals, 873 F. Supp. 2d 288, 331 (D.D.C. 2012) (citations omitted) (“Courts have
consistently dismissed malicious prosecution claims when the prior suit was dismissed for lack of
jurisdiction or standing, as opposed to on the merits of the plaintiff’s claims. By contrast, District
of Columbia courts have found that abandonment of an action, or voluntary dismissal for lack of
prosecution, can constitute a termination in plaintiff’s favor for the purposes of malicious
prosecution.”).
Here, Plaintiff states that the “charge of Assault on [a] Police Officer was dismissed in the
Superior Court for the District of Columbia.” Am. Compl. ¶ 102. Although this terse assertion
does not explain why his case was dismissed, the court can, at this stage, plausibly infer from the
dismissal—along with the allegations surrounding Plaintiff’s false arrest—that Plaintiff’s
prosecution terminated for reasons that “tend to indicate” his innocence. Moreover, the District,
in its Motion and its Reply Brief, failed to offer any facts regarding the circumstances of the
underlying case’s dismissal. Where a defendant offers no such evidence, courts have allowed
malicious prosecution claims to survive motions to dismiss. See, e.g., Lucas v. District of
Columbia, 505 F. Supp. 2d 122, 127 (D.D.C 2007) (“Defendants provide no ‘facts of the case’
arising from the criminal charges filed against the Plaintiff from which the Court could find that
the disposition did not reflect on the innocence of the Defendant. The Court will deny this aspect
of Defendants’ motion without prejudice.”); Feld, 873 F. Supp. 2d at 322 (quoting Lucas, 505 F.
Supp. 2d at 127) (“At this stage of the litigation, these defendants have provided no ‘facts of the
case’ arising from their decision to abandon their claims ‘from which the Court could find that the
disposition did not reflect on the innocence’ of FEI. Accordingly, the Court will deny the motion
to dismiss the malicious prosecution claims[.]”). The court thus finds that Plaintiff has sufficiently
pled that the underlying case terminated in his favor.
2. Plaintiff Has Sufficiently Pled a Special Injury
Defendant also argues that Plaintiff failed to allege a “special injury.” “Special injury” for
purposes of a malicious prosecution claim is defined as “arrest, seizure of property, or injury which
would not necessarily result from suits to recover for like causes of action.” Lucas, 505 F. Supp.
2d at 127 (citation omitted) (internal quotation marks omitted) (quoting Joeckel v. Disabled Am.
Veterans, 793 A.2d 1279, 1282 (D.C. 2002). In his Amended Complaint, Plaintiff averred that,
“[a]s a result of the intentional and wrongful actions of the Defendant Officers, [he] suffered a loss
of liberty, emotional distress, psychological harm and mental anguish, loss of reputation, and
economic injury.” Am. Compl. ¶ 104. Plaintiff’s allegation that he suffered “a loss of liberty”—
another way of stating “arrest”—sufficiently alleges a “special injury.” The court therefore denies
the District’s Motion to Dismiss as to Plaintiff’s malicious prosecution claim.
E. Negligent Training and Supervision Against the District
Plaintiff also has made a “negligent training and supervision” claim against the District.
He contends that the District “was under a duty to properly train, supervise, investigate and correct
improper actions of the MPD Officers,” Am. Compl. ¶ 109; that it “recklessly and without regard
for the rights of others, breached [its] duty,” id. ¶ 110; and that the breach was the “direct and
proximate cause of the substantial injuries sustained by” Plaintiff, id. ¶ 111. The District moves
to dismiss this claim, arguing that “Plaintiff has simply alleged no facts explaining how the District
knew or should have known its officers needed additional training or that this purported lack of
training and supervision would have proximately caused his injuries, or how the District was
negligent in training or supervising the officers that allegedly assaulted him.” District’s Mot. at
13. The court agrees with the District.
To prevail on a claim of negligent training and supervision under D.C. law, a plaintiff must
“show that an employer knew or should have known its employee behaved in a dangerous or
otherwise incompetent manner, and that the employer, armed with that actual or constructive
knowledge, failed to adequately supervise the employee.” District of Columbia v. Tulin, 994 A.2d
788, 794 (D.C. 2010) (citations omitted). Here, Plaintiff has not alleged any facts to support the
inference that the District had knowledge of MPD officers’ tendency to use excessive force. See
Harvey, 2015 WL 3777362, at *4 (granting motion to dismiss negligent training and supervision
claim where Plaintiff offered no facts “regarding the District of Columbia’s knowledge that one of
its officers would allegedly use excessive force in effectuating an unjustified arrest in a single
incident, or that other officers would fail to intercede”). Plaintiff also has failed to present facts
regarding the District’s supervision, or lack thereof, of its employees. See Rawlings, 820 F. Supp.
2d at 116. The court therefore grants the District’s Motion to Dismiss as to Plaintiff’s claim of
negligent training and supervision.
F. All Claims Against the Named Officers
The Named Officers move to dismiss the Amended Complaint in its entirety on one
ground—they claim that they were not properly served with process. The relevant facts are these.
Plaintiff filed his initial Complaint on July 3, 2014. ECF No. 1. He filed an Amended Complaint
on October 23, 2014, Am. Compl., before he had served the Named Officers—Thomas O’Donnell,
Kevin Lally, Jason Romlein, and Bryan Adelmeyer—with his initial Complaint. See Mem. of P.
& A. in Supp. of Defs. O’Donnell, Lally, Romlein, and Adelmeyer’s Mot. to Dismiss, ECF No.
11 ¶ 2 [hereinafter Named Officers’ Mot.]. Six days later, on October 29, 2014, Plaintiff served
Defendant Romlein with the initial Complaint; thereafter, he served the other three Named Officers
with the same. See Named Officers Mot. ¶¶ 3-4.
The Named Officers argue that “Plaintiff has failed to demonstrate that the[y] were served
with the Amended Complaint” and “[t]herefore, dismissal is appropriate” under Federal Rule of
Civil Procedure 4(b). Named Officers’ Mot. ¶ 6. Plaintiff does not dispute his failure to serve the
Named Officers with the Amended Complaint, explaining that his “counsel was unsure that the
Court had accepted the Amended Complaint until the Court filed its minute order on November
19, 2014 denying as moot the Defendant District of Columbia’s Motion to Dismiss [his initial
Complaint],” by which time the Named “Officers had been served.” Mem. of P. & A. in Supp. of
Pl.’s Opp’n to Defs.’ Mot. to Dismiss, ECF No. 16 ¶¶ 5-6. Plaintiff has asked “that the Court
permit [him] additional [time] to serve the [Named O]fficers with the Amended Complaint.” Id.
¶ 8.
Under the Federal Rules, a “plaintiff is responsible for having the summons and complaint
served,” Fed R. Civ. P. 4(c)(1), “within 120 days after the complaint is filed,” id. at 4(m). Service
has two purposes: (1) it “is a means of notifying a defendant of the commencement of an action
against him” and (2) it “marks the court’s assertion of jurisdiction over the lawsuit.” Mann v.
Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (citation omitted) (internal quotation marks omitted).
Here, Plaintiff did serve the Named Officers with the initial Complaint within 120 days after it
was filed with this court. That service accomplished the purpose of notifying them of Plaintiff’s
action. It also accomplished the purpose of establishing the court’s jurisdiction over the lawsuit,
which neither the Named Officers nor the District argues is improper. See generally Named
Officers’ Mot.; District’s Mot. Having accomplished these two purposes by serving the Named
Officers with his initial complaint, Plaintiff’s failure to serve the Amended Complaint is not fatal.
The Named Officers’ Motion to Dismiss is therefore denied.
The court nevertheless, out of an abundance of caution, will exercise its discretion under
Federal Rule of Civil Procedure 4(m) to grant Plaintiff an additional 21 days to complete service
of the Amended Complaint and file proof of such service with the court. See Fed. R. Civ. P. 4(m)
(“[I]f the plaintiff shows good cause for the failure, the court must extend the time for service for
an appropriate period.”); see also Mann, 681 F.3d at 375 (quoting Fed. R. Civ. P. 4(m), Advisory
Committee note to 1993 Amendments, Subdivision(m)) (“The Advisory Committee note for Rule
4(m) instructs that the district court has discretion to extend the time for effecting and filing proof
of service even if the plaintiff fails to show ‘good cause.’”).
V. CONCLUSION AND ORDER
For the reasons stated above, the court grants the District’s Motion to Dismiss as to
Plaintiff’s 42 U.S.C. § 1983, negligence, and negligent training and supervision claims, and denies
the Motion as to Plaintiff’s civil conspiracy and malicious prosecution claims. Additionally, the
Named Officers’ Motion to Dismiss is denied.
_____
Dated: August 3, 2015 Amit P. Mehta
United States District Judge
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841 F.Supp. 1365 (1993)
Rabbi Reuven FLAMER, Plaintiff,
v.
CITY OF WHITE PLAINS, NEW YORK, Defendant.
No. 92 Civ. 9165 (SS).
United States District Court, S.D. New York.
December 6, 1993.
*1366 Nathan Lewin, Niki Kuckes, James Heavner, Miller, Cassidy, Larocca & Lewin, Washington, DC, for plaintiff Rabbi Reuven Flamer.
Vincent R. Fontana, Robert P. Pagano, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, for defendant City of White Plains, NY.
OPINION AND ORDER
SOTOMAYOR, District Judge.
This case involves the interplay between two of our nation's most cherished values: *1367 freedom of expression and freedom of religion. In 1991 and 1992, plaintiff Rabbi Reuven Flamer ("Rabbi Flamer") sought permission to display a menorah during the holiday of Chanukah in one of two city-owned parks, Tibbits Park ("Tibbits") or Main Street/Mamaroneck Avenue Plaza Park ("Main"), located in the downtown area of White Plains, New York. Defendant, the City of White Plains, New York (the "City"), denied both requests pursuant to a December 2, 1991 Resolution (the "Resolution"), adopted by the White Plains Common Council (the "Common Council"), which prohibits "fixed outdoor display[s] of religious or political symbols" in City parks.
Rabbi Flamer desires to erect a temporary free-standing menorah in a City park during the eight day holiday of Chanukah this year and in the future. He claims that the City's Resolution is unconstitutional under the Free Speech and Free Exercise Clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment. Rabbi Flamer requests that I (1) declare the Resolution unconstitutional; (2) permanently enjoin the City from applying the Resolution to his requests to display a menorah in a City park; and (3) order the City to permit him to erect a free-standing menorah in a City park during the Chanukah holiday this year and thereafter.
The City concedes that the Resolution restricts expressive conduct protected by the First Amendment, but contends that the Resolution is a constitutionally valid time, place and manner restriction that is necessary to avoid a violation of the Establishment Clause. The City claims that because it has never allowed fixed, free-standing religious displays in City parks, permitting such a display now would violate the Establishment Clause because it would convey the impression that the City endorsed particular religions or religion generally.
This case was tried before me on October 18, 1993, and the record, as agreed by the parties, consists entirely of stipulations of fact, depositions, answers to interrogatories and requests for admissions, and exhibits. Jurisdiction is premised on 28 U.S.C. §§ 1331 & 1343(a) (1993). This Opinion and Order sets forth my findings of fact and conclusions of law. For the reasons discussed below, I find the Resolution unconstitutional and enjoin the City from applying the Resolution to Rabbi Flamer's requests.
I. BACKGROUND
Rabbi Flamer is an Orthodox Jewish Rabbi who is a member of the Hasidic Lubavitcher sect of Orthodox Judaism. Rabbi Flamer resides in White Plains, New York. At all relevant times, Rabbi Flamer has served as the Executive Director of Chabad Lubavitch of Westchester County ("Chabad"). Chabad is an Orthodox Jewish organization concerned with Jewish education and other issues. Chabad does not have a membership in the sense of a congregation, and Rabbi Flamer and his wife are the organization's sole officers.
The City is a municipal corporation of the State of New York, located in Westchester County. The City, through the White Plains Department of Recreation and Parks (the "Parks Department"), maintains over 200 acres of park land in Westchester County. Since 1979, Joseph P. Davidson has served as the Commissioner of the Parks Department.
Chapter 6-2 of the White Plains Code, entitled "Parks and Playgrounds," sets forth general rules governing use of City parks. Park use is also governed by municipal, state and federal laws, as well as formal and informal policies and practices devised by the Parks Commissioner. Like private parties, the City must comply with all relevant laws and administrative rules in its use of the parks.
Those, including the City, who wish to use a City park for an event involving more than 25 people, the placement of objects or equipment, or the use of a sound system must obtain a permit from the Parks Department. To request a permit, parties generally send a written request to the Parks Commissioner detailing various aspects of the proposed use, including the time, date, and number of people expected. All requests other than those for ballpark or athletic permits are handled by the Parks Commissioner and his Deputy Commissioner, who examine them for user *1368 conflicts, operational concerns and legality. If a request is granted, permit holders typically must meet certain conditions, such as providing evidence of insurance, ensuring that public access to the park is not impeded, and agreeing to comply with the City's noise ordinances.
A. Tibbits and Main
Two of the City's parks, Main and Tibbits, are situated in the downtown area of White Plains. Main, a public park which has been in existence since 1983, is slightly less than half an acre in size, and is bounded by Main Street, Mamaroneck Avenue and Court Street. Main is located approximately one block from City Hall; however, City Hall is only visible from that portion of the park which fronts on Main Street. Various commercial buildings and stores surround Main, but no government buildings adjoin the park. Main contains, among other things, a fountain, park benches and concrete planters.
A few blocks from Main lies Tibbits, a public park, whose use dates back to George Washington's time, when the area served as the town commons or village green. Two acres in size, Tibbits consists of a strip of land extending several blocks, approximately 15 to 20 feet wide at its narrowest end, the northernmost end of the park, and 300 to 400 feet at its widest point, the southernmost end of the park. The park forms a median between North and South Broadway, with three lanes of traffic on each side. Residential and commercial buildings as well as two government buildings, the White Plains Parking Authority and the City Armory which houses certain municipal offices, adjoin the park. Like Main, Tibbits is located approximately one block from City Hall, which is visible only from that area of the park located at the corner of Main Street and North Broadway. Tibbits contains, among other things, park benches, a fountain and a gazebo, constructed in 1984 by the White Plains Beautification Foundation, Inc. City Hall can not be seen from the park block where the fountain and gazebo are located.
Tibbits and Main are "dedicated" park lands open for use by members of the public. For property to become "dedicated" park land, the Common Council must pass a resolution designating the property as such and the New York State legislature must approve the designation. Unlike other municipal property, "dedicated park land" may only be used for park and recreational purposes and can only be alienated by act of the state legislature. In addition, the Parks Department has classified Tibbits and Main as "passive" parks. Passive parks are parks set aside for peaceful enjoyment by individuals. In a passive park, individuals may walk, sit, talk, relax and do anything else that is quiet and passive. Active parks, by contrast, are those where active athletic and recreational activities are permitted.
Over the years, a wide array of expressive activity by private groups and individuals has occurred in both Tibbits and Main. A prime arena for political expression, Main has been used by numerous political and social activist organizations for demonstrations, rallies and vigils, around issues as diverse as Middle East peace, the United States' invasion of Panama, abortion rights and nuclear disarmament.[1] Main was also used as the starting or ending point in a march by advocates for the homeless. In addition, a nursing organization held a vigil for cancer victims, which included an ecumenical service, on Main's Plaza. In Tibbits, historically a forum for public assembly and debate, the City and the White Plains Cemetery conducted a wreath-laying ceremony for soldiers killed in World War I. The Sons of Italy have also conducted a wreath-laying ceremony there to commemorate Columbus Day. Tibbits has also been the site of gatherings honoring those who died in the Civil and Spanish American Wars.
*1369 In addition, diverse creative and social events are regularly held in these parks. Since 1972, the Parks Department and the Citizens's Festival Committee, a private, not-for-profit organization, have sponsored the White Plains Outdoor Arts Festival in Tibbits, along the sidewalks of Main Street and Broadway, and in Main's Plaza. The Arts Festival, which showcases more than 160 exhibits, lasts approximately three days over a weekend in June, and involves the erection of various temporary but fixed structures, namely, free-standing tents, temporary barricades and signs. These objects are permitted to remain in the parks overnight during the three-day event.
Tibbits and Main are also home to the Noonday Festival of Live Music, another annual creative event organized by the City. This festival, which began in Tibbits in 1980 and was extended to Main in 1983, involves a series of musical concerts during the months of June and July and is funded by corporate sponsors. In Main, portable shade tents have been erected for the performances.[2]
Winter holiday festivities in Tibbits and Main have regularly included fixed displays which remained standing throughout the holiday season. On several occasions since 1983, a holiday tree, donated by private parties and decorated by volunteers and City employees, has been displayed in Main. This tree, which is approximately four to six feet in height, has remained in place throughout the December holiday season. Similarly, a decorated holiday tree, ranging from fifteen to thirty feet in height, has been placed in or near the fountain in Tibbits each year since 1983. Like the Main holiday trees, the Tibbits' trees are donated by private parties, and have remained standing throughout the holiday season, and occasionally through spring. In addition, the White Plains Beautification Foundation, Inc., a private group, has placed a decorated holiday tree, up to eight feet in height, in the Tibbits gazebo each year from 1990 to 1992. On occasion, Christmas songs, some religious in nature, have been sung or played at the lighting of the Main and Tibbits' holiday trees. In accordance with Supreme Court precedent, see County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 616, 109 S.Ct. 3086, 3113, 106 L.Ed.2d 472 (1989) (plurality opinion) (a "Christmas tree, unlike a menorah, is not itself a religious symbol"), the parties acknowledge, however, that the holiday trees in Tibbits and Main are not religious symbols.
The Parks Department has also permitted private fixed displays on other City-owned property. For the past four years, a United Way sign has been placed for some months at the corner of Gedney Way and Mamaroneck Avenue on the City's right-of-way near Gilley Park. A similar sign has been displayed on the steps of City Hall.
While Tibbits and Main have served as forums for a host of diverse gatherings, displays and other activities, the Parks Department has on occasion denied requests to use the parks. For example, based on its designation of Main and Tibbits as "passive parks," the Parks Department refused the Westchester Chapel and Grace Church permission to hold musical concerts in Main, and a labor union permission to hold a rally involving approximately 1500 people in Tibbits.
B. Rabbi Flamer's 1991 Menorah Display Request
In October 1991, Rabbi Flamer wrote to Commissioner Davidson to request a permit, on behalf of Chabad, to erect an electric menorah in Main during the Jewish holiday of Chanukah, which lasted from December 1 to December 8, 1991.[3] Chanukah is a religious holiday observed by Jews during an eight day period which ordinarily falls between the latter part of November and the first part of January of each year. The menorah, a religious symbol of the Jewish faith associated with the celebration of lights of the Chanukah holiday, is a nine-pronged candelabra representing the eight days of *1370 Chanukah, with one space for a candle used to light the other eight. Designed for outdoor use, the menorah Rabbi Flamer proposed to display was constructed of aluminum and measured nine feet tall. In conjunction with his display request, Rabbi Flamer also requested permission to run a sound system in connection with a menorah lighting ceremony.
Finding Rabbi Flamer's request "unusual," Commissioner Davidson brought it to the attention of White Plains mayor, Alfred Del Vecchio. When Rabbi Flamer contacted him a few weeks later to inquire about the request, Commissioner Davidson informed Rabbi Flamer that it had been referred to the Corporation Counsel's office.
As of November 6, 1991, Rabbi Flamer had not received any response to his request. That day he sent a second letter to Commissioner Davidson, stating that he assumed the City's silence meant that a permit was forthcoming and thus, was going "full steam ahead" with the event. A week later, by letter dated November 13, 1991, Commissioner Davidson informed Rabbi Flamer that the City had denied his request to erect a menorah in Main, but invited Rabbi Flamer to meet with him to discuss "other locations that would be more suitable," and "matters such as plan specifications for the Menorah, hold harmless clauses for the City, adequate insurance, and security measures". Although the letter stated that the distribution of food and the amplification of music in connection with Rabbi Flamer's proposed event would be inappropriate, it offered no explanation as to why the City had denied Rabbi Flamer's request. Later, during his deposition, Commissioner Davidson explained that recent vandalism in Main had prompted the City to deny Rabbi Flamer's request.
On or about November 26, 1991, Rabbi Flamer and Commissioner Davidson, joined by Joseph Nicoletti, the Deputy Commissioner of the White Plains Department of Public Works, met at Tibbits. Deputy Commissioner Nicoletti inspected Rabbi Flamer's menorah, and informed him that one of the menorah's electrical prongs was defective. Rabbi Flamer agreed to change the prong and provide proof of insurance. While at Tibbits, Commissioner Davidson, Rabbi Flamer and Deputy Commissioner Nicoletti discussed potential locations in Tibbits for placement of the menorah. At trail, the City argued that both the gazebo and fountain areas of Tibbits were too small to hold a combined holiday tree and menorah display. The City maintains that the only other site capable of displaying the menorah with adequate lighting is an adjacent grass area, separated from the gazebo and fountain by a pathway. The City does not allege that the grass area can not accommodate both a menorah and a holiday tree.
After the meeting at Tibbits, Rabbi Flamer believed that, assuming his insurance was in order and the menorah plug was replaced, the City would issue a permit for the proposed menorah in Tibbits the following Friday, on November 29, 1991. Hence, prior to that date, Rabbi Flamer replaced the electrical plug and confirmed that Deputy Commissioner Nicoletti had received a copy of his insurance policy.
The day after Rabbi Flamer met Commissioner Davidson in the park, a newspaper article appeared in the Gannett Newspapers, Reporter Dispatch, entitled "City Will Let Menorah Stand in the Park." The article reported that the City planned to allow a Hasidic group to erect a menorah in Tibbits, next to a holiday tree. This article sparked great controversy within the Jewish community, and prompted vocal opposition by a number of rabbis in the Westchester community who believed that the Chanukah holiday should be celebrated in private settings, such as homes and synagogues, and not in public spaces like parks.
On November 29, 1991, Mayor Del Vecchio called a special meeting of the Common Council to discuss Rabbi Flamer's request. The special meeting was held two days later on December 1, but because of the lack of a quorum, was adjourned to the following day.
Shortly around sundown on December 1, 1991, the first day of Chanukah, Rabbi Flamer and approximately thirty other individuals gathered in Tibbits to celebrate the beginning of Chanukah. Rabbi Flamer brought a two and one-half foot menorah, which was *1371 not lit. The gathering lasted approximately twenty minutes, during which time the assembled group performed several traditional dances. The City did not prevent Rabbi Flamer from using Tibbits for this gathering and indicated at trial that religious ceremonies of this type were not prohibited in City parks.
On December 2, 1991, all seven members of the Common Council met in a public meeting attended by Rabbi Flamer, Corporation Counsel Anthony J. Grant, and numerous community residents. During the Common Council meeting, Rabbi Flamer's proposed menorah display came under strong attack from members of the White Plains Jewish community.[4] Rabbi Mark Weiner of the White Plains Jewish Community Center asserted that the "overwhelming majority of the Jewish community" felt that the proposed menorah display should not be allowed. In addition, a letter submitted by the American Jewish Committee opposing the display was read into the record.
Corporation Counsel Grant advised the Common Council members that they had two options: (1) deny Rabbi Flamer's request based on the City's historical practice of "not permitt[ing] religious []or political displays in any of [its] ... parks;" or (2) permit the City's parks to be used as "public forum[s]" by religious as well as nonreligious groups and persons.
After extensive debate, the Common Council passed the Resolution which reads as follows:
WHEREAS, the City has received requests for the outdoor display of religious symbols in city parks; and
WHEREAS, historically the City of White Plains has not permitted the outdoor display of religious or political symbols in city parks; now, therefore, be it
RESOLVED, that the City affirms its historical position that there be no fixed outdoor display of religious or political symbols in the City's parks.
Based on the Resolution, Rabbi Flamer's request to erect a menorah display was denied.
C. Rabbi Flamer's 1992 Menorah Display Request
The following year, on December 7, 1992, Rabbi Flamer made another request to erect a menorah display in a City park during the Chanukah holiday, which began that year on December 18. By letter dated December 9, 1992, Corporation Counsel Grant advised Rabbi Flamer that his permit request was denied on the basis of the Resolution's prohibition of outdoor fixed displays of religious or political symbols. On or about December 14, 1992, Rabbi Flamer sent a letter to Corporation Counsel Grant requesting that the City reconsider its decision. Citing the Supreme Court's decision in Allegheny, Rabbi Flamer expressed his willingness to erect his menorah "immediately adjacent to the Christmas tree in Tibbits Park, near the corner of Main Street and Broadway." The City refused to reconsider its denial, and the present lawsuit ensued.
At trial, Rabbi Flamer indicated that he had filed a request to erect a menorah in a City park this year.[5] Though claiming that he was unaware of this request, counsel for the City made clear that any such request would be denied pursuant to the Resolution.
DISCUSSION
I. Standing
Initially, the City argues that Rabbi Flamer lacks standing to launch a facial attack on the Resolution because he has never requested or been denied permission to erect a menorah in his individual capacity. The City claims that Rabbi Flamer's 1991 and 1992 permit requests were made on behalf of his organization, Chabad, and thus, Rabbi Flamer has not demonstrated the requisite "injury in fact" to confer standing.[6]
*1372 Rabbi Flamer asserts that the requests were made on his own behalf as well as that of Chabad-Lubavitch, and further contends that even if they were not, he would still have standing to challenge the Resolution because he wishes to erect a menorah in a City park this year and in the future.
I agree that Rabbi Flamer has standing to bring a facial challenge to the Resolution. While standing will lie only if a plaintiff possesses a sufficient personal stake in the controversy, that stake is established where such plaintiff has suffered "`some threatened or actual injury resulting from the putatively illegal action'". Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (citation omitted). The standing requirement is, therefore, met where a regulation or law poses a real and imminent threat of injury to a plaintiff. Valley Forge Christian College v. Americans United for the Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); see Carey v. Klutznick, 637 F.2d 834, 838 (2d Cir.1980) (citizens had standing to challenge census undercount because they alleged concrete harm in form of dilution of votes and risk of decreased federal funds).
The Resolution clearly poses a threat of injury to Rabbi Flamer. By barring fixed displays of religious symbols in City parks, the Resolution expressly prohibits the expressive activity Rabbi Flamer seeks to engage in: erecting a temporary free-standing menorah in a City park that will remain standing throughout the eight-day Chanukah holiday. Rabbi Flamer has made his desire to erect a menorah display this year concrete by requesting a permit to do so. At trial, counsel for the City stated that any such request would be denied under the Resolution. Thus, whether Rabbi Flamer requested permission to erect a menorah on his own behalf in 1991 and 1992 is irrelevant, since the Resolution poses present and immediate harm to Rabbi Flamer's free speech rights.[7] Accordingly, Rabbi Flamer has standing to bring a facial challenge to the Resolution.
II. The Resolution
The First Amendment, applicable to the City via the Fourteenth Amendment, Everson v. Board of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), provides that "Congress shall make no law abridging the freedom of speech." U.S. Const. amend. I. Religious and political speech enjoy the full protection of this fundamental guarantee. Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988) (political speech "operates at the core of the First Amendment"); Widmar v. Vincent, 454 U.S. 263, 268-69, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981) (religious worship and discussion are "forms of speech and association protected by the First Amendment"); see Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981) (oral and written dissemination of religious views protected by First Amendment).
While displays of religious and political symbols are unquestionably forms of protected speech under the First Amendment, Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 735, 21 L.Ed.2d 731 (1969) (wearing black armband to protest Vietnam War is protected speech); Chabad-Lubavitch of Ga. v. Miller, 5 F.3d 1383, 1386 (11th Cir.1993) (en banc) (menorah display in core government building deemed protected speech); Kreisner v. City of San Diego, 988 F.2d 883, 891-92 (9th Cir.1993) (private display in public park consisting of scenes from New Testament *1373 was protected speech under First Amendment); Americans United for Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538, 1542 (6th Cir.1992) (en banc) (menorah display in public plaza was protected speech); Doe v. Small, 964 F.2d 611, 618-19 (7th Cir.1992) (en banc) (display of religious paintings in public park was protected speech); McCreary v. Stone, 739 F.2d 716, 723 (2d Cir.1984) (creche display in public park held "protected speech" for First Amendment purposes), aff'd by an equally divided Court, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985), it is well-settled that this fundamental guarantee does not translate into unlimited access to government property for expressive purposes. International Soc'y for Krishna Consciousness v. Lee, ___ U.S. ___, ___, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992) (Port Authority regulation forbidding solicitation of money in airport terminals did not violate the First Amendment). Whether restrictions on access to public property impermissibly infringe on free speech rights depends on the nature of the property at issue. Under this "forum-based" approach, public property is classified into three categories. Krishna, ___ U.S. at ___, 112 S.Ct. at 2705-06; Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985).
The first category, the traditional public forum, consists of those places that "`have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions'". Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)). Public parks are "quintessential public forums," since these settings historically have served both in practice and in public perception as recognized enclaves of free expression. Id. The most exacting scrutiny attends restrictions on expressive activities in these classic public forums. Government may enforce a content-based restriction on speech in this type of forum only if the regulation is "necessary to serve a compelling state interest," and is "narrowly drawn to achieve that end". Id. While content-neutral regulations on expression in traditional public forums need only serve a significant government interest, they, too, must be narrowly-tailored and must "leave open ample alternative channels of communications." Id.
Less stringent standards govern restrictions on access to properties falling within the second category, the nonpublic forum. Nonpublic forums are government-owned properties not open by tradition to the public for expressive activities. As to these properties, both content-neutral time, place and manner restrictions and "reasonable" content-based regulations on speech are appropriate. See Krishna, ___ U.S. at ___, 112 S.Ct. at 2705 ("challenged regulation need only be reasonable"); Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir. 1991) (same). However, government, even in this forum, may not restrict speech because it opposes the viewpoint expressed. Krishna, ___ U.S. at ___, 112 S.Ct. at 2705-06.
The last category, the designated public forum, consists of properties which the government has intentionally opened for expressive activity by all or part of the public. Krishna, ___ U.S. at ___, 112 S.Ct. at 2705. Access restrictions to these forums are governed by the same rigorous standards that apply to those governing traditional public forums. Id. The Second Circuit has identified a sub-category of the designated public forum, which it has termed the "limited public forum". A limited public forum is "created when government opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects." Travis, 927 F.2d at 692 (citing Deeper Life Christian Fellowship v. Board of Educ., 852 F.2d 676, 679 (2d Cir. 1988); Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986)). In limited public forums, once government "allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre." Id.
*1374 As public parks, the City's park land is presumptively traditional public forum property. United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983) (public parks, "are considered, without more, public forums"). In arguing that its asserted historical practice of excluding fixed displays of religious and political symbols from its parks defeats this presumption, the City misperceives the relevance of past restrictions on expressive activity in defining a forum. Such restrictions define a forum only if the property at issue is inherently nonpublic and would not have been open to the public for expressive purposes absent affirmative governmental action. See Travis, 927 F.2d at 692 (limited public forum created when government opens nonpublic forum but limits expressive activity to certain kinds of activity). Past use restrictions are irrelevant in the case of a public park, which by tradition, not governmental initiative, is open to all manner of speech. See Kreisner, 988 F.2d at 893 (no affirmative governmental action required to open public park to specific type of expressive activity).
The Second Circuit's decision in Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989), does not, as the City contends, stand for the proposition that past governmental practice of excluding particular types of speech alters a public park's status as a traditional public forum, for the Kaplan court explicitly recognized that the park at issue, City Hall Park, was "indisputably a traditional public forum". Id. at 1029. Admittedly, however, the Kaplan decision is somewhat confusing because it does contain language suggesting that limited public forum considerations are relevant in evaluating access restrictions to traditional public forums. In attempting to distinguish Widmar, where the Supreme Court held that a University, having created a forum generally open to wide array of student groups, could not enforce a content-based exclusion of religious speech, the Kaplan court stated that the City of Burlington "had not created a forum in City Hall Park open to the unattended, solitary display of religious symbols". Id. This language conflates limited public forums with traditional public forums, which as noted above, derive their status from history and tradition, not governmental action. See Kaplan, 891 F.2d at 1032 (Meskill, J., dissenting) ("park's status as a public forum does not depend upon whether the City has in the past permitted a particular type of speech or form of expressive conduct").
Moreover, Kaplan's distinction of Widmar is flawed by its suggestion that a contentbased restriction on access defines the scope of a public forum. The Supreme Court's decision in Widmar is exceedingly clear that in a public forum, limited or unlimited in use, the First Amendment proscribes discrimination between non-religious and religious speech as well as discrimination among religious speakers. Widmar, 454 U.S. at 278, 102 S.Ct. at 278 (University's exclusion of student groups espousing religious messages from using its premises "violate[d] the fundamental principle that a state regulation of speech should be content-neutral").
Here, the record is devoid of evidence suggesting that the City's parks, unlike most parks, are not traditional public forums. Quite the contrary, the record amply demonstrates that the two City-owned parks in which Rabbi Flamer sought to display his menorah, Tibbits and Main, are classic traditional public forums. Both of these parks have been dedicated by the City for public use as city parks, and under New York law, will be used for such purposes unless and until the City government and the state legislative alter their status.[8] Consistent with this designation, both of these parks throughout the years have served as the situs for a wide array of privately-sponsored public expressive activity, including rallies and demonstrations. Indeed, Tibbits's use as a forum for public expression and assembly dates back to colonial times when the area served as the town commons and village green.
*1375 Moreover, nothing in the record suggests that any of the City's parks, unlike the park at issue in Kaplan, are closely associated with the seat of City government. Certainly, the City's permit requirement for specified activities in City parks does not establish this nexus. Furthermore, although Tibbits and Main are within its vicinity, City Hall is only visible from one corner of each park, and wide avenues separate both these corners from City Hall. In addition, the downtown area in which these parks are located, despite the presence of City Hall and a few other governmental buildings, is not devoted either exclusively or predominantly to government activities. Numerous commercial and residential properties are interspersed throughout the downtown White Plains. As the City has proffered no evidence tying any of its other parks, either in proximity or public perception, to the seat of City government, I conclude that the City's parks are true traditional public forums.
Because the Resolution prohibits expressive conduct in traditional public forums, I must now determine whether it is a content-neutral time, place and manner restriction, or a content-based regulation of speech. This is an easy task because the Resolution, barring the "fixed outdoor display of religious or political symbols in the City's parks," is, on its very face, content-based. Defying both language and logic, the City fashions the Resolution a content-neutral time, place and manner restriction because it burdens all religious displays equally. However, it is axiomatic that a regulation is not content-neutral if based on the content of speech. See Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980) ("constitutionally permissible time place and manner restriction[s] may not be based upon either the content or subject matter of speech"). Contrary to the City's assertion, the Resolution is no less content-based because it bans only one form of religious expression, i.e., the fixed display of religious symbols, but not others, such as ecumenical services or menorah lighting ceremonies in which no fixed displays are used; the content inquiry looks to the prohibition's targets, not its scope.
The Seventh Circuit's decision in Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341 (7th Cir.1990), upon which the City relies in advancing its argument, involved a limited public forum, and in any event, did not, as the City contends, articulate a contrary rule which I should follow. In fact, Lubavitch underscores the nondiscrimination principle embodied in the notion of content-neutrality. The regulations at issue in Lubavitch were deemed content-neutral because they prohibited all groups, not simply all religious groups, from erecting free-standing structures in public areas. Id. at 347. Indeed, the Lubavitch court expressly recognized that, under the First Amendment, the City could not prohibit religious free-standing structures if non-religious structures were permitted, stating that
First Amendment jurisprudence certainly does mandate that if the government opens a public forum to allow some groups to erect communicative structures, it cannot deny equal access to others because of religious considerations, but the record is clear that the City has prohibited all groups from erecting structures in the airport public areas.
Id. (emphasis added).[9]
Thus, by mandating content-based exclusions of expressive conduct from traditional public forums, the Resolution is constitutionally permissible only if it is necessary to achieve a compelling state interest, and narrowly-tailored to achieve that end. Krishna, ___ U.S. at ___, 112 S.Ct. at 2705; Perry, 460 U.S. at 45, 103 S.Ct. at 955. Moreover, *1376 even if as the City contends its parks were limited public forums, the Resolution would still be subject to strict scrutiny. The City admits, and the record amply demonstrates, that it has allowed secular fixed displays, notably the holiday trees in Tibbits and Main, to remain in its parks for weeks, if not months, at a time. A United Way sign has remained standing on public property near a City park for several months. Assuming its parks were limited public forums, the City, having permitted private fixed displays, could not selectively exclude those of a religious or political nature without a compelling justification. Widmar, 454 U.S. at 267-70, 102 S.Ct. at 273-74 (having opened premises for use by student groups, University had to provide a compelling justification for its exclusion of student groups that desired to engage in religious worship and discussion); see also Travis, 927 F.2d at 692 ("government is free to impose blanket exclusion on certain types of speech, but once it allows expressive activities of certain genre, it may not selectively deny access for other activities of that genre").
The City asserts, however, that the Resolution is necessary to serve the compelling state interest of avoiding violations of the Establishment Clause of the First Amendment.[10]See Widmar, 454 U.S. at 271, 102 S.Ct. at 275 ("the interest of the University in complying with its constitutional obligations [under the Establishment Clause] may be characterized as compelling"). Free-standing religious displays in public parks, the City fears, will leave viewers with the impression that it endorses the religious message conveyed in the displays, or religion generally. Isolated religious displays on some public properties may indeed send a message of government endorsement of religion, and I am, therefore, sympathetic to the City's concerns. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 599, 109 S.Ct. 3086, 3104, 106 L.Ed.2d 472 (1989) (plurality opinion) (creche display on "main" and "most beautiful" part of county courthouse steps sent an "unmistakable message" that county supported creche's religious message); cf. Allegheny, 492 U.S. at 650, 109 S.Ct. at 3131 (Stevens, J., concurring in part, dissenting in part) ("the Establishment Clause should be construed to create a strong presumption against the display of religious symbols on public property").
However, it is critical to remember, as the Supreme Court's public forum analysis instructs, that all public properties are not alike, particularly as they relate to public expressive activity. Except in rare instances, traditional public forums, unlike nonpublic forums, are intimately linked in the public psyche with public expression. Consequently, expressive activity in these quintessential public forums is viewed, and should be viewed, by reasonable observers as that of private speakers, not the government. Thus, I conclude, under the three-part test established in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971),[11] that while Establishment Clause concerns may warrant bans on religious displays on some public properties, such considerations do not provide a compelling justification for the City's Resolution because it applies to public parks not closely associated with the seat of government, and traditionally open to diverse public expressive activity, including private free-standing non-religious displays.
Under Lemon, governmental action contravenes the Establishment Clause if (1) it lacks a secular purpose; (2) has the principal or primary effect of advancing or inhibiting *1377 religion; or (3) fosters an excessive entanglement with religion. Id.
Contrary to the City's suggestion, an equal access policy permitting fixed religious displays in its public parks would not be unconstitutional under the first and third prongs of the Lemon test. A neutral open-forum policy, providing equal access for religious as well as non-religious speech, has the secular purpose of promoting free speech and religious tolerance. See Widmar, 454 U.S. at 271, 102 S.Ct. at 275 ("an open-forum policy, including nondiscrimination against religious speech, would have a secular purpose"); see also Chabad-Lubavitch of Ga., 5 F.3d at 1389 (allowing menorah display would "advance the secular purpose of providing an arena for ... [the] citizenry's exercise of the constitutional right to free speech"); McCreary, 739 F.2d at 725 (permitting creche display had secular purpose of providing equal access to public forum for religious speech). That the private speaker seeks to proselytize is irrelevant, for the secular purpose inquiry examines the government's purpose in allowing the speech, not the speaker's goal. See Lynch v. Donnelly, 465 U.S. 668, 681, 104 S.Ct. 1355, 1363, 79 L.Ed.2d 604 (1984) (examining whether City had secular purpose in sponsoring creche display in private park); cf. Board of Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226, 249, 110 S.Ct. 2356, 2371, 110 L.Ed.2d 191 (1990) (legislative purpose of statute, "not possibly religious motives of the legislators who enacted the law," is relevant inquiry under secular purpose prong).
Nor would an equal access policy entangle the City with religion, since private religious and secular fixed displays would be on equal footing. The City's evaluation process for requests to erect fixed religious displays would be exactly the same as that used for those involving secular fixed displays. See McCreary, 739 F.2d at 725 (application to display creche would involve the same evaluative process required for any other type of display). By contrast, the Resolution's exclusion of fixed religious displays inextricably entangles the City with religion as it requires the City to determine whether a proposed display contains a "religious" symbol. See Widmar, 454 U.S. at 271-72 n. 11, 102 S.Ct. at 275 n. 11 (state university would risk greater "entanglement" in attempting to enforce its policy of excluding religious speech).[12] Thus, I do not find that permitting Rabbi Flamer's display in City parks would violate the first or third prong of the Lemon test.
The City's more compelling Establishment Clause argument is rooted in Lemon's second prong.[13] The City contends that allowing private free-standing fixed displays of religious symbols in its parks on the same terms as it permits those of a nonreligious nature would create the impression that it endorsed religion. The City bases this argument, in large part, on the divergent outcomes reached by the Supreme Court in Allegheny regarding the constitutionality of two holiday displays on public property.
However, Allegheny, a highly fact-based decision marked by shifting majorities and conflicting approaches, does not support the City's conclusion. In Allegheny, a sharply divided Court held that a creche display on the Allegheny County courthouse steps contravened the Establishment Clause, but a holiday display consisting of 18-foot menorah, a 45-foot Christmas tree and a sign which read "Salute to Liberty" outside a government office building did not. Justices Brennan, Marshall and Stevens believed that both displays violated the Establishment Clause, and reasoned that there should be a *1378 strong presumption against publicly supported display of an overtly religious nature. 492 U.S. at 650, 109 S.Ct. at 3131 (Stevens, J., concurring in part, dissenting in part). Justices Blackmun and O'Connor, focusing on the "particular physical settings" of the two displays, deemed the free standing creche display on the county courthouse steps improper, but found no Establishment Clause violation attended the menorah display. 492 U.S. at 598-600, 616-21, 109 S.Ct. at 3103-04, 3113-15 (plurality opinion); 492 U.S. at 626-27, 635, 109 S.Ct. at 3118-19, 3123-24 (O'Connor, J., concurring in part, and concurring in the judgment). Four members of the Court, Chief Justice Rehnquist, and Justices White, Scalia and Kennedy, concluded that both displays should have been permitted, since neither represented an "effort to proselytize" by the local government of Allegheny. 492 U.S. at 664, 109 S.Ct. at 3139 (Kennedy, J., concurring in the judgment in part, dissenting in part).
Given this morass of competing and conflicting rationales, Allegheny does not, as the City contends, lead to the inexorable conclusion that fixed religious displays on all public property, unadorned by secular symbols, violate the Establishment Clause. In fact, the plurality opinion expressly stated that the unattended creche display on county courthouse steps did not raise a public forum issue. 492 U.S. at 600 n. 50, 109 S.Ct. at 3104 n. 50 ("the creche here does not raise the kind of `public forum' issue, cf. Widmar v. Vincent, ... presented by the creche in McCreary v. Stone"); see also Chabad-Lubavitch of Ga., 5 F.3d at 1390 (Allegheny is not a public forum case and its analysis is not applicable to Establishment Clause questions in public forum cases); cf. Allegheny, 492 U.S. at 626, 109 S.Ct. at 3119 (O'Connor, J., concurring in the judgment, concurring in part) ("display of religious symbol in core government buildings runs a special risk of `mak[ing] religion relevant, in reality or public perception, to status in the political community'") (citation omitted). At best, Allegheny suggests that context is highly important in determining whether a religious display on public property contravenes the Establishment Clause.
Guidance in identifying the contextual factors relevant to this inquiry can be found in Supreme Court and Second Circuit decisions analyzing Establishment Clause issues raised by religious speech or expressive activity in public forums. In Widmar, the Court held that the Establishment Clause did not provide a compelling justification for the University's exclusion of registered religious groups from university facilities made generally available to other registered student groups. In reaching this conclusion, the Court found two factors "particularly relevant".
First, recognizing that access was not tantamount to endorsement, the Widmar Court reasoned that an open forum policy that extended to religious speakers did not confer "any imprimatur of state approval on religious sects or practices". 454 U.S. at 274, 102 S.Ct. at 276; 454 U.S. at 272 n. 10, 102 S.Ct. at 275 n. 10 ("by creating a forum the University does not thereby endorse or promote any of the particular ideas aired there"). Second, the Court noted that a forum's availability to a diverse and broad class of speakers ensured that advancing religion would not be the "primary effect" of a nondiscriminatory open-forum policy. 454 U.S. at 275, 102 S.Ct. at 277. At most, such a policy would provide mere "incidental" benefits to religion. 454 U.S. at 274, 102 S.Ct. at 276; see Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 771, 93 S.Ct. 2955, 2964, 37 L.Ed.2d 948 (1973) (religious organization's enjoyment of mere incidental benefits does not result in a primary advancement of religion).
The Supreme Court has reaffirmed Widmar's reasoning in its recent decision in Lamb's Chapel v. Center Moriches Union Free Sch. Dist., ___ U.S. ___, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). In Lamb's Chapel, the Court held that school district's denial of a church group's request to use public school premises to show a religious-oriented film violated the First Amendment. The Court readily rejected the school district's Establishment Clause defense, stating that it had
no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an *1379 Establishment Clause violation [were] unfounded. The showing of this film would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private organizations. Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. As in Widmar, ... permitting District property to be used to exhibit the film involved in this case would not have been an establishment of religion under the three-part test articulated in Lemon v. Kurtzman.
___ U.S. at ___, 113 S.Ct. at 2148.
Though Widmar and Lamb's Chapel involved live speakers, their reasoning applies equally to fixed religious displays in public forums, since their Establishment Clause analyses hinged on the attributes of the forum i.e., the diversity of speakers granted access thereto and the perceptual parity accorded speech therein by reasonable observers not the speaker. See Chabad-Lubavitch of Ga., 5 F.3d at 1390-91 (applying public forum analysis outlined in Widmar to assess whether Establishment Clause provided compelling justification for state's refusal to allow religious group to erect a menorah in a limited public forum in core government building); Kreisner, 988 F.2d at 891-92, 894 (applying Widmar principles to determine whether San Diego violated Establishment Clause by permitting overtly religious holiday display in public park); Americans United, 980 F.2d at 1547-48, 1549 (applying Widmar equal access principle in determining that city did not violate Establishment Clause by permitting private group to erect fixed menorah display in traditional public forum); McCreary, 739 F.2d at 726 (applying Widmar public forum principles in determining that creche display in traditional public forum did not have primary effect of advancing religion). But cf. Chabad-Lubavitch of Vt. v. City of Burlington, 936 F.2d 109, 111 (2d Cir.1991) (situation in Widmar distinguishable from that posed by fixed display in traditional public forum because Widmar "involved an open forum, with live speakers, in a public university").
Widmar and Lamb's Chapel implicitly recognize that, in the mind of the reasonable observer, expressive activities in true public forums are symbolically linked to the public, not the government, and that religious speech in no way alters this deeply-rooted association. Quite the contrary, these decisions make clear that by permitting religious speech on a nondiscriminatory basis, government sends a message of neutrality, not endorsement. See Mergens, 496 U.S. at 248, 110 S.Ct. at 2371 (equal access policy sends a message "of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion").
For the reasonable observer, the private religious fixed display should be no different from other fixed displays erected by private speakers. This observer should understand that the public forum is the public's expressive playground, and that private speakers with a religious message, like any other member of the public, will resort to this forum to convey their particular messages. Cf. Americans United, 980 F.2d at 1548 ("public fora exist solely to provide a platform for speakers of all kinds"); Kreisner, 988 F.2d at 891 ("[r]eligious speakers have the same right of access to public forums as others"). The reasonable observer also knows that, unless otherwise stated, speech within these arena "belongs and can be attributed to the private speaker only; neither approbation nor condemnation of the private speaker's message may be imputed to the state". Chabad-Lubavitch of Ga., 5 F.3d at 1392; cf., Mergens, 496 U.S. at 250, 110 S.Ct. at 2372 (failure to censor is not endorsement). Therefore, "[i]nstead of concluding that religious zealots have stormed the gates with the city's endorsement, the reasonable observer recognizes th[e] [religious] display as yet another example of free speech". Americans United, 980 F.2d at 1549.
*1380 In traditional public fora such as public parks, the absence of governmental sponsorship of private religious displays is strikingly clear. Intimately linked to the free interchange of ideas and traditionally the situs of a wide range of public expressive activity, public parks are viewed and must be viewed as the public's expressive domain. Expressive conduct in these classic public fora thus should be viewed by reasonable observers as that of members of the body politic, not the government. See Kreisner, 988 F.2d at 895 ("[i]t seems axiomatic to the public forum principle that we view messages expressed there as those of the actual speakers").
Hence, the existence or non-existence of accompanying secular symbols should be of little import to the reasonable observer viewing religious displays in these quintessential public forums. In rejecting the argument that a free-standing menorah display in a traditional public forum violates the Establishment Clause, the Sixth Circuit in Americans United reasoned:
[T]he assumption that the menorah constitutes only a religious symbol that remains after Chabad House has finished its speech ... is wrong; Chabad House's menorah display is no mere remnant of religious speech, it is religious speech and must receive the same respect as a round-the-clock Bible reading. It would be strange for a reasonable observer to find more endorsement in a menorah standing alone than in a menorah accompanied by a Torah reading or by crowds of people celebrating Chanukah with games or feasts. The menorah display constitutes religious speech just as much as a meeting of a school Bible Club ... Therefore, this case must be governed by ... Widmar ...
980 F.2d at 1549 (emphasis in original).
Thus, for the reasonable observer, the very nature of the forum itself, assuming no affirmative governmental sponsorship of the display, negates any impression of government endorsement of the display's religious message.
The Second Circuit's decision in McCreary v. Stone is illustrative. McCreary involved a First Amendment challenge to the city's denial of a religious group's application to display a free-standing creche in a Scarsdale public park during the holiday season. Not unlike the City in this case, the Village of Scarsdale asserted that the Establishment Clause provided a compelling justification for its denial of the application. The Second Circuit rejected the Village's Establishment Clause defense, holding that "the Village's neutral accommodation ... to permit the display of a creche in a traditional public forum at virtually no expense to it cannot be viewed as a violation of the primary effect prong of the Lemon test." 739 F.2d at 726-27. Relying on Widmar, the McCreary court further held that the Village's pursuit of an equal access policy in this forum, that did not discriminate against religious speech, would not suggest government endorsement of religion. Id. at 727.
McCreary does not stand alone; in recent years, numerous courts have held that private free-standing religious displays in true public forums, open to the public for a wide array of expressive activities, do not contravene the Establishment Clause. Chabad-Lubavitch of Ga., 5 F.3d at 1392 (no Establishment Clause issues implicated by state allowing religious group to erect menorah display in Rotunda of State Capitol since this arena was a true public forum); Kreisner, 988 F.2d at 898 (city does not violate Establishment Clause by permitting an overtly religious private display in a public park because park was a traditional public forum); Americans United, 980 F.2d at 1549 (privately funded menorah display erected during Chanukah in traditional public forum does not violate Establishment Clause); see Small, 964 F.2d at 619 ("mere presence of religious symbols in a public forum does not violate the Establishment Clause, since the government is not presumed to endorse every speaker it fails to censor in a quintessential public forum far removed from the seat of government").
Under the Supreme Court's public forum Establishment Clause jurisprudence and the Second Circuit's decision in McCreary, it is clear that the Establishment Clause does not proscribe private fixed religious displays in all public parks. The City's argument that the Second Circuit's decision in Kaplan espouses *1381 a contrary rule is plainly wrong. In Kaplan, the Second Circuit held that a display of a privately-sponsored menorah conveyed a message of government endorsement because the forum at issue City Hall Park was closely associated with the seat of city government. 891 F.2d at 1029-30. This close perceptual nexus between the park and city government distinguished the case from McCreary. The Kaplan court expressly noted that "unlike McCreary, the park involved [was] not just any city park, but rather City Hall park." Id. at 1029.[14] Moreover, the menorah display in Kaplan "was located only some 60 feet away from the westerly steps of City Hall," such that from a certain vantage point, "the menorah appeared superimposed upon City Hall". Id. at 1029-30. Kaplan, therefore, does not hold that the Establishment Clause bars fixed religious displays in all public parks. Rather, Kaplan recognizes that, in rare instances, a public park may, in the mind of the public, be so intimately associated with the seat of government that it is viewed as a mere extension of the government. Thus, it is conceivable that private fixed religious displays in such parks could convey a mistaken impression of government sponsorship.
Kaplan's narrow exception to the public forum rule does not save the Resolution, since the City has proffered no evidence suggesting that any, much less all, of its parks are closely associated with the seat of government. City Hall's mere visibility from certain areas of Tibbits and Main should not, in the mind of reasonable observers, associate these parks with City Hall. To the contrary, a reasonable observer understands, and should understand, that public spaces located near government buildings are prime free speech arenas. As the Ninth Circuit in Kreisner noted:
[T]he proximity of buildings of unmistakably governmental character is a patently imperfect proxy for attributing speech that goes on there to the government. The White House, perhaps the most visible structural symbol of our government, borders Lafayette Square in Washington, D.C., yet the square has consistently been upheld as a public forum. Places that are near government buildings where many people pass and have occasion to hear the speaker are prime territory for the exercise of First Amendment rights.
988 F.2d at 894 (citations omitted).
Precisely because traditional public forums are at issue, the City's endorsement fears based on its claimed historic practice of not permitting fixed religious displays are unfounded. The reasonable observer attributes expressive conduct in these forums to private speakers not because of any governmental action or inaction, but because these settings are axiomatically the public's domain for expression. Moreover, here, the history of private fixed displays in City parks will buttress the private nature of any fixed religious displays in these forums. Indeed, in the context of contemporaneous private holiday tree displays in City parks, the private sponsorship of Rabbi Flamer's 1991 and 1992 proposed free-standing menorah displays in Tibbits during the eight days of Chanukah probably would have been obvious even to unreasonable observers. See Americans United, 980 F.2d at 1549 ("[i]n the mind's eye, the reasonable observer sees the menorah display as but one of a long series that has taken place since the [public forum] was opened"). Rabbi Flamer's proposed lighting ceremony, to be conducted by live speakers, would have merely underscored the private nature of the display.
Furthermore, the City's past unconstitutional infringements of free expression in denying permits for fixed religious displays certainly cannot constitute a compelling justification for a violation of the fundamental right of free speech. See Travis, 927 F.2d at 693 n. 3 (past denial of access to limited public forums to a religious group "would have been another act of discrimination rather than a justification for the denial" of access to other religious speakers). Nor can the absence of fixed religious displays in City *1382 parks in the past; surely, Rabbi Flamer's ability to exercise his free speech rights does not depend upon whether others have chosen to exercise theirs.
The Establishment Clause does not provide a compelling justification for the Resolution's content-based restrictions on expressive conduct. Yet, even if the Establishment Clause did provide such a compelling justification, the Resolution would still be void since it is not narrowly-tailored to achieve its asserted goal. The Resolution is overbroad in that it bans private fixed displays of political as well as religious symbols; clearly, no Establishment Clause concerns are raised by fixed political displays.
Moreover, the Resolution's prohibition of fixed religious displays is itself overbroad as other less restrictive means exist to dispel any mistaken impression of government endorsement.[15] For example, the City could post content neutral signs disclaiming endorsement of private fixed displays in City parks. See McCreary, 739 F.2d at 728 (a disclaimer sign accompanying creche display would "ensure that no reasonable person w[ould] draw an inference that the Village support[ed] any church, faith or religion associated with the display"); cf. Allegheny, 492 U.S. at 619, 109 S.Ct. at 3114-15 (presence of sign "further diminishes the possibility that the tree and the menorah will be interpreted as a dual endorsement of Christianity and Judaism.... [and] an `explanatory plaque' may confirm that in particular contexts the government's association with a religious symbol does not represent the government's sponsorship of religious beliefs"). But see Allegheny, 492 U.S. at 619, 109 S.Ct. at 3114 (plurality opinion) ("no sign can disclaim an overwhelming message of endorsement"). I express no opinion as to the particular disclaimers, if any, the City may or should employ, but simply note that means short of a blanket exclusion of private fixed religious displays exist to resolve any public misperceptions.
Because the City would not contravene the Establishment Clause by neutrally permitting fixed religious displays in its parks, the Resolution is neither necessary nor narrowly tailored to achieve a compelling state interest. Since the Resolution, on its face, "violates the fundamental principle that a state regulation of speech should be content-neutral," Widmar, 454 U.S. at 277, 102 S.Ct. at 278, and the City has proffered no compelling state interest which the Resolution serves, I conclude that the Resolution is unconstitutional.[16]
The City, of course, retains the right to apply content-neutral regulations to private fixed displays in its parks, including restrictions on their size and location. In addition, the City may devise content-neutral policies applicable to certain parks. For example, if, as the City argued at trial, vandalism is a problem at Main, the City may employ any appropriate content-neutral restrictions on fixed displays at that park to address such problems. What the City may not do, however, is preclude a private speaker from erecting a fixed display of a religious symbol, free-standing or otherwise, in a City park on the basis of such display's religious message. Accordingly, the City may not deny Rabbi Flamer a permit to erect a fixed free-standing menorah in a City park during the Chanukah holiday because of the menorah's religious message.
CONCLUSION
For the reasons discussed above, I declare the Resolution unconstitutional, and permanently enjoin the City from applying the Resolution to Rabbi Flamer's request to display free-standing menorah in a City park this Chanukah holiday, and in the future. *1383 This Opinion and Order constitutes the final judgment of the Court.
SO ORDERED.
NOTES
[1] For example, WESPAC, a private organization involved in political and social activism, has held vigils in Main around the United States' invasion of Panama and the Middle East peace process. The permits issued to WESPAC in connection with these vigils allowed the organization to distribute information and place tables and chairs in certain areas of the park. The Nuclear Freeze Movement has also used the park to commemorate the anniversary of Hiroshima. In addition, during the 1992 presidential campaign, pro-choice groups held a campaign rally there for President Clinton, Vice-President Gore and local pro-choice candidates.
[2] Other activities in Main have included noonday one-mile walks in 1991 and 1992, co-sponsored by the City and Physicians' Health Services.
[3] In his letter, Rabbi Flamer, however, requested to leave his menorah display standing until December 10, 1991, two days after the Chanukah holiday ended.
[4] It appears that prior to the December 2, 1991 meeting, Rabbi Mark Weiner and members of the American Jewish Committee contacted the Common Council to voice their opposition to Rabbi Flamer's proposed menorah display.
[5] This request, however, is not included in the record before me.
[6] Rabbi Flamer was substituted for Chabad as the plaintiff in this action precisely because of the City's initial objection that Chabad had no independent corporate existence, and was merely the alter ego of its two officers Rabbi Flamer and his wife.
[7] Even if Rabbi Flamer had not applied for a permit this year, he still would have standing to challenge the Resolution. The Supreme Court has recognized an exception to ordinary standing requirements for broadly written laws, such as the Resolution, whose every application creates "an impermissible risk of suppression of ideas." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 799 n. 15, 104 S.Ct. 2118, 2125 n. 15, 80 L.Ed.2d 772 (1984). Since the "very existence" of such laws "may have a deterrent effect on free expression," they are subject to a facial challenge "even by a party whose own conduct may be unprotected". 466 U.S. at 799, 104 S.Ct. at 2125.
[8] Despite their longstanding status as enclaves of public expression, the City claims that Main and Tibbits are not traditional public forums because they are "passive parks". However, the City's ostensible attempt to equate "passive" with "non-expressive" must fail, given that the City has authorized a wide range of public expressive activities in its parks, including abortion rights rallies, political vigils and demonstrations, sponsored by private groups.
[9] Admittedly, language in Lubavitch's first paragraph might suggest that the court in that case sanctioned regulations that distinguished between secular and religious expressive conduct. 917 F.2d at 342 ("City of Chicago decorates O'Hare facilities with Christmas trees ... but ... intentionally excludes religious symbols from unleased public areas"). However, the Seventh Circuit in a later opinion, clarified that Lubavitch simply "distinguished leased spaces from public areas," and was "careful to point out that Lubavitch's free-standing Menorahs could not be excluded if other free-standing structures were permitted". Doe v. Small, 964 F.2d 611, 620 (7th Cir.1992) (en banc).
[10] The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion ..." U.S. Const. amend. I. This proscription is applicable to the States via the Fourteenth Amendment. See Everson v. Board of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 507, 91 L.Ed. 711 (1947).
[11] Although the Lemon test has come under fire by some members of the Court in recent years, e.g., Lamb's Chapel v. Center Moriches Union Free Sch. Dist., ___ U.S. ___, ___, 113 S.Ct. 2141, 2150, 124 L.Ed.2d 352 (1993) (Scalia, J., concurring in the judgment) (Lemon comparable to "a ghoul in a late-night horror movie" that refuses to die), it still controls the Establishment Clause inquiry. Id. at ___ n. 7, 113 S.Ct. at 2148 n. 7 (Lemon has not been overruled); Lee v. Weisman, ___ U.S. ___, ___, 112 S.Ct. 2649, 2655, 120 L.Ed.2d 467 (1992) (refusing to reconsider Lemon).
[12] Highlighting the divisiveness sparked by Rabbi Flamer's proposed menorah display among members of the Jewish community in White Plains, the City seems to argue that permitting free-standing religious displays would embroil it in religious conflicts. Potential political divisiveness along religious lines, however, does not render otherwise permissible governmental conduct unconstitutional. Lynch, 465 U.S. at 684, 104 S.Ct. at 1365. Indeed, the Supreme Court in Lynch expressly held that "no inquiry into potential political divisiveness is even called for" in cases not involving direct subsidies to religious institutions. Id.
[13] Writing for the plurality in Allegheny, Justice Blackmun fleshed out Lemon's second prong, stating that governmental action which impermissibly advances religion is that which has the purpose or effect of endorsing religion. 492 U.S. at 592, 109 S.Ct. at 3100.
[14] In a later decision involving the same park, the Second Circuit reiterated that Kaplan's holding was based on the park's "close association with the seat of city government". Chabad-Lubavitch of Vt., 936 F.2d at 111-12. Significantly, this decision revealed that plaintiffs had been allowed to erect a menorah in another city park without objection. Id. at 111.
[15] Even if the City's argument that the Establishment Clause only permitted combined religious and secular displays were correct, the City has not demonstrated that a combined holiday tree and menorah display is impossible in this case. The City has admitted that there is a grassy area in Tibbits which could accommodate a menorah display, and has not put forth any evidence suggesting that this spot could not also hold a holiday tree. Therefore, even under its own argument, the City has not offered a compelling justification for its blanket exclusion of fixed religious displays from all City parks.
[16] Having concluded that the Resolution violates the Free Speech Clause, I need not consider Rabbi Flamer's other constitutional objections.
| {
"pile_set_name": "FreeLaw"
} |
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 31, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA
Plaintiff–Appellee, No. 06-7050
v. (D.C. No. 05-CV-389-W )
FR AN CISC O JA V IER MA D R ID- (E.D. Okla.)
M ON GE,
Defendant–Appellant.
OR DER
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
This is a 28 U.S.C. § 2255 appeal in which Appellant Francisco Javier
M adrid-M onge is represented by counsel appointed under the provisions of the
Criminal Justice Act. Appellant pleaded guilty to possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18
U.S.C. § 2, and was sentenced to 120 months’ imprisonment, the m andatory
minimum under § 841(b)(1)(A). Appellant then filed the instant motion with the
district court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255
in which he argued that (1) the denial of effective assistance of counsel at
sentencing precluded consideration of the safety valve provision contained in 18
U.S.C. § 3553(f); (2) his sentence was imposed based on facts not found by the
-1-
jury and calculated based on mandatory application of the Sentencing Guidelines;
and (3) the denial of effective assistance of counsel prevented direct appeal.
The district court denied A ppellant’s first two claims and referred the third
to a magistrate judge in order to conduct an evidentiary hearing. The magistrate
judge conducted the hearing and issued a report and recommendation suggesting
denial of Appellant’s third claim, which the district court adopted in a separate
order.
Appellant advances to this court the same arguments he made below on the
first and third claims; he omits the second claim. However, our consideration of
these claims is predicated on our issuance of a certificate of appealability
(“COA”). Appellant is entitled to a COA only if he makes a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so,
Appellant must demonstrate “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotation
omitted). In other w ords, the applicant must show that the district court’s
resolution of the constitutional claim was either “debatable or wrong.” Id.
The district court thoroughly evaluated Appellant’s claim that ineffective
assistance of counsel rendered him ineligible for safety valve relief by reviewing
the entire record, including the transcript of the sentencing hearing. W e agree
-2-
with the district court that the sentencing hearing transcript “clearly shows” that
Appellant’s counsel raised the application of this provision, but that Appellant
rejected several opportunities to take advantage of this provision by refusing to
offer information to the government. 1
The district court also ensured that Appellant’s third claim, concerning his
inability to perfect an appeal due to ineffective assistance of counsel, was
thoroughly examined. The magistrate judge conducted an evidentiary hearing at
which it became apparent that the plea agreement was fully explained to
Appellant and that Appellant’s expectations of appeal w ere unjustified.
Appellant presents no evidence of his inability to understand and appreciate the
consequences of his guilty plea. M oreover, the magistrate judge recognized that
even if an appeal had been preserved, no non-frivolous grounds for appeal would
have existed given the district court’s rejection of Appellant’s other two
arguments.
After carefully reviewing the parties’ briefs, the district court’s disposition,
the m agistrate judge’s report and recommendation, and the record on appeal, we
conclude that no reasonable jurist could conclude that Appellant’s counsel was
ineffective under Strickland. A ccordingly, as Appellant has failed to show a
1
Appellant bears the burden of establishing that his “counsel’s
representation fell below an objective standard of reasonableness,” Strickland v.
Washington, 466 U.S. 668, 688 (1984), and “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.
-3-
denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2), we must
D EN Y Appellant’s request for a certificate of appealability and DISM ISS the
appeal.
Entered for the Court
M onroe G. M cKay
Circuit Judge
-4-
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302 B.R. 84 (2003)
In re TSB, INC., Debtor.
No. 03-01268.
United States Bankruptcy Court, D. Idaho.
October 22, 2003.
*85 D. Bernard Zaleha, Boise, ID, for Debtor.
Kimbell D. Gourley, Boise, ID, for Trustee.
MEMORANDUM OF DECISION
TERRY MYERS, Bankruptcy Judge.
BACKGROUND AND FACTS
TSB, Inc. ("Debtor") was a chapter 11 debtor in possession in a case filed on April 9, 2003. Debtor ran a tavern ("The Interlude") on 8th Street in Boise, Idaho. On June 2, 2003, the Court converted the case to a chapter 7 liquidation. Richard Crawforth ("Trustee") was appointed the chapter 7 Trustee and immediately took possession of the business.
Debtor's tavern was operated on premises leased from Knapp-Block 44, LLC ("Lessor"). The Lessor has filed an application for allowance of administrative expenses for rent it alleged accrued both in the chapter 11 and chapter 7 periods. See *86 Doc. No. 40, filed September 10, 2003 ("Application"). The Application was opposed by both the Trustee and Debtor. See Doc. Nos. 44, 46. The Application came on for hearing pursuant to notice on October 20, 2003. The parties presented evidence and legal argument, and they submitted the matter for decision. The instant Decision constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 9014 and 7052.
In the Application, the Lessor sought $7,554.28 as a chapter 11 administrative expense and $17,769.52 as a chapter 7 expense, and it alleged ongoing charges of $4,442.38 per month until the leased premises were "vacated." Id. However, by the time of the hearing, the Lessor had changed its assertions, and claimed $1,709.80 as the unpaid chapter 11 administrative expense, and $15,844.50 as the chapter 7 administrative expense through September 19, 2003. See Ex. 1.
The Lessor's claims are, initially, based on a written lease agreement dated February 27, 2002. See Ex. 2. The lease was on a month-to-month basis and indicates that, "in the event Tenant fails to pay rent on time, the New Lease shall terminate and Tenant shall vacate the premises." Id. at 2. It provides for a lease rate of $20.00 per square foot, applicable to 2287 square feet of space, for a total of $3,811.67. Id. at 1.[1] The lease adjusts this amount, however, with a credit of $2.00 per square foot for Debtor's cleaning the sidewalk fronting the tavern. Thus the rent required under the lease is $3,430.50 per month ($18.00 per square foot/year × 2287 square feet / 12). Id. No other payment terms appear in the lease. Even so, the Lessor claims Debtor was responsible for CAM (common area maintenance) charges of $571.75 per month, and late fees of $240.13 per month.[2]
Upon the June 2 conversion to chapter 7, the Trustee immediately re-keyed the locks and took possession of the premises.[3] On June 4, the Trustee met with the Lessor, and with parties who were prospective purchasers of estate assets as well as prospective new tenants of the space. Somewhere between June 5 and June 10, the Lessor advised the Trustee that it had decided to lease the property to one of these parties ("City Grill").[4]
The Trustee removed some of the personal property of the estate located on the premises. He left the tables, chairs, and bar equipment on site. It was understood by the Trustee and the Lessor that City Grill would seek to purchase that property from the estate, and would enter into a lease with the Lessor. On June 16, the Trustee surrendered to the Lessor all keys to the premises, and City Grill soon commenced remodeling the property.[5]
*87 The Trustee concedes that personal property of the estate was stored on the premises until September 19. He indicates that this was with the tacit, if not express, consent of the Lessor, since all parties understood that City Grill would acquire the personal property in connection with the new lease of the premises that it was actively remodeling. The Trustee and Debtor both indicate that no more than 10% of the premises was required to store such property.[6]
DISCUSSION AND DISPOSITION
In order to resolve the contentions of the parties, the Court must briefly comment regarding the law applicable to administrative expense claims for rent and use.
A. Section 503(b)(1)(A) claims generally
This Court has stated:
Section 503 requires the bankruptcy estate to pay all administrative expense incurred for "the actual, necessary costs and expenses of preserving the estate. . . ." 11 U.S.C. § 503(b)(1)(A). This provision is construed narrowly, in order to "maximize and protect the limited assets of the bankruptcy estate for the benefit of the unsecured creditors," which is "particularly important in a Chapter 7 case." In re Coolex, 96.1 I.B.C.R. 35, 36 (Bankr.D.Idaho 1996) (citing In re Palau Corp., 18 F.3d 746, 750 (9th Cir.1994); In re Dant & Russell, Inc., 853 F.2d 700, 706 (9th Cir.1988); In re Sunny Ridge Manor, 90 I.B.C.R. 12, 13 (Bankr.D.Idaho 1990)). The burden of proving entitlement to an administrative expense priority is on the claimant. Coolex, 96.1 I.B.C.R. at 36 (citing In re Hanna, 168 B.R. 386, 388 (9th Cir. BAP 1994)). In meeting this burden, the claimant must show that the claim was incurred postpetition, was an actual and necessary expense, and directly and substantially benefitted the estate. Id.
In re Custom Spray Techs., Inc., 00.3 I.B.C.R. 160 (Bankr.D.Idaho 2000); accord Gonzalez v. Gottlieb (In re Metro Fulfillment, Inc.), 294 B.R. 306, 309 (9th Cir. BAP 2003) (courts must construe the terms "actual" and "necessary" narrowly).
B. The chapter 11 administrative expense
Debtor was obligated to timely perform under the terms of its lease with the Lessor during the first 60 days of the chapter 11 case. See § 365(d)(3). The Lessor is entitled to an administrative expense claim for the full amount of the rent called for in that period. Towers v. Chickering & Gregory (In re Pacific-Atlantic Trading Co.), 27 F.3d 401, 403-05 (9th Cir.1994) (determining that a post-petition, pre-rejection claim be valued and asserted according to contract terms, not according to reasonable value or benefit bestowed).
The lease, Ex. 2, reflects a basic monthly rent obligation of $3,430.50. This establishes not just a starting point for the § 365(d)(3) rent claim; given the lack of requirement in the lease that Debtor pay any other amounts, it caps the expense as well.[7]
*88 Debtor's chapter 11 case lasted from April 9, 2003 through June 2, 2003, a period of 54 days. At best, two month's worth of lease charges could have accrued. This amounts to $6,861.00. Debtor paid the Lessor $6,100.00 during the chapter 11. See Ex. 1. Thus, the unpaid chapter 11 administrative expense is $761.00.
C. The chapter 7 administrative expense
1. Pre-rejection rent claim
Under § 365(d)(4), a lease of nonresidential real property must be assumed within 60 days of the date of the order for relief or it will be deemed rejected. When Debtor's case was converted to chapter 7, only some 7 days of this period remained.[8] The conversion of the case did not start the clock anew. Section 348(a) provides that conversion of a case does not change the date of the order for relief except as provided in subsections (b) or (c). Section § 348(b)'s exceptions do not make the conversion date the date of the order for relief when dealing with § 365.
The Trustee did not assume the lease, nor did he seek to extend the time for assumption or rejection. Therefore, on June 9, the lease was deemed rejected by operation of law. See § 365(d)(4); Pacific-Atlantic, 27 F.3d at 402-03.[9]
As noted above, the obligation arising in a pre-rejection period is established by § 365(d)(3) and the terms of the lease itself. Here, the lease required rent of $3,430.50 per month. The Trustee held the premises under the unrejected lease for one week. The Court thus concludes that the post-conversion, pre-rejection administrative claim is $857.63 ($3,430.50 / 4 = $857.63).
2. Post-rejection use claim
The Trustee did not "immediately surrender" the premises upon rejection as § 365(d)(4) requires. He instead (a) effectively surrendered control and use of the premises on June 16, some 7 days after rejection, and (b) retained some use of a portion of the premises after rejection for the purpose of storage of estate personal property pending its sale.
The Lessor did not demand compliance with the surrender requirement. Instead, it allowed the personal property to remain on site, knowing that City Grill, the prospective new tenant, wished to buy those chattels from the bankruptcy estate. The Lessor also entered into a new lease agreement with City Grill on June 25, and it allowed City Grill access to the premises to start remodeling. The Trustee in no way (other than leaving the furniture and equipment on site) interfered with the Lessor's total control over the premises.
An additional chapter 7 administrative expense accrued during this post-rejection period, however it arises under § 503(b)(1)(A) and not under § 365(d)(3). Instead of being calculated per the lease terms (as is the case for postpetition, pre-rejection rent under § 365(d)(3) and Pacific-Atlantic), the benefit conferred on the estate from the continued possession and use of the real property after lease rejection must be determined on competent *89 proof, consistent with the several limitations articulated in Custom Spray Technologies, 00.3 I.B.C.R. at 160.
In In re PYXSYS Corp., 288 B.R. 309 (Bankr.D.Mass.2003), a nonresidential real property lessor made a claim under § 365(d)(3) for the 60-day period from filing the petition through automatic rejection, and also a claim for use and occupancy through the date the debtor vacated the premises. 288 B.R. at 310-11. The latter claim (which the court characterized as a "use claim") was allowed against the estate under § 503(b)(1)(A) because the use provided an objective benefit to the estate. 288 B.R. at 316-18. Insofar as the amount of such claim was concerned, the court concluded that "the terms of the lease should be used to value the benefit conferred by the use of the premises in the absence of evidence that said terms were unreasonable." Id. at 318 (citing In re Rare Coin Galleries of Am., 72 B.R. 415, 417 (D.Mass.1987)); accord In re Trak Auto Corp., 277 B.R. 655, 666-67 (Bankr.E.D.Va.2002) (noting that the post-rejection presumption in favor of the rental contract rate can be rebutted by showing the reasonable worth of the premises).
Here, using the monthly base rent amount under the lease of $3,430.50 provides an excessive and unreasonable measure of the benefit conferred for the limited use of a portion of the premises for storage. The Lessor had virtually unfettered control of the premises from and after June 16; in fact, it allowed its prospective new tenant access for remodeling, and entered into a lease with that tenant on June 25. The Trustee's use of the premises for storage was not shown to be disruptive to the plans and efforts of either the Lessor or City Grill. The Lessor made no demand on the Trustee for rent or storage charges, or for removal of the personal property. Treating the situation as a "continued lease" of the entire premises at the prebankruptcy commercial rate is not warranted. Doing so would lead to an unjustified windfall to the Lessor and an unreasonable detriment to the estate.
PYXSYS'"benefit conferred [on the estate] by the use of the premises" or Trak Auto's"reasonable worth of the premises" standards apply to the period from June 9 through September 19 (the date the personal property was sold to City Grill, and the Trustee no longer incurred any storage costs). These standards can be calculated in one of two ways under the evidence. On the one hand, the Trustee competently testified that off-site storage for the amount of personal property here at issue could have been obtained for $75.00 per month. On the other hand, an argument could be advanced that storage costs should be calculated on the presumptive value of the commercial premises under the lease, but only for the portion of the premises reasonably utilized for the estate's benefit. Here, that amounts to 10% (given the testimony of the Trustee and Debtor's principal) of the monthly rent, or $343.05 per month.
Since the Trustee did not opt to move the personal property off the premises into less expensive, noncommercial storage, the Court deems it appropriate to use the second methodology. The period of use ran from June 9 through September 19, or about 3 1/3 months. The use claim is therefore determined to be $1,145.00.
When this chapter 7 "use claim" of $1,145.00 is added to the post-conversion, pre-rejection expense under § 365(d)(3) of $857.63, the Lessor's total chapter 7 administrative expense claim is $2,002.63.
CONCLUSION
Upon the foregoing, the Lessor will be allowed a chapter 11 administrative expense of $761.00, and a chapter 7 administrative *90 expense of $2,002.63.[10] The Lessor's Application will be granted to that extent, but otherwise denied. Counsel for the Trustee may submit an order in accord herewith.
NOTES
[1] It appears this $20.00 figure is a yearly rate (i.e., $20.00 × 2287 sq. ft. = $45,740; $45,740.00 / 12 = $3,811.67).
[2] The lease, Ex. 2, is in a "letter" format, but was executed by both Debtor and the Lessor. While it can be read to indicate a formal "New Lease" would be executed, no other documentation was introduced by the Lessor. The Court finds that Exhibit 2 controls the lease arrangement between the parties.
[3] He gave keys to the Lessor on June 5.
[4] The principals of City Grill run a restaurant immediately adjacent to The Interlude and wished to acquire the premises for expansion of the business.
[5] An employee of the Lessor testified that City Grill "took possession" of the premises on June 25, though it did not gain "total possession" until September, when the Trustee concluded a sale of estate assets to City Grill. She also indicated that City Grill signed a lease with the Lessor on June 25, though that agreement apparently contemplated commencement of the "lease term" and payment of rent in September. The Lessor agreed not to charge City Grill rent during the remodeling.
[6] The Court finds these estimates more credible and probative under the entirety of the circumstances than the 50% estimate offered by the Lessor's employee.
[7] The Lessor's argument that Debtor did not object to billings showing CAM or late charges is unavailing. The question, particularly in light of the limiting case law, is what legal obligation existed and could be enforced under the lease agreement.
[8] The 60th day from the April 9 filing was Sunday, June 8. See Fed. R. Bankr.P. 9006(a).
[9] Rejection of the lease constitutes a breach of the lease effective immediately before the date of the filing of the petition for relief. See § 365(g)(1). Therefore, all damages arising from the breach of the lease are treated as prepetition claims. Id.; see also § 502(b)(6) (related to the calculation of such rejection claims). The question presently before the Court is not one of rejection damages, but rather one of rent and use claims arising during the case.
[10] Segregating the claims between the chapter 11 and chapter 7 time frames is important in converted chapter 11 cases because § 726(b) gives higher priority in distribution to the chapter 7 administrative expenses than to similar expenses incurred in the superseded chapter 11 case.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0229p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JACKSON S. BRUMLEY; ALBERT E. BRUMLEY, X
-
-
JR.; THOMAS R. BRUMLEY; BILLY J.
POCKRUS; W.J. BRUMLEY; KRISTI BRUMLEY -
-
No. 12-5386
LAXTON; MARK BRUMLEY; KERI BRUMLEY
,
>
Plaintiffs-Appellees, -
PILCHER;
-
-
-
v.
-
-
-
ALBERT E. BRUMLEY & SONS, INC.;
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INTEGRATED COPYRIGHT GROUP, INC.;
-
ROBERT B. BRUMLEY,
Defendants-Appellants. N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:08-cv-01193—Aleta Arthur Trauger, District Judge.
Argued: March 15, 2013
Decided and Filed: August 15, 2013
Before: KEITH, MARTIN, and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: Barry I. Slotnick, LOEB & LOEB LLP, New York, New York, for
Appellants. Jennifer A. Lawson, LAWSON LAW OFFICE, PLLC, Nashville,
Tennessee, for Appellees. ON BRIEF: Barry I. Slotnick, Jonathan N. Strauss, LOEB
& LOEB LLP, New York, New York, for Appellants. Jennifer A. Lawson, LAWSON
LAW OFFICE, PLLC, Nashville, Tennessee, for Appellees.
1
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 2
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. “Some glad morning when this life is
o’er / I’ll fly away / To a home on God’s celestial shore / I’ll fly away”—these are the
opening lines of Albert Brumley, Sr.’s hit gospel song, “I’ll Fly Away.” Unfortunately,
Brumley Sr.’s death would lead to a familial dispute concerning ownership of the Song’s
copyright.
In 1975, Brumley Sr. assigned his interests in the Song’s copyright to his sons
Robert and William, and in 2006, Brumley Sr.’s four other children sought to terminate
the 1975 Assignment. Robert refused to recognize the termination as valid, and the
Brumley heirs sued Robert in district court. Robert claimed that the termination was
invalid for two reasons: (1) Brumley, Sr. was not the statutory author of the Song; and
(2) a 1979 assignment of interests in Brumley, Sr.’s songs by Brumley, Sr.’s widow
prevented the Brumley heirs from later exercising their termination rights. The district
court conducted a jury trial on the statutory-author issue, and the jury determined that
Brumley Sr. was indeed the statutory author of the Song. Following the jury trial, the
district court considered Robert’s legal challenge to the Brumley heirs’ exercise of their
termination rights and held that the assignment by Brumley Sr.’s widow did not prevent
the Brumley heirs from exercising their termination rights.
Robert appeals the jury determination as well as the district court’s legal
determination. Regarding the jury trial, Robert appeals two evidentiary rulings that the
district court made prior to the trial: (1) it admitted the transcript and recording of a
1977 conversation between Brumley Sr. and Brumley, Jr., one of the plaintiffs; and (2) it
excluded two articles discussing Brumley, Sr.’s employment status at the time that he
composed the Song. For the following reasons, we AFFIRM the district court’s
evidentiary ruling concerning the 1977 conversation, we REVERSE the district court’s
evidentiary ruling regarding the two articles, and REMAND the case for further
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 3
proceedings. We refrain from reaching Robert’s appeal of the district court’s
determination that the Brumley heirs validly exercised their termination rights.
I.
Brumley, Sr. began writing and composing “I’ll Fly Away” in 1928 or 1929, and
on September 15, 1932, the Hartford Music Company secured the initial copyright in the
Song by publishing it in a songbook titled, “The Wonderful Message.” In the 1940s,
Brumley, Sr. formed a music-publishing company, Albert E. Brumley & Sons, to hold
title to and exploit his own copyrights. In 1947, he purchased all of Hartford’s assets,
including the copyright in the Song. Brumley, Sr. renewed the copyright registration for
the Song in 1960, and he continued to hold full rights in the Song through Brumley &
Sons.
On December 18, 1975, Brumley, Sr. sold his interest in Brumley & Sons to
William and Robert for $100,000. On December 31, 1975, Brumley, Sr. and his wife,
Goldie, also executed a Bill of Sale that purported to sell personal property and an
“Attached list of Copyright songs,” to William and Robert. The list of songs does not
appear in the record; nonetheless, it is undisputed that, as part of those transactions,
Brumley, Sr. conveyed the publishing and exploitation rights in the Song to William and
Robert. On November 15, 1977, Brumley, Sr. died, survived by Goldie and their six
children. Brumley, Sr. bequeathed all of his property, including his interests in any
copyrights, to Goldie. On May 17, 1979, Goldie executed another Bill of Sale, wherein
she maintained that she was the “sole and rightful owner” of all of Brumley, Sr.’s songs
and she purported to “grant, sell, assign, and transfer” to Brumley & Sons her rights in
Brumley, Sr.’s songs for $1.00. The Agreement also conveyed to Brumley & Sons the
rights to renew copyrights and “all rights to obtain renewals or copyrights in the future
upon Works written or composed by [Brumley Sr.].” In 1986, Robert bought out
William’s share of Brumley & Sons for $240,000 plus interest, leaving Robert as the
sole owner. Goldie died on July 10, 1988.
On or about April 14, 2006, the other four Brumley children (Jackson S.
Brumley, Albert E. Brumley, Jr., Betty Brumley Pockrus, and Thomas Brumley)
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 4
delivered a timely Notice of Termination of Transfers and Licenses to Brumley & Sons,
intending to terminate the 1975 transfer of rights in the Song from Brumley, Sr. to
William and Robert. The effective date of the Termination Notice purports to be April
14, 2008, and the U.S. Copyright Office recorded the Termination Notice on July 13,
2006. Robert Brumley’s efforts to resist the Termination Notice form the basis of this
lawsuit.
On December 16, 2008, the Brumley heirs sued Robert Brumley, Brumley &
Sons, and Integrated Copyright Group, Inc. after Robert’s refusal to recognize the
validity of the Termination Notice. Currently, the Brumley heirs consist of Brumley
Sr.’s surviving children—Jackson S. Brumley and Albert E. Brumley, Jr.—and the
surviving heirs of his deceased children—Thomas Brumley’s surviving spouse, Betty
Brumley Pockrus’s surviving spouse, and William Brumley’s four surviving children.
At the district court, Robert argued that the Termination Notice was invalid for two
reasons. First, he argued that Goldie exercised her termination rights by assigning her
rights in the 1979 Bill of Sale, preventing the Brumley heirs from later exercising their
termination rights. Section 304(d) of the Copyright Act provides that heirs can only
exercise termination rights on a pre-1978 transfer one time. 17 U.S.C. § 304(d).
Second, Robert claimed that Brumley, Sr. was an employee of the Hartford Music
Company at the time that he created the Song and that the Song was a “work made for
hire.” The Copyright Act’s termination provisions do not apply to works made for hire.
17 U.S.C. § 304(c).
Before the trial, the district court made evidentiary rulings related to the work-
made-for-hire issue that are pertinent to this appeal and our decision today. First, Robert
filed a motion in limine to exclude from evidence a recording and transcript of a 1977
conversation between Brumley, Sr. and Brumley, Jr. The conversation contains the
following exchange:
Brumley, Sr.: That’s where I got started in the Hartford – that’s where I
got started in the Hartford Musical Institute, which is defunct now.
Albert, Jr.: And which you own now, the old Hartford copyrights?
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 5
Brumley, Sr.: Yea, I sold some of the songs including “I’ll Fly Away”
and two others for three dollars.
The district court denied Robert’s motion and admitted the recording and transcript into
evidence. During the pretrial conference on the motion, the district court acknowledged
that the conversation was hearsay, but nevertheless admitted it into evidence pursuant
to the residual exception to the hearsay rule found in Federal Rule of Evidence 807.
Second, the Brumley heirs filed a motion in limine seeking to exclude from
evidence a number of newspaper and magazine articles, among other things, as
inadmissible hearsay. Robert argued that the district court should admit the articles
under the “ancient documents” exception to the hearsay rule found in Federal Rule of
Evidence 803(16). The district court granted the motion in part, excluding the articles
from evidence. Two of the articles—Brumley is Ozark’s Country/Gospel Songmaster,
by Paul Stubblefield, Music City News, April 1977 and Albert E. Brumley Folk
Composer, by Bill Malone, Bluegrass Unlimited, July 1986—provided statements that
Brumley, Sr. was a salaried employee of Hartford during the time that he wrote the
Song.
The district court bifurcated the trial. There was a jury trial from November
16–18, 2010, solely on the issue of whether the Song was a work made for hire. At the
close of the Brumley heirs’ case, Robert asked the district court to rule in his favor on
the work-made-for-hire issue as a matter of law, but the district court denied the motion.
The jury concluded that Brumley, Sr. was the statutory author of the Song, meaning that
the Song was not a work made for hire as that term is used in section 304(c) of the Act
and that Brumley, Sr.’s heirs have termination rights under section 304(d).
Following the jury trial, remaining for the district court’s consideration was
Robert’s legal challenge to the Brumley heirs’ Termination Notice on the grounds that
Goldie’s 1979 Bill of Sale constituted the one and only legitimate exercise of
termination rights. The district court held that Goldie’s 1979 assignment did not
constitute an exercise of termination rights and it recognized the Brumley heirs’
Termination Notice as valid. Robert filed this interlocutory appeal, seeking this court’s
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 6
review of the district court’s determination regarding the validity of the Termination
Notice. Robert also seeks review of the district court’s aforementioned evidentiary
rulings, and of the district court’s denial of his motion for judgment as a matter of law.
II.
We begin by addressing Robert’s challenge to the district court’s evidentiary
rulings. The trial court’s evidentiary rulings are reviewed for abuse of discretion.
United States v. Taplin, 954 F.2d 1256, 1258 (6th Cir. 1992). Reversal is appropriate
when the trial court “applies the incorrect legal standard, misapplies the correct legal
standard, or relies upon clearly erroneous findings of fact.” United States v. Martinez,
430 F.3d 317, 326 (6th Cir. 2005) (citation and internal quotation marks omitted).
The Brumley heirs sought to introduce the recording and transcript of a
1977 conversation between Brumley, Sr. and Albert Brumley, Jr. During the
conversation, Brumley, Sr. claims that he sold the Song to Hartford for three dollars.
Robert sought to exclude the recording and transcript as hearsay. The district court
admitted the evidence on the grounds that it fell under the residual hearsay exception
found in Rule 807. Rule 807 allows the admission of a hearsay statement that does not
fall under the exceptions to hearsay found in Rules 803 and 804 if the statement meets
four criteria: (1) the statement has equivalent circumstantial guarantees of
trustworthiness, (2) the statement is offered as evidence of a material fact, (3) the
statement is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts, and (4) admitting the statement
will best serve the purposes of the Rules of Evidence and the interests of justice. Fed.
R. Evid. 807; United States v. Gomez-Lemos, 939 F.2d 326, 329 (6th Cir. 1991). Robert
argues that the district court erred in admitting the recording and transcript because the
conversation lacked the circumstantial guarantees of trustworthiness equivalent to those
in the enumerated hearsay exceptions.
In support of his argument, Robert relies on language from the Supreme Court’s
decision in Idaho v. Wright, 497 U.S. 805 (1990). Specifically, Robert says that the
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 7
Supreme Court has stated that the theory underlying the federal hearsay exceptions is
that “if the declarant’s truthfulness is so clear from the surrounding circumstances that
the test of cross-examination would be of marginal utility, then the hearsay rule does not
bar admission of the statement at trial.” Wright, 497 U.S. at 820. However, the Supreme
Court made this statement in the context of a discussion of the “particularized guarantees
of trustworthiness” required under the Confrontation Clause. Id. at 814–15.
Incriminating statements that are admissible under exceptions to the hearsay rule are not
admissible under the Confrontation Clause unless the statements meet particularized
guarantees of trustworthiness. Id. The Supreme Court’s requirement that the
truthfulness of a statement be so clear that the test of cross-examination be of marginal
utility is specific to the Confrontation Clause; thus, the requirement is inapplicable in
this case.
There is a lack of Sixth Circuit case law on the residual exception’s
trustworthiness requirement outside of the context of the Confrontation Clause, but we
believe that there are a numbers of factors indicating that the statements from the
1977 conversation have the requisite guarantees of trustworthiness. First, the statements
should be considered more reliable than not given that Brumley, Sr. and Brumley, Jr. are
father and son and not strangers. Second, there is no indication that Brumley, Sr. lacked
capacity at the time that he gave the statement. One may argue that Brumley, Sr.’s
memory might have been impaired due to the lapse of time between the Song’s
publication and the statement, but it is just as reasonable to assume that Brumley, Sr.
would have accurately recalled the circumstances surrounding the creation of his most
successful song despite the lapse of time. Third, Robert has not alleged that Brumley,
Sr. was an untruthful person. Fourth, the statement is clear and unambiguous. Finally,
the fact that Brumley, Jr. recorded the conversation adds an element of formality, which
suggests that Brumley, Sr. may have given his statements added consideration. The
district court did not abuse its discretion and err in admitting into evidence the
statements from and transcript of the 1977 conversation.
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 8
The Brumley heirs sought to prevent Robert from introducing into evidence two
articles: 1) Paul Stubblefield’s article, Brumley is Ozark’s Country/Gospel Songmaster,
published in the April 1977 edition of Music City News; and 2) Bill Malone’s article,
Albert E. Brumley Folk Composer, published in the July 1986 edition of Bluegrass
Unlimited. Both articles claimed that Brumley, Sr. was a salaried employee of Hartford
at the time that he wrote the Song. Robert sought to introduce the evidence under the
“ancient documents” exception to the hearsay rule. See Fed. R. Evid. 803(16).
As an initial matter, the Brumley heirs conceded that the articles are self-
authenticating “newspapers and periodicals” pursuant to Federal Rule of Evidence
902(6). The district court found that the statements fall within the ancient documents
exception because they are more than twenty years old and are authenticated. See Fed.
R. Evid. 902(6). The district court also acknowledged that “the content of the document
is a matter of evidentiary weight left to the sole discretion of the trier of fact,” and,
therefore, the factual accuracy of the statement is not pertinent when considering
whether the hearsay exception applies. United States v. Kalymon, 541 F.3d 624, 633
(6th Cir. 2008). Finally, the district court noted that the challenged statements within
the articles do not contain a potential “hearsay within hearsay” problem because the
statements are simply the assertions of the articles’ authors and do not quote or attribute
statements to anyone else.
Still, the district court excluded the evidence based on its discretion under Rule
403, which states that otherwise relevant and admissible 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.” Fed. R. Evid. 403. The
district court relied on an evidence treatise to support its determination that the
circumstances must show that Stubblefield and Malone could have had personal
knowledge of Brumley, Sr.’s employment relationship with Hartford. The district court
found that the articles did not meet this standard because “[t]here is no clear indication
No. 12-5386 Brumley, et al. v. Albert Brumley & Sons, Inc., et al. Page 9
in these articles as to how the authors acquired the information that they used to make
representations regarding Brumley’s employment status at the relevant time.”
First, the Sixth Circuit has never employed such a requirement in determining
whether to admit evidence under the ancient documents exception. Second, it is clear
where the authors acquired the relevant information. It is apparent from the context of
the Stubblefield article that Stubblefield interviewed Brumley, Sr., and the notes section
at the conclusion of Malone’s article lists all of Malone’s sources, which include
Brumley, Sr. and Eugene M. Bartlett, former President of Hartford. Finally, the district
court’s determination that there is an absence of need for the evidence is not well
supported. The district court points to other evidence on the issue, including excerpts
from Brumley, Jr.’s book, I’ll Fly Away: The Life of Albert E. Brumley, which stated that
Brumley, Sr. served as a salaried staff writer at Hartford at the time that he wrote the
Song. Brumley, Jr., however, testified at trial that the statement in his book was
erroneous. Moreover, the 1977 interview between Brumley, Sr. and Brumley, Jr. is the
only source, other than the articles, that involves commentary from parties with personal
knowledge of Brumley, Sr.’s employment status with Hartford at the time that he wrote
the Song. The evidentiary weight to be given to the challenged content in the articles
should have been left to the discretion of the jury; therefore, the district court abused its
discretion in excluding the articles from evidence.
Because we find that the district court erred in excluding the articles from
evidence, we refrain from reaching the remaining issues that Robert raised on appeal.
We AFFIRM the district court’s introduction of the 1977 conversation into
evidence, REVERSE the district court’s exclusion of the Stubblefield and Malone
articles, and REMAND for further proceedings.
| {
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} |
[Cite as State v. Roberson, 2017-Ohio-4339.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1131
Appellee Trial Court No. CR0201503139
v.
Ronald Roberson DECISION AND JUDGMENT
Appellant Decided: June 16, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
*****
MAYLE, J.
{¶ 1} Following a jury trial, defendant-appellant, Ronald Roberson, appeals the
June 16, 2016 judgment of the Lucas County Court of Common Pleas convicting him of
domestic violence, aggravated burglary, rape, and participating in a criminal gang. We
affirm, in part, and reverse, in part.
I. Background
{¶ 2} On December 18, 2015, Roberson was indicted on one count of domestic
violence, in violation of R.C. 2919.25(A) and (D)(5); two counts of aggravated burglary,
in violation of R.C. 2911.11(A)(1); one count of rape, in violation of R.C. 2907.02(A)(2)
and (B); one count of aggravated robbery, in violation of R.C. 2911.01(A)(1)1; and one
count of participating in a criminal gang, in violation of R.C. 2923.42(A) and (B). The
charges stemmed from Roberson’s involvement with two women, A.A. and C.G., and his
alleged participation in the Bee Hive gang, a branch of the Crips gang.
{¶ 3} The case was tried to a jury beginning June 13, 2016. The state presented
the testimony of 12 witnesses, including officers and detectives who investigated the
incidents underlying the indictment; a sexual assault nurse examiner (“SANE”);
Detective William Noon, a certified gang specialist; and the two victims. Roberson also
presented a witness and testified on his own behalf. The following facts were developed
at trial.
A. August 27, 2015 Events
{¶ 4} Roberson met C.G. in August of 2015. He introduced himself as “Gotti”
and asked for her phone number. The day after they met, Roberson called C.G. and
asked to come to her house. She assented and the pair smoked marijuana until C.G.
asked Roberson to leave. Later that week Roberson came to C.G.’s home with a friend.
1
The state dismissed this count prior to trial.
2.
The three of them smoked marijuana and then Roberson and his friend left. This was the
extent of C.G.’s interactions with Roberson prior to August 27, 2015.
{¶ 5} Roberson and C.G. both testified that late in the evening of August 26 or
early in the morning of August 27 Roberson went to C.G’s home and she voluntarily let
him into her home. Beyond that, they presented different versions of the events that
occurred.
{¶ 6} C.G. testified that Roberson called her around midnight while she was
sleeping. He told her that he was at a nearby gas station and asked to come over. She
agreed. When Roberson knocked on the door, C.G. opened it and let him in. He
immediately asked to use her bathroom, which was upstairs where her children were
sleeping. She said he could, but he did not return after several minutes. She went up to
check on her children and found Roberson in her bedroom, not the bathroom. He asked
C.G. to sleep with him, but she told him they should take their time before making the
relationship sexual. Roberson grabbed C.G.’s hand to pull her toward the bed, started
kissing her, removed her underwear, and engaged in vaginal intercourse with her.
Although C.G. was not interested in sleeping with Roberson, she did not tell him “no”
when he initiated the sexual activity. She claimed that she was scared to fight him
because she did not know him well and did not know what he would do if she refused.
C.G. did, however, reply “no” when Roberson asked her if she liked what he was doing
and she testified that she also said “no” two other times during the encounter. She also
scratched Roberson on his side or his back during sex.
3.
{¶ 7} C.G. further testified that after Roberson finished he asked to use C.G.’s
phone charger, which he retrieved from the first floor. He charged his phone in her
bedroom for a brief time and then went back downstairs. C.G. testified that she was
scared so she laid in her bed after Roberson went downstairs. C.G. heard voices
downstairs, but could not identify how many people she heard or if one of them was
Roberson. After the voices stopped, C.G. went downstairs and saw that her front door
was open and her TVs, computer, and game system were missing. She later discovered
that smaller items from upstairs, including her children’s tablets, were also missing. C.G.
then texted Roberson, telling him that he had 15 minutes to return her property or she was
going to call police. She sent him 14 text messages over the course of approximately 30
minutes. One of the messages said, “And you rapped [sic] me I told you no over and
over again.” Roberson did not respond to any of the messages.
{¶ 8} C.G. testified that she called the police after texting Roberson. Officers
responded and took C.G. to the Toledo Hospital to have a rape kit performed. At trial,
C.G. read from a certified copy of her hospital records. Although C.G.’s testimony
largely matched the information in the hospital records, the records contained some
additional details. According to the medical records, C.G. told the SANE who examined
her that she had asked Roberson to leave when she found him upstairs. The medical
records also described her encounter with Roberson in the bedroom a bit differently. She
claimed that Roberson said “come here,” grabbed her by both arms, and threw her on the
4.
bed. The defense did not object to the admission of the records or to C.G. reading from
the records.
{¶ 9} Roberson provided a different version of the evening’s events. He testified
that C.G. contacted him and asked him to come to her house. He walked over from a
nearby gas station. When he arrived, the two of them smoked marijuana and engaged in
some foreplay. He claimed that he never asked to use the bathroom. He also claimed
that C.G. suggested they go upstairs to her bedroom where the two engaged in consensual
sex. He testified that C.G. became uncomfortable after they had sex and asked him to
leave, which he did. He did not lock the door when he left. He claimed he did not take
any of C.G.’s property and it would have been impossible for him to take a television, a
computer, and a game system with him because he walked to C.G.’s house.
{¶ 10} The SANE who examined C.G. testified at trial. She said that C.G.’s
demeanor when she arrived at the hospital was “very distraught.” She testified that C.G.
did not have any physical injuries, which she said is not uncommon in rape victims. She
also testified from the hospital records, which contained her notes of the evening’s events
as told to her by C.G. According to the SANE, C.G. had met a man named Gotti
approximately a year before. He called C.G. in the middle of the night and asked to come
over. She agreed. When Gotti came to the house he asked to use the restroom. C.G.
followed him upstairs and found him sitting on her bed. Gotti grabbed her by both arms,
threw her on the bed, and raped her. C.G. did not want to make any noise because she
did not want to wake her children. When Gotti finished, he asked to use her phone
5.
charger, which she gave him. When his phone was charged he went downstairs, but C.G.
did not know what he did while he was downstairs. C.G. stayed in her room, but could
hear noises and voices coming from downstairs. When the noises stopped she went
downstairs, locked the door, noticed that some of her property was missing, and called
the police.
{¶ 11} The evidence the SANE collected was sent to the Ohio Bureau of
Investigation (“BCI”). Two BCI technicians testified to receiving the evidence from the
Toledo Police Department (“TPD”) and testing it for DNA. BCI found sperm and a
mixture of DNA on C.G.’s vaginal swab. Roberson’s DNA was found in both the sperm
and the DNA mixture. The chance of the DNA belonging to someone other than
Roberson is one in 35 quintillion, 470 quadrillion unrelated individuals.
{¶ 12} Detective Rebecca Kincaid investigated C.G.’s rape allegations. Before
discussing the details of C.G.’s case, Detective Kincaid explained her background in
investigating sexual assaults. Based on that experience, she testified that there is no
typical response from sexual assault victims and very few victims display signs of
physical injury. Regarding C.G., Detective Kincaid testified that the only information
she had about the perpetrator at the time was his nickname of Gotti. She consulted the
TPD gang unit to try to determine Gotti’s identity. Although there were several men
nicknamed “Gotti” in the system, none of them matched the physical description given by
C.G.
6.
{¶ 13} Detective Kincaid obtained a search warrant for Roberson’s DNA based on
the BCI test results. She executed the warrant on December 10, 2015, after Roberson
was arrested for the aggravated burglary incident with the second victim in this case,
A.A. Roberson said little while Detective Kincaid collected his DNA sample. He did,
however, deny knowing C.G. or ever spending time on the street where C.G. lived.
Roberson explained at trial that he did not recognize C.G.’s name when Detective
Kincaid mentioned it and he believed that C.G.’s house was on a street other than the one
Detective Kincaid asked about. It was not until she received the DNA results that
Detective Kincaid was able to positively identify Roberson as Gotti.
{¶ 14} Based on these events, Roberson was charged with rape and one count of
aggravated burglary.
B. November 23, 2015 Events
{¶ 15} A.A., the mother of two of Roberson’s children, testified about her
interactions with Roberson. At the time of trial, A.A. was in jail on a material witness
warrant to ensure her appearance at trial. Before A.A. took the stand, her appointed
counsel informed the court that A.A. had reluctantly agreed to cooperate and testify.
{¶ 16} A.A. testified that she and Roberson were in a romantic relationship from
2011 to 2015. Though the relationship ended, they maintained contact because of the
children. At the time of the November incident, A.A. was approximately seven months
pregnant with a child not fathered by Roberson.
7.
{¶ 17} Roberson periodically stayed the night at A.A.’s home to see his children
and help get them on the bus in the morning. Roberson spent the night at A.A.’s on
November 22, 2015, and returned the next afternoon to pick up some of his belongings.
While he was in the house, A.A. returned home and saw Roberson’s new girlfriend, Kiara
Gray, sitting in a car in front of the house. It is at this point that A.A.’s and Roberson’s
versions of events diverge.
{¶ 18} A.A. testified that she was upset by Gray’s presence at her home and
confronted Roberson about it. A.A. claimed that she and Roberson “got into it,” which
included name-calling and “going back and forth with each other.” During the argument,
Roberson grabbed her by the neck and shoulder and threw her to the ground. A.A. ran
into the house to call the police and Roberson followed. Roberson apologized to A.A.,
but A.A. told Roberson that she was calling the police anyway. Roberson then grabbed
her, threw her up against a wall, and hit her head against the wall approximately four
times. She fell to the floor, and he left.
{¶ 19} Roberson recalled the encounter differently. He testified that A.A. was
swearing at him and “getting all in my area, in my space.” He walked away, telling her
he was going to get his things and leave. A.A. continued to call Roberson “disrespectful”
while he claimed he was “blowing the situation off.” Roberson said that he went inside
the house for less than five minutes to see his younger brother and that he never touched
A.A. Gray testified and corroborated Roberson’s version of events, although she
8.
admitted that she was outside the house and did not see what happened while he was
inside.
{¶ 20} After Roberson and Gray left, A.A. called the police. Detective Rick
Molnar responded and took A.A.’s statement. She and Detective Molnar both testified
that she did not have any visible injuries from the incident and did not go to the hospital
that day. The next day, however, A.A. went to the hospital because she was having
contractions and back pain and was concerned for the wellbeing of her child. The state
asked A.A. to read from a certified copy of her hospital records. Although the narrative
in the hospital records was largely the same as A.A.’s previous testimony, it also
contained allegations that the perpetrator was A.A.’s ex-boyfriend—whom A.A.
identified as Roberson—and that the perpetrator choked her and kicked her in the right
side of her stomach. The defense did not object to the admission of the records or to
A.A. reading from the records.
{¶ 21} Detective Molnar testified about his investigation of the incident. In
addition to testifying that A.A. did not have any visible injuries, he confirmed that she
was visibly pregnant at the time. He also testified that A.A. never mentioned another
female being present with Roberson.
{¶ 22} Based on these events, Roberson was charged with domestic violence.
C. December 10, 2015 Events
{¶ 23} A.A. testified that she was afraid of Roberson after November 23. As a
result, he was not welcome at her home after that date. Between November 23 and
9.
December 10, Roberson called and texted A.A. numerous times. She did not want to
communicate with him and sent him messages that said “quit talking to me” and “don’t
text me.” She also refused to let Roberson see his children at her home; all of his visits
with the children after November 23 happened at his mother’s house.
{¶ 24} On December 10, 2015, A.A. was in her kitchen cooking. Her boyfriend
left the house and, shortly after, Roberson entered through the closed, unlocked front
door. A.A. did not immediately notice Roberson; she believed her boyfriend had
returned to the house, so she was not concerned about the door opening. After entering,
Roberson grabbed A.A. by the neck and began choking her. A.A. claimed that he said
“you think what I did to you last time was bad, just watch what I do to you this time” and
“think this shit again, think what I did to you last time. Watch what I do to you this
time.” This continued until Roberson’s daughter came down the stairs and pulled at his
leg. Roberson then left the house. A.A. testified that the whole incident lasted
approximately one minute. When Roberson left, A.A. called the police. Detective
Molnar investigated this case as well. He and A.A. both testified that she did not have
any visible injuries from Roberson’s assault. A.A. never sought medical treatment
because of this incident.
{¶ 25} A.A. explained that, prior to November 23, Roberson would call her when
he wanted to come over and he would either knock when he arrived or she would unlock
the door and he would let himself in. On December 10, Roberson called A.A. at least
10.
twice, but he did not tell her that he was coming to her house. He did, however, follow
his normal practice of walking in her unlocked front door.
{¶ 26} Once again, Roberson provided a different version of the evening’s events.
He testified that he was with Gray that evening and never went to A.A.’s house. He
picked Gray up from work around 4:00 or 4:30, picked her children up from school, and
then went to Gray’s family member’s house. He claimed that he was with Gray the entire
evening, except for approximately ten minutes when he went to the store. He stated that
A.A.’s house was approximately a 20 to 25 minute drive from his location.
{¶ 27} Gray once again corroborated Roberson’s version of events. She added
that Roberson went to the store around 8:30 or 9:00 p.m. and returned with the items she
had asked him to pick up. She admitted on cross-examination, however, that she did not
go to the store with Roberson and had no way of knowing what he did while he was out
of her presence. Gray also testified that, as Roberson was being arrested on
December 10, she told the arresting officers that Roberson had been with her the entire
evening. But the investigating officer, Detective Molnar, testified that he never had any
contact with Gray and further asserted that no witnesses ever told him that Roberson was
not at A.A.’s house on December 10.
{¶ 28} Based on these events, Roberson was charged with a second count of
aggravated burglary.
11.
D. Participating in a Criminal Gang
{¶ 29} The final count of the indictment involved participating in a criminal gang.
The charge arose from Roberson’s alleged participation in the Bee Hive gang from
January 1, 2010, through December 18, 2015. The bulk of the state’s evidence regarding
this charge came from the testimony of Detective William Noon.
{¶ 30} Detective Noon is a certified gang specialist on the TPD’s gang task force.
He has worked with that unit for over 14 years. He testified that street gangs have existed
in Toledo for 25 to 30 years and there are approximately 20 gangs that claim territory in
Toledo. Gang members wear certain colors, use specific hand signs, often have other
affiliation indicators such as tattoos, and hang out in specified areas that the TPD
considers the gang’s territory.
{¶ 31} Noon said the Bee Hive gang consists of approximately 50 to 55 members,
although the number fluctuates because members go to jail, switch gangs, or quit the
gang. Bee Hive territory is in the area bounded by Bancroft Street, Collingwood
Boulevard, Central Avenue, and Cherry Street, which includes Rockingham Street. Bee
Hive members wear the color blue and display a hand sign that is made by pressing the
first two fingers to the thumb and extending the pinky, which represents a bee’s stinger.
He also claimed that Bee Hive members are violent and commit the crimes of burglary
and domestic violence, though he was unaware of any Bee Hives who had committed
sexual assault. He conceded that not all gang members are violent. Further, he said that
12.
the TPD gang unit monitors social media websites to identify gang members based on
their posts and pictures, and to observe gang members’ activities.
{¶ 32} Specific to Roberson, Noon testified that Roberson’s street name is Ron
Gotti. Roberson has used the name since at least 2010. The only contact Noon ever had
with Roberson was a conversation the two had on a street corner in 2012, during which
Roberson allegedly admitted that he was a member of the Bee Hive. Detective Noon did
not have a written report or any recordings of the encounter. Detective Noon was
involved in the investigation of a 2012 federal criminal case against Bee Hive members,
but Roberson was not one of them. Additionally, Detective Noon testified that Roberson
had not been the focus of any task force investigations since the 2012 federal case ended.
{¶ 33} The state introduced three photographs taken from a Facebook page
belonging to “Ron Gotti.” Noon said the photos identified Roberson as a Bee Hive
member. Each printout indicates when the photo was posted to Facebook, but not when
it was taken. In the first photo, a man is holding money in his mouth and raising one
hand with the first two fingers pressed to the thumb and the pinky extended. Noon
claimed that this was the Bee Hive hand sign. The picture was posted to the site on
November 20, 2015. In the second, the same man is holding up his hands. Tattoos are
visible on his fingers, but they are difficult to read. Noon testified that they were the
words “bee” and “hive.” The printout shows the photo was posted to Facebook in
October, but the day and year are not visible. The final picture shows two fists with the
words “bee” and “hive” tattooed in blue ink on the fingers. The picture was posted to
13.
Facebook on October 14, 2013. Noon did not remember Roberson having the tattoos in
2012.
{¶ 34} Roberson, contrary to Detective Noon’s testimony, did not recall ever
meeting Detective Noon on a street corner. He did, however, identify himself as the man
in the pictures from Ron Gotti’s Facebook page. Roberson claimed that he had been in
the Bee Hive gang, but that he was no longer a member. He testified that he was last
involved with the gang before having children. He testified to getting the finger tattoos in
2008 or 2009. Although he uses his mother’s Rockingham Street address, he does not
reside there. He admitted to his continued association with Bee Hive members and stated
that he spends time in the Rockingham neighborhood because he has friends and family
who still live in the area. Roberson denied active involvement in the gang.
E. Outcome
{¶ 35} After hearing the evidence, the jury found Roberson guilty of all counts.
The court proceeded directly to sentencing. It sentenced Roberson to 11 months in prison
on the domestic violence count; 9 years in prison on each aggravated burglary count; 9
years in prison on the rape count; and 6 years in prison on the participating in a criminal
gang count. The court ordered Roberson to serve his sentences for the domestic violence,
aggravated burglary, and rape convictions consecutively, and his sentence for the
participating in a criminal gang conviction concurrently with the other counts. His
aggregate sentence is 27 years and 11 months in prison.
14.
{¶ 36} Roberson appeals the trial court’s decision, setting forth four assignments
of error:
Assignment of Error One: Appellant was denied Due Process of law
because several of his convictions are unsupported by sufficient evidence,
and his convictions are also against the manifest weight of the evidence.
Assignment of Error Two: The offense of “participation in a
criminal gang,” as applied to appellant, violates appellant’s First
Amendment rights to freedom of speech, expression, and association.
Assignment of Error Three: The trial court erred to appellant’s
prejudice in denying appellant’s motion to sever counts in the indictment
for separate trials.
Assignment of Error Four: Appellant’s Sixth Amendment right to
counsel was violated because he received ineffective assistance of counsel.
II. Law and Analysis
A. Sufficiency and Manifest Weight of the Evidence
{¶ 37} In Roberson’s first assignment of error, he contends that his convictions are
not supported by sufficient evidence and are against the manifest weight of the evidence.
The state counters that it presented sufficient evidence to sustain Roberson’s convictions
and the convictions are supported by the manifest weight of the evidence. We address
each argument in turn.
15.
{¶ 38} In reviewing a challenge to the sufficiency of the evidence, we view the
evidence in a light most favorable to the prosecution and determine whether “any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113,
684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh
the evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448,
2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support
a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997).
{¶ 39} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. Id. at 387. We do not view
the evidence in a light most favorable to the state. “Instead, we sit as a ‘thirteenth juror’
and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’” State v.
Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at
388. Reversal on manifest weight grounds is reserved for “the exceptional case in which
the evidence weighs heavily against the conviction.” Thompkins at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Although under a
manifest weight standard we consider the credibility of witnesses, we extend special
16.
deference to the jury’s credibility determinations given that it is the jury that has the
benefit of seeing the witnesses testify, observing their facial expressions and body
language, hearing their voice inflections, and discerning qualities such as hesitancy,
equivocation, and candor. State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616,
¶ 14.
1. Domestic Violence
{¶ 40} Under R.C. 2919.25(A), it is a crime to knowingly cause or attempt to
cause physical harm to a family or household member. Although domestic violence is
generally a fourth-degree misdemeanor, the charge becomes a fifth-degree felony if the
offender knew that the victim was pregnant. R.C. 2919.25(D)(2), (5). A person acts
“knowingly,” regardless of his purpose, when he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. R.C. 2901.22(B). A person
has knowledge of circumstances when he is aware that such circumstances probably
exist. Id.
{¶ 41} Roberson contends that the evidence supporting his domestic violence
conviction was insufficient for several reasons: Roberson’s and Gray’s testimony
contradicted A.A.’s version of events, A.A. did not have any visible injuries, and A.A. is
not a reliable witness because she was jailed before trial on a material witness warrant.
The state counters that Roberson’s arguments all relate to the witnesses’ credibility,
which the court does not review in a sufficiency challenge.
17.
{¶ 42} We agree that all of Roberson’s arguments relate to the witnesses’
credibility. We do not consider credibility in a sufficiency analysis. The jury was in the
best position to assess the witnesses’ credibility and it determined that A.A.’s testimony
was more credible than the testimony of Roberson and Gray. We will not second-guess
that determination on appeal.
{¶ 43} We also find that Roberson’s domestic violence conviction is not against
the manifest weight of the evidence. Although we consider witnesses’ credibility when
reviewing a manifest weight claim, we still give special deference to the jury’s credibility
determinations. At trial, Roberson and Gray testified to the same version of the events,
but their version was markedly different from A.A.’s version. The jury decided that A.A.
was more credible, and we extend special deference to that determination. Moreover,
Gray admitted that she was outside and therefore did not see what happened when A.A.
and Roberson were inside A.A.’s home. Considering all of this, we cannot find that the
jury lost its way and created a manifest miscarriage of justice by convicting Roberson of
domestic violence.
2. Aggravated Burglary
{¶ 44} Next, Roberson argues that his two convictions for aggravated burglary are
not supported by sufficient evidence and are against the manifest weight of the evidence.
{¶ 45} Under the relevant aggravated burglary statute, R.C. 2911.11(A)(1), it is
illegal for any person “by force, stealth, or deception” to trespass in an occupied structure
or in a separately secured or separately occupied portion of an occupied structure, when a
18.
person other than the person’s accomplice is present, with purpose to commit any
criminal offense, if the offender either inflicts, or attempts or threatens to inflict physical
harm on another.
{¶ 46} “Force” is “any violence, compulsion, or constraint physically exerted by
any means upon or against a person or thing.” R.C. 2901.01(A)(1). Any force, however
slight, is sufficient to establish the “force” element of aggravated burglary. See Goins v.
State, 90 Ohio St. 176, 107 N.E. 335 (1914), syllabus (upholding burglary conviction
when defendant further opened an already partially-open door to a chicken house). This
includes turning a doorknob and pushing open an unlocked door or pulling on a locked
door. State v. Austin, 6th Dist. Lucas No. L-09-1011, 2009-Ohio-6258, ¶ 22, citing State
v. Lane, 50 Ohio App.2d 41, 46, 361 N.E.2d 535 (10th Dist.1976) (“Defendant must have
forced open a closed but unlocked door. This forcing open may have been accomplished
by defendant by using his strength to turn the doorknob and pushing the door open”).
{¶ 47} “Stealth” is defined as “‘any secret, sly or clandestine act to avoid
discovery and to gain entrance into or to remain within a residence of another without
permission.’” State v. Harris, 6th Dist. Lucas Nos. L-06-1402 and L-06-1403, 2008-
Ohio-6168, ¶ 93, quoting State v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168 (3d
Dist.1993).
{¶ 48} “Deception” means knowingly deceiving another or causing another to be
deceived by any false or misleading representation, by withholding information, by
preventing another from acquiring information, or by any other conduct, act, or omission
19.
that creates, confirms, or perpetuates a false impression in another, including a false
impression as to law, value, state of mind, or other objective or subjective fact. R.C.
2913.01(A). The deception element can be proven by showing that the defendant
received permission to enter the home by using a ruse. In re J.M., 7th Dist. Jefferson No.
12 JE 3, 2012-Ohio-5283, ¶ 17-18 (defendant received permission by asking to use the
bathroom); State v. Dukes, 3d Dist. Allen Nos. 1-02-64, 1-02-92, and 1-02-93, 2003-
Ohio-2386, ¶ 23 (defendant received permission by lying about needing to make a phone
call).
{¶ 49} “Trespass,” as pertinent here, occurs when a defendant, without privilege to
do so, knowingly enters or remains on the land or premises of another. R.C.
2911.21(A)(1). A person’s privilege to be on property can be limited to a certain room or
area of the property. State v. Sparent, 8th Dist. Cuyahoga No. 96710, 2012-Ohio-586,
¶ 9 (privilege limited to certain rooms defendant was contracted to paint); In re J.M. at
¶ 12 (privilege limited to using bathroom); State v. Rhodes, 9th Dist. Medina No. 1769,
1989 Ohio App. LEXIS 2839, 5 (July 19, 1989) (privilege limited to first floor
bathroom). If a defendant’s presence at the property is initially lawful, a trespass may
nonetheless occur if the defendant’s privilege is revoked or terminated. State v. Petefish,
7th Dist. Mahoning No. 10 MA 78, 2011-Ohio-6367, ¶ 22. For example, a defendant’s
privilege is revoked when he commits a criminal offense inside the home. See State v.
Swiergosz, 6th Dist. Lucas No. L-12-1293, 2013-Ohio-4625, ¶ 18.
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{¶ 50} To prove the defendant had a “purpose to commit a criminal offense,” the
state must show that the defendant invaded the building specifically to commit a crime or
formed the intent to commit a crime during the course of a trespass. State v. Fontes, 87
Ohio St.3d 527, 721 N.E.2d 1037 (2000), syllabus. A person acts “purposely” when it is
his specific intention to cause a certain result or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what the person intends to
accomplish thereby, it is his specific intention to engage in conduct of that nature. R.C.
2901.22(A). Intent can rarely be proven by direct evidence, but it can be inferred from
the facts and circumstances surrounding the case. State v. Teamer, 82 Ohio St.3d 490,
492, 696 N.E.2d 1049 (1998).
{¶ 51} “Physical harm to persons” means any injury, illness, or other
physiological impairment, regardless of its gravity or duration. R.C. 2901.01(A)(3). It is
possible for the force or threat of force used to commit rape to satisfy the “inflicts, or
attempts or threatens to inflict physical harm on another” element of aggravated burglary.
See State v. K.W., 12th Dist. Warren No. CA2016-01-004, 2016-Ohio-7365, ¶ 22
(agreeing with trial court’s assessment that rape “is an attempt to or threat to inflict
physical harm”); State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534, 2013-
Ohio-3234, ¶ 32-33, 36 (noting that aggravated burglaries were not completed until
defendant inflicted physical harm by raping the victims), rev’d on other grounds, 143
Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892; State v. Nguyen, 4th Dist. Athens No.
21.
12CA14, 2013-Ohio-3170, ¶ 108 (“The force or threat of force used to commit the rape
could satisfy the requirement for aggravated burglary * * *”).
a. August 27, 2015 Incident
{¶ 52} Roberson contends that his aggravated burglary conviction for the August
27, 2015 incident with C.G. is not supported by sufficient evidence and is against the
manifest weight of the evidence because the state failed to prove the “by force, stealth, or
deception,” “trespass,” “with purpose to commit * * * any criminal offense,” and
“inflicts, or attempts or threatens to inflict physical harm” elements of aggravated
burglary.
{¶ 53} First, Roberson claims that the state failed to present any evidence that he
trespassed or entered C.G.’s home by “force, stealth, or deception” because C.G. opened
her door and voluntarily let him into the house. Based on the evidence, however, the jury
could have inferred that Roberson’s request to use C.G.’s bathroom was a ruse that he
used to get into the house. Lying to gain entry to a home fulfills the deception element of
aggravated burglary. In re J.M., 2012-Ohio-5283, at ¶ 17-18; Dukes, 2003-Ohio-2386, at
¶ 23. If Roberson gained entry to the home by lying about needing to use the bathroom,
he never had privilege to be in the home and committed a trespass by deception the
moment he walked through C.G.’s door.
{¶ 54} Alternatively, even if Roberson initially entered C.G.’s home with
permission, the evidence still supports the jury’s verdict. C.G. testified that she only gave
Roberson permission to enter her bathroom, but he nonetheless proceeded to quietly enter
22.
her bedroom. Roberson therefore exceeded the scope of C.G.’s permission, committing
trespass. See Sparent, 2012-Ohio-586 (when a person’s privilege to be in a home is
restricted to a certain area, leaving that area constitutes a trespass). And there was
sufficient evidence that he committed this trespass by stealth given that C.G. testified that
Roberson secretly entered her bedroom without her knowledge. Harris, 2008-Ohio-
6168, at ¶ 93 (stealth consists of any secret or sly act done to avoid discovery and remain
in the residence of another without permission).
{¶ 55} Furthermore, any privilege Roberson had to be in C.G.’s home was
revoked when he began raping C.G. A person’s privilege to remain in another’s home is
rescinded when the person commits a crime in the home. See Swiergosz, 2013-Ohio-
4625, at ¶ 18. As we discuss below, we are upholding Roberson’s rape conviction.
When Roberson began raping C.G., he lost any privilege he may have had to be in her
home and became a trespasser.
{¶ 56} Next, Roberson argues that there was no evidence of him inflicting,
attempting to inflict, or threatening to inflict physical harm on C.G. Rape can be the
physical harm upon which the state bases an aggravated burglary charge. See K.W.,
2016-Ohio-7365, at ¶ 22; Ruff, 2013-Ohio-3234, at ¶ 32-33, 36; Nguyen, 2013-Ohio-
3170, at ¶ 108. The state’s proof of a rape is sufficient to support the physical harm
element.
{¶ 57} Finally, Roberson claims that the state did not present sufficient evidence
that he had the purpose to commit a crime when he entered C.G.’s home. Purpose to
23.
commit a crime need not exist when the offender enters the victim’s home; rather, it is
sufficient for the state to prove that the offender developed such purpose during a
trespass. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, at syllabus. Here, there was
sufficient evidence from which the jury could infer that Roberson, at a minimum, had the
purpose to commit some crime—whether rape or theft—when he entered C.G.’s home,
entered the second floor of her home after asking to use the bathroom, or when he snuck
into C.G.’s bedroom.
{¶ 58} We therefore find that Roberson’s conviction of aggravated burglary
related to the August 27, 2015 incident is supported by sufficient evidence.
{¶ 59} Moreover, considering the record and the credibility of the witnesses, we
are not persuaded that the evidence weighs heavily against a conviction on this count.
While Roberson testified that all of the events of August 27 happened with C.G.’s
consent, we cannot say that the jury lost its way in disbelieving his testimony, or created
a manifest miscarriage of justice by convicting him. Thus, Roberson’s conviction of
aggravated burglary of C.G. is not against the manifest weight of the evidence.
b. December 10, 2015 Incident
{¶ 60} Roberson also argues that the aggravated burglary conviction related to the
December 10, 2015 incident lacked sufficient evidence and is against the manifest weight
of the evidence because the state failed to prove that he committed trespass “by force,
stealth, or deception.” Roberson contends that he followed his normal practice of calling
24.
A.A. before coming to her home and either knocking on or opening the door, which, he
argues, shows that he neither trespassed nor used “force” to enter the home.
{¶ 61} Although Roberson testified that he followed his normal practice of calling
A.A. before coming to her house and letting himself in, A.A. testified that Roberson was
no longer allowed in her house after the November 23, 2015 domestic violence incident.
A.A. also said that although Roberson called her twice on December 10, 2015, he did not
tell A.A. that he was coming to her house. There was, therefore, sufficient evidence for
the jury to determine that Roberson was a trespasser at A.A.’s house on December 10,
2105, because A.A. had revoked any prior privilege he may have had to be there.
{¶ 62} We also find sufficient evidence of force. A forcible breaking occurs when
a defendant uses any force, however slight, to gain entry into a structure. Goins, 90 Ohio
St. 176, 107 N.E. 335, at syllabus; State v. Austin, 6th Dist. Lucas No. L-09-1011, 2009-
Ohio-6258, ¶ 22. Thus, evidence that a defendant “us[ed] his strength to turn the
doorknob and push[ed] the door open” is sufficient to demonstrate use of force. Lane, 50
Ohio App.2d at 46, 361 N.E.2d 535.
{¶ 63} Finally, we find that Roberson’s conviction of aggravated burglary is not
against the manifest weight of the evidence. We simply cannot say the jury lost its way
or created a manifest miscarriage of justice by believing A.A. rather than Roberson, or by
finding that Roberson’s entry into A.A.’s home was accomplished by force.
25.
3. Rape
{¶ 64} Roberson argues that the rape conviction is unsupported by sufficient
evidence and is against the manifest weight of the evidence because the state failed to
prove that Roberson compelled C.G. to submit to sexual conduct by force or threat of
force. The state contends that force can be inferred from the circumstances surrounding
the sexual activity.
{¶ 65} A rape conviction under R.C. 2907.02(A)(2) requires the state to prove that
the defendant engaged in sexual conduct with another by compelling the other person to
submit by force or threat of force. “Force” for purposes of a rape conviction is defined
the same way it is for an aggravated burglary conviction—i.e., “any violence,
compulsion, or constraint physically exerted by any means upon or against a person or
thing.” R.C. 2901.01(A)(1).
{¶ 66} “A defendant purposely compels another to submit to sexual conduct by
force or threat of force if the defendant uses physical force against that person, or creates
the belief that physical force will be used if the victim does not submit.” State v. Schaim,
65 Ohio St.3d 51, 600 N.E.2d 661 (1992), paragraph one of the syllabus. The force
required to commit rape is that which is necessary to overcome the will of the victim.
State v. Muller, 3d Dist. Defiance No. 4-11-09, 2012-Ohio-3530, ¶ 57. It is a relative
term that depends on the age, size, and strength of the parties and their relation to each
other. State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph one of the
syllabus, citing State v. Labus, 102 Ohio St. 26, 38-39, 130 N.E. 161 (1921).
26.
{¶ 67} A victim’s non-consent to sexual conduct is not required to prove forcible
rape; rather, evidence of consent—or lack thereof—goes to the state’s ability to prove
whether the defendant purposefully forced or compelled the victim. State v. Hartman, 2d
Dist. Montgomery No. 26609, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 27. Courts have found
sufficient force to support a conviction under R.C. 2907.02(A)(2) when defendants
engaged in combinations of minimal physical force (e.g., pushing and pulling), removing
the victim’s clothing, and laying on top of the victim after the victim expressed
disinterest in or discomfort with the sexual contact. E.g., Hartman (defendant pushed
adult victim onto a bed, removed her clothes, laid on top of her, and pulled her into a
shower); Muller (defendant removed intoxicated adult victim’s clothes and did not stop
intercourse when victim “batted at him”); State v. El-Berri, 8th Dist. Cuyahoga No.
89477, 2008-Ohio-3539 (defendant bent 16-year-old victim over a couch, removed her
clothes, and engaged in vaginal intercourse with her); State v. Rupp, 7th Dist. Mahoning
No. 05 MA 166, 2007-Ohio-1561 (defendant removed adult victim’s clothing, laid on top
of her, and engaged in vaginal intercourse with her while she attempted to push him away
and told him “no”); State v. Shannon, 11th Dist. Lake Nos. 2002-L-007 and 2002-L-008,
2004-Ohio-1669 (defendant pushed down 15-year-old victim’s partially-removed pants,
laid on top of her, and proceeded with intercourse after she replied “uh-uh” to him asking
“Is this okay?”). Regardless of the defendant’s actions, the state is not required to prove
that the victim physically resisted the attack. R.C. 2907.02(C).
27.
{¶ 68} Whether the state proved that Roberson compelled C.G. to submit to sexual
conduct by force comes down to credibility. C.G. said that the encounter was not
consensual, Roberson grabbed her hand and pulled her toward the bed, he removed her
underwear, she told Roberson “no” at least twice during the encounter, she replied “no”
when he asked her if she “liked it when he was doing it,” and she scratched Roberson
during sex. Roberson, on the other hand, maintains that they had consensual sex initiated
by C.G., who felt some remorse afterward. The jury believed C.G.’s version of events,
which we must honor. On that basis, we find that C.G.’s testimony about Roberson’s
actions—which included removing C.G.’s underwear, pulling her hand, and continuing
intercourse after C.G. told him she did not like what he was doing and said “no” other
times during sex—provides sufficient evidence that Roberson compelled C.G. to submit
to vaginal intercourse by force.
{¶ 69} Furthermore, after reviewing the evidence and the credibility of the
witnesses, we are not convinced that the evidence weighs heavily against a conviction on
this count. We cannot say that the jury lost its way or created a manifest miscarriage of
justice by believing C.G. rather than Roberson. We find, therefore, that Roberson’s
conviction of rape is not against the manifest weight of the evidence.
4. Participating in a Criminal Gang
{¶ 70} Roberson objects to his conviction of participating in a criminal gang. He
asserts that the state did not present sufficient evidence to show that the Bee Hive is a
gang, that he actively participated in a gang, that he furthered the purposes of the gang,
28.
that he aided or abetted any gang member in committing criminal conduct, or that he
committed criminal conduct himself. The state responds that it sufficiently demonstrated
that the Bee Hive is a criminal gang, that Roberson actively participated in the Bee Hive
gang, and that he personally engaged in criminal conduct.
{¶ 71} Under R.C. 2923.42(A)
No person who actively participates in a criminal gang, with
knowledge that the criminal gang engages in or has engaged in a pattern of
criminal gang activity, shall purposely promote, further, or assist any
criminal conduct * * *, or shall purposely commit or engage in any act that
constitutes criminal conduct * * *.
{¶ 72} The gang participation statute requires proof of four elements: (1) the
existence of a criminal gang, (2) appellant’s active participation in the gang,
(3) appellant’s knowledge that the gang engages in or has engaged in a pattern of
criminal gang activity, and (4) appellant’s purposeful promotion, furtherance, or
assistance of, or commission of or engagement in, any criminal conduct.
{¶ 73} A “criminal gang” is defined as
an ongoing formal or informal organization, association, or group of
three or more persons to which all of the following apply:
(1) It has as one of its primary activities the commission of one or
more [felonies].
29.
(2) It has a common name or one or more common, identifying
signs, symbols, or colors.
(3) The persons in the organization, association, or group
individually or collectively engage in or have engaged in a pattern of
criminal gang activity. R.C. 2923.41(A).
{¶ 74} A pattern of criminal gang activity occurs when “persons in the criminal
gang have committed, attempted to commit, conspired to commit, been complicitors in
the commission of, or solicited, coerced, or intimidated another to commit, attempt to
commit, conspire to commit, or be in complicity in the commission of two or more”
felonies. R.C. 2923.41(B)(1). The offenses used to demonstrate a pattern of criminal
gang activity must meet certain criteria. They must include at least one felony; one must
have taken place on or after January 1, 1999; the most recent offense must have occurred
within five years after at least one of the other offenses; and the two or more offenses
must have been committed on separate occasions or by two or more people. R.C.
2923.41(B)(2).
{¶ 75} Here, although the state established that the Bee Hive is a criminal gang, it
failed to present sufficient evidence of the second element of the crime—i.e., that
Roberson “actively participat[ed]” in the Bee Hive gang during the period in the
indictment.
{¶ 76} The phrase “actively participates” is not defined by the statute. We
recently held, however, that “the active participation element of the criminal gang statute
30.
requires the state demonstrate that appellant actually—not just nominally—took part in
the criminal gang.” State v. Smith, 6th Dist. Lucas No. L-15-1027, 2017-Ohio-776, ¶ 38.
Actual participation requires that the appellant perform “some role to benefit the gang.”
Id. at ¶ 39.
{¶ 77} The state relied primarily on Detective Noon’s testimony and the Ron Gotti
Facebook pictures to support this charge. Detective Noon testified that Roberson
admitted Bee Hive membership in 2012; Noon did not recall Roberson having finger
tattoos during their 2012 meeting; Roberson was not targeted in the investigation of the
2012 federal case against other Bee Hive members; and the TPD’s gang unit had not
focused on Roberson at least since the end of the 2012 federal case. He also testified that
Bee Hive members engage in a pattern of property crimes and have engaged in crimes
against women. Detective Noon identified the territory, hand sign, and color common to
the Bee Hive. The pictures from Ron Gotti’s Facebook page show Roberson displaying
the Bee Hive hand sign and his “Bee Hive” finger tattoos done in blue ink. Though the
pictures were posted in 2015, 2013, and an unknown year, there is no indication of when
they were taken. The state also presented the testimony of Detective Kincaid, who asked
TPD’s gang unit to identify “Gotti,” the suspect in C.G.’s rape, but the gang unit was
unable to identify him.
{¶ 78} Roberson testified that he was a former Bee Hive member, but had not
been active in years. He claimed he got the “Bee Hive” tattoos in 2008 or 2009. He did
31.
not recall ever meeting Detective Noon or identifying himself to Detective Noon as a Bee
Hive member.
{¶ 79} In its brief, the state points to cases where the courts upheld participating in
a criminal gang convictions based on similar circumstantial evidence. These cases are
distinguishable, however, because in each of those cases the defendant was convicted
based on additional evidence pointing to active—rather than nominal—participation that
somehow benefitted the gang. In State v. Gaiter, 9th Dist. Summit No. 24758, 2010-
Ohio-2205, for example, the court found sufficient evidence to support a conviction
based on the defendant’s strong ties to other gang members; his tattoos memorializing
dead gang members; photos of him wearing gang colors, showing gang hand signs, and
standing at a dead gang member’s grave with other gang members; and—most
critically—evidence that the gang was involved in selling cocaine, the defendant was a
cocaine wholesaler, and the defendant was seen loitering with other gang members “in
the heart” of the gang’s drug territory. Id. at ¶ 62-63.
{¶ 80} In State v. Swain, 6th Dist. Erie Nos. E-11-087 and E-11-088, 2013-Ohio-
5900, the other case the state relies on, we found sufficient evidence of active
participation based on a prison report in which defendant admitted his gang membership;
photos of the defendant and other gang members depicting them in gang colors, wearing
gang-related bandanas, displaying gang hand signs, and showing gang-related tattoos; a
gun wrapped in a gang-related bandana recovered from defendant’s residence; and
clothing taken from defendant’s closet that was personalized with the gang’s acronym.
32.
Id. at ¶ 24, 56. But there was also evidence that the defendant possessed crack cocaine
and had prepared crack cocaine for sale, and that gang members with whom he associated
also trafficked crack cocaine. Id. at ¶ 6, 10, 27.
{¶ 81} In both Gaiter and Swain, the evidence showed that the defendant was not
only currently involved with the gang (clothing, hand signs, tattoos, and pictures with
other gang members), but was also doing something to benefit the gang (selling drugs).
Here, in contrast, the state failed to present any evidence that Roberson did anything to
benefit the Bee Hive gang. The state argues that the jury could infer that Roberson
arranged for Bee Hive members to burglarize C.G.’s home based on Noon’s testimony
that Bee Hive members engage in property crimes and C.G.’s testimony that she heard
unfamiliar voices in her home after Roberson left and before she discovered that various
items had been stolen. We disagree. Although the jury could reasonably infer that
Roberson allowed some other people to enter C.G.’s home, there was no additional
evidence from which the jury could infer that the unidentified people were Bee Hive
members. Simply put, the state failed to connect Roberson’s self-affiliation with the Bee
Hive gang (i.e., his tattoos, use of the gang sign, and admission to Detective Noon in
2012) to the aggravated burglary of C.G. or any other any activity that could somehow
benefit the gang.
{¶ 82} Indeed, we have consistently required more evidence of active participation
than the state presented against Roberson. E.g., Smith, 2017-Ohio-776, at ¶ 41-44
(conviction upheld based on observation of defendant with active gang members,
33.
photograph of defendant flashing a gang sign, photograph of defendant’s birthday cake
decorated with gang symbols, evidence that defendant sold drugs and the gang supported
itself through drug sales, and evidence that defendant committed a drive-by shooting with
members of the gang); State v. Nelson, 6th Dist. Lucas No. L-15-1190, 2016-Ohio-7115,
¶ 41-42 (conviction upheld based on defendant’s recorded admission of participating in
the gang and evidence that the murder he participated in was in retaliation for a drive-by
shooting by a rival gang); State v. Allen, 6th Dist. Lucas No. L-14-1078, 2016-Ohio-
2742, ¶ 9-10 (conviction upheld based on defendant’s participation in recent gang fight,
defendant’s prior participation in a felony with another gang member, defendant’s gang
tattoo, tribute to a dead gang member on defendant’s Facebook page, photograph of
defendant with a gang member who was flashing a gang sign, and evidence that
defendant murdered a rival gang member in retaliation for his brother’s death).
{¶ 83} In each of these cases, there was evidence that the defendants did more
than wear a gang’s color, show a gang’s hand sign, or have gang-related tattoos;
specifically, the evidence showed that the defendants engaged in conduct—from selling
drugs to murdering rivals—that furthered some interest of the gang. Here, the state did
not present any evidence that Roberson engaged in conduct that benefited the Bee Hive.
Roberson’s tattoos, admission of membership, admission of socializing with Bee Hive
members who live in his old neighborhood, and photo of him throwing a gang sign prove
association with the Bee Hive, but not active participation in its activities, which is
required for a conviction under R.C. 2923.42. At best, the state’s evidence shows that
34.
Roberson is and was at all times alleged in the indictment a passive, nominal, or former
Bee Hive member.
{¶ 84} We find, therefore, that Roberson’s conviction of participating in a criminal
gang is not supported by sufficient evidence and we reverse on that basis. Roberson’s
first assignment of error is well-taken, in part.
B. First Amendment Violation
{¶ 85} Because we find that Roberson’s conviction for participating in a criminal
gang is not supported by sufficient evidence, his second assignment of error—claiming
that the conviction violates his First Amendment rights to freedom of speech, freedom of
expression, and freedom of association—is moot.
C. Motion to Sever
{¶ 86} In his third assignment of error, Roberson contends that the counts in the
indictment were improperly joined and the trial court erred in failing to sever them for
separate trials. He claims that he was prejudiced because the joint trial of all counts
bolstered the state’s “thin” evidence on each count. The state counters that any prejudice
resulting from the joint trial is negated because the evidence on each count was simple
and direct, and because evidence from trials relating to A.A. and C.G. would be
admissible at a trial on participating in a criminal gang.
{¶ 87} We review a trial court’s decision on a motion to sever for an abuse of
discretion. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166.
Abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary, or
35.
unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d
200 (1996).
{¶ 88} Two or more offenses can be charged in one indictment under Crim.R.
8(A) if the offenses (1) are of the same or similar character, (2) are based on the same act
or transaction, (3) are based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan, or (4) are part of a course of criminal
conduct.
{¶ 89} Criminal Rule 14 provides, however, that separate trials shall be ordered if
it appears that a defendant is prejudiced by joinder of offenses in one indictment.
Because joinder is favored for judicial economy, the defendant bears the burden of
claiming prejudice to prevent the joinder and providing sufficient information for the trial
court to weigh the right to a fair trial against the benefits of joinder. Schaim, 65 Ohio
St.3d at 59, 600 N.E.2d 661; State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981),
syllabus. A claim of prejudice depends on whether the advantages of joinder and
avoidance of multiple trials are outweighed by the right of a defendant to be tried fairly
on each charge. Torres at 343.
{¶ 90} The state can use two methods to defeat a defendant’s claim of prejudice
under Crim.R. 14: the “other acts” test or the “joinder” test. State v. Lott, 51 Ohio St.3d
160, 163, 555 N.E.2d 293 (1990).
36.
{¶ 91} Under the other acts test, the state must show that evidence of the other
charged offenses would be admissible as “other acts” under Evid.R. 404(B) even if the
counts are severed for trial. State v. Gibson, 6th Dist. Lucas Nos. L-13-1222 and
L-13-1223, 2015-Ohio-1679, ¶ 28, quoting State v. Townsend, 6th Dist. Lucas No.
L-00-1290, 2002 Ohio App. LEXIS 1633, 21-22 (Apr. 12, 2002). Under the second
method, the joinder test, the state can defeat a claim of prejudice by showing that the jury
is capable of separating the proof of each crime because the evidence of each crime is
simple and direct. Id. “Ohio appellate courts routinely find no prejudicial joinder where
the evidence is presented in an orderly fashion as to the separate offenses or victims
without significant overlap or conflation of proof.” State v. Robinson, 6th Dist. Lucas
No. L-09-1001, 2010-Ohio-4713, ¶ 51.
{¶ 92} We find that the trial court did not abuse its discretion in denying
Roberson’s motion to sever because the evidence of each crime was separate, direct, and
capable of being separated—thereby satisfying the joinder test. At trial, the state first
presented its witnesses relating to the participating in a criminal gang charge, then
presented the witnesses relating to the incidents with A.A., and finished with the
witnesses relating to the incident with C.G. The record shows that the state presented its
evidence in an orderly fashion and without overlap of testimony or conflation of proof.
Roberson does not point to anything that suggests otherwise. We find that the evidence
in this case was sufficiently simple and direct to outweigh any prejudice joint trials might
have caused Roberson.
37.
{¶ 93} Accordingly, because the evidence of each crime was separate and distinct,
we find that the trial court did not abuse its discretion in denying Roberson’s motion to
sever.2 For these reasons, Roberson’s third assignment of error is not well-taken.
D. Ineffective Assistance of Counsel
{¶ 94} In his fourth assignment of error, Roberson claims that his Sixth
Amendment right to counsel was violated because his trial counsel provided ineffective
assistance.
{¶ 95} Properly licensed Ohio lawyers are presumed to be competent. State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. In order to prevail
on a claim of ineffective assistance of counsel, an appellant must show that counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
court cannot be relied on as having produced a just result. Strickland v. Washington, 466
U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective
assistance of counsel, an appellant must show “(1) deficient performance of counsel, i.e.,
performance falling below an objective standard of reasonable representation, and
(2) prejudice, i.e., a reasonable probability that, but for counsel’s errors, the proceeding’s
result would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426,
892 N.E.2d 864, ¶ 204, citing Strickland at 687-88. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” State v. Sanders, 94
2
Because we find that the state satisfied the joinder test, we need not consider whether it
also satisfied the other acts test.
38.
Ohio St.3d 150, 151, 761 N.E.2d 18 (2002). As recognized in Strickland, there are
“countless ways to provide effective assistance in any given case.” Id. at 689. “Judicial
scrutiny of counsel’s performance must be highly deferential.” State v. Bradley, 42 Ohio
St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689.
{¶ 96} Roberson claims that his trial counsel was ineffective because she did not
object to the admission of the victims’ hospital records or various hearsay statements
within those records. In response, the state contends that the evidence was properly
admissible and, in any event, Roberson cannot prove that the result of the proceeding
would have been different if the evidence had not been admitted.
1. Hospital Records
{¶ 97} Evidence Rule 901 governs the authentication of evidence and provides, in
relevant part, that “[t]he requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the
material in question is what its proponent claims.” Evid.R. 901(A). Under R.C.
2317.422(A),
the records, or copies or photographs of the records, of a hospital, * * * in
lieu of the testimony in open court of their custodian, person who made
them, or person under whose supervision they were made, may be qualified
as authentic evidence if any such person endorses thereon the person’s
verified certification identifying such records, giving the mode and time of
39.
their preparation, and stating that they were prepared in the usual course of
the business of the institution.
If records are properly certified under R.C. 2317.422(A), no further authentication is
needed for them to be admissible. See Gallagher v. Firelands Regional Med. Ctr., 6th
Dist. Erie No. E-15-055, 2017-Ohio-483, ¶ 31.
{¶ 98} Here, the hospital records of C.G. and A.A. contain certifications from the
issuing medical providers that comport with the requirements of R.C. 2317.422(A),
making them properly authenticated and admissible. Thus, trial counsel’s failure to
object to their admission was, at a minimum, objectively reasonable. Indeed, even if an
objection had been raised, the remedy would have been in-person authentication rather
than exclusion of the records from evidence. We therefore cannot find that counsel was
ineffective for failing to object to the admission of certified hospital records.
2. Hearsay Statements in the Hospital Records
{¶ 99} Hearsay statements made for the purpose of medical diagnosis or treatment
are admissible under Evid.R. 803(4). This exempts from the hearsay rule “[s]tatements
made for purposes of medical diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably pertinent to diagnosis or
treatment.” Id. For such statements to be admissible under this exception, the declarant’s
motive must be consistent with that of a patient seeking treatment and it must be
reasonable for the medical provider to rely on the information in diagnosing and treating
40.
the declarant. State v. Ridley, 6th Dist. Lucas No. L-10-1314, 2013-Ohio-1268, ¶ 49,
citing State v. Clary, 73 Ohio App.3d 42, 52, 596 N.E.2d 554 (10th Dist.1991). We have
previously found that a description of the injuring event and identification of the
perpetrator fall within the medical diagnosis or treatment hearsay exception. Id. at ¶ 52,
citing State v. Stahl, 9th Dist. Summit No. 22261, 2005-Ohio-1137, ¶ 15.
{¶ 100} In this case, the statements that A.A. and C.G. read from their medical
records described not only the symptoms they were experiencing, but also the events that
caused them to seek medical treatment and some reference to the identity of the
perpetrator (A.A. identified him as her ex-boyfriend and C.G. identified him as Gotti).
Both women made their statements in the course of receiving medical care after being
assaulted. The events surrounding the victims’ decision to seek medical treatment show
that both victims made their statements with the motive of receiving proper treatment and
it would be reasonable for a medical provider to rely on the information they provided.
Under these circumstances, such statements fall within the hearsay exception for medical
diagnosis and treatment.
{¶ 101} Thus, trial counsel’s failure to object to the admission of those statements
was objectively reasonable. We find this assignment of error not well-taken.
E. Merger
{¶ 102} Finally, we address an issue that the state brought to the court’s attention
in its brief: whether the rape and aggravated burglary charges related to the August 27,
2015 incident should have merged for purposes of sentencing. Roberson did not initially
41.
raise the issue or assign it as error, although he did briefly argue this issue in his reply
brief.
{¶ 103} An appellate court must determine an appeal on its merits based on the
assignments of error set forth in the briefs and will not address mere arguments. Jensen
v. AdChoice, Inc., 6th Dist. Lucas No. L-14-1014, 2014-Ohio-5590, ¶ 23, fn. 4, citing
App.R. 12(A)(1)(b); App.R. 16; Bonn v. Bonn, 10th Dist. Franklin No. 12AP-1047, 2013-
Ohio-2313, ¶ 9; and Firsdon v. Mid-American Natl. Bank, 6th Dist. Wood No.
WD-96-009, 1996 Ohio App. LEXIS 5583, 6, fn. 1 (Dec. 13, 1996). Roberson did not
assign as error the trial court’s failure to merge his convictions of rape and aggravated
burglary related to the August 27, 2015 incident. Therefore, we will not address his
“mere arguments” on this issue. Jensen at ¶ 23, fn. 4.
III. Conclusion
{¶ 104} The January 29, 2016 judgment of the Lucas County Court of Common
Pleas is affirmed as to Roberson’s convictions for domestic violence, aggravated
burglary, and rape and reversed and vacated as to his conviction for participating in a
criminal gang. The parties are ordered to divide the costs of this appeal equally pursuant
to App.R. 24.
Judgment affirmed, in part,
and reversed, in part.
42.
State v. Roberson
C.A. No. L-16-1131
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
43.
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837 F.2d 475
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Darwin GRAVITT, Petitioner-Appellant,v.Theodore KOEHLER, Respondent-Appellee.
No. 87-1342.
United States Court of Appeals, Sixth Circuit.
Jan. 15, 1988.
Before MERRITT and RYAN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
ORDER
1
This matter is before the court upon consideration of the appellant's motion for counsel and responses to this court's October 2, 1987, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's responses seek this court to grant his petition for writ of habeas corpus.
2
It appears from the record that the judgment was entered June 14, 1983. The notice of appeal filed on March 23, 1987, was three and a half years late. Fed.R.App.P. 4(a) and 26(a).
3
The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.
4
Accordingly, it is ORDERED that the motion for counsel be denied and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.
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76 B.R. 98 (1987)
In re Wayne POER a/k/a Robert Wayne Poer, Debtor.
Bankruptcy No. 586-50065.
United States Bankruptcy Court, N.D. Texas, Lubbock Division.
July 17, 1987.
Mike Calfin, Strasburger & Price, Lubbock, Tex., for debtor.
Max Tarbox, McWhorter, Cobb & Johnson, Lubbock, Tex., for trustee.
MEMORANDUM OF OPINION
CONCERNING MINERALS CLAIMED AS HOMESTEAD
JOHN C. AKARD, Bankruptcy Judge.
This case presents the question whether a Debtor may claim an interest in minerals underlying land as part of his exempt homestead where the Debtor does not own a surface interest.
Facts
On May 7, 1980 Wayne Poer (Debtor) received an undivided one-half interest in the oil, gas and other minerals located in:
the south one-half, Section 140, Block 12, E.L. & R.R.R.R. Co. Survey, Lynn County, Texas, said property containing 328.02 acres
*99 by proper conveyance as a gift from his parents. The Debtor's father owns the surface and it is leased to a tenant for agricultural purposes.
The Debtor owns in fee a four-acre tract adjoining the above described property and resides on the tract.
On February 20, 1986 the Debtor filed for relief under Chapter 7 of the Bankruptcy Code and claimed the four-acre tract and his one-half interest in the minerals as his exempt homestead. The Trustee does not object to the claim of the four acres as exempt, but does object to the claim of the interest in the minerals.[1] The minerals are not presently leased for oil and gas production.
Rural Homestead
The Texas Constitution article XVI, § 51 defines a rural homestead as follows:
The homestead, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; . . . provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the homestead claimant, whether a single adult person, or the head of a family; provided also, that any temporary renting of the homestead shall not change the character of the same, when no other homestead has been acquired.[2]
TEX. CONST. art. XVI, § 51 (Vernon Supp. 1987).
Discussion
Under Texas law, oil and gas in place are realty and become personalty when severed from the land by production. Royalty (which is payable to the owner of the minerals), oil payments and bonus payments are interests in realty because such rights represent interests in the oil and gas still in place on the property. Phillips Petroleum Co. v. Adams, 513 F.2d 355, 363 (5th Cir.1975). Thus, the interest presently held by the Debtor in the minerals is real property and the royalty to which he would be entitled upon leasing the minerals is also real property.[3]
The Texas Supreme Court has held that where the homestead claimant owns the surface of the land, the homestead exemption extends to the minerals owned by the homestead claimant under that land. Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779 (1951); Rancho Oil Co. v. Powell, 142 Tex. 63, 175 S.W.2d 960 (1943). See also, Evans v. Mills, 67 F.2d 840 (5th Cir.1934). The parties cite no Texas case, nor has the Court found one which addresses the claim of homestead where the Debtor did not own the surface of the land as well.
The portion of the Texas Constitution cited above requires that the homestead "be used for the purposes of a home, or as a place to exercise the calling or business of the homestead claimant. . . ." The Texas Property Code § 41.002 uses a more limited phrase in defining a homestead stating, "If used for the purposes of a rural home, the homestead shall consist of:. . . ." TEX.PROP.CODE ANN. § 41.002 (Vernon Supp.1987).
The Texas Courts require actual occupancy of the property as a home or an intent to occupy the property as a homestead coupled with acts of preparation manifesting such intent. Karr v. Cockerham, 71 S.W.2d 905 (Tex.Civ.App.Amarillo 1934, writ dism'd). 107 S.W.2d 719 Tex. Civ.App.Amarillo 1937, writ dism'd). It *100 takes more than mere intent to constitute a homestead. Markum v. Markum, 210 S.W. 835 (Tex.Civ.App.Amarillo 1919, writ dism'd).
The framers of our organic law had no thought of exempting 200 acres of land in the country as a home for each family, upon which its members might reside, when they thought proper, but this exemption is only in the event such lands are used for the purpose of a home. The exemption is not of any definite number of acres, but of the home, and the number of acres is a limitation placed upon that home.
Cocke v. Conquest, 120 Tex. 43, 35 S.W.2d 673, 678 (1931).
The Debtor asserts that when property is leased for mineral development, royalty income is available for the support of the family. In 1908, in what is apparently the landmark case in this area, the Texas Supreme Court denied a claim of homestead on land that was leased to yearly tenants on a crop share basis even though the landlord's share of the crop had been hauled to his residence and used to support the family. Autry v. Reasor, 102 Tex. 123, 113 S.W. 748 (1908). The Autry Court stated: "[B]efore a homestead can be claimed upon land, it must be used for some one purpose of a home, either by cultivating it, using it directly for the purpose of raising family supplies, or for cutting firewood and such like," Id. 113 S.W. at 748. See also, Blackwell v. Lasseter, 203 S.W. 619 (Tex.Civ.App.El Paso 1918), aff'd 227 S.W. 944 (Tex.Comm'n App.1921, judgment adopted) (land leased on crop shares was not homestead); Vaughn v. Vaughn, 279 S.W.2d 427 (Tex.Civ.App. Texarkana 1955, writ ref'd n.r.e.) (land rented to others cannot be claimed as homestead).
The Court is aware of contrary authority with respect to rented land. In Woodward v. Sanger Bros., 246 F. 777 (5th Cir.1918) cert. denied, 246 U.S. 674, 38 S.Ct. 425, 62 L.Ed. 932, the Debtor, who was too old to farm, was allowed to claim land which had been rented on a cropshare basis as homestead. The dissent in Vaughn, supra stated that the reasoning in Woodward should be followed, but the Texas Supreme Court refused a writ of error, seeing no reversible error in the Court of Civil Appeals holding which followed Autry, supra.
In Baldeschweiler v. Ship, 21 Tex.Civ. App. 80, 50 S.W. 644 (1899, no writ), the Court also allowed land which had been leased out by a person who was too old to farm it as exempt homestead. The Texas Commission of Appeals in Blackwell, supra pointed out that the land in Ship had been purchased with the proceeds of the sale of other homestead property and limited Ship to the facts of that case.
Crop share cases in which the landlord could actually use the products of the land for the benefit of the family present a much stronger case for a finding of homestead than royalty income. However, the Texas Supreme Court has held that property leased on crop shares should not be considered the landlord's homestead. Autry, supra.[4] This Court is obligated to follow the Texas Courts on matters of property law. Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979).
To allow the Debtor to exempt as homestead the mineral interest in land which he does not own would be tantamount to allowing him to exempt 200 acres in the country regardless of its use. That is not the mandate of the Texas Constitution which exempts a homestead up to a maximum of 200 acres.
Order accordingly.[5]
NOTES
[1] The emotional element is that the land in question has been in the Debtor's family for 45 years.
[2] The Trustee apparently concedes that the Debtor is entitled to a rural homestead. The Texas Property Code § 41.002 makes a distinction on rural homesteads between a family, which is allowed 200 acres, and a single adult person, who is allowed 100 acres. Presumably the Debtor is the head of a family and thus entitled to the larger exemption.
[3] In his brief, the Debtor notes that § 41.002 of the Texas Property Code refers to the homestead as an interest in land, whereas the prior statute (which was then § 41.001 of the Texas Property Code) referred to it as an interest in real property. The significance of this distinction, if any, escapes the Court.
[4] The Wyoming Supreme Court reached the same conclusion concerning mineral interests on homestead property in Burnell v. Roush, 404 P.2d 836, 841 (Wyo.1965).
[5] This Memorandum shall constitute Findings of Fact and Conclusions of Law pursuant to Bankruptcy Rule 7052 which is made applicable to Contested Matters by Bankruptcy Rule 9014.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1903
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
A.E.B., Juvenile, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: November 30, 2009
Filed: December 14, 2009
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
A.E.B. appeals the 14-month sentence the district court1 imposed upon
revocation of his juvenile-delinquent supervision. He argues that the court failed to
consider fairly the 18 U.S.C. § 3553(a) factors, resulting in a sentence that is excessive
and constitutes an abuse of discretion.
Upon careful review, we conclude the revocation sentence was not imposed in
violation of the law, and is not plainly unreasonable. See United States v. M.R.M.,
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
513 F.3d 866, 868 (8th Cir. 2008) (standard of review). The sentence is within
statutory limits, see 18 U.S.C. § 5037(d)(5) (authorized term of sentence upon
revocation of juvenile-delinquent supervision); and the court explicitly considered
multiple relevant section 3553(a) factors, and stated the reasons for its sentence, see
M.R.M., 513 F.3d at 868 (court enjoys broad discretion in sentencing juveniles under
Federal Juvenile Delinquency Act); United States v. Larison, 432 F.3d 921, 923 (8th
Cir. 2006) (record must show that, in sentencing defendant, court considered relevant
matters and stated reason for its decision).
Accordingly, we affirm, and we allow counsel to withdraw, subject to counsel
informing appellant about procedures for seeking rehearing and filing a petition for
certiorari.
______________________________
-2-
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703 F.2d 581
**Fitzgeraldv.Peek
82-8216
UNITED STATES COURT OF APPEALS Eleventh Circuit
3/31/83
1
N.D.Ga.
AFFIRMED
2
---------------
** Local Rule 25 case.
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865 N.E.2d 239 (2007)
Henry MERMELSTEIN, Plaintiff and Counterdefendant-Appellee,
v.
Moshe MENORA; Tri-United Management, Inc., d/b/a Tri-United Companies, an Illinois Corporation; Springs Tulsa Limited Partnership, an Oklahoma Limited Partnership; Bedford Apts. Limited Partnership, an Oklahoma Limited Partnership; Apple Creek Limited Partnership, an Oklahoma Limited Partnership; Sugerberry Limited Partnership, an Oklahoma Limited Partnership; Independence Williamsburg L.P., a Missouri Limited Partnership; Kings Ridge Limited Partnership, a Missouri Limited Partnership; Quail Run/Cove Limited Partnership a Missouri Limited Partnership; and San Antonio Sierra Vista L.P., a Texas Limited Partnership, Defendants and Counterplaintiffs-Appellants.
No. 1-06-1607.
Appellate Court of Illinois, First District, Third Division.
March 21, 2007.
*241 Novack and Macey, LLP, Chicago (Stephen Novack, P. Andrew Fleming, Christopher S. Moore, of counsel), for Appellant.
Torshen, Slobig, Genden, Dragutinovich & Axel, Ltd., Chicago (James K. Genden, of counsel), for Appellee.
Justice KARNEZIS delivered the opinion of the court:
This appeal arises from an order of the circuit court awarding plaintiff Henry Mermelstein damages and prejudgment interest in his action for dissolution, accounting and other relief against Moshe Menora, Tri-United Management, Inc. (Tri-United), Springs Tulsa Limited Partnership, Bedford Apts. Limited Partnership, Apple Creek Limited Partnership, Sugerberry Limited partnership, Independence Williamsburg L.P., Kings Ridge Limited Partnership, Quail Run/Cove Limited Partnership and San Antonio Sierra Vista L.P. Mermelstein and Menora were partners in the above limited partnerships. Mermelstein, the limited partner, filed an action seeking damages for Menora's, the general partner's, breach of his fiduciary duties to Mermelstein under the terms of the parties' partnership agreements. The court found for Mermelstein, awarded him $2,215,964.11 in damages and prejudgment interest and denied Menora's counterclaim. On appeal, Menora argues the court erred in (1) denying his counterclaim based on section 10.3 of the partnership agreements; (2) granting Mermelstein's motion in limine to exclude evidence of an alleged overpayment to Mermelstein pursuant to section 10.4 of the partnership agreements; (3) awarding Mermelstein his proportionate share of reimbursements Menora received from the partnership for payroll he paid to on-site management personnel; (4) ordering Menora to (a) repay Mermelstein for his proportionate share of the partnership funds Menora used to pay his legal fees in defending the suit and (b) refrain from using partnership funds for his legal defense of the case forthwith; and (5) awarding Mermelstein prejudgment interest. We affirm in part and reverse and remand in part.
*242 Background
Menora and Mermelstein entered into a series of almost identical partnership agreements in 1991 "to invest in, acquire, hold, maintain, improve, develop, sell, exchange, operate, lease, mortgage, exchange and otherwise use for profit" eight apartment buildings located in Oklahoma, Missouri, and Texas. Mermelstein, an operator of nursing homes, provided the approximately $8 million capital for the partnerships. Menora, a developer and manager of real estate, provided management services for the partnerships through his whollyowned Illinois company, Tri-United. Seven of the eight agreements named Menora as the general partner holding a 60% interest and Mermelstein as the class A limited partner holding a 40% interest. In the Quail Run partnership governing their Missouri property, Menora held a 55% interest and Mermelstein held a 45% interest.
Counsel for Menora drafted the agreements, which provided that the general partner, Menora, had the "exclusive authority to manage the operations and affairs of the Partnership and to make all the decisions regarding the business of the Partnership." He would receive 6% of gross rentals received by the partnership as "compensation for his management services" and 2% of gross rentals "as reimbursement for the General Partner's overhead and operating expenses." Menora had the authority, in his "sole judgment," to incur "all reasonable expenditures" on behalf of the partnership and would be reimbursed for out-of-pocket expenses incurred in the performance of his duties, "but not including [his] overhead and operating expenses." Except for the requirement that Menora had to obtain Mermelstein's approval before engaging a person in any way related to or affiliated with Menora to perform services or provide goods, the limited partner could "take no part in the conduct or control of the business of the partnership" nor act for or bind the partnership. Accordingly, other than a yearly audit of the partnership's finances conducted by his accountant and weekly discussions with Menora, Mermelstein took no active role in the operating the partnerships, eventually making $16 million to $17 million on the partnerships.
In 1997, Mermelstein filed a complaint for a declaratory judgment against Menora, Tri-United and the partnerships seeking an accounting and other relief. In 1999, Mermelstein filed an amended complaint for dissolution, accounting and other relief. In 2003, Mermelstein filed a second amended complaint alleging, in relevant part, that, besides committing numerous accounting improprieties in managing and operating the partnerships, Menora breached the agreements by reimbursing himself from partnership funds for salaries Tri-United paid to employees providing management services on site at the various properties and improperly used partnership funds to defend himself in this litigation and other litigation between the parties.
Menora denied the charges and counterclaimed, seeking reimbursement to the partnerships for $1.2 million Mermelstein allegedly received in error pursuant to a payout under section 10.3 of the agreements. After the close of discovery but before trial, Menora moved to assert a similar claim for reimbursement based on paragraph 10.4 of the agreements. The court barred this claim pursuant to Mermelstein's motion in limine. By the time the case went to trial, seven of the eight partnership properties had been sold.
Following an extended bench trial, the court held, in salient part, that Mermelstein was entitled to recover his proportionate share of the partnerships funds *243 Menora received as reimbursement for salaries paid to on-site management employees. The court determined these employees were employees of Tri-United, i.e., Menora's employees, and their salaries were covered by the 8% Menora received for his management services and overhead and operating expenses. The court also determined Menora improperly used partnership funds to pay his legal fees, ordered that Mermelstein recover his proportionate share of the attorney fees expended and prohibited Menora from using partnership funds to defend the actions. The court denied Menora's counterclaim. It also considered Mermelstein's posttrial motion for an award of prejudgment interest. Noting Mermelstein failed to request such relief in his complaints, the court ordered the parties to brief the issue and ultimately allowed the motion, awarding Mermelstein $358,211.67 in prejudgment interest, for a total award of $2,215,964.11. The court denied Menora's motion to reconsider and Menora timely appealed.
Analysis
The construction, interpretation, or legal effect of a contract is a matter of law, which we review de novo. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill.2d 100, 129, 296 Ill.Dec. 448, 835 N.E.2d 801, 821 (2005). Similarly, whether a contract is ambiguous is a question of law which we review de novo. Central Illinois Light Co. v. Home Insurance Co., 213 Ill.2d 141, 153-54, 290 Ill.Dec. 155, 821 N.E.2d 206, 214 (2004).
Each of the agreements contains a provision stating that the particular agreement and the rights of the parties thereunder shall be governed and interpreted according to the laws of Missouri, Oklahoma or Texas, as applicable to each agreement. The laws of the relevant states do not materially differ in this area, requiring we interpret the partnership agreements in such a manner as to prefer a rational and probable agreement rather than an unusual, unfair or improbable agreement. Rathbun v. CATO Corp., 93 S.W.3d 771 (Mo. App.2002); Duncan Oil Properties, Inc. v. Vastar Resources, Inc., 16 P.3d 465 (Okla. Civ.App.2000); Illinois Tool Works, Inc. v. Harris, 194 S.W.3d 529 (Tex.App.2006). There is no discernable public policy obstacle to enforcing the choice-of-law provisions; Missouri, Oklahoma and Texas bear a reasonable relationship to the partnerships and transactions; the issues in this case involve basic contract law; and there is no material difference between in the laws of these states. Accordingly, we will apply Missouri, Oklahoma and Texas law to the substantive issues of contract interpretation. Hubbert v. Dell Corp., 359 Ill. App.3d 976, 982, 296 Ill.Dec. 258, 835 N.E.2d 113, 120 (2005).
Menora's Section 10.3 Counterclaim
Menora argues that the trial court improperly denied recovery on his counterclaim based on section 10.3(a) of the partnership agreements. Section 10.3(a) provides:
"When and to the extent Cash Flow is distributed, it shall be distributed in the following manner: (a) the Class A Limited Partner shall first receive a sum (the `cumulative preferred payment') equal to ten (10%) percent per annum on his capital contributions (reduced by any capital contributions previously returned by the Partnership) on a cumulative basis, but prorated for any partial year."
Mermelstein received millions of dollars in distributions pursuant to section 10.3(a). In preparing for trial on Mermelstein's action against him, Menora discovered that he did not record these distributions as reductions to Mermelstein's capital accounts. He filed a counterclaim asserting this was an error, Mermelstein's capital *244 accounts should have been reduced by the distributions; the error resulted in over $1.2 million in overpayments to Mermelstein when the partnerships were sold; and Mermelstein should be required to return the overpayment. Mermelstein responded that the distributions were interest and not to be charged against his capital accounts. Finding section 10.3(a) unambiguous and the payments to be interest, the court denied Menora's counterclaim.
Menora argues the court erred in its interpretation of the contract because the distributions under section 10.3(a), whether considered interest or not, should have reduced Mermelstein's capital accounts pursuant to sections 8.4 of the agreements.
Section 8.4 provides in relevant part:
"A capital account shall be established for each Partner on the books of the Partnership, and there shall be credited to each Partners' capital account the amount of his initial capital contribution, any additional capital contributions and his share of profits and income of the Partnership. There shall be charged against each Partner's capital account the amount of cash and the Gross Asset Value [subsequently defined and irrelevant to this discussion] of property distributed to each Partner and such Partner's share of any losses of the Partnership."
Menora asserts that all payments made to either partner are to be treated as "distributions" pursuant to section 8.4 and the distributions made under section 10.3(a) should, therefore, have been charged against Mermelstein's capital account.
Per section 8.4, a partner's capital account consists of the amount he has contributed and his share of the partnership profits and income, minus the amount of cash and gross asset value distributed to him and his share of partnership losses. We do not, as Menora appears to argue, read section 8.4 as requiring that any cash distribution, no matter from where the cash is being distributed, whether it comes from the partner's capital account or not, should reduce the partner's capital account. Logically, only cash distributed from a capital account should reduce that account, because the partner is receiving cash-in-hand for an amount he had on paper; ergo, the charge against the account.
Section 10.3(a) provides, in salient part, when "cash flow" is distributed, it shall be distributed first to the limited partner, who receives a sum equal to 10% per annum on his capital contributions, reduced by any capital contributions previously returned by the partnership. Then, per section 10.3(b), the remaining amount is distributed to the partners pursuant to their percentage interest in the partnership. Broadly, the agreements define "cash flow" as gross cash revenues received by a partnership on its business operations, not including capital contributions, minus interest payments on loans made to the partnership and cash expenditures incurred in operating the partnership, including management fees. Essentially, it is the cash profit from operating the business, rental income minus expenses. There is no indication in the agreements that "cash flow" is kept in a capital account prior to distribution. There is, therefore, no reason why a distribution of cash flow per section 10.3(a) should operate to reduce such capital account per section 8.4.
No matter that the agreements term the section 10.3(a) 10% payment to be a "cumulative preferred payment," that 10% payment is clearly interest, paid annually by the partnership to Mermelstein on the balance of his capital contributions for the use of his capital investment funds. The *245 parties treated it as interest; the partnerships declared it as interest on their Internal Revenue Service 1099 tax forms. This 10% is distributed from cash flow, given to Mermelstein off the top of the cash flow/profit amount, with the remainder of that profit then distributed to the partners on a percentage ownership basis. The 10% is a return on investment and, logically, would be paid into an investment account, not out of it. There is no reason that the capital accounts should be charged for something that did not originate from those accounts, the only exception being the existence of a shortfall at the end of the year and the partners having to cover the partnership's losses. The capital accounts receive capital contributions, profits and losses. Cash flow seems to be a profit, and thus should be paid into a capital account. Section 10.3's cash flow "distribution" is not the type of "cash distribution" contemplated by section 8.3's requirement that cash distributions be charged against a capital account. We affirm the court's denial of Menora's counterclaim.
Barring of Menora's Section 10.4 Claim
Menora argues that the trial court erred in granting Mermelstein's motion in limine to bar Menora's assertion that he incorrectly paid Mermelstein $1.2 million pursuant to section 10.4 of the partnership agreements.[1] He asserts that, even though the discovery process was closed and the trial date set within a matter of weeks, the trial court nevertheless could have reopened discovery and granted a relatively brief continuance. We will not interfere with a trial court's ruling on discovery matters unless there is manifest abuse of discretion. Shaheen v. Advantage Moving & Storage, Inc., 369 Ill. App.3d 535, 307 Ill.Dec. 721, 860 N.E.2d 375, 380 (2006). To find an abuse of discretion, we must find that no reasonable person would take the position adopted by the trial court. Taxman v. First Illinois Bank of Evanston, 336 Ill.App.3d 92, 97, 270 Ill.Dec. 244, 782 N.E.2d 803, 807 (2002).
Menora did not plead the section 10.4 theory as a counterclaim nor seek leave to file it as a counterclaim during the more than eight years the case was open. Instead, he raised it orally during a mediation hearing some seven weeks before trial, alleging he had just discovered the payment errors. The trial court granted Mermelstein's motion in limine to bar reference to this undisclosed theory, finding the theory separate from that claimed in Menora's section 10.3 counterclaim and Menora's argument that he had disclosed the theory during discovery through a named accounting expert unpersuasive. The disclosure of the expert during discovery in no way mentioned that he would testify to a section 10.4 miscalculation and the fact that Mermelstein could have discovered the miscalculation himself by looking through the partnership accounts made no difference to the court, especially in light of the fact that those accounts were in Menora's control and Menora himself did not discover the alleged error until shortly before trial.
While the issue of reopening discovery and postponing the trial date further is admittedly close, there is nothing in the record to suggest that the trial court's action was an abuse of discretion. Under the facts of this case, the trial court could have reasonably determined that the time for discovery, which at that point had been open for eight years, was more than ample *246 for Menora to have discovered and disclosed his section 10.4 theory in a timely manner and he was foreclosed from presenting his theory now the time had passed. There is nothing in the record to suggest that the court barred reference to the theory as a discovery sanction. Accordingly, we affirm the trial court's grant of the motion in limine.
Reimbursement for On-Site Managers' Salaries
Menora argues that the trial court erred in finding Mermelstein was entitled to recover his proportionate share of the reimbursements Menora paid himself from the partnership assets for salaries Tri-United paid to management employees (leasing agents, assistant managers and managers) working at the eight partnership properties. Menora, as the general partner, paid all workers at each of the properties through a central payroll account maintained by Tri-United. He then reimbursed himself from partnership funds for those salaries, considering those salaries to be the type of expense subject to reimbursement under section 14.4 of the agreements. Section 14.4 provides in relevant part:
"The General Partner shall be reimbursed for out-of-pocket expenses incurred in the performance of duties hereunder, including but not limited to all leasing commissions and finders fees for securing tenants, but not including General Partner's overhead and operating expenses."
Mermelstein responds that the provision for reimbursement of 2% of gross rentals for the general partner's overhead and operating expenses contained in section 14.1 encompassed those salaries, and any additional reimbursement was improper. Section 14.1 provides in relevant part:
"The General Partner shall receive compensation for his management services rendered hereunder equal to six (6%) percent of gross rentals received by the Partnership. The General Partner shall also receive a sum equal to two (2%) percent of such gross rentals as reimbursement for the General Partner's overhead and operating expenses."
The trial court found the provisions of the partnership governing Menora's reimbursement were unambiguous, the on-site management employees' salaries fell under section 14.1's 8% compensation and reimbursements provisions, and any additional reimbursement taken by Menora was improper. Accordingly, the court awarded Mermelstein $1,061,797.00 as his proportionate share of the salary reimbursements Menora received.
Menora argues that section 14.2 provides him with the express authority to incur expenses in hiring personnel and for reimbursement of those expenses. Section 14.2 provides in relevant part:
"The General Partner is hereby granted the right, power and authority to do on behalf of the Partnership all things which, in its sole judgment, are necessary, proper or desirable to carry out the aforementioned duties and responsibilities, including but not limited to the right, power and authority to incur all reasonable expenditures and obligations; to employ and dismiss from employment any and all employees, agents, independent contractors, real estate managers, brokers, attorneys and accountants."
The provisions of 14.2 are unambiguous: they provide for Menora's authority to perform certain acts on behalf of the partnership, namely incurring expenses and hiring personnel. The terms of section 14.2 do not, however, provide the appropriate method of reimbursement for expenses incurred in performing those actions.
*247 Section 14.4 does provide for such reimbursement. It provides unambiguously for reimbursement to Menora for expenses he incurred on behalf of the partnership, except for those expenses already reimbursed as the "General Partner's overhead and operating expenses" under section 14.1. Mermelstein's argument to the contrary notwithstanding, the salaries of the on-site managements employees were not "overhead and operating expenses." These were not Menora's employees. They were employees of the partnership. While it is true that their salaries were paid through Tri-United's payroll system, these employees performed their work at the various partnership property locations, and there is no evidence that they devoted any of their time to Menora's business interests outside of the partnership. The on-site management employees were clearly working on behalf of the partnership, not on behalf of Menora, and should be paid by the partnership, not by Menora. Their salaries were not part of the general partner's overhead and operating expenses but rather were out-of-pocket expenses incurred on behalf of the partnership, expenses for which Menora could be reimbursed.
The salaries of all employees working at the various properties, from the custodial staff to the property manager, are paid from the Tri-United payroll account. Mermelstein's counsel stated during oral arguments that all of these salaries fall under section 14.1's reimbursement provision as Menora's "overhead and operating expenses." This interpretation of the agreement is so improbable, it reinforces our determination that the on-site management employees' salaries are not overhead and operating expenses. It is difficult to imagine that the parties intended 2% of gross rental income to sufficiently reimburse Menora for the entirety of day-to-day operating expenses of the partnership properties. The more logical construction is that the parties intended Menora's expenses associated with his management services at the Tri-United office in Skokie (i.e., utilities, accounting and secretarial services, etc.) to be reimbursed as overhead and operating expenses under section 14.1 and the expenses related to the operation of the partnership properties (notably those of the on-site management personnel) to be reimbursed as out-of-pocket expenses under section 14.4. Accordingly, we find that Menora was entitled to be reimbursed for the on-site salaries and reverse the court's decision in favor of Mermelstein on this issue.
Prejudgment Interest
Citing Gaiser v. Village of Skokie, 271 Ill.App.3d 85, 96, 207 Ill.Dec. 749, 648 N.E.2d 205, 213-14 (1995), Menora argues that the trial court erred in awarding prejudgment interest to Mermelstein because Mermelstein did not expressly seek prejudgment interest in his original, amended, or second amended complaint and should therefore be barred from recovery. Because this is a procedural issue, Illinois, rather than Missouri, Oklahoma or Texas, law applies. Boersma v. Amoco Oil Co., 276 Ill.App.3d 638, 644-45, 213 Ill.Dec. 152, 658 N.E.2d 1173, 1180 (1995). Issues relating to the sufficiency of pleadings raise questions of law and are reviewed de novo. Joseph v. Chicago Transit Authority, 306 Ill.App.3d 927, 930, 240 Ill.Dec. 46, 715 N.E.2d 733, 736 (1999).
This district's pleading standard for prejudgment interest is clear: unless a plaintiff pleads or requests prejudgment interest in the complaint, there can be no award. Gaiser, 271 Ill.App.3d at 96, 207 Ill.Dec. 749, 648 N.E.2d at 213-14. "[T]he law requires that the proof and the judgment must be consistent with the pleadings. Plaintiff, having failed to amend his *248 complaint seeking prejudgment interest, was not entitled to it." Gaiser, 271 Ill. App.3d at 96, 207 Ill.Dec. 749, 648 N.E.2d at 213-14. The Fifth District held similarly in Englemann v. Standard Mutual Insurance Co., 4 Ill.App.3d 55, 280 N.E.2d 240 (1972), in which the court disposed of the matter of prejudgment interest "without further comment because the plaintiff's complaint omit[ted] to make any claims for interest." Englemann, 4 Ill.App.3d at 57, 280 N.E.2d at 241. (Contrast with Libco Corp. v. Roland, 99 Ill.App.3d 1140, 1147, 55 Ill.Dec. 334, 426 N.E.2d 309, 314 (1981), in which the Fourth District found the "proper procedure for obtaining prejudgment interest to be to move for it after verdict and before judgment.")
There is no question Mermelstein did not specifically request prejudgment interest in his original, amended, or second amended complaint. While he did request "such other and further relief as the court deems just and equitable," this broad language is insufficient to meet the pleading standards of this district. Because the pleadings were insufficient, we need not reach the issue of whether Mermelstein would have been awarded prejudgment interest under the substantive laws of Missouri, Oklahoma, and Texas. Accordingly, we reverse the trial court's award of prejudgment interest to Mermelstein.
Attorney Fees
Menora argues the trial court erred in ordering him to repay Mermelstein for the attorney fees paid by the partnership on Menora's behalf in defending this case and prohibiting Menora from using partnership funds to pay such attorney fees in the future. Menora used partnership assets of the Quail Run partnership to pay his attorney fees in defending the action brought by Mermelstein, effectively requiring Mermelstein to pay 45% of his adversary's legal costs.[2] Menora asserts he was entitled to have the partnership pay for his attorney fees for this case pursuant to section 14.8 of the partnership agreements.
Section 14.8 provides in relevant part:
"The Partnership shall indemnify and hold harmless the General partner and its Partners, employees and agents * * * from and against any loss, expense, damage or injury suffered or sustained by them by reason of any act, omissions or alleged acts or omissions arising out of their activities on behalf of the Partnership, including but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim and including any payments made by the General Partner to any of its Partners, acts or omissions upon which such actual or threatened action, proceeding or claim are based were in good faith and were not performed or omitted fraudulently or in bad faith or as a result of wanton and willful misconduct or gross negligence by such Indemnified Parties."
The terms of the provision are unambiguous: absent fraud, bad faith, wanton and willful misconduct or gross negligence, Menora is indemnified by the partnership for his activities "on behalf of the partnership." This indemnification specifically includes *249 "reasonable attorneys' fees" incurred in defense of an action against him.
Mermelstein's action was for breach of contractual and fiduciary duties. Mermelstein argues that when Menora breached those duties, he was in fact acting on his own behalf, and not that of the partnership, and therefore not entitled to indemnification under the agreements. However, when the trial court characterized Menora's conduct in managing the affairs of the partnership, it specifically found that, although there were breaches of his fiduciary duty, Menora did not conceal, misrepresent or seek to take advantage of his partner. The record does not show otherwise. Mermelstein has failed to show that the breaches resulted from anything other than accounting errors or misinterpretations of Menora's rights and duties under the agreements. Accordingly, Mermelstein has failed to show that Menora performed the challenged activities on his own behalf and not on behalf of the partnership.
Given the court's finding that Menora did not conceal, misrepresent or seek to take advantage of his partner, Mermelstein also failed to demonstrate that Menora's conduct fit into one of the categories disqualifying him from indemnification (fraud, bad faith, willful and wanton misconduct or gross negligence). In the absence of any findings of such disqualifying conduct or failure to act on behalf of the partnership, Menora is indemnified by section 14.8 of the partnership agreement for his reasonable attorney's fees in defending this action. Reading the agreement as a whole, there is nothing limiting a general partner's indemnification solely to cases in which he is defending against third parties. Although the resulting situation, in which Mermelstein is effectively underwriting the legal costs of his opponent, may be anomalous, it is nonetheless supported by the plain unambiguous language of the partnership agreement.
Mermelstein argues that Menora cannot be indemnified against his own negligence. Under Missouri law, there must generally be clear and unequivocal terms to indemnify against negligence. Nusbaum v. City of Kansas City, 100 S.W.3d 101, 105 (Mo. 2003). The terms are clear and unequivocal in the agreements: absent proof of fraud, bad faith, wanton and willful misconduct or gross negligence, Menora is indemnified in defending his negligence, if any, in any action in which he acted on behalf of the partnership. Accordingly, we reverse the trial court's order regarding Menora's use of partnership funds to pay his attorney fees and remand on this issue.
For the reasons stated above, we affirm the circuit court's denial of Menora's section 10.3(a) counterclaim and its grant of Mermelstein's motion in limine to exclude Menora's section 10.4 claim. We reverse the court's finding that Menora erred in reimbursing himself the management employees' salaries and its award to Mermelstein of his proportionate share of the reimbursements Menora received; its award of prejudgment interest to Mermelstein; and its finding that Menora improperly used partnership funds to pay his attorney fees, its award to Mermelstein of his proportionate share of the funds Menora used to pay those fees and its order that Menora refrain from using partnership funds to defend this action. We remand for further proceedings in light of the above.
Affirmed in part and reversed in part; cause remanded.
GREIMAN, J., concurs.
CUNNINGHAM, J., dissenting in part.
*250 Justice CUNNINGHAM, dissenting in part:
I respectfully dissent from the majority on the sole issue of indemnification of Menora for his attorney fees in defending this action.
I would affirm the trial court's ruling barring the use of partnership assets by Menora to finance his defense against his own mismanagement, probable negligence and breach of fiduciary duty. A review of the language of section 14.8 of the partnership agreement leads me to a different construction of its meaning than that of the majority. It states in relevant part:
"The partnership shall indemnify and hold harmless the General Partners and their employees and agents * * * from and against any loss, expense, damage or injury suffered or sustained by them by reason of any act, omissions * * * arising out of their activities on behalf of the partnership (emphasis added), including but not limited to any judgement, award, settlement, reasonable attorney's fees and any other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim * * * provided that the acts, or alleged acts or omissions upon which such actual or threatened action, proceeding or claim are based were in good faith and were not performed or omitted fraudulently or in bad faith or as a result of wanton and willful misconduct or gross negligence * * *."
I believe that the intent of section 14.8 is to indemnify Menora against actions by third parties when he is acting on behalf of the partnership. Implicit in a partnership agreement is a fiduciary duty between partners to act in the best interest of the partnership. Cronin v. McCarthy, 264 Ill. App.3d 514, 524, 202 Ill.Dec. 129, 637 N.E.2d 668, 675 (1994). Under a partnership, a fiduciary relationship is created whereby the partner assuming control of the business is obligated to manage it in the interest of all the partners. Rizzo v. Rizzo, 3 Ill.2d 291, 301, 120 N.E.2d 546, 552 (1954). Where one is the senior or managing partner, his obligation to deal fairly and openly and disclose completely is heightened. Cronin, 264 Ill.App.3d at 524, 202 Ill.Dec. 129, 637 N.E.2d 668. The record shows that Menora was the managing partner with the expertise and Mermelstein was a silent partner who relied upon Menora to provide appropriate management for the enterprise. Menora's obligation to properly manage the business free from negligence and uphold his fiduciary duty is inherent in the partnership agreement. Indemnification of the managing partner for acts committed by him against the partnership is not a reasonable construction of the agreement in this case since the trial court has found a breach of fiduciary duty by the managing partner.
It is significant that the trial court found that Menora acted in a manner that breached his fiduciary duty to the partnership. For example, with respect to the allocation of assets following the sale of the Oklahoma property, the court found that Menora used a method that financially benefitted himself to Mermelstein's detriment. He offered no satisfactory explanation for choosing that method. Additionally, Menora conceded that he had engaged in certain other irregularities regarding the assets of the partnership. This was certainly not in the interest of the partnership or Mermelstein. Allowing Menora to use the partnership assets in this manner is contrary to the implied duty of care and loyalty which is inherent in the agreement. While it is true the court did not make a specific finding of fraud, bad faith, willful misconduct or gross negligence on the part *251 of Menora, it did find that Menora breached his fiduciary duties to the partnership and Mermelstein and also that he breached the partnership agreement. Further, the trial court found that Menora acted in a way contrary to Mermelstein's interest and that Mermelstein was entitled to relief.
I disagree with the majority's conclusion that the breach of duty is insufficient to bar Menora's indemnification. The language of the agreement states that partners should be indemnified for "activities on behalf of the partnership." A partner's breach of duty, loyalty or care to the partnership cannot be construed as acting "on behalf of the partnership" and therefore should not be financed by the partnership assets. Thus, in my view, construction of the language of the agreement does not provide indemnification against a legal challenge by one partner against another where the challenged partner is not acting in a manner consistent with his fiduciary obligation.
Additionally, I interpret differently the specific language of the partnership agreement cited by Menora in support of his assertion that the language is clear, unambiguous and provides him with the right to use the partnership's assets to defend himself against his own mismanagement of those assets. The contract is ambiguous if it is susceptible to more then one interpretation. Ford v. Dovenmuehle Mortgage, Inc., 273 Ill.App.3d 240, 244, 209 Ill.Dec. 573, 651 N.E.2d 751, 754 (1995). Ambiguous contracts are generally construed against the drafter. Duldulao v. St. Mary of Nazareth Hospital Center, 115 Ill.2d 482, 493, 106 Ill.Dec. 8, 505 N.E.2d 314, 319 (1987). Mermelstein's challenge to Menora's use of the partnership funds to defend himself in this way provides another fact from which to infer that such a construction was not intended by the parties when they entered into the agreement.
The primary goal in construing a contract is to give effect to the intent of the parties. Premier Title Company v. Donahue, 328 Ill.App.3d 161, 164, 262 Ill.Dec. 376, 765 N.E.2d 513, 516 (2002). Mermelstein's objection to the use of his money by Menora to defend against legitimate allegations of mismanagement by Menora underscores that each partner interprets the language and intent of the partnership agreement differently on that point. The disparate interpretations by Mermelstein and Menora underscore the ambiguous nature of the indemnity provision. Under these circumstances, I cannot construe the language of the agreement as providing Menora with a right to use more of the partnership assets to defend against his own inappropriate management and wrongdoing. Construing the language against the drafter, Menora, would yield a different result than that reached by the majority. Construing the language of the agreement so that Mermelstein in effect is obligated to pay a portion of Menora's legal fees has a unique impact on the trial court's finding. Indemnifying Menora dilutes the compensation to which the trial court found Mermelstein is entitled and rewards Menora for breaching his fiduciary duties and the partnership agreement. I think this could not and should not be the interpretation of section 14.8 of the partnership agreement. Under the facts of this case, I would affirm the trial court and bar Menora from using partnership assets to finance his defense.
NOTES
[1] We will not belabor the details of what the payment errors entailed beyond that they involved the order of allocation among the partners of net cash proceeds from the sale of the partnership properties pursuant to section 10.4 of the agreements.
[2] Menora's choice of the Quail Run partnership as the source for his indemnification strikes this court as petty given this is the only partnership in which Mermelstein held 45% rather than 40% of the partnership. Use of the Quail Run partnership assets was clearly meant to increase the percentage by which Mermelstein would be obligated to underwrite Menora's legal fees.
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UNPUBLISHED
Filed: May 30, 2001
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1677
VULCAN CHEMICAL TECHNOLOGIES, INCORPORATED;
VULCAN MATERIALS COMPANY,
Plaintiffs - Appellees,*
versus
PHILLIP J. BARKER, d/b/a Sabra Asia,
Defendant - Appellant.
O R D E R
_______________
On May 29, 2001, at 11:55 a.m., E.D.T., Judge Widener entered
an order as a single judge under F.R.A.P. 8 due to the requirements
of time, which order stayed an order of the district court entered
in this case which enjoined Barker from appearing in any other
proceeding in any other court until the Vulcan plaintiffs’ petition
to vacate the California arbitration award had been disposed of in
the district court for the Western District of Virginia.
On that same day, May 29, 2001, the Vulcan plaintiffs filed a
motion for reconsideration of Judge Widener’s order of May 29, and
also on that same day our clerk’s office assigned Judge Motz and
Judge King as the other members of a panel to review Judge
Widener’s said order.
In their said motion for reconsideration filed May 29, 2001,
the Vulcan defendants requested immediate consideration of that
motion, noting in the motion and by letter that the California
Superior Court had set a hearing on the merits of the case, among
other things, for today, May 30, at 2:00 p.m. Pacific Time (5:00
p.m. E.D.T.).
The panel has considered on its merits the motion of the
Vulcan defendants to reconsider the said order of Judge Widener of
May 29, and, in so doing, it has considered all of the papers,
including letters, submitted to it by the attorneys.
The panel is of opinion that the said order of Judge Widener
of May 29, 2001 is free from error.
It is accordingly ADJUDGED and ORDERED that the said motion of
the Vulcan defendants for reconsideration of Judge Widener’s order
of May 29, 2001 shall be, and the same hereby is, denied.
With the concurrences of Judge Motz and Judge King.
Entered at 2:50 p.m. E.D.T. May 30, 2001.
/s/
__________________________
H. E. Widener, Jr.
For the Court
* The plaintiffs here are the defendants in the case in the
California state court.
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543 S.E.2d 849 (2001)
STATE of North Carolina
v.
Daniel CUMMINGS, Jr.
No. 510A99.
Supreme Court of North Carolina.
April 6, 2001.
*852 Roy A. Cooper, III, Attorney General, by Ellen B. Scouten, Special Deputy Attorney General, for the State.
Staples Hughes, Appellate Defender, by Janet Moore, Assistant Appellate Defender, for defendant-appellant.
WAINWRIGHT, Justice.
On 8 August 1994, Daniel Cummings, Jr. was indicted on one count of first-degree murder of Lena Hales, one count of first-degree burglary, and one count of felonious larceny. Defendant was capitally tried before a jury at the 1 March 1999 Criminal Session of Superior Court, Robeson County. On 16 March 1999, the jury found defendant guilty of first-degree murder under the felony murder rule, and of first-degree burglary and felonious larceny. On 24 March 1999, after a capital sentencing proceeding, the jury recommended death for the first-degree murder conviction, and the trial court entered judgment in accordance with that recommendation. The trial court also sentenced defendant to a term of ten years' imprisonment for the larceny conviction and arrested judgment in the burglary conviction.
The State's evidence tended to show that Lena Hales (the victim) was eighty years old at the time of her death. The victim was five feet three inches tall and weighed approximately 117 pounds. She lived alone in her home on Shannon Road in an area of Red Springs, North Carolina, commonly known as the Pecan Orchard. At the time she was killed, the victim had lived at this residence for over fifty-seven years. On the morning of 20 April 1994, Barbara Kinlew, the victim's daughter, received a telephone call from one of her mother's friends, who was worried because she had not heard from the victim. Thereafter, Barbara Kinlew and her son, Gregory Kinlew, went to the victim's house. Upon arriving at the victim's home, Barbara saw that the window to her mother's bedroom was broken, with jagged glass all around it. She and her son raised the window and crawled through it. The victim's bed was on the other side of the window. The bed covers were pulled back, and there was broken glass on the bed.
Barbara saw her mother sitting in her recliner in the living room with her head down. Her mother was wearing her pajamas and her housecoat. She had been badly beaten; the side of the victim's head was bruised and appeared black and blue. In addition, her heavily blood-stained dentures were hanging out of her mouth. The recliner in which the victim was sitting was stained with feces and blood. After Barbara sat down in distress, Gregory stated that he believed he saw the victim move. When Barbara shouted at her, the victim moved her foot. The victim was airlifted to Duke Medical Center, where she was kept alive by machine until the family had the life support removed later that day. Police and Barbara Kinlew later noted that the victim's pocketbook, which she kept on a wardrobe shelf in her bedroom, was on the bed with the victim's change purse on top of the pocketbook. In addition, the wardrobe door was standing open.
Dr. Deborah Radisch, who was accepted at trial as an expert in forensic pathology, performed the autopsy on the victim on 21 April 1994. The autopsy revealed a great deal of external injury to the victim's body, including multiple purple and red bruises with pinpoint areas of bleeding around her face; a torn and bruised lip; blue and purple bruising on her collarbone, left and right shoulders, left ankle, left and right arms, and back; and multiple lacerations and tears in the skin. The victim suffered from a fractured hyoid (neck) bone, apparently as a result of direct trauma, as well as multiple fractured ribs. The victim's brain contained large areas of bruising and swelling, as well as a very large blood clot, or subdural hematoma, which was pressing down on the left side of the brain and affected the victim's ability to breathe. The victim sustained multiple injuries consistent with multiple strikes, blows, or blunt-force inflictions, possibly inflicted by a human fist.
At trial, the State offered the testimony of several witnesses who had seen defendant in the vicinity of the victim's house looking for money in the late evening and early morning of 18 and 19 April 1994. A man fitting *853 defendant's description went to Mary Francis Hughs' front door at approximately 12:05 a.m. on 19 April 1994, asking if a certain person lived on the street. Ms. Hughs responded that no such person lived on the street and slammed the door because defendant began to "look weird" and "inch around." Defendant beat on her door for three minutes until Ms. Hughs' son walked toward her house. Ms. Hughs' son saw defendant walk toward the victim's house, weaving in and out of the neighborhood houses. When Ms. Hughs was shown a picture of defendant, she stated that it looked like the man who had knocked on her door.
James Teague lived approximately three blocks from the victim's house, and he testified that he knew the victim. Teague also knew defendant from performing mechanical work on defendant's car. Defendant went to Teague's house at approximately 2:00 a.m. on 19 April 1994 and asked him for twenty dollars, stating he "needed it bad." When Teague told defendant that he did not have twenty dollars, defendant walked across Teague's property toward Shannon Road in the direction of the victim's home.
Red Springs law enforcement authorities interviewed defendant on three separate occasions, during which time he made three contradictory statements. When police investigated defendant's first two statements, they determined that the statements were not completely truthful. During the third interview, defendant admitted to breaking into the victim's home and robbing her, but did not admit to harming the victim. Defendant described in detail how he broke into the victim's home, using details that the police had not previously disclosed.
During the sentencing proceeding, the State presented evidence that defendant had admitted that, on 22 April 1994, he shot and killed Burns Babson while robbing the convenience store Babson operated twenty-five feet from Babson's home. On 16 December 1994, defendant was convicted of the first-degree murder of Babson and was sentenced to death. On appeal, this Court found no error. See State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1092, 118 S.Ct. 886, 139 L.Ed.2d 873 (1998).
Mrs. Julie Babson, Burns' wife, testified during the sentencing proceeding that, in the case noted above, she had run into the yard after hearing shots fired and had seen defendant leaving the store. Tom Hunter, a detective with the Major Crimes Unit of Brunswick County, testified during the sentencing proceeding that he interviewed defendant and that defendant admitted to shooting Babson while robbing his store. During one of these interviews, defendant made reference to Hales' murder by admitting that he had broken into a house in Red Springs to rob it but that there was an old lady home. Defendant told Detective Hunter that he had to strike the old lady in self-defense and that she was still alive when he left.
By assignments of error, defendant contends the trial court committed reversible error under the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution when it dismissed six prospective jurors after unrecorded, private bench discussions with them. Defendant also contends the private bench discussions violated his statutory right to recordation under N.C.G.S. § 15A-1241(a).
A review of the jury selection process for this capital trial reveals that, after some jurors had been selected, the trial court asked a new group of prospective jurors questions regarding their qualifications to serve on a jury. Throughout the entire process, defendant and his counsel were present in the courtroom. Specifically, the trial court asked whether any prospective juror: (1) lived outside of Robeson County, (2) was under the age of eighteen, (3) had served on a jury within the last two years, or (4) had been convicted of a felony or been declared mentally incompetent without having his or her citizenship status restored by law. The trial court's questions to the prospective jurors were "obviously designed to insure that the new prospective jurors were qualified to serve under N.C.G.S. § 9-3." State v. Payne, 328 N.C. 377, 388, 402 S.E.2d 582, 588 (1991). N.C.G.S. § 9-3 provides as follows:
§ 9-3. Qualifications of prospective jurors.
*854 All persons are qualified to serve as jurors and to be included on the jury list who are citizens of the State and residents of the county, who have not served as jurors during the preceding two years, who are 18 years of age or over, who are physically and mentally competent, who can hear and understand the English language, who have not been convicted of a felony or pleaded guilty or nolo contendere to an indictment charging a felony ..., and who have not been adjudged non compos mentis. Persons not qualified under this section are subject to challenge for cause.
N.C.G.S. § 9-3 (1999).
After each of the first three statutory inquiries with regard to residency, age, and prior jury service, the trial court asked the jurors to indicate, by raising their hands, whether the specified disqualification applied to them. After conducting the fourth inquiry regarding prior felony convictions and mental competency, however, the trial court stated, "Is there anyone who has been through any of those proceedings who would like to speak to me quietly or privately about it up at the bench?" The record reveals that five prospective jurors responded to the trial court's inquiry and, after private discussions at the bench, were excused prior to voir dire by counsel.
It is well settled that the Confrontation Clause of the North Carolina Constitution guarantees the right of every accused to be present at every stage of his trial. N.C. Const. art. I, § 23; State v. Nobles, 350 N.C. 483, 491, 515 S.E.2d 885, 891 (1999); State v. Hartman, 344 N.C. 445, 454, 476 S.E.2d 328, 333 (1996), cert. denied, 520 U.S. 1201, 117 S.Ct. 1562, 137 L.Ed.2d 708 (1997). In a capital case, there is a heightened need for strict adherence to the constitutional mandate that the defendant be personally present at all critical stages of the prosecution. This right, as it pertains to communications of substance between the trial court and a prospective juror, is based on the principle that a defendant should be permitted an opportunity to evaluate and be heard as to whether the proposed judicial action is appropriate under the circumstances. Moreover, defendant's right to be present at every stage of his capital trial is unwaivable. Nobles, 350 N.C. at 491, 515 S.E.2d at 891; State v. Pittman, 332 N.C. 244, 253, 420 S.E.2d 437, 442 (1992). Jury selection is a stage of a capital trial "at which defendant must be present, and it is `error for the trial court to exclude the defendant, counsel, and the court reporter from its private communications with the prospective jurors at the bench prior to excusing them.'" State v. Williams, 339 N.C. 1, 28-29, 452 S.E.2d 245, 262 (1994) (quoting State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990)) (citation omitted) (alteration in original), cert. denied, 516 U.S. 833, 116 S.Ct. 109, 133 L.Ed.2d 61 (1995).
A violation of defendant's right to presence is, however, "subject to harmless error analysis, the burden being upon the State to demonstrate the harmlessness beyond a reasonable doubt." Id. at 29, 452 S.E.2d at 262; accord Hartman, 344 N.C. at 454, 476 S.E.2d at 333. We have held such error harmless where "`the transcript reveals the substance of the conversations, or the substance is adequately reconstructed by the trial judge at trial.'" State v. Adams, 335 N.C. 401, 409, 439 S.E.2d 760, 763 (1994) (quoting State v. Boyd, 332 N.C. 101, 106, 418 S.E.2d 471, 474 (1992)); see also State v. Ali, 329 N.C. 394, 405, 407 S.E.2d 183, 190 (1991). In conducting harmless error review in this context, we have stated:
Whether this kind of error is harmless depends, we conclude, on whether the questioning of prospective jurors in defendant's absence might have resulted in a jury composed differently from one which defendant might have obtained had he been present and participated in the process. We are satisfied here beyond a reasonable doubt that defendant's absence during the preliminary questioning of prospective jurors did not result in the rejection of any juror whom defendant was entitled to have on the panel or the seating of any juror whom defendant was entitled to reject either for cause or peremptorily.
Payne, 328 N.C. at 389, 402 S.E.2d at 589; accord Williams, 339 N.C. at 29-30, 452 S.E.2d at 262.
*855 Under the rationale of our decision in Payne, we conclude that the State has met its burden of establishing that the trial court's violation of defendant's right to presence was harmless beyond a reasonable doubt. With regard to prospective jurors McLain, Pierce, Sweat, and Gonzales, the record reveals that the subject matters of the ex parte discussions at the bench were reconstructed in open court for the record. Prospective juror McLain was excused after the trial court expressed concerns regarding his competency. The trial court also noted for the record that prospective juror McLain requires daily injections. Prospective jurors Pierce and Sweat were excused because each had "served as jurors during the preceding two years." N.C.G.S. § 9-3. Prospective juror Gonzales was excused based on his inability to "hear and understand the English language." Id. The record reveals that prospective juror Gonzales was accompanied by an interpreter when he spoke privately with the trial court.
With respect to prospective juror Kenny Locklear, the record reveals that, like prospective juror McLain, he apparently responded to the trial court's fourth statutory inquiry regarding whether any prospective juror had been convicted of a felony or declared mentally incompetent. Immediately after the trial court dismissed prospective juror McLain based on the fourth statutory inquiry, the clerk of court stated, "Judge, there's another one." Although the trial court did not state for the record the nature of its discussion with Kenny Locklear, the record clearly establishes that the trial court excused him based on his disqualification under N.C.G.S. § 9-3. Indeed, immediately after excusing Kenny Locklear, the trial court stated, "I'm only talking to people right now who have some serious question as to whether or not they're qualified to serve on the jury."
Because prospective jurors McLain, Pierce, Sweat, Gonzales, and Kenny Locklear were not qualified to serve under N.C.G.S. § 9-3, the trial court's private discussions with these prospective jurors did not "result in the rejection of any juror whom defendant was entitled to have on the panel." Payne, 328 N.C. at 389, 402 S.E.2d at 589. Rather, these prospective jurors were dismissed for "manifestly unobjectionable reasons regardless of what defendant might have observed or desired." Id.; accord Adams, 335 N.C. at 409, 439 S.E.2d at 764. Accordingly, the State has met its burden of demonstrating that the trial court's ex parte communications with prospective jurors were harmless beyond a reasonable doubt.
With respect to prospective juror Wayne Locklear, the record does not support defendant's assertion that the trial court improperly excused him after a private communication at the bench. "It is defendant's burden on appeal to demonstrate in the first place that error occurred." Williams, 339 N.C. at 30, 452 S.E.2d at 263. Moreover, "[i]t is not enough for defendant to assert that there may have been other impermissible ex parte communications. The record must reveal that such communications in fact occurred." Adams, 335 N.C. at 410, 439 S.E.2d at 764. "`[W]hatever incompleteness may exist in the record precludes defendant from showing that error occurred as to any [prospective] juror other than those the trial judge excused or deferred on the record.'" Nobles, 350 N.C. at 494, 515 S.E.2d at 892 (quoting Adams, 335 N.C. at 410, 439 S.E.2d at 764) (second alteration in original). Defendant has not met his burden in this case because he has not demonstrated, and the record does not otherwise reveal, that the alleged ex parte discussion with prospective juror Wayne Locklear occurred.
Defendant further points out that N.C.G.S. § 15A-1241 requires complete recordation of jury selection in capital proceedings. N.C.G.S. § 15A-1241 (1999). Thus, the trial court also erred in failing to record its ex parte communications with prospective jurors under section 15A-1241. See Nobles, 350 N.C. at 494, 515 S.E.2d at 892. We conclude, however, that this failure was harmless for the reasons stated above. Accordingly, these assignments of error are overruled.
By assignments of error, defendant contends the trial court erred by failing to call jurors randomly for voir dire and by proceeding in the absence of four prospective *856 jurors who failed to appear for jury service. Defendant concedes the trial court randomly placed prospective jurors into separate panels prior to voir dire. However, defendant contends the panels were organized in such a manner that jurors were not called for individual voir dire in a random manner. Defendant argues the trial court's actions violated the randomness requirement of N.C.G.S. § 15A-1214(a), the purpose of which is to protect a defendant's state and federal constitutional rights to a fair and impartial jury.
Constitutional questions that are not raised and passed upon in the trial court will not ordinarily be considered on appeal. State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 436-37 (2000), cert. denied, ___ U.S. ___, 121 S.Ct. 890, 148 L.Ed.2d 797 (2001); accord Nobles, 350 N.C. at 495, 515 S.E.2d at 893. In the present case, defendant contends the trial court violated his constitutional rights to a fair and impartial jury. The record reveals, however, that defendant never objected to either the selection or the organization of the jury panels. Therefore, defendant has waived review of the constitutionality of the trial court's conduct in this regard. See Braxton, 352 N.C. at 173, 531 S.E.2d at 436-37.
With regard to the alleged statutory violation, N.C.G.S. § 15A-1214 provides in pertinent part:
(a) The clerk, under the supervision of the presiding judge, must call jurors from the panel by a system of random selection which precludes advance knowledge of the identity of the next juror to be called. When a juror is called and he is assigned to the jury box, he retains the seat assigned until excused.
N.C.G.S. § 15A-1214(a) (1999). A defendant's challenge to the jury must satisfy N.C.G.S. § 15A-1211, which provides that a challenge: (1) "[m]ay be made only on the ground that the jurors were not selected or drawn according to law," (2) "[m]ust be in writing," (3) "[m]ust specify the facts constituting the ground of challenge," and (4) "[m]ust be made and decided before any juror is examined." N.C.G.S. § 15A-1211(c) (1999); see also State v. Atkins, 349 N.C. 62, 102-03, 505 S.E.2d 97, 122 (1998), cert. denied, 526 U.S. 1147, 119 S.Ct. 2025, 143 L.Ed.2d 1036 (1999); State v. Workman, 344 N.C. 482, 498-99, 476 S.E.2d 301, 310 (1996).
In the present case, defendant failed to comply with N.C.G.S. § 15A-1211(c). As in Braxton, defendant here "never challenged the jury panel selection process and never informed the trial court of any objection to the allegedly improper handling of the jury venires." Braxton, 352 N.C. at 177, 531 S.E.2d at 439. Because defendant "failed to follow the procedures clearly set out for jury panel challenges and further failed, in any manner, to alert the trial court to the alleged improprieties," Atkins, 349 N.C. at 103, 505 S.E.2d at 122, we conclude that defendant failed to preserve this issue for appellate review. Accordingly, these assignments of error are overruled.
By assignments of error, defendant contends the trial court erred by denying his motion for expert services and his motion to suppress his confession. Defendant argues that he needed the services of an optometrist to demonstrate that he could not read his rights waiver form at the time he signed it because he was not wearing glasses. Defendant also contends his confession was involuntary because of the "coercive atmosphere" surrounding his statements, his below-average intellect, and his impaired judgment and impulse control, and because he engaged in a "days-long cocaine binge" prior to his arrest. Defendant argues the trial court's errors violated his constitutional and statutory rights and entitle him to a new trial. We disagree.
In order to obtain state-funded expert assistance, a defendant must make "`a particularized showing that: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it would materially assist him in the preparation of his case.'" State v. McNeill, 349 N.C. 634, 650, 509 S.E.2d 415, 424 (1998) (quoting State v. Parks, 331 N.C. 649, 656, 417 S.E.2d 467, 471 (1992)), cert. denied, 528 U.S. 838, 120 S.Ct. 102, 145 L.Ed.2d 87 (1999); see also N.C.G.S. § 7A-450(b) (1999). Moreover, "`[t]he trial court has discretion to determine whether a defendant has made an adequate showing of particularized need.'" *857 State v. Anderson, 350 N.C. 152, 161, 513 S.E.2d 296, 302 (quoting State v. Page, 346 N.C. 689, 697, 488 S.E.2d 225, 230 (1997), cert. denied, 522 U.S. 1056, 118 S.Ct. 710, 139 L.Ed.2d 651 (1998)), cert. denied, 528 U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999).
In the present case, the record reveals that, after hearing evidence from the State and defendant, the trial court entered an order containing findings of fact and concluded that defendant's motion for the expert services of an optometrist should be denied. In its order, the trial court found in pertinent part:
That at the time of the Miranda warnings initially in the Sampson County jail, or an office adjacent thereto, regardless of the vision of the defendant, the defendant indicated verbally to the officer that he understood his rights. And on April 23rd, 1994, he wrote the answers to each of the questions and entered his initials thereon in the correct place without assistance[.]
In addition to providing the answers and his initials in the proper places, the defendant signed the forms in the proper place, and along the lines that were provided for the presentation of his signature[.]
After a thorough review of the record, we hold that the trial court's findings in this regard are supported by the evidence. Indeed, the record reveals that each time Detective Edward Ben Smith questioned defendant about the victim's murder, he orally advised defendant of his Miranda rights and showed him a written rights waiver form. On each occasion, defendant agreed to talk with Smith and initialed a rights waiver form. Moreover, defendant never complained to the authorities that he was unable to read the rights waiver forms.
Based on this record, we do not believe defendant has demonstrated that the services of an optometrist would have "`materially assist[ed] him in the preparation of his case.'" McNeill, 349 N.C. at 650, 509 S.E.2d at 424 (quoting Parks, 331 N.C. at 656, 417 S.E.2d at 471). Because Smith read defendant his Miranda rights, defendant's ability to read the waiver forms himself is irrelevant. Moreover, we note that defendant signed the rights waiver forms in 1994 and did not request the services of an optometrist until 1999. Therefore, we conclude the trial court did not abuse its discretion in denying defendant's motion for the expert assistance of an optometrist.
We likewise conclude the trial court did not err by denying defendant's motion to suppress his confession. At the outset, we note that "the United States Supreme Court has declined to create a constitutional requirement that defendants must confess their crimes `only when totally rational and properly motivated,' in the absence of any official coercion by the State." State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999) (quoting Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 521, 93 L.Ed.2d 473, 484 (1986)), cert. denied, 530 U.S. 1245, 147 L.Ed.2d 965 (2000). Moreover, we have consistently held "that `police coercion is a necessary predicate to a determination that a waiver or statement was not given voluntarily,' and without police coercion, the question of voluntariness does not arise within the meaning of the Due Process Clause of the Fourteenth Amendment." State v. Morganherring, 350 N.C. 701, 722, 517 S.E.2d 622, 635 (1999) (quoting State v. McKoy, 323 N.C. 1, 21-22, 372 S.E.2d 12, 23 (1988), sentence vacated on other grounds, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)), cert. denied, 529 U.S. 1024, 120 S.Ct. 1432, 146 L.Ed.2d 321 (2000); accord Cheek, 351 N.C. at 63, 520 S.E.2d at 554.
In the present case, defendant has not demonstrated that he was impaired or intoxicated at the time he made the challenged statements. Moreover, the record supports the trial court's findings of fact and conclusions of law that defendant's statements were made in the absence of police coercion and were voluntary.
These assignments of error are overruled.
By assignments of error, defendant contends the trial court erred by instructing the jury, in accordance with the pattern jury instruction, that defendant had admitted facts related to the charge of first-degree murder. Defendant further argues the trial court erred in failing to intervene ex mero *858 motu to prevent improper argument by the prosecutor during closing arguments. We disagree.
During his charge to the jury, the trial court instructed the jury in accordance with North Carolina Pattern Instructions 104.60 and 104.70, respectively, as follows:
There is evidence which tends to show that the defendant has admitted a fact or facts relating to the crimes charged in these cases. If you find that the defendant has made those admissions, then you should consider all of the circumstances under which they were made in determining whether they were truthful admissions and the weight that you will give to them.
There is evidence which tends to show that the defendant confessed that he committed the crimes of burglary and larceny in this case. If you find that the defendant made those confessions, then you should consider all of the circumstances under which it [sic] was made in determining whether it was a truthful confession and the weight that you will give to it.
See N.C.P.I.Crim. 104.60, 104.70 (1970).
The record reveals that the trial court's admission instruction was based, in part, on testimony from Smith. When Smith questioned defendant on 23 April 1994, he described the victim to defendant as "a frail 80 year old female." In response, defendant stated: "A man meant to kill the lady because all you would have had to do was to push her down." During the charge conference, the State characterized defendant's response to Smith's description of the victim as "admissions with regard to the more serious charge of homicide" and requested that the trial court submit to the jury the pattern instruction on admissions.
This Court has previously found no error in the submission of an identical admission instruction where, as here, the alleged admission was introduced into evidence through the testimony of an investigating officer. See State v. McKoy, 331 N.C. 731, 733-34, 417 S.E.2d 244, 246 (1992). In McKoy, we noted that the admissions instruction "made it clear that even though there was evidence tending to show that the defendant had made an admission, it was solely for the jury to determine whether the defendant in fact had made any admission." Id. at 734, 417 S.E.2d at 246-47.
Nonetheless, defendant contends North Carolina law is "clear" that the admissions instruction, N.C.P.I.Crim. 104.60, should not be submitted to the jury unless defendant admits in open court to the conduct alluded to in the instruction. Defendant cites this Court's decisions in State v. Shuford, 337 N.C. 641, 447 S.E.2d 742 (1994), and State v. McCoy, 303 N.C. 1, 277 S.E.2d 515 (1981), in support of his argument.
Contrary to defendant's argument, however, our holdings in McCoy and Shuford, do not support his position. Rather, in both Shuford and McCoy, this Court held that the phrase "`or it is admitted'" should not be included in the pattern instruction on murder "`where the defendant does not in open court admit to an intentional [killing].'" Shuford, 337 N.C. at 646-47, 447 S.E.2d at 745 (quoting McCoy, 303 N.C. at 29, 277 S.E.2d at 535). The pattern instruction on murder that defendant references provides in pertinent part:
If the State proves beyond a reasonable doubt, (or it is admitted) that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the victim's death, you may infer first, that the killing was unlawful, and second, that it was done with malice, but you are not compelled to do so.
N.C.P.I.Crim. 206.10 (1998).
In the present case, the trial court did not use the phrase "or it is admitted" when the pattern instruction on murder was given. Accordingly, our holdings in Shuford and McCoy are not implicated in this case. Because the admissions instruction, N.C.P.I. Crim. 104.60, was supported by the evidence in this case, the trial court did not err in submitting the instruction to the jury.
We turn now to defendant's argument that the trial court failed to intervene ex mero motu to prevent improper closing argument by the prosecutor. When, as here, *859 a defendant fails to object during closing argument, the standard of review is whether the argument was "so grossly improper that the trial court erred in failing to intervene ex mero motu." State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 120 S.Ct. 95, 145 L.Ed.2d 80 (1999). "`[O]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.'" State v. Davis, 353 N.C. 1, 31, 539 S.E.2d 243, 263 (2000) (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 117 S.Ct. 229, 136 L.Ed.2d 160 (1996)).
"`Trial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom.'" State v. Hyde, 352 N.C. 37, 56, 530 S.E.2d 281, 294 (2000) (quoting State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1013 (1999)), cert. denied, ___ U.S. ___, 121 S.Ct. 862, 148 L.Ed.2d 775 (2001). This Court will not disturb the trial court's exercise of discretion over the latitude of counsel's argument absent any gross impropriety in the argument that would likely influence the jury's verdict. See State v. McNeil, 350 N.C. 657, 685, 518 S.E.2d 486, 503 (1999), cert. denied, 529 U.S. 1024, 120 S.Ct. 1432, 146 L.Ed.2d 321 (2000). "We further emphasize that `statements contained in closing arguments to the jury are not to be placed in isolation or taken out of context on appeal. Instead, on appeal we must give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred.'" Guevara, 349 N.C. at 257, 506 S.E.2d at 721 (quoting State v. Green, 336 N.C. 142, 188, 443 S.E.2d 14, 41, cert. denied, 513 U.S. 1046, 115 S.Ct. 642, 130 L.Ed.2d 547 (1994)).
Defendant first argues that the prosecutor improperly characterized statements made by defendant to Smith as an admission of intent to kill the victim. The prosecutor stated in pertinent part:
And then [defendant told Detective Smith], "You know, whoever did that meant to kill that woman because all you have to do is push her down to get her money." And that's important. That statement is very important. That whoever did it meant to kill Lena Hales. And why is that important? Because one of the things the Judge will talk to you about when he explains the law to you is that the State has to show, in order for you to find someone guilty of first-degree murder under the theory of premeditation and deliberation, the State has to show that the individual intended to kill.
When you look back over all the evidence, look back at the things that [defendant] said, and the things that the evidence shows you, I would argue to you, ladies and gentlemen, that amounts tothat amounts to an admission by the defendant of what his intention was on the morning of April the 19th, that whoever did this intended to kill [the victim] because, in his words, all you had to do was push her down.
(Emphasis added.)
At the outset, we note that the jury did not convict defendant of first-degree murder based on a theory of premeditation and deliberation. Rather, the jury convicted defendant of first-degree murder based on the felony murder rule. Because intent to kill is not an element of felony murder, see State v. York, 347 N.C. 79, 97, 489 S.E.2d 380, 390 (1997), the prosecutor's argument that defendant intended to kill the victim did not affect the jury's verdict, see McNeil, 350 N.C. at 685, 518 S.E.2d at 503. Moreover, the prosecutor's argument in this regard was a permissible inference from defendant's statements to Smith. Assuming arguendo the prosecutor's argument was improper, it was not so "grossly improper" as to require the trial court to intervene ex mero motu. See State v. Gladden, 315 N.C. 398, 424, 340 S.E.2d 673, 689 (prosecutor's argument, though not supported by the evidence, was not so grossly improper as to warrant ex mero motu intervention by the trial court), *860 cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 166 (1986).
Defendant next argues the prosecutor improperly misrepresented in his final summation to the jury that defendant confessed to the murder. The prosecutor concluded as follows:
He should be found guilty on all three counts. That's what the evidence says and that's what the law says, and that's what [defendant] told you when he talked to [Detective] Ben Smith on April the 26[th], 1994, when he confessed to the murder and admitted to the murder of Lena Hales. The evidence, both direct and circumstantial, supports that.
As previously noted, closing remarks should not be "`placed in isolation,'" but must be examined in "`the context in which the remarks were made and the overall factual circumstances to which they referred.'" Guevara, 349 N.C. at 257, 506 S.E.2d at 721 (quoting Green, 336 N.C. at 188, 443 S.E.2d at 41). Our review of the prosecutor's entire closing argument reveals that the prosecutor made it clear to the jury that defendant had not actually confessed to murder. Rather, the prosecutor merely suggested that the jury should infer from defendant's statements to Smith that defendant committed the murder. During other portions of his argument to the jury, the prosecutor argued as follows:
For the third time the defendant waives those rights and is willing to answer questions. The result is that the defendant begins to tell the truth about what really happened. But he doesn't tell the whole truth because he stops short. Because if he tells the whole truth, he then confesses to a murder.
(Emphasis added.)
At another time, the prosecutor argued as follows:
But yet he's left part of the story untold, and that's the part that hurts the most. The part where he really did something.
Now, don't get me wrong, burglary is a very serious offense. First-degree burglary is the most serious property crime there is.... But there is nothing, nothing more serious than killing another person in a manner that is cruel, a manner that was brutal, and in a manner that showed a callous disregard for a person's life or their rights or their safety.
There's nothing more serious than first-degree murder.... [N]o one has the right to unlawfully take the life of another person and that's what [defendant] did. He doesn't want to tell you that, and he didn't want to tell Smith that when he was interviewed because I would argue to you, ladies and gentlemen, he knows what would happen.
So he tells part of the story and leaves the worse part untold. But the evidence tells the remaining part of the story. Why? Because no one saw Lena Hales until Barbara Kinlew and Greg Kinlew crawled in that window April the 20th. Mrs. Hales was physically unable to call for help because the defendant had left her in such a condition that she couldn't do anything. She was barely alive when they found her. She had been sitting there in that chair for more than 24 hours. She didn't have any way of helping herself. She couldn't get to the phone.
(Emphasis added.)
The record further reveals that defendant did confess to Smith that he kicked in a window at the victim's residence, entered the residence, then grabbed the victim by the arm and demanded money from her. Defendant also told Smith that he left the victim's home without harming her after she gave him all the money from her pocketbook.
Considered in the context of the evidence in the record and the prosecutor's entire argument to the jury, the challenged statements were permissible inferences based on the evidence and were not grossly improper. Accordingly, the trial court did not err in failing to intervene ex mero motu.
Defendant next argues the prosecutor improperly argued that defendant had been untruthful in statements he made to Smith. The prosecutor argues as follows:
What does Smith do? "Daniel, you know what you told me the other day? Well, I went and talked to these people and what *861 you're saying and what they're saying just doesn't match up." Now, you read between the lines, ladies and gentlemen, of what he's telling them and what they're finding out don't match up. Somebody is not telling the truth about what they did and what went on.
The record reveals that in his first two statements to Smith, defendant gave various details about his activities on the night in question, but defendant did not admit to breaking into the victim's home. In his third statement, however, defendant confessed to breaking into the victim's home and taking money from her. In addition to this inconsistency, on one occasion defendant told Smith that on the night in question he had never been at the Pecan Orchardthe area where the victim's residence was located. However, in the same statement, defendant told Smith that he had visited James Teague on the night in question, an individual whose residence was located in the Pecan Orchard area.
Based on the inconsistencies in defendant's statement, the prosecutor's challenge to defendant's truthfulness constitutes a reasonable inference from the evidence. Assuming arguendo that the prosecutor's argument was improper, we conclude the challenged argument was not so "grossly improper" as to require the trial court to intervene ex mero motu.
Finally, defendant argues the prosecutor's assertion, that defendant went into hiding for four days after 19 April 1994, was not based on the evidence. The prosecutor argued in pertinent part as follows:
The defendant wasn't located until two daysexcuse me, let me get my math figured outfour days, four days had passed from the time that this occurred until he was located in Sampson County in jail. What he's done between then and when they find him? No one knows. Is he cleaned up? Has he washed his hands? We don't know that.... [Defendant], in essence, went into hiding for four days. No one could find him in Red Springs. No one had seen him in Red Springs. Then he, low [sic] and behold, ends up in jail in Sampson County is where they locate him.
The record reveals that on 20 April 1994, Smith began investigating the murder of the victim. After questioning individuals who had seen defendant late at night, in the early morning hours of 19 April 1994, Smith began a search for defendant. Smith drove by defendant's residence and did not observe any vehicles. He then searched for defendant around Red Springs, North Carolina, but did not locate him. Smith questioned several individuals concerning defendant's whereabouts, but was unable to locate defendant. On 23 April 1994, Smith located defendant in the Sampson County jail. Based on this record evidence, the prosecutor's argument that defendant, "in essence, went into hiding for four days" constitutes a permissible inference based on the evidence. (Emphasis added.) Assuming arguendo that the prosecutor's argument was improper, we conclude it was not so grossly improper as to warrant ex mero motu action by the trial court.
These assignments of error are overruled.
By assignments of error, defendant contends the trial court committed constitutional error by allowing the jury in the sentencing proceeding to hear evidence that defendant received a death sentence for the murder of Babson. We disagree.
During the sentencing proceeding, the prosecutor introduced evidence of a different murder of which defendant had been convicted and for which he had received a death sentence, in order to support the submission of the (e)(11) aggravating circumstance. The (e)(11) aggravating circumstance provides that "[t]he murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons." N.C.G.S. § 15A-2000(e)(11) (1999).
Submission of this aggravating circumstance is proper when there is evidence that the victim's murder and other violent crimes were part of a pattern of intentional acts establishing that there existed in defendant's mind a plan, scheme, or design *862 involving both the murder of the victim and other crimes of violence.
State v. Gregory, 340 N.C. 365, 414, 459 S.E.2d 638, 666 (1995), cert. denied, 517 U.S. 1108, 116 S.Ct. 1327, 134 L.Ed.2d 478 (1996); see also State v. Cummings, 332 N.C. 487, 508, 422 S.E.2d 692, 704 (1992).
In the present case, the evidence of defendant's conviction for Babson's murder was clearly relevant to support submission of the (e)(11) aggravating circumstance. The murder of Babson occurred two days after the murder of the victim in this case. In both instances, defendant robbed and killed elderly victims to obtain money to purchase cocaine. Therefore, evidence regarding defendant's murder of Babson was properly admitted to demonstrate that there existed in the mind of defendant a plan, scheme, or design involving the murders of both Hales and Babson. See Cummings, 346 N.C. at 329, 488 S.E.2d at 572-73; see also State v. Smith, 347 N.C. 453, 496 S.E.2d 357 (evidence of a murder that defendant committed less than one month before committing the crimes at issue in the case was properly admitted during the sentencing proceeding to support the (e)(11) aggravating circumstance that the murder was part of a course of conduct including other crimes of violence against other persons), cert. denied, 525 U.S. 845, 119 S.Ct. 113, 142 L.Ed.2d 91 (1998).
We likewise reject defendant's contention that the challenged evidence prejudiced him. Defendant relies on our decision in State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975), to support his argument. In Britt, we held that it was prejudicial error for the prosecutor to elicit on cross-examination of defendant the fact that defendant had been previously convicted of, and had received a death sentence for, the same murder for which he was being retried. Id. at 713, 220 S.E.2d at 292. We concluded that introducing such information during the guilt phase of the trial was "highly improper and incurably prejudicial." Id. The case at hand is clearly distinguishable from Britt. At the outset, we note that, unlike the defendant in Britt, defendant here was not retried for the same murder. In addition, the prosecution introduced evidence of defendant's conviction for Babson's murder only in the sentencing proceeding. The jury had already determined that defendant was guilty of Hales' murder before any evidence of Babson's murder was introduced. Therefore, unlike the defendant in Britt, defendant was not prejudiced in the present case. See also Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) (no due process violation in allowing into evidence, at the sentencing hearing for defendant of one murder, a judgment showing that he had received a death sentence in another murder, which was offered solely to support the existence of an aggravating circumstance). These assignments of error are overruled.
By an assignment of error, defendant contends that the trial court violated defendant's statutory and constitutional rights by submitting the (e)(6) aggravating circumstance. We disagree.
The (e)(6) aggravating circumstance states that "[t]he capital felony was committed for pecuniary gain." N.C.G.S. § 15A-2000(e)(6) (1999). We have consistently upheld the submission of the pecuniary gain aggravating circumstance for purposes of sentencing a defendant convicted of felony murder where robbery, larceny, or burglary served as the underlying felony. See, e.g., State v. Chandler, 342 N.C. 742, 755, 467 S.E.2d 636, 644, cert. denied, 519 U.S. 875, 117 S.Ct. 196, 136 L.Ed.2d 133 (1996); State v. Taylor, 304 N.C. 249, 288-89, 283 S.E.2d 761, 785 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); State v. Oliver, 302 N.C. 28, 62, 274 S.E.2d 183, 204 (1981).
In Oliver, we stated that
robbery constitutes an essential element of felony murder.... The circumstance that the capital felony was committed for pecuniary gain, however, is not such an essential element.... While [defendant's] motive does not constitute an element of the offense, it is appropriate for it to be considered on the question of his sentence.
Oliver, 302 N.C. at 62, 274 S.E.2d at 204. In Chandler, we held that this same reasoning applies to felony murder where, as here, burglary serves as the underlying felony, in *863 that "[b]urglary is an essential element of felony murder[,][but][p]ecuniary gain is not such an essential element." Chandler, 342 N.C. at 756, 467 S.E.2d at 644. We find Oliver and its progeny to be dispositive of this issue, and defendant has given us no reason to depart from our prior decisions. Therefore, this assignment of error is overruled.
By an assignment of error, defendant contends the trial court violated his statutory and constitutional rights by failing to submit requested mitigating circumstances. We disagree.
Defendant filed a written request with the trial court for both statutory and nonstatutory mitigating circumstances. The trial court agreed to submit defendant's requested mitigating circumstances, with the exception of four:
3. The defendant cooperated with Red Springs Law Enforcement officers regarding his burglary of the home of Lena Hales prior to arrest.
4. The defendant's culpability for the burglary of the home of Lena Hales in Red Springs could not have been attributed to this defendant without his confession which he provided to law enforcement officers freely and voluntarily.
....
17. The defendant voluntarily confessed to Brunswick County Law Enforcement officers with respect to the murder of Burns Babson.
18. The defendant cooperated with Brunswick County Law Enforcement officers in the investigation of the murder of Burns Babson.
We have consistently held that a defendant who has repudiated his incriminatory statement is not entitled to the submission of mitigating circumstances that he confessed. State v. Robbins, 319 N.C. 465, 526, 356 S.E.2d 279, 315, cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987); State v. Hayes, 314 N.C. 460, 474, 334 S.E.2d 741, 749 (1985). "[W]hen a defendant moves to suppress a confession, he repudiates it and is not entitled to use evidence of the confession to prove this mitigating circumstance." State v. Smith, 321 N.C. 290, 292, 362 S.E.2d 159, 160 (1987).
In this case, defendant gave false alibis in his first two interviews with police from Red Springs with regard to the murder of the victim in this case. During the third interview, defendant confessed only to breaking and entering the victim's residence during the night, but did not admit to hurting her. During a series of interviews with Brunswick County law enforcement officers about Babson's murder, defendant first stated that another man robbed Babson. Thereafter, defendant admitted to killing Babson and attacking Hales in Robeson County. Defendant later filed a pretrial motion in which he moved to suppress all of his statements to law enforcement officers from Red Springs, Sampson and Brunswick counties, claiming the statements were "made involuntarily." During pretrial motion hearings, defendant, under oath, denied being in Babson's store and denied breaking into Hales' home. Because defendant repudiated his incriminating statements, the trial court did not err by denying his motion to submit the requested mitigating circumstances. This assignment of error is overruled.
By assignments of error, defendant contends the short-form murder indictment violated his state and federal constitutional rights, as it failed to allege all elements of first-degree murder and failed to allege aggravating circumstances upon which the State intended to rely to support imposition of the death penalty. In support of his position, defendant cites the United State Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).
We have repeatedly addressed and rejected defendant's argument. See Braxton, 352 N.C. 158, 531 S.E.2d 428. In Braxton, this Court examined the validity of short-form indictments in light of the Supreme Court's decisions in Jones, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311, and Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, *864 and concluded that nothing in either case altered prior case law on these matters. Braxton, 352 N.C. at 175, 531 S.E.2d at 437-38. Defendant has presented no compelling basis for this Court to revisit the issue in the present case. Accordingly, these assignments of error are overruled.
PRESERVATION ISSUES
Defendant raises nine additional issues that he concedes this Court has previously decided contrary to his position: (1) the trial court violated defendant's statutory and constitutional rights by admitting into evidence illegally obtained statements; (2) the trial court violated defendant's statutory and constitutional rights by excusing fourteen prospective jurors for cause on the ground that they would be unable to return a sentence of death; (3) the trial court committed reversible constitutional error by failing to instruct jurors that they "must" rather than "may" consider mitigating circumstances when deciding Issues Three and Four during their jury deliberations; (4) the trial court committed reversible constitutional error by placing the burden of proof on defendant to satisfy the jury with respect to mitigating circumstances and refusing to instruct jurors that proof by the preponderance of the evidence is proof which indicates that it is more likely than not that a mitigating circumstance exists; (5) the trial court committed reversible constitutional error by erroneously instructing jurors that they could find a mitigating circumstance exists and simultaneously find that the mitigating circumstance has no mitigating value; (6) the trial court committed plain error by erroneously instructing the jury that unanimity is required to answer "no" to Issues One, Three, and Four on the issues and recommendation sentencing form; (7) the trial court committed plain error by failing to instruct the jury that unanimity is required to answer "yes" to Issue Four on the issues and recommendation sentencing form; (8) the trial court committed reversible constitutional error by instructing the jury on the (e)(9) aggravating circumstance; and (9) the trial court committed reversible constitutional error by instructing the jury on the (e)(11) aggravating circumstance. Defendant makes these arguments in order to allow this Court to reexamine its prior holdings and to preserve these issues for any possible further judicial review. We have thoroughly considered defendant's arguments on these issues and find no compelling reason to depart from our prior holdings. Therefore, these assignments of error are overruled.
PROPORTIONALITY REVIEW
Having concluded that defendant's trial and capital sentencing proceeding were free from prejudicial error, we are required to review and determine: (1) whether the evidence supports the jury's finding of any aggravating circumstances upon which the sentence of death was based; (2) whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. N.C.G.S. § 15A-2000(d)(2).
In the present case, defendant was convicted of first-degree murder under the felony murder rule. Following a capital sentencing proceeding, the jury found three aggravating circumstances: (1) the murder was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); (2) the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9); and (3) the murder was part of a course of conduct in which defendant engaged and which included the commission by defendant of other crimes of violence against other persons, N.C.G.S. § 15A-2000(e)(11).
Three statutory mitigating circumstances were submitted for the jury's consideration: (1) the murder was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2); (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. § 15A-2000(f)(6); and (3) the catchall mitigating circumstance that there existed any other circumstance arising from the evidence that any juror deems to have mitigating value, N.C.G.S. § 15A-2000(f)(9). Of these statutory *865 mitigating circumstances, the jury found only (f)(2) to exist. Of the twelve nonstatutory mitigating circumstances submitted by the trial court, the jury found none to exist or have mitigating value.
After thoroughly examining the record, transcript, briefs, and oral arguments in this case, we conclude that the evidence fully supports the aggravating circumstances found by the jury. Further, we find no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. We turn then to our final statutory duty of proportionality review.
The purpose of proportionality review is to "eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury." State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 935 (1988). Proportionality review also acts "[a]s a check against the capricious or random imposition of the death penalty." State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980). In conducting proportionality review, we compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 114 S.Ct. 2784, 129 L.Ed.2d 895 (1994).
We have found the death sentence disproportionate in seven cases: State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 118 S.Ct. 248, 139 L.Ed.2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).
We conclude that this case is not substantially similar to any case in which this Court has found the death penalty disproportionate. Here, defendant badly beat a defenseless, elderly lady and left her to die. Moreover, the conduct of defendant that led to the victim's death was carried out in the victim's own home. "A murder in the home `shocks the conscience, not only because a life was senselessly taken, but because it was taken [at] ... an especially private place, one [where] ... a person has a right to feel secure.'" State v. Adams, 347 N.C. 48, 77, 490 S.E.2d 220, 236 (1997) (quoting State v. Brown, 320 N.C. 179, 231, 358 S.E.2d 1, 34, cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987)) (alterations in original), cert. denied, 522 U.S. 1096, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998).
We also compare this case with the cases in which this Court has found the death penalty to be proportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although we review all cases in the pool of "similar cases" when engaging in our statutorily mandated duty of proportionality review, "we will not undertake to discuss or cite all of those cases each time we carry out that duty." Id.; accord State v. Gregory, 348 N.C. 203, 213, 499 S.E.2d 753, 760, cert. denied, 525 U.S. 952, 119 S.Ct. 382, 142 L.Ed.2d 315 (1998).
There are four statutory aggravating circumstances which, standing alone, this Court has held sufficient to support a sentence of death. State v. Warren, 347 N.C. 309, 328, 492 S.E.2d 609, 619 (1997), cert. denied, 523 U.S. 1109, 118 S.Ct. 1681, 140 L.Ed.2d 818 (1998). The N.C.G.S. § 15A-2000(e)(9) and (e)(11) statutory aggravating circumstances, both of which the jury found here, are among those four. See State v. Bacon, 337 N.C. 66, 110 n. 8, 446 S.E.2d 542, 566 n. 8 (1994), cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d 1083 (1995). Thus, we conclude that the present case is more similar to cases in which we have found the sentence of death proportionate than to those in which we have found it disproportionate.
Whether a sentence of death is "disproportionate in a particular case ultimately rest[s] upon the `experienced judgments' of the members of this Court." Green, 336 N.C. at 198, 443 S.E.2d at 47. Therefore, based upon the characteristics of this defendant *866 and the crime he committed, we are convinced that the sentence of death recommended by the jury and ordered by the trial court in the instant case is not disproportionate.
Accordingly, we conclude that defendant received a fair trial, free from prejudicial error. The judgments and sentences entered by the trial court, including the sentence of death for first-degree murder, must therefore be left undisturbed.
NO ERROR.
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796 F.Supp. 654 (1992)
Clarence E. NORMAN, Jr., Angelo Del Toro, David F. Gantt, the New York State Assembly and Saul Weprin, Plaintiffs,
v.
Mario M. CUOMO, Stan Lundine, the Fund for Accurate and Informed Representation, Inc., Juan De Sanctis, Augustine C. Chen, Onel Afari, Aurelia Greene, and James F. Brennan, Defendants.
No. 92-CV-720.
United States District Court, N.D. New York.
June 15, 1992.
*655 Graubard Mollen Horowitz Pomeranz & Shapiro, New York City (C. Daniel Chill, of counsel), for plaintiffs.
Baker & Hostetler, Washington, D.C. (E. Mark Braden, Frederick W. Chockley, Stephen B. Nix, of counsel).
Baden Kramer Huffman Brodsky & Go, New York City (William M. Brodsky, of counsel), for defendants Fund for Accurate and Informed Representation, Juan De Sanctis, Augustine C. Chen and Onel Alfaro.
Robert Abrams, Atty. Gen. State of N.Y., New York City (Joel Graber, Asst. Atty. Gen., of counsel), for defendants.
Wolfson & Carroll, New York City (John W. Carroll, of counsel), for defendant James Brennan.
Before CARDAMORE, Circuit Judge, McCURN, Chief District Judge and MUNSON, Senior District Judge.
MEMORANDUM AND ORDER OF THREE-JUDGE COURT
PER CURIAM.
Before the court is yet another lawsuit prompted by New York State's recent legislation setting forth new state Assembly and Senate district boundaries. See 1992 N.Y. Laws ch. 76-78. The controversial legislation has thus far supplied the impetus for at least five separate lawsuits, three of which (including the instant suit) have been assigned to this three-judge panel. See Fund for Accurate and Informed Representation, Inc. v. Weprin, No. 92-CV-283 (N.D.N.Y.) (filed Mar. 3, 1992) (the *656 "F.A.I.R." action) (challenge limited to the apportionment of Assembly seats only); Scaringe v. Marino, 92-CV-593 (N.D.N.Y.) (filed May 7, 1992) (Senate and Assembly seats); Wolpoff v. Cuomo, No. 14757-1992 (N.Y.Sup.Ct., Bronx Cty.) (filed May 8, 1992) (Senate apportionment);[1]Dixon v. Cuomo, No. 13266/92 (N.Y.Sup.Ct., N.Y. Cty.) (filed May 14, 1992) (Senate apportionment). The partisan battle comes before the court today on plaintiffs' motion to remand this case to New York State Supreme Court and defendants' motion to consolidate this action with F.A.I.R. For the reasons discussed herein, plaintiffs' motion to remand is denied and defendants' motion to consolidate is granted. In addition, the court sua sponte dismisses all of plaintiffs' claims arising under state law.
I.
Plaintiffs commenced this declaratory judgment action in New York State Supreme Court, Kings County, on April 22, 1992, seeking a declaration that the state's newly-enacted Assembly reapportionment plan (hereinafter the "plan") comports with the Fourteenth and Fifteenth Amendments to the United States Constitution, the federal Voting Rights Act, and the New York State Constitution. Defendants subsequently removed the case to the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. §§ 1441, 1443, 1446 (1988 & West Supp. 1992). After removing the case, defendants moved to transfer venue to this district, where this three-judge court had already been empaneled in a suit involving nearly identical issues between many of the same parties. See Fund for Accurate and Informed Representation, Inc. v. Weprin, No. 92-CV-283. Perhaps coincidentally, on the same day that defendants moved to transfer, plaintiffs filed a motion to remand the case to state supreme court pursuant to 28 U.S.C. § 1447(c) (1988). On March 28, 1992, Judge Nickerson of the Eastern District of New York reserved decision on that remand motion and, over plaintiffs' objection, granted defendants' motion to transfer the case to this district.[2]
Significantly, resolution of the issues presented turns in large part upon the interplay between this action and the F.A.I.R. action. As will become increasingly apparent, F.A.I.R. and the present action, with one significant exception (discussed infra), are mirror images of each other. The plaintiffs in F.A.I.R. allege that the Assembly is not presently apportioned nor is the newly-enacted plan apportioned in compliance with the United States Constitution, the Federal Civil Rights Act, and the Voting Rights Act of 1965. See Memorandum-Decision and Order, Fund for Accurate and informed Representation, Inc. v. Weprin, No. 92-CV-283 (N.D.N.Y. May 28, 1992) (per curiam). The plaintiffs in F.A.I.R. ask the court (1) to enjoin the defendants from administering or supervising Assembly elections in the Assembly districts as presently apportioned, and (2) to redistrict the New York State Assembly in a manner that satisfies federal constitutional and statutory requirements. It is important to note that the plaintiffs therein do not allege that the district lines violate New York State constitutional or statutory law. After various procedural modifications and rulings by this court, the F.A.I.R. action is now driven by plaintiff's third-amended complaint.
The instant suit was commenced by (among others) some of the same individuals who are defendants in the F.A.I.R. action. In this action, those individuals seek an order declaring that the Assembly redistricting *657 plan complies with the United States Constitution, the federal Voting Rights Act, and the New York State Constitution. Such a declaration is requested and, according to plaintiffs, necessary because the defendants have "all made clear that they believe that the Senate and Assembly Redistricting Legislation in respect of the Assembly lines violates [federal constitutional and statutory law and state constitutional law]." Complaint ¶¶ 13, 16, 19, 22. Thus, it is clear that the issues raised herein generally parallel those raised in the F.A.I.R. action.
In addition to the obvious similarity of issues, a review of the roster of parties reveals just how intertwined these two suits really are. There are eight defendants in the present case,[3] four of the whom, i.e. De Sanctis, Chen, Alfaro, and The Fund for Accurate and Informed Representation, Inc. (collectively "F.A.I.R."), are plaintiffs in the F.A.I.R. action. In their answer, these four defendants acknowledge their belief that the reapportionment plan is infirm on both state and federal grounds, but do not assert counterclaims. Of the four remaining defendants, two, i.e. New York Governor Cuomo and Lt. Governor Lundine, are also defendants in the F.A.I.R. action. The last two defendants, Greene and Brennan, are members of the New York State Assembly. In other words, the four "non-F.A.I.R." defendants (Cuomo, Lundine, Greene and Brennan) are members of the political apparatus which promulgated the apportionment plan at issue in this litigation.
On May 19, 1992, with this case still pending in state supreme court, F.A.I.R. including defendants De Sanctis, Chen, and Alfaro filed a petition of removal to federal court. The non-F.A.I.R. defendants did not join the removal; in fact, Cuomo, Lundine, and Greene have actually expressed their opposition to the removal. Chill Aff. (5/20/92) at ¶ 17. The procedural posture that has emerged can be most succinctly summarized as follows: Four defendants, those collectively referred to as F.A.I.R., participated in the removal of this case to federal court. The other four defendants did not join in or otherwise consent to the removal. The plaintiffs oppose the removal and move for a remand.
II.
Plaintiffs raise numerous arguments to support their motion to remand. Their arguments will be addressed seriatim, followed by a brief discussion of F.A.I.R.'s motion to consolidate this case with F.A.I.R.
A.
Plaintiffs' primary argument for remand rests on their contention that defendants' removal to federal court was procedurally defective, in that not all of the defendants consented to the removal. The basis for this argument stems from the language of the applicable removal statute, 28 U.S.C. § 1441(a), which states in pertinent part that
[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
Numerous courts, including the Second Circuit, have construed this statute as generally requiring the consent of all defendants to effect a proper removal. See, e.g., Bradford v. Harding, 284 F.2d 307, 309 (2d Cir.1960) (Friendly, J.); Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir.1986); Bellone v. Roxbury Homes, Inc., 748 F.Supp. 434, 436 (W.D.Va.1990) (citing cases). Since four of the eight defendants in this case did not join in the removal in fact, three apparently oppose the removal plaintiffs urge that the removal to federal court was improper and the case should *658 therefore be remanded to state court pursuant to 28 U.S.C. § 1447(c).
The requirement that all defendants consent to removal carries some pivotal exceptions, however. Most notably, "[n]ominal parties ... are disregarded for removal purposes and need not join in the petition [to remove]." Northern Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 272 (7th Cir.1982) (citations omitted). The breadth of this rule is undisputed; courts uniformly recognize that defendants seeking to remove a case to federal court need not obtain the consent of defendants who are nominal to the suit. E.g., Farias v. Bexar Cty. Bd. of Trustees, 925 F.2d 866, 871 (5th Cir.), reh'g denied, 931 F.2d 892 (5th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 193, 116 L.Ed.2d 153 (1991); Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986); Avon Prods., Inc. v. The A/J Partnership, 1990 WL 422416 * 2, 1990 U.S.Dist. LEXIS 2186 * 6-7 (S.D.N.Y. Mar. 1, 1990) (citations omitted). See also 14A Charles A. Wright, et al., Federal Practice and Procedure § 3731 (1985).
F.A.I.R. contends that consent of the other defendants to removal was unnecessary because they are mere nominal parties to this litigation. Resolution of this dispute therefore depends upon whether the defendants who did not join in the removal are nominal parties. The burden of establishing a party's nominal status rests upon F.A.I.R., as the defendant that is seeking removal. See, e.g., Northern Illinois Gas Co., 676 F.2d at 273; see also Hofmann v. Fasig-Tipton N.Y., Inc., No. 90-CV-1074, 1991 WL 5867 *4, 1991 U.S.Dist. LEXIS 715 *10-11 (N.D.N.Y. Jan. 15, 1991) (Munson, J.) (diversity of citizenship context). F.A.I.R. can satisfy its burden by demonstrating that the non-consenting defendants, despite their presence in the suit, simply cannot afford the desired relief to the plaintiffs. Saxe, Bacon & Bolan, P.C. v. Martindale-Hubbell, Inc., 521 F.Supp. 1046, 1048 (S.D.N.Y.1981), aff'd, 710 F.2d 87 (2d Cir.1983); Avon Prods., 1990 U.S. Dist. LEXIS 2186 *9. That is to say, a party is considered nominal if "no cause of action or claim for relief is or could be stated against him or on his behalf...." Saxe, Bacon & Bolan, P.C., 521 F.Supp. at 1048; accord, e.g., Farias, 925 F.2d at 871.
The allegations set forth in plaintiffs' complaint, especially when viewed in conjunction with the relief sought in F.A.I.R., indicate that the four non-consenting defendants are nominal to this suit and thus their consent is not required for removal. This conclusion is compelled in part by the relief sought in this case. Plaintiffs merely seek a declaration that the Assembly districts as currently drawn comply with state and federal law and that the Fall, 1992 elections should proceed according to the new reapportionment plan. See Complaint at ¶¶ 14-15. No other specific relief is sought.
Standing alone, of course, a statement of the relief sought does not shed light on whether the non-consenting defendants are nominal. When one additionally considers that the non-consenting defendants have not taken steps that conflict with plaintiffs' position, however, their nominal status becomes abundantly clear. As F.A.I.R. accurately points out, none of the non-consenting defendants have sought judicial intervention to obstruct implementation of the Assembly plan, nor have they manifested any intention to block the plan's administration during the fall election. The non-consenting defendants, for example, are not plaintiffs in the F.A.I.R. action and do not assert any counterclaims in the instant action.[4] In short, they have asserted no *659 factual or legal basis for obstructing elections in accordance with the newly-enacted plan. To be sure, defendant Cuomo (and vicariously defendant Lundine), by signing the reapportionment legislation into law, fulfilled an indispensable role in the plan's enactment and are defendants in the F.A.I.R. action to enjoin effectuation of the plan. Given the non-consenting defendants' failure to assume a legal position that is hostile to plaintiffs' position, the court is hard-pressed to conceive of how a declaration against them would provide relief in any manner to these plaintiffs.
Plaintiffs believe that non-consenting defendants Greene and Brennan are more than "nominal" parties to this litigation: that belief is based upon the fact that Greene and Brennan cast dissenting votes to the plan legislation and have otherwise been outspoken in their opposition to the plan. Indeed, Greene has apparently threatened legal action to bar implementation of the plan. According to plaintiffs, Greene's and Brennan's well-known opposition to the plan, including their dissenting votes in the Assembly, creates an adversarial relationship that renders Green and Brennan more than "nominal" to this suit.
Plaintiffs' presumption runs contrary to the requirement that a suit must present an actual case or controversy in order to be justiciable in federal court. U.S. Const. art. III; Babbitt v. United Farm Wrkrs. Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). If a party is not involved in the actual case or controversy, then surely it is a nominal party, see Saxe, Bacon & Bolan, P.C., 521 F.Supp. at 1048, because the constitution's cases and controversies limitation "forecloses the conversion of courts of the United States into judicial versions of college debating forums." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982). A mere dispute of policy does not transform a nominal party into one involved in a legitimate case or controversy. Their political disagreement notwithstanding, Greene and Brennan have taken no formal steps to impede the election according to the plan. Furthermore, plaintiffs' contention that Greene might assert some legal position against the plan in the future is unavailing; the court cannot speculate as to what might happen under hypothetical circumstances. Since Greene and Brennan have manifested no more than their disagreement over the newly-enacted plan, a declaration against them simply would not affect plaintiff's rights or otherwise further their interests.
The nominal role of the non-consenting defendants in this suit becomes especially clear when contrasted to the role played by the removing defendants, i.e. F.A.I.R. Unlike the non-consenting defendants, F.A.I.R. has formally asserted a legal position adverse to these plaintiffs and, through the companion F.A.I.R. suit, has taken affirmative steps to block execution of the plan. A declaration of validity against F.A.I.R. would settle the active dispute between these two parties by collaterally estopping F.A.I.R.'s efforts to hamper the election process. A declaration against the non-consenting defendants, by comparison, would carry no comparable legal force.
The net effect of the foregoing analysis is that a declaration against the non-consenting defendants would not affect plaintiffs' rights or otherwise promote their interests. Thus, no cause of action or claim for relief is stated against them. Cf., e.g., Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990) ("Article III denies federal courts the power `to decide questions that cannot affect the rights of litigants in the case before them'") (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971)). By definition, *660 therefore, the non-consenting parties are nominal to this lawsuit. E.g. Saxe, Bacon & Bolan, 521 F.Supp. at 1048.
In sum, the non-consenting defendants' failure to manifest any intent to obstruct the upcoming elections means that a declaration of the plan's validity against them would be inconsequential; a judgment against the non-consenting defendants would not afford plaintiffs with any cognizable relief. The non-consenting defendants are therefore nominal parties in this suit, meaning that their consent to removal was not necessary. Accordingly, plaintiffs' motion to remand based upon this procedural argument is rejected.
B.
Plaintiffs' second argument in support of remand can be dismissed in short order. Plaintiffs contend that the statute under which F.A.I.R. purported to remove this suit, 28 U.S.C. § 1443, is not applicable in cases such as the present. Plaintiffs are ignoring one obvious fact: F.A.I.R. also asserts 28 U.S.C. §§ 1441 and 1446 as bases for removal, which provide a proper avenue for removal independent of § 1443. Since removal was proper on these alternative grounds anyway, the court need not resolve the question of whether removal pursuant to § 1443 would also have been appropriate in this case.
C.
The court can reject plaintiffs' third argument in similar fashion. Plaintiffs contend that removal was improper because F.A.I.R. failed to append a short and plain statement of the grounds for removal to their removal petition, as required by 28 U.S.C. § 1446(a).[5] After plaintiffs filed their motion to remand, F.A.I.R. cured that defect by supplying an amended petition to remove which satisfies all of the § 1446 requirements. Under circumstances nearly identical to the present, the Seventh Circuit instructed that "[a] removal petition may be amended freely within the thirty day period" following removal so as to allow the removing party to justify the failure of all defendants to join in the removal. Northern Ill. Gas Co., 676 F.2d at 273. Although not binding on this court, the Seventh Circuit's reasoning in Northern Ill. Gas Co. remains persuasive and uncontroverted.
F.A.I.R.'s amended petition asserts, inter alia, that the non-contesting defendants are nominal to the case and therefore need not consent to the removal, and that removal is warranted due to the "important federal questions at issue" and to facilitate consolidation of this case with F.A.I.R. By advancing these justifications, F.A.I.R. discharged all of the requirements set forth in § 1446 and as interpreted in Northern Ill. Gas Co. Therefore, plaintiffs' motion to remand on this basis is without merit.
D.
Although not stated as a specific basis for relief, a theme that resonates throughout plaintiffs' papers is the notion that the state supreme court is a more appropriate forum for adjudication over the issues presented in this case. Plaintiffs' argument implicitly invokes the provision set forth in 28 U.S.C. § 1441(c), which furnishes this court with the discretion to remand "all matters in which State law predominates." Plaintiffs argue that a remand is appropriate here because their suit raises issues that are of independent concern to New York State, such that resolution of these matters by a state tribunal is necessary to the furtherance of state sovereignty.
In so arguing, plaintiffs invoke federalism principles which the court cannot ignore. Federal courts must occasionally abstain from adjudication of state claims in favor of allowing the state's tribunals an opportunity to develop a coherent state policy *661 with respect to issues of local concern. E.g. De Cisneros v. Younger, 871 F.2d 305, 307 (2d Cir.1989) (Cardamone, J.) (citing Burford v. Sun Oil Co., 319 U.S. 315, 317-34, 63 S.Ct. 1098, 1098-1108, 87 L.Ed. 1424 (1943)). In the particular context of the removal statute, the court is mindful of the Second Circuit's admonition that
[i]n light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.
Somlyo v. J. Lu-Rob Enter., Inc., 932 F.2d 1043, 1045-46 (2d Cir.1991) (citing, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941)).
On the other hand, the court must be equally cognizant of defendants' countervailing statutory right to remove to federal court cases based upon federal rights. See §§ 1441, 1443. The rationale behind removing a case to federal court may be especially acute in cases such as the present, in which a local court may face parochial and political pressure from its own citizens. By enacting the removal statutes, Congress ensured that a defendant's right to vindicate federal civil rights in a federal forum remains secure. See Regis Assocs. v. Rank Hotels (Mgmt.) Ltd., 894 F.2d 193, 195 (6th Cir.1990); Worthy v. Schering Corp., 607 F.Supp. 653, 657 (E.D.N.Y.1985).
Any tension that might ordinarily exist between these seemingly conflicting rights is absent from the present case, however, because review of the record reveals that this suit is conspicuously devoid of a legitimatelet alone predominantstate question. At most, plaintiffs' claim under the state constitution seeks a declaration concerning a matter that is not truly in controversy. Specifically, plaintiffs merely plead that the newly-drawn Assembly districts comply with the New York State Constitution and that defendants have expressed their disagreement with this proposition. Then, with little substantiation, plaintiffs assert that "by reason of the foregoing, a controversy exists requiring a judicial declaration." Complaint ¶ 23. Plaintiffs allege that a judicial declaration is required to avoid upsetting the orderly scheduled Assembly elections set for Fall, 1992.
The court is at a complete loss as to why a declaration concerning the validity of the state constitutional issue would facilitate an orderly election process. Neither in this action nor in any other action of which we are aware have these defendants asserted that the New York State Constitution affords them with a basis for affirmative relief. That is to say, in no instance do these defendants place reliance upon constitutional state law to "upset the orderly scheduled elections set for this Fall." At most, defendants have merely acknowledged in their answer their disagreement as to the validity of the Assembly reapportionment plans under the state constitution. The central focus of defendants' own litigation efforts in other lawsuits has been on the federal constitutionality of the Assembly districts. The parties' disagreement on the state constitutional question hardly elevates the state law claim to a level that can be considered "predominant."
The posture of this litigation is such that resolution of plaintiffs' state law claim for a declaratory judgment would not affect the rights of any of the parties to this suit. We find that plaintiffs' cause of action arising under state law not only fails to raise a predominant state question to justify a remand, but also fails to raise a case or controversy sufficient to confer upon this court jurisdiction to adjudicate that claim. See, e.g., Babbitt, 442 U.S. at 297-98, 99 S.Ct. at 2308-09; Penguin Books USA Inc. v. Walsh, 929 F.2d 69, 72 (2d Cir.1991) (citing Rice, 404 U.S. at 246, 92 S.Ct. at 404). Accordingly, the court denies plaintiffs' motion to remand this case to state supreme court and, as we are obligated to do, sua sponte dismisses plaintiffs' claim arising under state law. See, e.g., Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986).
*662 E.
F.A.I.R. asks the court to consolidate the present action with F.A.I.R., which is scheduled for a trial on the merits on June 24, 1992. Consolidation seems appropriate because, with the exception of the state constitutional issue presented herein, the two cases raise identical issues and surely would entail identical proof. Plaintiffs' sole basis for opposing consolidation is their belief that this suit should not even be tried in this court but rather should be adjudicated in a state forum. For the reasons stated above, however, the court rejects plaintiffs' motion to remand. Therefore, despite plaintiffs' desire to the contrary, the present case will be adjudicated in this court. Since the court has been given no legitimate argument against consolidation and consolidation presents the most efficient tack on which to proceed, the motion to consolidate this case with F.A.I.R. is granted.
III.
Plaintiffs' motion to remand this case to state supreme court is denied with prejudice. Plaintiffs' cause of action arising under New York State law is dismissed with prejudice. This case is hereby consolidated with Fund for Accurate and Informed Representation, Inc. v. Weprin, No. 92-CV-283, and shall therefore proceed in accordance with same scheduling order.
IT IS SO ORDERED.
NOTES
[1] On June 12, 1992, the court in Wolpoff ruled (1) that the newly-enacted Senate plan is unconstitutional, and (2) that this finding necessitated a ruling that the Assembly plan, as enacted, is unconstitutional. The court did not rule on the merits of the Assembly plan, however, thus leaving the effect of its ruling vis-a-vis the Assembly plan uncertain.
[2] Plaintiffs petitioned to the Court of Appeals for a writ of mandamus which essentially sought reversal of the transfer to this district. The Second Circuit summarily rejected plaintiffs' petition and affirmed the transfer to this district. Chief Judge Oakes of the Second Circuit subsequently appointed this three-judge court to adjudicate the action pursuant to 28 U.S.C. § 2284 (1988).
[3] This suit was originally brought against fifteen defendants. On May 18, 1992, one day before some of the defendants filed their notice of removal to federal court, plaintiffs discontinued this action against seven of the defendants, thus leaving the eight defendants described herein.
[4] On June 12, 1992, the court received what purports to be an answer and counterclaim from defendant Brennan. In his counterclaim, Brennan seeks (1) a declaration that the plan is invalid under the federal and state constitutions, and (2) $550,000.00 in compensatory and punitive damages.
Because the complaint was hand-delivered to Brennan on May 5, 1992 (see Glaser Aff. (5/5/92)), this responsive pleading is time barred. Under Fed.R.Civ.P. 81(c),
the defendant shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after service of summons upon such initial pleading, then filed, or within 5 days after the filing of the petition for removal, whichever period is longest.
See also Fed.R.Civ.P. 13(a) (responsive pleading must include all counterclaims arising out of the same transactions or occurrences as the original claim). Based upon Brennan's May 5 receipt of the complaint, his responsive pleading falls well beyond the permissible time frame for responsive pleadings set forth in Rule 81(c). Therefore, the court cannot consider Brennan's pleading in reviewing these motions.
[5] 28 U.S.C. § 1446(a) states:
A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal....
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738 F.2d 422
Goughv.Consolidated Aluminum Corp.
83-5795
United States Court of Appeals,Third Circuit.
6/15/84
1
W.D.Pa.
AFFIRMED
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74 F.3d 838
John J. CONFORTI, doing business as C & C Produce, Petitioner,v.UNITED STATES of America, Respondent.
No. 95-1735.
United States Court of Appeals,Eighth Circuit.
Submitted Sept. 11, 1995.Decided Jan. 18, 1996.
Stephen Paul McCarron, Washington, DC, argued, for petitioner.
Jeffrey A. Knishkowy, Washington, DC, argued (James Michael Kelly and Margaret M. Breinholt, on the brief), for respondent.
Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
1
John Conforti appeals the Secretary of Agriculture's decision sanctioning him for violating the employment restrictions in the Perishable Agricultural Commodities Act of 1930, 7 U.S.C. Sec. 499h(b) (1980) ("PACA"). We uphold the Secretary's determination that Conforti violated PACA, but modify the penalty that the Secretary imposed.
I.
2
PACA was enacted to protect produce growers "from the 'sharp practices of financially irresponsible and unscrupulous brokers in perishable commodities.' " In re Lombardo Fruit & Produce Co., 12 F.3d 110, 112 (8th Cir.1993) (quoting Hull Co. v. Hauser's Foods, Inc., 924 F.2d 777, 780 (8th Cir.1991). PACA requires wholesale produce dealers to obtain a license from the United States Department of Agriculture ("USDA"), 7 U.S.C. Sec. 499c(a), and prohibits licensees from employing individuals "responsibly connected" to a company that has failed to satisfy USDA reparation orders. Id. Sec. 499h(b)(3). Under the statute, a person is responsibly connected to a company if he serves as a partner, officer, or director of it, or if he holds more than 10 percent of its outstanding stock. Id. Secs. 499a(9).
3
Conforti operates C & C Produce, a licensed produce dealership. In June, 1993, Conforti hired Joseph Cali, his life-long friend, to work for C & C Produce. On June 24, 1993, Conforti received a letter from the USDA informing him that Cali was responsibly connected to Royal Fruit, a company with several outstanding reparation orders. The letter indicated that Conforti could not employ Cali after July 24, 1993, unless he posted a bond that was later set at $100,000.
4
Conforti then tried to obtain a bond. He first asked his insurance company for one, but it required full collateralization. He next applied for a line of credit at United Missouri Bank ("UMB") to collateralize the bond, but learned that approval would take three months. Conforti then decided to post $100,000 of his own funds to guarantee the line of credit. UMB initially approved the transaction, but changed its mind after the USDA advised the loan officer that Conforti's license was going to be revoked. In November, Conforti secured a line of credit at a different bank, but when he learned that the insurance company charged an additional $15,000 fee to issue the bond, he "threw up his hands" and abandoned his efforts.
5
Conforti did not fire Cali on July 24 as instructed; he did not finally fire him until November 19, 1993, after he gave up his search for a bond. In the interim, the USDA warned Conforti at least five times that Cali's continued employment could result in the suspension or revocation of his PACA license.
6
Three months after he fired Cali, the USDA filed a complaint seeking to revoke Conforti's PACA license. The Administrative Law Judge ("ALJ") found that Conforti had violated PACA and suspended his license for thirty days. The USDA appealed to the Judicial Officer ("JO"), who affirmed the ALJ's decision that Conforti violated PACA but increased the suspension to 90 days. The JO's decision is the final decision of the Secretary of Agriculture. 7 C.F.R. Sec. 2.35 (1993). Conforti petitioned this court to review the Secretary's order pursuant to 28 U.S.C. Sec. 2342.
II.
7
Conforti first argues that the JO improperly found that Cali was responsibly connected to Royal Fruit. He contends first that the finding cannot stand in the absence of a predicate finding in a special hearing on the question of Cali's connection to Royal Fruit. We disagree. It is true that USDA regulations establish a procedure to challenge the USDA's "responsibly connected" designation. 7 C.F.R. Secs. 47.48-47.63 (1993). This proceeding, however, commences after the USDA finds that a person is responsibly connected, id. Sec. 47.49(a), and nothing in the statute indicates that PACA's employment restrictions take effect only after this proceeding is completed. The statute straightforwardly prohibits employing anyone who is a responsibly connected person as defined by PACA. 7 U.S.C. Sec. 499h(b). Thus, if the record contains evidence that Cali was a partner, director, or officer in Royal Fruit, or held more than 10 percent of Royal Fruit's stock, his employment is restricted and Conforti violated PACA by employing him. Id. Sec. 499a(9).
8
Conforti also maintains that even if a previous hearing under 7 C.F.R. Secs. 47.48-47.63 was not required, the record lacks evidence indicating that Cali met PACA's definition of a responsibly connected individual. This argument is without merit. Prior to issuing his final order, the JO took official notice of an ALJ's opinion in In re Midland Banana and Tomato Co., PACA Docket No. D-93-548, and In re Royal Fruit, PACA Docket No. D-93-549 (USDA 1994) ("Royal Fruit "). In Royal Fruit, the ALJ found that Cali was the President and a director of Royal Fruit and that he held 50 percent of the company's stock. Given these previous findings, we believe that the JO was justified in concluding that Cali was responsibly connected.
9
Conforti contends that the JO was not entitled to consider these previous findings because he improperly used the device of official notice. We find no error in the JO's procedure. USDA regulations allow the JO to take official notice of "such matters as are judicially noticed by the courts of the United States," 7 C.F.R. Sec. 1.141(g)(6) (1993), and the USDA Rules of Practice permit the JO to consider "any matter of which official notice is taken." 7 C.F.R. 1.145(i) (1993). We have held that "federal courts may sua sponte take judicial notice of proceedings in other courts if they relate directly to the matters at issue." Hart v. Comm'r, 730 F.2d 1206, 1207 n. 4 (8th Cir.1984); see also United States v. Jackson, 640 F.2d 614, 617 (1981). The JO also gave Conforti the required opportunity to object to the order taking official notice. 5 U.S.C. Sec. 556(e).
10
Alternatively, Conforti contends that Cali is not responsibly connected because he played only a minor role in Royal Fruit. Conforti points to the ALJ's findings in Royal Fruit that Cali was by-and-large a "front man" and that Royal Fruit was actually the "alter ego" of Robert Heimann. Conforti argues that, under the doctrine adopted in Quinn v. Butz, 510 F.2d 743, 756 (D.C.Cir.1975), Cali's nominal status in Royal Fruit merely raises a rebuttable presumption that he is responsibly connected.
11
The central difficulty that Conforti's argument encounters is that we specifically rejected it ten years ago. See Pupillo v. United States, 755 F.2d 638, 643 (8th Cir.1985). We apply a per se rule: "Section 499a(9) [is] an irrebuttable statement that an officer, director, or holder of more than ten percent of the outstanding stock of a corporation is responsibly connected with that corporation or association." Id. Cali's actual responsibilities or interests in Royal Fruit are, therefore, irrelevant to the question of whether he was responsibly connected; because he was both an officer in the company and held 33 percent of its stock, he was responsibly connected as a matter of law.
12
Because we find that the JO's decision that Cali was a responsibly connected person is supported by substantial evidence, we affirm it. Pupillo, 755 F.2d at 643.
III.
13
Conforti also asserts that he did not violate PACA because he made a good faith effort to obtain a bond and because the USDA led him to believe that he could continue to employ Cali while he was searching for a bond. We see how Conforti could have gotten this impression from his communications with the USDA. Although the USDA initially told Conforti to obtain a bond or fire Cali by July 24, the USDA did not set the bond amount until July 16, leaving very little time before the deadline. Conforti then asked the USDA to reduce the bond; the USDA denied his request on August 9. The August 9 letter reiterated that Conforti needed either to obtain a bond or fire Cali, but it did not mention the July 24 deadline. On July 30, the USDA sent a letter asking Conforti whether he intended to fire Cali or to obtain a bond. Finally in November, after Conforti stopped looking for a bond, M.A. Clancy, the PACA Licensing Program Review Head, advised him that if he could not post a bond, he should fire Cali.
14
Conforti does not cite any authority to support his official estoppel argument, and we know of none. In point of fact, the Supreme Court has repeatedly indicated that an estoppel will rarely work against the government. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 423, 110 S.Ct. 2465, 2470-71, 110 L.Ed.2d 387 (1990). As the Court has noted, "When the government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interests of the citizenry as a whole in obedience to the rule of law is undermined." Heckler v. Community Health Services, 467 U.S. 51, 61, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984). Therefore, in the absence of "affirmative misconduct" by the government, INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973), "not even the temptations of a hard case" like Conforti's justify applying an estoppel against the USDA. Federal Crop Ins. Co. v. Merrill, 332 U.S. 380, 386, 68 S.Ct. 1, 4, 92 L.Ed. 10 (1947).
15
We strictly construe PACA's employment restriction, see Hull Co. v. Hauser's Foods, 924 F.2d 777, 782 (8th Cir.1991); Pupillo, 755 F.2d at 643, and, as the D.C. Circuit has noted, the "employment bar is phrased as an absolute." Siegel v. Lyng, 851 F.2d 412, 415 (D.C.Cir.1988); 7 U.S.C. Sec. 499h(b) ("The Secretary may ... suspend or revoke the license of any licensee who, after the date given in such notice, continues to employ any person in violation of this section."). Therefore, Conforti's good faith efforts, however sincere, cannot excuse his failure to fire Cali.
IV.
16
After the Secretary determines that a licensee violated PACA's employment restrictions, he may suspend or revoke the license. 7 U.S.C. Sec. 499h. Conforti argues that suspending his license for 90 days was unduly harsh. We review the Secretary's sanction for an abuse of discretion, affirming it unless it is "without justification in fact." ABL Produce v. U.S.D.A., 25 F.3d 641, 645 (8th Cir.1994). Even under this deferential standard, we agree that a 90-day suspension was not justified by the facts. We therefore reverse the JO's sanction and reinstate the ALJ's 30-day license suspension.
17
In ABL Produce, 25 F.3d at 645, a license-holder challenged an order revoking his license for violating PACA's employment restrictions. We reversed the sanction and reinstated the 30-day suspension awarded by the ALJ because the JO failed to consider several "relevant factors," namely, whether the company's conduct threatens to undermine PACA's purposes, the circumstances of the violation, and the effect the sanction will have on the company. Id. at 646. We apply these considerations to the case at hand.
A.
18
The JO found that by employing Cali, Conforti threatened to undermine PACA's purposes. As we have already noted, PACA was designed to protect produce growers from "sharp" and "unscrupulous" practices of financially irresponsible brokers. In re Lombardo Fruit & Produce Co., 12 F.3d at 112. Congress was particularly concerned about the risk of non-payment. ABL Produce, 25 F.3d at 646.
19
The record in this case is devoid of evidence that Conforti is in any way a threat to produce growers. C & C Produce is financially healthy, and Conforti's suppliers themselves characterized his payment practices and ethics as "exemplary." The JO disregarded this information, however, concluding that "Mr. Conforti's ethics, payment practices, complaints against C & C produce and the financial health of Mr. Conforti's company are irrelevant." Given the fact that PACA was intended to protect suppliers, we do not see how this kind of information can be characterized as irrelevant. The JO therefore erred when he refused to consider it.
20
The JO further found that employing Cali threatened the industry because he was responsibly connected to Royal Fruit. As we have already said, however, Cali was simply a "front-man" who lacked both authority and an actual interest in Royal Fruit. The ALJ considered Cali's "front man" status and concluded that "to say that Mr. Cali was a great risk to the industry is hyperbole." The JO, on the other hand, disregarded Cali's limited involvement because it "did not lessen the responsibility of Mr. Cali for Royal's PACA violations."
21
We agree entirely, as we said above, that the extent of Cali's participation has no bearing on whether he is responsibly connected to Royal Fruit. Pupillo, 755 F.2d at 643. We believe, however, that his actual position at Royal Fruit is relevant to whether Cali's employment at C & C Produce threatened the produce industry. By disregarding the fact that Cali's role in Royal Fruit was de minimis, therefore, the JO overstated the threat that Cali's employment posed to the produce industry.
B.
22
The JO also increased the ALJ's sanction because Conforti "deliberately chose not to heed [the government's] warning" to fire Cali or obtain a bond. We agree that Conforti should be punished for employing Cali for four months after the USDA's deadline. We find, however, that the JO abused his discretion by not considering the mitigating circumstances in the case.
23
As the ALJ noted, Conforti "made a diligent and good faith effort to comply with the complainant's demands that he obtain a bond." During the period that Conforti employed Cali, he tried to obtain a bond from several different sources, and he consistently updated the USDA about his progress. While, as we have said, we do not agree with Conforti that his diligence absolves him of guilt in the matter, we do think that, particularly in light of the mixed signals sent by the USDA, all of which we rehearsed above, the JO erred by completely discounting his efforts.
C.
24
Finally, we think that the JO abused his discretion when he failed to consider how the 90-day suspension would affect C & C Produce. Conforti operates a wholesale produce dealership. Because his customers, primarily restaurants, require daily service, even a 30-day suspension is likely to have devastating financial consequences. ABL Produce, 25 F.3d at 647; see also Capital Produce Co. v. U.S., 930 F.2d 1077, 1081 (5th Cir.1991) ("The 45-day suspension may destroy or seriously hamper [the produce company's] relationships with its customers, who depend upon daily services"). We think that there is every chance that suspending his license for 90 days will drive Conforti, a man with a previously spotless record, out of the produce business altogether.
V.
25
For the reasons adduced, we affirm the decision of the Secretary of Agriculture finding that Conforti violated PACA's employment restrictions. We find, however, that the facts in the case do not justify the sanction imposed. In light of Conforti's exemplary record, his diligent efforts to obtain a bond, and Cali's limited participation in Royal Fruit, we reverse the JO's sanction and reinstate the ALJ's decision suspending Conforti's PACA license for 30 days.
| {
"pile_set_name": "FreeLaw"
} |
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