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12 So.3d 178 (2007)
I A ALABAMA JAILBUSTERS IN MORGAN COUNTY, INC.
v.
STATE.
No. 2060623.
Court of Civil Appeals of Alabama.
May 15, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion. Dismissed for lack of prosecution.
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458 F.2d 909
UNITED STATES of America, Appellant,v.Roger A. MELNICK et al.
No. 71-1571.
United States Court of Appeals,Third Circuit.
Submitted under 3rd Cir. Rule 12(6) Dec. 16, 1971.Decided Feb. 15, 1972.As Amended May 18, 1972.
Richard M. Meltzer, Asst. U. S. Atty., Philadelphia, Pa. (Louis C. Bechtle, U. S. Atty., on the brief), for appellant.
Dennis H. Eisman, Philadelphia, Pa., for appellees.
Before BIGGS, VAN DUSEN and HUNTER, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
1
This appeal challenges a final May 11, 1971, district court order dismissing a January 28, 1971, indictment charging in four counts possession and sale of narcotic drugs, in violation of 21 U.S.C. Sec. 331(q) (3) (A) and 21 U.S.C. Sec. Sec. 331(q) (3) (A) and 21 U.S.C. Sec. 331(q) (2), as well as aiding and abetting, on or about July 30, 1968, where defendants were arrested for such alleged federal crimes on July 31, 1968.1
2
On December 20, 1971, subsequent to the district court order, the Supreme Court of the United States announced a decision which applied the Fifth and Sixth Amendments, as well as F.R.Crim.P. 48(b), to a case involving a delay of over three years between a federal agency cease and desist order and an indictment. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In Marion the Supreme Court discussed the Sixth Amendment in the following terms:
3
"Inordinate delay between arrest, indictment and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family and his friends. . . . So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy-trial provision of the Sixth Amendment." 404 U.S. at 320, 92 S.Ct. at 463.
4
Thus, it would appear that if a defendant is arrested for a federal crime for which he is subsequently indicted, such defendant would have become an "accused" within the meaning of the Sixth Amendment on the date of this arrest. See 404 U.S. at 318-19, 321-323, 325, 92 S.Ct. 455, 30 L.Ed.2d 468. However, the Court in Marion declared that there was not need to "press the Sixth Amendment into service" with respect to a "preaccusation" delay, since the interests of a defendant in these circumstances are adequately protected by statutes of limitation and the due process clause of the Fifth Amendment.2 See 404 U.S. at 323-325, 92 S.Ct. 455, 30 L.Ed.2d 468. In connection with the latter protection, the Court pointed out at 404 U.S. 324, 92 S.Ct. 455, 30 L.Ed.2d 468:
5
"Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was a purposeful device to gain tactical advantage over the accused. Cf. Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963); Napue v. Illinois, 360 U.S. 264 [79 S.Ct. 1173, 3 L.Ed.2d 1217] (1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases."
6
Since that decision, this court has handed down a decision considering a motion to dismiss for undue delay in a criminal prosecution. See United States v. Dukow, et al., 453 F.2d 1328 (3rd Cir.); cf. Hunt v. United states, 456 F.2d 582, (3rd Cir.); United States v. Varga, et al., 449 F.2d 1280 (3rd Cir.).
7
In view of these recent decisions, we have concluded that the above-mentioned district court orders should be vacated and the case remanded for a hearing on the issues presented under the Fifth and Sixth Amendments and F.R.Crim.P. 48(b) by the delay in this criminal prosecution in light of such decisions and the authorities cited in them. See United States v. Feldman, 425 F.2d 688, 692 at note 10 (3rd Cir. 1970); United States v. Childs, 415 F.2d 535, 536-537 (3rd Cir. 1969).
8
The district court orders of April 21, 1971, and May 11, 1971, will be vacated and the case remanded to the district court for further proceedings in accordance with this opinion.
1
The May 11, 1971, order granted the Government's Motion for Leave to File Answer and for Reconsideration of an April 21, 1971, district court order, granting the defendants' Motion to Dismiss the indictment. The Answer filed by the Government contained a denial of the defendants' allegation of "irreparable damage in that defendants' ability to present a defense and procure witnesses on their behalf has been substantially impaired." However, treating the Government's Motion for Reconsideration as a motion to vacate the order of April 21, 1971, the district court denied the motion. The April 21, 1971, order of the district court relied on the due process clause, in quoting from this court's opinion in United States v. Feldman, 425 F.2d 688, 691 (1970), as follows:
"We agree with the recognition in Ross v. United States, . . . that, in treating a defendant's claim of prejudicial delay, his rights under the due process clause must be determined by a balance between the need of law enforcement officials to delay prosecution and the prejudice to the defendant caused by this delay: . . ."
We note that the primary concern of the Ross case, referred to by this court in Feldman, supra, and in the quotation from that case by the district court, was the seven-month delay between the alleged crime and the filing of any complaint against him "although . . . appellant was continuously available for arrest," whereas in this case the defendants were warned of criminal prosecutions by the prompt arrest of July 31, 1968. The defendants were released on bail or their own recognizance apparently on or shortly after the date of such arrest.
The district court's order was appealable under 18 U.S.C. Sec. 3731. See United States v. Marion, 404 U.S. 307, 311 n. 2, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
2
The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States included this language in its Advisory Committee Note to Alternative Draft No. 2 of Proposed Revised Rule 45 of the Federal Rules of Criminal Procedure published March 31, 1971 (p. 10):
"No time limit is established for the period between the preliminary examination and the return of an indictment or the filing of an information. This is the period during which a case is presented to the grand jury for its consideration. . . . The length of this time period is left to the sound discretion of the individual district courts on the assumption that each district court will prescribe, by local rule or otherwise, a method of insuring that cases are brought before the grand jury as promptly as is possible."
Cf. United States v. Carosiello, 439 F.2d 942, 943 n. 3 (3d Cir. 1971).
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649 F.3d 1161 (2011)
Nirmal SINGH, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent.
No. 08-70434.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 15, 2010.
Filed June 17, 2011.
*1162 Hilary Han, Dobrin & Han, PC, Seattle, WA, argued the cause for the petitioner and filed a brief; Bart Klein, Law Offices of Bart Klein, Seattle, WA, was on the brief. Taranjeet Kaur Buttar, Buttar & Cantor, LLP, Tukwila, WA, also filed a brief; Patrick Cantor, Buttar & Cantor, LLP, Tukwila, WA, was on the brief.
John W. Blakeley, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, Washington, District of Columbia, argued the case for the respondent and filed a brief; Donald E. Keener, Deputy Director, Office of Immigration Litigation, U.S. Department of Justice, Washington, District of Columbia; and Tony West, Assistant Attorney General, Civil Division, U.S. Department of Justice, were on the brief. Rebecca Ariel Hoffberg, U.S. Department of Justice, Washington, District of Columbia, also filed a brief; Gregory Katsas, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, District of Columbia; William C. Peachey, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, Washington, District of Columbia; and Mona Maria Yousif, Civil Division, U.S. Department of Justice, Washington, District of Columbia, were on the brief.
Charles Roth, National Immigrant Justice Center, Chicago, IL, filed a brief on behalf of the National Immigrant Justice Center as amicus curiae in support of the petitioner.
Before: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, M. MARGARET McKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, and CARLOS T. BEA, Circuit Judges.
Opinion by Judge McKEOWN; Dissent by Judge O'SCANNLAIN.
OPINION
McKEOWN, Circuit Judge:
Applicants for asylum must show by clear and convincing evidence that they filed their applications within one year after arrival in the United States, absent changed or extraordinary circumstances. See 8 U.S.C. § 1158(a)(2)(B).[1] The heart *1163 of petitioner Nirmal Singh's argument on appeal is that his credible testimony does not require corroboration to establish "by clear and convincing evidence" that his asylum application was timely. See id. Nonetheless, the Board of Immigration Appeals ("BIA") decided that Singh could be required to "provide evidence that corroborates otherwise credible testimony," citing 8 U.S.C. § 1158(b)(1)(B)(ii), a completely different statutory provision that governs proof of an applicant's status as a refugee.[2] We agreed to rehear this case en banc to clarify whether the BIA erred in imposing the corroboration provision found in § 1158(b)(1)(B)(ii) on Singh's showing of timely filing under § 1158(a)(2)(B).[3] Basic principles of statutory construction lead us to conclude that the BIA improperly imported the corroboration requirement of § 1158(b)(1)(B)(ii) (governing demonstration of refugee status) into § 1158(a)(2)(B) (requiring applications to be timely filed).[4]
Section 1158(b)(1)(B)(ii) applies to the merits of an asylum claim, not to the one-year filing deadline for asylum applications. The one-year provision is governed by § 1158(a)(2)(B), which is silent on the issue of corroboration. It may seem harmless to gloss over the language of the statute, but doing so would do a disservice to our charge to interpret the statute as written.
Further, the corroboration requirement is not without consequence. This burden is not illusory, as the one-year bar determination is not reviewable absent a legal or constitutional question. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). In keeping with the Supreme Court's mandate to look to "the language of the statute itself," Ransom v. FIA Card Servs., N.A., ___ U.S. ___, 131 S.Ct. 716, 723, 178 L.Ed.2d 603 (2011), we grant the petition and remand the matter to the BIA.[5]
I. BACKGROUND
Nirmal Singh is an Indian citizen and former resident of that nation's Punjab state. Singh maintains that as a result of his political activities and affiliation, he was arrested and tortured on four occasions. *1164 According to Singh, after his fourth confrontation with authorities, a police officer told him: "If you want to save your life, leave India." Singh claims that he took the officer's advice and shortly after fled to Canada. Singh asserts that he arrived in Canada, using a false passport, on October 10, 2004. He says he stayed there for approximately ten days before entering the United States without inspection on or about October 20, 2004. In the fall of 2005, Singh filed for asylum.[6]
At his hearing before the IJ, Singh conceded his removability and sought asylum. The IJ rejected Singh's request for asylum as untimely filed. Although the IJ made no adverse credibility finding, he found Singh's testimony insufficient to establish his last date of entry into the United States "by clear and convincing evidence." In so ruling, the IJ noted that Singh had provided no documentation corroborating his claim that he entered this country on October 20, 2004. Without an established date of entry, Singh could not prove that he filed his application "within 1 year after the date of [his] arrival in the United States." 8 U.S.C. § 1158(a)(2)(B).
Singh appealed to the BIA, which invoked the corroboration provision of § 1158(b)(1)(B)(ii) and concluded that Singh's application was time-barred because he failed to provide corroboration of his date of entry. According to the BIA, "[a]lthough the respondent has claimed on appeal that his credible testimony should have been sufficient to meet his burden of proving his date of entry, the statute specifically provides that, in determining whether an asylum applicant has met his burden of proof, the trier of fact may require an applicant to `provide evidence that corroborates otherwise credible testimony.'" (quoting § 1158(b)(1)(B)(ii)). Singh timely petitioned this court for review.
II. JURISDICTION TO REVIEW THE LEGAL QUESTION PRESENTED.
We first consider whether we have jurisdiction to review the BIA's timeliness determination. Subject to certain exceptions, an individual's application for asylum will be considered only if the applicant "demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). Section 1158(a)(3) states that "[n]o court shall have jurisdiction to review any determination of the Attorney General under [§ 1158(a)(2)]." Read together, these provisions appear to deprive this court of jurisdiction over determinations that an individual failed to file his application within one year of entering this country. See Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001).
Despite this jurisdictional limitation, "the Real ID Act of 2005 restores our jurisdiction over `constitutional claims or questions of law.'" Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (quoting Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005)); see also 8 U.S.C. § 1252(a)(2)(D) ("Nothing in ... any other provision of this chapter... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section."). Singh claims that, because his testimony was deemed credible, the agency committed a *1165 legal error by requiring corroboration. Because this is a legal argument about how to construe 8 U.S.C. § 1158(b)(1)(B)(ii), and not a factual argument about whether the evidence proved Singh's date of entry, we have jurisdiction to review Singh's challenge.
III. THE ONE-YEAR FILING DEADLINE UNDER § 1158(b)(1)(B)(ii) DOES NOT INCLUDE A STATUTORY CORROBORATION REQUIREMENT.
We now turn to whether an immigration judge may require an asylum applicant to corroborate credible testimony that he complied with the one-year filing deadline. The BIA has not addressed this issue in a precedential decision. We therefore analyze the statute de novo, and begin with the statutory text.
Section 1158, entitled "Asylum," is divided into two subsections: (a) addresses the "Authority to apply for asylum," and (b) governs the "Conditions for granting asylum." The first provision, subsection (a), regulates whether an applicant can even get out of the starting gate to apply for asylum. An applicant who does not pass the threshold tests under (a) never gets to (b).
The one-year filing deadline for asylum applications is found in § 1158(a)(2)(B), which precludes applicants from applying for asylum unless they demonstrate by clear and convincing evidence[7] that they filed "within 1 year after the date of [their] arrival in the United States." Subsection (a) also includes other requirements, such as physical presence or arrival in the United States, id. § 1158(a)(1), and the absence of disqualifying factors such as a safe third country to which the individual may be removed, id. § 1158(a)(2)(A), or a previously denied asylum application, id. § 1158(a)(2)(C). None of the threshold requirements found in § 1158(a) references corroboration or documentary evidence.
Congress imposed the one-year filing deadline for asylum applicants as part of the Illegal Immigration Reform and Illegal Immigrant Responsibility Act of 1996. Pub.L. No. 104-208, § 604(a), 110 Stat. 3009-691. Congress later made additional revisions to asylum law through the REAL ID Act of 2005, but the Act did not amend § 1158(a)(2)(B)the petitioner's burden to demonstrate compliance with the one-year deadlineor add a corroboration provision of general applicability throughout the INA. See Pub.L. No. 109-13, § 101, 119 Stat. 231, 302-06 (2005). Because Congress declined to provide a corroboration provision applicable to the timely filing requirement in § 1158(a), the question before us is whether Congress addressed corroboration of timely filing in another statutory provision. The answer is "no."
Until the passage of the REAL ID Act, it was the law of this circuit that corroboration of an asylum applicant's credible testimony with respect to refugee status could not be required. See Aden v. Holder, 589 F.3d 1040, 1043-44 (9th Cir.2009) (citing Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000); Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000)). With the REAL ID Act, Congress abrogated our case law by adding to the INA three new, independent corroboration provisions: one for asylum, one for withholding of removal, and one for all other forms of relief.[8] The corroboration provisions are virtually identical *1166 and none applies to the one-year filing deadline.[9]
The first provision is titled "CONDITIONS FOR GRANTING ASYLUM" and added § 1158(b)(1)(B)(ii). REAL ID Act of 2005, Pub.L. No. 109-13, § 101(a), 119 Stat. 231, 302-03. The BIA and the dissent rely upon this provision, which allows adjudicators to request corroboration of an applicant's testimony establishing refugee status where such corroboration is reasonably available, to conclude that Singh failed to demonstrate compliance with the one-year deadline due to the lack of corroborating evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii).
Nothing in the text of the statute allows the corroboration provision of § 1158(b)(1)(B)(ii) to be imported magically into § 1158(a), the provision establishing the one-year filing deadline. Rather, the language of § 1158(b)(1)(B)(ii) and its immediate statutory context mandate the opposite conclusion. See Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."); see also Ransom, 131 S.Ct. at 723-24 (interpreting the statute based on the plain language and the statutory context and purpose).
Subsection 1158(b) governs the "Conditions for granting asylum," and covers the grant of asylum, not the authority simply to start the asylum process through an application. Within § 1158(b), the first subparagraph, § 1158(b)(1)(A), provides the agency the discretionary authority to grant asylum to an individual who has applied "in accordance with the [established] requirements and procedures" and who "is a refugee within the meaning of" § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A) (emphasis added). The next subparagraph, § 1158(b)(1)(B), is titled "Burden of proof" and provides that "[t]he burden of proof is on the applicant to establish that the applicant is a refugee." Id. § 1158(b)(1)(B)(i) (emphasis added). This clause refers exclusively to demonstrating that the applicant is a refugee under the statute.
The corroboration provision invoked by the BIA, § 1158(b)(1)(B)(ii), follows in the next clause and is also linked to an applicant's refugee status. Under the heading "Sustaining burden," § 1158(b)(1)(B)(ii) provides, in its entirety:
The testimony of the [asylum] applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence *1167 and cannot reasonably obtain the evidence.
Emphasis added. This corroboration provision is linked by its language[10] and context directly to proof "that the applicant is a refugee." Id. § 1158(b)(1)(B)(ii) (emphasis added). The statutory definition of a refugee relates exclusively to whether the applicant has suffered past persecution or has a well-founded fear of future persecution on account of a protected ground. Id. § 1101(a)(42)(A). This definition of a refugee contains no cross-reference to the procedural requirements for asylum, such as being physically present in the United States or filing a timely application. See id. In short, the corroboration language in subsection (b) stands independent of the timely filing deadline in subsection (a).
This interpretation is sensible when considering the practical application of § 1158 as a whole. Subsection 1158(a) lays out the predicate requirements that enable an individual to apply for asylum, including the one-year filing deadline. Id. § 1158(a)(2)(B). If the individual cannot clear those hurdles, then subsection (b) does not apply at all. A sequential reading of the two statutory subsections, the plain language of each, and the focus of subsection (b) on refugee status all point to a single conclusion: the refugee corroboration provision of subsection (b) does not apply to the time bar under subsection (a).[11] The BIA erred as a matter of law in applying § 1158(b)(1)(B)(ii) to Singh's showing of timely filing, because that provision applies only to the merits of an asylum application, not to preliminary requirements such as timeliness.
As noted above, § 1158(b) was not the only corroboration provision added to the INA by the REAL ID Act. The second such corroboration provision is titled "WITHHOLDING OF REMOVAL" and added § 1231(b)(3)(C). 119 Stat. at 303-04. Consistent with the text of the Act, that provision governs applications for withholding of removal only. Further, the corroboration provision codified at § 1231(b)(3)(C) incorporates § 1158(b)(1)(B)(ii) by reference, including the limitation to refugee status determinations. There is no basis for holding that the corroboration requirement applicable to withholding of removal claims would apply to Singh's asylum application.
The third provision is titled "OTHER REQUESTS FOR RELIEF FROM REMOVAL" and added § 1229a(c)(4). 119 Stat. at 304. The overall structure of the Act underscores that this provision is distinct from the preceding section and applies to all forms of relief from removal other than asylum or withholding of removal. Because § 1229a(c)(4) does not apply to asylum applications, it follows that this section cannot apply to Singh's asylum application.
At first glance, the Act engenders some ambiguity on this point, because the codified portion of the Act, entitled "Applications for relief from removal," does not contain the word "other" and refers to "relief or protection from removal" without qualification. 8 U.S.C. § 1229a(c)(4). Looking only at the codified text of the Act, it may appear at first glance that § 1229a(c)(4) could apply to all forms of *1168 relief from removal, including asylum and withholding of removal. But that conclusion cannot be correct. In this case, the text and structure of the Act, including the title of the subsection actually adopted by Congress"OTHER REQUESTS FOR RELIEF FROM REMOVAL"provide a clear indication of congressional intent to exclude asylum and withholding applications from that provision. See Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ("[T]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute." (internal quotation marks omitted)). The legislative history reinforces that the corroboration provision codified at § 1229a(c)(4)(B) governs "other applications for relief from removal" and not applications for asylum and withholding of removal. H.R. REP. NO. 109-72, at 169 (2005) (Conf.Rep.).[12] We should give effect to this legislative intent § 1229a(c)(4)(B) applies only to applications for forms of relief other than asylum and withholding. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.").
There is no mystery here whether Congress intended the REAL ID Act's corroboration provisions to apply to an asylum applicant's showing of timely filing. In the same section of the same Act, Congress added three free-standing corroboration provisions, each covering a different form of relief: one for the merits of asylum applications (section 101(a) of the Act, adding § 1158(b)(1)(B)(ii)); one for the merits of applications for withholding of removal (section 101(c) of the Act, adding § 1231(b)(3)(C)); and one for the requirements of all other forms of relief (section 101(d) of the Act, adding § 1229a(c)(4)(B)).[13] Because none of those provisions applies to the timeliness of an asylum application, and because no other statutory provision creates a relevant corroboration provision, the BIA erred as a matter of law in applying the corroboration provision found in § 1158(b)(1)(B)(ii) to Singh's showing that he timely filed an application for asylum.
The question now is where our holding leaves Singh. The clear and convincing standard requires more than proof by a preponderance of the evidence and less than proof beyond a reasonable doubt. Kenyeres, 538 U.S. at 1305, 123 S.Ct. 1386. To date, the BIA has provided neither definition nor structure to the contours of that standard with respect to the one-year filing bar.[14] Indeed, testimony may be *1169 credible without rising to the level of clear and convincing evidence. As a consequence, we take no position whether, in the absence of credible testimony that meets the clear and convincing standard, an immigration judge may weigh the lack of reasonably available corroborating evidence in assessing compliance with the standard. Nor do we consider whether Singh simply failed to meet the standard here, without reference to corroborative evidence, as the BIA did not address that issue. We leave those considerations to the BIA in the first instance and remand this case to the BIA for the agency to determinewithout imposing the statutory corroboration provision in § 1158(b)(1)(B)(ii)whether Singh's credible testimony unaided by corroborating evidence demonstrated by clear and convincing evidence that Singh's application was timely.
Petition GRANTED; REMANDED for further proceedings consistent with this opinion.
APPENDIX
Section 101 of the REAL ID Act of 2005, PL 109-13, 119 Stat. 231, 302-06 (boldface added to section and subsection headings):
SEC. 101. PREVENTING TERRORISTS FROM OBTAINING RELIEF FROM REMOVAL.
(a) CONDITIONS FOR GRANTING ASYLUM.Section 208(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)) is amended
(1) by striking "The Attorney General" the first place such term appears and inserting the following:
"(A) ELIGIBILITY.The Secretary of Homeland Security or the Attorney General";
(2) by striking "the Attorney General" the second and third places such term appears and inserting "the Secretary of Homeland Security or the Attorney General"; and
(3) by adding at the end the following:
"(B) BURDEN OF PROOF.
"(i) IN GENERAL.The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A). To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
"(ii) SUSTAINING BURDEN.The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
*1170 "(iii) CREDIBILITY DETERMINATION.Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.".
(b) EXCEPTIONS TO ELIGIBILITY FOR ASYLUM.Section 208(b)(2)(A)(v) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)(v)) is amended
(1) by striking "inadmissible under" each place such term appears and inserting "described in"; and
(2) by striking "removable under".
(c) WITHHOLDING OF REMOVAL. Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)) is amended by adding at the end the following:
"(C) SUSTAINING BURDEN OF PROOF; CREDIBILITY DETERMINATIONS.In determining whether an alien has demonstrated that the alien's life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall determine whether the alien has sustained the alien's burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 208(b)(1)(B).".
(d) OTHER REQUESTS FOR RELIEF FROM REMOVAL.Section 240(c) of the Immigration and Nationality Act (8 U.S.C. 1230(c)) is amended
(1) by redesignating paragraphs (4), (5), and (6) as paragraphs (5), (6), and (7), respectively; and
(2) by inserting after paragraph (3) the following:
"(4) APPLICATIONS FOR RELIEF FROM REMOVAL.
"(A) IN GENERAL.An alien applying for relief or protection from removal has the burden of proof to establish that the alien
"(i) satisfies the applicable eligibility requirements; and
"(ii) with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion.
"(B) SUSTAINING BURDEN.The applicant must comply with the applicable requirements to submit information or documentation in support of the applicant's application for relief or protection as provided by law or by regulation or in the instructions for the application form. In evaluating the testimony of the applicant or other witness in support of the application, the immigration judge will determine whether or not the testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant's burden of proof. In determining whether the applicant has met such burden, the immigration judge shall weigh the credible testimony *1171 along with other evidence of record. Where the immigration judge determines that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence.
"(C) CREDIBILITY DETERMINATION.Considering the totality of the circumstances, and all relevant factors, the immigration judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.".
(e) STANDARD OF REVIEW FOR ORDERS OF REMOVAL.Section 242(b)(4) of the Immigration and Nationality Act (8 U.S.C. 1252(b)(4)) is amended by adding at the end, after subparagraph (D), the following: "No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 208(b)(1)(B), 240(c)(4)(B), or 241(b)(3)(C), unless the court finds, pursuant to section 242(b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.".
(f) CLARIFICATION OF DISCRETION.Section 242(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1252(a)(2)(B)) is amended
(1) by inserting "or the Secretary of Homeland Security" after "Attorney General" each place such term appears; and
(2) in the matter preceding clause (i), by inserting "and regardless of whether the judgment, decision, or action is made in removal proceedings," after "other provision of law,".
(g) REMOVAL OF CAPS.
(1) ASYLEES.Section 209 of the Immigration and Nationality Act (8 U.S.C. 1159) is amended
(A) in subsection (a)(1)
(i) by striking "Service" and inserting "Department of Homeland Security"; and
(ii) by striking "Attorney General" each place such term appears and inserting "Secretary of Homeland Security or the Attorney General";
(B) in subsection (b)
(i) by striking "Not more" and all that follows through "asylum who" and inserting "The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney General's discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who"; and
(ii) in the matter following paragraph (5), by striking "Attorney General" and inserting "Secretary of Homeland Security or the Attorney General"; and
*1172 (C) in subsection (c), by striking "Attorney General" and inserting "Secretary of Homeland Security or the Attorney General".
(2) PERSONS RESISTING COERCIVE POPULATION CONTROL METHODS.Section 207(a) of the Immigration and Nationality Act (8 U.S.C. 1157(a)) is amended by striking paragraph (5).
(h) EFFECTIVE DATES.
(1) The amendments made by paragraphs (1) and (2) of subsection (a) shall take effect as if enacted on March 1, 2003.
(2) The amendments made by subsections (a)(3), (b), (c), and (d) shall take effect on the date of the enactment of this division and shall apply to applications for asylum, withholding, or other relief from removal made on or after such date.
(3) The amendment made by subsection (e) shall take effect on the date of the enactment of this division and shall apply to all cases in which the final administrative removal order is or was issued before, on, or after such date.
(4) The amendments made by subsection (f) shall take effect on the date of the enactment of this division and shall apply to all cases pending before any court on or after such date.
(5) The amendments made by subsection (g) shall take effect on the date of the enactment of this division.
(i) REPEAL.Section 5403 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458) is repealed.
O'SCANNLAIN, Circuit Judge, joined by GOULD, RAWLINSON, CLIFTON, and CALLAHAN Circuit Judges, dissenting:
"Any alien who is physically present in the United States ... may apply for asylum," 8 U.S.C. § 1158(a)(1), but only if he "demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States," id. § 1158(a)(2)(B). Here, the Immigration Judge ("IJ") was not convinced by Nirmal Singh's mere verbal assertions, credible as the petitioner may be, and thus required Singh to come forward with evidence corroborating his alleged date of entry. When Singh failed to do so, the IJ dismissed his application as time-barred, and the Board of Immigration Appeals ("BIA") affirmed, noting correctly that the burden of proof on granting asylum empowers an IJ to seek corroborating evidence from an otherwise credible witness.
Because the plain terms of the statutory scheme allow an IJ to seek corroboration from an applicant seeking to demonstrate his eligibility for asylum, and because the majority's reading would variegate an otherwise uniform statute, I respectfully dissent.
I
Our old rule that "the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application," Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000), has been formally extinguished. For asylum applications filed after May 11, 2005,[1] "Congress abrogated these holdings in the REAL ID Act of 2005." Aden v. *1173 Holder, 589 F.3d 1040, 1044 (9th Cir.2009). Instead, while credible testimony still can, in some circumstances, sustain the applicant's burden of proof, it does not automatically do so. See 8 U.S.C. § 1158(b)(1)(B)(ii) ("[T]he testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." (emphasis added)). Now, "[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." Id. Thus, credible testimony may be sufficient to satisfy the applicant's burden of proof, but the Act also enables the trier of fact to require something more. To the extent our prior decisions hold to the contrary, they are superseded by the REAL ID Act. Aden, 589 F.3d at 1044.
That, more or less, should end the matter in this case. Although the IJ found Singh to be credible, the IJ concluded that Singh had not sustained his burden of demonstrating his date of entry into the United States through his testimony alone. The IJ thus required Singh to provide corroborating evidence of his alleged date of entry, which he failed to do. As the BIA concluded, such request was fully within the IJ's power, and there was no error in rejecting Singh's application as untimely.
II
The majority rejects all of this by concluding that 8 U.S.C. § 1158(b)(1)(B)(ii) which explicitly provides for the IJ's authority to require corroborating evidenceapplies to everything in an asylum applicant's burden except his duty to establish the timeliness of his application. As the majority would have it, no provision of the REAL ID Act explicates how an IJ may ensure that an immigrant has successfully demonstrated his date of entry by "clear and convincing evidence." In light of the statute taken as a whole, I cannot agree with the majority's conclusion.[2]
A
First, contrary to the majority's suggestion, the text of the section 1158(b)(1)(B)(ii) does not restrict the IJ's authority to seek corroborating evidence only to whether the applicant is a "refugee." Rather, this section speaks generally of "the applicant's burden" for demonstrating his eligibility for asylum, and states that, to sustain such burden, "[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii). In order to demonstrate his eligibility for asylum, an asylum applicant must prove both that he has filed his application within one year after his entry into the United States and that he meets the statutory definition of a "refugee." See id. § 1158(a)-(b). In other words, an asylum applicant's "burden" for *1174 prevailing on his application necessarily includes the burden of establishing his date of entry.
Section 1158(b)(1)(B)(ii)'s discussion of the applicant's ability to sustain his "burden" thus refers to Singh's need to demonstrate his eligibility as a refugee meeting all statutory requirements for asylum. And because the text of such section nowhere limits its scope only to the determination of one portion of the applicant's statutory burden, as the majority suggests, the BIA did not err in consulting the section in affirming the IJ's decision.[3]
B
Moreover, although the majority suggests that structural elements of section 1158 leave some ambiguity as to the scope of subsection (b)(1)(B)(ii), I cannot conclude, as the majority does, that this structure was meant to frustrate the IJ's efforts to determine whether an applicant had provided clear and convincing evidence of his date of entry. As discussed, establishing both the timeliness of his application and his status as a "refugee" are necessary to an immigrant's successful asylum application. But under the majority's view, an IJ will be forced to evaluate the immigrant's testimony on these two questions under completely different standards. Under the majority opinion, an IJ will assess the question of an applicant's refugee status under section 1158(b)(1)(B)(ii), but will assess the timeliness of his application without regard to any provision explaining the applicant's standard for sustaining his burden. The text of the statute does not create such a divide, and there is no reason that we should.
Indeed, taking the statute as a whole, the analytical divide created by the majority's analysis goes far beyond the provisions dealing with asylum applications. The majority explains that the statute is divided into three general sections, each dealing with a different form of relief: section 1158 pertains to applications for asylum, section 1231(b)(3) pertains to withholding of removal, and section 1229a(c)(4) pertains to "other" requests for relief. See Majority Op. at 1166-68. But each of these sections contains a nearly identical provision that expressly permits an IJ to require corroborating evidence from an otherwise credible witness. See 8 U.S.C. §§ 1158(b)(1)(B)(ii); 1229a(c)(4)(B); 1231(b)(3)(C). Read together, these provisions set forth a single overarching corroboration standard for sustaining an immigrant's burden of proving his eligibility for any form of relief under the statute. Indeed, throughout the REAL ID Act, "Congress has installed a bias toward corroboration in the statute to provide greater reliability." Aden, 589 F.3d at 1045. And we treat the BIA's application of these corroboration provisions identically on review. See § 1252(b)(4)(D).
But the majority isolates Singh's testimony as to his date of entry from this uniform standard for assessing his credibility on all other matters relating to his requests for relief. This move is neither compelled by the statute's text, nor does it comply with the statute's general aim to *1175 "ma[ke] immigration litigation a little more like other litigation," where parties with the burden of proof ordinarily provide whatever corroboration they have when presenting their case.[4]Aden, 589 F.3d at 1045. In short, the majority has sidestepped the sweep of the statute's text to remove one of the most basic features of an asylum application from the statute's general corroboration standards.
III
In the case at hand, the IJ made no adverse credibility finding against Singh, but ultimately determined that he had not satisfied his burden of proving his date of entry by clear and convincing evidence. To meet that burden, the IJ sought corroborating evidence from Singh, which he failed to provide. As Singh admitted that he had no documents to corroborate his date of entry, it was his burden to explain its absence. In re J-Y-C-, 24 I. & N. Dec. 260, 263 (B.I.A.2007). Aside from his bald assertion that he "could not reasonably be expected to provide proof of when he entered the United States," the record is devoid of any indication from Singh as to why he was unable to corroborate a such a basic fact.
Without either evidence corroborating Singh's self-serving declaration of his date of entry or an explanation for the unavailability of such evidence, I have no choice but to conclude that the IJ did not err in barring Singh's application as untimely.[5]
NOTES
[1] Unless otherwise noted, all statutory references are to the Immigration and Nationality Act of 1952, as amended ("INA"), and codified in Title 8 of the United States Code.
[2] For ease of reference, we use the term "refugee status" to refer to an individual who is a refugee under § 1101(a)(42)(A) and not to refer to an individual admitted as a refugee under § 1157.
[3] A three-judge panel denied Singh's petition, holding that the BIA did not err in requiring corroboration of Singh's testimony as to his date of entry into the United States. Singh v. Holder, 602 F.3d 982 (9th Cir.), vacated and reh'g en banc granted, 623 F.3d 633 (9th Cir. 2010).
[4] The BIA's decision in this case was a non-precedential decision and should be granted deference only in proportion to its thoroughness and the "validity of its reasoning." See Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.) (en banc), cert. denied, ___ U.S. ___, 130 S.Ct. 1011, 175 L.Ed.2d 620 (2009). Here, the decision was cursory and without analysis and thus entitled to no deference. We have no occasion to decide whether the BIA could have adopted a reading different from our own in a published decision entitled to some deference.
[5] It bears noting that the immigration judge ("IJ"), unlike the BIA, did not impose the corroboration provision of § 1158(b) but instead correctly cited § 1158(a) and found that Singh did not meet his burden because the proffered testimony was not clear and convincing. It is true that credible testimony that does not establish the necessary facts may not meet the clear and convincing standard. Because the BIA did not incorporate the IJ's decision but instead pointedly applied § 1158(b), remand is in order. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004) (per curiam) ("In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency. If we conclude that the BIA's decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case.").
[6] Although the date on which Singh filed his asylum application is contested, the BIA did not address this issue in its decision. In reviewing this petition, "we consider only the grounds relied upon" by the BIA, see Andia, 359 F.3d at 1184, and we therefore do not reach the question of the precise filing date.
[7] Throughout the INA, the clear and convincing standard has been defined as "between a preponderance of the evidence and proof beyond a reasonable doubt." Kenyeres v. Ashcroft, 538 U.S. 1301, 1305, 123 S.Ct. 1386, 155 L.Ed.2d 301 (2003) (internal quotation marks omitted).
[8] Section 101 of the REAL ID Act, which included all of the new corroboration requirements, is attached as an appendix.
[9] The dissent would read the REAL ID Act's three provisions as a single overarching corroboration requirement for the INA. In support of its interpretation of the statute, the dissent cites the REAL ID Act's "bias toward corroboration" referenced in Aden, 589 F.3d at 1045. Dissenting op. at 1174. However, Aden dealt only with the burden of demonstrating refugee status under § 1158(b)(1)(B)(ii), despite the general dicta included in the opinion and cited by the dissent. See 589 F.3d at 1043-44. And, more to the point, the corroboration language appears affirmatively in individual sections, not as an umbrella requirement.
[10] The statutory language refers specifically to refugee status, contrary to the dissent's suggestion that we rely "solely" on the title of the statutory section to support our interpretation. See Dissenting op. at 1174 n. 3.
[11] The dissent has it upside down. We hold that the corroboration provision applies only to demonstration of refugee status, contrary to the dissent's suggestion that we have imposed this provision on all components of an individual's asylum application other than the one-year deadline. See Dissenting op. at 1172-74.
[12] The Conference Report is unambiguous:
Other Applications for Relief. Subsection 101(d) of Division B would add a new paragraph 240(c)(4) to the INA [codified at 8 U.S.C. § 1229a(c)(4)]. This paragraph would apply the credibility and corroboration standards in section 101(a)(3) of Division B to other applications for relief and protection from removal. The new paragraph also codifies the current requirement that an alien applying for relief or protection from removal bears the burden of satisfying the eligibility requirements for that relief or protection....
Emphasis added.
[13] The dissent's complaint that our reading requires an immigration judge "to evaluate the immigrant's testimony ... under completely different standards," Dissenting op. at 1174, is puzzling. Even the dissent acknowledges that the one-year requirement is subject to a "clear and convincing" analysis. Refugee status is governed by a preponderance of the evidence, and withholding of removal by "more probable than not." Immigration judges are quite capable of distinguishing among different standards and routinely do so under the INA.
[14] It is worth noting that in the Asylum Officer Basic Training module regarding the one-year deadline, the agency instructs adjudicators that testimony alone may be sufficient to establish that an applicant entered within one year of filing, noting that "[i]n most cases it would seem unreasonable to require documents proving that an applicant was not physically present in the United States at a given time. `Proving a negative' presents multiple problems for both the applicant and the Service." INS Asylum Officer Basic Training, One-Year Filing Deadline (Mar. 10, 2010).
[1] REAL ID Act of 2005, Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305; Oyekunle v. Gonzales, 498 F.3d 715, 717 (7th Cir.2007) ("For aliens who applied for asylum after May 11, 2005[, the REAL ID Act] in effect codifies the [corroboration] rule....").
[2] The majority does not dispute that Singh's need to establish his date of entry by "clear and convincing evidence," 8 U.S.C. § 1158(a)(2)(B), may inherently empower the IJ to require corroborating evidence of such date. The only question enunciated by the majority, however, is whether the BIA erred in explicitly consulting section 1158(b)(1)(B)(ii) in affirming the IJ's actions.
[3] The majority suggests that its reading of the statutewhich relies solely on the titles Congress ascribed to certain statutory subsections, many of which were not even codified in the United States Codeis compelled by the statute's text and through "[b]asic principles of statutory construction." Majority Op. at 1163. Yet, tellingly, the majority concludes that under a precedential order, the BIA's interpretation of the statute may be entitled to "some deference." Majority Op. at 1163 n. 4. Because administrative deference is applicable only where a statute is ambiguous, see Christopher v. SmithKline Beecham Corp., 635 F.3d 383, 392 (9th Cir.2011), I take this caveat to be an admission by the majority that its reading of the statute is indeed not compelled by the statute's text.
[4] This is a basic aspect of the REAL ID Act that the majority seems either to miss or to gloss over. Indeed, as we have previously recognized, with the REAL ID Act, Congress "changed the standard governing when a trier of fact may require corroborating evidence from where the evidence is `easily available' to where the evidence is `reasonably obtainable,' and imposed a heightened standard of review requiring that we reverse an agency's determination concerning the availability of corroborative evidence only if a reasonable trier of fact would be compelled to conclude that such corroborating evidence is unavailable." Shrestha v. Holder, 590 F.3d 1034, 1047-48 (9th Cir.2010) (citations omitted).
[5] I note that the court lacks jurisdiction to consider Singh's claim that the REAL ID Act required the IJ to notify him of his need to present corroborating evidence and to provide him with an opportunity to bring forth such evidence, as Singh never exhausted this issue before the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
| {
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} |
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0030-18T1
T.S.,
Petitioner-Appellant,
v.
DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES,
Respondent-Respondent,
and
CAMDEN COUNTY BOARD
OF SOCIAL SERVICES,
Respondent.
Argued August 27, 2019 – Decided September 12, 2019
Before Judges Gilson and Mawla.
On appeal from the New Jersey Department of Human
Services, Division of Medical Assistance and Health
Services.
Sandra Schick Passaro argued the cause for appellant
(South Jersey Legal Services, Inc., attorneys; Sandra
Schick Passaro, on the brief).
Stephen J. Slocum, Deputy Attorney General, argued
the cause for respondent Division of Medical
Assistance and Health Services (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Stephen J.
Slocum, on the brief).
PER CURIAM
Petitioner T.S. appeals from a July 20, 2018 final agency decision issued
by the Director of the New Jersey Division of Medical Assistance and Health
Services (Division), which terminated the New Jersey FamilyCare (NJFC)
Medicaid benefits of T.S. and her two dependent daughters. 1 T.S. argues that
the Division acted arbitrarily and capriciously by including annualized income
from her then-nineteen-year-old daughter, who was a full-time college student
working part-time and earning less than the amount required for filing a federal
tax return. We agree and reverse.
I.
T.S. is a single mother. In 2017, she had two dependent daughters: T.H.,
a then-nineteen-year-old college student, and U.P., a then-six-year-old child.
1
We use initials to protect the privacy interests of petitioner and her family
members.
A-0030-18T1
2
In July 2017, T.S. applied to renew her Medicaid benefits being provided
to her and her two daughters. In making her application, T.S. spoke with
representatives of the County Welfare Agency (CWA) and submitted a written
application and supporting documents. T.S. reported that her daughter T.H. was
a college student, who worked part-time, and T.S. expected to claim T.H. as a
dependent on her 2017 tax return.
In response to a request from the CWA, T.S. also provided paystubs
showing four weeks of earnings she received from her job in June and July 2017,
and four weeks of earnings her daughter received from her summer job in June
and July 2017. The paystubs show that T.S. earned $12 per hour and during a
forty-hour week was paid $480 in gross income. T.H. was being paid $8.38 per
hour. During one two-week period, she worked just over twenty-six hours and
earned $294.47 in gross income, and during the second two-week period she
worked just under thirty-five hours and earned $399.81 in gross income.
On August 9, 2017, the CWA informed T.S. that her household's monthly
income exceeded the maximum eligibility limit for Medicaid benefits under the
NJFC Program. The notice did not state the amount of T.S.'s household's income
that the CWA had calculated or how the CWA calculated the household's
income. The notice went on to inform T.S. that her and T.H.'s benefits would
A-0030-18T1
3
be terminated effective August 31, 2017, and U.P.'s benefits would be
terminated effective December 31, 2017.
T.S. requested a fair hearing and the matter was transmitted to the Office
of Administrative Law (OAL) for a hearing before an Administrative Law Judge
(ALJ). Two witnesses testified at the hearing: a Human Services Specialist for
the Division and T.S. The parties also submitted documents, which included
T.S.'s July 2017 application, the paystubs, a letter from T.H.'s employer , and
T.H.'s 2017 W-2 forms. The letter from T.H.'s employer stated that T.H. only
worked on a "limited basis, . . . primarily during the summer and occasional
weekends while in school." The W-2 forms for T.H. reflected that in 2017, she
earned a gross income of $6286.
At the OAL hearing, the Division took the position that the household's
income included both T.S.'s income and T.H.'s income. T.S.'s monthly income
was calculated to be $2162. Based on the four weeks of earnings from T.H.,
reflected in her paystubs from June and July 2017, the Division calculated T.H.'s
monthly income to be $752 and her annual income to be $9024. Adding T.H.'s
income to T.S.'s income, the Division took the position that the household's
monthly income was $2914, which exceeded the NJFC eligibility limit of $2349
for a family of three.
A-0030-18T1
4
In April 2018, the ALJ issued her initial decision. The ALJ accepted the
Division's position, finding that T.H.'s household monthly income exceeded the
eligibility limit. In that regard, the ALJ found that T.H.'s income should be
included because she had a monthly income of $752 and an annual income of
$9024. Consequently, the ALJ found that T.S.'s household income was $2914
per month, which exceeded the NJFC eligibility amount of $2349 per month for
a household of three. Accordingly, the ALJ upheld the Agency's decision to
terminate the family's Medicaid benefits effective August 31, 2017.
Meanwhile, in January 2018, T.S. had provided the CWA with additional
information, which included the letter from T.H.'s employer and information on
T.H.'s actual 2017 income. Based on that information, in early April 2018, the
CWA reevaluated the household's income and found that the family was eligible
for Medicaid benefits effective January 1, 2018.
On July 20, 2018, the Director of the Division issued a final agency
decision, adopting the ALJ's initial decision in its entirety. 2 The Division
accepted the ALJ's finding that T.H.'s income for 2017 was $9024, which was
2
The parties dispute whether T.S. filed exceptions to the ALJ's initial decision.
T.S. included in her appendix a copy of a written exception dated May 2, 2018.
The Division, however, claims it never received that exception. We need not
resolve this dispute because both parties agree that the Division issued a final
agency decision and that decision is the subject of our review.
A-0030-18T1
5
above the exemption from filing a tax return. The Division, therefore, found
that the household income included T.H.'s income and the total monthly income
was $2914, "which exceeded the $2349 maximum gross monthly household
income for a family of three."
II.
T.S. appeals from the Division's July 20, 2018 final agency decision. She
makes two primary arguments, contending that (1) the Division erred in
including T.H.'s income, and (2) she was denied due process because the CWA
did not give her adequate notice of the basis for terminating her family's
Medicaid benefits. We need not reach the second argument, because we agree
with T.H. that the Division erred as a matter of law in including T.H.'s income
as part of the family's household income.
Initially, we identify our limited role in reviewing a decision of an
administrative agency. See In re Stallworth, 208 N.J. 182, 194 (2011) (citing
Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We accord a strong
presumption of reasonableness to an agency's exercise of its statutorily
delegated responsibility, City of Newark v. Nat'l Res. Council, Dep't of Envtl.
Prot., 82 N.J. 530, 539 (1980), and defer to its factual findings, Utley v. Bd. of
Review, Dep't of Labor, 194 N.J. 534, 551 (2008) (citing Jackson v. Concord
A-0030-18T1
6
Co., 54 N.J. 133, 117-18 (1969)). We will not upset the determination of an
administrative agency absent a showing "that it was arbitrary, capricious or
unreasonable, that it lacked fair support in the evidence, or that it violated
legislative policies[.]" Parascandolo v. Dep't of Labor, Bd. of Review, 435 N.J.
Super. 617, 631 (App. Div. 2014) (quoting Campbell v. Dep't of Civil Serv., 39
N.J. 556, 562 (1963)).
In general, "[w]e give deference 'to the interpretation of statutory language
by the agency charged with the expertise and responsibility to administer the
scheme[.]'" Zimmerman v. Sussex Cty. Educ. Servs. Comm'n, 237 N.J. 465,
475-76 (2019) (quoting Acoli v. State Parole Bd., 224 N.J. 213, 229 (2016)).
Nevertheless, we are "in no way bound by the agency's interpretation of a statute
or its determination of a strictly legal issue." Univ. Cottage Club of Princeton
N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007) (quoting In re
Taylor, 158 N.J. 644, 658 (1999)).
"Medicaid was created by Congress in 1965 to 'provide medical services
to families and individuals who would otherwise not be able to afford necessary
care.'" S. Jersey Family Med. Ctrs., Inc. v. City of Pleasantville, 351 N.J. Super.
262, 274 (App. Div. 2002) (quoting Barney v. Holzer Clinic Ltd., 110 F.3d 1207,
1210 (6th Cir. 1997)). "The Medicaid program is fairly characterized as a
A-0030-18T1
7
'cooperative federal-state endeavor' where, in return for federal monies, states
must comply with federal requirements." A.B. v. Div. of Med. Assistance &
Health Servs., 407 N.J. Super. 330, 342 (App. Div. 2009) (quoting L.M. v. State,
Div. of Med. Assistance & Health Servs., 140 N.J. 480, 484 (1995)).
In 2014, New Jersey expanded its existing Medicaid program in
accordance with the Patient Protection and Affordable Care Act (ACA), Pub. L.
No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of
26 U.S.C. & 42 U.S.C.). See N.J. Dep't of Human Servs., Div. of Med.
Assistance & Health Servs., Medicaid Commc'n No. 14-12, Affordable Care Act
Eligibility Information (Nov. 17, 2014) https://www.state.nj.us/humanservices/
dmahs/info/resources/medicaid/2014/14-12_Affordable_Care_Act.pdf. Using
federal funds, New Jersey expanded NJFC to provide health insurance to
previously ineligible adults with income up to 138 percent of the poverty level.
Id. at 3, 4 (expanding eligibility to include parents with income under 133
percent of the federal poverty level, and defining household based on federal tax
filing concepts, i.e., whether a child is a "tax dependent, regardless of age or
student status"). See also N.J.A.C. 10:78-4.1(f)(3) (setting the income limit for
applicants who are parents at "133 percent of the Federal Poverty Level"); 42
C.F.R. §§ 435.603(a)(2), (d)(4) (requiring states as of January 1, 2014, to
A-0030-18T1
8
calculate financial eligibility in accordance with the modified adjusted gross
income (MAGI) method and to "subtract an amount equivalent to 5 percentage
points of the Federal Poverty Level for the applicable family size only to
determine the eligibility of an individual for medical assistance under the
eligibility group with the highest income standard using MAGI-based
methodologies in the applicable Title of the Act, but not to determine eligibility
for a particular eligibility group[]"). In other words, New Jersey must disregard
up to five percent of an individual's income solely for the purposes of
determining that individual's eligibility for benefits under the NJFC even if that
individual's income exceeds 133% of the Federal Poverty Level. 42 C.F.R. §
435.603(d)(4).
In New Jersey, the NJFC program is administered by the Division in
accordance with the Family Health Care Coverage Act, N.J.S.A. 30:4J-8 to -19.
See N.J.S.A. 30:4J-10; N.J.A.C. 10:49-1.1(a); N.J.A.C. 10:78-1.3. The Division
establishes policy and procedures for the application process. See generally
N.J.A.C. 10:78-1.1 to -11.5. Local CWAs evaluate NJFC eligibility. N.J.A.C.
10:49-1.3; N.J.A.C. 10:78-2.1(b). CWAs must "[a]ssist program applicants in
exploring their eligibility for program benefits" and "[a]ssure the prompt and
accurate submission of eligibility data[.]" N.J.A.C. 10:78-2.1(b)(3), (5). An
A-0030-18T1
9
applicant must "[c]omplete, with the assistance of the [CWA], as needed, any
forms required as part of the application process; and . . . [a]ssist the [CWA] in
securing evidence that verifies his or her statements regarding eligibility."
N.J.A.C. 10:78-2.1(c). The CWA then reviews the application "for
completeness, consistency, and reasonableness[.]" N.J.A.C. 10:78-2.1(b)(2).
NJFC regulations require that income include "the income of all members
of the household unit." N.J.A.C. 10:78-4.3(a). The regulations go on to provide
that "natural or adoptive children under the age of 21" are members of the
household unit. N.J.A.C. 10:78-3.5(a)(1)(iii). Nevertheless, income eligibility
determinations for the expanded Medicaid program under the ACA are required
to be made pursuant to the federal income counting methodology known as
MAGI. 42 C.F.R. § 435.603(a)(2). Under federal regulations, income of a
dependent is not included in the household income when the dependent is not
required to file a federal tax return. 42 C.F.R. § 435.603(d)(2)(i). In that regard,
the applicable federal regulation states:
The MAGI-based income of an individual who is
included in the household of his or her natural, adopted
or step parent and is not expected to be required to file
a tax return under section 6012(a)(1) of the Code for
the taxable year in which eligibility for Medicaid is
being determined, is not included in household income
whether or not the individual files a tax return.
A-0030-18T1
10
[Ibid.]
Federal law requires that a tax return be filed for every individual having
taxable yearly gross income that equals or exceeds the exempt amount. 26
U.S.C. § 6012(a)(1). In 2017, the exempt amount for filing a federal income tax
return for a single dependent was $6350. Dep't of the Treasury, Internal
Revenue Serv., Publication 501, Exemptions, Standard Deduction, and Filing
Information for Use in Preparing 2017 Returns 4 (Jan. 2, 2018).
Here, the Division adopted the ALJ's fact findings concerning T.S.'s
household gross monthly income. As already noted, the ALJ, relying on four
weeks of paystubs from June and July 2017, found that T.H.'s monthly income
was $752 and her annual income was $9024. Thus, the Division found that T.H.
had income that was above the exempt amount, and which required T.H. to file
a tax return. The Division then went on to find that T.H.'s income should be
included with T.S.'s household income.
The Division's fact findings, however, are not supported by the evidence
in the record submitted during the OAL hearing. The ALJ and the Division
focused solely on the four weeks of paystubs submitted for T.H. At the OAL
hearing, however, T.S. also submitted a letter from T.H.'s employer and T.H.'s
W-2 forms for 2017. The letter and W-2 forms established that T.H. was not
A-0030-18T1
11
working on a full-time or consistent basis. Thus, using the paystubs to project
monthly and yearly income was not reasonable or consistent with federal law
and regulations. Instead, the material, undisputed facts, which were included as
part of the OAL record, established that T.H.'s income for 2017 was $6286 , as
reflected in her W-2 forms. Accordingly, under federal regulations, T.H. did
not have to file a federal tax return and her income should not have been included
in T.S.'s household income.
In making their determinations, both the ALJ and the Division focused on
the information that T.S. provided with her application filed in July 2017. In
particular, the ALJ and the Division relied on the four weeks of paystubs
provided for T.H. Looking only at the application and paystubs, there may have
been some confusion concerning the scope and nature of T.H.'s work. At the
OAL hearing, however, T.S. clarified that T.H. was a full-time student and only
worked part time. Significantly, as we have noted, T.S. then submitted a letter
from T.H.'s employer and T.H.'s W-2 forms for 2017. The ALJ and the Division
ignored that supplemental information. Under the circumstances of this case,
we find that it was arbitrary and capricious for the Division not to consider that
supplemental information.
A-0030-18T1
12
NJFC regulations make it clear that CWAs, which assist the Division in
making eligibility determinations, are charged with reviewing applications for
completeness, consistency, and reasonableness. N.J.A.C. 10:78-2.1(b)(2). The
CWAs are also directed to assist applicants in exploring their eligibility for
assistance. N.J.A.C. 10:78-2.1(b)(3). Consequently, had the CWA made
reasonable inquiries with T.S., it would have learned that T.H. was only working
part time, was unlikely to have income requiring her to file a federal tax return,
and, therefore, her income should not have been included in the household
income. Indeed, in January 2018, the CWA made exactly that determination.
We further note that this appeal is focused on the loss of Medicaid benefits
for T.S. and T.H. between September 1, 2017 and December 31, 2017. Based
on T.S.'s 2017 application, her benefits and T.H.'s benefits were terminated
effective August 31, 2017. Those benefits were later reinstated effective
January 1, 2018. On this appeal, we reverse the July 20, 2018 final agency
decision upholding the termination of the benefits effective as of August 31,
2017.
Reversed. We do not retain jurisdiction.
A-0030-18T1
13
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 5, 2007
No. 07-50614
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARMANDO RODRIGUEZ-ZAVALA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-289-ALL
Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Armando Rodriguez-Zavala
raises arguments that are foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty
provision and not a separate criminal offense. United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug.
28, 2007) (No. 07-6202). The Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.
*
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.
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44 A.3d 422 (2012)
426 Md. 428
MAURICE JEROME BOOTH
v.
STATE.
Pet. Docket No. 20[*].
Court of Appeals of Maryland.
Denied May 11, 2012.
Petition for writ of certiorari denied.
NOTES
[*] September Term, 2012
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996 F.2d 307
U.S.v.Camero-Otero**
NO. 92-8510
United States Court of Appeals,Fifth Circuit.
June 24, 1993
1
Appeal From: W.D.Tex.
2
AFFIRMED.
**
Conference Calendar
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708 S.W.2d 403 (1985)
Ralph PERRYMAN, Plaintiff-Appellant,
v.
PETERBILT OF KNOXVILLE, INC., Defendant-Appellee.
Court of Appeals of Tennessee, Eastern Section.
November 8, 1985.
Application for Permission to Appeal Denied January 27, 1986.
Gordon Ball, Ball & Dunn, Newport, for plaintiff-appellant.
John F. Weaver, McCord, Cockrill & Weaver, Knoxville, for defendant-appellee.
Application for Permission to Appeal Denied by Supreme Court January 27, 1986.
OPINION
SANDERS, Judge.
The Plaintiff has appealed from a summary judgment in his suit for breach of warranty.
In November, 1982, the Plaintiff-Appellant, Ralph Perryman, who is a long-haul truck driver, purchased a used K-100, 1980 model Kenworth heavy-duty tractor from the Defendant-Appellee, Peterbilt of Knoxville, Inc., which operates a new and used truck dealership in Knoxville. The following February, while the Plaintiff was on a long-haul trip to California, the motor on the tractor failed, resulting in this litigation.
*404 The Plaintiff filed suit against the Defendant alleging breach of both express and implied warranty and intentional or negligent fraudulent misrepresentation. He alleged Defendant expressly and impliedly, through oral representations of its agent, stated the vehicle was fit for the particular purpose of being a long-haul vehicle and represented the vehicle was merchantable. He relied upon such representations to his detriment.
The Defendant filed a motion for summary judgment. In its motion it alleged the complaint failed to state a claim upon which relief could be granted and there was no genuine issue as to any material fact and it was entitled to judgment as a matter of law. In support of its motion it filed the affidavit of its financial manager who attached to his affidavit copies of the offer to purchase containing disclaimer of warranties and a security agreement also containing disclaimer of warranties, both of which were signed by the Plaintiff.
In response to the Defendant's motion the Plaintiff filed the following affidavit by the Plaintiff: "I, Warren Ralph Perryman, was present at the defendant's facility in Knox County, Tennessee when the defendant's agent or agents made material fraudulent misrepresentations and express warranties which were not true concerning the vehicle in question.
"Further, affiant saith not."
He also filed an identical affidavit by Plaintiff's wife, Ruby Perryman.
Upon the hearing the court sustained the motion for summary judgment but granted the Plaintiff leave to file an amended complaint. As pertinent here, the Plaintiff amended his complaint to include the following allegations: "... Ronald Moles, a salesman for the defendant, told the plaintiff that the vehicle's motor had just recently been overhauled and it was completely fit for the purpose of being a long-haul tractor. When in fact this statement was not true, but became the basis for the bargain between the parties.
"The night that Ralph Perryman purchased the vehicle his wife was present and she asked Ronald Moles the following:
"`What if something happens to the truck because we don't have enough money to fix it in the event that it does?'
"Moles replied: `Don't tell anyone I told you, but we have to stand behind our trucks. I would never let you go into a step like this. There's no written warranty but if something happens we have to stand behind it.'"
The Defendant, for answer to the complaint as amended, relied upon the disclaimer of warranty set forth in the offer to purchase and the security agreement. It denied there had been any misrepresentation with reference to the recent overhaul of the motor of the truck. It denied it had authorized anyone to make any representation on its behalf regarding the vehicle that was outside the disclaimer of warranties. It further averred the Complainant failed to comply with Rule 9.02 and 9.07, T.R.C.P., and denied the Plaintiff was entitled to any relief. Defendant also filed another motion for summary judgment, relying upon the allegations of its first motion for summary judgment and the affidavit in support of its first motion. It also filed an affidavit of the secretary of Leaseway Transportation Corp., the company which sold the vehicle in question to the Defendant. Attached to the affidavit were the work orders pertaining to the overhaul of the engine in September, 1982.
The Plaintiff filed no response or countervailing affidavits to the motion, and it was sustained by the court.
The Plaintiff has appealed, insisting the court was in error in granting the Defendant's motion for summary judgment. We cannot agree, and affirm.
As pertinent here, the offer to purchase which was signed by the Plaintiff at the time he purchased the vehicle provides: "All equipment sold as is where is... ."
* * * * * *
"Peterbilt of Knoxville, Inc., hereby expressly disclaims all warranties either express *405 or implied, including all warranties of merchantability or fitness for a particular purpose, and the seller neither assumes or authorizes any other person to assume for it any liability in connection with the sale of this vehicle. Buyer shall not be entitled to recover from seller any consequential damages, damages to property, damages for loss of use, loss of time, loss of profits, or income, or any other incidental damages."
The security agreement, as pertinent here, also provides: "Seller makes no representations or warranties, express or implied, as to the quality, workmanship, design, merchantability, suitability or fitness of the collateral for any particular purpose or any other representation or warranty whatsoever, express or implied."
T.C.A. § 47-2-316, relating to the exclusion or modification of warranties under the UCC, as pertinent here, provides:
"(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that `There are not warranties which extend beyond the description on the face hereof.'
"(3) Notwithstanding subsection (2):
"(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like `as is,' `with all faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty... ."
The Appellant, in his brief, does not question the fact that the exclusionary provisions of the offer to purchase and the security agreement meet the requirements of T.C.A. § 47-2-316, et seq., and from our examination of the record we find the requirements of the statute have been met.
The Appellant, in his brief, argues that summary judgment is inappropriate when the complaint alleges a breach of express warranties and fraud. In support of this insistence he points to the oral statements made by Mr. Moles, the Defendant's agent, as set forth in his amended complaint.
Since the alleged statements of Mr. Moles are in countervention of the written disclaimer of warranties, they are in violation of the parol evidence rule and may not be considered. See T.C.A. § 47-2-202. Also, Comment 2 under T.C.A. § 47-2-316, states:
"The seller is protected under this Article [Chapter] against false allegations of oral warranties by its provisions on parol and extrinsic evidence and against unauthorized representations by the customary `lack of authority' clauses."
The Appellant further argues that since he has alleged fraud as a basis of his claim, summary judgment is inappropriate, and relies upon the case of Long v. State Farm Fire & Casualty, 510 S.W.2d 517 (Tenn. App. 1974) as supportive of his contention.
Our Supreme Court had occasion to address this issue in the case of Fowler v. Happy Goodman Family, 575 S.W.2d 496 (Tenn. 1978) where there were allegations of fraud in a breach of contract case. In affirming the trial court's summary judgment decree, the Court, speaking through Justice Harbison, said:
"We recognize that where a claim of fraud is presented, ordinarily only upon a full trial of the action can the issue properly be developed. As a general rule, summary judgment is not an appropriate procedure for the disposition of such an issue. See Long v. State Farm Fire & Casualty Co., 510 S.W.2d 517, 519 (Tenn. App. 1974).
"Nevertheless, it is incumbent upon the party asserting fraud, when confronted by a motion for summary judgment, to produce some competent and material evidence legally sufficient to support his claim or defense. The affidavit of petitioner in the present case does not contain any evidence which would *406 sustain a defense of fraud in the inducement under the existing Tennessee rule referred to above."
In the case at bar the affidavits of the Appellant are in broad general terms that Defendant's agent made "material fraudulent misrepresentations and express warranties which were not true." They fail to rise to the dignity of evidence that would support Plaintiff's claim.
Finally, the Appellant says the chancellor "misconceived the nature of the Appellant's claim as being in contract only. The Appellant couched his complaint in both contract and the tort theory of fraudulent misrepresentation."
In the case of Mid-South Milling Co., Inc. v. Loret Farms, Inc., 521 S.W.2d 586 (Tenn. 1975) our Supreme Court had occasion to address a similar complaint by a plaintiff. In the Mid-South case the plaintiff alleged certain false representations concerning the quality of chicken feed it had purchased from the defendant. It alleged the defendant was negligent in mixing the food. The chickens failed to gain their normal weight and plaintiff lost money because of the breach of warranty. In its determination of the case the Court, speaking through Justice Henry, said:
"A contract may be negligently or fraudulently breached and the cause of action remain in contract rather than in tort. In the case at bar it was not active negligent performance by the defendants that resulted in damage to the plaintiffs. Rather it was the negligent breach of warranty of sale, which in effect forestalled any performance. The cases and text writers deal with the issue with varying degrees of emphasis placed on the two aspects of the question. We conclude, however, that since the adoption of the Uniform Commercial Code, there is a vast difference between a cause of action based upon negligent breach of warranty of sale of chicken feed, as distinguished, for example, from a cause of action based upon negligent performance of a contract to construct a building; the first is governed by the Code, the latter may be brought in tort.
"The plaintiffs do not sue for the price of the poultry meal. The plaintiffs sue for damages resulting from injury to personal property their chicks which fed on the feed. Whatever may have been the former law, an action for such damages lies under the Uniform Commercial Code, particularly T.C.A. Sec. 47-2-715 where the buyer is allowed his consequential damages as result of the seller's breach of warranty of sale, which consequential damage is defined `(2) Consequential damages resulting from the sellers breach include ... (c) injury to the person or property proximately resulting from any breach of warranty.' The plaintiffs allege damages in the form of money expended due to the fact their chicks did not achieve normal growth; the injury to the chicks resulted in the damages sustained.
"We therefore conclude the gravamen of the present cause of action is breach of warranty of sale, T.C.A. secs. 47-2-313 and 47-2-314; and the damages sought are permissible under and governed by T.C.A. secs. 47-2-714 and 47-2-715. The action lies under those provisions of the Uniform Commercial Code, even though tortious breach on the part of the defendants is alleged." Id. 588, 599.
Under the facts in the case at bar we think it falls within the ambit of Mid-South Milling Co., Inc.
The issues are found in favor of the Appellee. The judgment of the trial court is affirmed and the cost of this appeal is taxed to the Appellant.
GODDARD and FRANKS, JJ., concur.
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262 So.2d 44 (1972)
261 La. 1064
Mrs. Judith FONTANILLE, wife of/and Cleveland Fontanille
v.
WINN-DIXIE LOUISIANA, INC.
No. 52481.
Supreme Court of Louisiana.
May 25, 1972.
Writ refused. On the facts found by the Court of Appeal the result is correct.
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49 U.S. 170 (1850)
8 How. 170
THOMAS H. McCLANAHAN, ADMINISTRATOR OF WILLIAM J. McCLANAHAN, DECEASED, COMPLAINANT AND APPELLANT,
v.
RICHARD DAVIS, WILLIAM D. NUTT, ADMINISTRATOR OF GEORGE COLEMAN, DECEASED, ELIZABETH BLACKLOCK, THE WIDOW AND RELICT OF NICHOLAS F. BLACKLOCK, DECEASED, NICHOLAS F. BLACKLOCK THE YOUNGER, JANE LOWE, LATE JANE BLACKLOCK, DAVID LOWE, HER HUSBAND, AND ELIZABETH FOX, LATE ELIZABETH BLACKLOCK, THE SAID NICHOLAS F. THE YOUNGER, JANE, AND ELIZABETH BEING THE CHILDREN OF THE LATE NICHOLAS F. BLACKLOCK THE ELDER, DECEASED, DEFENDANTS.
Supreme Court of United States.
*172 The cause was argued by Mr. Neale, for the appellant, and Mr. Francis L. Smith, for the appellees.
*177 Mr. Justice NELSON delivered the opinion of the court.
This is an appeal from the Circuit Court of the District of Columbia, and County of Alexandria.
*178 The bill was filed by the administrator of Thomas H. McClanahan against the defendants, to obtain possession of Lavinia, a slave, together with three children, Betsey, Polly, and Maria, and several grandchildren, which had been bequeathed by Elizabeth Edwards to Sarah Nutt, her daughter, for life, and after her decease to Elizabeth F. Nutt, a granddaughter, the wife of the complainant's intestate. Elizabeth, the granddaughter, died, leaving the intestate, her husband, surviving, who died also, leaving Sarah, the life-tenant, surviving. The latter died in 1840.
The complainant took out letters of administration on the estate of the husband, September 9, 1839, and afterwards upon the estate of Elizabeth, the wife, on the 9th of November, 1840, and filed this bill in April, 1845, claiming that the property and right to the possession of the slaves bequeathed to the wife in remainder became complete in him, as the representative of the estate of the husband, on the death of the life-tenant.
The defendants demurred to the bill, and several grounds of objection have been taken under the demurrer.
1. That there is no averment that the executors of Mrs. Edwards assented to the legacy to the granddaughter, so as to vest the property in the legatee, and enable the personal representative to bring the suit. Hairston v. Hall, 1 Call, 188; Smith and Wife v. Towne's Administrator, 4 Munf. 191.
The whole of the personal estate of the testator devolves upon the executor; and it is his duty to apply it, in the first place, to the payment of the debts of the deceased; and he is responsible to the creditors for the satisfaction of their demands to the extent of the whole estate, without regard to the testator's having, by the will, directed that a portion of it shall be applied to other purposes. Hence the necessity that the legatee, whether general or specific, and whether of chattels real or personal, must first obtain the executor's assent to the legacy before his title can become perfect. He has no authority to take possession of the legacy without such assent, although the testator by the will expressly direct that he shall do so; for, if this were permitted, a testator might appoint all his effects to be thus taken, in fraud of his creditors. 2 Williams on Executors, p. 843, ch. 4, § 3, and cases there cited.
But the law has prescribed no particular form by which the assent of the executor shall be given, and it may be, therefore, either express or implied. It may be inferred from indirect expressions or particular acts; and such constructive permission shall be equally available. An assent to the interest of the tenant for life in a chattel will inure to vest the interest of the *179 remainder, and e converso, as both constitute but one estate. So an assent to a bequest of a lease for years carries with it an assent to a condition or contingency annexed to it; and it may be implied from the possession of the subject bequeathed by the legatee for any considerable length of time. Ibid., p. 847, and cases.
The bill, in this case, contains an averment of the possession of the subject of the legacy by the life-tenant, in pursuance of the bequest in the will, and which is admitted by the demurrer; and, upon the principles above stated, lays a sufficient foundation for the presumption, that the possession was taken with the assent of the executors, a presumption of law from the facts admitted, and which assent inured to the benefit of the remainder-man. This ground of objection is not, therefore, well taken.
2. The next objection is, that the complainant has shown no title to the slaves in question, upon the face of the bill.
Because the interest in the remainder did not vest in the intestate, the husband, before his death, so as to make the property a part of the assets of his estate, to be administered upon by his personal representative. He survived Elizabeth, his wife, the legatee in remainder, but died before the life-tenant, and therefore had not, and could not have, reduced the subject of the legacy into possession in his lifetime.
This question is to be determined upon the laws of the State of Virginia; and, on looking into the course of the decisions of the courts in that State, it will be found that the interest of the husband in the wife's remainder of this species of property is placed upon the footing of an interest in a chose in action of the wife, which vests in the husband, if he survives, subject to be reduced to possession by him, if living at the termination of the life estate, and if not, by his legal representative, as a part of his personal estate. Dade v. Alexander, 1 Wash. 30; Wallace et ux. v. Taliaferro et ux., 2 Call, 447, 470, 471, 490; Upshaw v. Upshaw et al., 2 Hen. & Munf. 381, 389; Hendren v. Colgin, 4 Munf. 231, 234, 235; Wade v. Boxley, &c., 5 Leigh, 442.
In a very early case in the Court of Appeals, Dade v. Alexander, decided in 1791, it was resolved, a feme sole being entitled to slaves in remainder or reversion, and afterwards marrying, and dying before the determination of the particular estate, the right vests in the husband. The President (Pendleton) stated, that this was the constant decision of the old General Court from the year 1653 to the Revolution, and has since been confirmed in this court, in the cases of Sneed v. Drummond, *180 and Hord v. Upshaw, and that it had become a fixed and settled rule of property. The case of Wade v. Boxley, &c., decided in 1834, affirmed the same principle. There the question was between the surviving husband and the children of the deceased wife, as to the slaves in remainder, the wife having died before the life-tenant. The court held the wife took a vested remainder in the slaves, which at her death devolved to her husband, and not to the children.
There is some question in the books whether the husband can bring a suit in his own name, or, in case of his death, a suit can be brought in the name of his personal representative, to reduce to possession this species of property after the termination of the life interest; or whether he or the personal representative, as the case may be, is not bound to take out letters of administration upon the estate of the wife, and bring the action as such administrator.
That the husband, and, in case of his death, his personal representative, are entitled to administration in preference to the next of kin to the wife, was expressly decided in the case of Hendren v. Colgin, already referred to.
In the case of Chichester's Exec. v. Vass's Adm'r, 1 Munf. 98, Judge Tucker expressed the opinion, that, in equity, letters of administration upon the estate of the wife were unnecessary; and he referred to several authorities in England, in support of the position, and especially the case of Elliot v. Collier, 3 Atk. 528; S.C., 1 Wils. 168; S.C., 1 Vern. 15. See also Squib v. Wyn, 1 P. Wms. 378, 380, 381; Harg. note to Co. Lit. 351; Whitaker v. Whitaker, 6 Johns. 112, 117, 118.
The cases of Dade v. Alexander, Robinson v. Brock, Drummond v. Sneed, and Wade v. Boxley, &c., already referred to, are cases in which the administration on the wife's estate seems to have been dispensed with.
The usual course, however, is to take out letters; though it is difficult to assign a reason for the requirement; except, perhaps, to give the creditors of the wife a remedy, as the surviving husband is liable for her debts in this representative character to the extent of her assets. (Heard v. Stamford, Cases Temp. Talb. 173; 3 P. Wms. 409; 2 Williams on Executors, 1083, 1084; Gregory v. Lockyer, 6 Mad. 90.) These are limited to her personal estate, which continued in action, and unrecovered at her death. Beyond this he is not responsible, after her decease, no matter what may have been the estate received by her. (2 Williams on Executors, 1084; Went. Off. Executors, 369; and cases before cited.)
In this case the complainant took out letters of administration *181 upon the estate of Elizabeth, the wife, which are referred to in the bill, as well as the letters upon the estate of the husband; but there is no averment of a claim to the possession of the slaves in that right, the claim being placed exclusively upon his right as administrator of the husband. The bill is, probably, defective for want of this averment; but as it is defective upon another ground, which we shall presently state, it is unnecessary to express a definitive opinion upon this one.
The will of Elizabeth Edwards bequeathed to Sarah Nutt, her daughter, the slave Lavinia, together with her future increase, during her life, and, at her death, to Elizabeth, the granddaughter, the wife of the intestate, and to her heirs for ever. And the daughter, before the termination of the life estate, and after the slave came into her possession, sold her to one Nicholas F. Blacklock, residing in the city of Alexandria, since deceased, leaving a widow and three children. These children and the husband of one of the daughters are made defendants, and also the husband of the only living child of George Coleman, who, it is charged, purchased Betsey, one of the children of Lavinia, and William D. Nutt, his administrator. These comprise all the defendants.
The bill prays that the defendants may be decreed to make restitution of the slave Lavinia, her children, and grandchildren, and also to make compensation for the services of the same since the right of the intestate accrued; and, further, that they discover the numbers and names of the children and grandchildren, and the person or persons in whose possession they are, or who own or claim them, or either of them; and also various other facts and circumstances tending to establish the title of the complainant to Lavinia, and her increase, which it is not material further to notice.
The ground of objection upon the demurrer, in this part of the case, is, that there is no direct or positive averment in the bill that the defendants, or either of them, have any interest in the slaves in question, or that the slaves themselves are in their possession, or under their control, or in the possession or under the control of either of them; and which ground of objection, we are of opinion, is well taken, and fatal to the relief prayed for.
There is not only no direct averment of possession or control, but the contrary appears upon the face of the bill. It is charged that Lavinia and her daughter Maria reside in the town of Alexandria, and go out to service, accounting therefor to the family of Nicholas F. Blacklock, for and in behalf of the widow, who is not a party to the bill; that Polly and her children *182 reside in the city of Washington, with persons unknown; and that Betsey and her children are either in the actual possession of Richard Davis, the husband of the daughter of George Coleman, deceased, or under the control of William D. Nutt, his administrator.
Possession is thus shown to be out of the defendants, with the exception of Betsey and her children, who are stated, as we have seen, to be either in the possession of Davis, or under the control of Nutt.
It is apparent, therefore, upon the face of the bill, that the complainant has set forth no title to relief against these defendants, or either of them, whatever may be the right which he has shown to the slaves themselves; as it is not averred that they or either of them have any interest in the slaves, the subject-matter of the suit, or that they are in any way liable to account to him for the same, or chargeable for their services.
The purchase of Lavinia, by Blacklock, of the life-tenant, was lawful, and vested in him the title and right to her service and increase, until the termination of that estate, in 1840. The sale by him of Betsey to Coleman was also lawful; and whether or not the others continued in the family and belonged to him at this decease, and passed to the widow and children, as part of his estate, is nowhere stated in the bill.
There is no averment that the children, who are made defendants, took any interest in them at his decease, as his heirs, next of kin, or legatees; and, as we have already stated, not even so much as possession. The only allegation in this respect is, "that, since the sale to Blacklock by Mrs. Nutt, the said Lavinia has had a numerous increase, to wit, children and grandchildren, most of whom have been sold, or otherwise disposed of, as your orator is informed, and believes; and that some of them are now going at large, or are in the possession of the family of the said Blacklock"; but in the possession of what members of the family, or whether in the possession of any of those who are made defendants, are matters left altogether to conjecture and surmise.
The same vagueness and uncertainty exist in respect to the charges against the other defendants.
There is no averment that Betsey and her children belonged to Coleman at his decease, and passed to his widow and children, or that they had any interest in the same, the only allegation, in this respect, being, that they are said to be in the possession of Davis, the son-in-law, or under the control of Nutt, the administrator.
The radical vice in the bill is, that no case is made out *183 against these defendants, or either of them, no foundation laid creating a liability, legal or equitable, to deliver the slaves to the complainant, or to account for their value or services; they seem to have been made parties, one and all, as witnesses to establish a supposed right of the intestate to the property, under the idea that, from their connection with the families of the former owners of the life interest, they might be able to give some information on the subject. (Story's Eq. Pl., §§ 234, 244, 245, 510, 519; Cooper's Pl. 41, 42; 2 Johns. Ch. 413.)
There are other objections taken to the relief sought in this form, which are worthy of consideration; but as the ground above stated disposes of the case, it is not important that we should examine them.
The complainant having, in our judgment, failed to set forth any foundation for relief, the right to the discovery, which is claimed as incidental, of course fails with it. (Story's Eq. Pl., § 312 and note; 17 Maine, 404; 3 Edw. 107; 3 Beav. 284.)
The decree below must be affirmed.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Alexandria, and was argued by counsel; on 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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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1062
KA 13-01520
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RAJSHEEM J. RICHARDSON, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)
LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF
OF COUNSEL), FOR DEFENDANT-APPELLANT.
CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (HARMONY HEALY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered May 24, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Same memorandum as in People v Richardson ([appeal No. 1] ___
AD3d ___ [Oct. 2, 2015]).
Entered: October 2, 2015 Frances E. Cafarell
Clerk of the Court
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95 F.2d 122 (1938)
BARKER et al.
v.
MAGRUDER, Collector of Internal Revenue.
No. 6901.
United States Court of Appeals for the District of Columbia.
Argued November 16, 1937.
January 17, 1938.
Meredith M. Daubin, of Washington, D. C., for appellants.
James W. Morris, Asst. Atty. Gen., Sewall Key, J. Louis Monarch, and Clarence E. Dawson, Sp. Assts. to Atty. Gen., and Leslie C. Garnett, U. S. Atty., and Howard Boyd, Asst. U. S. Atty., both of Washington, D. C., for appellee.
Before GRONER, STEPHENS, and MILLER, Associate Justices.
GRONER, J.
Wardman Mortgage & Discount Corporation is a Virginia corporation with its principal office in the city of Washington. In 1931 it was placed in the hands of receivers appointed in a creditors' suit in the District Court. Appellants here are the receivers. The corporation had failed to file income tax returns for either of the years 1928 and 1929. The Commissioner of Internal Revenue, after an examination, assessed taxes in the amount of $12,514.11 for 1928 and $6,818.60 for 1929. The corporation kept its books on the accrual basis. In 1933 the United States collector in Baltimore (appellee) filed in the District Court a claim in the amount of $24,830.45 principal and interest and penalties on the amount of the two assessments claiming priority of payment out of the assets of the corporation.[1] The receivers answered and objected to the allowance, and in January, 1936, the court referred the cause to an auditor to examine into and report to the court:
*123 (1) The amount of gross and net taxable income for the years 1928 and 1929 as shown by the books, etc.
(2) The amount of gross and net income for the years 1928 and 1929 on a cash basis.
(3) The amount of income accrued, the nature thereof, and cash collected thereon for the years 1928 and 1929.
(4) The amount of cash loaned to Wardman Construction Company by Wardman Mortgage & Discount Corporation for the years 1924 to 1929, inclusive, and the amount of cash received from the Wardman Construction Company by the Wardman Mortgage & Discount Corporation for the same years.
(5) The amount and rate of interest accrued against loans to Wardman Construction Company and the rate of discount accrued.
(6) The nature of the so-called accrued discount.
(7) Cash payments received by the corporation and applied as collections of interest and discount.
(8) Credit standing of Wardman Construction Company, Inc., in 1928 and 1929 and its ability to meet its obligations.
(9) Amount the corporation actually collected as interest for 1928 and 1929 on the notes it held of Wardman Construction Company, Inc.
(10) Combined charge accrued, both in percentage and amount, for the years 1928 and 1929 as earnings on the notes for money loaned to Wardman Construction Company, Inc.
(11) A detailed and summary analysis of the charges and credits on the books of the corporation.
(12) The total, both in percentage and amount, charged Wardman Construction Company, Inc., by the corporation for money loaned on both the note account and the account receivable during the years 1924 to 1929, inclusive.
The auditor took evidence[2] and filed his report which, on hearing, was confirmed, and the court in November, 1936, entered an order allowing the collector's claim.
The auditor's report shows that during the years 1924-26, inclusive, the mortgage corporation loaned the construction company $634,588.28. In 1928 the mortgage corporation accrued on its books as income from the construction company interest at the rate of 6 per cent. amounting to $51,114 and discount at 9 per cent. (6 months) in the further sum of $34,200. The principal debt at this time had grown from $634,588.28 to $832,000. In 1929 the mortgage corporation accrued on its books as income $49,920 representing 6 per cent. interest on the indebtedness of $832,000. There was no accrual of discount in 1929. The auditor found that the item of discount of $34,200 accrued for 1928 was in effect additional interest upon the loans and advances made by the mortgage corporation to the construction corporation. The collector concedes that what is called discount really amounted to usurious interest under the applicable statute. On the basis of this concession appellants (receivers) contend that, since the usury statute of the District of Columbia[3] provides that in an action to recover a debt where usurious interest is contracted to be paid the plaintiff may recover only the principal of the debt, the bookkeeping accrual of interest at usurious rates is not the realization of income under the tax laws. In other words, that because under the District statute not only the usurious interest but the lawful interest as well is legally uncollectible, the government should not be permitted to tax, under the claim of income, an amount of which, under the law, the taxpayer cannot enforce payment.
And so the question for decision as appellants frame it may be stated Is uncollected accrued usurious interest taxable income when accrued as income on the taxpayer's books? The trial court answered the question in the affirmative.
The correct answer, as we think, depends not so much, as appellants urge, upon the legal right to enforce collection as upon the existing probability of its being received. Certainly if the interest was actually received in the years in question there could be no contention that the amount was not taxable as income, and this would be true without regard to its legality or illegality. United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, 51 A.L.R. 1020. This is also true even though the right to require restitution of the payment in a later year is subject to conditions over which the *124 taxpayer has no control. For if subsequently, in an action to recover the principal of the debt, the borrower pleaded usury and judgment was entered requiring the lender to apply the interest on the principal of the debt, the latter in his tax return would be entitled to an adjustment of the loss in the year in which the application had to be made, and this is so because the assessment of income taxes is on the basis of an annual accounting period. No rule is better established in tax law than that which requires the taxpayer who derives a profit in a particular year to return it as income in the year when received even though it may be claimed he is not entitled to retain the money and even though he may be ultimately adjudged liable to restore its equivalent. Brown v. Helvering, 291 U.S. 193-199, 54 S.Ct. 356-359, 78 L.Ed. 725; North American Oil Consol. v. Burnet, 286 U.S. 417, 424, 52 S.Ct. 613, 615, 76 L.Ed. 1197; Blum v. Helvering, Commissioner, 64 App.D.C. 78, 74 F.2d 482, 484. The rule, as we think, is not different as to accrued income. In the latter case the test is that the amount accrued is likely to be paid or that it can be collected. Corn Exchange Bank v. United States, 2 Cir., 37 F.2d 34; Atlantic Coast Line R. Co. et al. v. Com'r, 31 B.T.A. 730, 749.
In this view the question the answer to which will decide this case is whether when the mortgage corporation accrued the interest on its books it had by course of dealing with its debtor or otherwise a reasonable expectancy of receiving the amount so accrued. If it did, the accrual stands like accrued income generally.
This brings us to a somewhat more detailed examination of the auditor's report. From this it appears that while interest and discount accrued in 1928 in the amount of $85,314.00, the amount of cash received and credited to interest amounted in that year to only $291. But in that same year there was received by the mortgage corporation from the construction company, and in cash, $75,137, a sum equal to seven-eighths of the total interest and discount accrued. Apparently this amount was not applied directly on the books of account either to the payment of interest or the reduction of principal. Unless it was a gift, which of course it was not, it must have represented payment on existing loans and, if that is correct, it may be properly assumed that the full amount received by the mortgage corporation was applied to the payment of interest. Such an assumption merely recognizes the general rule in United States courts with regard to the application of an undesignated payment upon a debt; namely, that it shall first be applied to the liquidation of the interest due before any part is applied to the principal. Helvering v. Drier, 4 Cir., 79 F.2d 501, 503. In this view the amount for that year which accrued but was not paid would be approximately one-eighth of the total sum due; and, if the books of account were so improperly kept as to fail to show the application of the payment, the collector is not unreasonable in insisting, first, that the payment be treated as interest, and, second, that in view of its receipt of such a substantial payment the mortgage corporation be held to have had reasonable expectation of receiving the total accrual. We are in accord with this view, and as to the latter point there are other persuasive facts. In the years 1924 to 1926, inclusive, as we have seen, $634,588.28 was advanced by mortgage corporation to construction company. Nothing was advanced thereafter. In 1925 the construction company paid to the mortgage corporation fifty-two thousand odd dollars; in the year 1926, sixty-eight thousand dollars; in 1927, seventy-eight thousand odd dollars; in 1928, seventy-five thousand odd dollars; and in the year 1929, thirteen thousand odd dollars. All these payments, in the absence of agreement, should have been applied to interest. How they were applied does not appear, but that they were not applied to reducing the principal amount of the notes is clear, for example, from the fact that the 6 per cent. interest accrued on notes in 1929 is more than $2,000 greater than in 1928. But all this is really beside the case, for, whatever else may be said of the course of dealing between the parties, the payments in each year from 1925 through 1928 exceeded the total of legal interest and nearly equaled the total of both interest and discount; and in these circumstances it would be going very far to say whether the payments were considered as applicable to principal or interest that the mortgage corporation did not at all times have reasonable ground for believing that both principal and interest on the debt would be paid. And this is further emphasized by the fact that notes for half the amount owing were shown on the books as "secured."
In this view, while we may concede that usurious interest ordinarily is of doubtful collectibility by reason of the bar of the *125 statute, that question is not present in this case. The question here is rather whether at the time it was accrued on the books of this corporation there was in the circumstances then confronting the taxpayer a reasonable anticipation it would be paid. There is no showing here that the construction company was insolvent and, that question being out of the case, the course of dealings between the two corporations and the regularity of payments in the past, in every instance largely in excess of legal interest, created a presumption in favor of payment. The construction company the borrower is not pleading usury, and we think that the plea could not be made by the mortgage corporation the lender and cannot be made by its receivers. Norton v. Commerce Trust Co. et al., 5 Cir., 71 F.2d 136. Nor do we understand their position to be that they have a right to interpose the plea of usury. Their defense, in simple terms, is that they are not required to pay a tax on money not actually collected and legally uncollectable, even though accrued on their books. The conclusion we reach is that the illegality of the transaction does not affect the obligation to pay a tax, and that here, though the accruals represented legally uncollectable usury, there was at all times a reasonable expectation that they would be paid, and this fact is enough to constitute them income to the same extent as if the several amounts were actually paid. Peyton Du-Pont Co. v. Commissioner, 2 Cir., 66 F.2d 718-722.
In what is said above we have not analyzed the accounts for 1929, because in that year no illegal interest was charged or accrued.
Affirmed.
NOTES
[1] Rev.St. § 3466, 31 U.S.C.A. § 191.
[2] The evidence taken is not included in the record.
[3] D. C. Code 1929. T. 17, § 1 et seq.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-10564
14-10565
Plaintiff-Appellee,
D.C. Nos. 4:14-cr-00833-RCC
v. 4:14-cr-50058-RCC
VICTOR MANUEL LOPEZ-MORALES,
a.k.a. Victor Manuel Lopez, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
In these consolidated appeals, Victor Manuel Lopez-Morales appeals from
the 77-month sentence imposed following his guilty-plea conviction for attempted
reentry of a removed alien, in violation of 8 U.S.C. § 1326, as well as the 12-month
consecutive sentence imposed upon revocation of his supervised release. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Lopez-Morales contends that the district court procedurally erred by failing
to address his argument that his cultural assimilation warranted a below-Guidelines
sentence, and by referencing 18 U.S.C. § 3553(a) at the conclusion of the
sentencing hearing. We review for plain error, see United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that there is none.
The record reflects that the district court considered Lopez-Morales’s argument
concerning his assimilation, and adequately explained the sentence. See United
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, there is no
indication that the court committed plain error by mentioning section 3553(a).
Lopez-Morales also contends that his sentences are substantively
unreasonable in light of his cultural assimilation. The district court did not abuse
its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentences are
substantively reasonable in light of the applicable sentencing factors and the
totality of the circumstances, including Lopez-Morales’s criminal history, his
multiple prior removals, and his failure to be deterred by prior sentences. See id.
AFFIRMED.
2 14-10564 & 14-10565
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129 F.3d 119
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Abdul Massih DASHTO, Petitioner,v.IMMIGRATION and NATURALIZATION SERVICE, Respondent.
Nos. 97-1258, 97-1262.
United States Court of Appeals, Seventh Circuit.
Sept. 12, 1997.Rehearing and Suggestion for Rehearing En Banc Denied Oct. 28, 1997.
1
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division
2
Before Honorable JOEL M. FLAUM, Circuit Judge Honorable FRANK H. EASIERBROOK, Circuit Judge Honorable ILANA DIAMOND ROVNER, Circuit Judge
ORDER
3
Abdul Massih Dashto, a native and citizen of Syria who in 1977 was admitted to permanent residence in the United States, took part in a series of convenience store robberies in 1989. As a result, the INS initiated deportation proceedings against him in 1993. Dashto sought discretionary relief from deportation and an adjustment of status pursuant to sections 212(c) and 245(a) of the Immigration and Nationality Act (8 U.S.C. §§ 1182(c), 1255(a)), but the Board of Immigration Appeals denied those requests. In 1995, we denied Dashto's petition for review and affirmed the order of deportation, reasoning that the Board had not abused its discretion in rejecting his requests on their merits. Dashto v. INS, 59 F.3d 697 (7th Cir.1995). The following year, with an approved visa petition in hand, Dashto filed a motion to remand and reopen with the Board so that he might seek a waiver of inadmissibility pursuant to section 212(h) of the Act (8 U.S.C. § 1182(h)), which would in turn make him eligible for an adjustment of status under section 245(a). He contemporaneously filed a petition for a writ of habeas corpus in the district court in order to stave off his deportation while the Board decided his pending motion. On December 17, 1996, the Board denied Dashto's motion, finding that he was ineligible for relief under section 212(h) (and consequently under 245(a)), having been convicted of an aggravated felony. See 8 U.S.C. § 1182(h). On January 7, 1997, the district court dismissed the habeas petition without objection from Dashto's counsel. Dashto has petitioned for review of the Board's order denying his motion to remand and reopen and has also appealed the district court's dismissal of his habeas petition. The petition for review has been consolidated with the appeal, and pursuant to Operating Procedure 6(b), both have been submitted to the panel that heard Dashto's previous petition for review.1
4
We lack jurisdiction to review the Board's order. Section 440(a) of the Antiterrorism and Effective Death Penalty Act of 1996, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, divests this court of jurisdiction when the alien requesting review was found deportable for having committed two or more crimes of moral turpitude not arising from a single scheme of criminal conduct and has been ordered to serve a prison term of one year or more.2 See Arevalo-Lopez v. INS, 104 F.3d 100, 101 (7th Cir.1997). As we have noted previously, when-he appeared before the Immigration Judge, Dashto conceded that the evidence was sufficient to establish that he had committed at least two crimes of moral turpitude not arising from a single scheme of criminal misconduct and therefore that he was subject to deportation under section 241(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(ii). Dashto, 59 F.3d at 699. As we have also noted, Dashto was ordered to serve concurrent prison terms of six years on each of the robbery counts to which he pled guilty in state court. Id. The applicability of section 440 of the AEDPA, as amended, is therefore clear. We have no jurisdiction to review the Board's order as Dashto asks us to do. The petition for review is dismissed.
5
We likewise dismiss the companion appeal challenging the district court's dismissal of the habeas petition. Dashto has articulated no reason why the district court erred in dismissing the petition once the Board had denied his request to remand and reopen, and indeed he raised no objection to dismissal below, as we have noted. In any event, the dismissal of the petition for review of the Board's order moots any question there might be concerning the habeas petition.
DISMISSED
1
After reviewing the briefs and the record, the panel is unanimously of the view that oral argument is unnecessary. Accordingly, the appeal has been submitted on the briefs and the record alone. See Fed. R.App. P. 34(a); Circuit Rule 34(f)
2
Before the IIRIRA was enacted, section 440(a) of the AEDPA required that the crimes of moral turpitude otherwise meet the criteria of section 241(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(i). That provision requires that the offense have been committed within five years after the alien's entry to the United States, or ten years if the alien's status was adjusted to that of lawful permanent resident pursuant to 8 U.S.C. § 1255(j). The robberies that Dashto committed in 1989 would not meet this requirement, because he was admitted to lawful permanent residence in this country in 1977, twelve years earlier. Section 306(d) of the IIRIRA subsequently amended section 440(a) so as to make the date on which the crimes were committed irrelevant. However, section 309(c) of the IIRIRA sets forth a series of transitional rules for "aliens in proceedings," including the "general rule" that the amendments made by this subtitle--including section 306(d)--do not apply to aliens in deportation proceedings prior to April 1, 1997. See 8 U.S.C.A. § 1101 (note). Dashto was in deportation proceedings before that date, so section 306(d)'s amendment of AEDPA section 440(a) would appear inapplicable, and consequently the statute would not deprive the court of jurisdiction. See Anwar v. INS, 116 F.3d 140, 142-43 (5th Cir.1997); Turkhan v. INS, 1997 WL 458120, * 2 (7th Cir. Aug. 12, 1997). But a separate transitional rule accomplishes the same end as section 306(d) for cases in which the petitioner seeks judicial review of a final order of deportation entered more than thirty days after enactment of the IIRIRA (September 30, 1996). See 309(c)(4)(G) of the IIRIRA, 8 U.S.C. § 1101 (note). The order that Dashto asks us to review--the Board's refusal to remand and reopen--is not, strictly speaking, a final order of deportation, but we treat it as such for purpose of the judicial review provisions of the AEDPA and the IIRIRA. See Chow v. INS, 113 F.3d 659, 663-64 (7th Cir.1997); Turkhan, 1997 WL 458120, * 2. The Board entered its order on December 17, 1996, more than thirty days after the IIRIRA was enacted, bringing into play this transitional rule. The dates of the robberies are therefore irrelevant
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710 S.E.2d 41 (2011)
STATE of North Carolina
v.
Kenneth HAMMOND.
No. 106P11.
Supreme Court of North Carolina.
June 15, 2011.
Kenneth Hammond, for Hammond, Kenneth.
*42 Catherine F. Jordan, Assistant Attorney General, for State of North Carolina.
John Snyder, District Attorney, for State of North Carolina.
ORDER
Upon consideration of the petition filed by Defendant on the 21st of March 2011 in this matter for a writ of certiorari to review the order of the North Carolina Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Dismissed by order of the Court in conference, this the 15th of June 2011."
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211 S.W.3d 584 (2005)
Samuel EVANS, Appellant
v.
Benita EVANS, Appellee.
No. CA 04-884.
Court of Appeals of Arkansas, Division I.
August 31, 2005.
Dodds, Kidd & Ryan, by: Judson C. Kidd and David W. Kamps, Little Rock, for appellant.
Worsham Law Firm, by: Richard E. Worsham, Little Rock, for appellee.
JOSEPHINE LINKER HART, Judge.
Appellant, Samuel Evans, argues that, by refusing to lower his alimony payments, the circuit court erroneously modified the terms of a property-settlement agreement between him and appellee, Benita Evans, that provided for reduction of his alimony payments while he worked outside of the United States as a medical missionary. We affirm, concluding that the court's refusal to lower his alimony payments was a proper exercise of its contempt powers.
On December 18, 2000, a decree was entered granting appellee a divorce from appellant. Incorporated into the decree was the parties' property-settlement agreement, which provided in part as follows:
[Appellant] will pay to [appellee] the sum of $5,000.00 per month, as alimony, on the first day of each month. . . . [Appellee] acknowledges that [appellant] plans to become a medical missionary and agrees that, despite any economic hardship it may cause her, [appellant's] alimony payments should be reduced to $1,000.00 during each month he lives outside the United States while pursuing this lifelong ambition. Upon [appellant's] return to the United States alimony payments of $5,000.00 per month shall immediately resume.
The agreement further provided that appellant would pay appellee $100,000 following the sale of the marital residence.
Following the sale of the residence, the court, in an order filed August 13, 2001, found appellant "in willful contempt of the *586 Decree of Divorce entered herein for failure to pay alimony and for failure to meet other financial obligations" and ordered him to pay, along with other sums, $100,000 plus interest relating to the disposition of the parties' marital home. The court also instructed appellant to "surrender his passport" to the court and ordered that his "passport shall not be returned to him, nor shall [appellant] apply for a duplicate passport," until appellant had made the required payments, including payment of the $100,000 plus interest.
On January 11, 2002, appellee filed a petition asking that appellant be held in contempt. The matter was not heard, however, until May 13, 2004. At the hearing, appellant's counsel argued that, in accordance with the property-settlement agreement, appellant's monthly alimony payment decreased to $1000 beginning in January 2002 when he left the United States and became a medical missionary. During his testimony, appellant admitted that he had obtained a duplicate passport and left the United States on December 30, 2001, for the Philippines, where he practices as a medical missionary. He also admitted that he filed for bankruptcy in Missouri in August 2002, that he had not paid $100,000 to appellant, and that this payment was still within the jurisdiction of the bankruptcy court. Also introduced into evidence was an order from the bankruptcy court that awarded appellee a judgment for any unpaid alimony.
In its June 1, 2004, order, the court found appellant in contempt of court for "applying for a duplicate passport and blatantly leaving the United States against the Court's Order and for not paying alimony payments as ordered." In calculating appellant's alimony arrearages, the court stated that appellant "is not entitled to receive a reduction of the $5,000.00 per month obligation from January 2002 through July 2002, since [appellant's] departure from the United States during this time period was in violation of the Court's Order." The court further ordered that the "monthly alimony obligation of [appellant] shall be reduced to $1,000.00 per month effective from August 2002, to present, provided that the United States Bankruptcy Court in Missouri discharges [appellant] from his obligation . . . to pay [appellee] $100,000.00." The order further provided that if appellant was "not allowed a discharge of this obligation, then additional alimony arrearages shall be calculated from August 2002 through the date of this hearing at the rate of $5,000.00 per month, with a supplemental order being issued from this Court awarding [appellee] judgment against [appellant] for this additional sum."
On appeal, appellant argues that the court erred by modifying the parties' property-settlement agreement and ordering him to pay $5000 a month in alimony even though the agreement reduced his alimony obligation to $1000 a month while he was working as a medical missionary outside of the United States. We note the well-established Arkansas jurisprudence that when parties enter voluntarily into an independent property-settlement agreement that is incorporated into a decree of divorce, the agreement cannot subsequently be modified by the court. See, e.g., Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997). Appellant, however, acknowledged in his brief to this court that he was properly found in contempt of the circuit court's order for leaving the United States and for violating the parties' agreement. And if appellant had abided by the court's order, then he would have remained in the United States and continued to pay alimony at the rate of $5000 a month.
*587 The Arkansas Supreme Court has stated that if "an act interferes with the order of the court's business or proceedings, or reflects upon the court's integrity, that act is deemed contemptuous" and that a "court's contempt power may be wielded to preserve the court's power and dignity, to punish disobedience of the court's orders, and to preserve and enforce the parties' rights." Hart v. McChristian, 344 Ark. 656, 670, 42 S.W.3d 552, 562 (2001). In Hart, although the parties' limited-partnership agreement required each party to pay one-half of any costs associated with arbitration, the Arkansas Supreme Court concluded that the trial court properly assessed one party the other half of the costs as punishment for violating the court's orders. The court concluded that "the contempt award was not a modification of the parties' limited-partnership agreement but a valid exercise of the court's inherent contempt power." Id. at 671, 42 S.W.3d at 562. In the case at bar, the circuit court's decision to order appellant to pay alimony at the rate of $5000, despite appellant's presence in the Philippines as a medical missionary, was likewise not a modification of the terms of the agreement. Rather, it was a valid exercise of the court's inherent contempt power for appellant's violation of the court's order restricting his travel outside of the United States until he satisfied his obligation under the agreement to make the $100,000 payment to appellee. Thus, we affirm.[1]
Affirmed.
BIRD and CRABTREE, JJ., agree.
NOTES
[1] While appellant further argues that the doctrine of unclean hands is inapplicable, we do not address this argument because the court, in its order, did not rely on the doctrine. Instead, the court relied on its contempt powers and fashioned a remedy designed to enforce its prior order.
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FILED
NOT FOR PUBLICATION
NOV 04 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES, No. 19-35035
Plaintiff-Appellant, D.C. No. 9:09-cv-00160-DWM
v.
MEMORANDUM*
CHRISTOPHER SAVAGE, Kootenai
National Forest Supervisor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted October 25, 2019
Seattle, Washington
Before: CLIFTON, IKUTA, and BENNETT, Circuit Judges.
Alliance for the Wild Rockies (Alliance) appeals the district court’s 2018
order dissolving the permanent injunction against the Miller West Fisher Project
(Miller Project), and certain of the district court’s rulings in its 2010 summary
judgment order. We have jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The conclusion of the United States Forest Service (Forest Service) and the
Fish and Wildlife Service (FWS) (collectively, the Agencies) that the Miller
Project “may affect, but is not likely to adversely affect” grizzly bears in the
Cabinet-Yaak recovery zone was not arbitrary and capricious. After the FWS
issued a biological opinion and incidental take statement for the Forest Plan
Amendments for Motorized Access Management (Access Amendments), the
Agencies concluded that the Miller Project’s effects fell within the range analyzed
within these Endangered Species Act (ESA) documents. To the extent the Miller
Project would impose effects beyond what was previously analyzed, the Agencies
determined that those additional effects were “not likely to adversely affect”
grizzly bears. Therefore, the Forest Service was not required to obtain a biological
opinion specific to the Miller Project’s activities that will occur in the Cabinet-
Yaak recovery zone. See Gifford Pinchot Task Force v. U.S. Fish and Wildlife
Serv., 378 F.3d 1059, 1067–68 (9th Cir. 2004), superseded on other grounds by
Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg.
7214 (Feb. 11, 2016).
We take judicial notice of Alliance for the Wild Rockies v. Probert, No. CV
18-67, 2019 WL 4889253 (D. Mont. Oct. 3, 2019), which held that the Agencies
must reinitiate consultation regarding the implementation of the Access
2
Amendments because the Forest Service was exceeding the Access Amendments’
incidental take statement in BORZ areas. See Fed. R. Evid. 201. Because the
district court’s 2018 order dissolving the permanent injunction was based in part
on the Miller Project’s compliance with the Access Amendments’ incidental take
statement in the Cabinet Face BORZ, Probert’s conclusion that the Forest Service
is not complying with that incidental take statement in the BORZ area potentially
undermines the district court’s ruling.1 We “may remand a case to the district court
for further consideration when new cases or laws that are likely to influence the
decision have become effective after the initial consideration.” White Mountain
Apache Tribe v. State of Ariz., Dep’t of Game & Fish, 649 F.2d 1274, 1285–86
(9th Cir. 1981). Accordingly, we remand to the district court for the limited
purpose of reconsidering whether the Miller Project complies with the ESA in the
Cabinet Face BORZ. See id. This limited remand is without prejudice, meaning
Alliance is not precluded from filing a new action in district court challenging the
1
Probert is limited to the Access Amendments’ environmental effects in
BORZ areas. See 2019 WL 4889253, at *6. Therefore, Probert does not cast
doubt on the district court’s dissolution of the permanent injunction against the
Miller Project’s activities that will occur in the Cabinet-Yaak recovery zone.
3
Forest Service’s environmental compliance. We will retain jurisdiction over any
subsequent appeals.2
We reject Alliance’s argument that the Forest Service’s analysis of the
Miller Project does not comply with the National Environmental Policy Act
(NEPA). In preparing the environmental impact statement (EIS) and supplemental
EIS for the Miller Project, the Forest Service aggregated the impacts of road
closure breaches into its analysis of the environmental baseline, and concluded that
road closure breaches were not a fundamental factor. Alliance has pointed to no
evidence in the record that the Miller Project will increase the frequency of road
closure breaches. Therefore, the Forest Service could reasonably conclude it was
not required to provide a separate analysis of the cumulative impacts of road
closure breaches. See League of Wildnerness Defs./Blue Mountains Biodiversity
Project v. Connaughton, 752 F.3d 755, 762 (9th Cir. 2014).
AFFIRMED IN PART; REMANDED IN PART.3
2
Alliance’s motions to take judicial notice are DENIED (Docket Entry Nos.
13 and 43). The Agencies’ motion to submit a declaration is DENIED (Docket
Entry No. 54).
3
Each party shall bear its own costs.
4
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-2753
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Wesley Cortez Oatman
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: April 3, 2017
Filed: July 12, 2017
[Unpublished]
____________
Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Wesley Oatman pleaded guilty to conspiracy to distribute heroin pursuant to
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. For sentencing purposes, Oatman was
deemed a career offender according to the United States Sentencing Guidelines
because he had at least three qualifying prior state felony convictions for controlled
substance offenses. See U.S.S.G. §§ 4B1.1(a) and 4B1.2(b). Using the sentencing
enhancement for career offenders, the district court1 determined that Oatman’s
Guidelines range was 262 to 327 months’ imprisonment. The court, however, varied
downward below the Guidelines range, imposing a 220-month sentence based on
Oatman’s offense and offender characteristics. Without the career-offender
enhancement, Oatman’s Guidelines range would have been 168 to 210 months.
Oatman appeals the application of the career-offender enhancement. He does not
challenge whether the enhancement applies to him specifically. Instead, he argues that
the Sentencing Commission exceeded its congressional mandate by including state
offenses in the types of crimes that trigger the enhancement. For the reasons stated
herein, we affirm Oatman’s sentence.
“In 28 U.S.C. § 994(h), Congress directed the Sentencing Commission to
establish guidelines requiring a sentence at or near the statutory maximum for adult
defendants convicted of certain felonies, if the defendants have already been
convicted of two or more ‘offense[s] described in’ certain federal drug trafficking
statutes.” United States v. Consuegra, 22 F.3d 788, 789 (8th Cir. 1994) (alteration in
original) (quoting 28 U.S.C. § 994(h)(2)(B)). “The authority Congress has given the
Sentencing Commission to promulgate guidelines is extremely broad.” United States
v. Galloway, 976 F.2d 414, 419–20 (8th Cir. 1992) (en banc). “Broad as that
discretion may be, however, it must bow to the specific directives of Congress.”
United States v. LaBonte, 520 U.S. 751, 757 (1997). In formulating the career-
offender enhancement, the Commission promulgated U.S.S.G. § 4B1.2, which
includes both state and federal convictions as qualifying offenses. See Consuegra, 22
F.3d at 789. Oatman challenges § 4B1.2 as inconsistent with the Commission’s
congressional mandate. He argues that state drug convictions affect black men more
than similarly situated white men. Because Congress commanded the Commission to
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
-2-
establish guidelines “entirely neutral as to . . . race”, see 28 U.S.C. § 994(d), Oatman
argues that the Commission exceeded its mandate by including state offenses.
Oatman argues that 64 percent of defendants receiving the career-offender
enhancement are black, which is disproportionate to the general population. He
contends that because of the systemic issues of racism in the United States, the
enhancement, although “facially neutral,” fails to meet the statutory command of
being “entirely neutral.” He traces his argument from the origins of slavery in this
country, through the Civil War, to the poverty-stricken South Side of Chicago where
he grew up.
Oatman does not claim that § 4B1.2 is unconstitutional. Instead, he argues that
the race-neutral language of § 994(d) demonstrates that Congress intended the
Guidelines to provide greater protections for racial minorities than the Constitution.
Cf. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424
(2006) (saying the Religious Freedom Restoration Act of 1993 provides greater
protections than the Free Exercise Clause of the First Amendment). Oatman asks this
court to invalidate § 4B1.2 under a disparate-impact analysis. Under his suggested
analysis, a Guidelines enhancement may pass constitutional muster under the Equal
Protection Clause, but fail a higher statutory standard imposed by § 994(d). He relies
on a number of statutory interpretation cases that have allowed causes of action for
claims based on the disparate impact of certain policies. See, e.g., Watson v. Fort
Worth Bank & Trust, 487 U.S. 977 (1988); Dothard v. Rawlinson, 433 U.S. 321
(1977). Oatman, however, misses that these disparate-impact cases arise under civil
rights statutes designed to remedy discrimination. See, e.g., Texas Dep’t of Hous. &
Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2525 (2015)
(expanding disparate-impact claims to include the Fair Housing Act among Title VII
and the Age Discrimination in Employment Act). Oatman does not present a cause
of action under a statute designed to remedy discrimination. He contends that the
Commission exceeded its authority by promulgating § 4B1.2 because it conflicts with
-3-
the race-neutral statutory directive of § 994(d), which is a question of statutory
interpretation.2 See United States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995) (using
“principles of statutory interpretation, deference, and logic” to analyze whether the
Guidelines fall within the mandate of § 994); see also Galloway, 976 F.2d at 420
(reviewing Guidelines provisions under the Chevron3 deference rubric).
Although we review de novo whether the Commission acted within its statutory
authority in promulgating the Guidelines, we will uphold the Commission’s
interpretation of its mandate if it is reasonable. See Consuegra, 22 F.3d at 789. We
decline to address Oatman’s contention that § 4B1.2 is in conflict with § 994(d)’s
neutrality directive based on statistical disparities because Oatman did not make this
argument before the district court. We will not consider an argument raised for the
first time on appeal unless the appellant completes the difficult task of establishing
all four requirements for plain error:
First, there must be an error or defect—some sort of “[d]eviation from
a legal rule”—that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error must
be clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it “affected the outcome
of the district court proceedings.” Fourth and finally, if the above three
prongs are satisfied, the court of appeals has the discretion to remedy the
error—discretion which ought to be exercised only if the error
“‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’”
2
We declined to address an argument similar to Oatman’s in United States v.
Ybabez, in which the appellant argued that § 4B1.1 was not neutral with regard to
socioeconomic status, because the defendant failed to demonstrate a miscarriage of
justice. 919 F.2d 508, 510 (8th Cir. 1990).
3
See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
-4-
Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations in original) (citations
omitted) (quoting United States v. Olano, 507 U.S. 725, 732–36 (1993)).
For this court to overturn Oatman’s sentence, he must show that the district
court erred. In addition, the identified error “must be clear or obvious, rather than
subject to reasonable dispute.” Id. None of Oatman’s statistical evidence regarding
state-based racial disparities was presented to the district court. Courts that have
addressed the inclusion of state convictions in the career-offender enhancement have
found the enhancement reasonable because “[t]o distinguish among [defendants] on
the basis of which jurisdiction happened to punish the past criminal behavior seems
(in the absence of some special circumstance) close to irrational.” United States v.
Beasley, 12 F.3d 280, 283 (1st Cir. 1993). Eliminating state convictions from the
career-offender enhancement would be “at least as likely to produce a crazy-quilt of
punishment results, as to connect similar punishments rationally to similar past
behavior.” Id. at 284. The Guidelines were intended to reduce disparity, not increase
it. See Mistretta v. United States, 488 U.S. 361, 365–66 (1989).
We decline to find it to be clear or obvious error by the district court to apply
the Guidelines consistent with other federal courts when it has done so without
Oatman’s production of any legal authority to the contrary and without the benefit of
any of the evidence presented for the first time on appeal.
Accordingly, we affirm.
______________________________
-5-
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754 N.W.2d 853 (2008)
STATE
v.
HICKS.
No. 2008AP000739-CRNM.
Supreme Court of Wisconsin.
May 20, 2008.
Motion for reconsideration. Denied
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^
V.' 1 J-r ' I— ^- *
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2GMPR28 Ail 9:1*7
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 69542-8-1
Respondent, DIVISION ONE
v.
SARAH JANE WIXOM, UNPUBLISHED OPINION
Appellant. FILED: April 28, 2014
Lau, J. — Sarah Wixom appeals her drug possession convictions on the ground
that she was unlawfully seized when a police officer asked her to identify herself while
investigating a report that a male driver may have punched his female passenger.
Because Wixom failed to move for suppression of the drug evidence on this basis
below, and because she has not demonstrated "manifest error affecting a constitutional
right" under RAP 2.5(a)(3), we decline to review her untimely claim. We affirm.
FACTS
Wixom assigns no error to any of the trial court's findings of fact entered after her
pretrial suppression motions. Unchallenged findings are verities on appeal. State v.
69542-8-1/2
O'Neill. 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Those findings establish the
following facts.
On October 17, 2011, City of Mount Vernon Police Officers Shaddy, Oster, and
Gerondale responded to an eyewitness report that a male driver may have punched his
female passenger before stopping in a Walmart parking lot. When Officer Shaddy
located the vehicle, Wixom was standing outside. The driver exited the vehicle and
immediately approached Officer Shaddy while fidgeting and speaking rapidly. Wixom,
who was clearly upset, yelled profanity at Officers Shaddy and Oster while they
handcuffed the driver. Officer Gerondale left the scene to locate the eyewitness.
Officer Shaddy frisked the driver and found methamphetamine in his pocket.
Wixom continued to yell as Officer Oster attempted to discuss the reported
assault with her. Wixom insisted the driver did not hit her and said the eyewitness must
have called in a false report. At this point, Officer Oster asked Wixom to identify herself.
Wixom said her name was "Sarah J. Bixom" and her birth date was August 6, 1986. A
computer search using this information turned up no results. Officer Oster, having just
learned the driver's vehicle was registered to a "Barbara Wixom," asked Wixom if her
last name was actually "Wixom." Wixom acknowledged it was. She maintained,
however, that her birth date was August 6, 1986. Following another unsuccessful
computer search, Wixom acknowledged her birth date was actually August 6, 1983.
Officer Oster arrested Wixom for providing a false statement. During a search of
Wixom's jacket, Officer Shaddy located methamphetamine in a wallet. The police
impounded the vehicle and later executed a search warrant. The search revealed
methamphetamine in the vehicle's trunk and center console. A search of a purse on the
-2-
69542-8-1/3
passenger floorboard revealed a receipt and a pill bottle bearing Wixom's name, as well
as an Alprazolam pill bottle bearing the name "William Carnahan."
The State charged Wixom by amended information with two counts of
methamphetamine possession and one count of Alprazolam possession. Following a
bench trial on stipulated facts, the court convicted Wixom of Alprazolam possession and
one count of methamphetamine possession. Wixom appeals her convictions.
ANALYSIS
Wixom's assignment of error states, "The officer violated article I, section 7, when
he demanded that Ms. Wixom provide identifying information." Br. of Appellant at 1.
She claims she was "seized as a matter of law when the officer first asked her to identify
herself." Br. of Appellant at 8. She concludes, "Because Ms. Wixom was unlawfully
seized, the evidence obtained during the subsequent search of her person and car must
be suppressed, and her case dismissed." Br. of Appellant at 13. For the reasons
discussed below, we conclude Wixom failed to preserve this issue for appeal.
"As a general rule, appellate courts will not consider issues raised for the first
time on appeal." State v. McFarland. 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995);
see also RAP 2.5(a) ("The appellate court may refuse to review any claim of error which
was not raised in the trial court."). An appellant waives a suppression issue if he or she
failed to move for suppression on the same basis below. See State v. Garbaccio, 151
Wn. App. 716, 731, 214 P.3d 168 (2009) ("Because [the defendant's] present contention
was not raised in his suppression motion, and because he did not seek a ruling on this
issue from the trial court, we will not consider it for the first time on appeal.").
-3-
69542-8-1/4
Wixom waived her assignment of error by raising it for the first time on appeal.
As discussed below, Wixom filed three suppression motions. None raised the present
issue—whether all physical evidence must be suppressed because Officer Oster
unlawfully seized Wixom when he first asked her to identify herself.
Wixom filed her first suppression motion on March 21, 2012. She raised no
unlawful seizure issue and limited her request to suppression of the methamphetamine
found on her person.1 She claimed the search of her person was unconstitutional
because the police officer lacked probable cause to arrest her for obstructing a law
enforcement officer. At a hearing on the motion held on April 4, 2012, the trial court
displayed some confusion regarding the issues presented by the motion. The
prosecuting attorney stated, "It's whether there was PC to arrest." Report of
Proceedings (RP) (Apr. 4, 2012) at 19. Defense counsel expressed no disagreement.
He merely added, "And we're asking to suppress the evidence that was on her person
at this point." RP (Apr. 4, 2012) at 19. In an oral ruling, the court agreed that the police
lacked probable cause to arrest Wixom for obstruction. But it declined to order
suppression, ruling an evidentiary hearing was needed to determine if the police had
probable cause to arrest Wixom for making false statements to a public servant.2
1 At the time Wixom filed her first suppression motion, she faced a single
possession charge associated with the methamphetamine found during the search of
her person incident to arrest. Approximately a week later, the State charged two
additional counts to account for drugs found during the postarrest vehicle search. As
stated above, Wixom now seeks suppression of all physical evidence—that is, of the
drugs found both on her person and in the vehicle.
2 On June 8, 2012, the court entered written findings and fact and conclusions of
law memorializing its April 4, 2012 oral ruling. It made no ruling as to whether an
unlawful seizure occurred when Officer Oster asked Wixom to identify herself.
69542-8-1/5
The court set an evidentiary hearing for May 9, 2012. Prior to the hearing,
Wixom filed a second suppression motion. Again, she raised no unlawful seizure issue.
She instead argued, "The search of Ms. Wixom's person, pursuant to an arrest for an
alleged violation of RCW 9A.76.175 [the criminal statute prohibiting material false
statements to a public servant], was illegal because the statute is unconstitutional as
applied to her and upon statutory construction."3 Although she asserted she was
"clearly seized and searched without a warrant," context shows this assertion supported
her overarching claim that the arrest was unlawful.
At the May 9, 2012 evidentiary hearing, the court identified the dispositive issues
as "whether or not the statement by [Wixom] was material, and whether it was made to
an officer who was in the official discharge of his duties." RP (May 9, 2012) at 101-02.
In written orders entered on June 13, 2012, the court ruled (1) probable cause
supported Wixom's arrest for making a false statement and (2) "RCW 9A.76.175 is not
unconstitutionally vague or overbroad." It made no ruling as to whether an unlawful
seizure occurred when Officer Oster asked Wixom to identify herself.
Wixom filed a third suppression motion on August 3, 2012. This time she
challenged the sufficiency of the affidavit supporting issuance of the vehicle search
warrant. Again, she raised no unlawful seizure issue. In a written order entered on
October 4, 2012, the court upheld the search warrant. It made no ruling as to whether
an unlawful seizure occurred when Officer Oster asked Wixom to identify herself.
3 RCW 9A.76.175 provides: "A person who knowingly makes a false or
misleading material statement to a public servant is guilty of a gross misdemeanor.
'Material statement' means a written or oral statement reasonably likely to be relied
upon by a public servant in the discharge of his or her official powers or duties."
-5-
69542-8-1/6
The record shows Wixom raised the present seizure issue for the first time on
appeal. She cites to nothing in the record indicating that she raised this issue before
the trial court. Review is discretionary unless Wixom can demonstrate the issue
constitutes "manifest error affecting a constitutional right." RAP 2.5(a)(3).
To take advantage of RAP 2.5(a)(3), Wixom bears the burden to show the
alleged error is "truly of constitutional dimension," and that it resulted in actual prejudice.
State v. O'Hara. 167 Wn.2d 91, 98, 217 P.3d 756 (2009). Wixom fails to carry this
burden because she never cites RAP 2.5(a)(3) or discusses its applicability.4 "In
analyzing the asserted constitutional interest, we do not assume the alleged error is of
constitutional magnitude." O'Hara, 167 Wn.2d at 98: see also State v. Montgomery.
163 Wn.2d 577, 595, 183 P.3d 267 (2008) (construing RAP 2.5(a)(3) narrowly).
Further, "[i]f the facts necessary to adjudicate the claimed error are not in the
record on appeal, no actual prejudice is shown and the error is not manifest."
McFarland. 127 Wn.2d at 333. Our record lacks necessary facts.
"Not every encounter between an officer and an individual amounts to a seizure."
State v. Nettles. 70 Wn. App. 706, 709, 855 P.2d 699 (1993). For purposes of article I,
section 7, a seizure occurs when, "when considering all the circumstances, an
individual's freedom of movement is restrained and the individual would not believe he
or she is free to leave or decline a request due to an officer's use of force or display of
authority." State v. Rankin. 151 Wn.2d 689, 695, 92 P.3d 202 (2004). Generally
speaking, "[a]n officer's request for identification, without more, is not a seizure." State
4 The State argues, "[T]he situation does not present a manifest error affecting a
constitutional right that permits [Wixom] to raise the issue of when she was seized for
the first time on appeal under RAP 2.5(a)." Resp't's Br. at 14.
-6-
69542-8-1/7
v. Smith. 154 Wn. App. 695, 700, 226 P.3d 195 (2010); see also State v. Bailev. 154
Wn. App. 295, 300, 224 P.3d 852 (2010) ("[A]n officer may ask for an individual's
identification in the course of a casual conversation.").
Because Wixom did not make her suppression argument below, few details
surrounding the alleged unlawful seizure were developed. Accordingly, the record is
insufficient to review the issue for the first time on appeal and the alleged error is not
manifest. We decline to consider itfor the first time on appeal. RAP 2.5(a); State v.
Mierz. 127 Wn.2d 460, 468, 901 P.2d 286 (1995); State v. Baxter. 68 Wn.2d 416, 422-
23, 413 P.2d 638 (1966).
We affirm the convictions.
WE CONCUR:
^b
§dU-d)o £y~ fo*^
-7-
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248 B.R. 581 (2000)
In re Carrie BUENO, Debtor.
Carrie Bueno, Appellant,
v.
U.S. Bankruptcy Court, Appellee.
No. CIV.A.00-K-65.
United States District Court, D. Colorado.
May 16, 2000.
*582 Andy Cameron, Denver, CO, for Appellant.
Sally Zeman, Denver, CO, Chapter 13 Trustee.
MEMORANDUM DECISION ON APPEAL
KANE, Senior District Judge.
This is an appeal from a decision of the U.S. Bankruptcy Court in the name of the debtor, but in the interest of debtor's attorney who applied for attorney fees in the amount of $1,500.00 which was reduced by the Bankruptcy Judge to $1,200.00 and costs of $128.51. $500.00 had previously been paid leaving a balance of $828.51 to be paid out of plan payments.
This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158 and it is not contested. The standard of review of an award of attorney fees is abuse of discretion or error in law.
An abuse of discretion is one that is grossly unsound, unreasonable, or illegal. Discretion invested in judges results in a decision based upon what is fair in the circumstances and guided by the rules and principles of law. It is the court's power to act, rightfully exercised, when a litigant is not entitled to demand the act as a matter of right. An abuse of discretion occurs when a judicial determination is arbitrary, capricious or whimsical. It is not merely an error of law or judgment, but an overriding of the law by the exercise of manifestly unreasonable judgment or the result of partiality, prejudice, bias or ill-will as shown by the evidence or the record of proceedings. United States v. Wright et al., 826 F.2d 938, 942 (10th Cir.1987).
Reversal is mandated only where there is both an abuse of discretion and actual prejudice. An abuse of discretion occurs where the trial judge fails to articulate a reason for his decision and no such reason is readily apparent from the record or articulates a reason which has no basis in fact or the reason so articulated is contrary to law. The reason given, however, *583 need not be one that is agreeable to the reviewing court.
In the instant case, complaint is first made that the Bankruptcy Judge reduced the requested fees in the absence of any objection. This ground is faint, however, because no objection is required for a judge to act in reviewing requested fees. It is not a matter subject to waiver by a party, rather the awarding of reasonable fees is the obligation of the judge and requires him to act even if sua sponte.
The second issue, though not framed in the appellant's brief, is that the Bankruptcy Judge acted contrary to this court's holding in In re Ingersoll, 238 B.R. 202 (D.Colo.1999). Ingersoll holds that fees may not be disallowed or awarded on the basis of form orders based upon "boilerplate objections not sufficiently specific to give the applicant notice of what showing may be thought to be adequate." Id. at 204. It clearly does not hold that a Bankruptcy Judge is forbidden to formulate presumptively normal billing rates or normal expectations of the time necessary to complete discrete tasks.
In the case at bar, the Bankruptcy Judge conducted a hearing and made a line item review of each entry in the fee application. He disallowed or reduced some claimed hours as excessive or unnecessary and gave specific reasons based upon the record before him for each discrete ruling. There is no basis for finding an abuse of discretion under these circumstances nor are any such rulings contrary to law. The requirements of Ingersoll were satisfied, not contravened.
The judgment of the Bankruptcy Court is affirmed. The appeal is denied.
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197 P.3d 1104 (2008)
345 Or. 415
STATE
v.
BOWEN.
No. (S056298).
Supreme Court of Oregon.
November 5, 2008.
Petition for review denied.
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648 F.Supp. 621 (1986)
Winslow M. CADY and National Resources Group, Inc., Plaintiffs,
v.
A.G. EDWARDS & SONS, INC., et al., Defendants.
Civ. No. C85-1050G.
United States District Court, D. Utah, C.D.
September 22, 1986.
*622 Ronald C. Barker, Salt Lake City, Utah, for plaintiffs.
Michael R. Murphy, Virginia S. Smith, Salt Lake City, Utah, for defendants.
J. THOMAS GREENE, District Judge.
The matter came on regularly for hearing on February 4, 1986, on defendants' Motion to Dismiss or for Summary Judgment and Motions to Compel Arbitration and Stay Judicial Proceedings. Plaintiffs were represented by Ronald C. Barker and defendants were represented by Michael R. Murphy and Virginia S. Smith. Plaintiffs and defendants both submitted extensive memorandums of law and the court heard oral argument. At the conclusion of oral argument the court granted plaintiffs' oral Motion to Amend the Complaint with reference to an alleged issue of fraud in the inducement of the arbitration clauses within the agreements at issue here. Thereafter an Amended Complaint was filed, and *623 on June 24, 1986, there was a further hearing, after which the court took all motions and matters under advisement. Since then, counsel for both parties have submitted supplemental authorities in additional communications to the court. The court now being fully advised enters its Memorandum Decision and Order.
FACTUAL BACKGROUND
Plaintiff National Resource Group ("NRG") asserts claims arising from trading accounts for commodities futures with defendant A.G. Edwards ("Edwards").[1] NRG alleges that representatives of Edwards approached NRG with an oil futures investment program. Edwards allegedly promised NRG that it would guarantee a return of $5,000 per month on an investment of $50,000. NRG determined to invest with Edwards, and on January 21, 1985, NRG provided Edwards with a corporate resolution consenting to the establishment of a commodities futures account with Edwards. The same day officers of NRG executed two customer agreements. Both agreements contained arbitration clauses. When this dispute arose, Edwards timely demanded arbitration and has otherwise complied with the provisions of the arbitration agreements.
NRG asserts eleven claims for relief in its complaint. Of these, NRG's first, second, third and fourth claims are based on alleged violations of the Securities Act of 1933, 15 U.S.C. §§ 77a-77bbbb (1982), the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78kk (1982), and the Utah Uniform Securities Act, Utah Code Ann. §§ 61-1-1 to -30 (1978). NRG's fifth claim seeks civil relief for alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (1982), and the sixth claim alleges violation of the Utah Racketeering Influences and Criminal Enterprise Act (RICE), Utah Code Ann. §§ 76-10-1601 to -1608 (Supp.1986). The other claims are for breach of fiduciary duty, common law fraud, breach of contract and negligent misrepresentation.
Edwards urges the court to dismiss NRG's securities claims, arguing that commodities futures accounts are not securities. Edwards further argues that NRG's RICO claims should be dismissed, or in the alternative submitted to arbitration or stayed pending arbitration. Finally, Edwards urges that all other claims be referred to arbitration. NRG rejects all of the aforesaid contentions, and as a preliminary matter argues that the validity of the arbitration clauses should be adjudicated since allegedly such were induced by fraud.
Alleged Fraud in the Inducement of the Arbitration Clauses
NRG's amended complaint alleges generally that there was fraudulent inducement in the execution of the contracts in question. It is alleged that Edwards' representative explained that the form executed by plaintiffs was the standard form for customers, but that there was no discussion of contract terms and no meeting of the minds. Certain claimed oral representations were made to NGR's representative, Mr. Badger, which were later found not to be included in the written contract. As a result, it is asserted that Mr. Badger would not have agreed to the various contractual terms without inclusion of the oral representations, and would not have agreed to the provisions requiring arbitration. No specific reference or claimed misrepresentation was made as to the arbitration clauses.
In Prima Paint Corp. v. Flood & Conklin Mfg., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) the Supreme Court interpreted Section 4 of the federal Arbitration Act, 9 U.S.C. § 4 (1982). The Court in Prima Paint stated:
[A]rbitration clauses as a matter of federal law are "separable" from the contracts in which they are embedded, and ... where no claim is made that fraud was directed to the arbitration clause itself, a broad arbitration clause will be held to encompass arbitration of the *624 claim that the contract itself was induced by fraud.
Id. 388 U.S. at 402, 87 S.Ct. at 1805 (emphasis added). That is the situation here. NRG has failed to plead with specificity factual allegations which go to fraudulent inducement of the arbitration clause itself, rather than the contract generally. NRG's allegation that the form used was represented to be the standard form in use also does not support a claim of fraud as to the arbitration provisions. See E.F. Hutton & Co. v. Schank, 456 F.Supp. 507 (D.Utah 1976).[2]
The court rules that alleged of fraud in the inducement of the contract generally does not require court adjudication. Accordingly, the claim of fraud in the inducement set forth in the amended complaint is referred to arbitration.
Claims Concerning Commodities Futures Accounts as Securities
Counsel have presented extensive argument and case authority as to whether the trading accounts concerning the oil futures investment program constitute "securities." NRG asserts that such constitute "investment contracts" included within the statutory definition of "security" under 15 U.S.C. § 78c(a)(10) (1982) of the Securities Exchange Act of 1934. As such NRG contends that it invested money in a common enterprise with profits to come solely from the efforts of others under the so-called "Howey test" established and reiterated by the Supreme Court.[3] Edwards urges, based upon the wording of the trading accounts, that there is no common enterprise and that in any event profits would not derive solely from the efforts of others. However, NRG has alleged facts sufficient to establish "common enterprise,"[4] and has insisted that in practice the trading accounts were discretionary so that profits would derive solely from the efforts of Edwards.[5] However, it is unnecessary to determine whether the commodities futures *625 accounts here meet all three aspects of the Howey test, because we conclude that this court has no jurisdiction to apply securities laws to such accounts.
In 1974 Congress significantly amended the Commodity Exchange Act by creating the Commodities Future Trading Commission ("CFTC") and granting to the CFTC exclusive regulatory jurisdiction over commodities trading, including commodities futures accounts.[6] The difficult question raised by these amendments is whether Congress intended that private litigants be able to bring private securities suits even though Congress expressly precluded the SEC from applying securities laws to "commodities" within the CFTC's exclusive jurisdiction. We follow this court's holding in E.F. Hutton & Co. v. Schank, 456 F.Supp. 507 (D.Utah 1976) that such controversies concerning commodities futures accounts are within the exclusive jurisdiction of the CFTC. The court said:
The Commodities Futures Trading Commission Act of 1974 [the CFTC] has, without question, filled the protective regulatory gap which was the motivation for expanding the coverage of the securities laws....
Given the compatibility of the protections against fraudulent conduct given to investors, there is little reason to attempt to construe Howey so as to include discretionary commodities accounts within the bailiwick of the securities acts and the SEC. Indeed, because of the exclusive jurisdiction which Congress granted the CFTC over "accounts, agreements, and transactions involving contracts of sale of a commodity for future delivery," it would fly in the face of express Congressional intent to do so.
Id. at 513. At least one commentator,[7] and other courts which have analyzed the legislative history,[8] have agreed with the court *626 in Shank that it would be anomalous to conclude that Congress intended to preempt the SEC and yet allow private securities suits.
We hold that the commodities futures accounts at issue herein are subject to the exclusive jurisdiction of the CFTC. Accordingly Counts 1, 2, 3 and 4 are dismissed.
RICO and RICE Claims
As a result of this court's determination that the commodities futures accounts here are commodities and not securities, count 5 of NRG's complaint, alleging violation of the Racketeer Influenced and Corrupt Organization Act (RICO), fails for lack of cognizable predicate offenses. See 18 U.S.C. § 1961(1) (1982). Likewise, count 6 of NRG's complaint fails to allege predicate offenses (other than the sale of a security) which fall within the categories delineated in the Utah Racketeering Influences and Criminal Enterprise Act (RICE). See Utah Code Ann. § 76-10-1602 (Supp. 1986). See Bache Halsey Stuart Shields v. Tracy Collins Bank, 558 F.Supp. 1042, 1047 (D.Utah 1983) ("[T]he Utah definition requires that the act be `illegal under the laws of Utah'.... [and the] Act suggests that the predicate crimes must be alleged with particularity.")
In any event, both counts 5 and 6 fail to plead the existence of a pattern of racketeering activity and therefore are dismissed. Here a single fraudulent scheme is relied upon, albeit multiple acts allegedly were committed by defendants. This fails to present the requisite pattern. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985); Grant v. Union Bank, 629 F.Supp. 570, 577-79 (D.Utah 1986).
Other Claims
All remaining claims are ordered to be submitted to arbitration in accordance with the terms of the arbitration clauses.
The Court finds no basis for Rule 11 sanctions.
This Memorandum Decision and Order will suffice as the court's final action on this motion; no further Order need be prepared by counsel.
NOTES
[1] Plaintiff Winslow Cady has already submitted his claims to arbitration; therefore, the court will address only the claims asserted by National Resources Group, Inc.
[2] In Schank, the court noted that defendant had no knowledge of the existence of an arbitration provision in the customer agreement, but held that there was no "`misrepresentation,' intentional or otherwise, concerning the contents of the contract." 456 F.Supp. at 512.
[3] SEC v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). To determine whether a particular financial relationship constitutes an investment contract, the Court in Howey said that "[t]he test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." Id. 328 U.S. at 301, 66 S.Ct. at 1104. The test was reiterated in International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 558, 99 S.Ct. 790, 795, 58 L.Ed.2d 808 (1979). See also United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621 (1975).
[4] NRG has alleged that Edwards' involvement went far beyond receiving commissions for investing according to NRG's directions. NRG contends that the "common enterprise" was created by oral representations whereby Edwards guaranteed to NRG profits of $5000 per month. In such cases the court will look outside the written document to determine the agreement of the parties. Commercial Iron & Metal Co. v. Bache & Co., Inc., 478 F.2d 39, 43 (10th Cir. 1973).
[5] This court has ruled that nondiscretionary accounts fail the Howey test as lacking requisite control concerning profits derived solely from the efforts of others. Walsh v. International Precious Metals Corp., 510 F.Supp. 867 (D.Utah 1981). The court said in Walsh:
These express conditions in the agreement gave plaintiff sufficient control over the account that it is to be considered a "nondiscretionary account."
... [W]here the account is nondiscretionary, the reliance and control are such that the third element of the Howey test is not met.
... [T]he control afforded plaintiff by the terms of the agreement was not such that profits were expected to come solely from the efforts of others.... The agreement provided that plaintiff had the final say as to whether to buy, sell, or wait. If that agreement was breached, it is a matter of state contract law, or possibly a concern for the Commodities Futures Trading Commission in conjunction with the alleged violations of the CEA.
Id. at 872 (emphasis added). Other courts have held that even discretionary commodities trading accounts fail the Howey test because no common enterprise exists between the investor and the brokerage firm. In Brodt v. Bache & Co., 595 F.2d 459 (9th Cir.1978) the court said: "Merely furnishing investment counsel to another for a commission, even when done by way of a discretionary commodities account, does not amount to a `common enterprise.'" Id. at 462. In the case at bar, NRG admits that the language of the accounts limited Edwards to transactions approved by NRG and therefore were nondiscretionary in form. NRG alleges, however, that the statements and conduct of the defendant rendered the accounts discretionary. We express no opinion as to whether the allegations and conduct are sufficient to transform the nondiscretionary accounts into discretionary accounts, and we do not reach the issue whether discretionary commodities accounts meet the Howey test for purposes of the securities laws.
[6] See The Commodity Futures Trading Commission Act of 1974, Pub.L. No. 93-463, 88 Stat 1389 (codified in scattered sections of 7 U.S.C. §§ 1-24 (1982)). The amendment greatly expanded the definition of a commodity:
The word "commodity" shall mean ... all other goods and articles ... and all services, rights and interests in which contracts for future delivery are presently or in the future dealt in: Provided, That the Commission shall have exclusive jurisdiction ... with respect to accounts, agreements ... and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market designated pursuant to section 7 of this title or any other board of trade, exchange, or market, and transactions subject to regulation by the Commission pursuant to section 23 of this title....
7 U.S.C. § 2 (1982).
[7] See Johnson, The Commodity Futures Trading Commission Act: Preemption as Public Policy, 29 Vand.L.Rev. 1, 32-36 (1976):
Strong public policy considerations likewise militate against the idea that private remedies under other regulatory statutes should remain available even after the CFTC's "exclusive jurisdiction" has preempted those regulatory agencies.... It is reasonable to assume that Congress, having created a regulatory agency under the same statute, intends for that agency to exercise the requisite judgment and to provide the needed uniformity. Otherwise, the key decisions influencing the scope and direction of federal regulatory policy in that field would be left to a variety of different courts responding to piecemeal advocacy of private interests.
Id. at 35.
[8] See George v. Omni Capital International, 795 F.2d 415 (5th Cir.1986). The court in George explained that it is consistent with Congressional intent, as expressed in the CEA, to deny private relief because "[p]rivate actors under the securities laws might engraft policies and standards inconsistent with those developed under the CEA." Id. at 422. See also Mallen v. Merrill Lynch, Pierce, Fenner & Smith, 605 F.Supp. 1105 (N.D.Ga.1985). In Mallen the court refused to allow a private litigant to bring a securities claim based on a trading account for stock index futures, and held that application of the investment contract test of Howey was "faulty." The court stated:
In focusing on the most general term in the SEC statute, this analysis ignores specific terms in the jurisdictional statutes of the SEC and CFTC. It is a basic rule of construction, for complex regulatory legislation as well as simple legal documents, that the specific controls the general....
. . . . .
Finally, the ultimate effect of [a private securities suit is that such suit] defeats the fundamental congressional design in revamping the Commodity Exchange Act of 1974 and granting exclusive jurisdiction to the new CFTC to avoid a duplicative or contradictory regulatory structure.
Id. at 1113-14.
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28 F.Supp.2d 44 (1998)
Edward E. LOMBARD, Asa P. Lombard, III, Edith Lombard Cassick, Ruth Lombard Gourley, Florence Lombard Brown, Barbara Lombard Banuk, Susan Lombard Black, and Alton Horte, Plaintiffs,
v.
UNITED STATES of America, Defendant.
No. Civ.A. 97-10725-PBS.
United States District Court, D. Massachusetts.
November 30, 1998.
*45 John D. Hallisey, Orleans, MA, for Edward E. Lombard, plaintiff.
George M. Dallas, Hovey, Urbelis, Fieldsteel & Bailin, Andrew L. Freeman, U.S. Attorney's Office, Julie S. Schrager, United States Attorney's Office, Boston, MA, for United States of America, defendant.
MEMORANDUM AND ORDER
SARIS, District Judge.
INTRODUCTION
This case concerns a belated claim to title to land on Bound Brook Island, located within the Cape Cod National Seashore. The plaintiffs, Edward Lombard and his siblings, cousins, and nieces, have filed a partition action against the United States pursuant to 28 U.S.C. § 2409, claiming that the government and they are tenants in common. The government, which purchased the property in the early 1960s, moves for summary judgment on the ground that there is a real and substantial dispute as to plaintiffs' interest in the property, which removes this action from the scope of the partition statute.
Alternatively, plaintiffs seek leave to amend the complaint to assert an action to quiet title pursuant to 28 U.S.C. § 2409a. The government contends that such an amendment would be futile because the action is barred by the twelve-year statute of limitations. Plaintiffs have also filed a motion for summary judgment asking this Court to enter a judgment that plaintiffs have record title.[1] After hearing, this Court ALLOWS defendant's motion for summary judgment and DENIES plaintiffs' motion.
I. BACKGROUND
Viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor, the Court treats the following material facts as undisputed. See Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995).
The Lombard family has its roots deep in the sands of Cape Cod. Thomas Lombard (whose grandfather was with General Washington at Valley Forge) owned the Bound Brook Island real estate until his death in 1873. He was survived by five children, Edward Lombard, Richard S. Lombard, Benjamin F. Lombard, David C. Lombard, and Mary M. Lombard Cobb. The plaintiffs are descendants of Richard S. Lombard and Edward Lombard, two of the five children. At the time of Thomas Lombard's death, the property contained his homestead, which no longer exists. Completely surrounded by the disputed property is a Lombard family cemetery still in existence today.
In 1924, David C. Lombard and Mary M. Lombard Cobb conveyed the Brook Bound Island property to George Higgins, as evidenced by the deed recorded on October 31, 1924, in Barnstable County. Excluded from the sale was the family cemetery and access thereto.
In 1935, George Higgins filed a petition with the Massachusetts Land Court (Case No. 15795) to register and confirm his title to seven parcels of land, aggregating approximately 145 acres in the Brook Bound Island area of North Wellfleet. Included in that land were the 8.7 acres on Brook Bound Island purchased from David Lombard and Mary Lombard Cobb. Henry Lombard, the son of Benjamin F. Lombard and grandson of Thomas Lombard, filed an answer in the Land Court case claiming that his father had a right, title, or interest in the Lombard Lot that was never released, and that "as he is an heir of said Benjamin Lombard, he therefore holds an interest in said Lot, which interest he wishes to be adjudicated by this Court."
*46 Subsequently, the Land Court judge wrote that there was an "infirmity for which I have no remedy to suggest at present by reason of the fact that only two of the four people presumably claiming under one Thomas Lombard have conveyed to the petition in 1924." He suggested that Higgins' counsel procure an affidavit from David Lombard. David Lombard provided such an affidavit on April 19, 1935, claiming that he was the only one in the family who lived in Wellfleet, cared for the property, or claimed an interest in it. After Henry Lombard's opposition was filed, Higgins moved the court to sever the "Lombard Lot," consisting of the 8.7 acres, to another case. The disputed property was then assigned Registration No. 15855. The action was marked "inactive" on June 4, 1957, and ordered dismissed without prejudice on June 5, 1958. The docket reflected only the marking of "inactive" in 1957 and not the order of dismissal in 1958. Perhaps because of the docketing glitch, the case remained inactive on the docket for another twenty years. A judgment of dismissal was issued for lack of prosecution on November 1, 1976.
Beginning in 1961, the United States started acquiring land to form the Cape Cod National Seashore, as authorized by the Cape Cod National Seashore Act of August 7, 1961, Pub.L. No. 87-126, 75 Stat. 284 (codified at 16 U.S.C. §§ 459b to 459b-8). In 1962, the United States, through its Department of Interior and National Park Service, negotiated to purchase several pieces of property from George Higgins and his wife, including the 8.7 acres formerly owned by Thomas Lombard, which the government designated as Tract 25W-4011. Inside this tract is the Lombard family cemetery (Tract 25-5729), which continues to be owned by plaintiffs, who also possess a right of way across Tract 25W-4011 in order to reach the cemetery.
A Preliminary Certificate and Binder was prepared on December 19, 1962, by Home Title Guarantee Company. The title examination included as exceptions to the certification the "persons claiming under the heirs of Thomas Lombard except as to David Lombard and Mary M. Cobb" and the Lombard burial ground located within the property. An appraisal determined that the property was completely unimproved except for the Lombard family cemetery. The United States took title from Higgins on December 28, 1962, and the deed was recorded in Barnstable County on December 31, 1962.
In 1963, Higgins filed an action to quiet title pursuant to Mass.Gen.L. ch. 240, §§ 6-10, in Barnstable County (Equity No. 27434). The respondents included "Thomas Lombard" and "his Heirs and Devisees." A citation was issued to Thomas Lombard by the court on October 16, 1963. The Deputy Sheriff certified that service was made, pursuant to Mass.Gen.L. ch. 240, § 7, by publication in The Cape Cod Standard Times on October 25, November 1, and November 8, 1963, and that the citation was posted both in the Barnstable County Registry of Deeds and on the property.
George Higgins died on February 19, 1964, and his wife, Katherine Higgins, was substituted as petitioner in the quiet title action. Upon her request for the appointment of a guardian ad litem, pursuant to Mass.Gen.L. ch. 240, § 8, the court appointed James H. Quirk, Esq., on May 11, 1964. In his report to the court, Quirk confirmed George Higgins' ownership interest through affidavits of adverse possession from three local residents identified by the government. The affidavits stated that Higgins had been in actual possession of the property for thirty-five years, that he did not recognize anyone as having any claims to a property interest, that he paid real estate taxes during his ownership, and that he exercised acts of ownership. On August 20, 1964, the Barnstable Superior Court issued a Final Decree in Equity Action No. 27434, confirming title to the property in Katherine F. Higgins "free and clear of all liens and encumbrances except the rights of the Lombard family in the Burial Lot on said premises and a right of way or access thereto from the public road over the remaining land of said Katherine Higgins." After the Superior Court had established clear title, the United States paid Katherine Higgins for the property pursuant to their agreement.
The Lombard family has continued to visit the cemetery throughout the years. At some *47 point prior to September 1977, the Forest Service gated the road formerly used by the Lombards to access the cemetery. Upon their request, a key was provided. Later, the road was allowed to revegetate, and vehicle access was restricted. Many of the plaintiffs recall childhood picnics and blueberry picking on the land surrounding the cemetery.
On April 4, 1997, plaintiffs filed the present action to partition the Brook Bound Island property pursuant to 28 U.S.C. § 2409.
II. DISCUSSION
A motion for summary judgment must be allowed if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). A factual dispute is only genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.1988) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). All reasonable inferences must be drawn in favor of the non-moving party, but "those inferences must flow rationally from the underlying facts; that is, a suggested inference must ascend to what common sense and human experience indicates is an acceptable level of probability." Rubinovitz v. Rogato, 60 F.3d 906, 911 (1st.Cir.1995) (citing National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 743 (1st Cir.1995)). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial." Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir.1995) (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505).
A. Partition Action
The government argues that the order of the Barnstable County Superior Court quieting the title of George and Katherine Higgins creates a title dispute that takes this action beyond the scope of 28 U.S.C. § 2409. Plaintiffs brought this action pursuant to 28 U.S.C. § 2409, which provides:
Any civil action by any tenant in common or joint tenant owning an individual interest in lands, where the United States is one of such tenants in common or joint tenants, against the United States alone or against the United States and any other of such owners, shall proceed, and be determined, in the same manner as would a similar action between private persons.
This Court has original jurisdiction over such actions.[2] Section 2409 "is confined to those cases in which the plaintiff's title is undisputed." Stanton v. United States, 434 F.2d 1273, 1276-77 (5th Cir.1970) (dismissing a § 2409 claim to tenancy in common with the United States where plaintiffs claimed that they owned an undivided interest by virtue of interstate succession and possession in fact). "[T]he partition statute is unavailable where a determination of a dispute as to plaintiff's interest in property must be made as a predicate for the partition claim." Stubbs v. United States, 620 F.2d 775, 782 (10th Cir. 1980). Where there is a substantial dispute as to title, a plaintiff must first file a quiet title action pursuant to 28 U.S.C. § 2409a. See id. 620 F.2d at 783.
Plaintiffs argue that the Superior Court judgment is void because the Land Court still had exclusive subject matter jurisdiction in 1963, given that the Land Court case (No. 15795) was marked "inactive" and not entered on the docket as dismissed until November 1, 1976. As relief, they ask this Court to enter judgment declaring that the 1963 Barnstable order is unenforceable for lack of subject matter jurisdiction in the Superior Court.[3] Alternatively, plaintiffs argue *48 that the order is unenforceable because there was inadequate notice to the Lombard heirs. The government retorts that because final judgment was entered thirty-five years ago, and no appeal was taken, the only appropriate vehicle for seeking relief from the judgment is Mass.R.Civ.P. 60(b)(4). It adds that the notice met statutory requirements. I need not enter this thicket. Because plaintiffs' claim of tenancy in common with the government is far from clear and undisputed, § 2409 does not provide a cause of action to partition the property. Accordingly, this Court lacks subject matter jurisdiction under 28 U.S.C. § 1347.
B. Quiet Title Action
After argument on the motions for summary judgment, plaintiffs filed a motion to amend the complaint to add additional grounds for the Court's jurisdiction. To the extent that plaintiffs seek to assert jurisdiction under the Quiet Title Act, 28 U.S.C. §§ 2409a and 1346(f), the Court DENIES the motion as futile because the action is time-barred. With respect to the other proposed amendments, the motion to amend is also denied as untimely.
Section 2409a provides that "[t]he United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights." This Court has exclusive original jurisdiction over quiet title actions.[4] The quiet title statute contains the following statute of limitations:
Any civil action under this section ... shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.
28 U.S.C. § 2409a(g). The Supreme Court has recently described the strong policy concerns underpinning the statute of limitations: "It is of special importance that landowners know with certainty what their rights are, and the period during which those rights may be subject to challenge." United States v. Beggerly, ___ U.S. ___, ___, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32 (1998) (declining to extend this already "generous" statute of limitations by equitable Tolling). Because sovereign immunity is involved, there must be "strict compliance with the requirement that any action must be commenced within twelve years of its accrual." Economic Dev. and Indus. Corp. v. United States, 720 F.2d 1, 3 (1st Cir.1983) (citing Block v. North Dakota, 461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983)).
The inquiry whether the plaintiffs should have known of the United States' adverse interest is governed by "a test of reasonableness." Patterson v. Buffalo Nat'l River, 76 F.3d 221, 224 (8th Cir.1996) (citing State of North Dakota ex rel. Bd. of Univ. and Sch. Lands v. Block, 789 F.2d 1308, 1312 (8th Cir.1986)). "Section 2409a does not require that the plaintiff have knowledge of the full contours of the Government's claim before the action accrues. Rather, all that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff." D.C. Transit Sys., Inc. v. United States, 531 F.Supp. 808, 811 (D.D.C.1982) (citing United States v. Bedford Assocs., 657 F.2d 1300, 1316 & n. 16 (2d Cir.1981)). "If a claimant asserts fee title to disputed property, notice of a government claim that creates even a cloud on that title may be sufficient to trigger the limitations period." Michel v. United States, 65 F.3d 130, 132 (9th Cir.1995) (citing California v. Yuba Goldfields, 752 F.2d 393, 394-97 (9th Cir.1985)).
Plaintiffs argue that the twelve-year statute of limitations does not begin to run until the plaintiffs knew or should have known that the United States had begun to assert an interest adverse to the Lombards' sixty-percent interest, not when they knew that the government had acquired a forty-percent *49 interest. Although plaintiffs concede that they can be charged with knowledge of the United States' common interest in the property with their own, they insist that none were aware of the government's exclusive adverse interest until the commencement of this suit.
Here, the undisputed evidence in the record is that most of the plaintiffs have believed for decades that David Lombard had stolen the family birthright and sold it to Higgins. Edward E. Lombard, Asa P. Lombard, Jr., Edith Lombard Cassick, Alton Horte, and Ruth Lombard Gourley testified that they knew for over twelve years that David Lombard and Mary Lombard Cobb had conveyed plaintiffs' interest to George Higgins. Edward Lombard concedes that he knew in the 1950s that the property had been conveyed to Higgins. (Dep. Tr. at 12.) Edith Lombard Cassick has believed since the 1960s that David Lombard and Mary Cobb Lombard "did wrong by [her] grandmother" by stealing the Bound Brook Island property and selling it to Higgins. (Dep. Tr. at 9, 13-15.) In fact, Edith Cassick remembers that Higgins tried to persuade her father, Asa Lombard, and another uncle to sell their claimed property interest to him in the 1960s, but they refused. (Dep. Tr. at 24.) Alton Horte testified that Asa Lombard, Jr., and he talked to an attorney twenty years ago when they learned that David Lombard had conveyed the property without notice. (Dep. Tr. at 14.) Ruth Lombard Gourley testified that she had known about the conveyance to Higgins since she was a child. (Dep. Tr. at 12.)
Three plaintiffs rest in a different procedural posture. Florence Lombard Brown (Edward's sister who lives in California) and Barbara Lombard Banuk profess lack of knowledge of any conveyance. Brown testified that she relied on her brother to handle any matters relating to the property. (Dep. Tr. at 14.) The record before the Court is sparser with respect to Banuk and Susan Lombard Black, except that they occasionally visited the cemetery. In light of the widespread family knowledge of the sale over such a long period of time, they could easily have learned the status of the property by making inquiry.
Several of the plaintiffs, including Edith Lombard Cassick, Edward Lombard, Asa Lombard, III, Barbara Lombard Banuk, and Susan Lombard Black, recall learning of the Cape Cod National Seashore in the 1960s, and most knew that the United States had acquired the Brook Bound Island property for that purpose. Many of the plaintiffs (i.e., Cassick, Asa Lombard, Edward Lombard, Banuk) knew that the government was responsible for a locked gate that prevented access to the cemetery, and that the Park Service later allowed trees to grow in the path. Edward Lombard recalls "complaining bitterly to [the National Seashore] about their closing the road and shutting it off from us, so we had no access to it." (Dep. Tr. at 25.) On September 12, 1997, Asa Lombard sent a peremptory letter to the superintendent of the National Seashore complaining about the barrier at the entrance of the access road, demanding removal of the barrier or a key to the lock, and demanding that the government clean out the road to the cemetery.
Plaintiffs admit that they have not paid property taxes on the land surrounding the family cemetery, have not maintained or improved the surrounding land in any way, have not possessed the land, and have not contacted the Park Service or the Town of Wellfleet about their interest in the Brook Bound Island property. At most, they have occasionally visited the family cemetery, picked blueberries, and had picnics on the adjacent property.
Because the Lombard descendants have long known that Higgins claimed an interest adverse to theirs and that the United States purchased the property from him when developing the Cape Cod National Seashore, they reasonably should have known for well over twelve years of the United States' adverse claim to the property surrounding the family burial plot.
At oral argument, plaintiffs contended that the key to their argument is the evidence that the government gave them a key to get onto the property. However, provision of that key to provide access reflects a recognition *50 of plaintiffs' recorded right of way to gain access to the cemetery, not a concession of tenancy in common to the entire property. Because plaintiffs are seeking a right to possession of the property, not a right to an easement to the cemetery, the cases they rely on are inapposite. See Werner v. United States, 9 F.3d 1514, 1518 (11th Cir.1993) (holding that landowners' claim to an easement accrued when they were denied access to a road, rather than when they learned that the government held title); Patterson, 76 F.3d at 224 (holding that a cause of action accrued when plaintiffs' were denied access to the roadway); Michel, 65 F.3d at 131-32 (holding that a claim accrued when the United States denied landowners use of a roadway for access to their property, rather than when the landowners became aware of the government's possessory interest).
ORDER
The United States' motion for summary judgment (Docket 15) is hereby ALLOWED with respect to the plaintiffs and the plaintiff-intervenors.[5] The motion of Plaintiffs Edward E. Lombard et al. for summary judgment as to Title (Docket 17) is DENIED.
NOTES
[1] Plaintiff Alton Horte, age 89, did not join in this motion for summary judgment because he was unable to furnish genealogical information to the title examiner. The Court allowed three additional descendants to intervene as plaintiffs: Charleton E. Smith, Barbara E. Baines, and Virginia H. Hart.
[2] "The district courts shall have original jurisdiction of any civil action commenced by any tenant in common or joint tenant for the partition of lands where the United States is one of the tenants in common or joint tenants." 28 U.S.C. § 1347.
[3] Actually, while I don't have to resolve the matter, it appears from the Court pleadings that the Land Court action was ordered dismissed without prejudice in 1958.
[4] "The district courts shall have exclusive original jurisdiction of civil actions under § 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States." 28 U.S.C. § 1346(f).
[5] The plaintiff-intervenors never opposed the government's motion for summary judgment as to them.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHAI DEVELOPERS LIMITED PARTNERSHIP,
a Florida limited partnership,
Appellant,
v.
GFS STORES, LLC, a Delaware
limited liability company,
Appellee.
Nos. 4D16-1490 and 4D16-3243
[December 14, 2017]
Consolidated appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. CACE
14-018879 (12).
Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm
Beach, and Stephen J. Padula of Padula Bennardo Levine, Boca Raton,
and Bernard Egozi and Issac Lew of Egozi & Bennett, P.A., Aventura, for
appellant.
Nancy A. Copperthwaite, Dana A. Clayton and Lorayne Perez of
Akerman LLP, Miami, and Scott W. Rostock of Akerman LLP, Fort
Lauderdale, for appellee.
PER CURIAM.
Affirmed.
WARNER, CONNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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993 So.2d 528 (2008)
WINTHROP
v.
STATE.
No. 2D08-108.
District Court of Appeal of Florida, Second District.
September 24, 2008.
Decision without published opinion. Affirmed.
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VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 25th day of March, 2014.
PUBLISHED
Ronald Taft Davis, III, Appellant,
against Record No. 1873-12-2
Circuit Court Nos. CR08093 and CR10025
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On March 11, 2014 came the appellee, by the Attorney General of Virginia, and filed a petition
requesting that the Court set aside the judgment rendered herein on February 25, 2014, and grant a rehearing
en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s)
raised therein, the mandate entered herein on February 25, 2014 is stayed pending the decision of the Court en
banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix
previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies
of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of
this Court.
The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe
Acrobat Portable Document Format (PDF).1
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
1
The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”
-2-
COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Chafin
PUBLISHED
Argued at Richmond, Virginia
RONALD TAFT DAVIS, III
OPINION BY
v. Record No. 1873-12-2 JUDGE WILLIAM G. PETTY
FEBRUARY 25, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SURRY COUNTY
W. Allan Sharrett, Judge
Charles C. Cosby, Jr. (Lawrence A. Drombetta, III, on brief), for
appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Ronald Taft Davis, III, appeals his convictions of first-degree murder and attempted
first-degree murder.1 On appeal, Davis argues: (1) the trial court erred in denying his motion for
collateral estoppel to bar prosecution of the charges due to his acquittal on the charge of reckless
handling of a firearm; (2) the trial court erred in not granting his motion for a mistrial after the
Commonwealth’s Attorney mentioned Davis’s invocation of his Miranda rights during both
opening statements and direct examination of law enforcement; and (3) the trial court erred in
denying Davis’s motion for mistrial after a witness testified that Davis had a criminal charge for
1
Davis was originally indicted for attempted murder, murder, use of a firearm in the
commission of attempted capital murder, and two counts of attempted capital murder
(erroneously listed as two counts of capital murder on the amended order of conviction dated
June 27, 2012). Prior to the trial, the Commonwealth’s Attorney moved to nolle prosequi the
indictments for attempted murder and one of the counts of attempted capital murder. The jury
found Davis guilty of first-degree murder and attempted first-degree murder and found him not
guilty of use of a firearm in the commission of attempted capital murder.
which he received a two-year sentence. For the following reasons, we reverse the judgment of
the trial court.2
I. BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)). Furthermore, collateral estoppel is a legal doctrine
“grounded in the Fifth Amendment guarantee against double jeopardy.” Rhodes v.
Commonwealth, 223 Va. 743, 747, 292 S.E.2d 373, 375 (1982). Therefore, we apply the de
novo standard of review applicable to double jeopardy claims to determine whether collateral
estoppel applies. See Davis v. Commonwealth, 57 Va. App. 446, 455, 703 S.E.2d 259, 263
(2011).
On November 16, 2008, Davis was arrested and charged with shooting into an occupied
vehicle, first-degree murder, use of a firearm during the commission of murder, and reckless
handling of a firearm.3 The charges arose from an altercation during which Davis allegedly fired
ten or more bullets into an occupied car parked outside a nightclub. A passenger of the car was
killed as a result of the shooting. On December 16, 2008, the General District Court of Surry
County conducted a preliminary hearing on the felonies. During the course of the preliminary
hearing, the district court judge realized that there was a pending misdemeanor charge of
2
Because we hold that the Commonwealth is collaterally estopped from prosecuting
Davis on the felony charges, we need not consider Davis’s second and third assignments of error.
3
The arrest warrants for these charges were obtained by Surry County Deputy Sheriff
R.L. Sears without any apparent consultation with the Commonwealth’s Attorney.
-2-
reckless handling of a firearm4 arising from the same incident. The Commonwealth’s Attorney
advised the judge that it was his intention to proceed to try the misdemeanor concurrently with
the preliminary hearing on the felonies; Davis then entered a plea of not guilty to the
misdemeanor charge. At the conclusion of the Commonwealth’s evidence at the preliminary
hearing, the judge dismissed the misdemeanor reckless handling of a firearm charge and the
felonies were not certified. The judge noted,
On the issue of probable cause, clearly the Commonwealth
has met its burden as to whether a felony was committed or not—
felonies. On the issue of whether or not [the Commonwealth’s
Attorney has] shown it reasonable to believe Mr. Davis was the
one that fired the weapon, I find that you have not met that burden,
and I find no probable cause.
On the misdemeanor charge as to whether or not [the
Commonwealth’s Attorney has] proven the case beyond a
reasonable doubt, I would find that you have not. I’m going to
find him not guilty of that charge.
The Commonwealth then obtained direct indictments against Davis for the felonies of attempted
murder, murder, use of a firearm in the commission of an attempted capital murder, and two
counts of attempted capital murder. Davis made a motion to the circuit court to dismiss those
indictments based on the doctrine of collateral estoppel.5 The circuit court denied the motion,
noting that the judgment of acquittal on the misdemeanor reckless handling of a firearm charge
was based on a general verdict.6 The circuit court stated that the district court order did not
specify which element of the offense was not proved beyond a reasonable doubt and “merely
placed a checkmark in the printed square on the reverse side of the warrant designated, ‘not
4
Code § 18.2-56.1 provides, “It shall be unlawful for any person to handle recklessly any
firearm so as to endanger the life, limb or property of any person. Any person violating this
section shall be guilty of a Class 1 misdemeanor.”
5
A transcript of the preliminary hearing and a copy of the misdemeanor warrant were
introduced into evidence in the circuit court during the hearing on the motion to dismiss.
6
A general verdict is one “by which the jury finds in favor of one party or the other, as
opposed to resolving specific fact questions.” Black’s Law Dictionary 1696 (9th ed. 2009).
-3-
guilty’ and ‘I ORDER the charge dismissed.’”7 Thus, the Commonwealth proceeded with the
prosecution of Davis on the felonies in the circuit court. Following the trial, Davis was
convicted of first-degree murder and attempted first-degree murder.
II. ANALYSIS
Davis argues that the trial court erred in denying his motion to dismiss both felonies
because his acquittal on the reckless handling of a firearm charge collaterally estopped the
Commonwealth from prosecuting him on the felonies involving the use of a firearm. We agree.
Collateral estoppel is a preclusion doctrine “grounded in the Fifth Amendment guarantee
against double jeopardy.” Rhodes, 223 Va. at 747, 292 S.E.2d at 375. 8 “It stands for [the]
7
While the district court did not have jurisdiction to enter final judgment on the felony
charges, it is without question that it did have jurisdiction to do so on the misdemeanor offense.
See Code § 16.1-123.1(1).
8
The dissent argues that “this case is largely about the proper limits of judicial power.”
In reality, the protections afforded by the Double Jeopardy Clause of the Fifth Amendment, and
the principle of collateral estoppel embodied in that guarantee, serve as a limit on prosecutorial
abuses by the government.
The underlying idea, one that is deeply ingrained in at least the
Anglo-American system of jurisprudence, is that the State with all
its resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though
innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88 (1957). Justice Oliver Wendell Holmes wrote of
the principle,
The safeguard provided by the Constitution against the gravest
abuses has tended to give the impression that when it did not apply
in terms, there was no other principle that could. But the Fifth
Amendment was not intended to do away with . . . a fundamental
principle of justice, in order, when a man once has been acquitted
on the merits, to enable the Government to prosecute him a second
time.
United States v. Oppenheimer, 242 U.S. 85, 88 (1916) (citation omitted).
-4-
extremely important principle in our adversary system of justice . . . that when an issue of
ultimate fact has once been determined by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.”9 Ashe v. Swenson, 397 U.S. 436, 443
(1970). Furthermore, “[t]he party seeking the protection of collateral estoppel carries the burden
of showing that the verdict in the prior action necessarily decided the precise issue he seeks to
now preclude.” Rhodes, 223 Va. at 749, 292 S.E.2d at 376. However, “[t]he doctrine . . . does
not apply if it appears that the prior judgment could have been grounded ‘upon an issue other
than that which the defendant seeks to foreclose from consideration.’” Lee v. Commonwealth,
219 Va. 1108, 1111, 254 S.E.2d 126, 127 (1979) (quoting Ashe, 397 U.S. at 444). “Collateral
estoppel becomes applicable only when the prior acquittal necessarily resolved the issue now in
litigation.” Simon v. Commonwealth, 220 Va. 417, 418, 258 S.E.2d 567, 571 (1979).10
As the Supreme Court stated in Jones v. Commonwealth, 217 Va. 231, 228 S.E.2d 127
(1979),
Ashe requires that the question whether the rule of collateral
estoppel applies in a given case is to be approached “with realism
and rationality.” The Court established these guidelines: “Where a
previous judgment of acquittal was based upon a general verdict,
as is usually the case, this [realistic and rational] approach requires
9
The dissent cites Standefer v. United States, 447 U.S. 10 (1980), in its argument that
Davis’s acquittal on the misdemeanor charge should not preclude his prosecution on the felony
charges. Standefer, however, involved a very different issue – “whether a defendant accused of
aiding and abetting in the commission of a federal offense may be convicted after the named
principal has been acquitted of that offense.” Id. at 11. The language quoted by the dissent is the
Court’s rationale for refusing to extend the doctrine of collateral estoppel to situations where
there is no mutuality of parties; it is not a justification for ignoring the long recognized doctrine
when, as here, mutuality clearly exists.
10
It is clear that Davis’s trial for murder and attempted murder was subsequent to, and
not concurrent with, his prosecution for reckless handling of a firearm. While the same charges
were heard at the preliminary hearing, they were dismissed by the district court. Thus, the
subsequent indictments in the circuit court constituted a new and separate prosecution. See
Wright v. Commonwealth, 52 Va. App. 690, 701, 667 S.E.2d 787, 792 (2008) (en banc)
(recognizing that when an original charge is terminated in the district court, a new indictment for
the same offense is a new charge, distinct from the original charge).
-5-
a court to ‘examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matter,
and conclude whether a rational jury could have grounded its
verdict upon an issue other than that which the defendant seeks to
foreclose from consideration.’”
Id. at 233, 228 S.E.2d at 129 (alteration in original) (quoting Ashe, 379 U.S. at 444).
Furthermore,
[t]he inquiry “must be set in a practical frame and viewed with an
eye to all the circumstances of the proceedings.” Any test more
technically restrictive would, of course, simply amount to a
rejection of the rule of collateral estoppel in criminal proceedings,
at least in every case where the first judgment was based on a
general verdict of acquittal.
Ashe, 379 U.S. at 444 (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)).
We find the Supreme Court’s decision in Lee controlling in this case. In that case, Lee
was acquitted for a misdemeanor driving under a revoked license charge, while two felony
charges—manslaughter and hit-and-run—were certified to trial. 219 Va. at 1109, 254 S.E.2d at
126. At the trial on the felonies, the parties stipulated that the prior acquittal rested on the
Commonwealth’s failure to prove that Lee had operated his vehicle on the day in question, an
ultimate fact on all three charges. Id. at 1110, 254 S.E.2d at 127. In determining whether
collateral estoppel precluded trial on the felonies, the Court analogized the United States
Supreme Court’s decision in Ashe, noting, “Here, . . . it appears from the express language of the
stipulation that the judgment of dismissal, like the jury’s verdict in Ashe, was based on
insufficiency of the evidence [that Lee operated his vehicle on the day in question], the particular
ground assigned by defendant in his motion to dismiss.” Id. at 1111, 254 S.E.2d at 127.
Therefore, the Court held that a judgment of dismissal of the misdemeanor warrant of driving
under a revoked license collaterally estopped the Commonwealth from prosecuting Lee for
manslaughter and hit-and-run driving. Id.
-6-
Here, Davis was convicted of two felonies—first-degree murder and attempted capital
murder—after the district court dismissed the misdemeanor charge of reckless handling of a
firearm.11 While there was no stipulation in this case, the judge announced his factual finding
that the Commonwealth had not “shown it reasonable to believe Mr. Davis was the one that fired
the weapon.” Furthermore, the district court judge’s very next statement was that he was
dismissing the misdemeanor charge because the Commonwealth had not proved its case beyond
a reasonable doubt with respect to that charge. The Commonwealth’s evidence established that
only one person fired the weapon. Thus, from the district court judge’s stated factual finding that
Davis did not fire the weapon, the only rational conclusion that can be drawn is that the acquittal
was based on the Commonwealth’s failure to prove “that the defendant was the criminal agent,
an essential element [of all] of the offenses.” Woodfin v. Commonwealth, 236 Va. 89, 95, 372
S.E.2d 377, 381 (1988).
Moreover, to the extent the verdict noted on the back of the warrant for arrest was a
general verdict, we are required to “‘examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matter, and conclude whether a
rational [trier of fact] could have grounded its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration.’” Jones, 217 Va. at 233, 228 S.E.2d at 129
(quoting Ashe, 379 U.S. at 444).
The Commonwealth offered testimony of four witnesses. Of those four witnesses’
testimony, not one actually saw Davis shoot, or even handle, a gun on the night of the shooting.
The most incriminatory evidence the Commonwealth was able to offer was a witness’ statement
11
The deputy sheriff stated that he charged Davis with “maliciously shoot[ing] into an
occupied vehicle, first-degree murder, display in a threatening manner a firearm while
committing or attempting to commit murder, and reckless handling of a firearm” all at the same
time. Thus, it is apparent that the misdemeanor charge was part and parcel of the same incident
as the murder and attempted murder.
-7-
that Davis was wearing mostly black clothes on the night of the shooting, and the person seen
shooting the gun was wearing black. Although the witness testified that he knew Davis, when
asked if the person he saw shoot the gun was Davis, he responded, “I can’t say. I don’t know if
it was him or not.” Although one witness testified that he had previously made a statement to the
police that Davis had told him that Davis had disposed of a gun, the witness denied the
legitimacy of that statement at the preliminary hearing and said that he did not see Davis with a
gun and did not know what gun Davis was referring to.12 Furthermore, one witness testified that
someone else, other than Davis, had a gun that night. Specifically, the witness testified that the
driver of the car in which the victim was sitting when he was killed pointed a gun from inside the
car at the witness’ sister and out the back of the car.
Finally, the fact that it was the identity of the gunman that was the sole issue presented to
the district court judge is evidenced by the argument of counsel. The Commonwealth’s only
argument at the conclusion of the evidence was: “certainly we have linked the defendant by a
preponderance of the evidence to this murder, and I would ask that it be certified.”13 In response,
the defense attorney argued that
the Commonwealth has not established by a preponderance of the
evidence any criminal agency on the part of Mr. Davis in this
matter. There hasn’t been any linkage of the criminal agency with
that of Mr. Ronald Davis. And even at this juncture, we
respectfully request the dismissal of the felony indictments, and we
would request a dismissal of the reckless endangerment
misdemeanor [charge] because the Commonwealth has not met its
evidence on that matter as well.
12
Additionally, it is clear that this evidence was introduced for the limited purpose of
impeaching the witness, not to prove Davis’s culpability.
13
The Commonwealth’s Attorney did not address any of the other elements that would be
required to be proven in order to convict Davis of reckless handling of a firearm.
-8-
Thus, the judge’s factual finding, when read in the context of the evidence presented by
the Commonwealth and the argument of counsel, simply does not support a conclusion that the
misdemeanor acquittal was based on any element of any of the offenses under consideration
other than the identity of the criminal agent. Simply put, based on the evidence presented at the
preliminary hearing, a finding that Davis did not fire the firearm means he did not handle the
firearm. Thus, any consideration of the reckless element of the offense would be superfluous.14
Therefore, it is abundantly clear that the verdict in the misdemeanor trial was grounded on the
very issue that Davis sought to preclude from reconsideration in the subsequent murder trial—
whether Davis was the gunman.
In sum, from a review of the evidence presented and considering the specific factual
finding made by the district court judge, we conclude that this is “‘the rare case where it was
possible to determine with certainty what the [trier of fact] in the earlier prosecution had
decided.’” Jones, 217 Va. at 233, 228 S.E.2d at 128 (quoting United States v. Cioffi, 487 F.2d
492, 498 (2d Cir. 1973)). Since the district court judge, in acquitting Davis of the misdemeanor,
held that the Commonwealth had failed to establish that Davis was the gunman, the
Commonwealth was precluded from relitigating that fact in the prosecution of the crimes of
murder and attempted murder arising out of the same event.15 Therefore, we hold that Davis’s
14
The Commonwealth argues that a dismissal of a reckless charge, in itself, does not
preclude a later conviction of an intentional crime because a finding of an absence of
recklessness would not bar a later finding of an intentional act. This ignores the fact that the
element under consideration is not the way the firearm was used, but, rather, who used it.
15
We note, as Davis points out in his brief before this Court, that while it is arguable that
the misdemeanor dismissal would not serve as a bar to prosecute the defendant as a principal in
the second degree, the indictment and the jury instructions make it clear that Davis was
convicted as a principal in the first degree. Indeed, the Commonwealth conceded at oral
arguments before this Court that at no time throughout the proceedings against Davis did the
Commonwealth allege that Davis acted as a principal in the second degree. Thus, we do not
need to speculate whether collateral estoppel would bar prosecution under an alternative theory
of criminal responsibility.
-9-
convictions below must be reversed and the indictments dismissed based on the doctrine of
collateral estoppel.
In doing so we note,
“‘[I]t is well established that the choice of offenses for which a
criminal defendant will be charged is within the discretion of the
Commonwealth’s Attorney.’ Indeed, ‘the institution of criminal
charges, as well as their order and timing, are matters of
prosecutorial discretion.’”
Barrett v. Commonwealth, 268 Va. 170, 178, 597 S.E.2d 104, 107-08 (2004) (citations omitted)
(quoting Barrett v. Commonwealth, 41 Va. App. 377, 391, 585 S.E.2d 355, 362 (2003)).
However, that discretion must be exercised with the “‘thoroughness and preparation reasonably
necessary for the representation’ of his client, the Commonwealth.” Livingston v. Va. State Bar,
286 Va. 1, 12, 744 S.E.2d 220, 225 (2013) (quoting Va. R. Prof’l Conduct 1.1). That “includes
‘inquiry into and analysis of the factual and legal elements of the problem.’” Id. (quoting Va. R.
Prof’l Conduct 1.1 cmt. 5). The Supreme Court’s lament in Lee bears repetition in this case:
Our holding results in the reversal of two convictions
which were fully supported by the evidence at trial. Yet, we
believe the result is constitutionally mandated and illustrates the
need for the Commonwealth to assess the evidence carefully and
exercise selective discretion in the prosecution of multiple offenses
arising from the same transaction.
Lee, 219 Va. at 1111, 254 S.E.2d at 127.
III. CONCLUSION
For the foregoing reasons, the judgment is reversed and the felony indictments are
dismissed. We remand to the trial court for the sole purpose of amending its records to show the
correct offense description of attempted capital murder for case numbers CR10025 and
CR10026.
Reversed, dismissed, and remanded.
- 10 -
Beales, J., dissenting.
I respectfully dissent. Twelve competent jurors considered all of the evidence and
argument presented in the circuit court. Those twelve jurors found Ronald Taft Davis, III, guilty
of first-degree murder and attempted first-degree murder beyond a reasonable doubt. Today’s
decision overturns the jury’s verdict – but not because of any defect that actually occurred at the
jury trial in the circuit court. Instead, applying the doctrine of collateral estoppel, the majority
holds that the result of prior proceedings in the general district court absolutely prevented the
circuit court jury from concluding that Davis was the triggerman who shot at an occupied vehicle
and murdered the victim in this case. Thus, the majority opinion reverses Davis’s convictions
and dismisses the indictments against him.
A review of case law indicates that collateral estoppel is only rarely applied in such a
manner because the elements of collateral estoppel are seldom met. I respectfully disagree with
the majority’s conclusion that Davis has presented an appropriate case for invoking the doctrine
of collateral estoppel. Simply put, the record does not conclusively establish that the general
district court judge could and did necessarily render a final decision holding that Davis was not
the shooter.
I. COLLATERAL ESTOPPEL REQUIRES A FINAL DECISION
To establish the defense of collateral estoppel, which has certainly been recognized as a
method of protecting a defendant from double jeopardy, a criminal defendant must “demonstrate
that the issue whose relitigation he seeks to foreclose was actually decided in the first
proceeding.” Dowling v. United States, 493 U.S. 342, 350 (1990); see Ashe v. Swenson, 397
U.S. 436, 445 (1970) (holding that the defense of collateral estoppel “is embodied in the Fifth
Amendment guarantee against double jeopardy”). “Suffice to say, the numerous attempts to
invoke the doctrine have met with little success, a result that was easily predictable.” Jones v.
- 11 -
Commonwealth, 217 Va. 231, 233, 228 S.E.2d 127, 129 (1976). Simply put, it is very difficult
to establish the level of specificity that the doctrine of collateral estoppel requires. “An acquittal,
‘standing alone, does not permit a conclusion with respect’ to a court’s findings or rationale.”
Rice v. Commonwealth, 57 Va. App. 437, 442, 703 S.E.2d 254, 258 (2011). Collateral estoppel
does not bar a disputed issue of fact from further criminal litigation “unless the record establishes
that the issue was actually and necessarily decided in the defendant’s favor” in the earlier
criminal proceeding. Schiro v. Farley, 510 U.S. 222, 236 (1994) (emphasis added); see also
Rhodes v. Commonwealth, 223 Va. 743, 749, 292 S.E.2d 373, 376 (1982).
Here, the General District Court of Surry County held a consolidated proceeding on
December 16, 2008, when the general district court judge conducted a preliminary hearing of
felony charges against Davis (including first-degree murder) and also conducted a trial on the
merits of a misdemeanor charge against Davis of reckless handing of a firearm. At the
conclusion of this proceeding, the general district court judge decided not to certify the felony
charges to a grand jury, commenting that he did not consider “it reasonable to believe Mr. Davis
was the one that fired the weapon” that killed the victim. The general district court judge also
acquitted Davis of misdemeanor reckless handling of a firearm. However, the general district
court judge made no findings or statements pertaining to his decision to acquit Davis of that
misdemeanor charge. The general district court judge only stated, “On the misdemeanor charge
as to whether or not you’ve proven the case beyond a reasonable doubt, I would find that you
have not.” On the back of the misdemeanor warrant, the general district court judge simply
indicated that Davis was not guilty of the reckless handing of a firearm charge.
Virginia law is clear – abundantly clear – that the general district court judge’s decision
not to certify the felony charges to a grand jury could not preclude further prosecution of those
charges in the circuit court if the Commonwealth successfully obtained a direct indictment from
- 12 -
a grand jury, as occurred here. Davis cannot and has never contested this point. The law is
settled in Virginia that “a general district court is without jurisdiction to try felony cases or
accept pleas to felony charges.” Peterson v. Commonwealth, 5 Va. App. 389, 397, 363 S.E.2d
440, 445 (1987) (citing Code § 16.1-123.1, which defines the jurisdiction of general district
courts to adjudicate misdemeanor criminal offenses and traffic violations); see also Painter v.
Commonwealth, 47 Va. App. 225, 233, 623 S.E.2d 408, 412 (2005). Instead, a general district
court judge conducts preliminary hearings of felony charges solely to assess, in that judge’s
view, whether those felony charges are sufficiently supported by probable cause. See Moore v.
Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 190 (1977). To that end, Code § 19.2-186
simply authorizes the general district court judge to “discharge the accused if [the judge]
considers that there is not sufficient cause for charging him with the offense.”
According to the case law interpreting Code § 19.2-186, “a mere dismissal of a felony
warrant at a preliminary hearing indicates only a finding of lack of probable cause” and
“discharge cannot operate as an acquittal, or finding of not guilty,” of that charge or charges.
Moore, 218 Va. at 393, 237 S.E.2d at 191. It does not matter if the general district court judge
explains why sufficient cause is lacking (as here) or provides no explanation at all. The effect is
the same. In either event, the Commonwealth still has the opportunity to demonstrate sufficient
cause to a grand jury by way of obtaining a direct indictment. Id.
Regardless of whether and why the general district court believed there was not sufficient
probable cause for the felony charges, a grand jury still could – and did – override that view and
indict Davis on those same felony charges. If a general district court judge’s basis for rejecting
sufficient cause to support felony charges cannot prevent a grand jury from later indicting the
defendant on those same felony charges, then a general district court judge’s view on that issue
surely cannot prevent a jury from convicting the defendant of those same offenses beyond a
- 13 -
reasonable doubt. Yet Davis’s argument on appeal, boiled down to its essence, directly
contradicts this common sense.
II. THE GENERAL DISTRICT COURT ISSUED A GENERAL VERDICT
Davis identifies only one charge that the general district court judge actually had
authority to decide in a final judgment – the misdemeanor reckless handling of a firearm charge.
See Code § 16.1-123.1(1)(b) (granting the general district courts exclusive original jurisdiction to
adjudicate misdemeanor criminal offenses). However, the record shows that the general district
court issued the type of generalized, non-specific acquittal that cannot alone establish collateral
estoppel. See Rice, 57 Va. App. at 443, 703 S.E.2d at 258. Nevertheless, Davis claims that the
circuit court jury (which ultimately convicted Davis of first-degree murder and attempted
first-degree murder) was prevented from even considering whether Davis could have been the
shooter. In support of this claim, Davis seeks to piggyback on the general district court judge’s
comments explaining why the felony charges were not certified to a grand jury. The general
district court judge stated:
On the issue of probable cause, clearly the Commonwealth has met
its burden as to whether a felony was committed or not—felonies.
On the issue of whether or not [the Commonwealth has] shown it
reasonable to believe Mr. Davis was the one that fired the weapon,
I find that you have not met that burden, and I find no probable
cause.
On the misdemeanor charge as to whether or not [the
Commonwealth has] proven the case beyond a reasonable doubt, I
would find that you have not. I’m going to find him not guilty of
that charge.
(Emphasis added). However, the general district court judge’s view concerning probable cause
was not a final decision for purposes of achieving the bar of collateral estoppel against any
further prosecution on the theory that Davis was the triggerman.
- 14 -
Davis relies on the fact that the preliminary hearing for the felony charges and the trial on
the merits for the misdemeanor reckless handling of a firearm charge were consolidated in the
same proceeding in the general district court. As the Supreme Court has explained, however, “a
preliminary hearing is essentially a screening process” – not an actual trial. Moore, 218 Va. at
391, 237 S.E.2d at 191. The general district court judge’s function in the misdemeanor trial was
different than his function in the preliminary hearing. Clearly, the general district court judge
made his lone comment describing the evidence in this case while addressing the issue of
probable cause – i.e., the preliminary hearing portion of its bench ruling. The general district
court judge never repeated or even referenced this comment when it acquitted Davis of
misdemeanor reckless handing of a firearm.
In short, this case is largely about the proper limits of judicial power, particularly with
regard to a court not of record. Indisputably, a judge of a court not of record (such as the general
district court judge here) lacks jurisdiction to render a verdict on felony charges. See Code
§§ 16.1-123.1 and 19.2-186. However, the doctrine of collateral estoppel potentially supplies a
judge of a court not of record with de facto power to decide a felony case and essentially acquit a
felony defendant – if that judge makes certain findings in a final decision in a misdemeanor case
that then serve to preclude factual issues being considered by the factfinder in a later felony trial.
Viewed from this perspective, the findings of judges of courts not of record potentially can have
broad, far-reaching, and perhaps unforeseen consequences on later proceedings.16 This de facto
16
For example, a defendant is charged with misdemeanor trespass and is prosecuted and
acquitted in general district court, where (as here) the proceeding happens to be transcribed.
Later, a dead body is discovered on the property, evidence establishes that the victim was on the
property at the same time that the defendant previously had been alleged to be there in the
trespassing case, and DNA evidence connects the defendant with the murder. However, if
today’s decision were applied to those facts, a murder prosecution could forever be barred under
collateral estoppel due to the misdemeanor trespassing acquittal in the general district court –
even if the general district court judge did not clearly state, while rendering the final judgment of
acquittal on the trespassing charge, that the specific basis for the misdemeanor acquittal was a
- 15 -
extension of the power of judges of courts not of record certainly should not be extended even
further to include their rulings addressing probable cause for felony charges – where courts not
of record have no authority to issue final decisions. See Restatement of Judgments (Second)
§ 28(3) (explaining that an issue should not be precluded from further litigation when “[a] new
determination of the issue is warranted by differences in the quality or extensiveness of the
procedures followed in the two courts or by factors relating to the allocation of jurisdiction
between them”).
In addition, the United States Supreme Court has further explained that collateral
estoppel, which it noted had originated as a civil law doctrine, should be applied cautiously in the
context of criminal law. See Standefer v. United States, 447 U.S. 10, 21-22 (1980). Even
though the facts in Standefer are certainly different than in this case, the Supreme Court
explained that the unavailability of an appeal of an acquittal in a criminal case – unlike either
party’s ability to appeal an adverse judgment in a civil case – is a factor that “strongly militates
against giving an acquittal preclusive effect.” Id. at 23. Given the significant consequences of a
collateral estoppel defense on a felony criminal prosecution (such as this case), I would certainly
require that the record show that the precise issue the defendant seeks to bar has been clearly and
manifestly decided with a final decision in the prior proceeding. Case law governing collateral
estoppel already requires no less. See Schiro, 510 U.S. at 236 (requiring a showing that the issue
that the defendant seeks to preclude “was actually and necessarily decided in the defendant’s
favor” in the prior proceeding). Consistent with this standard, I would not hold that collateral
estoppel applied in this case to the issue of Davis being the triggerman unless: (1) the general
finding that the defendant was not present on the property at the time alleged in the trespassing
warrant. Because of the far-reaching consequences of the collateral estoppel doctrine in a
criminal case, I would (1) require judges of courts not of record to state such preclusive findings
– in order for collateral estoppel to apply – while rendering a final decision in a misdemeanor
case or (2) otherwise require that the record be manifest that there could be no other possible
basis for the general acquittal.
- 16 -
district court judge found while actually rendering the verdict in the misdemeanor case that the
precise basis for the acquittal was that Davis did not handle the firearm, or (2) the record was
manifest that there could be no other possible basis for a general acquittal in the misdemeanor
case. As neither of those circumstances is apparent from the record here, I would hold that
collateral estoppel does not apply in this case.
Here, the general district court judge could have explained why he was acquitting Davis
of misdemeanor reckless handling of a firearm. However, he did not. The general district court
judge also could have incorporated his comments on felony probable cause by reference when
delivering his verdict on the misdemeanor charge, but, again, he did not.
If the general district court judge (a judge of a court not of record) was deciding the
misdemeanor charge on the specific basis that Davis did not handle the firearm in question and
was not the shooter, then the judge easily could have – and should have – said, while actually
rendering the verdict on the misdemeanor offense, that this was the precise factual basis for
rendering his not guilty verdict. Since the general district court did not actually do so, I would
hold that the transcript of the general district court proceedings establishes nothing more than a
general verdict and that the record supports a possible basis for acquittal other than a conclusion
that Davis was not the triggerman.
III. COLLATERAL ESTOPPEL DOES NOT APPLY
The United States Supreme Court has held:
[W]here a previous judgment of acquittal was based on a general
verdict, courts must “examine the record of [the] prior proceeding,
taking into account the pleadings, evidence, charge, and other
relevant matter, and conclude whether a rational jury could have
grounded its verdict on an issue other than that which the
defendant seeks to foreclose from consideration.”
Dowling, 493 U.S. at 350 (quoting Ashe, 397 U.S. at 444). Thus, if it appears that a rational
factfinder could have based its verdict in the prior proceeding on resolution of an issue other than
- 17 -
the issue that the defendant seeks to foreclose from consideration in the later proceeding, “then
collateral estoppel does not apply.” Rice, 57 Va. App. at 443, 703 S.E.2d at 258.
At the December 16, 2008 hearing in the general district court, witness T.J. testified that
he was present when the shooting occurred during the early morning hours of November 8, 2008.
T.J. testified that the shooter wore black, held a gun about fifteen or twenty feet away from the
vehicle that was occupied by the murder victim and others, and began firing at that vehicle.
Although T.J. testified that he could not identify Davis (or anyone else) as the shooter, T.J. also
testified that he quickly ducked and began to flee the scene as soon as the shooting began.
Davis’s co-defendant J.G. also testified at the general district court hearing. According to J.G.,
Davis was dressed in a “black label shirt,” “black jeans,” and “black shoes” when the shooting
occurred.
Viewing the evidence in the light most favorable to the Commonwealth, “as we must
since it was the prevailing party” below, Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d
555, 574 (2004), a rational factfinder could consider the combined strength of T.J.’s and J.G.’s
testimony and conclude that Davis was the shooter. Those witnesses’ testimony establishes that
the shooter was wearing black and that Davis was wearing black – creating a reasonable
inference that Davis was the shooter. This inference draws further support from the testimony of
another witness J.B. (the mother of Davis’s child), who testified that several individuals
associated with Davis were near the occupied vehicle and were beating on it shortly before the
shooting began – but that Davis apparently was not. J.G. actually confirmed this testimony,
explaining that Davis was not among those people who were positioned near the vehicle at that
time. The fact that Davis was not observed beating on the vehicle reinforces the inference that
- 18 -
Davis was the shooter in black, standing about fifteen to twenty feet from the occupied vehicle –
or so a rational trier of fact could find.17
On this record, the general district court’s general acquittal of Davis on the misdemeanor
reckless handing of a firearm charge does not mean that a rational factfinder in the general
district court judge’s shoes would actually and necessarily decide that Davis simply was not the
shooter. See Schiro, 510 U.S. at 236; Rhodes, 223 Va. at 749, 292 S.E.2d at 376. Instead, a
rational factfinder with knowledge of the law could find more narrowly that the elements for the
specific offense of misdemeanor reckless handling of a firearm had not been satisfied.18
I disagree with the majority’s conclusion that the Supreme Court’s decision in Lee v.
Commonwealth, 219 Va. 1108, 254 S.E.2d 126 (1979), is controlling on the facts in this case.
On the contrary, the Supreme Court expressly stated in Lee that its holding “is strictly confined
to the facts as detailed in the stipulation filed” by the parties in that case. Id. at 1111, 254 S.E.2d
at 127-28. There, the parties stipulated that the general district court granted Lee’s motion to
17
There was considerably more evidence of Davis’s guilt as the triggerman in these
crimes produced at the trial in circuit court. This analysis relies only on such evidence that was
presented in the general district court proceeding.
18
The Commonwealth, after all, presented no evidence at the December 16, 2008 hearing
concerning how the shooter handled the firearm – other than T.J.’s testimony that the shooter
held the firearm in a manner that T.J. demonstrated to the general district court judge and then
fired “[a] lot of shots.” Viewing the evidence in the light most favorable to the Commonwealth
(as we must since it prevailed below), a rational factfinder could conclude that Davis shot and
killed the murder victim in a manner that was premeditated – but was not necessarily reckless.
See Darnell v. Commonwealth, 6 Va. App. 485, 491, 370 S.E.2d 717, 720 (1988) (defining
conduct as “reckless” when it occurs “‘although no harm was intended’” (quoting Black’s Law
Dictionary 1142 (5th ed. 1979))); see also Mangano v. Commonwealth, 44 Va. App. 210, 217,
604 S.E.2d 118, 121 (2004) (“The culpable conduct necessary for reckless conduct falls between
the criminal negligence necessary for involuntary manslaughter and ordinary negligence.”).
Here, Deputy R.L. Shears testified at the hearing in the general district court that, when he
arrived on the scene, he observed “several bullet holes to the rear of the vehicle, to the driver’s
side of the vehicle, and bullet holes to the passenger side of the vehicle.” Contra Bailey v.
Commonwealth, 5 Va. App. 331, 336, 362 S.E.2d 750, 752 (1987) (where the defendant, while
“horseplaying,” pointed his gun at the victim – accidentally killing the victim when the gun
fired). In short, here there were many bullets fired at the vehicle and its occupants.
- 19 -
strike in a misdemeanor case on the precise factual issue that Lee later sought to foreclose in the
circuit court under the doctrine of collateral estoppel. Id. at 1109-10, 254 S.E.2d at 127. Here,
by contrast, no such stipulation exists – and nothing stated by the general district court judge in
his verdict on the misdemeanor charge actually and necessarily forecloses the allegation that
Davis was the shooter in question.19 Accordingly, I would hold that collateral estoppel is not
available to Davis – neither under the holding in Lee nor under the holding in any other decision
that is binding on this Court.
IV. CONCLUSION
In this case, the general district court judge issued a general verdict acquitting Davis of
misdemeanor reckless handling of a firearm. The general district court judge did not explain
why he was acquitting Davis of that charge when he acquitted him. That judge’s comments
explaining why he also was not certifying felony charges to a grand jury cannot support Davis’s
19
Davis’s counsel did not even cite any specific ground in support of his motion to
dismiss the misdemeanor reckless handling of a firearm charge. Indeed, the argument made by
Davis’s counsel in the general district court for dismissing the misdemeanor reckless handling of
a firearm charge was no more specific than the general verdict announced by the general district
court judge in acquitting Davis on that charge. While Davis’s counsel asserted that the felony
charges should not be certified to a grand jury because the Commonwealth’s evidence as to those
charges did not establish Davis’s criminal agency, Davis’s counsel only stated a general
argument pertaining to the misdemeanor charge. Davis’s counsel merely argued that the
misdemeanor reckless handling of a firearm charge should be dismissed “because the
Commonwealth has not met its evidence on that matter as well.” The circumstances of this case
are different than those in Lee, where the record established “the express language of the
stipulation that the judgment of dismissal” rendered by the general district court judge in that
case “was based on insufficiency of the evidence, the particular ground assigned by defendant in
his motion to dismiss.” Lee, 219 Va. at 1111, 254 S.E.2d at 127 (emphasis added); see also
Simon v. Commonwealth, 220 Va. 412, 419, 258 S.E.2d 567, 572 (1979) (where, in a
misdemeanor DUI case, a transcript of the general district court proceedings showed that
Simon’s counsel moved to strike the Commonwealth’s evidence on the specific basis that the
evidence “was insufficient, as a matter of law, to establish that [Simon] was intoxicated while
operating a motor vehicle” and the general district court judge granted the motion to strike on
this specific basis). Thus, unlike in this case, in Lee it was clearly established that the general
district court judge specifically issued a final decision on the precise issue for which Lee sought
the preclusive effect of collateral estoppel.
- 20 -
claim of collateral estoppel – given that a judge of a court not of record cannot render final
decisions on felony charges. Based on the record in this case, a rational factfinder could have
acquitted Davis of misdemeanor reckless handing of a firearm without also finding that Davis
was not the shooter. Therefore, Davis fails to satisfy the burden of a collateral estoppel defense
– and the Supreme Court’s decision in Lee is not controlling here because the Supreme Court
limited that decision to the facts of that case, in which the general district court judge acquitted
Lee of the misdemeanor charge for the specific reason on which collateral estoppel in the circuit
court was based. Accordingly, for the foregoing reasons, I respectfully dissent from the majority
opinion and would affirm the circuit court jury’s convictions of Davis for first-degree murder
and attempted first-degree murder.20
20
As I would hold that Davis’s second and third assignments of error have no merit, I
would also affirm the judgment of the circuit court as to those assignments of error.
- 21 -
| {
"pile_set_name": "FreeLaw"
} |
967 F.2d 57
UNITED STATES of America, Appellant,v.Jerry PRUSAN and David Vives, Defendants-Appellees.
No. 1404, Docket 92-1020.
United States Court of Appeals,Second Circuit.
Argued May 1, 1992.Decided June 12, 1992.
Bruce G. Ohr, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty. and Annmarie Levins, Asst. U.S. Atty., S.D.N.Y., of counsel), for appellant.
Joseph Calluori, New York City (Paul W. Bergrin, Pope and Bergrin, Newark, N.J. and Lawrence F. Ruggiero, New York City, of counsel), for defendants-appellees.
Before: MESKILL and NEWMAN, Circuit Judges, and ARCARA,* District Judge.
MESKILL, Circuit Judge:
1
This is an appeal by the government from a decision of the United States District Court for the Southern District of New York, Sand, J., 780 F.Supp. 1431, dismissing one count of an indictment against the defendants on the ground that the Double Jeopardy Clause of the Fifth Amendment barred prosecution of that count. Because the offense charged in that count is not the same offense with which the defendants previously were charged and to which they pleaded guilty, we reverse the judgment of the district court and remand the matter to the district court.
BACKGROUND
2
As a result of an investigation into the illegal interstate shipment of firearms, the defendants in this case, Jerry Prusan and David Vives, were indicted both in the District of Puerto Rico and in the Southern District of New York. The Puerto Rico indictment, dated April 10, 1991, alleged in Count One that Prusan and Vives conspired with others to ship firearms, ammunition and silencers in interstate commerce from New York to Puerto Rico in violation of 18 U.S.C. § 922(a)(1). That count alleged over twenty overt acts taken in furtherance of the conspiracy and included allegations concerning specific firearms. The Puerto Rico indictment also alleged in several counts substantive violations by Prusan and Vives of various firearms statutes, including 18 U.S.C. § 922(a)(1)(A), (a)(3) & (a)(5).
3
On May 31, 1991 Prusan and Vives were indicted in the Southern District of New York. Count One of that indictment, which is the only count with which we are concerned on this appeal, alleged a conspiracy between Prusan, Vives and others to transport firearms purchased or obtained by them outside the state of their residence, New York, into that state in violation of 18 U.S.C. § 922(a)(3). The indictment alleged three overt acts taken in furtherance of the conspiracy. Two of those acts involved buying firearms in Florida and sending them to New York.
4
Prusan and Vives both pleaded guilty to certain counts of the Puerto Rico indictment, including the conspiracy count and various substantive counts. The government provided Prusan and Vives with Firearms Transaction Records that indicate that several of the firearms that were the subject of the substantive Puerto Rico counts to which both men pleaded guilty were initially purchased in Florida by Vives.
5
On September 6, 1991, after both men had pled guilty in Puerto Rico, the United States Attorney's Office filed a superseding indictment in the Southern District of New York. The superseding indictment changed Count One of the original indictment from a conspiracy to violate 18 U.S.C. § 922(a)(3) to a substantive violation of that statute. Count One of the superseding indictment no longer alleged specific acts in violation of section 922(a)(3) but merely alleged that between February 1, 1991 and April 1, 1991 Prusan and Vives willfully transported firearms obtained outside their state of residence into that state.
6
Prusan and Vives moved to dismiss Count One of the instant indictment on the grounds that it constituted the same offense for which they had been prosecuted and convicted in Puerto Rico and thus could not be maintained consistent with the Double Jeopardy Clause of the Fifth Amendment. The district court applied the double jeopardy analysis set forth by the Supreme Court in Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990). Examining both the overt acts alleged in the Puerto Rico conspiracy count and the substantive firearms offenses to which Prusan and Vives had pled guilty, the district court held that "to establish an essential element of the offense alleged in Count One, the purchase of firearms outside New York, the Government will attempt to prove conduct that constitutes offenses for which the defendants have already been prosecuted." The district court therefore granted the motion to dismiss that count. The government appeals this decision pursuant to 18 U.S.C. § 3731.
DISCUSSION
7
The Fifth Amendment provides that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb." After the district court's decision but prior to oral argument of this appeal, the Supreme Court announced its decision in United States v. Felix, --- U.S. ----, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). That decision altered the way in which some aspects of Grady had been understood in this Circuit. See United States v. Calderone, 917 F.2d 717 (2d Cir.1990), vacated, --- U.S. ----, 112 S.Ct. 1657, 118 L.Ed.2d 381 (1992) (in light of Felix ). Although the district court did not have the benefit of the Felix decision, our task is to evaluate, under the current understanding of the Double Jeopardy Clause, the propriety of the proposed prosecution in light of the defendants' prior guilty pleas in Puerto Rico. See Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974) ("[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.").
8
In Felix, the Supreme Court examined the Double Jeopardy Clause in relation to the prosecution of the defendant, Felix, for two crimes arising out of the same type of conduct and for which the government utilized similar evidence at the two trials. Felix was convicted in Missouri federal court on a substantive count of attempting to manufacture methamphetamine in violation of federal law. In order to counter Felix's assertion that he had no criminal intent with respect to his shipment of precursor chemicals to Missouri, the government introduced evidence at the Missouri trial tending to show that Felix had manufactured and distributed methamphetamine several months earlier in Oklahoma. See 112 S.Ct. at 1380.
9
After Felix was convicted in Missouri, the government indicted him in the Eastern District of Oklahoma, alleging among other things that Felix and others had conspired to manufacture, possess and distribute methamphetamine. Two of the nine overt acts alleged to have been taken by Felix in furtherance of the Oklahoma conspiracy were based on conduct that had been the subject of the Missouri prosecution. See id. None of the substantive counts alleged in the Oklahoma indictment involved conduct prosecuted in the Missouri prosecution.
10
The Supreme Court held that the Oklahoma prosecution did not violate the Double Jeopardy Clause. See id. at 1381. The Felix Court first held that the mere fact that evidence of the Oklahoma drug activity had been introduced at the Missouri trial to demonstrate intent did not mean that Felix had been prosecuted for that conduct. The Court stated that "the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct." Id. at 1383 (footnote omitted). Thus, the substantive counts in the Oklahoma prosecution were not barred by the Double Jeopardy Clause.
11
The Court next addressed whether the Oklahoma conspiracy count, which alleged as two overt acts in furtherance of the conspiracy conduct which had been the basis of the Missouri prosecution, could be prosecuted consistent with the Double Jeopardy Clause. See id. The Court held that it could, reiterating the established "rule that a substantive crime, and a conspiracy to commit that crime, are not the 'same offense' for double jeopardy purposes." Id. at 1384.
12
In this case, the district court relied in part on the factual overlap between the Puerto Rico conspiracy offense and the New York substantive offense in holding that the instant indictment was barred by the Double Jeopardy Clause. Under Felix, such overlap does not present a double jeopardy problem.
13
However, the district court also relied on several of the substantive counts in the Puerto Rico indictment in concluding that the New York prosecution was barred by the Double Jeopardy Clause. Although the district court acknowledged that it was "conceivable that [Count One of the New York indictment] involved conduct unrelated to that prosecuted in the Puerto Rico indictment," the evidence before the district court tended to demonstrate that the conduct would be related. As the government does not contend otherwise, we will assume that the conduct charged in the instant indictment is not unrelated to the conduct underlying the Puerto Rico prosecution.
14
Therefore, the question is whether, where an individual buys firearms in Florida and ships those firearms to the state of that individual's residence and then from that state of residence ships the firearms to another part of the country, the government, consistent with the Double Jeopardy Clause, may prosecute that individual separately for each leg of the journey. Prusan and Vives argue, in effect, that they were involved in only one course of conduct, transporting firearms to Puerto Rico. That the firearms incidentally were shipped first to New York, the state of their residence, should not, they argue, allow the government to bring two separate prosecutions for the same conduct. As Felix does not readily provide an answer to this question, we must address ourselves to pre-Felix interpretations of the Double Jeopardy Clause.
15
Defendants' argument is reminiscent of the "single transaction" test for double jeopardy, a test that the Supreme Court has refused to adopt. Justice Brennan proposed in a concurring opinion in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), joined by Justices Douglas and Marshall, that "the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." Id. at 453-54, 90 S.Ct. at 1199 (footnote omitted); see also Jones v. Thomas, 491 U.S. 376, 387-88, 109 S.Ct. 2522, 2528, 105 L.Ed.2d 322 (1989) (Brennan, J., dissenting). Under this "single transaction" test the prosecution of Prusan and Vives for the first part of a transaction, the ultimate goal of which was to send firearms to Puerto Rico, might well be barred by the Double Jeopardy Clause. However, the Supreme Court has "steadfastly refused to adopt the 'single transaction' view of the Double Jeopardy Clause." Garrett v. United States, 471 U.S. 773, 790, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764 (1985).
16
Instead, this case is governed by the general principle set forth in Grady, 495 U.S. at 521, 110 S.Ct. at 2093. In that case, which Felix did not purport to overrule, the Supreme Court held that "the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. (footnote omitted). In Grady, the defendant, Corbin, had driven his automobile across the median strip of a road while intoxicated and struck another car, killing the driver and injuring a passenger. The state charged Corbin with the misdemeanors of driving while intoxicated and failing to keep to the right of the median. After Corbin pleaded guilty to those charges, the state brought felony homicide and assault charges against him. The Supreme Court held that those charges were barred by the Double Jeopardy Clause because the state intended to establish an essential element of those charges--recklessness--by proving "the entirety of the conduct for which Corbin was convicted." Id. at 523, 110 S.Ct. at 2084. The Grady Court noted that the state would not be barred from bringing a subsequent homicide prosecution if it were to rely on conduct for which Corbin had not already been convicted to establish all the essential elements of the offense. Id.
17
This case differs significantly from Grady. Count One of the instant indictment charges Prusan and Vives with substantive violations of 18 U.S.C. § 922(a)(3). That statute renders it unlawful "for any person [without a license] ... to transport into or receive in the State where he resides ... any fire arm purchased or otherwise obtained by such person outside that State." In order to prove that Prusan and Vives violated this statute, therefore, the government must demonstrate that they (1) purchased or obtained a firearm outside New York, their state of residence, (2) transported that firearm into New York, and (3) were unlicensed. 18 U.S.C. § 922(a)(3).
18
Prusan and Vives also both pleaded guilty to substantive firearms counts in the Puerto Rico indictment that alleged violations of 18 U.S.C. § 922(a)(1)(A), (a)(5). Section 922(a)(1)(A) proscribes any unlicensed person from engaging in the business of shipping or receiving firearms in interstate commerce. The indictment makes clear that the interstate commerce element of the offenses charged under this section was to have been satisfied by the movement of the firearms from New York to Puerto Rico. Section 922(a)(5) prohibits unlicensed persons from transferring firearms to one whom he knows or has reason to know resides in a state other than that in which the transferor resides. Even assuming that the same firearms are involved and that their route through New York was merely incidental to their shipment to Puerto Rico, neither of these statutes describes conduct that will be used to establish an essential element of the alleged violations of section 922(a)(3) set forth in Count One of the instant indictment.
19
Prusan pleaded guilty to one count of aiding and abetting an individual not charged in the indictment with violating section 922(a)(3). As noted above, section 922(a)(3) prohibits an individual from receiving in the state where he resides any firearm purchased or obtained outside that state. Thus, in order to prove that count of the Puerto Rico indictment, the government would have had to show that Prusan aided and abetted a resident of Puerto Rico in obtaining the firearm outside of Puerto Rico and bringing that firearm into Puerto Rico. In order to prove Count One of the present indictment, the government would have to show only that Prusan obtained the firearm outside of New York and brought or received it in New York. There is not even substantial overlap in the elements of the two offenses.
20
Proof that Prusan and Vives shipped firearms to Puerto Rico from outside of Puerto Rico, transferred firearms to a person living outside their home state of New York, or aided and abetted a Puerto Rican in obtaining a weapon outside Puerto Rico and bringing it into Puerto Rico will not establish an essential element of the crime charged in the New York indictment--acquiring firearms outside New York and bringing them into New York. Count One of the instant indictment therefore does not rely on conduct that constitutes an offense for which the defendants have already been convicted in the Puerto Rico indictment to establish an essential element of the offense. The Double Jeopardy Clause does not bar this prosecution.
CONCLUSION
21
Although the charge at issue here may be related to the conduct that formed the basis of the charges to which the defendants pleaded guilty in Puerto Rico, this prosecution is not barred by the Double Jeopardy Clause. Any overlap in the conduct charged in the Puerto Rico conspiracy charge is irrelevant here because, for purposes of double jeopardy, a conspiracy to commit a crime is separate from the crime itself. Nor does the present indictment rely on the same conduct as the substantive counts in the Puerto Rico indictment. The present prosecution will not rely on the conduct that constitutes the offense to which the defendants pleaded guilty in Puerto Rico to establish an essential element of the offense charged. The judgment of the district court is reversed and the matter is remanded for further proceedings not inconsistent with this opinion.
JON O. NEWMAN, Circuit Judge, dissenting:
22
Jerry Prusan and David Vives bought some guns in Florida and sold them to customers in Puerto Rico. They transported the guns from Florida to New York and then from New York to Puerto Rico. The Government prosecuted them in the District of Puerto Rico and obtained convictions on a variety of charges arising out of these transactions. The Puerto Rico charges include conspiracy to ship guns from New York to Puerto Rico and the substantive offenses of being in the business of dealing in guns without a license and shipping guns from New York to Puerto Rico. 18 U.S.C. §§ 371, 922(a)(1)(A), 924(a)(1)(D) (1988). Apparently not satisfied with the sentences imposed by the District Court in Puerto Rico, the Government is now proceeding to try Prusan and Vives on a charge of bringing the same guns from Florida to New York. I respectfully dissent from the Court's judgment permitting the Government to break the Florida-Puerto Rico shipment of these guns into two sets of offenses, one for each leg of the journey.
23
In reversing Judge Sand's dismissal of the count purporting to charge the defendants with the "separate" offense of transporting guns into their state of residence, New York, in violation of 18 U.S.C. § 922(a)(3) (1988), the Court carefully analyzes the Supreme Court's opinion in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and concludes that the Government is not endeavoring "to prove conduct that constitutes offenses for which the defendants have already been prosecuted." Id. at 521, 110 S.Ct. at 2093. Whether or not the second prosecution violates the double jeopardy protection outlined in Grady v. Corbin, it offends the more elementary rule that the Government may not fragment an offense into units smaller than the "allowable unit of prosecution," see United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952), that Congress has identified in defining the offense. See Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (unit of offense for Mann Act is the interstate journey, not each woman transported). "[C]ontinuation of a transportation ... could not properly be charged as a separate crime since this would permit fragmentation of one continuous transportation into several segments, opening the door to mischievous abuse of the statute [punishing interstate transportation of stolen property, 18 U.S.C. § 2314 (1988) ]." United States v. Johnpoll, 739 F.2d 702, 715 (2d Cir.), cert. denied, Y469 U.S. 1075, 105 S.Ct. 571, 83 L.Ed.2d 511 (1984).
24
The Government argues that "[s]hipping weapons from Florida to New York clearly is distinct from the conduct of shipping weapons from New York to Puerto Rico, even if both acts represent different acts in furtherance of the same scheme." Brief for Appellant at 8. How far down that road would the Government go? If the guns are transported on the first leg of the journey by car, is it a separate offense as the guns move between each pair of adjacent states between Florida and New York? Even the Government hesitated at oral argument to endorse fragmentation of the offense to that degree. I would not permit the Government to divide the journey into even two legs, just because the second leg is over water. "One if by land, two if by sea" is best left as a signal to patriots; it is not an acceptable method of counting crimes.
25
"Unit of offense" analysis is not precluded in this case simply because the second prosecution charges the defendants with the first leg of the gun shipment under section 922(a)(3), which punishes transportation into the state of one's residence. Had the Government first prosecuted the defendants for shipping the guns from Florida to New York in violation of section 922(a)(1)(A), punishing interstate transportation, it could not have brought a second prosecution for shipping the same guns into New York in violation of section 922(a)(3), because the (a)(1)(A) offense would have been a lesser included offense within the (a)(3) offense. The Government should not be permitted to circumvent that outcome by prosecuting first for the second leg of the journey (from New York to Puerto Rico) and now prosecuting for the first leg (from Florida to New York).
26
Even if this fragmented prosecution is lawful--a result the Court sustains on the basis of the indictment, but a result that may well be viewed differently on the basis of a complete trial record--it is an undue imposition upon an already overburdened District Court. In any event, this second prosecution is a pointless maneuver that may succeed in increasing the number of notches in the prosecutor's belt and the number of convictions on the defendants' records, but it is not likely to result in any increased punishment. See U.S.S.G. § 5G1.3(b) (requiring multiple-count analysis for sentencing of defendant subject to undischarged term of imprisonment imposed under Sentencing Reform Act). I would affirm the order of the District Court.
*
Honorable Richard J. Arcara, United States District Judge for the Western District of New York, sitting by designation
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21 A.3d 1151 (2011)
206 N.J. 596
PASSAIC VALLEY SEWERAGE COMMISSIONERS, Irene G. Almeida, James Krone, Frank J. Calandriello, Jr., Dominic W. Cucciniello, Carl S. Czaplicki, Jr., Peter A. Murphy, Angelina M. Pashercia, Thomas J. Powell, Donald Tucker, Robert J. Davenport, Frank D'Ascensio, Daniel Cardellichio, Sheldon Lipke, Raymond Luchko, Daniel Becht, and Ronald W. Giaconia, Plaintiffs-Appellants,
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant, and
GE Commercial Insurance f/k/a Coregis Insurance Company, Defendant-Respondent.
No. 065793.
Supreme Court of New Jersey.
Argued January 31, 2011.
Decided June 21, 2011.
*1153 Daniel R. Bevere argued the cause for appellants (Piro, Zinna, Cifelli, Paris & Genitempo, attorneys; Mr. Bevere and James M. Piro, Nutley, on the briefs).
Darcy L. Ibach, a member of the Illinois bar, argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Ibach and Marc R. Jones, on the briefs).
Judge CARCHMAN (temporarily assigned) delivered the opinion of the Court.
Following years of contentious litigation and after months of mediator-assisted negotiations, plaintiff Passaic Valley Sewerage Commission (PVSC)[1] and Spectraserv, Inc. (Spectraserv), without a concession of fault by either party, entered into a settlement agreement providing for the transfer of assets and other consideration from PVSC to Spectraserv. Rather than advance monies to Spectraserv, PVSC agreed, among other things, to provide in-kind services and forbear from pursuing alleged regulatory violations by Spectraserv.
PVSC sought indemnification for its "loss"the value of the settlementfrom its insurer, defendant Coregis Insurance Company (Coregis). Coregis declined to indemnify PVSC, asserting that Coregis had no obligation to do so under the terms of its Policy, which defined a "loss" as "money damages." The issue that we address is whether the definition of "money damages" under the terms of PVSC's policy encompasses the value of services rendered and assets surrendered in lieu of cash payments. Both the Chancery Division and Appellate Division concluded that Coregis correctly interpreted its Policy and was not obligated to indemnify PVSC for the value of the settlement. We granted certification, 202 N.J. 346, 997 A.2d 230 (2010), and affirm.
I.
We adduce the following facts from the record.
PVSC is a regulatory body created by the State of New Jersey, which regulates the collection and disposal of wastewater generated in a four-county area along the Passaic Valley River Basin. N.J.S.A. 58:14-1 to -37. Pursuant to its statutory authority, PVSC requires its large industrial users to obtain permits to utilize the PVSC system. PVSC issues, reviews and modifies the permits on an as-needed basis, particularly when conditions change with regard to the user.
Spectraserv is a private business entity in the wastewater hauling and treatment business. It owns and operates a facility within PVSC's district and discharges wastewater into the PVSC system. It is required to maintain a permit with PVSC as well as comply with PVSC's rules and regulations regarding the discharge into PVSC's systems.
A.
On August 14, 1997, Spectraserv filed a complaint in the United States District *1154 Court for the District of New Jersey (Passaic I) against PVSC and certain officers, employees and PVSC Commissioners, alleging that defendants wrongfully withheld renewal of Spectraserv's permit and misused PVSC's regulatory authority over Spectraserv.
At the time of action, PVSC was insured by Coregis under a "claims made" Public Entity Management Liability (PEML) policy, which was effective from March 20, 1997 through January 1, 1998 (the "Coregis Policy" or "Policy"). The Coregis Policy provided:
The Company will pay on behalf of the Insureds Loss as a result of civil Claims made against the Insureds by reason of a Wrongful Act, provided that Claim is first made during the Policy Period. . . .
The Policy contained the following definitions:
F. "Wrongful Act" means any act, error or omission of an Insured constituting a breach of a duty imposed by law or a breach of an Employment Contract.
H. "Claim" means a demand for Money Damages as of right.
. . . .
I. "Money Damages" means monetary compensation for past harms or injuries.
L. "Loss" means Money Damages which the Insured becomes legally obligated to pay by reason of a Wrongful Act. . . .
Loss does not include:
1. Punitive damages, exemplary damages or the multiplied portions of any damage award;
2. Sanctions, fines or penalties;
3. Liquidated damages as provided under a contract or statute;
4. Return of taxes, assessments, penalties, fines and/or fees;
6. Matters uninsurable under the law or against public policy. . . .
[(Emphasis added).]
The Coregis Policy also contained the following exclusions:
This Policy does not apply to the following, regardless of the cause of action or legal theory alleged:
A. any Claim or Loss Arising Out of any Insured gaining profit, remuneration or advantage to which any Insured was not entitled.
B. any Claim or Loss Arising Out of any criminal, dishonest, malicious, fraudulent or knowingly wrongful act or omission.
C. any demand or proceeding seeking relief or redress in any form other than Money Damages, including any form of injunction or other equitable relief, including, but not limited to restitution, replevin, unjust enrichment, declaratory judgments, or an accounting.
I. any claim or Loss Arising Out Of inverse condemnation, temporary or permanent taking adverse possession or dedication by adverse use.
M. any Claim or Loss Arising Out Of breach of contract, whether oral, written or implied, except any Employment Contract.
[(Emphasis added).] The Policy also provided that:
As respects Claims for Loss which is covered by this Policy:
F. The Insured shall not settle any Claim without the prior written consent of the Company. The Company shall not be obligated to indemnify any Insured for Loss in connection with the settlement of a Claim to which the Company did not provide prior written consent.
*1155 On October 31, 1997, Coregis agreed to undertake the defense of Passaic I pursuant to a reservation of rights and authorized PVSC to retain counsel for its defense. Counsel then moved to dismiss the federal action for failure to state a claim. The motion was never heard, and on September 11, 1998, the complaint was administratively dismissed.
B.
In July 1999, PVSC issued a Notice of Violation (NOV) to Spectraserv for failure to maintain an acceptable monitoring station for its discharged liquid waste.
PVSC then filed an action in the Chancery Division (Passaic II) to compel Spectraserv to change its plant equipment and remedy the issues underlying the 1999 NOV. Spectraserv filed an answer and counterclaim to the complaint, as well as a third-party complaint against several individual officers, employees and Commissioners of PVSC.
Subsequent to the filing, PVSC issued eleven more NOVs between April 6, 2000, and June 5, 2001. However, a report prepared by Spectraserv's expert, Brown and Caldwell in November 2002 entitled "Evaluation of Alleged Discharge of Solids by Spectraserv" challenged the validity of those NOVs, raising questions regarding PVSC's data collection. Nevertheless, PVSC continued issuing NOVs, resulting in 181 NOVs issued between March 2000 and January 2005.
The claims asserted by Spectraserv in its Passaic II counterclaim incorporated counts previously asserted against PVSC in Passaic I. In addition to the reasserted claims, Spectraserv alleged new claims, including tortious interference, ultra vires actions, fraudulent inducement, breach of contract, breach of duty of good faith and fair dealing and violation of the New Jersey Right to Know Law. [N.J.S.A. 47:1A-1 to -13.] An amended counterclaim also added two additional claims, fraudulent concealment and abuse of process (Counts Thirteen and Fourteen).
Upon the receipt of the counterclaim in Passaic II, PVSC sought a defense and indemnification from its current insurer, St. Paul Fire and Marine Insurance Company (St. Paul), and Coregis, whose Policy term had ended on January 1, 1998. PVSC was insured under two PEML policies with St. Paul (St. Paul Policy), with effective dates from January 1, 1999 through January 1, 2001. St. Paul disclaimed coverage for Passaic II, asserting that the claim was not "first made" during the St. Paul Policy period.
Coregis issued a reservation of rights letter to PVSC on July 17, 2000, stating that "[b]ased upon the information available to us and the allegations contained in the Complaint as presently framed, it appears that your policy may only cover part of this Loss." Coregis also sent two letters to PVSC in 2001, requesting additional information on the status of the litigation. Coregis stated that "[i]t is important to an effective working relationship and required under the policy that we are kept apprised of the course of the litigation."
In 2002, PVSC responded by filing an action against St. Paul seeking a declaratory judgment that St. Paul was required to provide a defense and indemnification for Passaic II. In 2003, PVSC amended its complaint to add Coregis as a defendant, seeking a declaratory judgment that Coregis was required to provide a defense and indemnification for Passaic II as well.
C.
In 2004, PVSC and Spectraserv entered into settlement negotiations. Coregis sent a letter dated April 8, 2004, confirming Coregis's agreement to provide a defense for the Passaic II counterclaim, subject to a "full" reservation of rights as to all *1156 claims, and supplementing its earlier reservation of rights. This was followed, on October 6, 2004, by a letter from Coregis to PVSC's counsel, proposing payment of past defense-related costs. Coregis also stated that the two parties would confer regarding litigation strategy. However, Coregis warned PVSC:
We understand that PVSC has made one or more settlement proposals to Spectraserv that would entail future cooperation between PVSC and Spectraserv, including potential price breaks to Spectraserv. Please note that although Coregis does not necessarily object to a settlement agreement of that type, it is extremely unlikely that Coregis would have any obligation to make payment to PVSC to make up any asserted loss in revenue on PVSC's part.
[(Emphasis added).]
The settlement negotiations between Spectraserv and PVSC continued, but because PVSC was unable to meet Spectraserv's cash payment demands, the parties agreed to explore a settlement that would result in an alternative means of compensating Spectraserv for its alleged damages.
After months of mediation, PVSC, Spectraserv and the individual defendants reached a settlement on June 30, 2005. The settlement encompassed three discrete agreements to resolve six claims in five different lawsuits. The first agreement provided for the entry of a consent order resolving the NOVs that PVSC had issued to Spectraserv. PVSC agreed to accept $100,000 in lieu of all civil penalties that could have been assessed against Spectraserv.[2] The second agreement provided that PVSC agreed to accept, treat and dispose of Westchester County's[3] sludge for a period of not more than five years. The third agreement with Encap Golf Holdings, LLC (Encap), required PVSC to assign to Spectraserv the right to deliver and dispose of sludge at Encap.
Although the settlement agreement failed to include a stated valuation for the various obligations imposed on PVSC, other than the $100,000 "payment" to PVSC for the forbearance on pursuing the NOVs, PVSC retained an expert, Kenneth I. Rubin, Ph.D. to value the settlement. Rubin valued PVSC's cost of the Encap portion of the settlement as falling between $2,874,797 and $5,431,591. Addressing the treatment of Westchester County sludge, Rubin opined that PVSC would be foregoing profits of between $1,591,364 and $3,956,137. Finally, regarding dismissal of the NOVs, Rubin valued the dismissed fines at between $1,497,500 and $7,793,000. In sum, Rubin's estimate of the cost of the settlement agreement to PVSC was between $5,963,661 and $17,180,728, a range of $11,217,067.
D.
Subsequent to the settlement agreement between PVSC and Spectraserv, PVSC and Coregis resolved their coverage disputes. On December 19, 2005, the trial court granted summary judgment in favor of St. Paul, concluding that Passaic II related back to Passaic I and fell within the Coregis Policy coverage period. Then, on September 11, 2006, the trial court entered partial summary judgments in favor of both PVSC and Coregis. The judge determined that Coregis owed a defense to PVSC on Counts Three (antitrust violation), Eleven (breach of duty of good faith *1157 and fair dealing) and Fourteen (abuse of process) of Spectraserv's Passaic II counterclaim. He further concluded that Coregis did not owe a defense on the remaining claims.
Following the judge's ruling, PVSC and Coregis entered into a settlement agreement wherein PVSC received $1.2 million for the reimbursement of counsel fees and costs expended for the defense of Passaic I and Passaic II. PVSC and Coregis then filed cross-motions for summary judgment on two final issues: indemnification for the Spectraserv settlement, as well as attorney's fees in prosecuting the 2003 declaratory judgment action against Coregis. See R. 4:42-9(a)(6). Coregis disclaimed liability to indemnify PVSC for the Spectraserv settlement asserting that, consistent with the terms of its Policy, it had no obligation to indemnify absent the payment of "money damages."
Both the Chancery Division and Appellate Division agreed.[4]
II.
A.
The Coregis Policy provides that Coregis will pay "Loss as a result of civil claims made against [PVSC] by reason of a Wrongful Act. . . ." The conflict here arises out of the differing interpretations of what constitutes "loss" under the Policy, and specifically the term "money damages." As we have noted, under the Policy, "loss" is defined as "money damages." In the exclusions section of the Policy, Coregis excludes "any demand or proceeding seeking relief in any form other than Money Damages. . . ."
Coregis's argument is stated simply. It contends that the language of the Policy is narrowly drafted and clear: loss is defined as "money damages," which means "the payment of money" and the settlement negotiated between PVSC and Spectraserv is not "money."
PVSC suggests a broader interpretation of the same language suggesting that "loss" is the surrender of "assets of value." According to PVSC, the term "money damages" does not require a "cash payment," and it is entitled to indemnification and a hearing to determine the value of the loss suffered in connection with the Spectraserv settlement.
The primary issue for our consideration is whether the definition of "loss" as "money damages" encompasses the value of the services rendered and assets surrendered in the Spectraserv settlement. We begin our analysis with basic principles that inform our decision.
Contracts for insurance are unique, and we take "a particularly vigilant role in ensuring their conformity to public policy and principles of fairness." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 175, 607 A.2d 1255 (1992). Generally, when interpreting an insurance policy, we give the policy's words their plain, ordinary meaning. Nav-Its, Inc. v. Selective Ins. Co., 183 N.J. 110, 118, 869 A.2d 929 (2005).
Critically important to our analysis is the principle that to fulfill the expectations of the parties, we will enforce the terms of an insurance policy as written if the language is clear. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43, 161 A.2d 717 (1960). If the policy terms are clear, we interpret the policy as written and avoid writing a better insurance policy than the one purchased. Villa v. Short, 195 N.J. 15, 23, 947 A.2d 1217 (2008) (quoting President *1158 v. Jenkins, 180 N.J. 550, 562, 853 A.2d 247 (2004)).
If the terms are not clear, but instead are ambiguous, we construe them against the insurer and in favor of the insured to give effect to the insured's reasonable expectations. Flomerfelt v. Cardiello, 202 N.J. 432, 441, 997 A.2d 991 (2010) (citing Doto v. Russo, 140 N.J. 544, 556, 659 A.2d 1371 (1995)); Voorhees, supra, 128 N.J. at 175, 607 A.2d 1255.
"A genuine ambiguity arises only where the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage." Progressive Cas. Ins. Co. v. Hurley, 166 N.J. 260, 274, 765 A.2d 195 (2001) (internal quotations omitted). Ambiguous policies are those that are "overly complicated, unclear, or written as a trap for the unguarded consumer." See Zacarias v. Allstate Ins. Co., 168 N.J. 590, 604, 775 A.2d 1262 (2001) (citing Kievit v. Loyal Protective Life Ins. Co., 34 N.J. 475, 475, 170 A.2d 22 (1961)). When construing an ambiguous clause in an insurance policy we consider whether clearer draftsmanship by the insurer would have put the matter beyond reasonable question. Hurley, supra, 166 N.J. at 274, 765 A.2d 195. Most important, the rule that contracts of insurance will be construed in favor of the insured and against the insurer will not be permitted to have the effect of making a plain agreement ambiguous and then construing it in favor of the insured. Petronzio v. Brayda, 138 N.J.Super. 70, 76, 350 A.2d 256 (App.Div.1975).
Applying these well-settled principles, we conclude that the Coregis Policy is not ambiguous in its definition of "loss" or "money damages."
As we have noted, the Policy defined "loss" as "money damages." "Money damages" in turn, is defined as "monetary compensation for past harms or injuries." "Monetary" is defined as "of or relating to money." Black's Law Dictionary 1021 (7th ed. 1999). These are not sophisticated terms but plain language reflecting the intentions of the parties when they entered into this insurance contract.
To aid in understanding the construct of the Policy provisions, we look to the language of not only what is covered but what is excluded. The parameters of indemnification are limited to "money damages" and expressly exclude indemnification for that which is not "money damages." The exclusion section of the Policy further clarifies that there is no indemnification against "any demand or proceeding seeking relief or redress in any form other than Money Damages, including any form of injunction or other equitable relief." (Emphasis added). The Policy's qualification of the term "compensation" with "monetary," indicates that the Policy does not apply to more general forms of compensation; only compensation "of or pertaining to money."
The Spectraserv settlement included the entry of a consent order resolving the NOVs that PVSC had issued to Spectraserv; PVSC's agreement to accept, treat and dispose of Westchester County sludge; and PVSC's agreement to assign to Spectraserv the right to deliver and dispose sludge at Encap.
PVSC argues that the settlement can be valued and, as such, the damages can be quantified as money damages. We recognize that courts are capable of valuing elements of damages. See, e.g. Borbonus v. Daoud, 34 N.J.Super. 54, 61, 111 A.2d 443 (Ch.Div.1955). "Lost profits may be recoverable if they can be established with a `reasonable degree of certainty.' Anticipated profits that are remote, uncertain or speculative, however, are not recoverable." Perth Amboy Iron Works, Inc. v. Am. Home Assurance Co., 226 N.J.Super. 200, 224, 543 A.2d 1020 (App.Div.1988) (citing *1159 Stanley Co. of Am. v. Hercules Powder Co., 16 N.J. 295, 314, 108 A.2d 616 (1954)), aff'd, 118 N.J. 249, 571 A.2d 294 (1990). However, while courts are capable of and can, hypothetically, value the assets transferred in the settlement agreement, part of the benefit of Coregis's bargain with PVSC was limiting its exposure by precluding indemnification for non-monetary claims. In defining "loss" narrowly, Coregis also sought to avoid the necessity of litigating the value of non-monetary losses. The speculative nature of the settlement agreement here reinforces this view. Although the expert opinion offered by Rubin purports to value the settlement agreement, the terms of the agreement are, by nature, "in kind" rather than monetary. The lack of precision, as demonstrated by the eleven million dollar valuation rangeconstituting an approximately 300% difference between the highest and lowest estimates provides further evidence that the settlement agreement was not of a defined value.[5] Not only did the settlement fail to involve money damages, it was a business arrangement involving the performance of services, designed to benefit the parties.
The exclusion section lends further support to Coregis's intention not to indemnify for this type of business arrangement. The exclusion section proscribes coverage for any form of injunction or equitable relief and any relief other than money damages. For example, forbearance on recovery penalties for the NOV may satisfy the needs of the parties for settlement purposes but compromises PVSC's responsibility in enforcing its regulations. It implicates the application of "equitable" principles to achieve a business end. Such resolution hardly equates to a compensable loss under an insurance policy. The exclusions generally demonstrate Coregis's intent to preclude indemnification of settlements encompassing anything other than identified, ascertained and precisely calculated money damages. Coregis did not bargain for the valuation process and procedure that would implicate the proofs presented here. We will not reconstruct the terms of the Policy to achieve that end.
B.
While this narrow issue has not been addressed in New Jersey, other authority supports our view.
In International Insurance Co. v. Metropolitan St. Louis Sewer District, 938 F.Supp. 568 (E.D.Mo.1996), the insured sought indemnification for credit-refunds issued to its consumers. Id. at 570. The policy excluded coverage for "claims, demands or actions seeking relief, or redress, in any form other th[a]n money damages[.]" Id. at 569. The District Court explained that the term "`damages' as used in the insurance context, is unambiguous. . . . `[T]he plain meaning of the term damages as used in the insurance context refers to legal damages and does not include equitable monetary relief.'" Ibid. (quoting Cont'l Ins. Cos. v. Ne. Pharm. & Chem. Co., 842 F.2d 977, 985 (8th Cir.) (en banc), cert. denied, 488 U.S. 821, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988)).
Here, the Policy is more specific because it defines "money damages" as "monetary compensation." As in Metropolitan St. Louis, we agree that the definition of "money damages" as "monetary compensation" bespeaks unambiguous language.
In 116 Commonwealth Condominium Trust v. Aetna Casualty & Surety Co., 433 *1160 Mass. 373, 742 N.E.2d 76 (2001), plaintiff alleged that Aetna breached its obligations under the insurance policy by failing to reimburse the trust for legal fees and costs incurred in defending a claim for injunctive relief that had been brought against plaintiff. Aetna denied coverage on the basis that the policy did not cover "equitable relief." The policy stated that it would reimburse for "loss." Id. at 77. Excluded from the policy was "anything other than money damages." Ibid. In concluding that plaintiff was not entitled to indemnification from Aetna, the Massachusetts Supreme Judicial Court explained that in Massachusetts, "damages" is defined as "the word which expresses in dollars and cents the injury sustained by the plaintiff." Id. at 79. The court further noted that "[e]ven if the term `damages' were ambiguous, any ambiguity in the `Insuring Agreement' section is dispelled by the `Exclusions' section that directly follows," which states that "[t]his insurance does not apply to any claim . . . for anything other than money damages." Ibid. The court concluded that "[r]eading this policy language, the trust could not reasonably expect that the policy would cover an action for injunctive relief that did not seek money damages." Ibid. Because the underlying action involved an injunction, the costs associated with defending the action were not covered.
In Continental, supra, 842 F.2d at 979, the Eighth Circuit, in a sharply divided en banc decision, interpreted a policy, which stated that the insurer would cover "all sums which the insured shall become legally obligated to pay as damages[.]" The majority concluded that the term "damages" in the insurance context is "not ambiguous" and refers only to "legal damages," not "equitable monetary relief." Id. at 985. In Continental, the equitable monetary relief contemplated was cleanup costs.
The principle espoused in Continental has arisen in a variety of contexts. See Hays v. Mobil Oil Corp., 930 F.2d 96, 101 n. 9 (1st Cir.1991) (comparing Continental with other authority to determine whether damages may include environmental cleanup costs); Avondale Indus., Inc. v. Travelers Indem. Co., 887 F.2d 1200, 1207 (2d Cir.1989) (noting that, when defined by a policy, "the term damages does not include equitable reliefeven when such is monetary," but ultimately concluding that remedial costs were "damages"), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990); New Castle Cnty. v. Hartford Accident & Indem. Co., 933 F.2d 1162, 1185 (3rd Cir.1991) (citing but ultimately disagreeing with Continental as to whether "response costs and injunctive relief" were damages), cert. denied, 507 U.S. 1030, 113 S.Ct. 1846, 123 L.Ed.2d 470 (1993); Indep. Petrochemical Corp. v. Aetna Cas. & Sur. Co., 944 F.2d 940, 946 (D.C.Cir.1991) (diverging from Continental, focusing on the "common and ordinary understanding of damages"), cert. denied, 503 U.S. 1011, 112 S.Ct. 1777, 118 L.Ed.2d 435 (1992).
Other jurisdictions have seemingly adopted a different view, but these decisions are distinguishable. In Earth Elements, Inc. v. National American Insurance Co., 41 Cal.App.4th 110, 48 Cal. Rptr.2d 399 (1995), the settlement between the parties provided for the dismissal of claims in exchange for the dismissal of counterclaims, but involved no monetary payments. Id. at 402. In holding that the insurance company owed coverage, the court rejected the insurer's claim that it was not required to indemnify because the insured did not make any payments to the other party. The court also explained, "[t]here is no analytical distinction between surrendering money in exchange for a settlement and exchanging any other item of value. While the value of money is *1161 apparent on its face, an intangible item is equally capable of being evaluated." Ibid.
Unlike the issue presented to us, the court in Earth Elements did not interpret specific policy language. In fact, in Earth Elements, there is no reference to either the policy language or a definition of loss. The court concluded that based on the insurer's failure to defend, the insured was entitled to settle and sue the insurer to recover the amount of the settlement. Id. at 116, 48 Cal.Rptr.2d 399.
In Sauk County v. Employers Insurance of Wausau, 240 Wis.2d 608, 623 N.W.2d 174 (App.2000), review denied, 242 Wis.2d 543, 629 N.W.2d 783 (2001), the insured claimed that it was entitled to indemnification and a hearing to determine the value of a hold harmless agreement, and the insurer claimed that a hold harmless agreement did not constitute a "payment" under the policy. Id. at 176-77. The court held that payment can include "something other than money." Id. at 178. The court defined payment as "giving of something of value and its acceptance in satisfaction." Ibid. (quotation omitted).
That policy language in Sauk County is decidedly different from the language here. In Sauk County, the policy provided that the insurer's duty to indemnify was "limited to payment that Sauk County incurred under the counterclaims. . . ." Id. at 176 (emphasis added and editing marks omitted). "Payment" is a more general term than "money damages" or "monetary compensation." Payment is defined as "1: the act of paying or giving compensation: the discharge of a debt or an obligation"; "2: something that paid: something given to discharge a debt or obligation or to fulfill a promise. . . ." Webster's Third New International Dictionary 1659 (1981).
The United States Court of Appeals for the Seventh Circuit also considered this issue in Platinum Technology, Inc. v. Federal Insurance Co., 282 F.3d 927 (7th Cir. 2002). In Platinum Technology, the insured sought indemnification for a settlement in which it relinquished original equipment manufacturer (OEM) credits. The court concluded that the insured was entitled to reimbursement from the insurer for the reasonable value of the OEM credits because they were surrendered in exchange for settlement. Id. at 932-33.
As in Earth Elements, Platinum Technology focused on the carrier's breach of its duty to defend. The insured settled, and the court concluded that the insurer owed the insured the reasonable value of the OEM credits as damages for breach of the duty to defend. The court did not engage in an analysis of any specific contract language regarding the definition of loss or whether a non-monetary settlement constituted loss. Ibid. The duty on the carrier to defend and the consequences of a breach of that duty are well settled in our jurisprudence. See discussion infra Part III. Neither Earth Elements nor Platinum Technology suggest any divergence from that view nor do these decisions provide support for PVSC's interpretation of the Policy.
We adhere to the principle enunciated in Metropolitan St. Louis that the plain language of the Policy provides the best indicia of its intent and precludes PVSC from recovery. We conclude that the plain language and meaning of the Policy terms informs our result, and PVSC is not entitled to indemnification.
III.
PVSC further asserts in an alternative argument that Coregis breached its duty to provide a defense in Passaic II, and is obligated to indemnify PVSC against the resulting Spectraserv settlement.
The failure to defend, if established, has profound implications on the *1162 rights of the parties. While the insurer generally enjoys the right to control settlements, "it is a right which an insurer forfeits when it violates its own contractual obligation to the insured." Fireman's Fund Ins. Co. v. Sec. Ins. Co., 72 N.J. 63, 71, 367 A.2d 864 (1976) (internal citations omitted).
Where an insurer wrongfully refused coverage and a defense to its insured, so that the insured is obliged to defend [itself] in an action later held to be covered by the policy, the insurer is liable for the amount of the judgment obtained against the insured or of the settlement made by him. The only qualifications to this rule are that the amount paid in settlement be reasonable and that the payment be made in good faith.
[Griggs v. Bertram, 88 N.J. 347, 364, 443 A.2d 163 (1982) (quotations omitted).]
We must consider whether Coregis was in default of its duty to defend when the Spectraserv settlement was crafted. A breach of the duty to defend will trigger indemnification of the Spectraserv settlement, and will not be limited to the Coregis Policy's definition of "loss." Both the Chancery Division and the Appellate Division concluded that Coregis did not breach its duty to defend PVSC in Passaic II. We reach the same conclusion.
PVSC sought defense of Passaic II from Coregis, which responded on July 17, 2000 by issuing a reservation of rights letter. In 2003, PVSC sought a judgment declaring that Coregis owed a duty of defense and indemnification in Passaic II, as well as fees expended by PVSC in Passaic I. On April 8, 2004, Coregis issued an updated reservation of rights letter, which acknowledged that PVSC had retained counsel to defend Passaic II. The letter informed PVSC that Coregis would work with PVSC and PVSC's counsel to settle the cost of defending Passaic II and requested copies of PVSC's legal bills in furtherance of that goal. PVSC initially demanded $4 million dollars from Coregis. On October 6, 2004, Coregis offered to pay a portion of the incurred defense fees for Passaic II. In a second offer letter, dated October 28, 2004, Coregis calculated costs in the amount of $1,101,827.23. No settlement resulted from these offers.
The trial judge concluded that Coregis owed a defense to PVSC only on three Counts of Passaic II. As a result, PVSC and Coregis entered into a settlement and release agreement wherein Coregis paid PVSC $1.2 million for the reimbursement of counsel fees and costs in Passaic I and Counts Three, Eleven, and Fourteen of Passaic II.
We conclude that Coregis acted appropriately in proffering a defense while preserving its rights through the issuance of reservation of rights letters. Reservation of rights letters have long been regarded as proper defense mechanisms for insurance companies. See Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 393-95, 267 A.2d 7 (1970) (reviewing New Jersey decisions and concluding that where insurer did not issue a reservation of rights letter it could not disclaim coverage of judgment). By reserving rights and providing defense costs on covered claims, an insurer fulfills its defense obligations. Ibid. Where there is a dispute regarding coverage, "[t]he practical effect of Burd is that an insured must initially assume the costs of defense . . . subject to reimbursement by the insurer if [the insured] prevails on the coverage question." N.J. Mfrs. Ins. Co. v. Vizcaino, 392 N.J.Super. 366, 370-71, 920 A.2d 754 (App.Div.2007) (quotation omitted).
When a complaint includes both covered and uncovered counts the carrier may refuse defense on the uncovered counts and dispute coverage. See Hartford *1163 Accident & Indem. Co. v. Aetna Life & Casualty Ins. Co., 98 N.J. 18, 22-23, 483 A.2d 402 (1984).
[T]he carrier should not be permitted to assume the defense if it intends to dispute its obligation to pay a plaintiff's judgment, unless of course the insured expressly agrees to that reservation. This is not to free the carrier from its covenant to defend, but rather to translate its obligation into one to reimburse the insured if it is later adjudged that the claim was one within the policy covenant to pay.
[Vizcaino, supra, 392 N.J.Super. at 370, 920 A.2d 754 (quotation omitted).]
By permitting the dispute of uncovered claims, courts protect both parties by ensuring that the insurer does not incur responsibility for uncovered claims, and that the insured is entitled to both defense and indemnity if the dispute is resolved in its favor. Ibid.
Here, Coregis issued three reservation of rights letters in association with Passaic II and thrice provided PVSC with notification of the implications of the Coregis Policy terms. In the course of Coregis's investigation into the claims, seven letters were sent to PVSC, all of which requested supplemental information from PVSC. One letter, written by a Coregis claims examiner, reveals that PVSC Counsel failed to cooperate with Coregis' efforts to investigate Passaic II.
As I advised . . . in my e-mail sent August 30, 2001, our last litigation update followed the denial of the motion to dismiss and denial of the appeal of this ruling in January 2001. It is important to an effective working relationship and required under our policy that we are kept apprised of the course of litigation. Please provide me [with] an update as to the status of the litigation as soon as possible and make every effort to keep me informed on the further course of litigation.
[(Emphasis added).]
Despite PVSC's initial lack of cooperation, Coregis worked with PVSC and PVSC's counsel to calculate appropriate damages.
PVSC is correct in its assertion that Coregis previously moved for summary judgment to disclaim liability to defend Passaic II. However, a good-faith challenge to coverage is not a breach of an obligation to defend. Coregis was entitled to dispute the coverage of those counts under Vizcaino, based on the language of the policy's exclusions. Vizcaino, supra, 392 N.J.Super. at 370, 920 A.2d 754. Further, Coregis continued to offer payment to PVSC for the defense of Passaic II during the pendency of the summary judgment proceedings. The initial offers were rejected by PVSC, and the parties ultimately agreed to a payment of $1.2 million. The parties agreed that the $1.2 million resolved all claims for attorney's fees and defense costs associated with Passaic II. The record of expansive reservation letters coupled with a settlement of attorneys fees and defense costs makes an assertion of failure to defend ring hollow.
PVSC further claims that a breach of the policy may include a breach of the duty to act in good faith under Fireman's Fund, supra, 72 N.J. at 73, 367 A.2d 864. According to PVSC, such a breach exists where the insurer responds to a claim with unreasonable delay. Ibid. PVSC asserts that after issuing its first reservation of rights letter, Coregis did nothing in defense of PVSC, but instead sought summary judgment to disclaim coverage. PVSC's position is untenable, and is undermined by the abundance of correspondence proffered by Coregis and its ongoing efforts to resolve the cost of defense.[6]
*1164 The record is devoid of any factual basis to suggest that Coregis breached its duty to defend and we find no basis to apply the mandate of Griggs, supra, 88 N.J. at 364, 443 A.2d 163.
IV.
Finally, we reject PVSC's assertions that it is entitled to fees and costs related to its declaratory judgment action against Coregis. Both the trial court and Appellate Division denied these claims.
Rule 4:42-9(a)(6) permits the award of attorney's fees "[i]n an action upon a liability or indemnity policy of insurance, in favor of a successful claimant." The rule is intended "to discourage groundless disclaimers and to provide more equitably to an insured the benefits of the insurance contract without the necessity of obtaining a judicial determination that the insured, in fact, is entitled to such protection." Sears Mortgage Corp. v. Rose, 134 N.J. 326, 356, 634 A.2d 74 (1993) (quotation omitted). The award of counsel fees, however, is not mandatory, "but rather the trial judge has broad discretion as to when, where, and under what circumstances counsel fees may be proper and the amount to be awarded." Iafelice ex rel. Wright v. Arpino, 319 N.J.Super. 581, 590, 726 A.2d 275 (App.Div.1999); see also N.J. Mfrs. Ins. Co. v. Consol. Mut. Ins. Co., 124 N.J.Super. 598, 600, 308 A.2d 76 (Law Div.1973) (stating that rule grants discretion to award costs "where the assured may have acted in bad faith and contributed substantially to the necessity for the litigation by reason of misrepresentations"). "Since equitable principles govern the trial court's decision, the court should consider the totality of the circumstances in awarding counsel fees." Iafelice, supra, 319 N.J.Super. at 591, 726 A.2d 275; see also Enright v. Lubow, 215 N.J.Super. 306, 313, 521 A.2d 1300 (App. Div.) (stating that "equitable principles must govern" the application of the Rule 4:42-9(a)(6)), certif. denied, 108 N.J. 193, 528 A.2d 19 (1987).
In considering this argument, we adhere to a standard of review that requires us to determine if either the Law Division or Appellate Division abused its discretion. Packard-Bamberger Co. v. Collier, 167 N.J. 427, 444, 771 A.2d 1194 (2001). Applying this discretionary standard, we conclude that the denial of fees and costs was not an abuse of discretion.
V.
The judgment of the Appellate Division is affirmed.
For affirmanceJustices LaVECCHIA, RIVERA-SOTO, HOENS, CARCHMAN (temporarily assigned) and PARRILLO (temporarily assigned)5.
Not ParticipatingChief Justice RABNER and Justices LONG and ALBIN3.
NOTES
[1] Although this action is brought by the PVSC Commissioners on behalf of PVSC, the true party in interest is PVSC.
[2] No monies were paid by Spectraserv. PVSC agreed to "accept" the sum of $100,000 expended by Spectraserv to modify its wastewater monitoring station in lieu of all civil penalties.
[3] Westchester County, New York was a contracting party with Spectraserv.
[4] During the pendency of this appeal, PVSC and St. Paul settled their dispute, and PVSC dismissed its appeal as to St. Paul.
[5] One example of the speculative nature of the purported loss was Rubin's estimate of the value of the NOVs. Rubin estimated the value of the fines at between $1,497,500 and $7,793,000. However, the NOVs were never adjudicated and were contested by Spectraserv.
[6] We find no merit in PVSC's claim that its retention of counsel implicates a failure to defend. PVSC requested that Coregis allow it to retain counsel to defend, and Coregis agreed.
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FIRST DIVISION
May 19, 2003
No. 1-01-0237
GLORINDA M. THEOFANIS, Plenary Guardian ) Appeal from the
of the Estate and Person of Sofia ) Circuit Court of
Beniamin, a Disabled person, and MOOSHI ) Cook County
BENIAMIN, )
)
Plaintiffs-Appellants, )
)
v. ) )
GHODRATOLLAH T. SARRAFI and )
HEALTH CARE SERVICE CORPORATION, d/b/a )
Blue Cross Blue Shield of Illinois, ) Honorable
) William Maki,
Defendants-Appellees. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
Ghodratollah Sarrafi, M.D., participated in a health maintenance organization (HMO) of Health Care Service Corporation (HCSC). On June 3, 1996, Sarrafi received the results of a test that showed a dangerous mass in the heart of Sofia Beniamin, one of Sarrafi's patients. Eight days later Sofia suffered a stroke that left her unable to speak. Sofia's daughter, as her guardian, and Sofia's husband sued Sarrafi and HCSC for failing to inform Sofia of the results of the test.
At the jury trial the court allowed Sarrafi to testify from notes he made of conversations with Sofia. The jury found both
defendant
s liable but assessed $0 in damages. The trial court amended the verdict to a finding in favor of Sarrafi. The court also entered judgment notwithstanding the verdict in favor of HCSC because the court found the evidence of agency insufficient.
We hold that the inconsistent verdict, which may have resulted from compromise, requires remand for retrial. The Dead-Man's Act (the Act) (735 ILCS 5/8-201 (West 2000)) precludes the testimony concerning conversations with Sofia, even if the doctor made contemporaneous notes of the conversations. The
plaintiff
s presented sufficient evidence to present to a jury on the issue of implied agency of Sarrafi for HCSC. Therefore, we reverse the judgment of the trial court and remand for retrial.
BACKGROUND
Mooshi and Sofia Beniamin immigrated to the United States from Iran, with their three daughters, in 1979. Mooshi found work at a manufacturing plant and obtained health insurance for his family through that job. Sofia fell ill in 1985. The insurance paid for her visit to Sarrafi, who had also immigrated to the United States from Iran. Sarrafi noted the stenosis, or narrowing, of a valve in Sofia's heart. She continued to see Sarrafi fairly regularly over the following years. In 1986 Sarrafi diagnosed Sofia's hypertension, and in 1991 he also discovered that she suffered from atrial fibrillation, which is an irregular heartbeat.
In 1995 Mooshi's employer changed the insurance options available to its employees. The new insurer, HCSC, allowed employees three options. They could receive traditional insurance, or they could enroll in the BlueAdvantage HMO or their preferred provider organization (PPO). Mooshi chose the HMO, and he chose Sarrafi, from HCSC's list, as the family's primary care physician. HCSC had a contract with Holy Family Physicians Organization (Holy Family), and Sarrafi belonged to that organization. HCSC compensated Holy Family for the health care it provided, and Holy Family paid Sarrafi for his work.
At an office visit in 1996, Sarrafi arranged an echocardiogram (EKG) for Sofia. Dr. Vupparahalli Ramesh performed the EKG on June 3, 1996. When he received the films from the test later that day, Ramesh discovered "a mass effect near the apex [of the heart] ***, consistent with the presence of thrombus." A thrombus is a blood clot. Small particles, or emboli, can break off a thrombus in the heart at any time. The emboli from the thrombus can then course through the bloodstream and lodge in distant parts of the body, cutting off the flow of blood to those areas. Emboli in the brain may cause a stroke.
Ramesh promptly called Sarrafi to report the finding. Ramesh suggested that Sofia should undergo a transesophageal EKG to determine in better detail the nature of the mass. Sarrafi did not tell Sofia about the EKG results or the need for a transesophageal EKG. Sofia called Sarrafi's office on June 8, 1996, but she did not hear the results of the EKG or of the need for further tests. Sarrafi did not speak to Sofia between June 3, 1996, and June 11, 1996.
Sofia suffered a severe stroke on June 11, 1996. The stroke left her unable to speak or walk. Although Sofia eventually regained very limited ability to walk, she never regained the power of speech, not even to the extent of nodding to mean yes in response to questions. A court found Sofia legally disabled and appointed Sofia's eldest daughter, Glorinda Theofanis, plenary guardian of Sofia's estate and person.
In December 1996 Glorinda, in her role as guardian of Sofia's estate, brought this lawsuit. After several amendments to the complaint, Glorinda and Mooshi reduced their claims to four counts. In the first count Glorinda alleged that Sarrafi negligently failed to inform Sofia of the results of the EKG, negligently failed to order further diagnostic tests, and negligently failed to hospitalize Sofia and treat her with Heparin, a blood-thinning medication that could dissolve the clot, after he learned the results of the EKG. Glorinda sought to recover damages from HCSC, as well as Sarrafi, on the theory that Sarrafi acted as an apparent or implied agent of HCSC. In the second count Mooshi pled the same facts and sought recovery from the same parties for his loss of consortium. In count III Glorinda alleged that the contract between HCSC and Holy Family created incentives for physicians affiliated with Holy Family to minimize the hospitalization of patients and the number of diagnostic tests performed. She alleged that Sarrafi breached his fiduciary duty to disclose the financial incentives. In count IV Mooshi alleged that the same breach of fiduciary duty led to his loss of consortium.
Sarrafi denied the essential charges of the complaint and added an affirmative defense that Sofia negligently contributed to her injury by refusing the reasonable advice of her physician. Sarrafi alleged that at an office visit in May 1996 Sofia declined Sarrafi's offer to hospitalize her and administer Coumadin, a blood-thinning medication related to Heparin. In support of the allegations, Sarrafi attached to the answer handwritten notes Sarrafi made concerning the office visits in May 1996.
At trial
plaintiff
s called Sarrafi as an adverse witness. Sarrafi admitted that Ramesh called him on June 3, 1996, following the EKG, and told Sarrafi that he found a mass in Sofia's heart that could be a tumor or a thrombus. Sarrafi also admitted that in the written report he received shortly thereafter, Ramesh said he found a "soft *** friable mass, giving the appearance of a thrombus." Either a tumor or a thrombus could embolize at any time, but a thrombus carries a greater risk of embolization.
According to Sarrafi, he tried to call Sofia to tell her about the test results immediately after he heard from Ramesh. Either the call went unanswered or the line was busy. Over the following days Sarrafi tried to call Sofia five or six times, but he never got through. He did not ask anyone on his staff to call Sofia. Although all of Sofia's daughters were Sarrafi's patients, he never tried to contact any of them. He sent no letter concerning the results of the EKG.
Sarrafi's attorney asked Sarrafi on cross-examination to read to the jury the notes Sarrafi made after Sofia came to his office on May 28, 1996.
Plaintiff
s objected that the testimony would violate the Act. The court overruled the objection. Sarrafi testified that in his notes he wrote:
"Patient refused hospitalization and Coumadin ***. The importance of taking Coumadin due to atrial fibrillation was discussed with the patient in the presence of Herminda [Spencer, Sofia's] daughter. She still refused to take it."
Sarrafi testified that in his opinion, Sofia faced about an 80% probability of having a stroke within a year if she had no medication.
Glorinda testified that as of June 3, 1996, her parents had call waiting and a functioning answering machine.
Plaintiff
s' expert, Dr. Franklin Wefald, testified that the applicable standard of care required Sarrafi to notify Sofia immediately about the EKG results and to warn her that she faced a potentially devastating complication if she did not start taking a strong blood thinner. In Dr. Wefald's opinion, Sarrafi violated the standard of care by failing to use all available means to contact Sofia. Given the severity of the situation, Sarrafi should have asked police to go to Sofia's home if he tried to call her and received no answer. If Sarrafi had contacted Sofia he should have emphasized the severity of the risk of stroke and the necessity of hospitalization and the use of anticoagulants like Heparin. According to Wefald, if Sarrafi had given Sofia appropriate advice based on the EKG, the anticoagulants likely would have prevented Sofia from suffering the stroke.
On cross-examination Wefald estimated about a 20% to 25% probability that a patient with atrial fibrillation and mitral valve stenosis would suffer a stroke within a year without anticoagulant therapy. He estimated that the probability of stroke doubled or tripled in the presence of a thrombus in the heart. Thus, his estimate of the risk Sofia faced nearly matched Sarrafi's estimate of that risk. Defense counsel suggested that the risk of a stroke in the week from June 3 to June 11, 1996, was therefore about 1%, which he arrived at by dividing 2 x 25% by 52 weeks in a year. Wefald answered that the simple division of the probability did not accurately represent the probability for the week.
Plaintiff
s asked Wefald to respond to Sarrafi's testimony about his handwritten notes from May 28, 1996. Wefald said that the notes "were medically inconsistent within the structure of the entire record for that day." He explained that the notes in the body of the page referred to Sofia's complaints and Sarrafi's assessment of the atrial fibrillation. Then, on the margins of the page, Sarrafi added a note charging Sofia with refusing hospitalization and Coumadin. The marginal comment did not make sense in light of Sofia's actual complaints and prior course of treatment, which would not have suggested an immediate need for hospitalization or Coumadin. To Wefald, the marginal notes appeared to have been written later, probably after Sofia suffered the stroke.
Plaintiff
s' second expert agreed that, even assuming the truth of Sarrafi's testimony, the standard of care required greater efforts to contact Sofia. The expert also opined that if Sarrafi had contacted Sofia, the further testing, if not the EKG alone, would have persuaded Sofia to accept Heparin and Coumadin treatment. The medication would have significantly reduced the risk of stroke, at least cutting the risk by a factor of two. The expert testified that some in his profession would say the blood thinners could reduce the risk of stroke by 80%.
One of
defendant
s' experts agreed that a blood thinner like Coumadin would "decrease the chance of stroke by over half, maybe two-thirds." He accepted the defense attorney's suggestion that the probability of a stroke occurring within the week between June 3 and June 11, 1996, was 1/52 times the probability of a stroke within a year. The expert believed Sarrafi met the standard of care by trying to call Sofia five or six times between June 3 and June 11, 1996.
Another defense expert testified that he read the original EKG films, and he disagreed with Ramesh's report. The mass shown on the EKG was probably a tumor, not a thrombus. While the tumor might embolize and cause a stroke, neither Coumadin nor Heparin would affect the risk of such a stroke.
On the issue of agency,
plaintiff
s presented testimony from several current and former employees of HCSC. The first witness admitted that an HCSC committee determined whether each doctor seeking to join its network met HCSC's criteria for inclusion. HCSC had the right to exclude any doctor from its network, even if HCSC had a contract with a medical group that included the doctor.
HCSC also evaluated every doctor in its network every two years. In the evaluation an HCSC employee would go to the doctor's office and pull a random sample of his medical charts. If HCSC found certain problems with the medical charts, it could remove the doctor from its network. The HCSC employee would look at the quality of care the doctor provided, along with other factors.
But HCSC had no prior control over a participating doctor's treatment decisions, including decisions to refer a patient to a specialist, to perform medical tests, or to hospitalize the patient. Sarrafi did not need HCSC's prior approval for any treatment he ordered. HCSC paid Holy Family, according to their contract, for all services Holy Family's member physicians provided to HCSC members. The contract between Holy Family and Sarrafi specified that Sarrafi acted as an independent contractor in the Holy Family organization. Similarly, HCSC's contract with Holy Family specified that neither acted as an agent of the other.
HCSC's employees identified several advertising pamphlets HCSC distributed to businesses in an effort to sell them the BlueAdvantage HMO. In the pamphlets HCSC said that each physician in its network met or exceeded their "quality[,] effectiveness [and] patient satisfaction standards."
Mooshi testified that he followed his daughter Herminda's advice about insurance. Herminda testified that she reviewed all the literature concerning insurance choices for her father. When Mooshi's employer changed its insurer to HCSC, Herminda looked at materials from BlueAdvantage HMO amongst other documents. She advised her father to sign up for the HMO based on a combination of factors, including the representations HCSC made about the quality of its doctors. She would have suggested switching doctors if better insurance coverage restricted choices to other doctors.
In 1990 and 1991, when Mooshi's employer had other insurance, Sofia received treatment from a doctor in that insurer's network. But Sarrafi's records show that Sofia continued coming to Sarrafi's office for treatment in 1990 and 1991. Sarrafi testified that at least once Sofia, rather than the insurer, paid the $25 fee for the office visit.
Plaintiff
s also presented evidence concerning HCSC's contract and the financial incentives for Holy Family, and for Sarrafi as a member of Holy Family, to minimize the number of tests and hospitalizations of its patients. Sarrafi admitted that he did not inform Sofia about the incentives, because he would not allow the incentives to influence his treatment decisions. All of the experts agreed that they would not inform their patients of similar incentive clauses, and they would not allow such incentives to influence the treatments they provided any of their patients.
The parties prepared multiple verdict forms for each count. The court instructed the jurors to return verdict form B for count I only if they unanimously found against Sarrafi and that Sofia was not contributorily negligent and that Sarrafi acted as an agent of HCSC. The court told the jurors that to return a verdict against Sarrafi, the jurors must find that
plaintiff
s met their burden of proving (1) that Sarrafi acted negligently, (2) that Sofia suffered injury, and (3) "that the negligence of the
defendant
s was a proximate cause of the injury to the
plaintiff
s." The court reiterated the requirement: "If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the
defendant
s." The court instructed the jurors similarly on the other three counts.
After substantial deliberations the jurors sent the court a note, which said:
"It is the general con[s]ensus among this jury that no compromise can be reached. We request that this jury be either re-instructed or dismissed, as no resolution is in sight, and the tenor has become rather argumentative."
Later the jury foreperson sent a note asking:
"Do we have an obligation to seek the truth – or only consider the evidence even if the truth is only around the corner?"
The court instructed the jurors to continue deliberations.
Shortly thereafter the jury returned verdicts in favor of
defendant
s on counts II, III, and IV of the complaint. That is, the jurors found that
plaintiff
s did not meet their burden of proof on both of the counts charging Sarrafi with violating a fiduciary duty to disclose financial incentives, and that Mooshi failed to meet his burden of proof on the count seeking damages for loss of consortium caused by Sarrafi's negligence. On count I the jurors all signed verdict form B, finding in favor of Glorinda and against both
defendant
s, but the jury assessed damages of $0.
After the court entered judgment on the verdict, all parties filed posttrial motions. The court denied
plaintiff
s' motion for new trial and granted HCSC judgment notwithstanding the verdict on count I. The court concluded from the award of zero damages that the jury found that Sarrafi's acts did not proximately cause injury, and on that basis the court amended the verdict to a finding in favor of Sarrafi on count I.
DISCUSSION
I
A
Plaintiff
s argue on appeal first that the trial court erred by denying their motion for a new trial. Sarrafi counters that this court should affirm the trial court's judgment in his favor because the evidence at trial so overwhelmingly supports the judgment that no verdict in favor of the
plaintiff
s could ever stand because
plaintiff
s failed to prove his negligence caused the harm. See
Pedrick v. Peoria & Eastern R.R. Co.
, 37 Ill. 2d 494, 502 (1967). We disagree.
Plaintiff
s presented sufficient evidence supporting their case. Sarrafi's argument relies on statistical assumptions without support in the record and fallacious statistical reasoning. Even apart from these errors, the evidence on which Sarrafi relies has no bearing on the issue of whether his negligence in fact caused the harm.
Plaintiffs presented evidence that
Sarrafi
failed to contact Sofia between June 3, 1996, and June 11, 1996. Glorinda testified that Sofia had a functioning answering machine and call waiting. From this evidence the jury could conclude
that
Sarrafi
did not even attempt to call Sofia after he learned the results of the EKG. The experts agreed that after
Sarrafi
received the call from Ramesh about the EKG, the standard of care required significant efforts to contact Sofia.
Plaintiff
s' experts testified that the failure to contact Sofia caused her not to have further tests and caused her not to learn
the new evidence of a significant risk of stroke. The jury, like
plaintiff
s' experts, could rely on Ramesh's finding that the mass in Sofia's heart appeared to be a thrombus, and therefore that mass presented a considerable, and reducible, risk of embolization and stroke. Thus, the failure to contact Sofia for further tests and treatment with Heparin and Coumadin significantly increased the risk of a stroke.
Sarrafi uses the distorted statistical arguments he made at trial as the grounds for his claim that the trial court should have granted him judgment notwithstanding the verdict. At trial Sarrafi's attorney suggested that if the probability of a stroke within a year is 52%, then the probability of a stroke within a week is 1%. Sarrafi argues that the 1% probability is too small for his acts to count as the cause of the stroke, even if he did nothing to reduce the 1% probability.
The parties could have avoided some of the distortion inherent in this argument if either had consulted any authority on statistics. A court of appeal may take judicial notice of laws of mathematics and computational methods scientists generally accept as irrefutable.
Thomas v. Price
, 81
Ill. App. 3d
542, 545 (1980);
Cook County Department of Environmental Control v. Tomar Industries
, 29
Ill. App. 3d
751, 754 (1975);
Mueth v. Jaska
, 302 Ill. App. 289, 294-95 (1939). Here we take judicial notice of the proper methods for computation of probabilities of a conjunction of events given the probabilities of each separate event.
The probability of two independent events A and B is the product of the probabilities (P(A) x P(B)), not the sum of the probabilities, as Sarrafi's method presumed. The probability of neither of two independent events is (1-P(A)) x (1-P(B)). If the probability of a stroke in each week is 1%, and the probability each week is independent of the probability all other weeks, the probability of a stroke within two weeks is not 1% + 1%; instead it is 1 - (.99)x(.99), which is one minus the product of the probability of no stroke in the first week times the probability of no stroke in the second week. If the chance of having a stroke within a year without medication is 80%, as Sarrafi estimated, and the risk is uniformly distributed throughout the year, and the risk each week is independent of the risk for each other week (no expert testimony supported these implicit assumptions), the risk of having a stroke within one week is not .8 divided by 52; instead, it is 1- the 52nd root of .2, which calculates to approximately a 3% risk each week ((1-.03)
52
≈(1-.8)). For a fuller explanation see 1 W. Feller, An Introduction to Probability Theory and Its Applications, at 47-49 (3d ed. 1968), or any other elementary treatise on probability and statistics.
Thus, if
defendant
s had presented admissible evidence of statistical independence of each week's risk of stroke, and if
defendant
s had presented admissible evidence that the risk each week matched the risk every other week, then the evidence would support an estimate of a 3% chance of a stroke during the week at issue. Because the evidence at trial lacked any support for the implicit assumptions about uniformity and independence, it cannot support such a low estimate of the risk. The evidence actually presented, even if augmented with support for the implicit assumptions, does not in any way support a finding of a 1% risk of stroke for the week.
If
plaintiff
s had objected to Sarrafi's questions based on the unsupported assumptions and fallacious reasoning, the trial court should have sustained the objections. See
Foss Park District v. First National Bank of Waukegan
, 125 Ill. App. 2d 276, 280 (1970). The distorted statistical argument illustrates the warning that "[a] lawyer who acts as his own statistician is as worthwhile to the case and the client as a statistician who acts as the trial lawyer." J. Kobayashi, Killing Them Softly with Your Song: Problems with Proof of Causal Relationship by Statistical Methods and Probability Theory and Expert Opinions with Suggested Methods for Analysis and Cross-examination, and Notes about Epidemiological Studies and Animal Data as Causation Evidence, 363 PLI/LIT 37, 70 (1988).
Even without the fallacious reasoning about probabilities, the evidence had no bearing on the issue of causation in fact. If a negligent act creates only 1 chance in 100 of harm, the act in fact causes the harm in that 1 case in 100 when the chance is realized and the harm occurs. The foreseeability of harm – the
ex ante
risk – is an important factor for determining whether the
defendant
had a duty to the
plaintiff and whether to impose liability on the
defendant
for breach of duty
. See
Lee v. Chicago Transit Authority
, 152 Ill. 2d 432, 455-56 (1992). Expert testimony in this case established that the
ex ante
risk here rose to a level that imposed on Sarrafi a duty to contact Sofia. Sofia's condition, including the mass found in her heart, made a stroke readily foreseeable in the absence of medication.
To determine cause in fact, courts usually look to the precise sequence of events and such issues as whether the harm would likely have occurred in the absence of the negligent acts. See W. Keeton, Prosser & Keeton on Torts, §41, at 266 (5th ed. 1984). Where a
defendant
's acts or omissions have increased the risk of a harm that later occurs, courts look to the relative risk – the ratio of the risk with the negligent act to the risk without negligence – to decide whether the negligent acts or omissions constitute a cause in fact of the harm. Several courts have concluded that a
plaintiff
meets the burden of proving causation by presenting evidence that the relative risk due to the
defendant
's acts or omissions exceeds two.
E.g.,
Allison v. McGhan Medical Corp.
, 184 F.3d 1300, 1315 n.16 (11th Cir. 1999); see L. Finley,
Guarding the Gate to the Courthouse: How Trial Judges Are Using Their Evidentiary Screening Role to Remake Tort Causation Rules
, 49 DePaul L. Rev. 335, 348-53 (1999) (arguing that courts should not exclude as irrelevant evidence of a relative risk between one and two, because other evidence may show that the increased risk formed a substantial factor in bringing about the actual harm suffered). Where the risk with the negligent act is at least twice as great as the risk in the absence of negligence, the evidence supports a finding that, more likely than not, the negligence in fact caused the harm.
Here,
plaintiff
s' expert testified to a relative risk between two and three.
Defendant
's expert agreed, as he said that proper medication would have reduced Sofia's risk by half to two-thirds.
Plaintiff
s' other expert testified that some would put the relative risk as high as five, as he said that the medication might reduce the risk by 80%. Thus,
plaintiff
s presented ample evidence from which a jury could conclude that Sarrafi's negligent failure to call, and the consequent failure to further test and medicate Sofia appropriately in light of the known risk, caused the particular harm she suffered. The record cannot support entry of judgment notwithstanding the verdict in favor of Sarrafi.
B
Plaintiff
s contend that the trial court should have granted them a new trial on damages only because the jury awarded plainly inadequate damages. We will reverse the trial court's denial of a motion for new trial only if the trial court abused its discretion.
Hulbert v. York
, 319 Ill. App. 3d 54, 57 (2001). The court should order a new trial limited to damages only if the evidence amply supports the verdict on liability, the issue of liability is sufficiently separate from the amount of damages, and the record does not suggest a compromise verdict.
Hollis v. R. Latoria Construction, Inc.
, 108 Ill. 2d 401, 408 (1985).
As
defendant
s point out, the record here strongly suggests a compromise verdict. The note jurors sent to the court directly informed the court that the jurors had tried to reach a compromise. The court, by instructing the jurors to continue deliberations, did not attempt to dissuade them from reaching a compromise. By the verdict the jury formally found that Sarrafi acted negligently and his negligence caused
plaintiff
s damages, but the jury also awarded $0 damages. The verdict itself suggests a compromise. See
Taylor v. Manhattan Township Park District
, 138
Ill. App. 3d
23, 27 (1985). The trial court did not abuse its discretion by denying the motion for a new trial on damages only.
But the trial court erred by changing the verdict from one in favor of Glorinda on the issue of liability to a finding in favor of Sarrafi. The trial court has discretion to amend the jury's verdict (
Smith v. City of Evanston
, 260
Ill. App. 3d
925, 937-38 (1994)), but the court abuses that discretion if it ignores recognized legal principles (
State Farm Fire & Casualty Co. v. Leverton
, 314
Ill. App. 3d
1080, 1083 (2000)). Under established legal principles, the court may amend the jury verdict
"only when the defect is one of form, rather than substance.
[Citation.]
A trial court should not amend a verdict in order to reach a determination that the court believes the jury ought to have made, and an amendment must reflect only what the jury clearly intended the verdict to be."
Crowell v. Parrish
, 159 Ill. App. 3d 604, 608-09 (1987).
The choice of verdict form B shows that all jurors agreed that Sarrafi's negligence proximately caused damages to Sofia. In light of the jurors' use of the proper verdict forms for finding no liability on all other counts, the choice of verdict form B does not appear to result from inadvertent error or confusing trial court instructions. The jurors also agreed, by signing a verdict awarding $0 in damages, that
plaintiff
s did not prove that Sarrafi negligently caused their damages.
The verdict form here, like the verdict in
Tindell v. McCurley
, 272
Ill. App. 3d
826 (1995), is simply inconsistent. In
Tindell
the jury returned a verdict in favor of the
plaintiff
but assessed $0 in each of the four separate categories of damages, for a total award of $0. The appellate court said:
"In this case, because of the nature of the jury's verdict there is no way--other than an absolute guess--for this court to say whether the jury found liability. The verdict form was filled in by the jury with zero damages for four separate categories of damages despite uncontradicted evidence plaintiff suffered some damages from the accident. However, to say the jury meant to find for defendant on the issue of liability, we would have to assume the jury ignored the instructions both as to which verdict form to use and that there would be no occasion to consider damages if it found for defendant."
Tindell
, 272 Ill. App. 3d at 830-31.
The court ordered a new trial on all issues.
Defendant
s rely on
Kleiss v. Cassida
, 297
Ill. App. 3d
165 (1998), as support for the trial court's interpretation of the verdict here. In
Kleiss
the jurors asked whether a finding of negligence required assessment of any minimum damages. The court answered "No."
Kleiss
, 297
Ill. App. 3d
at 175. The jury returned the verdict in favor of the
plaintiff
s, but assessed no damages. The appellate court found that the jury's question and the court's response led to the conclusion that the jurors found in favor of the
defendant
on the issue of proximate cause, but they used the wrong verdict form.
Here, by contrast, another reasonable hypothesis
defendant
s suggested could explain the verdict. After hours of deliberations the jurors finally reached a compromise: those who believed Sarrafi caused no damages signed a verdict finding Sarrafi liable for damages, in exchange for the other jurors' signature on a formal assessment of $0 in liability; those who believed Sarrafi negligently harmed Sofia gave up the assessment of damages in exchange for the other jurors' signature on a formal finding of negligence and liability. Here, as in
Manders v. Pulice
, 44 Ill. 2d 511, 518-19 (1970), the hypothesis that the jurors intentionally disregarded the court's instructions and returned an inconsistent verdict as a result of compromise is at least as defensible as the hypothesis that the jury mistakenly signed the wrong verdict form. Because the judgment in favor of Sarrafi did not reflect the clear intention of the jury – this internally inconsistent verdict expressed no intention clearly – the trial court abused its discretion by substituting the verdict the court believed the jury should have reached for the verdict the jury actually rendered.
Following
Manders
and
Tindell
, we hold that the irreconcilably inconsistent verdict requires reversal of the judgment in favor of Sarrafi on count I and remand for retrial on liability as well as damages.
II
A
We expect issues concerning the admissibility of Sarrafi's testimony about his notes to recur on retrial.
Plaintiff
s argue that the trial court violated the Act by permitting Sarrafi to testify, from his notes, about his conversations with Sofia. The Act provides:
"In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party *** shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:
(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.
***
(c) Any testimony competent under Section 8-401 of [the Code of Civil Procedure], is not barred by this Section." 735 ILCS 5/8-201 (West 2000).
The trial court found that subsection (c) justified admission into evidence of Sarrafi's notes and his testimony about his conversations with Sofia. Section 8-401 of the Code of Civil Procedure (Code) provides:
"Where in any action or proceeding, the claim or defense is founded on a book account or any other record or document, any party or interested person may testify to his or her account book, or any other record or document and the items therein contained; that the same is a book, record, or document of original entries, and that the entries therein were made by himself or herself, and are true and just; *** and thereupon the account book and entries or any other record or document shall be admitted as evidence in the cause." 735 ILCS 5/8-401 (West 2000).
Thus, the section makes an account book or a similar document admissible in evidence with appropriate testimony only if a claim or defense is "founded" on the document. The parties have not cited any cases interpreting the term "founded" in this section of the Code, and our research has not uncovered any such cases.
When a word occurs in several parts of a statute, it "will be given a generally accepted and consistent meaning where legislative intent is not clearly expressed to the contrary."
Baker v. Salomon
, 31 Ill. App. 3d 278, 281 (1975). Sections of a code should be construed together to give a harmonious meaning to the code as a whole.
Lemont-Bromberek Combined School District No. 113(a) v. Walter
, 279
Ill. App. 3d
847, 850 (1996). The court discerning the legislative intent in the use of a term may look to the use of that term in other statutes concerning similar subjects.
In re Application for Tax Deed
, 311
Ill. App. 3d
440, 444 (2000); see
Pettigrove v. Parro Construction Corp.
, 44 Ill. App. 2d 421, 425 (1963).
Section 2-606 of the Code also concerns claims or defenses founded on documents. That section provides:
"If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her." 735 ILCS 5/2-606 (West 2000).
Several cases have interpreted the statutory limitation to claims "founded" on the written instrument. In
McCormick v. McCormick
, 118
Ill. App. 3d
455 (1983), the beneficiary of a trust sued the trustees for breach of trust. The beneficiary attached to his complaint the document creating the trust as well as numerous documents concerning the transactions the trustees directed for the trust. The beneficiary contended that the transactions so documented wasted trust assets. The appellate court held that the trust document qualified as a writing on which a claim was founded, but the other documents did not so qualify. The court decided that the other documents were "example[s] of the evidence supporting
plaintiff
's allegations" (
McCormick
, 118
Ill. App. 3d
at 460), rather than documents providing the foundation for the
plaintiff
's claims.
McCormick
, 118
Ill. App. 3d
at 460-61.
The court similarly distinguished evidentiary documents from documents upon which a claim is founded in
Garrison v. Choh
, 308
Ill. App. 3d
48 (1999). In that case the
plaintiff
sued a doctor for medical malpractice and attached to the complaint the report of a health professional who found that the
plaintiff
had reasonable grounds for the malpractice suit. Section 2-622 of the Code required the attachment of such a report to the malpractice complaint. 735 ILCS 5/2-622 (West 1992). The
plaintiff
argued that the malpractice claim was founded on the report, within the meaning of section 2-606.
The appellate court rejected the
plaintiff
's argument. The court noted that section 2-606 applied primarily to instruments like contracts, and the court distinguished documents that constituted evidence supporting the allegations of the complaint.
Garrison
, 308
Ill. App. 3d
at 53. The court held that the
plaintiff
's "claim was not founded on the report; it was founded on the acts of the
defendant
which were alleged to have been negligent."
Garrison
, 308
Ill. App. 3d
at 54.
Sarrafi's medical notes similarly do not form the foundation for his defense of contributory negligence. Sarrafi founded his claim on Sofia's allegedly unreasonable refusal to follow medical advice; the notes provided evidence of the refusal. The notes here do not operate like a contract, a trust agreement, or an account book as the basis for the claim.
The trial court relied on
Herron v. Anderson
, 254
Ill. App. 3d
365 (1993), as support for the decision to allow Sarrafi's notes into evidence. The trial court in
Herron
permitted the
plaintiff
to introduce into evidence certain medical records, but refused to redact portions the
plaintiff
wished to exclude. The appellate court held that the rule of completeness justified the court's decision not to redact parts of the medical records the
plaintiff
introduced.
Herron
, 254
Ill. App. 3d
at 375-76. The court then, in
dicta
, added that all medical records are always admissible, as business records, pursuant to subsection (c) of the Act and section 8-401 of the Code.
Herron
, 254
Ill. App. 3d
at 376.
We cannot agree with the
dicta
from
Herron
. Section 8-401 of the Code, and the Act, do not provide generally for the admissibility of business records or medical records. Section 8-401 expressly limits its reach to documents upon which a claim or defense is "founded."
Herron
presents no reason for reading this requirement out of the statute. The
dicta
in
Herron
does not mention the phrase limiting the statute to cases in which "the claim or defense is founded on" a document. 735 ILCS 5/8-401 (West 2000).
Commentators have long criticized the Act. See,
e.g.
, N. Kahn,
Let's Give the Dead Man's Statute a Decent Burial
, 55 Ill. B.J. 430 (1967); M. Barnard,
The Dead Man's Act Rears Its Ugly Head Again
, 72 Ill. B.J. 420 (1984). Nonetheless, any change should come from the legislature, and not under the guise of judicial construction of the statute. The Act, as enacted by the legislature, incorporates section 8-401 of the Code, limiting the exception to documents on which a "claim or defense is founded." Not all business and medical records qualify as foundations of claims, even when they may constitute evidence supporting such claims.
McCormick
, 118
Ill. App. 3d
at 460-61. Sarrafi's notes here are evidence supporting his defense, but they do not qualify as documents upon which the defense is founded. Accordingly, we find that exception (c) in the Act does not justify the introduction into evidence of Sarrafi's notes, nor does it justify the decision to permit Sarrafi to testify from those notes about his conversations with Sofia.
Plaintiff
s on appeal directly address only the application of the Act to notes and testimony regarding the office visit on May 28, 1996, and therefore we confine our review to those notes. We observe, however, that the court at trial allowed testimony about other office visits. The court on remand should revisit the rulings on the admissibility of such evidence in light of the analysis presented herein.
B
Defendant
s argue that exception (a) to the Act warrants the introduction into evidence of Sarrafi's notes. Under exception (a), if the representative of a person under a legal disability introduces evidence of a conversation between the person under a disability and another person, any party adverse to the representative may testify about the same conversation. When
plaintiff
s called Sarrafi as a witness, they narrowly confined their questions to acts he performed on or after June 3, 1996. They did not in any manner refer to his conversations with Sofia on May 28, 1996. The court permitted Sarrafi to testify about his notes of that conversation on
defendant
s' examination of Sarrafi. Because
plaintiff
s had not introduced any evidence about the conversation, subsection (a) of the Act cannot justify the admission into evidence of Sarrafi's testimony about his notes. See
In re Estate of Deskins
, 128
Ill. App. 3d
942, 952-53 (1984); compare
Haist v. Wu
, 235
Ill. App. 3d
799, 818 (1992).
Plaintiff
s' later examination of their expert concerning Sarrafi's notes, brought in response to Sarrafi's improper testimony, did not serve to waive retrospectively the timely objection to Sarrafi's prior testimony. Compare
Hoem v. Zia
, 159 Ill. 2d 193, 198-201 (1994) (the
plaintiff's prior elicitation of interpretation of notes opened the door for
the
defendant
's testimony concerning the subject of the notes).
Neither subsection (a) nor subsection (c) of the Act warranted the introduction into evidence of Sarrafi's testimony concerning the notes he dated May 28, 1996. On remand, the trial court must exclude the notes and testimony about the conversations between Sarrafi and Sofia, unless
plaintiff
s first introduce evidence concerning the notes or conversations.
III
Plaintiff
s raise no challenge to the judgment entered on the jury's verdict in favor of Sarrafi and HCSC on counts III and IV of the complaint. But Mooshi asks this court to reverse the judgment entered against him on count II, the claim for loss of consortium based on the facts stated in count I of the complaint.
The trial court should have excluded from evidence Sarrafi
's testimony about his notes of his conversations with Sofia on May 28, 1996. The jury's inconsistent verdict on count I shows that the jury found the evidence of liability
closely balanced. We, too, find that evidence closely balanced. As Mooshi's proof of liability on count II matched the proof on count I, evidence regarding liability on count II is also closely balanced.
Sarrafi made Sofia's compliance with his advice a major issue in the case, arguing that any failure to communicate with her had no causal effect because she would not have accepted treatment anyway. The admission into evidence of Sarrafi's notes and his testimony about his notes therefore constitutes reversible error. See
Alvarado v. Goepp
, 278
Ill. App. 3d
494, 497 (1996). We reverse the judgment in favor of Sarrafi on count II and remand for a new trial.
IV
A
Plaintiff
s also challenge the trial court's decision to enter judgment notwithstanding the verdict in favor of HCSC. First,
plaintiff
s argue that the evidence could support a verdict against HCSC based on the theory of implied authority. Our supreme court, in
Petrovich v. Share Health Plan of Illinois, Inc.
, 188 Ill. 2d 17 (1999), established the applicable parameters:
"One context in which implied authority arises is where the facts and circumstances show that the defendant exerted sufficient control over the alleged agent so as to negate that person's status as an independent contractor, at least with respect to third parties. ***
* * *
No precise formula exists for deciding when a person's status as an independent contractor is negated. Rather, the determination of whether a person is an agent or an independent contractor rests upon the facts and circumstances of each case.
Merlo v. Public Service Co.
, 381 Ill. 300, 319 (1942). *** Facts bearing on the question of whether a person is an agent or an independent contractor include 'the question of the hiring, the right to discharge, the manner of direction of the servant, the right to terminate the relationship, and the character of the supervision of the work done.'
Merlo
, 381 Ill. at 319. The presence of contractual provisions subjecting the person to control over the manner of doing the work is a traditional
indicia
that a person's status as an independent contractor should be negated."
Petrovich
, 188 Ill. 2d at 42-47.
In
Petrovich
the
plaintiff
presented evidence that the
defendant
controlled the doctor by providing financial incentives that could reduce the doctor's income if he ordered too many tests or hospitalizations.
Petrovich
, 188 Ill. 2d at 47-48. The
defendant
responded that the doctor had earned a constant monthly salary. Our supreme court answered that the lack of any actual reduction in the doctor's salary did not insulate the
defendant
. "Whether control was actually exercised is not dispositive in this context. Rather, the
right to control
the alleged agent is the proper query, even where that right is not exercised." (Emphasis in original.)
Petrovich
, 188 Ill. 2d at 48.
The
defendant
in
Petrovich
performed a "'quality assurance review'" (
Petrovich
, 188 Ill. 2d at 49), and it reserved the right to terminate the participation in the network of any physician who had cared for patients in ways of which the
defendant
disapproved. The
defendant
also required its doctors to obtain its approval for all referrals to specialists. The court found this evidence sufficient to survive
summary judgment
on the issue of implied agency.
Petrovich
, 188 Ill. 2d at 50.
Plaintiff
s here similarly presented evidence of financial incentives. HCSC paid Holy Family, rather than any of the individual doctors affiliated with Holy Family, and Holy Family in turn paid the individual doctors. Although HCSC's financial incentives directly affected only Holy Family, those incentives affected the total amount available to the doctors affiliated with Holy Family, and thereby provided indirect incentives for the doctors to reduce the number of tests performed and hospitalizations ordered.
Plaintiff
s also presented evidence that HCSC performed a quality assurance review, and that it could remove from its network any physician providing care in ways HCSC disapproved.
The most significant difference between this case and
Petrovich
is that the
defendant
in that case required its doctors to obtain prior approval for all referrals, while HCSC did not require approval for referrals here. We do not find this difference sufficient to remove from the jury's determination the question of whether HCSC retained substantial control over Sarrafi. Because the inquiry into control is fact-intensive, and reasonable persons could differ about the implications of those facts regarding control, we reverse the decision to grant HCSC judgment notwithstanding the verdict on the issue of implied authority.
B
Petrovich
also sets forth the standards applicable for proof that a doctor appeared to act as an HMO's agent.
"To establish apparent authority against an HMO for physician malpractice, the patient must prove (1) that the HMO held itself out as the provider of health care, without informing the patient that the care is given by independent contractors, and (2) that the patient justifiably relied upon the conduct of the HMO by looking to the HMO to provide health care services, rather than to a specific physician. ***
* * *
The element of justifiable reliance is met where the plaintiff relies upon the HMO to provide health care services, and does not rely upon a specific physician. This element is not met if the plaintiff selects his or her own personal physician and merely looks to the HMO as a conduit through which the plaintiff receives medical care."
Petrovich
, 188 Ill. 2d at 33-38.
Here, Herminda testified that she recommended the BlueAdvantage HMO, rather than the PPO or traditional insurance, partially in reliance on HCSC's representations concerning the quality of doctors participating in the network. Herminda recommended keeping Sarrafi as the family's primary care physician because he participated in the network and because of the family's established relationship with him. Mooshi testified that he relied on Herminda's recommendation when he enrolled in the HMO.
Even if we view this evidence as sufficient to show that Mooshi indirectly relied on HCSC's representations when choosing the HMO rather than the PPO or traditional insurance, the record lacks evidence that the choice of the HMO made any difference for the choice of Sarrafi as the primary physician. Had Mooshi chosen the PPO or traditional insurance, the family still would have had the option of continuing as Sarrafi's patients. In view of the evidence that Sofia went to Sarrafi for care at least once without insurance coverage, the record presents especially strong grounds for concluding that Sofia would have continued to receive care from Sarrafi under either the PPO or traditional insurance, both of which would have covered Sarrafi's treatment of her. The record lacks evidence that Sofia would have chosen a different doctor if not for the choice of the HMO rather than the PPO or traditional insurance. That is, Sofia did not rely on representations HCSC had not yet made about its HMO when she first chose to accept treatment from Sarrafi, and Mooshi's decision to accept the HMO did not affect the continuation of treatment from Sarrafi, who remained an option as the primary care physician under both alternative kinds of insurance. Accordingly, the record cannot support the conclusion that Mooshi and Sofia relied on HCSC's representations about its HMO when Sofia sought treatment from Sarrafi. Without evidence of reliance, no verdict in
plaintiff
s' favor on the issue of apparent agency could ever stand.
CONCLUSION
Plaintiff
s presented sufficient evidence to raise a triable issue concerning whether Sarrafi's negligence proximately caused Sofia's injury. Experts testified that Sofia's risk of stroke without appropriate medication was two to three times as great as the risk with such medication.
Plaintiff
s presented evidence that any reasonable person, including Sofia, would have accepted the medication once confronted with the EKG showing a mass, with a high risk of embolization, lodged in her heart. Thus, the negligent failure to contact Sofia and inform her of the results of the EKG might be found to be a proximate cause of her injury.
The record suggests that the jurors may have reached a compromise verdict when they returned a form finding against both
defendant
s on count I, but assessing $0 in damages. The trial court correctly denied the motion for new trial on damages only in light of the appearance of compromise. But the court erred by amending the verdict to favor the position of the jurors who sought entry of a verdict in favor of
defendant
s. The record presents no basis for concluding that the assessment of $0 in damages was somehow more unanimous than the finding that Sarrafi, as HCSC's agent, negligently caused damages to Sofia. The inconsistent verdict requires reversal and remand for retrial.
Sarrafi's notes provided evidence supporting his affirmative defense of contributory negligence, but the defense was not "founded on" the notes within the meaning of section 8-401 of the Code, incorporated by reference into the Dead Man's Act. Neither did
plaintiff
s open the door for admission of the notes. As no exception justifies admission into evidence of Sarrafi's notes regarding his conversation with Sofia, the Act precludes the use on remand of the notes and testimony about the conversation of May 28, 1996, unless
plaintiff
s open the door to such testimony by introducing evidence concerning that conversation. The inadmissible evidence may have affected the verdict on count II, so the judgment in favor of
defendant
s on that count is also reversed and remanded.
Plaintiff
s did not present evidence that could support a finding that they justifiably relied on the appearance that Sarrafi acted as HCSC's agent. The evidence of implied agency, however, raises an issue for the trier of fact. The judgments in favor of both
defendant
s on counts I and II are reversed and the cause is remanded for proceedings in accord with this opinion.
Reversed and remanded.
GORDON, P.J. and O'MALLEY, J., concur.
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25 Ariz. App. 98 (1975)
541 P.2d 424
The CITY OF PHOENIX, the City Court of the City of Phoenix and the Chief Magistrate of the City Court of the City of Phoenix, and the State of Arizona, Appellants,
v.
Ronald Lee JONES, Appellee.
No. 1 CA-CIV. 2909.
Court of Appeals of Arizona, Division 1, Department B.
October 21, 1975.
*99 Joe R. Purcell, City Atty., by Gregory A. McCarthy, Asst. City Atty., Phoenix, for appellants.
Charles S. Pizzo, Phoenix, for appellee.
OPINION
JACOBSON, Presiding Judge.
Must a defendant charged with a violation of A.R.S. § 13-911, "carrying a concealed weapon" be afforded a jury trial when tried for that offense in city court? This is the sole question presented by this appeal.
On March 14, 1974 the appellee, Ronald Lee Jones, was arrested and charged with violation of A.R.S. § 13-911 (Supp. 1973), "carrying a concealed weapon, to wit: a handgun." On March 26, 1974 Jones appeared in Phoenix City Court with counsel and entered a plea of not guilty. On April 12, 1974, Jones, through counsel, requested a trial of this charge by a jury. A Phoenix city magistrate denied this request.
On May 10, 1974, Jones filed a petition for special action in the Maricopa County Superior Court requesting the Superior Court to order the Phoenix City Court to grant him a jury trial on the charge. On June 21, 1974, the trial court granted Jones the relief requested. The City of Phoenix has appealed that judgment.
A.R.S. § 13-911 (Supp. 1973), insofar as pertinent here, provides:
"C. A person ... who has concealed on or about his person a weapon is guilty of a misdemeanor punishable by a fine of not less than one hundred nor more than three hundred dollars or by imprisonment in the county jail for not more than six months, or both."
The right to a trial by jury in a "petty" criminal case has had an interesting history in the state of Arizona. Article 2, § 23 of the Arizona Constitution provides:
"The right of trial by jury shall remain inviolate...."
*100 In addition, Article 2 § 24 provides in part:
"In criminal prosecutions, the accused shall have the right ... to have a speedy public trial by an impartial jury...."
Also, the 6th Amendment to the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...."
All of these constitutional provisions have been interpreted similarly, that is, a right to trial by jury is not given by the constitution, rather the right to trial by jury is merely preserved. Thus, only those crimes for which a trial by jury was afforded at common law are likewise triable by jury under the Constitutional provisions. See, Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); State v. Cousins, 97 Ariz. 105, 397 P.2d 217 (1964). From this judicial interpretation grew the dichotomy of "serious" offenses (crimes triable by jury at common law) and "petty" offenses (crimes triable by magistrate at common law). See Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
For Federal Constitutional purposes, the United States Supreme Court has now apparently drawn the line between "petty" and "serious" offenses, solely on a punishment criterion.
"[O]ur decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes." Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974)
In Arizona in addition to punishment considerations, it is apparent that "the moral quality of the act" is to be considered in determining whether the crime charged falls within the definition of "petty" offenses triable without a jury. Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966). We have some difficulty in the area of assessing the "moral quality" of the act, feeling that moral judgments are best left in the hands of the legislature to mark the degree of decadency of the act by the penalty it imposes for its transgression. As was stated in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970):
"In deciding whether an offense is `petty,' we have sought objective criteria reflecting the seriousness with which society regards the offense [citations omitted] and we have found the most relevant such criteria in the severity of the maximum authorized penalty." 399 U.S. at 68, 69, 90 S.Ct. at 1888.
The difficulty of assessing the moral quality of a particular crime is exemplified in this case where the charge is carrying a concealed weapon. We would assume that the moral seriousness with which a metropolitan community, where "mugging" and robbery are a serious problem, would view that act would be greater than in a small, western rural community where the memory of gun-toting, concealed or otherwise, still lingers. In short, in the absence of a legislatively determined standard, we are of the opinion that reasonable men could differ as to the "moral quality" involved in committing this offense.[1] Looking then strictly to the criterion of penalty, we would have to hold that the crime of carrying a concealed weapon which carries a maximum penalty of imprisonment for six months and for a fine of $300 falls into the category of "petty" offenses which can constitutionally be tried *101 without a jury.[2]Baldwin v. New York, supra.
This does not, however, end our inquiry, for while a right may not be constitutionally mandated, such a right may exist by reason of a statute.
The right to trial by jury in non-record courts is set forth in A.R.S. § 22-320 dealing with justice of the peace courts and A.R.S. § 22-425, dealing with violations of city ordinances in municipal courts.
A.R.S. § 22-320 (1956) provides:
"A. A trial by jury shall be had if demanded by either the state or defendant. Unless the demand is made before commencement of the trial, a trial by jury shall be deemed waived.
"B. Upon demand being made for a jury trial, the justice of the peace or presiding officer of the police court shall issue an order directed to the sheriff of the county, or to any constable, marshal or policeman therein, commanding such officer to summon the number of qualified persons specified in the order to appear at the time and place therein to serve as jurors in the action. If the required number of jurors do not appear, an additional order or orders may be issued." (emphasis added)
A.R.S. § 22-425 (1956) provides:
"A. In the trial of offenses for violation of ordinances of cities or towns of such a nature as by the common law were not triable before a jury, no jury trial shall be granted."
Before discussing the case law dealing with these statutory provisions, some general observations as to the statutes themselves are in order. First, under A.R.S. § 22-320 the use of the language "a trial by jury shall be had if demanded" would appear to make any case triable in justice court, civil or criminal, triable before a jury, if demanded. Second, by subsection B of that statute providing "upon demand being made for a jury trial, the justice of the peace or presiding officer of the police court" shall summon a jury, would seem to indicate a legislative intent to make a jury available in police (municipal) court to the same degree as it is available in justice court when the police court is exercising its concurrent jurisdiction. Third, A.R.S. § 22-425 dealing with juries in municipal courts would appear by its terms to be limited in application to only "the trial of offenses for violation of ordinances of cities or towns." Fourth, A.R.S. § 22-425, being cast in negative terms, that is, no jury trial is available for violation of city ordinances unless available at common law, leaves the inference that other criminal cases would be triable in that forum by juries as a matter of right.
Looking then strictly to the statutory language employed, a persuasive argument can be mounted that the legislature intended a jury to be available, as a matter of right, in all trials in non-record courts both justice and police, except where the trial involved a violation of city or county ordinances, and a jury would also be available in those cases when a jury was available at common law.
We now turn to the two Arizona Supreme Court decisions dealing with the right of jury trial for a violation of a state statute in municipal court: Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966) and O'Neill v. Mangum, 103 Ariz. 484, 445 P.2d 843 (1968).
In Rothweiler, Justice Udall, speaking for the court, held that a violation of a statutory prohibition against driving while under the influence of intoxicating liquor, an offense punishable by a maximum fine of $300 and six months in jail, plus the *102 loss of driving privileges for up to 90 days, constituted a "serious" offense and thus constitutionally a right to trial by jury was mandated. The court went on to examine A.R.S. §§ 22-320 and 22-425 and held, pursuant to our statutory analysis set forth above, that:
"There is, of course, an implication that the legislature intended to establish the same procedure as to jury trial in both nonrecord courts [justice court and police court].
* * * * * *
"Fundamental rights should not depend upon an arbitrary choice as to the court in which they are instituted. There must be uniformity of treatment in criminal prosecutions, not depending on the place of prosecution, and this includes the right of trial by jury. The right to a jury trial should be jealously guarded and preserved by the courts, whether granted by the constitution or statutes." 100 Ariz. at 46-47, 410 P.2d at 486. (emphasis added)
The rationale of Rothweiler was adopted and followed by the Court of Appeals in Tsipai v. State, 8 Ariz. App. 3, 442 P.2d 167 (1968), in a case involving a violation of the state statute against furnishing liquor to minors tried in Tucson Municipal Court. The maximum penalty for this crime was a $300 fine and six months in county jail. The Supreme Court denied review of this decision.
It would thus appear that the law was that, regardless of constitutional considerations, a trial by jury should be granted upon demand in all prosecutions of state criminal offenses in non-record courts, justice or municipal. This was the state of the law until the Arizona Supreme Court's decision in O'Neill v. Mangum, supra.
In O'Neill the defendants were charged in Phoenix City Court with a violation of A.R.S. § 13-379, drunk and disorderly, an offense punishable by a maximum fine of $300 and imprisonment of up to six months. Justice Udall again wrote the decision for the court. Noting first that the United States Supreme Court cases did not require a jury trial for petty offenses where the term of imprisonment did not exceed six months, Justice Udall analyzed the offense in terms of the degree of moral turpitude involved, concluding that the offense of drunk and disorderly was not a "serious" crime and that therefore no right to a jury trial existed. The court went on to state:
"The defendants have argued that had these charges been brought before a justice court rather than before the city court they would have been entitled to a jury; and thus to allow the matter to proceed before city court without a jury is a denial of equal protection under the law. We considered and agreed with a similar question in Rothweiler, supra....
* * * * * *
"In the case at bar, however, we have held that the offense charged is in that category of petty offenses not requiring a jury trial. Such is the case regardless of the forum." 103 Ariz. at 486, 445 P.2d at 845. (emphasis added)
The clear effect of the court's decision in O'Neill is to make nugatory the express statutory guarantee of A.R.S. § 22-320 to a right to trial by jury in all criminal cases in justice court.[3] This the court *103 did without discussing why this statute should be so treated, construed or interpreted. Moreover, it appears that O'Neill left intact the right of a civil plaintiff or defendant in justice court to demand and receive a jury trial where the monetary value of the claim might be trivial, but denied this right to a criminal defendant where he could be deprived of his liberty up to six months and his property up to $300. An anomaly to say the least. Because of the lack of decisional analysis of the statutory rights involved and because O'Neill appears on its face to leave in full force and effect the court's decision in Rothweiler, we agree with the analysis of Judge Hathaway in his dissent in State ex rel. DeConcini v. City Court, supra footnote 3:
"In O'Neill v. Mangum, 103 Ariz. 484, 445 P.2d 843 (1968), the decision was based on the constitutional right to jury trial and did not discuss the statutory right." 9 Ariz. App. at 525, 454 P.2d at 195.
We therefore hold, O'Neill notwithstanding, that based upon the statutory interpretation previously set forth, a statutory right to trial by jury exists in municipal court for violations of state statutes. We further hold that this statutory right exists regardless of the constitutional classification of "seriousness" of the offense charged.[4]
By reason of the foregoing, the judgment of the trial court is affirmed.
HAIRE, C.J., Division 1, concurs. EUBANK, Judge (dissenting):
I disagree with the conclusion of the majority that Rothweiler and O'Neill cannot be reconciled. Rothweiler involves and is an example of a "serious" offense, while O'Neill involves and is an example of a "petty" offense. The later O'Neill case merely brought Arizona into line with the United States Supreme Court's position on the right to jury trial. Since O'Neill is the latest expression of our Court, it should be followed by this Court. I would reverse.
NOTES
[1] Compare, Roberson v. State, 43 Fla. 156, 29 So. 535 (1901) holding this crime to be "petty" and Shorter v. State, 63 Ala. 129 (1879) holding the crime to be "serious".
[2] Both Rothweiler and O'Neill v. Mangum, 103 Ariz. 484, 445 P.2d 843 (1968), discussed infra, were decided prior to Baldwin and Codispoti. However, we feel the "moral quality of the act" may still be a viable consideration for Arizona constitutional jury protection purposes regardless of the punishment demanded.
[3] As was stated in State ex rel. DeConcini v. City Court, 9 Ariz. App. 522, 523, 454 P.2d 192, 193 (1969) in discussing the effect of the O'Neill decision:
"Though the statutory language granting the right of a jury trial to either the State or the defendant is explicit [citing A.R.S. § 22-320] and though historically jury trials have been allowed in the justice court for any violation of criminal statute, nevertheless, our Supreme Court in the O'Neill decision appears to have limited this statutory guarantee of a jury trial to whatever the constitutional guarantee of a jury trial may be. As we understand this decision, its denial of a right to a jury trial pertains to both the justice and police courts...." (footnotes omitted)
[4] We are aware of the "practical" effects of allowing jury trials in municipal courts of all state criminal prosecutions, including traffic offenses and the burdens that may be placed on court administrations by jury requests. However, such considerations should be addressed by the legislature, whose statutes require this result, not by the courts.
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889 F.2d 1099
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.James L. MYRICK, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 88-3292.
United States Court of Appeals, Federal Circuit.
Oct. 5, 1989.
Before NIES, PAULINE NEWMAN AND ARCHER, Circuit Judges:
PER CURIAM
Judgment
AFFIRMED. See Fed.Cir.R. 36
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F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 11 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-5205
JOE EARL RODGERS,
Defendant-Appellant.
Appeal from the United States District Court
for the N.D. Okla.
(D.C. No. 91-CR-23-E)
Submitted on the briefs: *
Stephen C. Lewis, United States Attorney, and Catherine Depew Hart, Assistant
United States Attorney, Tulsa, OK, for Plaintiff-Appellee.
Joe Earl Rodgers, Pro Se.
Before BRORBY, EBEL and KELLY, Circuit Judges.
EBEL, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered
submitted without oral argument.
Appellant Joe Earl Rodgers (“Rodgers”) brought this action to set aside the
administrative forfeiture of $30,006.25 in United States currency, $1,951.00 in
United States Currency, a 1979 Corvette, a 1977 Corvette, and a 1984 Ford
Econoline van. Rodgers challenges the forfeiture on the ground that the United
States Drug Enforcement Administration (the “DEA”) did not provide him with
proper notice of the forfeiture proceedings. The district court denied Rodgers’s
pro se “Motion for Return of Property” and determined that the DEA’s attempts
to provide Rodgers with notice were reasonably calculated, under all the
circumstances, to apprise him of the pendency of the forfeiture proceedings. See
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). We
disagree and REVERSE the district court’s order. 1
BACKGROUND
On February 16, 1991, local law enforcement officers in Oklahoma arrested
Rodgers under state law for certain drug offenses and seized, inter alia, vehicles,
currency, firearms, drug paraphernalia, knives, stereos, a surveillance camera, an
answering machine, a typewriter, and a cellular phone from two of Rodgers’
1
The district court granted appellant’s request to proceed in forma pauperis on
appeal. Appellant should note that because this appeal was filed after April 26, 1996,
the recently enacted Prison Litigation Reform Act of 1995 (“PLRA”) is applicable.
Thus, petitioner will be assessed for his filing fee in accordance with the partial
payment plan described in § 804(a) of PLRA. See PLRA § 804(a), 28 U.S.C.A.
§ 1915(b) (West Supp. 3 1996).
-2-
residences. Rodgers made bond and was released by Tulsa police, but he failed to
appear at his trial date three days later. Rodgers remained a fugitive until August
17, 1991, when the United States Customs Service arrested him as he attempted to
re-enter the United States from Mexico.
In the meantime, on March 8, 1991, federal law enforcement officers
attempted to serve Rodgers with an arrest warrant issued pursuant to a federal
indictment charging Rodgers with conspiracy to distribute cocaine. However,
because Rodgers was a fugitive, the U.S. Marshal was unable to arrest Rodgers.
Nonetheless, the federal authorities adopted for federal forfeiture many of the
items seized by local law enforcement. 2 These items included: (1) $30,006.25 in
United States currency; (2) $1,951.00 in United States currency; (3) a 1977
Chevrolet Corvette; (4) a 1979 Chevrolet Corvette; and (5) a 1984 Ford Econoline
van. 3 (D.Ct. Order, at 4-5).
The DEA did not forfeit all of the adopted items in bulk. Instead, the DEA
forfeited each item separately, and it attempted to provide notice as to each
forfeiture separately. Before the forfeiture of each item, the DEA published once
2
When local authorities voluntarily deliver seized property to the DEA, the DEA
is said to “adopt” the property. 21 U.S.C. § 881 (1994 & Supp. 1996) grants the DEA
jurisdiction to forfeit adopted property. See United States v. Woodall, 12 F.3d 791, 794
n.2 (8th Cir. 1993).
3
The non-adopted items were forfeited by Pawnee and Tulsa County authorities
pursuant to Oklahoma forfeiture procedures. Those forfeitures are not before us.
-3-
a week for three consecutive weeks a notice of seizure and of its intent to forfeit
Rodgers’s property in the USA Today, a newspaper of general circulation in the
judicial district in which the processing for forfeiture was brought. The DEA also
mailed to Rodgers a written notice of the seizure, as detailed below, together with
information on the applicable procedures Rodgers had to follow to claim an
interest in the property.
DEA first mailed a seizure notice with regard to the $30,006.25 in United
States currency, and it mailed that notice to Joe Rodgers, 4923 S. Yorktown #38,
Tulsa, Oklahoma, by certified mail. The post office attempted to deliver that
notice on April 1, 1991 and again on April 6, 1991. These delivery attempts were
unsuccessful and the letter was returned to the DEA unclaimed on April 17, 1991.
The DEA administratively forfeited the $30,006.25 in United States currency on
May 10, 1991.
The DEA next mailed a seizure notice with regard to the $1,951.00 in
United States currency. The DEA again mailed its notice to the Yorktown
address, and the post office attempted to deliver that notice on April 11, 1991 and
April 15, 1991. The notice was returned to the DEA unclaimed on April 26,
1991, and the DEA forfeited the $1,951.00 in United States currency on May 24,
1991.
-4-
The DEA also mailed seizure notices concerning the seized Corvettes to the
Yorktown address. The post office attempted to deliver those notice letters on
April 12, 1991 and April 17, 1991, but again each letter was returned to the DEA
unclaimed on April 28, 1991. The DEA forfeited the Corvettes on May 24, 1991.
Some three weeks after the post office returned to the DEA as unclaimed
the notice letters concerning the first four items, the DEA mailed a seizure notice
concerning the 1984 Econoline van to the Yorktown address. Not surprisingly,
this notice also was returned unclaimed on June 1, 1991, after the post office
unsuccessfully attempted to deliver the notice on May 16, 1991 and May 21,
1991. In addition, DEA mailed a notice to Joe Rodgers, 6650 N. Trenton, on May
20, 1991, but this letter was returned with the advisement that Rodgers had moved
and left no forwarding address. The DEA forfeited the Econoline van on June 28,
1991.
DISCUSSION
I. Forfeiture Procedures Generally
The DEA forfeited the seized items on the ground that they were used or
acquired as a result of a drug-related offense. See 21 U.S.C. § 881(a)(4) (1994)
(allowing forfeiture of vehicles) and 21 U.S.C. § 881(a)(6) (1994) (allowing
forfeiture of currency). Section 881 incorporates the forfeiture procedures
-5-
provided in the Tariff Act of 1930, United States v. Woodall, 12 F.3d 791, 792
(8th Cir. 1993) (citing 21 U.S.C. § 881(d)), which require the government to
publish a notice of seizure and of its intent to forfeit seized property once a week
for three consecutive weeks in a newspaper of general circulation in the judicial
district in which the forfeiture proceedings is brought. 19 U.S.C. § 1607(a)
(1994); 21 C.F.R. § 1316.75(a) (1996). In addition, the government must provide
“[w]ritten notice of seizure together with information on the applicable
procedures . . . to each party who appears to have an interest in the seized
article.” 19 U.S.C. § 1607(a) (1994). Finally, the Constitution requires “notice
reasonably calculated, under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their
objections.” United States v. 51 Pieces of Real Property, Roswell, N.M., 17 F.3d
1306, 1316 (10th Cir. 1994) (quoting Mullane, 339 U.S. at 314)). After adequate
notice is given, and if no party files a claim asserting an interest in the property
within twenty days of publication, the DEA must declare the property forfeited.
United States v. Clark, 84 F.3d 378, 380 (10th Cir. 1996) (citing 19 U.S.C. § 1609
(1994); 21 C.F.R. § 1316.77(b)).
Although Rodgers admits that he failed to file a claim asserting an interest
in the seized property, Rodgers alleges that the DEA’s attempts to provide him
with notice of its intent to forfeit failed to satisfy statutory and due process
-6-
requirements; and, accordingly, the DEA administrative forfeiture should be
vacated. See Aero-Medical, Inc. v. United States, 23 F.3d 328, 331 (10th Cir.
1994).
We have jurisdiction under 28 U.S.C. § 1331 to review whether DEA’s
administrative forfeiture satisfied statutory and due process requirements. Clark,
84 F.3d at 381. 4 Moreover, Rodgers’ status as a criminal fugitive during DEA’s
forfeiture proceedings does not “disentitle” him from the right to pursue civil
relief in this court. See Degen v. United States, 116 S.Ct. 1777, 1780-83 (1996)
(holding that a court in a civil forfeiture suit is not allowed to enter judgment
against a claimant merely because he is a fugitive from a related criminal
prosecution). 5
We review the district court’s determination that the government employed
means reasonably calculated to provide the claimant with actual notice for clear
error. Clark, 84 F.3d at 381 (citing 51 Pieces of Real Property, 17 F.3d at 1316.).
Although Rodgers brought his motion under Fed. R. Crim. P. 41(e), we have
4
held that “‘[w]here criminal proceedings against the movant have already been
completed, a district court should treat a Rule 41(e) motion as a civil complaint [under
28 U.S.C. § 1331].’” Clark, 84 F.3d at 381 (quoting Onwubiko v. United States, 969
F.2d 1392, 1397 (2d Cir. 1992)).
5
Rodgers argues that his status as a state fugitive should not bear on his rights
in a federal proceeding. However, because Degen provides that even federal fugitives
have rights in civil forfeiture proceedings, we need not address whether Rodgers was a
state or federal fugitive.
-7-
II. DEA Compliance With Forfeiture Procedures
It is undisputed that the DEA’s publications in USA Today satisfies the
forfeiture statute’s “notice by publication” requirement. The USA Today is a
newspaper of general circulation, and the DEA published its notice once a week
for three consecutive weeks. See 19 U.S.C. § 1607(a) (1994); 21 C.F.R.
§ 1316.75(a)(1996). Thus, the only issue we address is whether the DEA’s
attempts to give Rodgers actual notice were sufficient. We believe they were not.
Rodgers maintained three different residences, and yet, the DEA only mailed
seizure notices to two of those residences. Rodgers claims the DEA should have
mailed him a seizure notice at the third residence and we agree.
For purposes of determining whether the government has made reasonable
efforts to notify a claimant, we note that the government is not only chargeable
with information it has within its possession but also with information it could
have discovered by making reasonable efforts. In Clark we explained that
“[w]hen the government can reasonably ascertain the name and address of an
interested party, due process requires the government to send ‘notice by mail or
other means as certain to ensure actual notice.’” 84 F.3d at 380 (quoting
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983)).
In this case, we charge the DEA with information concerning Rodgers
provided in the local authorities’ seizure records. Where property is initially
-8-
seized by state authorities, and then turned over to the federal government for
federal forfeiture of that property, it is reasonable to expect the federal
government to obtain from the seizing authority whatever evidence it may have
concerning the whereabouts of the defendant. Here, we believe that the record
establishes that the DEA was aware of, or should reasonably have become aware
of, three residences at which Rodgers kept his belongings.
First, Rodgers kept some belongings at 4923 Yorktown #38, Tulsa, OK, an
apartment apparently leased by an indicted co-conspirator, Donald Lee Rogers,
located above a night club in Tulsa which Rodgers used to own. The DEA
concedes knowledge of the Yorktown address. The DEA mailed several notice
letters to the Yorktown apartment, and the $30,006.25 in United States currency
was seized from that address.
Second, Rodgers kept a cabin at 6650 N. Trenton, Tulsa, Oklahoma. The
record indicates that the DEA also knew of the Trenton address because it mailed
one notice letter to that address pertaining to the 1984 Econoline van. In
addition, the list of seized items made by local law enforcement includes an
electric bill receipt mailed to Joe Rodgers, 6650 N. Trenton, an automobile
insurance form mailed to Joe Rodgers, 6650 N. Trenton, and a cellular phone
application filled out under an apparently assumed name, Kenny Rodgers, 6650 N.
Trenton.
-9-
However, the strongest evidence in the record suggests that Rodgers
maintained his primary residence at a house owned by his mother in Terlton,
Oklahoma, a town situated on the outskirts of Tulsa, in Pawnee County,
Oklahoma. Inexplicably, the DEA never sent a notice letter to Rodgers at the
Terlton address, although the record reveals that the DEA was aware of the
Terlton address. The 1984 Econoline van was seized from Terlton and the
“Notice of Seizure” the DEA mailed to the Trenton and Yorktown addresses
indicates as much by listing “Terlton” as the “Seizure Place.” Second, the list of
items seized at the Terlton address by local law enforcement officers includes a
water bill and a past due notice mailed to Joe Rodgers, Rt. 1, Box 267, Terlton; a
collection of thirty-five bills and letters addressed to Joe Rodgers, Terlton; and a
“paper license tag” 6 for the Econoline van issued to Joe Rodgers, Terlton.
Finally, the United States describes Joe Rodgers’ Terlton residence as “the
residence of Joe Rodgers” in its brief (Govt. Brief, at 4; Govt. Ex. 27 --
“Application for Order of Seizure”); the Pawnee County District Attorney
described the Terlton address as “the Joe Rodgers residence” in state forfeiture
proceedings, (Govt. Ex 27 -- “Application for Order of Seizure”); and, in an
affidavit prepared for those proceedings, the Undersheriff of Pawnee County
6
It is not clear from the record what a “paper license tag” is. Presumably, it is a
temporary form of vehicle registration.
- 10 -
described the Terlton address as “under the control and maintained as residence
by one Joe Rodgers.” (Id.) 7
We recognize that in today’s transient society the government often will
have difficulty determining where to mail its notice letters. We believe, however,
there are several factors to which the government can look in deciding whether to
mail its notice letters to a particular address. Factors to consider include: (1)
whether there is physical evidence linking the claimant to the address, such as the
storage of the claimant’s personalty; (2) whether there are other indicia of
residency, such as the receipt of mail, the listing of a phone number, or the
payment of utilities; (3) whether the claimant has a real property interest in the
property represented by the address, either a leasehold or ownership interest; (4)
whether there is any direct evidence linking the claimant to the address, such as
informant testimony or eyewitness observation; (5) whether there is evidence
suggesting that a notice letter mailed to the address will be forwarded to the
claimant; and (6) whether there are alternative methods of providing actual notice
7
Although neither the government, the district attorney, nor the undersheriff
specifically mentioned “Terlton,” it is clear from the record that the residence to which
they refer is the Terlton residence. The United States refers to the residence as the one
from which certain firearms were seized, and the district attorney notes that that
residence is located in Pawnee County. (Govt. Exhibit #27). The Undersheriff provides
a more precise description by noting that the “residence [is] located in Pawnee County.
Section 28, Township 20, Range 8, W1/2 - E1/2 -W1/2 - N1/4.” (Govt. Exhibit #27).
We take judicial notice of the fact that Terlton is in Pawnee County, whereas Rodgers’
two other addresses are in Tulsa County.
- 11 -
that may be available to the government. These factors are neither exhaustive nor
mandatory; however, they serve as guideposts in a murky terrain.
Applying the factors described above, we believe that the DEA acted
unreasonably when it failed to mail a notice letter to Rodgers at his Terlton
address. First, there was evidence suggesting that Rodgers stored personalty at
the Terlton address. Specifically, Rodgers’ Econoline van and several of his guns
were seized from there. Second, Rodgers paid the utilities for the Terlton address
and received mail there. Third, both the DEA and the local seizing authority have
acknowledged in various of their papers that Rodgers maintained a residence at
Terlton.
We recognize that Rodgers’ Tulsa addresses also satisfied some of the
factors discussed above; however, the Terlton address was the most reasonable
address to which to mail a notice letter. The government primarily relied on its
mailings to the Yorktown apartment to give Rodgers notice, but the only evidence
in the record which suggests that Rodgers once lived at the Yorktown apartment
is the fact that some of his possessions were seized from there. The apartment
was apparently leased by one of Rodgers’ employees and there is no indication
that Rodgers paid utilities for the Yorktown apartment or that he received mail
there.
- 12 -
Moreover, even assuming that the DEA properly sent notice letters to
Rodgers’ Tulsa addresses, those notice letters were all returned as undelivered,
thereby informing the DEA that they were not adequate to provide actual notice.
As we made clear in Aero-Medical, Inc. v. United States, 23 F.3d 328 (10th Cir.
1994), the DEA must take reasonable steps to locate a civil claimant when its
initial mailings are returned unclaimed.
In Aero-Medical, the DEA seized an airplane allegedly used in connection
with drug distribution activities and then forfeited that airplane after no one
claimed an interest in it. Id. at 329. The DEA had published notice for three
consecutive weeks in USA Today and it mailed a notice letter to the claimant at
his business address, as kept in FAA records. The notice letter was returned with
the advisement that claimant has moved and left no forwarding address. Id. In
addition, DEA mailed notice to the home of the claimant’s predecessor in interest,
but that notice was also returned unclaimed.
We vacated the DEA’s administrative forfeiture after determining that the
government had not employed means reasonably calculated to provide the
claimant actual notice of the proceedings. Id. at 331. We noted that “[t]he DEA
was not only aware that the [business] address was not a current business address
for plaintiff, but was also aware of the identity of plaintiff’s registered agent.” Id.
at 330. Moreover, “[p]laintiff’s current address was easily ascertainable, not
- 13 -
requiring extra inquiry, investigation, or effort, and an additional notice attempt
would not have placed an undue burden on the DEA.” Id. at 330-331 (citing
Schroeder v. City of New York, 371 U.S. 208, 212-13 (1962)).
Similarly in this case, the DEA was aware that the Yorktown address was
not being used by Rodgers when it mailed its notice letters there. In its brief, the
government does not dispute that it knew the Yorktown address was invalid; it
only claims that it had no other address to which it could have mailed a notice
letter. (Govt. Brief, at 8). The record reveals, however, that the DEA did have
Rodgers’ Terlton address, or at least that “[Rodgers’ Terlton] address was easily
ascertainable, not requiring extra inquiry, investigation, or effort, and an
additional notice attempt would not have placed an undue burden on the DEA.”
Aero-Medical, 23 F.3d at 330-331. We hold that it was unacceptable for the DEA
to rely upon notice by publication while failing to use the information it
possessed, or should have possessed, from the beginning of the forfeiture process
to notify Rodgers. See Id. at 331(finding it unacceptable for the DEA to rely
upon notice by publication while failing to use information it possessed to notify
claimant) (citing Mennonite Bd. of Missions, 462 U.S. at 800); see also Woodall,
12 F.3d at 794-95 (vacating a DEA administrative forfeiture where the
government knew the claimant’s current address, but mailed notice letters to other
invalid addresses).
- 14 -
We recognize that Rodgers’ fugitive status is also a factor to be considered
in determining what notification steps are reasonable. However, the DEA cannot
rely upon a claimant’s fugitive status as an excuse for failure to give notice that
might reasonably result in actual notice to the fugitive. The Supreme Court has
determined that a criminal fugitive has the right to participate in civil forfeiture
proceedings, see Degen, 116 S.Ct. at 1780-83, and the government threatens to
eviscerate that right through the back door when it provides inadequate
notification to fugitives. Although here there is the possibility, because of
Rodgers’ fugitive status, that a notice mailed to the Terlton address might also
have been returned, there are adequate indicia that Rodgers had been using the
Terlton address as a residence. On this record, it was unreasonable not to attempt
to give notice to Rodgers at the Terlton address.
Our holding today is consistent with our decisions in United States v.
Clark, 84 F.3d 378 (10th Cir. 1996) and United States v. 51 Pieces of Real
Property, Roswell, N.M., 17 F.3d 1306 (10th Cir. 1994). In Clark, we upheld an
administrative forfeiture where the FBI sent by return-receipt, certified mail, a
notice letter to the claimant at his address in jail. 84 F.3d at 381. Although the
letter was delivered to the jail, the claimant claimed he should have been served
personally because “‘most of the time a certified letter is never received by the
person who is incarcerated.’” Id. (quoting claimant) (internal punctuation
- 15 -
omitted). We held that the claimant had “not shown the sort of exceptional
circumstances that would have required the FBI to employ a means other than
certified mail.” Id.
In this case, Rodgers is not asserting that the DEA should have employed
means other than certified mail; he is only claiming that the DEA should have
mailed its certified letter to a valid address when it had within its possession
information concerning that address. Moreover, the DEA’s mailings to other
addresses were returned unclaimed, whereas the FBI’s mailings in Clark were
successfully delivered. Thus, unlike the government in Clark, the DEA in this
case knew that Rodgers did not receive notice of the pending forfeitures.
In 51 Pieces of Real Property, the government mailed a notice letter to the
claimant in care of a third party at an invalid address in LaJolla, California, and it
also mailed a notice letter to the claimant’s alter-ego at another address. 17 F.3d
at 1316-17. We upheld the forfeiture because although the letter mailed to the
LaJolla address was returned unclaimed, the letter mailed to the claimant’s alter-
ego was successfully delivered. We noted that had the government only sent
notice to the LaJolla address, “we might be inclined to agree with [the claimant]
that the government’s actions were not reasonably calculated to give [the
claimant] actual notice of the forfeiture proceedings.” Id. at 1317. In this case,
- 16 -
the government only sent notices to addresses determined to be invalid, and thus,
we confront this factual scenario.
With regard to every seized item except the van, the government concedes
that it mailed notices to an address at which it knew Rodgers could not be
reached. Thus, Aero-Medical directly addressed Rodgers’ claim as to the United
States currency and the Corvettes when it held “[i]t is unreasonable for the
government to ignore information in its possession and deliberately mail notice
to an invalid address.” 23 F.3d at 330 (citing Robinson v. Hanrahan, 409 U.S. 38,
40 (1972) (per curiam) (finding a Mullane violation where the government mailed
notice of a forfeiture proceeding to the claimant’s parent’s address when the
government knew the claimant was not at the address, and knew he could not get
to that address because of his incarceration)); accord Torres v. $36,256.80 U.S.
Currency, 25 F.3d 1154, 1161 (2d Cir. 1994).
Whether the government took reasonable efforts to give notice of the van’s
seizure and pending forfeiture is more complicated because in addition to mailing
notice letters to the Yorktown address, an address the DEA knew was invalid, the
government also mailed a notice letter to Joe Rodgers, 6650 N. Trenton. The
record does not reveal whether the government knew that 6650 N. Trenton was an
invalid address when it mailed a notice letter there. However, the government
certainly knew the Trenton address was invalid when the letter was returned with
- 17 -
the advisement that Rodgers had moved, and we believe “[i]t was unreasonable
for the DEA to ignore its discovery that [Rodgers] had not received the original
mailed notice.” Montgomery v. Scott, 802 F. Supp. 930, 936 (W.D.N.Y. 1992).
“[A]fter the DEA discovered that [Rodgers] had not received the notice it
sent . . ., it should have taken additional steps to notify him,” id., such as mailing
a notice letter to his Terlton address. See also Torres, 25 F.3d at 1161 (2d Cir.
1994) (vacating an administrative forfeiture where the mailed notice was returned
undelivered, where the government knew the claimant was in government
custody, and where the government took no efforts to locate the claimant). In this
case, the Econoline van was seized from the Terlton address, the DEA knew
Rodgers maintained a residence there, and the DEA’s mailings to other addresses
were returned undelivered; thus, it was unreasonable for the DEA not to mail a
notice letter concerning the seizure of the Econoline van to the Terlton address.
Finally, the government does not dispute Rodgers’ claim that he did not
have actual notice of the forfeiture proceedings. This fact distinguishes Rodgers
from the claimant in 51 Pieces of Real Property, who “never denied receiving
actual notice of the forfeiture proceedings and of the steps it should take to
defend against those proceedings,” 17 F.3d at 1317, but only “argued that the
government did not send notice to it at the proper address.” Id.; see also Sarit v.
United States Drug Enforcement Admin., 987 F.2d 10, 15 n.3 (1st Cir.), cert
- 18 -
denied, 510 U.S. 888 (1993) (noting that the claimant had actual notice of the
forfeiture proceedings, notwithstanding the claim that the DEA did not use
reasonable efforts to give the claimant notice, in upholding an administrative
forfeiture).
CONCLUSION
Because we find it “unacceptable for the DEA to rely upon notice by
publication while failing to use the information it possessed from the beginning of
the forfeiture process to notify plaintiff,” Aero-Medical, 23 F.3d at 331, we
REVERSE the judgment of the district court and REMAND the case with
instructions to vacate the DEA administrative forfeitures.
- 19 -
| {
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} |
198 U.S. 317 (1905)
HARDING
v.
HARDING.
No. 222.
Supreme Court of United States.
Argued April 20, 1905.
Decided May 15, 1905.
ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.
*318 Mr. Pliny B. Smith, with whom Mr. John S. Miller was on the brief, for plaintiff in error.
Mr. William H. Barnum for defendant in error.
*324 MR. JUSTICE WHITE delivered the opinion of the court.
The law of Illinois (Laws of Illinois, 1877, p. 115) provided as follows:
"That married women who, without their fault, now live or hereafter may live, separate and apart from their husbands, may have their remedy in equity in their own names, respectively, against their said husbands for a reasonable support and maintenance while they so live separate or have so lived separately and apart; and in determining the amount to be allowed the court shall have reference to the condition of the parties in life, and the circumstances of the respective cases; and the court may grant allowance to enable the wife to prosecute her suit, as in cases of divorce."
*325 On February 3, 1890, Adelaide M. Harding filed her bill in the Circuit Court of the county of Cook against her husband, George F. Harding.
It was alleged that the parties were residents of the city of Chicago. In substance, in the bill and an amendment, it was charged that, without her fault and in consequence of the cruel treatment of her husband and of his adultery, the plaintiff had been obliged to live apart from him. It was prayed that the court decree that she was so living apart without her fault, that it would award her the custody of certain of the children of the marriage, and that the defendant be decreed to provide for the separate maintenance of the complainant and the support of the children. The answer and an amendment thereto admitted the marriage, the birth of the children and the residence in Chicago, denied the charges of cruelty and other misconduct, and averred that the complainant was living apart solely through her own fault, and that she had refused to return after repeated requests, which were reiterated in the answer.
We shall hereafter, as far as possible, refer to the parties to that litigation, who are the parties to this suit, as the wife and the husband, respectively.
The court, by an interlocutory order, fixed a sum to be paid by the husband for the fees of the solicitors of the wife, for the maintenance of the wife during the pendency of the cause, and for the support of the minor children.
The case was put at issue and much testimony was taken. With this testimony extant and nearly three years after the commencement of the suit, on January 3, 1893, a document was filed in the papers of the cause signed by the husband and by his solicitor. In substance the paper recited that at the time of the commencement of the suit the wife had in her hands a considerable amount of property and money belonging to the husband which was applicable to her maintenance, and that when this sum was expended the husband would feel it his duty to furnish further money to support the wife, *326 whatever might be the result of the cause. That the husband was confident of making a successful defense to the suit, but that it seemed to him it was best for the sake of peace and to avoid scandal to put an end to the litigation by consenting to a decree in favor of the wife for a separate maintenance, the paper further stating:
"Hence, I give my consent that a decree for separate maintenance shall be entered in favor of the plaintiff without finding or trial of the issue in this case. That this consent is not collusive is sufficiently shown by the length and character of the litigation. I further offer and stand ready to make such other or further or different stipulation by an amendment of the pleadings or otherwise, as may, in the opinion of your honor, be required to make it unnecessary for the court to hear and decide upon the issues in evidence in this case after a long and expensive hearing. To this end I declare my willingness to stipulate and I do hereby stipulate that the plaintiff, at the time of the commencement of this suit, was living and ever since has been living separate and apart from her husband without her fault, and may take a decree with my consent for such sum as may be reasonable and just for her separate maintenance. This is the same offer which I have made by way of an attempt at compromise ever since the commencement of this suit, in which effort at compromise I have not hesitated to offer double the amount that in my opinion should be allowed for her separate maintenance by the court."
The wife, on January 17, 1893, filed a counter statement. She in substance declared that she had no previous knowledge of the intention of her husband to file the paper which he had submitted to the court; that she had always been confident of the justice of her cause and of maintaining the same, and that the testimony then taken in the cause gave her great certainty of the establishment of her rights; that she had always been willing to adjust the amount to be allowed for her separate maintenance, provided there was a "finding and *327 decree of this court thereon that she was, at the time of the filing of the bill herein, living separate and apart from the defendant without fault on her part and has been so living ever since." The statement then referred to certain negotiations which had been pending between the husband and wife on the subject of the amount of separate maintenance to be allowed, enumerated previous offers made by the husband on this subject, which she had been unwilling to accept, because the husband had insisted on either the dismissal of her suit, a decree in his favor or an agreement which would not preclude him from suing for a divorce for desertion arising from her having separated from him. It was then stated, in substance, that, as interpreted by the wife, the paper filed by the husband waived the conditions which he had previously insisted upon and assented to a decree finding that the separation was without her fault, and she was willing for the sake of preventing further scandal, to accept the amount previously offered by the husband, although deeming the sum inadequate to her condition of life, "upon the decree finding that complainant was living separate and apart from defendant without fault on her part, being now promptly entered such as the said voluntary stipulation of the defendant justifies." No action appears to have been taken by the court upon these two papers except in so far as may be inferred from the statements which follow.
In May, 1893, the court entered an order referring the cause to a master to take further evidence as to the amount of alimony, etc., to be awarded, "and upon other issues herein than the question as to whether complainant at the time of the commencement of this suit was, and since that time has been and is, living separate and apart from her husband, the defendant, without her fault, said defendant having admitted upon the record herein, and now admitting in open court, that the complainant was living separate and apart from him without fault on her part."
Nearly three years after the matter had been thus referred *328 to the master the order of reference was amended nunc pro tunc, as of the date of the previous order, by substituting for the words "and now admitting in open court" the words "as by his written stipulation filed herein on January 3, 1893, and for the purpose of this trial only." A few months thereafter the master filed his report. Therein he stated his conclusions deduced from the evidence taken prior to 1894 on the subject of the right of the wife to her separate maintenance, and found as a matter of fact that her right was established by the proof. He also found that the wife was entitled to a stated sum for her separate maintenance and an additional sum for the support of the children. Exceptions were filed to the report, which were heard by the court, and a final decree was rendered on July 26, 1897. It was recited, among other things, in this decree that the court, "doth find that the said complainant, at the time of the commencement of this suit, was living, and ever since that time has lived, and is now living, separate and apart from her husband, the said defendant, without her fault, and that the equities of this cause are with the complainant." The decree awarded to the wife sums for her separate maintenance and for the support of the children up to the time of their becoming of age, and a further sum for the fees of the solicitors of the wife and other expenses of the litigation. The decree made no reference to the admission contained in the paper filed by the husband, nor was any statement made which limited the effect of the decree as a final adjudication of the rights of the parties. An exception, on behalf of the husband, was taken to each and every finding of the decree, and sixty days were allowed to prepare a certificate of evidence.
It would seem from the certificate of evidence, which was made several months afterwards, that on the settlement of the decree a controversy arose as to its terms, the wife requesting the court to state in the decree that all the charges made in the complaint and the amended complaint as to cruelty, adultery, etc., had been established by the proof; the *329 husband insisting, to the contrary, that the charges had not been proven, and further asserting that it was not necessary to so find because of his admission of record. The court said that it did not pass upon the question as to whether all the charges made in the complaint were true, because it regarded it as unnecessary "in view of the said paper of the defendant filed herein January 3, 1893."
The husband prosecuted an appeal to the Appellate Court of Illinois for the First District. But before this appeal was perfected, and on August 31, 1897, he commenced in the Superior Court of San Diego, California, this suit against his wife for divorce. The marriage in 1855 and the residence in Chicago were alleged, but it was averred that ever since May 15, 1895, the plaintiff had been a resident of the State of California. The sole ground alleged for granting the divorce was willful desertion by the wife in the month of February, 1890. The answer of the wife denied that the husband was a resident of California, and in a separate paragraph there was specially pleaded the proceedings and the decree of the Illinois court and the admission of the husband on the record therein as to the separation being without the fault of the wife, all of which it was asserted established by the thing adjudged that her living apart was justified and did not constitute desertion.
In the meanwhile, before the trial of the cause, the appeal prosecuted in the Illinois case by the husband was decided against him in the Appellate Court, and he took an appeal to the Supreme Court of Illinois, in which court the judgment was affirmed, with a modification as to the amount of the allowance for alimony, and the trial court changed the amount of its decree accordingly. The wife then by an amended answer again set up the decree in Illinois as amended as res judicata.
On the trial the wife introduced in evidence a certified copy of the record of the Illinois suit. The husband introduced, over the wife's objection and exception, a portion of the certificate of evidence, which had been prepared for the purpose *330 of the appeal from the final decree in Illinois as originally entered. The court made findings of fact to the effect that the parties had been married in Illinois, that the husband was a bona fide resident of California, and that on the first day of February, 1890, the wife had deserted her husband without just cause. As a conclusion of law it was deduced that the husband was entitled to a divorce, but that the court was without power in any way to limit or affect the decree for separate maintenance rendered by the Illinois court. After the refusal of a new trial the wife appealed to the Supreme Court of California, and that court affirmed the decree. 140 California, 690.
The question is, Did the Supreme Court of California fail to give due faith and credit to the decree for separate maintenance rendered in favor of the wife in Illinois, which was pleaded by the wife as res judicata.
It is suggested in argument that that question cannot be passed upon, as the wife, besides pleading and relying upon the Illinois decree, defended on the merits, and by so doing waived the benefits of the alleged estoppel arising from the Illinois decree. The want of merit in the contention is at once demonstrated by the statement that the Supreme Court of the State of California, in its opinion in the cause, treated the question of estoppel by the Illinois judgment as being open, and actually determined it.
The Supreme Court of California decided that the Illinois decree was not conclusive in California as to the question of desertion, for the following reasons: That decree, the court held, was a consent decree, and being of that character it was not a bar in the State of Illinois. As it was held that the Illinois decree was only entitled in California, under the due faith and credit clause, to the effect which it would have in Illinois, it was hence decided that the Illinois decree did not constitute an estoppel in the courts of California. But we are of opinion that the premise upon which the Supreme Court of California proceeded was a mistaken one and its conclusion *331 based thereon was erroneous, even if the correctness of the premise be conceded for the sake of the argument.
The conclusion of the Supreme Court of California, that the Illinois decree was solely based on the consent of the parties, and was consequently not the result of the action of the court, was based on the following: 1. The paper filed by the husband on January 3, 1893. 2. The recital in the amended order of reference that the admission that the wife was without fault had been made for the purpose of the trial only. 3. The statement of the trial judge, made in the certificate of evidence, that in view of the admission on the record he had not found it necessary to pass upon all the charges made in the complaint.
But the conclusion drawn by the court from these matters assumed that a decree for separate maintenance under the Illinois statute could have been a mere matter of consent, and did not require the ascertainment by the court of the facts made essential by the statute to justify such a decree. That this was a mistaken conception of the Illinois law has been clearly pointed out by the Supreme Court of that State. In Johnson v. Johnson, 125 Illinois, 510, an appeal from a decree for separate maintenance, the court said (p. 514):
"To maintain her bill, it was necessary for the complainant to show, not only that she had good cause for living separate and apart from her husband, but also that such living apart was without fault on her part. At common law, the husband was liable, in an action at law at the suit of any person furnishing to the wife necessaries suitable to her condition in life, if the wife was residing apart from him because of his willful and improper treatment of her, or by his consent. 2 Kent's Com. 146; Evans v. Fisher, 5 Gilman, 571. No right of action existed in the wife, courts of equity refusing to take cognizance at her suit, and enforce the legal obligation of the husband to maintain her. 2 Story, Eq. Jur. § 1422. The statute was passed to remedy this defect in the law, and gave the right to the wife to maintain her bill for separate maintenance, but *332 restricted the right to cases where the living separate and apart from the husband was without her fault. The `fault' here meant and contemplated is a voluntary consenting to the separation, or such failure of duty or misconduct on her part as `materially contributes to a disruption of the marital relation.' If she leave the husband voluntarily, or by consent, or if her misconduct has materially induced the course of action on the part of the husband upon which she relies as justifying the separation, it is not without her fault, within the meaning of the law. No encouragement can be given to the living apart of husband and wife. The law and good of society alike forbid it. But a wife who is not herself in fault is not bound to live and cohabit with her husband if his conduct is such as to directly endanger her life, person or health, nor where the husband pursues a persistent, unjustifiable, and wrongful course of conduct towards her, which will necessarily and inevitably render her life miserable, and living as his wife unendurable. Incompatibility of disposition, occasional ebullitions of passion, trivial difficulties, or slight moral obliquities, will not justify separation. If the husband voluntarily does that which compels the wife to leave him, or justifies her in so doing, the inference may be justly drawn that he intended to produce that result, on the familiar principle that sane men usually mean to produce those results which naturally and legitimately flow from their actions. And if he so intended, her leaving him would, in the case put, be desertion on his part, and not by the wife."
In the second place, even if the rule of public policy enunciated by the Supreme Court of Illinois be put out of view, the assumption that the Illinois decree was a consent decree, merely registering an agreement of the parties, disregards the form of that decree, and cannot be indulged in without failing to give effect to the very face of the decree, which adjudged that the separation of the wife from the husband was without her fault. This was an express finding by the court, and one which the law required to be judicially made.
*333 In the third place, if it be conceded that the express terms of the decree could be overcome by considering matters contained in the record, but outside of the decree, the conclusion drawn by the Supreme Court of California from the consideration of such matters was, we think, a mistaken one. As we have said in stating the facts, after the bringing of the suit for separate maintenance, in which charges of the gravest character were made against the husband as to cruelty, adultery, etc., much testimony had been taken with regard to the charges. And it was in this state of the case that the ex parte stipulation of the husband was filed, in which he admitted that the wife was living separate and apart from him without her fault. The declaration in the statement that it was not collusively made eliminates the conception that the admission was made regardless of its truth and independently of the facts shown by the testimony which had theretofore been taken in the cause. When it is observed that shortly following the filing of this paper the statement of the wife was filed accepting her husband's admission as conceding that the proof established that the separation was not caused by her fault, and stating that she had refused the solicitation of the husband to discontinue the cause and accept an allowance to be made by him for her separate maintenance upon an agreement that so doing should not prejudice him if he sued for a divorce on the ground of desertion, it becomes impossible to hold that the decree was a mere registering of an agreement between the parties, and not the judicial action of the court. Certainly, when the papers filed by the husband and wife are considered, there is no room for the contention that a judicial finding was not made. True, the paper filed by the husband expressed his desire to avoid such a finding, but, instead of consenting to his proposition, the paper filed by the wife insisted that she was entitled to the finding, that she had always refused to waive it, and that she demanded it. The court obviously considered that the wife was entitled to the right which she thus claimed, since it made the very finding upon which the wife insisted, and which the *334 paper filed by the husband sought to avoid, and the conduct of the husband, in excepting to the finding as made by the court, demonstrates that he regarded it as a judicial determination of the issue of absence of fault on the part of the wife. And the modified order of reference gives rise but to the inference that in view of the admission of the husband it was not deemed necessary, for the purpose of the trial, to take further testimony in respect to the conceded fact, or for the master to report in detail concerning the evidence as to the misconduct of the husband which led to the separation. This also explains the statement of the judge, made in the certificate of evidence, as to the controversy regarding the terms of the decree, and his refusal to find that all the charges made in the bill had been proven. This view of the matters relied upon by the California court was the one expressly adopted by both the Appellate Court and by the Supreme Court of Illinois in deciding the appeal taken by the husband. On that appeal, as we have said, he complained of the action of the court, including the finding that the wife was living separate without fault on her part. 79 Ill. App. 590; 180 Illinois, 481.
Both of the Illinois courts, in considering the objection that the trial court was without power to make a finding concerning the absence of fault on the part of the wife because of the consent manifested by the paper filed by the husband, treated that paper not as a mere consent to a decree in relation to that subject, but as an admission concerning the state of the proof in the record, which, whilst it rendered it unnecessary for the court to analyze the proof, did not deprive it of the power to make a judicial finding of the fact. It is to be observed also that both courts held that on the issue as to the custody of the minor children and the sum to be allowed for separate maintenance, the inquiry into the conduct of the husband was relevant and required an analysis of the testimony, an analysis which embraced necessarily those elements of proof which entered into the question of the causes of the separation.
But if it be considered that in any aspect the decree under *335 review was a consent decree, we are of opinion that the cases relied upon by the Supreme Court of California, Wadhams v. Gay, 73 Illinois, 417; Farwell v. Great Western Tel. Co., 161 Illinois, 522, are not authoritative upon the proposition that such decree would not in the courts of Illinois have the effect of res judicata. The first of the cases considered by this court in Gay v. Parpart, 106 U.S. 689 et seq. dealt merely with the right of a court of equity to refuse to lend its aid to enforce an incomplete and ineffective decree in partition proceedings, because to do so would be inequitable. In the second of the cases it was but decided that a fraudulent decree might be set aside in a court of equity.
The general rule in Illinois undoubtedly is that a consent decree has the same force and effect as a decree in invitum. Knobloch v. Mueller, 123 Illinois, 554; O'Connell v. Chicago Terminal R.R., 184 Illinois, 308, 325. Thus, in Knobloch v. Mueller, the court said (123 Illinois, 565):
"Decrees of courts of chancery, in respect of matters within their jurisdiction, are as binding and conclusive upon the parties and their privies as are judgments at law; and a decree by consent in an amicable suit, has been held to have an additional claim to be considered final. Alleson v. Stark, 9 Adol. & E. 255. Decrees so entered by consent cannot be reversed, set aside, or impeached by bill of review or bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not, in fact, given, or something was inserted as by consent that was not consented to. 2 Daniell, Ch. Pr. 1576; Webb v. Webb, 3 Swanst. 658; Thompson v. Maxwell, 95 U.S. 391; Armstrong v. Cooper, 11 Illinois, 540; Cronk v. Traubbe, 66 Illinois, 432; Haas v. Chicago Building Society, 80 Illinois, 248; Atkinson v. Mauks, 1 Cow. 693; Winchester v. Winchester, 121 Massachusetts, 127; Alleson v. Stark, 9 Adol. & E. 225; Earl of Hopetoun v. Ramsay, 5 Bell's App. Cas. 69. See also, note to Duchess of Kingston's Case, 2 Smith Lead. Cas. [*]826 et seq. It is the general doctrine that such a decree is not reversible upon an appeal or writ of *336 error, or by bill of review for error. Armstrong v. Cooper, 11 Illinois, 540."
And the assertion that the particular matters relied upon in this cause are of such a character as to take this case out of the rule just stated, is conclusively shown to be without merit by the decision of the Appellate Court and the Supreme Court of Illinois, affirming the decree of separation and the finding therein made.
In the argument at bar there is a ground taken which was not referred to in the opinion of the Supreme Court of California, which it is insisted shows that that court was right in its decision, although the reasoning of its opinion may be conceded to have been erroneous. That ground is this. In Illinois it is contended it has been settled that a decree in a suit for separate maintenance is not res judicata in a suit for divorce on the ground of desertion, and vice versa, therefore the Illinois decree should not have been given in California any greater effect. Two cases are relied upon. Wahle v. Wahle, 71 Illinois, 510, and Umlauf v. Umlauf, 117 Illinois, 580. But these cases do not sustain the proposition based on them. In the Wahle case the husband had sued his wife for divorce on the ground of abandonment, and she, in addition to answering, had filed a cross bill charging the husband with cruelty and adultery, and praying for separate maintenance. The principal cause was first heard and decided adversely to the husband. Subsequently the cross bill was heard and a decree of dismissal was rendered. This was alleged to be error, on the ground that the verdict of the jury on the issue of divorce, in favor of the wife, was a judicial determination, establishing the facts alleged in her cross bill, and justifying her in living apart from her husband. But the Supreme Court of Illinois held that as the verdict of the jury in the divorce suit was general, and did not indicate upon what particular finding it was based, the court could not know upon what fact the jury were induced to find as they did, and that in consequence the bill did not necessarily establish that the separation of the *337 parties was without fault on the part of the wife, since the verdict might have proceeded upon either of the following grounds: 1, that the abandonment was for less than two years; 2, that it was by mutual consent; or, 3, that it was induced by the acts of the husband, whatever might have been the fault of the wife.
In Umlauf v. Umlauf, the wife filed a bill for separate maintenance but failing to establish her right the bill was dismissed. Subsequently the husband filed a bill for divorce, charging willful desertion by the wife from the date of the filing of her bill against him for separate maintenance. Upon the hearing of the divorce case the court admitted in evidence against the objection of the wife the pleadings and the decree against her in the suit for separate maintenance, and also excluded all evidence on her part tending to disprove the charge of desertion. From a judgment granting the divorce the wife appealed. The Supreme Court of Illinois prefaced its consideration of the question with the following statement (p. 584):
"No principle is better settled than that where a question, proper for judicial determination is directly put in issue, and finally determined in a legal proceeding by a court having competent authority and jurisdiction to hear and determine the same, such decision and determination of the question will be deemed final and conclusive upon the parties and their privies in all future litigation between them in which the same question arises, so long as the judgment remains unreversed or is not otherwise set aside."
But the court held that these elementary principles did not apply, because the decree against the wife in the separate maintenance suit was general and might have been entered solely upon the ground that the wife was not without fault, leaving undecided the question whether the husband was in any way at fault, and, therefore, there was not identity, and resulting res judicata.
The inappositeness of these cases to the present one becomes *338 obvious when it is recalled that in this case there was a decree not against but in favor of the wife in the maintenance suit, which decree necessarily conclusively settled that the separation was for cause and was without fault on the part of the wife, and therefore was not a willful desertion of the husband by the wife, which is the precise issue in the divorce case now here.
In the brief of counsel it is stated that under the law of California, if a wife is living apart from her husband under circumstances which do not constitute desertion, yet such living apart may become desertion if the husband in good faith invites the wife to return and she does not do so. In this connection reference is made to certain requests proffered by the husband for the wife to return, which it is urged caused the separation to become desertion under the California law. But conceding, without deciding, that the California law is as asserted, the proposition of fact upon which the argument rests amounts simply to denying all effect to the Illinois decree. This follows, because all the requests to return referred to were made in Illinois before the entry of the final decree in the suit for separate maintenance, were referred to in the answer in that case, and were adversely concluded by the judgment which was rendered. Johnson v. Johnson, 125 Illinois, 510.
Having thus disposed of all the contentions based upon the assumed consent under the decree for separate maintenance or the asserted limitations to such a decree, based upon the law of Illinois, we are brought to consider the final question which is, Was the decree in favor of the wife for separate maintenance entered in the Illinois case conclusive upon the husband in the courts of California of the issue of willful desertion? That the issue of willful desertion present in the divorce action was identical with the issue of absence without fault presented in the Illinois maintenance suit, is manifest. The separation asserted by the wife in her bill for separate maintenance to have been without her fault was averred to have taken place on February 1, 1890, and such separation *339 was stated by the husband in his answer to the bill to have been an abandonment and desertion of him. The willful desertion charged in the complaint in this action for divorce was averred to have been committed "on or about the month of February, 1890, and to have been continuous thereafter." And the identity between the two is further demonstrated by the circumstance that the evidence taken in the Illinois case bearing upon the cause for the separation was used upon the trial in this case. The question in each suit, therefore, was whether the one separation and living apart was by reason of the fault of the wife. From the standpoint of a decree in favor of the wife in the suit for separate maintenance the issues raised and determined were absolutely identical.
The controversy before us is, in some respects, like that which was considered in Barber v. Barber, 21 How. 582. There a bill was filed in a Federal court in Wisconsin to enforce judgment for alimony under a decree of separation a mensa et thoro, rendered against a husband in New York. It was shown by the evidence that to avoid the payment of the alimony the husband had left the State of New York, the matrimonial domicil, and taken up his residence in the State of Wisconsin, where he obtained a decree of divorce on the ground of desertion by the wife. Whilst this court refrained from expressing an opinion as to the legality of the Wisconsin decree of divorce obtained under these circumstances, it enforced the New York judgment for alimony, and held it to be binding. And that it was considered that the judgment in New York legalizing the separation precluded the possibility that the same separation could constitute willful desertion of the wife by the husband, plainly appears from the following excerpt from the opinion italics mine (p. 588):
"It also appears, from the record, that the defendant had made his application to the court in Wisconsin for a divorce a vinculo from Mrs. Barber, without having disclosed to that court any of the circumstances of the divorce case in New York; and that, contrary to the truth, verified by that record, he *340 asks for the divorce on account of his wife having willfully abandoned him."
So also the courts of Massachusetts have held the fact to be that a separation legalized by judicial decree was a conclusive determination that the same separation was not willful desertion. Thus in Miller v. Miller, 150 Massachusetts, 111, explicitly approved in Watts v. Watts, 160 Massachusetts, 464, after holding that an adjudication of a probate court that a wife is living apart from her husband for justifiable cause, was a bar to an action by the husband for divorce on the ground of utter desertion, the court, speaking of the decree of the probate court, said:
"The fact determined by it is inconsistent with the necessary allegation in the libel, that the libellee previously had utterly deserted the libellant, and was then continuing such desertion. Utter desertion, which is recognized by the statute as a cause for divorce, is a marital wrong. Because the deserter is a wrongdoer, the law gives the deserted party a right to a divorce. If a wife leaves her husband for a justifiable cause, it is not utter desertion within the meaning of the statute, and a wife who has utterly deserted her husband, and is living apart from him in continuance of such desertion cannot be found to be so living for justifiable cause. Pidge v. Pidge, 3 Metc. 257, 261; Fera v. Fera, 98 Massachusetts, 155; Lyster v. Lyster, 111 Massachusetts, 327.
"The court should have ruled as requested by the libellee, that the decree of the probate court was a bar to the maintenance of this libel. Exceptions sustained."
We are of opinion that the final decree of July 26, 1897, entered in the Circuit Court of Cook County, Illinois, in legal effect established that the separation then existing and which began contemporaneously with the filing of the bill in that cause in February, 1890, was lawful, and therefore conclusively operated to prevent the same separation from constituting a willful desertion by the wife of the husband. From these conclusions it necessarily follows that the issue presented in *341 this action for divorce was identical with that decided in the suit in Illinois for separate maintenance. This being the case it follows that the Supreme Court of California in affirming the judgment of divorce failed to give to the decree of the Illinois court the due faith and credit to which it was entitled, and thereby violated the Constitution of the United States.
The judgment of the Supreme Court of California must therefore be reversed, and the cause be remanded for further proceedings not inconsistent with this opinion.
And it is so ordered.
MR. JUSTICE BROWN concurs in the result.
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Cite as 2014 Ark. App. 130
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-767
GLEN DAVID WILSON Opinion Delivered February 19, 2014
APPELLANT APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. CV-11-2807]
ARKANSAS STATE HIGHWAY HONORABLE CRISTI BEAUMONT,
COMMISSION JUDGE
APPELLEE AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Glen Wilson appeals from a jury verdict awarding him $18,650 in an
eminent-domain proceeding brought by the appellee, the Arkansas State Highway
Commission (“the Commission”). We affirm.
The Commission filed an eminent-domain action against Wilson in order to acquire
two tracts of land—Tract No. 2 and Tract No. 6—in connection with construction on
North Garland Avenue in Fayetteville. The Commission also sought a temporary
construction easement on Tract No. 2E1. The Commission filed a Declaration of Taking and
deposited a total of $27,8501 into the registry of the Washington County Circuit Court.
Wilson and the Commission came to a partial settlement, agreeing on the amount of
1
This figure represented a calculation of just compensation of $9,200 for Tracts No.
2 and 2E1 and $18,650 for Tract No. 6.
Cite as 2014 Ark. App. 130
compensation for Tracts No. 2 and 2E1. They were unable to resolve the issue of just
compensation as to Tract No. 6, which proceeded to a jury trial. The jury returned a verdict
fixing just compensation at $18,650, from which a judgment was entered on May 14, 2013.
On June 10, 2013, Wilson filed a motion for new trial. He then filed his notice of
appeal on June 13, 2013, specifically stating that he was appealing from the judgment filed
on May 14, 2013. The circuit court entered an order on June 18, 2013, denying Wilson’s
motion for new trial. Wilson never filed an amended notice of appeal from this order.
In his first argument to this court, Wilson challenges the circuit court’s refusal to strike
testimony from one of the Commission’s witnesses. Two real-estate appraisers testified at trial
about the just compensation for Tract No. 6 after the taking. Wilson’s real-estate appraiser,
Glen Carlson, estimated the property to be worth $85,000 before the taking and $32,850
after the taking. Carlson therefore concluded that just compensation for Tract No. 6 would
be the difference between those two figures, or $52,150. The Commission’s real-estate
appraiser, Chess Bartlett, testified that the property’s value prior to the taking was $103,350
and that, after the taking, it would be valued at $84,700; therefore, the Commission’s
estimation of the just compensation was $18,650. This testimony, which was received
without objection, was based upon a proximity study.
Wilson contends on appeal that he was “unfairly taken by surprise at the trial when
the Highway Department’s appraiser’s testimony relied on a proximity study not furnished
to Wilson,” and he therefore contends that the trial court erred in denying his motion to
strike Bartlett’s testimony and report. Wilson’s argument of unfair surprise, however, is not
2
Cite as 2014 Ark. App. 130
preserved for our review. As Wilson concedes, there is a “long-standing principle that both
an objection and a request for a continuance are prerequisites to appellate review of a claim
of surprise in civil cases.” Jones Rigging & Heavy Hauling, Inc. v. Parker, 347 Ark. 628, 66
S.W.3d 599 (2002) (citing Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980); Ark.
Power & Light Co. v. Jennings, 258 Ark. 908, 529 S.W.2d 866 (1975); Nat’l Cash Register Co.
v. Holt, 193 Ark. 617, 101 S.W.2d 441 (1937)). See also Thorne v. Magness, 34 Ark. App. 39,
805 S.W.2d 95 (1991) (affirming trial court’s denial of a new trial where the appellant failed
to request a continuance and also failed to object to the testimony he claimed was a surprise).
Wilson failed to make a timely objection of the testimony in question. It was only
after the conclusion of Bartlett’s direct examination that Wilson contended that Bartlett’s
testimony and the proximity study were different from the appraisal report that had been
prepared for the property and requested that Bartlett’s testimony be stricken from the record.
Moreover, Wilson never sought a continuance to examine the documents that were allegedly
unbeknownst to him. Having failed to satisfy the prerequisites established by the supreme
court in Jones Rigging, supra, Wilson is precluded from raising his unfair-surprise argument for
the first time on appeal.
In his second point on appeal, Wilson argues that the circuit court erred in denying
his motion for new trial. We are unable to address this issue either. Rule 4(b)(1) of the
Arkansas Rules of Appellate Procedure–Civil provides that, upon timely filing in the circuit
court of a motion for new trial under Rule 59(a), “the time for filing a notice of appeal shall
be extended for all parties. The notice of appeal shall be filed within thirty (30) days from
3
Cite as 2014 Ark. App. 130
entry of the order disposing of the last motion outstanding.” Rule 4(b)(2) declares the
following:
A notice of appeal filed before disposition of any of the motions listed in
paragraph (1) of this subdivision shall be treated as filed on the day after the entry of
an order disposing of the last motion outstanding or the day after the motion is
deemed denied by operation of law. Such a notice is effective to appeal the
underlying judgment, decree, or order. A party who also seeks to appeal from the
grant or denial of the motion shall within thirty (30) days amend the previously filed
notice, complying with Rule 3(e). No additional fees will be required for filing an
amended notice of appeal.
In Edwards v Edwards, 2010 Ark. App. 227, this court declined to address the circuit
court’s denial of the appellant’s motion for new trial where appellant failed to file an
amended notice of appeal that encompassed that denial: “We are without jurisdiction to
address this issue. Appellant’s notice of appeal, filed after the decree but before disposition
of the new-trial motion, was effective only to appeal the decree; the record fails to show that
appellant ever filed a new or amended notice of appeal after the new-trial motion was
deemed denied.” Id. at 3–4 (citing Ark. R. App. P.–Civ. 4(b)(2)); see also Troutman Oil Co.
v. Lone, 75 Ark. App. 346, 355, 57 S.W.3d 240, 246 (2001) (refusing to consider issues raised
in motion for new trial where appellant failed to file amended notice of appeal from order
denying the motion).
As noted above, Wilson’s notice of appeal was filed on June 13, 2013, which was
timely and effective to appeal the May 14, 2013 judgment. The circuit court denied his new-
trial motion in an order entered on June 18, 2013. Wilson, however, never filed an amended
notice of appeal from this order. We are therefore precluded from addressing any of his
arguments pertaining to the denial of his motion for new trial.
4
Cite as 2014 Ark. App. 130
Affirmed.
HARRISON and WOOD, JJ., agree.
Raymond C. Smith, for appellant.
Michelle Davenport, Arkansas Highway and Transportation Department, for appellee.
5
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3 F.Supp.2d 66 (1998)
DATATREND, INC., Plaintiff,
v.
JABIL CIRCUIT, INC., Defendant.
Civil Action No. 95-11764-DPW.
United States District Court, D. Massachusetts.
January 14, 1998.
Joshua C. Krumholz, Sherburne, Powers & Needham, Boston, MA, for Plaintiff and Counter-Defendant.
Charles D. Bavol, Bavol & Associates, P.A., Tampa, FL, for Defendant.
Joseph P. Messina, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, MA, for Defendant and Counter-Claimant.
Audrey B. Rauchway, Bavol & Associates, P.A., Tampa, FL, for Defendant.
*67 Henry A. Sullivan, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, MA, for Defendant and Counter-Claimant.
Christopher J. Trombetta, Sherburne, Powers & Needham, Boston, MA, for Plaintiff and Counter-Defendant.
ORDER OF ADOPTION
WOODLOCK, District Judge.
The recommendations contained herein are ADOPTED AS ORDERED of this court, there being no opposition and the report's analysis appearing well founded.
REPORT AND RECOMMENDATION REGARDING (1) DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET NO. 34) AND (2) PLAINTIFF'S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET NO. 57)
KAROL, United States Magistrate Judge.
This is a case study of the perils that await business persons who enter into substantial commercial transactions on the basis of hastily-prepared contracts.
In January 1995, plaintiff, Datatrend, Inc. ("Datatrend"), agreed to purchase 4,790 surplus notebook computers from defendant, Jabil Circuit, Inc. ("Jabil"), for the total sum of approximately $6,000,000. By April 1995, Jabil had shipped to Datatrend approximately half of those computers, and it had become clear that some (the exact number is disputed) were defective in a variety of ways. On April 24, 1995, both parties signed a memorandum that addressed various aspects of the problem and further defined the parties' rights and duties, but, shortly after the signing, a new problem with the computers emerged. By the end of June 1995, for reasons that are disputed, approximately half of the computers still had not been shipped, and Datatrend had not paid for several hundred that had been shipped following the execution of the April 24, 1995 memorandum. At that time, Datatrend purported to terminate the contract on two grounds: late delivery and poor quality. It then commenced this action against Jabil for breach of contract, breach of warranty, fraud, and violation of Mass.Gen.Laws ch. 93A. In due course, Jabil filed an answer that raised accord and satisfaction as an affirmative defense and asserted counterclaims against Datatrend for, inter alia, breach of contract. Although the January 20, 1995 contract and the April 24, 1995 memorandum are perhaps best described as black holes of ambiguity, both internally and in relationship to one another, both parties now contend in cross motions for partial summary judgment that they are crystal clear and dispositive (in their respective favor, of course) of all of Datatrend's contract and warranty claims. In this respect, both parties are clearly mistaken. Jabil also seeks summary judgment on Datatrend's claim under Mass.Gen.Laws ch. 93A on the ground that the conduct about which Datatrend complains did not occur "primarily and substantially" in Massachusetts. This is a much closer question. For reasons stated below, however, I recommend that Jabil's motion for partial summary judgment on this claim also be denied.
I. FACTS
The statements filed by the parties pursuant to Local Rule 56.1 disclose that the following material facts are not genuinely in dispute:
1. Sometime in 1994, Jabil, in Florida, manufactured several thousand notebook computers for Epson America, Inc. ("Epson");
2. Epson, after accepting shipment of some of the Jabil-manufactured computers, expressed dissatisfaction with the quality of the computers and refused to accept shipment of the remaining 4,790 units;
3. In January 1995 a broker called Datatrend in Massachusetts and advised its president, Mark A. Hanson ("Hanson"), of the availability of those computers;
4. Hanson spoke by telephone with Jabil's project manager in Florida, Mark Mondello ("Mondello"), and arranged for Mondello to send to him in Massachusetts a sample computer for his inspection and testing;
5. On January 14, 1995, Hanson received in Massachusetts the sample computer that *68 Mondello had shipped from Florida and, by facsimile to Mondello that same day, asked to meet with Mondello in Florida on January 16th to discuss the possible purchase of those computers by Datatrend; this would give Hanson and his staff two days to inspect and test the sample computer;
6. At a meeting between Hanson and Mondello in Florida on January 16, 1995, Mondello told Hanson that Epson had complained about cracking of the computer's plastic case and that Jabil had corrected the problem;
7. Following the meeting, Hanson returned to Massachusetts and Mondello remained in Florida;
8. On January 20, 1995, Hanson, in Massachusetts, and Mondello, in Florida, each signed a counterpart copy of a two-page agreement (plus exhibits) (hereinafter "January 20 agreement") pursuant to which Datatrend agreed to purchase all 4,970 notebook computers for a total price of $5,937,975;
9. The January 20 agreement, a copy of which, without exhibits, is attached as Appendix A, included: a provision that, subject to a limited grace period, required Datatrend to pay cash for each installment of computers within forty-eight hours of being notified by Jabil that such installment was ready to ship; a provision that gave Datatrend the right to cancel the contract if all computers were not delivered by May 1, 1995; and a section entitled "Warranty" that provided, in pertinent part:
Notebooks Designated by [Datatrend] ... that are Determined to be Dead on Arrival May Be Returned to Jabil for repair or replacement, within 30 days after shipment to [Datatrend].
* * * * * *
Free from any inherent defects and cosmetic flaws.
Catastrophic Failure In the event that [Datatrend] experiences more then a fifteen percent "catastrophic" field failure rate, within 90 days after delivery to [Datatrend], [Datatrend] will have the option of: Returning the failed product to Jabil for a cash refund, or Returning the failed product to Jabil for repair/replacement. Upon repair of the returned product, Datatrend will repurchase all product from Jabil for "fair market" value. Jabil has the option of declining Datatrend's repurchase offer and selling the repaired notebook product to another source.
NOTE: A "catastrophic" failure is defined as a latent defect or design flaw inherent in all of the notebook product supplied to Datatrend by Jabil under this agreement, which has caused the "failed" notebooks to become inoperable;
10. In addition to any other ambiguities, the Warranty clause does not state whether the foregoing express warranties are exclusive of all other warranties, express or implied, and it does not say whether the foregoing remedies are exclusive of all other remedies;
11. By internal e-mail dated January 27, 1995, Jabil's "resident plastics expert" told Mondello that the notebooks were not "shippable" due to the possible cracking of certain bezels and the possible failure of certain snaps; Jabil did not disclose this information to Datatrend;
12. By early February 1995, Jabil began shipping computers from its facilities in Florida to Datatrend's facilities in Massachusetts, and Datatrend, in turn, began reselling those computers to its customers;
13. Datatrend soon began receiving complaints from customers concerning a wide variety of electrical and mechanical problems (but apparently not about cracked cases, cracked bezels, or failed snaps). Although the precise extent and nature of the problems is subject to acrimonious dispute (including supportable allegations by Jabil that Datatrend itself deliberately sabotaged some of the product in order to induce Jabil to make contract concessions), the fact that some of the computers were materially defective is not;
14. During February and March 1995, Datatrend, from its facilities in Massachusetts, sent e-mails to and had telephone conversations with Jabil in Florida in which Datatrend expressed concern about what it considered to be an inordinate number of complaints and returns it was receiving from *69 customers. Datatrend also returned a number of those computers to Jabil for repair;
15. In early April 1995, Jabil sent a team of engineers from its facilities in Florida to Datatrend's facilities in Massachusetts to investigate and discuss the problems that were the subject of Datatrend's customers' complaints;
16. On April 24, 1995, Mondello sent Hanson a one-page memorandum (plus exhibits), the stated "Subject" of which was the "Reset to Jabil/Datatrend Agreement: Dated 1/20/95." Hanson countersigned the memorandum the same date, thereby agreeing to what the memorandum (which, consistent with the parties' nomenclature, shall be referred to as the "reset agreement") characterized as certain "amendments/comments" to the "original business agreement signed on 1/20/95;"
17. The reset agreement, a copy of which, without exhibits, is attached as Appendix B and which, according to Jabil, constitutes an accord and satisfaction entirely discharging Jabil from all contract and warranty claims presently asserted against it by Datatrend, includes an accounting of all shipments, returns, and payments through the date of execution; incorporates a new shipping schedule for the remaining computers, which schedule calls for shipments extending through the end of May 1995; affirms Jabil's agreement to "support Datatrend with all RMAs [i.e., Return Material Authorizations] throughout the buildout of the notebooks;" gives price concessions on future shipments to Datatrend in the total amount of approximately $500,000 (of which $140,000 "relates to units sold by Datatrend as of 3/31/95"); and provides for the reimbursement by Jabil of up to $50,000 of expenses to be incurred by Datatrend for "back end technical field support" to be provided by an "independent company ... when required;"
18. In addition to any other ambiguities, the reset agreement does not expressly state what the relationship is between these new remedies and the remedies set forth in the January 20 agreement, and, more importantly, whether the new remedies are in lieu of some or all claims for damages that Datatrend might have for past or future breaches (assuming the January 20 agreement did not already preclude all such claims);
19. By the first week of May 1995, Datatrend was complaining to Jabil about Jabil's failure to resume shipments in accordance with the revised shipping schedule that had been incorporated into the reset agreement and about Jabil's failure to acknowledge Datatrend's requests for shipping information;
20. Sometime in May 1995, Jabil advised Datatrend for the first time that it had recently discovered a reoccurrence of the problem that had resulted in the cancellation of the contract by Epson in 1994, i.e., the cracking of the plastic hinge that secured the top of the computer case to the bottom. Jabil assured Datatrend, however, that it had now indeed discovered and corrected the true cause of the problem (leaking hinge oil which caused the plastic hinge to become brittle) in all computers in its inventory and that it was willing to support a full recall of all computers that Datatrend had already shipped to its customers, so that those computers could be fixed before they, too, developed cracking problems;
21. Datatrend declined Jabil's recall offer, stating that it preferred to handle its customers' hinge-cracking problems on an individual RMA basis, if and when they occurred;
22. Jabil resumed shipment of computers to Datatrend in the second week of May 1995. By the end of that week, it had shipped to Datatrend approximately 781 computers, consisting of 313 reconditioned computers that Datatrend had previously returned to Jabil for various types of repairs and an additional 468 computers that had never previously been shipped to Datatrend. Jabil claims that all such computers were equipped with new plastic and hinges that had not been exposed to the hinge oil that was believed to be responsible for the cracking;
23. Datatrend accepted these 781 computers; it had previously paid for the 313 computers that it had returned for repairs to *70 Jabil, but, to this day, it has not paid for the 468 additional computers;[1]
24. In an e-mail message dated May 16, 1995, from Mondello to Hanson, Jabil (a) complained about Datatrend's failure to make payment in accordance with the terms of the January 20 agreement, (b) offered to extend short term credit to Datatrend in an amount not to exceed $500,000, and (c) raised the possibility that it would ship no additional computers "until this [payment] issue is resolved;"
25. Jabil shipped no additional computers to Datatrend;[2]
26. By letter dated June 26, 1995, Datatrend purported to terminate the contract on the ground that Jabil had failed to ship product in accordance with the original schedule set forth in the January 20 agreement; it also alluded to Jabil's failure to supply product that was "free from inherent defects ... necessitating the return of many units and further delays and disruption."
Other facts, disputed or otherwise, will be discussed in the context of the specific claim or defense to which they relate.
II. SUMMARY JUDGMENT STANDARD
The standard for summary judgment is familiar. Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). At the outset, the moving party must aver that there is an absence of evidence to support the non-moving party's position. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). To avoid summary judgment, the opposing party must produce affirmative evidence demonstrating a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). "[T]he nonmovant may not rest upon mere allegations, but must adduce specific provable facts demonstrating that there is a triable issue." Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989). In reviewing the nonmovant's case, "the court must look at the record in the light most favorable to the party opposing the motion and must indulge all inferences favorable to that party," Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir.1983); see Mack v. Great Atlantic & Pacific Tea Co., Inc., 871 F.2d 179, 181 (1st Cir.1989), subject, nevertheless, to the caveat that the court "must disregard improbable or overly attenuated inferences, unsupported conclusions, and rank speculation." Abbott v. Bragdon, 107 F.3d 934, 938 (1st Cir.1997). Where, as here, the parties have filed cross motions for summary judgment, the two motions must be considered independently, with all inferences drawn in favor of plaintiff with respect to defendant's motion and in favor of defendant with respect to plaintiff's motion.
III. DISCUSSION
For discussion purposes, it is convenient to distinguish between two types of issues: those related to contract and warranty claims (including Counts I-III of Datatrend's Third Amended Complaint, Docket No. 44, and Jabil's affirmative defense of accord and satisfaction) and those related to Datatrend's claim under Mass.Gen.Laws ch. 93A (Count IV of Datatrend's Third Amended Complaint).
A. Contract and Warranty Claims
(1) Statement of the Issue
Before a court can begin to address the merits of any motion for summary judgment, it must first understand the legal theories that underlie the claims that are the subject of the motion and the specific form of judgment or other relief that the moving party is seeking. Acquiring such understanding is usually not difficult, but, unfortunately, it is a formidable task here.
*71 The exercise begins uneventfully. Both parties seek summary judgment on Counts I-III of Datatrend's Third Amended Complaint, which expressly purport to set forth claims, respectively, for declaratory judgment (that Jabil broke the contract in various respects), breach of contract, and breach of warranty. Jabil's position is straightforward (though, for reasons stated below, incorrect) and easily analyzed under traditional summary judgment principles. It claims that judgment should enter in its favor on all three counts because the reset agreement constituted an accord and satisfaction which discharged all its contract and warranty obligations to Datatrend. Datatrend's motion is far more difficult to understand, in large part because the legal theories underlying most of Counts I-III are so ill-defined.
Count I first sets forth a request for a declaration that Datatrend's "termination of the parties' agreement was justified." (Third Amended Complaint and Jury Demand ¶ 16, attached as Exhibit C to Motion to Amend Complaint for the Third Time, Docket No. 44.) This request is presumably based on the legal theory that, as a matter of substantive law, a buyer has a right to terminate an executory contract when the seller is late delivering goods or the goods, or some portion of them, are non-conforming. Like Jabil's motion for summary judgment on the ground of accord and satisfaction, Datatrend's motion, to this extent, is capable of being analyzed under traditional summary judgment principles. Count I does not end there, however. It goes on to request a further declaration that "under the agreement Datatrend is entitled to a $140,000 credit for defective merchandise purchased prior to March 31, 1995, entitled to a $50,000 credit for back [end] technical support for which Jabil refused to reimburse Datatrend, and obligated to pay only for non-defective product that it received before the date of termination, less a setoff in the amount of Datatrend's damages resulting from Jabil's breaches of contract, breaches of warranties, and violations of Mass.Gen.Laws ch. 93A." (Id.) The legal theories that underlie these further requests are not at all clear.
Presumably, Datatrend's request for a declaration that it is entitled to "a $140,000 credit for defective merchandise purchased prior to March 31, 1995" and "a $50,000 credit for back [end] technical support" is based on the reset agreement. (Id.) Datatrend purported to terminate that agreement, however, and, indeed, it seeks a declaration that such termination was proper. Datatrend does not address in its summary judgment papers the question of whether it may continue to demand credits under an agreement that it purported to terminate. Further, it is not at all clear from the reset agreement that the $140,000 credit was to have been for "defective merchandise purchased prior to March 31, 1995," (id.), as sought by Datatrend, unless we are to assume that such credit is the equivalent of a credit against "units sold by Datatrend as of 3/31/95," (Reset Agreement, Appendix B), and not yet shipped by Jabil. Equally unclear is the basis upon which Datatrend believes it is entitled to the $50,000 back end support credit, since Datatrend does not even attempt to demonstrate in its summary judgment papers that it hired an independent firm to provide back end technical field support; that such firm billed it for $50,000 (or any other amount); that it sought reimbursement from Jabil; or that Jabil "refused to reimburse Datatrend." (Third Amended Complaint and Jury Demand ¶ 16, attached as Exhibit C to Motion to Amend Complaint for the Third Time, Docket No. 44.) Datatrend's memorandum in support of its cross motion for partial summary judgment (Docket No. 58) sheds no light on Datatrend's position with respect to either credit; indeed, with minor exceptions, it is silent with respect to Datatrend's request for declaratory relief.[3]
Datatrend's request for a declaration that it is "obligated to pay only for non-defective product that it received before the date of *72 termination" is equally opaque. (Third Amended Complaint and Jury Demand ¶ 16, attached as Exhibit C to Motion to Amend Complaint for the Third Time, Docket No. 44.) Datatrend makes no effort to reconcile this request with the undisputed fact that Jabil apparently repaired and reshipped to Datatrend a significant portion of the defective product; that some of the defective product which was accepted by Datatrend and not returned to Jabil for repair (assuming there was any) presumably had some value, even if less than the full amount that non-defective product would have had; and that the reset agreement, which Datatrend purported to terminate, would have given Datatrend a credit in the amount of approximately $500,000, presumably as an adjustment for defective product. Again, because Datatrend's summary judgment papers are virtually silent regarding Datatrend's request for declaratory relief, they shed no light on these issues.
Finally with respect to Count I, it is not clear what Datatrend is asking for in its request for a declaration that the amount it owes for non-defective product be reduced by "a setoff in the amount of Datatrend's damages resulting from Jabil's breaches of contract, breaches of warranties, and violations of Mass.Gen.Laws ch. 93A." It goes without saying that, at the end of the case, the factfinder will have to tally the debits and credits on both sides of the ledger and render a final accounting. This is the same task that the factfinder must undertake in every case in which offsetting claims are asserted. If Datatrend is asking for nothing more than this, it is certainly entitled to the declaration it seeks, but to say this is to state the obvious. If, on the other hand, Datatrend is asking for something other than this, its Third Amended Complaint and summary judgment papers are not sufficiently specific to enable a court to render a meaningful decision.
In sum, Count I and the summary judgment memorandum that Datatrend filed in support of it present only one claim with sufficient clarity to be the subject of meaningful summary judgment consideration, that claim being Datatrend's request for a declaration that "its termination of the parties' agreement was justified."
Count II of Datatrend's Third Amended Complaint purports to be a straightforward claim for "breach of contract." Closer inspection, however, discloses no fewer than six distinct claims subsumed within it. Specifically, Datatrend contends in Paragraph 18 that "Jabil's failure to provide various credits to Datatrend, late delivery of numerous units, its notification that it would not deliver in accordance with the parties' agreement, and the other actions set forth in Paragraphs 12 and 13 above, constitute material breaches of the agreement between Datatrend and Jabil." Paragraph 12, in turn, complains about Jabil's "failure to repair and return 36 defective units worth approximately $36,750;" "failure to return 2 pieces of equipment worth approximately $2,215:" "overcharging Datatrend $500;" shorting Datatrend $7,000 worth of product in one shipment; and "failure to credit Datatrend for returned units worth approximately $20,000." Finally, Paragraph 13 alleges that Jabil somehow caused Datatrend to become involved in a copyright dispute with Epson, at a cost to Datatrend in excess of $15,000.
Datatrend's Cross Motion for Partial Summary Judgment (Docket No. 57) purports to seek summary judgment as to the whole of Count II, without differentiating among its various parts. Yet, there is not a word in Datatrend's summary judgment memorandum (Docket No. 58) concerning most of the discrete claims subsumed within Count II. The court cannot and will not give consideration to any claim that Datatrend does not discuss. To the extent Datatrend's memorandum purports to discuss Count II at all, it does so in Section I at pages 2-4, but all it says in those few pages is that, contrary to the warranty and shipping schedule set forth in the January 20 agreement, the product was not "free from any inherent defects and cosmetic flaws" and was not all delivered by May 1, 1995. Datatrend's claim for "inherent defects and cosmetic flaws" is essentially a claim for breach of express warranty. Therefore, it will be discussed below within the context of Count III, which deals with Datatrend's breach of warranty claims, express *73 and implied. This leaves the claim for late delivery as the only part of Count II that must be considered with respect to Datatrend's motion for summary judgment.
Thus far, it appears that two claims within Counts I and II are viable candidates for summary judgment consideration: a claim for declaratory judgment that Datatrend was entitled to terminate the agreement and a claim for breach of contract based on Jabil's failure to complete delivery by May 1, 1995. In fact, however, these two claims are essentially the same, in that Datatrend contends in its memorandum that it was the late delivery of product that entitled it to terminate the agreement. (Memorandum of Law in Support of Plaintiff's Cross Motion for Partial Summary Judgment at 4, Docket No. 58 (asserting that "[t]he contract gave Datatrend the right to terminate the contract if all product was not delivered by May 1, 1995").) Thus, as far as Counts I and II are concerned, Datatrend's motion reduces to a request for summary judgment on the claim that Datatrend was entitled to terminate the agreement due to Jabil's failure to complete delivery by May 1, 1995.
This brings us to Count III, in which Datatrend asserts claims for breach of express warranty, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for a particular purpose.[4] The fitness warranty may be disregarded, however, since Datatrend's summary judgment memorandum does not discuss it at all. With respect to express warranties and the implied warranty of merchantability, Datatrend plausibly contends, inter alia, that the computers had an "inherent defect," at least to the extent their plastic cases were apt to crack as a result of exposure to hinge oil, and that Datatrend experienced an unusually high rate of returns.[5] Datatrend does not explain, however, how a high (as distinguished from a normal or even low) rate of return relates to the existence, vel non, of a breach of express warranty or of the implied warranty of merchantability as to any particular unit. Nor is it clear whether its claim is based on the cracking of the plastic case in particular or on all the returns that it experienced for all reasons. Perhaps most importantly, Datatrend never specifies the precise form of relief it is seeking.
On the one hand, Datatrend may be asking for nothing more than a declaration that some unknown number of computers (or all of them, notwithstanding that Jabil claims to have discovered and corrected the cracking plastic problem before more than half the computers had been shipped) had one or more defects that constituted a breach of express warranty or made one or more computers unmerchantable. If so, it would be difficult to see how such declaration, even if Datatrend were otherwise entitled to it, would serve any useful purpose. After all, a trial would still be required in order to answer such fundamental questions as which computers were subject to which defects; did Datatrend sabotage some of the computers and, if so, to what extent; which defects render a computer unmerchantable and which do not; was the warranty of merchantability waived as to any particular defect pursuant to Mass.Gen.Laws ch. 106, § 2-316(3)(b);[6] was the express warranty or the warranty of merchantability waived with respect to the cracking plastic problem when Datatrend rejected Jabil's offer to recall and repair at its expense all computers that were *74 already in the field; had one or more computers as to which Datatrend withheld payment already been the subject of a successful warranty repair offered by Jabil and accepted by Datatrend; did Jabil's breach of warranty as to one or more particular computers cause identifiable injury to Datatrend and, if so, in what manner and to what extent; and were Datatrend's remedies for such breach limited by the January 20 agreement or superceded, in whole or in part, by the reset agreement. Because a declaration that some unknown number of computers were subject to one or more defects that made those particular computers nonconforming or unmerchantable would not materially shorten the trial or advance the case toward resolution, I do not construe Datatrend's motion as requesting such relief. In the alternative, if that is the relief that Datatrend is requesting, I would recommend that partial summary judgment as to this claim be denied for prudential reasons. See Fed.R.Civ.P. 56(d) (court need not ascertain and specify which "material facts exist without substantial controversy" unless it would be "practicable" to do so); Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 693 (1st Cir.) (stating that, when considering whether a case is ripe for declaratory judgment, a court must consider, inter alia, whether granting relief would "serve a useful purpose" or "be of practical assistance in setting the underlying controversy to rest"), cert. denied, 513 U.S. 919, 115 S.Ct. 298, 130 L.Ed.2d 211 (1994), citing Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990).
More plausibly, Datatrend may be asking for partial judgment or a declaration to the effect that the breaches of warranty, express and implied, were, in the aggregate and without regard to their impact on the shipping schedule, sufficiently severe, taking into account all the defects and the high rate of return, to justify Datatrend's cancellation of the contract. This approach is certainly suggested by the supplemental memorandum that Datatrend filed at the court's suggestion, following the hearing on the cross motions for summary judgment. (Supplemental Memorandum in Support of Plaintiff's Cross Motion for Partial Summary Judgment Re Field Failure Rates at 3-5, Docket No. 89.) Because this is the only formulation that makes sense in the context of this case, I shall assume that the judgment Datatrend is seeking at the summary judgment stage based upon Jabil's purported breaches of warranty, express and implied, again reduces to a request for a declaration to the effect that the defects were so severe and extensive that Datatrend was entitled to terminate the contract.
Summarizing to this point, the legal issue raised by Datatrend's motion for summary judgment as to Counts I-III can be restated as follows: based upon the undisputed facts set forth in the summary judgment record, did Datatrend have a right as a matter of law to terminate the January 20 agreement and (or including) the reset agreement, due to (1) Jabil's failure to complete all shipments by May 1, 1995, or (2) the cumulative effect of Jabil's alleged breaches of warranty, express and implied?
(2) Analysis of Contract Issues Presented in Datatrend's Motion
There is no need to dwell on the first of the two questions whether Jabil's failure to complete all shipments by May 1, 1995, gave Datatrend the right to terminate the contract. Datatrend conceded at the hearing on the cross motions for summary judgment, and properly so, that facts which have a bearing on that issue are genuinely disputed. (Tr. of June 10, 1997 Hr'g., at p. 96, line 18 to p. 98, line 1.)
Datatrend does not concede, however, that genuine issues of material fact exist with respect to its alternative theory that termination was justified as the result of the severity and pervasiveness of the various breaches of express and implied warranties. Before we can attempt to determine whether any material factual disputes exist within the context of this theory, we must, of course, have an understanding of the substantive law on which this theory is based. The legal support for such theory, to the extent Datatrend provides any, is outlined in Datatrend's Supplemental Memorandum as follows:
*75 With respect to a breach of contract claim ... even where the breach is less than "total," a buyer may recover damages with respect to the whole contract "if the breach goes to the whole contract...." [UCC] § 2-711(1). "The buyer's right to proceed as to all goods when the breach is as to only some of the goods is determined by the section on breach and installment contracts...." Id., UCC cmt. 1. Installment contracts are subject to § 2-612 which provides, in part, that "[w]henever non-conformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole." § 2-612(3).
(Supplemental Memorandum in Support of Plaintiff's Cross Motion for Partial Summary Judgment re Field Failure Rates at 3, Docket No. 89 (citations and footnote omitted).)
Putting aside the question of whether this is an accurate synopsis of relevant law with respect to damages, it is certainly a materially incomplete statement of the law with respect to the buyer's right to cancel.[7] Specifically, the statute, in pertinent part, in fact provides:
Where the ... buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (section 2-612), the buyer may cancel....
Mass.Gen.Laws ch. 106, § 2-711(1). Datatrend does not address the question whether it rejected Jabil's goods or revoked acceptance, let alone whether its rejection was "rightful" or its revocation "justifiable." See, generally, Mass.Gen.Laws ch. 106, §§ 2-601, 2-602, 2-603, 2-606, 2-607, 2-608 (West 1990). Therefore, it is impossible to say whether there are any disputed issues of fact regarding Datatrend's right to cancel under § 2-711. Indeed, even if it is assumed that there was a rightful rejection or justifiable revocation of acceptance, Datatrend would only have had the right to cancel the contract if there were a breach which "goes to the whole," within the meaning of Mass.Gen. Laws ch. 106, § 2-612. That section of the Code provides, in pertinent part:
Whenever the non-conformity ... with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a non-conforming installment without seasonably notifying of cancellation or if he ... demands performance as to future installments.
Mass.Gen.Laws ch. 106, § 2-612(3) (West 1990). Again, since Datatrend does not address the subject, we can only speculate about whether any defects in "one or more installments" of computers "substantially impaired the value of the whole contract." Ordinarily, this would be a question of fact. Cf. Hastings Associates, Inc. v. Local 369 Building Fund, Inc., 42 Mass.App.Ct. 162, 675 N.E.2d 403, 411 (stating that material breach of contract by one party relieves other party of any further performance obligations and that whether breach is material is fact issue for jury), rev. denied, 424 Mass. 1108, 678 N.E.2d 1334 (1997). There is no reason why it should not be so here, where Datatrend arguably received substantial revenue from the resale of the computers and Jabil was arguably willing and able to effect repair of all the problems identified by Datatrend. Further, it is at least arguable that Datatrend accepted non-conforming goods both before and after the reset agreement and may, in either case, have "demand[ed] performance as to future installments," thus raising additional issues of fact (and law) about whether Datatrend "reinstate[d] the *76 contract" following Jabil's breach. If it did, it might have waived whatever right it would otherwise have had to cancel the contract, although it would still be entitled to damages for the diminished value of any non-conforming goods, see Mass.Gen.Laws ch. 106, § 2-714 (West 1990).[8] Much more could be said about this aspect of Datatrend's motion, but it is abundantly clear from what has been said thus far that Datatrend's right to cancel the contract turns on the resolution of a number of material issues of fact that are either genuinely in dispute or not discussed at all. For this reason, I recommend that Datatrend's motion for summary judgment as to Counts I-III be DENIED.
(3) Analysis of Contract Issues Presented in Jabil's Motion
As noted, Jabil's motion for summary judgment as to Counts I-III of Datatrend's Third Amended Complaint (the declaratory judgment, contract, and warranty counts) is based entirely on Jabil's affirmative defense of accord and satisfaction. Specifically, Jabil contends that the reset agreement "superseded," and thus precludes, all contract and warranty claims asserted by Datatrend based on the January 20 agreement. (See Corrected Memorandum in Support of Defendant's Motion for Partial Summary Judgment at 2, Docket No. 40.) As Jabil correctly notes in its memorandum at pages 16-17, in order to prevail on such argument, it must establish that (1) the parties entered into the reset agreement with the intention that it was to constitute a complete settlement of an existing dispute and (2) it in fact performed all its obligations under the reset agreement. See Rust Engineering Co. v. Lawrence Pumps, Inc., 401 F.Supp. 328, 333 (D.Mass. 1975).
There is, of course, no express statement in the reset agreement to the effect that it was intended to supersede the January 20 agreement or constitute a complete settlement of any dispute (let alone of all disputes) arising under it. To the contrary, the parties state in the reset agreement that it is "amendments/comments [that] shall apply to our original business agreement signed on 1/20/95." This at least implies that the "original business agreement," including all the rights, obligations, warranties, and remedies set forth in it, would remain in effect, except to the extent expressly modified by the reset agreement. A factfinder could perhaps infer a contrary intent from the substance of the reset agreement taken as a whole and the circumstances concerning its execution, particularly evidence to the effect that the parties negotiated the contract concessions in the reset agreement (i.e., the lower price, the credit for back end support, and the new shipping schedule) in response to Datatrend's demand for a resolution of its complaints about shipping delays and product quality. It would not be required to draw such inference, however. It could permissibly conclude, for example, that Jabil offered the concessions in an attempt to mitigate damages or to avoid an immediate cancellation of the contract by Datatrend, or even as a gratuitous gesture of goodwill to smooth the ruffled feathers of a potentially important customer. See United California Bank v. Eastern Mountain Sports, Inc., 546 F.Supp. 945, 960 (D.Mass.1982) (finding that buyer does not necessarily enter into accord and satisfaction by accepting credits from seller for allegedly defective merchandise), aff'd, 705 F.2d 439 (1st Cir.1983). Under any of these scenarios, there would be no agreement by Datatrend to accept the concessions offered by Jabil in exchange for a release of its claims, and thus no accord and satisfaction.
Further, even if the reset agreement were construed by a factfinder as an accord with respect to some dispute that had arisen between the parties, its scope would be far from clear. For example, does it deal just with the defects that the parties already knew about, or does it also foreclose damage claims based upon defects (such as the cracking of the case due to leaking hinge oil) that *77 had not yet arisen or been disclosed at the time the reset agreement was executed? See id. at 961 (finding no accord and satisfaction based, in part, upon fact that buyer was unaware of one particular product defect when it accepted credits for other defects of which it was aware). Again, the reset agreement is, from Jabil's perspective, at best ambiguous, and the resolution of ambiguities in a written agreement is a function reserved for the factfinder. See Den Norske Bank AS v. First Nat'l Bank of Boston, 75 F.3d 49, 52, 59 (1st Cir.1996); NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 32-33 (1st Cir. 1994).
Finally, of course, there is the overriding question whether the accord, if there was one, was satisfied. It is undisputed that, shortly after the reset agreement was executed, Jabil discovered a previously undisclosed problem with leaking hinge oil. This problem not only jeopardized Datatrend's customer relationships in ways that Datatrend could not have foreseen, but it arguably caused new delays in the revised shipping schedule set forth in the reset agreement itself. At a minimum, Datatrend can plausibly argue to the factfinder that, if there was an accord, it was predicated, among other things, on Jabil satisfying all its new obligations under it, including its obligation to meet the new schedule. Jabil may respond that there were no shipping delays and that, even if there were, either they were immaterial or they resulted from Datatrend's failure to make timely payment for product that was shipped after the reset agreement was executed. Such response, however, would only raise additional issues of material fact that the factfinder would have to resolve.
For all the foregoing reasons, I recommend that Jabil's motion for summary judgment as to Counts I-III of Datatrend's Third Amended Counterclaim and as to Jabil's affirmative defense of accord and satisfaction be DENIED.
B. Claims Under Mass.Gen.Laws ch. 93A
Under Massachusetts General Laws Chapter 93A, § 11, a person "who engages in the conduct of any trade or commerce" may bring an action for damages or other relief against another party who, in the course of his trade or business, engages in an "unfair method of competition or an unfair or deceptive act or practice." Mass.Gen.Laws ch. 93A, § 11 (West 1997). In order to sustain an award of damages under Chapter 93A, § 11, the plaintiff must prove that (1) unfair or deceptive acts or practices[9] occurred; (2) those acts or practices occurred "primarily and substantially" in Massachusetts; and (3) the plaintiff suffered a loss of money or property as a result of defendant's unfair or deceptive acts. See, e.g., Roche v. The Royal Bank of Canada, 109 F.3d 820, 829 (1st Cir.1997); Cambridge Plating Co., 876 F.Supp. at 336-337, 339. In its motion for partial summary judgment and supporting memorandum, Jabil does not deny that factual issues exist concerning the first and third elements of Datatrend's 93A claim. Rather, Jabil's sole argument is that Datatrend's 93A claim fails to satisfy the second element. Thus, the only issue presented by Jabil's motion is whether Jabil carried its burden of proving that the alleged unfair or deceptive acts did not take place primarily and substantially in Massachusetts. See Mass.Gen. Laws ch. 93A, § 11 ("the burden of proof shall be upon the person claiming that such transactions and actions did not occur primarily and substantially within the commonwealth").
In determining whether wrongful conduct occurred primarily and substantially within Massachusetts, the First Circuit has singled out three factors for particular consideration: (1) where the defendant committed the unfair or deceptive conduct; (2) where the plaintiff received and acted upon the unfair or deceptive conduct, and; (3) the situs of the plaintiff's *78 losses.[10]See, e.g., Play Time, Inc. v. LDDS Metromedia Communications, Inc., 123 F.3d 23, 33 (1st Cir.1997); Roche, 109 F.3d at 829; Clinton Hospital Ass'n v. The Corson Group, Inc., 907 F.2d 1260, 1265-1266 (1st Cir.1990). Although no one factor should be determinative in deciding whether conduct occurred primarily and substantially in Massachusetts, the First Circuit has noted that the "critical factor is the locus of the recipient of the deception at the time of reliance." Clinton Hosp., 907 F.2d at 1265-1266. This is because "[t]he victim's ingestion of a deceptive statement and the subsequent effects from reliance on it are what give the deceptive statement its venomous sting." Play Time, Inc., 123 F.3d at 33; Compagnie De Reassurance D'Ile de France v. New England Reinsurance Corp., 57 F.3d 56, 90 (1st Cir.), cert. denied, 516 U.S. 1109, 116 S.Ct. 564, 133 L.Ed.2d 490 (1995); Clinton Hosp., 907 F.2d at 1266.
Considering the evidence in the present case in a light most favorable to Datatrend, there are genuine issues of material fact as to whether the allegedly deceptive acts occurred primarily and substantially in Massachusetts. Based upon Datatrend's allegations, the deceptive acts fall into two categories: (1) Jabil's failure to disclose at a meeting in Florida on January 16, 1995, and perhaps in other communications leading up to the signing of the January 20 agreement that the notebook computers were defective, and (2) Jabil's knowing shipment of defective computers into Massachusetts and failure to disclose those defects "in numerous communications to Datatrend in Massachusetts and [at] a site visit." (Plaintiff's Opposition to Defendant's Motion for Partial Summary Judgment at 3-4, Docket No. 56.) Considering first the question of where the defendant committed the first group of acts, as required under Clinton Hospital, the alleged misrepresentations and omissions occurred in Florida, while both parties were at the January 16 meeting, or in follow-up communications by Mondello, in Florida, to Hanson, in Massachusetts. The defendant also allegedly committed the second group of acts in Florida, because a "non-disclosure occurs where the defendant who fails to disclose is located," and, in this case, the defendant was always located in Florida, except for one visit to Massachusetts in April 1995. See Roche, 109 F.3d at 829-830. Also, because Jabil shipped the computers from its Florida facility to Datatrend in Massachusetts, any shipping of knowingly defective computers would have occurred, for the most part, in Florida. Because Jabil's allegedly deceptive conduct took place in Florida, the first Clinton Hospital factor weighs in favor of Jabil.
The analysis does not end here, however. The evidence, viewed most favorably to Datatrend, demonstrates that Datatrend received and acted upon most of the alleged deceptive conduct in Massachusetts. Considering the first group of acts, it cannot be disputed that Datatrend, at least initially, received those alleged misrepresentations and omissions while in Florida. Datatrend acted upon them for the most part in Massachusetts, however, where it signed the January 20 agreement, received and resold Jabil's computers, received returns from customers, and otherwise dealt with Jabil. Datatrend also received and acted upon the second group of allegedly deceptive acts in Massachusetts, because it was there that Datatrend received the defective computers and acted upon Jabil's conduct, again, by reselling the computers to customers, handling customer returns, and communicating with Jabil from Massachusetts. Considering both groups of acts, it thus appears that the "critical" factor of where the plaintiff received and acted upon the alleged deceptions tips in favor of Datatrend.
Finally, if Datatrend suffered any losses (an issue we need not decide), it undoubtedly suffered those losses in Massachusetts. Massachusetts is where Datatrend would have suffered a loss of goodwill, lost profit, and out-of-pocket costs in handling returns of *79 the defective notebooks. Jabil concedes that "any injury [Datatrend] might have suffered as a result of Jabil's alleged omissions occurred in Massachusetts." (Corrected Memorandum in Support of Defendant's Motion for Partial Summary Judgment at 14, Docket No. 40.) Thus, the third Clinton Hospital factor weighs in favor of Datatrend.
Balancing the three Clinton Hospital factors, it appears that two out of three weigh in favor of Datatrend.[11] Under First Circuit precedent, this would probably be enough to support a finding that the deceptive conduct, if any, occurred primarily and substantially in Massachusetts. See, e.g., Clinton Hosp., 907 F.2d at 1265-1267 (holding that deceptive conduct occurred primarily and substantially in Massachusetts because plaintiff received and acted upon defendant's deceptive conduct in Massachusetts and plaintiff's losses were suffered there); Bradley v. Dean Witter Realty, Inc., 967 F.Supp. 19, 29-30 (D.Mass.1997) (same). At the very least, Jabil has not met its burden of proving that the alleged deceptions did not take place primarily and substantially in Massachusetts. I therefore recommend that Jabil's motion for summary judgment as to Count IV of Datatrend's Third Amended Counterclaim be DENIED.
IV. SUMMARY AND RECOMMENDATION
For all the foregoing reasons, I recommend that (1) Defendant's Motion for Partial Summary Judgment, (Docket No. 34), be DENIED; and (2) Plaintiff's Cross-Motion for Partial Summary Judgment, (Docket No. 57), be DENIED.
V. IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS
The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court's order entered pursuant to this Report and Recommendation. See United States v. Valencia-Copete, 792 F.2d 4, 5-6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 148-149, 106 S.Ct. 466, 471-472, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986).
Dec. 22, 1997.
*80 APPENDIX A:
*81
*82 APPENDIX B:
Reset Agreement
NOTES
[1] It is not clear from the summary judgment record whether Datatrend accepted these 781 computers before or after Jabil told it about the newly-discovered hinge oil problem.
[2] I have found no evidence in the summary judgment record that Datatrend ever requested further shipments.
[3] The only references to declaratory judgment found anywhere within Datatrend's memorandum in support of summary judgment, (Docket No. 58), are at page 1, where Datatrend states that it seeks "partial summary judgment on liability for Count I (Declaratory Judgment)," and at page 4, where Datatrend states, "Nor can there be any dispute that Datatrend was justified in terminating the contract, as raised in the Declaratory Judgment Count."
[4] Although breach of express warranty is the subject matter of Count III, Datatrend discusses this claim in Section I of its memorandum, which deals with Count II.
[5] Although the cracking of the computer's plastic case would appear to be an "inherent defect" or at least a "cosmetic flaw" within the meaning of the express warranty set forth in the January 20 agreement, it is less clear whether it would also be a "catastrophic failure," since a catastrophic failure is a "latent defect or design flaw ... which has caused the `failed' notebooks to become inoperable." (January 20 Agreement, Appendix A (emphasis added).) Datatrend does not address the factual issue of whether computers whose plastic cases crack are thereby rendered "inoperable."
[6] Massachusetts General Laws Chapter 106, § 2-316(3)(b) provides, in pertinent part, that "when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired ... there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him." Mass.Gen.Laws ch. 106, § 2-316(3)(b) (West 1990).
[7] With respect to damages, the Uniform Commercial Code, which appears as Chapter 106 of Massachusetts General Laws, provides that, under certain circumstances, if a seller's breach goes to the whole contract, a buyer may "recover[] so much of the price as has been paid," as well as "`cover' and have damages ... as to all the goods affected ..." and, in addition, "recover damages for non-delivery...." Mass.Gen. Laws ch. 106, § 2-711(1), (1)(a), (1)(b) (West 1990). Whether this is equivalent to permitting the buyer to "recover damages with respect to the whole contract," (Supplemental Memorandum in Support of Plaintiff's Cross Motion for Partial Summary Judgment re Field Failure Rates at 3, Docket No. 89), is a question we need not address in the context of the pending motion by Datatrend for partial summary judgment only as to liability.
[8] I focus on Datatrend's rights under Mass.Gen. Laws ch. 106, § 2-612(3) not because this is the only possible legal basis upon which a buyer may purport to terminate a contract or suspend its own performance under it, see, e.g., Mass.Gen. Laws ch. 106, §§ 2-609 (right to adequate assurances of performance), 2-610 (anticipatory repudiation), but because this is the only basis on which Datatrend purports to rely.
[9] An "unfair or deceptive act or practice" is often defined as conduct that falls "within at least a penumbra of some common-law, statutory, or other established concept of unfairness or [is] immoral, unethical, oppressive or unscrupulous." Cambridge Plating Co., Inc. v. NAPCO, Inc., 876 F.Supp. 326, 336 (D.Mass.1995), aff'd in part, vacated in part, 85 F.3d 752 (1st Cir. 1996).
[10] A court may also consider other factors, such as: (1) the place of contracting; (2) the place of negotiation of the contract; (3) the place of performance; (4) the location of the subject matter of the contract; and (5) the domicile, residence, nationality, place of incorporation, and place of business of the parties. Clinton Hosp., 907 F.2d at 1263, 1267; see Boston Hides & Furs, Ltd. v. Sumitomo Bank, Ltd., 870 F.Supp. 1153, 1166 (D.Mass.1994).
[11] Even if the court were to consider other factors relevant to contract cases, it would not alter the above analysis. See Clinton Hosp., 907 F.2d at 1263. First, the contract was signed by the parties in both Massachusetts and Florida, at their respective offices. The subject matter was located both in Florida, where the computers were manufactured, and Massachusetts, where the computers were delivered and resold. Also, Jabil's place of business was in Florida, but Datatrend's was in Massachusetts. Both agreements were negotiated in Florida and Massachusetts, where the respective parties were located. None of these factors weighs in favor of either party. The place of performance of the contract, however, was primarily Massachusetts. Both parties expected that the computers would be received and resold in Massachusetts and that returns would be handled by Datatrend in Massachusetts. This factor weighs in favor of Datatrend. Thus, on balance, consideration of these other factors slightly supports Datatrend's argument that Jabil's allegedly deceptive conduct occurred primarily and substantially in Massachusetts.
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Fourth Court of Appeals
San Antonio, Texas
March 4, 2020
No. 04-18-00917-CV
Ziaunnisa K. LODHI,
Appellant
v.
Shah A. HAQUE,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CI04290
Honorable Rosie Alvarado, Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
The panel has considered the appellant’s motion for en banc reconsideration, and the
motion is hereby DENIED.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of March, 2020.
___________________________________
MICHAEL A. CRUZ,
Clerk of Court
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595 A.2d 1341 (1991)
NEW ENGLAND EDUCATIONAL TRAINING SERVICE, INC. and John S. Burgess
v.
SILVER STREET PARTNERSHIP and The National Mortgage Company.
No. 88-513.
Supreme Court of Vermont.
June 7, 1991.
*1342 Thomas F. Heilmann of Thomas F. Heilmann & Associates, Burlington, for plaintiffs-appellants.
Peter W. Hall of Abell, Kenlan, Schwiebert & Hall, Rutland, for defendant-appellee.
PRESENT: ALLEN, C.J., PECK, DOOLEY and MORSE, JJ., and MARTIN, Superior Judge, Specially Assigned.
DOOLEY, Justice.
Plaintiffs New England Educational Training Service Corporation (NEETS) and John Burgess appeal from the trial court's dismissal of their mortgage foreclosure action. We affirm.
Although the facts behind this dispute are somewhat complicated, we can reduce them to their essentials as follows. The property involved in the foreclosure is located on Silver Street in Bennington ("the Silver Street property") and is apparently owned by defendant Silver Street Partnership, pursuant to a quitclaim deed from defendant Snowfall, Inc. How these parties acquired the property is irrelevant. It is only relevant that the property was once owned by James Donahue (Donahue) and that he gave a mortgage deed on the property to plaintiffs.
The center of the dispute is a different piece of property, the former facilities of Mark Hopkins College ("the college property"). The college property was the subject of a foreclosure action by Vermont National Bank. Through a complex series of transactions connected with the failure of this college, title to this property came into the hands of John S. Burgess, a trustee, treasurer, and attorney for the college. NEETS, a creditor of the college, also had an interest in the property. They attempted to sell the property to Donahue, apparently with the understanding that he would take over the operation of the college and put it back on its feet. Donahue proved to be a reluctant purchaser. Although he would sign purchase and sales agreements, he would not go through with them. It is Donahue's failure to go through with the purchase of the college property that gives rise to this action.
The initial purchase agreement was dated December 31, 1976. Donahue agreed to buy the property from plaintiff NEETS and pay $4,000 for a down payment, $50,000 in escrow, and $110,000 on closing. The agreement provided for a March 3, 1977 closing, and was contingent upon NEETS acquiring title to the premises through the then-pending foreclosure proceedings. Section C(4) of the agreement contained the following language: "[i]n the event BUYER shall fail to pay the balance of the purchase price or complete said purchase as herein provided, all amounts paid hereinunder shall, at the option of NEETS, be retained as liquidated damages." Donahue failed to complete the purchase. On March 19, 1977, the agreement was extended for thirty days, but Donahue again failed to complete the purchase.
On July 5, 1977, with both NEETS and Burgess involved, the agreement to purchase was extended by another thirty days. The extension agreement provided that the terms of the December 31 contract would remain in force. Donahue concurrently executed a mortgage deed covering the Silver Street property to NEETS and Burgess. *1343 The mortgage deed stated that Donahue had received $160,000 from NEETS and Burgess as consideration for the conveyance and that the property was conveyed free of encumbrances except for a first mortgage to a prior owner. According to its terms, the deed secured a promissory note for $160,000 to plaintiffs. Donahue executed such a promissory note, payable thirty days later. Neither the mortgage deed nor note indicated that these instruments were intended to secure Donahue's performance on the purchase and sale agreement for the college property. It is undisputed, however, that Donahue never received $160,000 from plaintiffs.
The mortgage was recorded on July 6, 1977, in the Town of Bennington land records. Donahue again failed to purchase the college property and, hence, never made payments on the mortgage note. Burgess eventually sold the property to another party for $220,000.
On September 6, 1984, plaintiffs brought this action to foreclose their mortgage on the Silver Street property. On September 18, 1984, defendants brought suit against their predecessor in title, Donald and Gloria Humphreys, for breach of warranty of title, and against plaintiffs for their failure to discharge the mortgage. The Humphreys cross-claimed against plaintiffs for failure to discharge the mortgage and mortgage note, alleging that plaintiffs had received full payment for the indebtedness that the mortgage purportedly secured.[*] These actions were consolidated on March 29, 1985.
Following an appeal and remand on issues unrelated to the present appeal, New England Educational Training Service, Inc. v. Silver Street Partnership, 148 Vt. 99, 528 A.2d 1117 (1987), the case was tried by court on August 10th through 12th, 1988. Plaintiffs advanced two theories of recovery. First, they claimed that since Donahue made no payment on the $160,000 mortgage note, the mortgage was in default and plaintiffs were entitled to foreclosure as a matter of law. Alternatively, they claimed that they were entitled to foreclose because, on the underlying purchase and sale agreement, $160,000 was due as liquidated damages, a sum which was secured by the mortgage note and deed.
The trial court granted judgment for defendants at the close of plaintiffs' case and made oral findings and conclusions on the record. In a September 8, 1988 judgment order, the court declared the mortgage "of no force and effect." Plaintiffs appeal from that order, arguing that: (1) since the mortgage deed and note were unambiguous, the court improperly considered parol evidence in determining the effect of the documents; (2) the trial court erred in making certain factual findings; and (3) the trial court erred in granting the motion for dismissal and in discharging a valid, enforceable mortgage.
I.
Plaintiffs' first argument is that the trial court improperly considered parol evidence in determining the enforceability of the mortgage deed and note. Plaintiffs contend that absent a finding that the deed and mortgage were ambiguous, the court was not permitted to consider evidence of an underlying agreement between plaintiffs and defendant. The trial court relied on various items of evidence that would be excluded under plaintiffs' parol evidence argument, including the purchase and sale agreement, the extension of the time for closing which was signed contemporaneously with the note and mortgage, testimony that Donahue never received the $160,000, and Burgess's testimony that the mortgage would have been cancelled if *1344 Donahue had purchased the college property.
The parol evidence rule is applicable to exclude evidence of a prior or contemporaneous oral agreement offered to vary or contradict the terms of a written agreement. Tilley v. Green Mountain Power Corp., 156 Vt. ___, ___, 587 A.2d 412, 414 (1991); Big G Corp. v. Henry, 148 Vt. 589, 592-93, 536 A.2d 559, 560-61 (1987). For a number of interrelated reasons, it is not applicable here.
First, the only part of the mortgage or note that was contradicted by the court's finding was the statement in the deed that Donahue had received $160,000 from the plaintiffs. A statement of consideration is not a term of any agreement; hence, the parol evidence rule does not preclude evidence that the statement of consideration is inaccurate. See Citizens Sav. v. Bank & Trust Co. v. Paradis & Sons, Ltd., 102 Vt. 114, 118, 146 A. 3, 4 (1929); White v. Miller, 22 Vt. 380, 384 (1850).
Second, although the parol evidence rule is applicable to a mortgage or note, these instruments are employed for special purposes. The primary purpose of the mortgage is to give the creditor a security interest in the property based on a specific promise to pay contained in the note. The note, in turn, is drafted to be a negotiable instrument. These special-purpose documents seldom embody a complete statement of the agreement between the parties. See 3 A. Corbin, Corbin on Contracts § 587 (1960). In the terminology of the Restatement of Contracts, they form only a partially integrated agreement. See Restatement (Second) of Contracts § 210(2) (1981). The court could look beyond these documents to determine the complete agreement of the parties. Thus, it was proper for the court to consider the purchase and sale agreement and its extensions, as well as the surrounding circumstances of the parties.
Third, the evidence was not used in this case to contradict or vary the terms of the instruments. Although the trial court found from the evidence that the note and mortgage did not represent the true agreement of the parties, its conclusion was that they could not be enforced because they were inequitable or unconscionable. This use of parol evidence is similar to what we have authorized in the past. For example, we have authorized the use of parol evidence to determine whether there had been any consideration for a mortgage. See Quazzo v. Quazzo, 136 Vt. 107, 110, 386 A.2d 638, 640 (1978) ("great latitude" granted with respect to evidence offered in mortgage foreclosure case to show lack of consideration); Ladam v. Squires, 127 Vt. 95, 97, 241 A.2d 58, 59 (1968) (parol evidence rule does not preclude proof of lack of consideration as between original parties to an agreement). In addition, we have authorized admission of such evidence to ascertain the true character and purpose of the mortgage, rather than to vary the terms contained within the instrument. See Wells v. Foss, 81 Vt. 15, 17, 69 A. 155, 155 (1908) (parol evidence admissible to show that mortgage and note were actually intended to secure prior debt rather than other consideration recited in the instruments; "Its tendency was to show the true character of the mortgage, and it was properly received."). The uses made of the evidence in this case were consistent with the parol evidence rule, and, as discussed below, formed a defense to plaintiffs' foreclosure complaint.
II.
Plaintiffs' next argument is that the trial court erred in granting judgment for defendants at the close of the plaintiffs' case. V.R.C.P. 41(b)(2) provides that a defendant in a nonjury trial may move for involuntary dismissal at the close of plaintiff's case, on the ground that the plaintiff has shown no right to relief on the facts and law. A Rule 41(b)(2) motion for involuntary dismissal "serves the function of a directed verdict motion in a jury case." Reporter's Notes, V.R.C.P. 41, at 203. The court, however, is required to make findings in accordance with Rule 52(a). V.R.C.P. 41(b)(2). As opposed to a directed verdict, the court is not required to take the evidence in the light most favorable to *1345 the nonmoving parties. Blais v. Blowers, 136 Vt. 488, 489, 394 A.2d 1124, 1124 (1978). On appeal, the question is whether the court's fact findings are clearly erroneous, viewing the evidence in the light most favorable to the prevailing party. Stevens v. Cohen, 138 Vt. 7, 8-9, 409 A.2d 604, 605 (1979). Plaintiffs argue that the court's dismissal was erroneous because a number of its findings were clearly erroneous.
Plaintiffs first challenge the court's "finding" of a "complete lack of documentary definition of what in fact this mortgage... really is." The court made this comment as part of its discussion of whether parol evidence was admissible and not as a finding of fact. As plaintiffs admit, the court actually found that the mortgage was security for Donahue's agreement to buy the college land, and plaintiffs have not attacked that finding. Thus, there is no finding here against which to apply the clearly-erroneous test, and the argument fails.
Plaintiffs next attack the court's finding that, if foreclosure was granted, plaintiffs' combined income from the sale of the Brattleboro property and foreclosure on the Silver Street property would amount to "in the neighborhood of half a million dollars." This finding was based on the testimony of Burgess and reflects an obvious addition of the proceeds of the sale of the college land to the potential proceeds of this litigation if plaintiffs prevail. We can find no basis for plaintiffs' claim that the court intended it to be a net profit figure, rather an approximation of gross return on the property. It is not clearly erroneous.
Plaintiffs also attack the court's "insinuat[ion]" of impropriety on Burgess's behalf in obtaining the college property. We recognize that the trial court was concerned about how Burgess came to control the college land, but we see no finding on this point and nothing directly related to the court's conclusions.
Finally, plaintiffs attack the court's finding that plaintiffs had only a "prospective interested buyer" for the college property when they extended Donahue's right to purchase. They argue that the undisputed evidence showed that they had a binding written offer to purchase. The court's finding is reasonable in light of plaintiffs' failure to produce the written offer or to show the offered price. Further, on the state of the evidence, this finding is only marginally relevant to the court's conclusions.
III.
Plaintiffs' final claimindeed the crux of their appealis that once default of the underlying obligation had been proved, it was an abuse of discretion for the court to refuse to foreclose the mortgage. Because foreclosure actions are by their nature equitable actions, it is proper for the court to weigh the equities of the circumstances in determining whether to grant foreclosure. Retrovest Assocs. v. Bryant, 153 Vt. 493, 500, 573 A.2d 281, 285 (1990); Merchants Bank v. Lambert, 151 Vt. 204, 206, 559 A.2d 665, 666 (1989). A weighing of the equities necessarily involves judicial discretion in evaluating a broad range of relevant considerations. Thus, in Johnson v. Johnson, 125 Vt. 470, 218 A.2d 43 (1966), we stated:
The sufficiency of the consideration, the mutuality, certainty, and clarity, completeness, and fairness of the contract, its capability of proper enforcement by decree, and the presence or absence of any showing that it is tainted or impeachable, or that its enforcement would be unconscionable are elements relevant to the exercise of that discretion. If the chancellor has granted or denied relief by the exercise of discretion based on such equitable considerations, the result is reviewable only upon a clear and affirmative showing of abuse.
Id. at 473, 218 A.2d at 45 (citations omitted). Although Johnson was a specific performance case, its itemization of the relevant considerations is equally applicable in a mortgage foreclosure action.
When we weigh the equities in this case, the court's decision to dismiss the foreclosure action must be sustained on appeal. It is undisputed that the consideration recited in the mortgage deed, the $160,000 *1346 payment from plaintiffs to Donahue, did not exist. Thus, Donahue's note obligating him to pay $160,000, and the mortgage that secured it, must have been given either as part-payment for the college property or as consideration for the thirty-day extension of the purchase and sale agreement. Either possibility creates a viable defense. If the former, Donahue never obtained his interest in the college property, and plaintiffs would achieve a double recovery in the foreclosure. Cf. Licursi v. Sweeney, ___ Vt. ___, 594 A.2d 396 (1991) (holder of equity of redemption as result of foreclosure not permitted to recover on underlying note where "double recovery" would result in unjust enrichment). If the latter, the extension price, which is almost equal to the purchase price, is so unfair as to be unconscionable.
Plaintiffs seek to avoid the court's analysis by arguing that the note amount represented liquidated damages under the specific provision of the purchase and sale agreement allowing plaintiffs to retain "all amounts paid hereunder." Accepting that this is a viable construction of the agreement, there are limits on the amounts that can be claimed as liquidated damages. It is well settled that a liquidated damages clause must meet three criteria to be upheld: (1) because of the nature or subject matter of the agreement, damages arising from a breach would be difficult to calculate accurately; (2) the sum fixed as liquidated damages must reflect a reasonable estimate of likely damages; and (3) the provision must be intended solely to compensate the nonbreaching party and not as a penalty for breach or as an incentive to perform. See Restatement (Second) of Contracts § 356 (1981); Borley v. McDonald, 69 Vt. 309, 313, 38 A. 60, 61 (1897); Stevens v. Pillsbury, 57 Vt. 205, 213 (1884). There is no evidence that the $160,000 security interest in the mortgaged property was a reasonable estimate of plaintiffs' likely damages. Burgess himself testified that the arrangement was intended as an incentive to secure Donahue's performance, suggesting that he saw it as a penalty that Donahue would avoid if possible. If the mortgage and note were intended to provide liquidated damages, we find them facially invalid as creating an illegal penalty instead.
We note that plaintiffs argue that the result, the dismissal of the foreclosure action, is too harsh for the circumstances and inappropriately causes plaintiffs to forfeit their mortgage. In this argument they rely on Merchants Bank v. Lambert, 151 Vt. at 207, 559 A.2d at 667, to the effect that it is not the nature of equity to work a forfeiture. In Merchants Bank, the weighing of the equities showed that it was possible to allow the creditor to foreclose a mortgage while reducing the amount secured to reflect damage to defendant caused by failure of the bank to notify her that the mortgage was in default. See id. Here, the trial court found that the mortgage, viewed in light of the note and underlying purchase and sale agreement, reflected an invalid, unconscionable arrangement and that plaintiffs had already received a sufficient profit from the later sale of the college property. Simply stated, the equities balance differently here than in Merchants Bank.
Affirmed.
NOTES
[*] In their cross-claim against NEETS and Burgess, the Humphreys alleged further that at some time prior to the date they instituted their 1980 foreclosure action against Donahue, someone removed from the Bennington land records the index cards which showed the mortgage from Donahue to NEETS' and Burgess. The Humphreys claimed that they had failed to join NEETS and Burgess as parties to their foreclosure action because there was no record of plaintiffs' security interest. Because the trial court in the present action discharged plaintiffs' mortgage as without force, he dismissed the Humphreys' cross-claim.
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974 A.2d 438 (2009)
408 N.J. Super. 206
STATE of New Jersey, Plaintiff-Appellant,
v.
Ross FINESMITH, Defendant-Respondent.
No. A-4543-07T4
Superior Court of New Jersey, Appellate Division.
Submitted October 28, 2008.
Decided July 13, 2009.
*439 Anne Milgram, Attorney General, attorney for appellant (Kenneth R. Sharpe, Deputy Attorney General, of counsel and on the brief).
Fox Rothschild, Lawrenceville and Brickfield and Donohue, attorneys for respondent (Alain Leibman and Paul B. Brickfield, on the joint brief).
Before Judges SKILLMAN, COLLESTER and GRALL.
The opinion of the court was delivered by
COLLESTER, J.A.D.
Pursuant to leave granted, the State appeals from that portion of the March 3, 2008 order limiting the temporal scope of a communications data warrant (CDW) issued pursuant to N.J.S.A. 2A:156A-29(c) and (e) to a two-week period. We reverse.
In October 2004, the New Jersey State Police Digital Technology Investigation Unit received information from the Wyoming Internet Crimes Against Children Task Force that certain Internet Protocol (IP) addresses assigned to New Jersey residents were making or had been making available pornographic videos and images involving children to others through peer-to-peer filing networks accessed through downloading and installing a file sharing program.[1] As the possession, receipt, and distribution of child pornography is prohibited by N.J.S.A. 2C:24-4b(5)(a) and (b), State Grand Jury subpoenas were issued to Internet Service Providers (ISPs) for subscriber information on the IP addresses. Optimum Online responded to the subpoena by disclosing that one IP address was in the name of Leslie Finesmith in Basking Ridge. Further investigation by the State Police disclosed that Leslie Finesmith is the wife of defendant, Dr. Ross Finesmith, a medical doctor and pediatric neurologist, who lives at the Basking Ridge address with his wife and three daughters, ages eleven, fourteen, and fifteen.
On January 27, 2005, the State Police executed a search warrant on the Basking Ridge residence. Six computers and related media were seized: two desktop computers in the daughters' upstairs bedrooms, two on the first floor, one in an area of the basement used as a home office, and a laptop found in defendant's Honda minivan parked in the garage.[2] Forensic analysis of the desktop computer in the home office identified child pornography offered in the same manner as the child pornography found by Wyoming *440 authorities. Subsequent analysis of the laptop computer also revealed the presence of child pornography that was last viewed the day before the date of execution of the search warrant.
Defendant was arrested on the date the warrant was executed. On July 14, 2005, he was indicted by the State Grand Jury on charges of second-degree endangering the welfare of a child by distribution of child pornography, in violation of N.J.S.A. 2C:24-4(b)(5)(a) (count one), and fourth-degree endangering the welfare of a child (possession of child pornography), in violation of N.J.S.A. 2C:24-4(b)(5)(b) (count two).
The central issue in controversy is the identity of the person who downloaded the child pornography on to the home office desktop computer and the laptop computer. The defense strongly contests that defendant was the "offeror" and possessor of the child pornography and has suggested another member of the household was responsible. To rebut any such defense, the State made an ex parte application to the trial judge[3] for a CDW to require an ISP called "DocISP," a provider of email services for doctors, to provide electronic communications of the defendant as a registered user including:
Emails with attachments, opened or unopened; subscriber name, address, contact numbers; all associated information including but not limited to billing information; method and history of payment; usage; access; internet protocol logs; customer service records; static or dynamic protocol address; and any information located on the DocISP service or other databases that indicate internet sites, chat rooms or any activity or service provided by or through DocISP to its associated user Ross Finesmith.
The application sought the stored electronic content without a limitation as to the temporal scope. The State subsequently advised the court that the available stored electronic content for DocISP included electronic mail received and undeleted by the user for the period of June 28, 2004 to January 28, 2005.
The affidavit of Detective Sergeant Gorman in support of the CDW stated that on January 23, 2005, the person using the laptop accessed defendant's DocISP email account, read at least six messages, and deleted 123. The user also visited three medical sites and attempted to read a news article titled "Pediatric Patients Get Poor Follow-Up After ADHA Diagnosis," on one of the sites. About thirty minutes later, during the same computer session, the user downloaded a peer-to-peer internet file sharing program and used it to download files named with child pornography keywords.
The trial judge declined to consider the State's CDW application on an ex parte basis, requiring instead that the State present the application as a motion with notice to defendant. At oral argument the Deputy Attorney General argued that the State sought the stored electronic content in the DocISP account for an extended period to show defendant's regular use of the account and prove by circumstantial evidence that he downloaded child pornography on January 23, 2005. While the State contended it was entitled to all stored electronic content on DocISP for its investigation, it agreed to limit its CDW application to the one-year period from June 28, 2004 to the January 27, 2005, date of the execution of the search warrant.
The judge found that the State made a sufficient showing for issuance of the *441 CDW, but limited the timeframe to the two-week period before the date of the execution of the search warrant:
Frankly, the State has met the burden of showing that material may be relevant to facts in this case. The investigation is ongoing in the respect that the case is still open. The case has not been resolved, so it's an ongoing investigation. There has been in the course of this case an attempt to indicate that others in the household were using the computer, and so information as to who actually was on the site that day would be quite relevant.
In reviewing the affidavit supplied by the detective, it seems that less than 30 minutes prior to downloading of the installing of the Shareaza peer-to-peer file which led to the downloading of the child pornography matters that the person on the computer was using doc ISP and plugging into medicallymedical-type of information that is probable that only a medical physician would tie into. Also, there's information in the case that particularly the laptop is used apparently exclusively by the defendant, Dr. Finesmith.
Part of the affidavit indicates that the inquiry will lead to evidence tending to show the identity of the user who accessed the defendant's doc ISP electronic mail account on the date in question on the defendant's laptop computer, provide information as to the person authorized to access the electronic mail, provide information as to the identity of user of the laptop on January 23rd.
[The] State provided sufficient information to establish probable cause for the issuance of the CDW. It's apparent from the investigation that the medical websites were accessed on January 23rd, sites that would probably only be of interest to a medical doctor. [The] State is attempting to obtain the evidence with regard to that to further their investigation. Certainly Rules of Discovery required that the information be disclosed.
I do also find that the scope is excessive. The timeframe is very excessive, and I'm going to narrow the scope with regard to the inquiry [to] a timeframe prior to the seizure of the computer on January 27, 2005. I understand the State's problem to establish a course of conduct as to who would access this particular site. If there is only one access within a timeframe prior the question is still open as to who would seek access to that particular site. On the other hand, if there's a course of conduct that is relevant to the case to establish who was using that site, it might be quite relevant to further the investigation to disclose who was on the computer on the date in question. So with regard to the timeframe, I'm going to expand the timeframe to a fourteen-day period prior to the 27th which makes it January 13. So during that two-week timeframe, it will be able to show who was accessing and using that particular site. So, I'll modify the request to that timeframe.
On May 21, 2008 we granted the State's motion for leave to appeal from the two-week limitation of the CDW imposed by the trial court. Defendant did not seek leave to appeal from the issuance of the CDW.
The State argues that the fourteen-day limit placed on the CDW unduly and erroneously restricts the State's investigation into the identity of the user of the DocISP account who possessed and made available child pornography on January 23, 2005, because the timeframe is insufficient to show a pattern of use of the account and fails to consider that within that timeframe *442 defendant may not have used the DocISP account in his usual manner. In response, defendant claims the trial judge properly limited the State's overly broad application for a CDW.
Under the New Jersey Wiretapping and Electronic Surveillance Control Act, a CDW is different from a wiretap order in both the nature of the communication to which it is addressed and the standard for its issuance. A wiretap order permits the interception by law enforcement of a communication contemporaneous with the transmission while a CDW is directed to acquisition of communications in post-transmission electronic storage kept by an electronic communication service or remote computing service for reasons of backup protection for the communication. N.J.S.A. 2A:156A-2 to 156A-29; White v. White, 344 N.J.Super. 211, 220, 781 A.2d 85 (Ch.Div.2001); see generally Fraser v. Nationwide Mut. Ins. Co., 135 F.Supp.2d 623, 633-34 (E.D.Pa.2001); Fishman and McKenna, Wiretapping and Eavesdropping, supra, § 2.5. By definition, an electronic communication in storage cannot be "intercepted" because it is not contemporaneous with the transmission.[4]See Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 462 (5th Cir.1994); Wesley Coll. v. Pitts, 974 F.Supp. 375, 389 (D.Del.1997), aff'd o.b., 172 F.3d 861 (3rd Cir.1998); Bohach v. City of Reno, 932 F.Supp. 1232 (D.Nev.1996).
As a result, a CDW is not subject to the more restrictive procedures and enhanced protections of the Wiretap Act, which include a showing of necessity because normal investigative procedures have failed, N.J.S.A. 2A:156A-10. Instead, the statutory standard for a CDW requires only a showing of "reasonable grounds to believe that the record or other information pertaining to a subscriber or customer of an electronic communications server is relevant and material to an ongoing criminal investigation." N.J.S.A. 2A:156A-29A(e).
In granting the CDW, the trial judge properly found that the information sought by the State was relevant and material to its investigation. However, the court's restriction of the CDW to the two-week timeframe was arbitrary since no reason was given for the limitation other than labeling the State's request "excessive" without any basis in the record to substantiate that conclusion.
Because the State seeks to show a pattern of use of defendant's DocISP account, a longer period than two weeks is appropriate for the State's investigation into the identification of the person who downloaded child pornography onto the laptop computer. We find no grounds to deny the State's requested period of one year as a reasonable timeframe for its investigation.
Reversed.
NOTES
[1] By installing peer-to-peer technology, an individual user is connected to all users of that peer-to-peer software without need for a centralized server in such a network. See generally, Clifford S. Fishman and Anne T. McKenna, Wiretapping and Eavesdropping, § 21.3, pp. 21 (West 3d ed. 2007).
[2] In a separate opinion, we have upheld the denial of defendant's motion to suppress evidence of the laptop and its contents. State v. Finesmith, 406 N.J.Super. 510, 968 A.2d 715 (App.Div.2009).
[3] The trial judge was and is designated to receive applications and enter orders authorizing interceptions of electronic communications under N.J.S.A. 2A:156A-8.
[4] N.J.S.A. 2A:156A-2 defines "electronic storage" as follows:
(1) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic submission thereof; and (2) any storage of such communication by an electronic communication service for purposes of backup protection of the communication.
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116 F.3d 1486
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.David G. MOORE, Plaintiff-Appellant,v.CITY OF WESTMINSTER; Jerry Kenney, in his official capacityas City manager for the City of Westminster andindividually; Mike Bouvier, in his capacity as Planning andBuilding Manager for the City of Westminster andindividually; Al Brackett, in his capacity as PoliceOfficer for the City of Westminster and individually; JohnLupe, in his capacity as Parking Enforcement Officer for theCity of Westminster and individually; Della Pesqueira, inher capacity as License and Zoning Inspector for the City ofWestminster and individually; Medlin's Towing, David E.Pane, Owner; Carr Towing, Inc.; Country City Towing,Defendants-Appellees.
No. 96-56215.
United States Court of Appeals, Ninth Circuit.
Submitted June 17, 1997**June 19, 1997.
Appeal from the United States District Court for the Central District of California, D.C. No. CV-95-01093-AHS; Alicemarie H. Stotler, District Judge, Presiding.
Before GOODWIN, SCHROEDER, and TASHIMA, Circuit Judges.
1
MEMORANDUM*
2
David G. Moore appeals pro se the district court's dismissal of his 42 U.S.C. §§ 1983, 1985 civil rights action alleging that the defendants violated his constitutional rights by seizing several of his automobiles. Moore claims that the Westminster Municipal Code ("Code"), pursuant to which the defendants seized his vehicles, violates the Due Process Clause. Moore also appeals the district court's denial of his Fed.R.Civ.P. 60(b) motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. 1291 and affirm.
3
The district court dismissed Moore's action pursuant to a local rule after Moore failed to file a timely opposition to the defendants' motion to dismiss. We need not decide whether such a dismissal was proper here because the record demonstrates that Moore's action is barred by res judicata. See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989) (stating that this court may affirm the district court's judgment on any ground finding support in the record); Clark v. Yosemite Community College Dist., 785 F.2d 781, 784 (9th Cir.1986) (holding that "a federal court must give [a] state court judgment the same full faith and credit as it would be entitled to in the courts of the state in which it was entered"); Slater v. Blackwood, 543 P.2d 593, 594 (Cal.1975) (stating that "[a] valid final judgment on the merits in favor of a defendant serves as a complete bar to further litigation on the same cause of action").
4
To the extent that Moore contends that the district court judge in this case was biased, we reject this contention because Moore has failed to offer any support for this contention. Because Moore's action is barred by res judicata, we need not address whether the district court properly denied his motion for reconsideration.
5
AFFIRMED.
**
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0366n.06
No. 10-1049, 10-1223 FILED
Apr 12, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Plaintiff-Appellee, ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
)
v.
)
)
MICHAEL WAYNE HESHELMAN, )
BRYCE HENRY SHERWOOD, )
)
Defendants-Appellants. )
Before: CLAY, GIBBONS and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendants-Appellants Michael Heshelman
(“Heshelman”) and Bryce Sherwood (“Sherwood”) appeal the district court’s determination that the
approximately three-year delay between indictment and trial did not violate their Sixth Amendment
speedy trial rights, and also allege error in the court’s calculation of their respective sentences. In
addition, Heshelman challenges the restriction on cross-examination of his co-conspirators. Because
we conclude that the appellants’ speedy trial rights were violated, we REVERSE.
I.
On February 23, 2006, twenty days before the statute of limitations would have expired, the
government filed a fifty-three count indictment against Heshelman, Sherwood and Dennis Mickelson
(“Mickelson”), alleging conspiracy, wire fraud, money laundering, international money laundering,
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
and forfeiture. All counts in the indictment stem from a Ponzi scheme run by Heshelman, Sherwood
and Mickelson between 1999 and 2006. The last overt act alleged in the indictment occurred in
2001. The government moved to seal the indictment the day it was filed “in order that the execution
of the arrest warrant be unimpeded and the investigation continue.” Although the court granted the
motion, the government conducted no further investigation of the indicted charges except to keep
a journal of Heshelman’s contacts with one of the victims.
HESHELMAN
At the time of the indictment, the government knew Sherwood’s and Mickelson’s addresses
and that Heshelman probably lived in Zurich, Switzerland. The government did not have
Heshelman’s address at that time but subsequently discovered that Heshelman listed a Swiss address
on his passport application. Although the United States has an extradition treaty with Switzerland
that covers all of the charges in the indictment, the government decided not to immediately pursue
Heshelman’s extradition due to concerns that the Swiss government would refuse to extradite him
on the money laundering counts. In July 2006, the United States submitted a request for a legal
opinion from the Swiss government on whether it would extradite Heshelman on the money
laundering counts but did not receive a response at that time.
Due to Swiss regulations, the government was not allowed to either independently pursue
Heshelman in Switzerland or initiate any contact with Heshelman, but had to pursue all contact
through the FBI’s legal attaché office in Switzerland. However, in 2006, Heshelman attempted to
contact FBI Agent Timothy Wetherbee (“Agent Wetherbee”), the primary agent assigned to
Heshelman’s case, and left multiple voicemails. Heshelman finally reached Agent Wetherbee on
2
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United States v. Heshelman; Sherwood
November 16, 2006. During this telephonic conversation, Heshelman informed Agent Wetherbee
that he knew he was under investigation in the United States and complained that no one had
contacted him about the investigation’s status and that the investigation was hampering his business.
When Agent Wetherbee requested Heshelman’s address, Heshelman responded that he lived in
Zurich, Switzerland, but declined to give his exact address, stating “If I tell you where I am living,
you will come and arrest me.” During this phone conversation Agent Wetherbee neither asked
Heshelman to return to the United States nor informed Heshelman about the indictment.1
Although the government delayed seeking Heshelman’s extradition, it sought the Swiss
government’s assistance in locating Heshelman. In September and November 2006, and February
2007, Agent Wetherbee asked the Swiss government if it could locate a physical address for
Heshelman based on his telephone number and Internet protocol address.2 The Swiss government
responded in January 2007 that it was unable to locate Heshelman and in June 2007 that it had traced
the Internet protocol address to an Internet cafe. Agent Wetherbee’s February 2007 request to the
Swiss government was the last attempt by the government to locate Heshelman or actively secure
his return to the United States for almost two years.
In December 2007, the Swiss government informed Agent Wetherbee that it had a possible
address for Heshelman but would not proceed further without a provisional arrest warrant. The
1
Although Agent Wetherbee testified that some investors had notified Heshelman and
Sherwood about the grand jury proceedings, there is no evidence that Heshelman knew that the
sealed indictment had been obtained.
2
Agent Wetherbee did not provide the Swiss government with the Swiss address Heshelman
listed on his passport application.
3
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
government decided to take no action out of concern that it would be obligated to extradite
Heshelman within a specified period of time without knowing for certain whether the Swiss
government would extradite him on the money laundering charges.
In addition to extradition, the government had another available option for locating and
arresting Heshelman—obtaining a notice of outstanding arrest warrant (red notice) through Interpol.
When a person who is the subject of a red notice tries to enter a country, a red notice is triggered
notifying the authorities that the person is wanted by another country. The country is then notified
of the person’s location. Although some countries will arrest a person who is subject to a red notice,
others, including Switzerland, will not. While living in Switzerland, Heshelman traveled throughout
Europe and the Dominican Republic using his own passport; thus, presumably, a red notice would
have triggered a notice to the government of his whereabouts, and possibly his arrest. The
government decided not to seek a red notice due to the lack of control over which country would
locate Heshelman and the possibility of that country not having an extradition treaty with the United
States.
Around March 2008, the United States Attorney’s Office in the Western District of Michigan
decided to start gathering the requisite information in the event the government decided to pursue
extradition. In May 2008, those documents were submitted to the Department of Justice. However,
the government did not actively pursue Heshelman’s extradition until around November or
December 2008, when the Swiss government notified the United States that Heshelman had been
arrested by Swiss authorities for a fraud perpetrated in Switzerland. The Swiss government informed
the United States that it knew Heshelman’s location and would cooperate with the United States if
4
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
it had a provisional arrest warrant, but absent a provisional arrest warrant, Heshelman might be
deported to a country of his choice. At that point, the United States concluded that the only option
was to obtain a provisional arrest warrant and seek Heshelman’s extradition.
The court unsealed the indictment on December 12, 2008, so that it could be attached to the
extradition packet. The United States requested Heshelman’s extradition on February 2, 2009.
Although Heshelman contested the extradition, the Swiss government granted the United States’
request on February 27, 2009.
The U.S. Marshals returned Heshelman to the United States between March 17 and March
27, 2009. Heshelman’s seven-day jury trial commenced on June 2, 2009, and the jury convicted him
on all counts.
SHERWOOD
On December 18, 2008, FBI agents informed Sherwood that there was a warrant for his
arrest. Soon thereafter, Sherwood contacted Agent Wetherbee and indicated he wanted to cooperate
and voluntarily surrender. Mickelson also voluntarily surrendered himself in December 2008, after
being informed of the arrest warrant and asked if he could cooperate. Mickeslon and Sherwood
pleaded guilty to count one of the indictment (conspiracy to commit wire fraud) on May 19, 2009
and May 26, 2009, respectively.
II.
Heshelman claims his Sixth Amendment right to a speedy trial was violated because the
government intentionally delayed arresting him and bringing him to trial for over three years.
5
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
Sherwood claims the government violated his Sixth Amendment speedy trial right because it knew
his whereabouts but intentionally decided not to proceed with his trial until Heshelman was arrested.
We review questions of law related to speedy trial violations de novo and questions of fact
under the clearly erroneous standard. United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006).
The Sixth Amendment to the United States Constitution guarantees all criminal defendants the right
to a speedy trial. U.S. Const. amend. VI. “When a defendant’s constitutional right to a speedy trial
has been violated, dismissal of the indictment is the only available option even when it allows a
defendant who may be guilty of a serious crime to go free.” United States v. Brown, 169 F.3d 344,
348 (6th Cir. 1999). To determine whether a speedy trial violation has occurred, we must balance
four factors: length of trial delay, reason for delay, defendant’s assertion of his right to a speedy trial,
and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). The Supreme Court has
clarified that
none of the four factors identified above [is] either a necessary or sufficient condition
to the finding of a deprivation of the right of speedy trial. Rather, they are related
factors and must be considered together with such other circumstances as may be
relevant. In sum, these factors have no talismanic qualities; courts must still engage
in a difficult and sensitive balancing process. But, because we are dealing with a
fundamental right of the accused, this process must be carried out with full
recognition that the accused’s interest in a speedy trial is specifically affirmed in the
Constitution.
Id. at 533.
A.
With respect to the first factor, length of delay, a trial delay of one year or more is generally
deemed “presumptively prejudicial” and triggers inquiry into the remaining factors. Doggett v.
6
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
United States, 505 U.S. 647, 652, n.1 (1992). The government concedes that the thirty-nine month
delay at issue in Heshelman’s case is presumptively prejudicial.3 The government also concedes that
the appellants timely asserted their speedy trial rights. Thus those factors weigh in Heshelman’s
favor, and we will limit our discussion to the second and fourth factors, reason for delay and
prejudice.
B.
When analyzing the reason why the defendant’s trial was delayed, we must determine
“whether the government or the criminal defendant is more to blame for that delay.” Doggett, 505
U.S. at 651. Although no single factor is dispositive in the speedy trial analysis, this factor is “[t]he
flag all litigants seek to capture.” United States v. Loud Hawk, 474 U.S. 302, 315 (1986). Where
the government acts with reasonable diligence in bringing a defendant to trial, “a defendant who
cannot demonstrate how his defense was prejudiced with specificity will not make out a speedy trial
claim no matter how great the ensuing delay.” United States v. Young, 657 F.3d 408, 418 (6th Cir.
2011) (internal citations omitted). However, if the government intentionally delays the trial to gain
some tactical advantage over the defendant, that is “weighted heavily against the government.”
Barker, 407 U.S. at 531; see Robinson, 455 F.3d at 607. Neutral reasons for delay such as
governmental negligence or overcrowded courts are still weighted against the government, but not
as heavily. Barker, 407 U.S. at 531. Conversely, if the delay is for a valid reason, such as a missing
3
Although the government contends the delay is only 34 months, the trial delay is calculated
from the date of indictment to trial—in Heshelman’s case, 39 months. Brown, 169 F.3d at 349 n.3.
However, the two-week period during which Heshelman contested his extradition is excluded from
this calculation.
7
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
witness, that will not be weighted against the government. Id. Nonetheless, “[a] defendant has no
duty to bring himself to trial; the [government] has that duty . . . .” United States v. Ingram, 446 F.3d
1332, 1337 (6th Cir. 2006) (quoting Barker, 407 U.S. at 527). Due to the government’s “affirmative
constitutional obligation to try the defendant in a timely manner . . . the burden is on the prosecution
to explain the cause of the pretrial delay.” Brown, 169 F.3d at 349 (quoting United States v.
Graham, 128 F.3d 372, 374 (6th Cir. 1997)).
Heshelman argues that despite the government’s knowledge that he resided in Switzerland
at the time of the indictment and the existence of a treaty between the United States and Switzerland
that allows for extradition on all the charges against him, the government intentionally decided not
to pursue extradition based on an unfounded fear that the Swiss government would not extradite him
on the money laundering charges. The government also failed to place a red notice in Interpol,
which could have led to Heshelman’s arrest during his travels to other foreign countries. Instead,
the government chose to refrain from pursuing the available options to retrieve him from Switzerland
and wait for him to voluntarily return to the United States because it wanted to have complete control
over the charges that could be tried.
The government admits that it used a “wait-and-see” strategy with Heshelman and hoped to
arrest him whenever he returned to the United States to visit his family. The government argues this
strategy was reasonable due to the difficulties in pursuing extradition and the lack of control over
the offenses on which Heshelman would be extradited.
Once an indictment is filed, the government must be reasonably diligent in its efforts to locate
the defendant(s) charged. See United States v. Hayes, 40 F.3d 362, 365 (11th Cir. 1994) (citing
8
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
Smith v. Hooey, 393 U.S. 374, 383 (1969)). When the defendant knows about the charges and
actively seeks to evade detection, the government is permitted to expend less effort to locate the
defendant. See, e.g., United States v. Arceo, 535 F.3d 679, 685–86 (7th Cir. 2008) (despite
government’s negligence in waiting over four years after the indictment to obtain an arrest warrant,
blame for delay lied with defendant who was informed by the government of its intent to bring
charges against him, fled jurisdiction and used alias to avoid detection).
However, if a defendant is unaware of the indictment, the government’s burden is higher.
See Brown, 169 F.3d at 349–50 (government did not act with reasonable diligence where defendant
was unaware of the indictment and government attempted to locate him through surveillance of his
home but did not inform defendant’s lawyer about the indictment although the lawyer specifically
requested to be informed); Ingram, 446 F.3d at 1337–38 (no reasonable diligence where government
methods to locate defendant included driving by his house and leaving telephone messages but
government failed to inform defendant about indictment when he returned the government’s phone
call).
The government is obligated to act diligently even when the defendant is located in a foreign
country. In United States v. Mendoza, the Ninth Circuit found that the government did not make a
“serious effort” to locate a defendant who went to the Phillipines before the indictment was filed.
530 F.3d 758, 763 (9th Cir. 2008). Although the defendant refused to give the government his exact
location, the government was able to speak with the defendant twice after leaving messages with
defendant’s relatives. Because the government never informed the defendant about the indictment
9
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
and waited four months after his return to the United States to arrest him, the court found the
government did not act diligently. That court explained:
Even though Mendoza left the country prior to his indictment, the government still
had an obligation to attempt to find him and bring him to trial . . . [T]he government
was required to make some effort to notify Mendoza of the indictment, or otherwise
continue to actively attempt to bring him to trial, or else risk that Mendoza would
remain abroad while the constitutional speedy-trial clock ticked. However, the
government made no serious effort to do so.
Id.; see also Doggett, 505 U.S. at 652–53 (no reasonable diligence where defendant went to
Columbia before the indictment and law enforcement entered defendant’s name in database but entry
expired, which allowed defendant to return to United States and live openly for six years before
arrest). In contrast, reasonable diligence has been found where the government seeks the assistance
of foreign governments and uses the tools available to find and extradite the defendant. See United
States v. Vasquez-Uribe, 426 F. App’x 131, 138 (3d Cir. 2011) (affirming district court’s finding that
“[b]ecause the government assiduously collaborated with foreign and multinational law enforcement
agencies in its efforts to locate [the defendant] . . . the lapse in time between the indictment and the
extradition was not ‘unreasonable in light of the circumstances.’”); Hayes, 40 F.3d at 365–66
(finding that the government acted with reasonable diligence where over a fifty-two month period
it asked the United Kingdom for assistance in obtaining the defendant from Zimbabwe, filed notices
with Interpol, made inquiries to the Zimbabwean embassy about the defendant’s whereabouts, filed
a provisional arrest warrant in the United Kingdom in case the defendant was deported to that
country, and attempted to locate the defendant in other countries).
10
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
On the other hand, diligent pursuit does not require that extradition be pursued when it would
be futile. See, e.g., United States v. Corona-Verbera, 509 F.3d 1105, 1114–15 (9th Cir. 2007)
(government’s failure to pursue extradition from Mexico when Mexican government had policy of
not extraditing its citizens on narcotics charges was not negligent); United States v. Blanco, 861 F.2d
773, 778 (2d Cir. 1988) (no government negligence where Colombia had policy of not extraditing
its citizens during the relevant period); see also United States v. Bagga, 782 F.2d 1541, 1543–44
(11th Cir. 1986) (no negligence where extradition treaty with India did not “expressly cover” the
offense for which defendant was charged).
In this case, actively seeking Heshelman’s extradition would not have been futile because the
United States has an extradition treaty with Switzerland that covers all the charges at issue. The
government did not pursue extradition for almost three years because of the possibility that
Switzerland would place conditions on Heshelman’s extradition. However, the government made
only one attempt to find out what those conditions would be, if any. On the occasions where the
government actively sought the Swiss government’s assistance in finding Heshelman, the Swiss
government responded with the requested assistance. Subsequently, when the Swiss government
informed the United States that it had a possible address for Heshelman, which it would disclose if
the United States obtained a provisional arrest warrant, the government declined to do so. Instead,
the government decided to enter Heshelman’s name in a law enforcement database and simply wait
for notification of Heshelman’s voluntary return to the United States.
The government contends that the failure to pursue Heshelman’s extradition earlier was
justified by the obstacles typically involved in obtaining extradition and the difficulties in obtaining
11
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
assistance from the Swiss government on this matter. In United States v. Pomeroy, 822 F.2d 718
(8th Cir. 1987), the government advanced a similar argument and claimed that despite Canada’s
extradition treaty with the United States, the Canadian Extradition Act, which gave Canadian
officials the discretion to deny extradition, justified the government’s failure to seek extradition of
a defendant located in that country. The Eighth Circuit disagreed, finding “nothing in the record”
to indicate that Canadian officials would have denied extradition upon proper request by the United
States. Id. at 721–22.
Likewise, the government in this case provides no evidence to support its claim that
extraditing Heshelman from Switzerland would have been difficult. On the contrary, the record
demonstrates that the Swiss government willingly provided assistance when able and that once the
United States finally decided to request extradition the Swiss government acted promptly and granted
the government’s request in two weeks.
Certain intentional delays by the government are justifiable. We stated in United States v.
Schreane, 331 F.3d 548, 555 (6th Cir. 2003), that a decision by the federal government to delay a
defendant’s trial until the state government completed its prosecution of the defendant “is without
question a valid reason for delay.” But see United States v. Battis, 589 F.3d 673, 680 (3d Cir. 2009)
(“The Government cannot indict a defendant and then delay a case indefinitely, without any notice
to a federal judge, merely because it is aware of a state proceeding involving the same defendant.”)
Postponing a trial in order to find a missing witness is another example of intentional delay that is
valid. See United States v. Anderson, 471 F.2d 201, 203 (5th Cir. 1973). Nor can the government
intentionally prevent a defendant from pleading guilty and obtaining the benefits of a negotiated plea
12
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
bargain to ensure the defendant testifies against other defendants in a related case. United States v.
Roberts, 515 F.2d 642, 646–47 (2d Cir. 1975).
Here, the government deliberately chose not to extradite Heshelman sooner because it wanted
to ensure that Heshelman could be tried on the money laundering charges. Although the government
cannot be faulted for its desire to try Heshelman on all charges in the indictment, its willingness to
wait for an indefinite period of time to fulfill that desire is inconsistent with the dictates of the Sixth
Amendment. The government’s strategy of waiting for Heshelman to return to the United States is
even more troubling given Agent Wetherbee’s testimony that the last record of Heshelman’s
presence in the United States was in January of 2004, two years before the indictment. The
government continued to wait until Swiss officials informed the United States that Heshelman might
be deported to a country of his choice, which could conceivably have denied the government the
opportunity to try Heshelman on the charges.
Drawing a line between intentional delays that are permissible and those that are
impermissible, with deferring prosecution because of an ongoing trial by another sovereign (see
Schreane, 331 F.3d at 555) or a missing witness (see Anderson, 471 F.2d at 203) on one side of the
line, and deferring prosecution as a means to exert pressure on a potential cooperating witness (see
Roberts, 515 F.2d at 646–47) on the impermissible side, the government’s conduct in this case falls
on the side of the impermissible. Despite the complete absence of any indication that Switzerland
would not extradite Heshelman on the money laundering charges, the government still chose to
intentionally delay pursuing Heshelman’s extradition for nearly three years simply because it wanted
to choose the location of Heshelman’s arrest and ensure absolute control over the charges brought
13
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
against him. The ability to try Heshelman on money laundering, the indicted charge with the longest
maximum sentence, undoubtedly worked to the advantage of the government, insofar as it provided
the government with greater plea bargaining power and allowed the government to obtain a more
severe penalty upon conviction. Although the government could have reasonably waited for a short
period of time for Heshelman to voluntarily return to the United States, once the wait became
presumptively prejudicial, the intentional delay by the government was no longer justifiable. As a
result, this factor weighs heavily against the government.
The government argues that Heshelman is nonetheless responsible for the delay because he
was a fugitive evading prosecution. However, a person under investigation for a crime in the United
States is not transformed into a fugitive solely on the basis of his or her residence in a foreign
jurisdiction or country. See Mendoza, 530 F.3d at 763. The record demonstrates that Heshelman
periodically resided in Switzerland prior to any investigation into his Ponzi scheme and was living
in Switzerland at the time of the indictment. Although Heshelman did decline to give Agent
Wetherbee his address for fear of arrest, he also made multiple calls to Agent Wetherbee to find out
the status of the government’s investigation. There is no evidence that Heshelman knew either that
charges had been filed against him or that the government had concluded its investigation of the
Ponzi scheme and found him criminally culpable.4
4
Thus, this case is distinguishable from cases in which a defendant flees the jurisdiction
because he knows that criminal charges have been filed or are imminent. We further note the
inconsistencies in the government’s argument, as it first attempts to justify not informing Heshelman
about the indictment because it wanted Heshelman to voluntarily return to the United States and then
takes the opposite position that Heshelman already knew about the charges against him and was a
fugitive evading prosecution.
14
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
Although the district court’s conclusion that the government acted with reasonable diligence
is entitled to “considerable deference,” Doggett, 505 U.S. at 652, that conclusion was based on the
clearly erroneous determinations that Heshelman was responsible for the delay as a fugitive evading
prosecution and that the government acted reasonably considering the difficulties in obtaining
extradition.5 But, as discussed above, Heshelman was not a fugitive evading prosecution and the
government failed to discharge its “constitutional duty to make a diligent, good-faith effort to bring
[Heshelman] before the [district] court for trial.” Pomeroy, 822 F.2d at 722 (quoting United States
v. McConahy, 505 F.2d 770, 773 (7th Cir. 1974)).
C.
The final factor in the speedy trial analysis is prejudice.
In United States v. Mundt, we explained:
When a defendant is unable to articulate the harm caused by delay, the reason for the
delay . . . will be used to determine whether the defendant was presumptively
prejudiced. If the government has been diligent in its pursuit of a defendant and
delay was “inevitable and wholly justifiable,” a speedy trial claim will generally fail
. . . If, on the other hand, the government has been intentionally dilatory for the
purpose of impairing the defendant’s defense, violation will almost surely be found
. . . Between these two extremes lies negligence. “While not compelling relief in
every case where bad-faith delay would make relief virtually automatic, neither is
negligence automatically tolerable simply because the accused cannot demonstrate
exactly how it has prejudiced him.”
29 F.3d 233, 236–37 (6th Cir. 1994) (internal citations omitted).
We held in United States v. Ferreira, 665 F.3d at 701, 708 (6th Cir. 2011), that a thirty-five-
month delay caused by the government’s gross negligence was sufficient to presume prejudice.
5
We note that the district court deemed this case a “close call.”
15
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
Although we explained in Ferreira that not every three-year delay will result in a presumption of
prejudice, we found it was warranted in that case because “we give greater weight to those delays
for which the government is at fault.” Id. at 709. Similarly, the instant delay attributable to the
government’s intentional delay in seeking extradition warrants a presumption of prejudice. The
government has not rebutted this presumption.
Each factor in the speedy trial analysis—the three-year delay (over three times the amount
considered to be presumptively prejudicial), the reason for delay (the government’s purposeful
refusal to employ the extradition process), Heshelman’s timely assertion of his speedy trial right, and
the presumptive prejudice—all weigh in Heshelman’s favor. On balance, the factors mandate a
finding that Heshelman’s speedy trial rights were violated.
III.
Our analysis differs slightly for Sherwood as the government could have arrested him at any
time. The government concedes that the thirty-nine month delay in Sherwood’s case is
presumptively prejudicial. The government also concedes that Sherwood timely asserted his speedy
trial rights. These factors weigh in Sherwood’s favor, and we discuss only the government’s reason
for delay and prejudice. As soon as the indictment was unsealed and a warrant issued for
Sherwood’s arrest, Sherwood voluntarily turned himself in. Further, the government admits that it
delayed trying Sherwood because it thought that Sherwood might be able to prevail at trial if he
could blame an absent Heshelman for all wrongdoing.
Although the government generally has a legitimate interest in trying co-conspirators
together, such interest does not automatically constitute a justifiable reason for delay. We explained
16
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
in United States v. Jackson, 473 F.3d 660, 666 (6th Cir. 2007), that the government’s decision to
delay a defendant’s trial to pursue higher-priority co-defendants was not a valid reason for delay.
Additionally, in United States v. Holyfield, we found the delay caused by a co-defendant’s pre-trial
appeal weighed in the defendant’s favor because the government could have chosen to proceed with
the defendant’s trial while his co-defendant’s appeal was pending. 802 F.2d 846, 848 (6th Cir.
1986).
Although delays due to the government’s diligent efforts to locate and try co-defendants may
normally constitute “neutral” reasons for delay that are not weighted heavily against the government,
that is not the situation here. As discussed above, the government did not delay Sherwood’s trial
while it diligently sought to locate Heshelman. Rather, the three-year intentional delay of
Sherwood’s trial was a result of the government’s intentional delay in extraditing Heshelman. As
a result, the government’s unjustifiable reason for delay weighs heavily in Sherwood’s favor.
Because the government is at fault for the thirty-nine month delay between Sherwood’s
indictment and guilty plea, he also warrants a presumption of prejudice. Ferreira, 665 F.3d at 709.
The government has failed to rebut this presumption. As with Heshelman, all four speedy trial
factors weigh in Sherwood’s favor, with three factors having strong weight. Accordingly, we
conclude that Sherwood’s Sixth Amendment speedy trial rights have been violated.
IV.
17
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
For the foregoing reasons, we REVERSE the district court’s denial of the motion to dismiss
and remand with instructions to dismiss the indictment against Heshelman and Sherwood with
prejudice.6
CLAY, Circuit Judge, concurring. I agree with the majority that Defendants’ speedy trial
rights were violated, but write separately to provide additional explanation concerning the standard
of review with respect to the second Barker factor: reason for delay. Barker v. Wingo, 407 U.S. 514,
530–31 (1972).
To determine whether a speedy trial violation has occurred, courts look to the four Barker
factors: length of trial delay, reason for delay, defendant’s assertion of his right to a speedy trial, and
prejudice to the defendant. Id. at 530. The majority correctly lays out the primary standard of review
for speedy trial cases: questions of law are reviewed de novo and questions of fact are reviewed for
clear error. Maj. Op. at 6 (citing United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006)). But
when the controlling issue of whether Defendants’ speedy trial rights were violated requires us to
balance factors, we must also ask how we are to review the district court’s findings on each of those
factors. See, e.g., United States v. Grigsby, ___ F.3d ___, No. 11-3736, slip op. at 8 (6th Cir. Apr.
11, 2013) (noting the use of differing standards of review for each factor in a four-factor balancing
test).
That question is easily answered with respect to first and third Barker factors, length of delay
and defendant’s assertion of his right to a speedy trial, respectively. Both are clearly questions of
6
Given this ruling we need not discuss the additional challenges raised by Heshelman and
Sherwood on appeal.
18
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
fact that we review for clear error. The other two factors do not admit to quite so easy answers. The
fourth factor, prejudice, likely presents a mixed question of law and fact which we would review de
novo, cf. Wilson v. Parker 515 F.3d 682, 707 (6th Cir. 2008) (noting that the prejudice prong of an
ineffective assistance of counsel analysis is a mixed question that is reviewed de novo), but the
proper scope of our review of that factor need not be settled today. That leaves the second
factor—reason for delay.
With respect to the reason for delay, the Supreme Court has told us that we must accord
“considerable deference” to the district court. United States v. Doggett , 505 U.S. 647, 652 (1992).
Considerable deference is not, however, a standard we frequently apply in connection with appellate
review, but it would appear that in this context, considerable deference equates to clear error review,
which is familiar. For the proposition that considerable deference applies in reviewing the second
Barker factor, Doggett cited McAllister v. United States, 348 U.S. 19 (1954), an admiralty case that
involved reviewing a “finding” of negligence, and a section of Wright & Miller’s Federal Practice
and Procedure that discusses McAllister. Doggett, 505 U.S. at 652. That section described
McAllister as holding “that a determination of negligence is reviewed under the clearly erroneous
rule.” 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2590 (1st ed.
1971) (internal quotation marks omitted). Like negligence in admiralty cases, Doggett suggests that
review of a district court’s determination about whether the asserted reason for delay is justified is
to be reviewed for clear error.1
1
The other case cited by Doggett on this point is Cooter & Gell v. Hartmarx Corp., 496 U.S.
384 (1990), a case dealing with the imposition of sanctions under Federal Rule of Civil Procedure
19
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
Applying that familiar standard, a finding is clearly erroneous when, “although there may be
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v. Master, 614 F.3d 236, 238 (6th Cir.
2010) (internal quotation marks omitted). In this case, the district court determined that “[t]his case
lies somewhere in the middle ground in assessing responsibility for the delay,” finding that the
government’s conduct was not “attributable to bad faith” but was also not “absolutely justified.”
United States v. Heshelman, No. 06-CR-44, 2009 WL 1409472, at *4 (W.D. Mich. May 20, 2009).
The only justification that the government offered for its wait-and-see approach, merely hoping that
Heshelman would return to the United States voluntarily, was its uncertainty about whether the
Swiss would extradite Heshelman on the money laundering charges if it asked the Swiss to do so.
Further, that uncertainty was revealed only by the testimony of Agent Wetherbee. Wetherbee’s
testimony was not corroborated or supported. The government did not introduce any evidence
concerning why Wetherbee thought that it was possible that the Swiss might decline to extradite on
the money-laundering charges. The “why” is crucial to establishing the reasonableness of
Wetherbee’s subjective uncertainty as to the reasonableness of that uncertainty, and more broadly,
the reasonableness of the government’s basing its three years of lack of concrete action on that
uncertainty. Without the government satisfactorily explaining its actions, it was clear error for the
district court not to have weighed this factor against the government.
11. The portion of Cooter & Gell cited by the Doggett Court discusses how “[t]he considerations
involved in the Rule 11 context are similar to those involved in determining negligence, which is
generally reviewed deferentially.” Cooter & Gell, 496 U.S. at 402 (citing McCallister, 348 U.S. at
20–22) (additional citation omitted).
20
Nos. 10-1049; 10-1223
United States v. Heshelman; Sherwood
I therefore agree with the majority that the unsatisfactory reason provided by the government
for the delay, combined together with the 39-month delay, raises the presumption of prejudice, see
Maj. Op. at 16–17 (citing United States v. Ferreira, 665 F.3d at 701, 709 (6th Cir. 2011)), thereby
enabling Defendants to establish a violation of their speedy trial rights, see United States v. Graham,
128 F.3d 372, 375 (6th Cir. 1997). For the foregoing reasons, I concur in the majority opinion.
21
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167 So.2d 425 (1964)
Arthur E. GAUTREAU
v.
BOARD OF ELECTRICAL EXAMINERS OF the CITY OF BATON ROUGE and Parish of East Baton Rouge.
No. 6201.
Court of Appeal of Louisiana, First Circuit.
July 1, 1964.
Rehearing Denied September 30, 1964.
*426 R. Gordon Kean, Jr., Parish Attorney, and John V. Parker, Asst. Parish Attorney, Baton Rouge, for appellant.
Tilton & Whalen, by Joshua A. Tilton, Baton Rouge, for appellee.
Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.
LANDRY, Judge.
Defendant, Board of Electrical Examiners of the City of Baton Rouge and Parish of East Baton Rouge (sometimes hereinafter referred to simply as "the Board"), has taken this appeal from the judgment of the trial court making peremptory an alternative writ of mandamus ordering appellant to approve the application of and issue appellee, Arthur E. Gautreau, a license as an electrical contractor pursuant to the Electrical Code, City of Baton Rouge, Parish of East Baton Rouge, 1962 Edition, (sometimes hereinafter referred to merely as "the Code").
The facts attending the instant litigation are undisputed between the parties and only questions of law are presented as will hereinafter appear.
This present controversy primarily and basically involves a divergence of opinion between the litigants as to the correct interpretation of Section 303 of the Code which prescribes the requirements for licensing electrical contractors in the City of Baton Rouge and the Parish of East *427 Baton Rouge, said cited section reading in full as follows:
"Section 303. Requirements for License. (a) Except as hereinafter provided, before a license shall be granted to any person firm or corporation, such person, firm or corporation shall apply to the Electrical Inspector for a license, and the applicant, if a person, or if a corporation, one of its officers or representatives, or if a firm, one of the members thereof, shall present himself before the Examining Board hereinbefore provided for, at the time and place fixed by said Board. If the Board shall find upon due examination that the applicant presenting himself is of good character and has had at least five (5) years' experience in the occupation or business governed by the license for which he is applying or is a graduate of any Trade School or College of recognized standing, or possesses a satisfactory knowledge of electricity and the natural laws pertaining to and governing same, and the use and function of electrical appliances and devices for electric light, heat or power purposes, and possesses skill and knowledge in all matters pertaining to the class of business governed by the license of which he is applying, said applicant shall be granted such license on giving bond and paying fees as herein provided. As to the length of experience mentioned above, at least two (2) affidavits must be submitted to this effect, and these affidavits must be sworn to by reliable persons who have known the applicant for the five year period.
"(b) The questions of the examination referred to herein shall be strictly in reference to the current edition of the National Electric Code, the provisions of this chapter and other strictly fundamental and elementary questions of theory and wiring diagrams.
"(c) All persons, firms or corporations now engaged in the business of Master Electricians, and so engaged for a period of five (5) years, or having five (5) years experience as journeymen; apprenticeship experience not to be included in the occupation governed by the license for which application is made, having an established place of business, shall be granted a license to engage in that class of business without examination provided the two (2) affidavits called for above are furnished."
The aforesaid requirements for license are imposed by virtue of Section 302 of the Code which states:
"Section 302. License Required. Every person, firm or corporation, before engaging in the business of installing or contracting to install electric conductors, dynamos, motors, materials, electrical apparatus, and electric installations, also before engaging in the business of buildings, construction, assembling, installing, and repairing of electric light fixtures or contracting to build, construct, assemble, install and repair such light fixtures must procure a license to engage in said business in the City of Baton Rouge, Louisiana. * * *"
Plaintiff, Arthur E. Gautreau, (sometimes hereinafter referred to as "Appellee" or "Applicant"), admittedly a person of good character having more than five years experience in the electrical field, contends it is the ministerial duty of the Board to license him as an electrical contractor by virtue of the hereinabove quoted provisions of Section 303 which, according to Applicant, makes it the mandatory duty of the Board to license an applicant who is of good character and (1) has had at least five years experience or (2) is a graduate of a Trade School for electricians or (3) possesses a satisfactory knowledge of electricity.
On the other hand appellant, conceding a degree of ambiguity with respect to Section 303, nevertheless maintains its provisions *428 do not impose upon the Board the mandatory, ministerial duty of issuing a license to an applicant of good character having more than five years experience but rather that such an applicant must take and satisfactorily pass a written examination as provided for by Section 301 of the Code which recites:
"Section 301. Examination of Applicants. (a) In pursuance of the enforcement of this section, it shall be the duty of the Examinining Board to determine the ability and responsibility of applicants for license under this chapter. The Board shall adopt a uniform application blank which shall contain detailed information concerning applicants' general and technical fitness for license. Said blank shall contain also the report of the Examining Board in detail and shall be filed with the Inspector, and he shall, when application is approved by the Board, issue a certificate to the City Treasurer and permits may then be issued and not before.
"(b) Permits may be issued to the individuals, firms or corporations, when the person to be in charge of the work for said individual, firm or corporation shall have passed the examination, and only so long as he or a licensed electrician under this chapter shall remain in charge of electrical work for such individual, firm or corporation."
By virtue of a joint stipulation appearing of record and upon which the factual aspects of this litigation were largely submitted, it appears that Sections 301 and 303 of the Code, 1962 Edition, are identical with certain unchanged (but otherwise numbered sections) of the Code as originally enacted in 1928. It is further stipulated in effect that since its adoption the Code has been interpreted by defendant Board as requiring all applicants (excepting those who are registered electrical engineers) to take a written examination to determine their qualifications for license. The stipulation further recites that since 1928 the Code has been administratively construed to mean that in order to be eligible for the examination prescribed by Section 301, an applicant must either possess five years' experience or be a graduate of a trade school. It is conceded Applicant, who possesses five years experience, took the prescribed written examination under protest, but failed to attain a passing score of 75 and was consequently denied a license. Appellee was advised, however, that he could apply for re-examination six months from the date of his first test.
The controversy presented for resolution must be adjudicated in the light of certain well established principles applicable in view of the circumstances shown.
A writ of mandamus may be directed to a public officer to compel performance of a ministerial duty. LSA-C.C. P. Article 3863. Mandamus will issue only when there is a clear and specific right to be enforced or a duty which ought to be performed. It never issues in doubtful cases. It may be used only to compel performance of a purely ministerial duty. State ex rel. Hutton v. City of Baton Rouge, 217 La. 857, 47 So.2d 665; State ex rel. Loraine, Inc. v. Adjustment Board, 220 La. 708, 57 So.2d 409.
Where a relator does not plead or pray that an ordinance involved in litigation be declared invalid or unconstitutional its legality and constitutionality is presumed. State ex rel. Hutton v. City of Baton Rouge, supra. A mandamus proceeding is not a proper action to attack the constitutionality of a statute or ordinance. State ex rel. Hutton v. City of Baton Rouge, supra, State ex rel. Monk v. Police Jury of Vernon Parish, La.App., 3 So.2d 186.
We shall first dispose of Applicant's contention that the ordinance in question is unconstitutional in that it fails to provide guides for the written examination prescribed by the Board as a prerequisite to licensing an applicant with five years experience *429 in the electrical field, because this contention may be disposed of on purely procedural grounds.
Plaintiff's petition, consisting of four short paragraphs and a concise prayer, merely alleges his application for a license and his compliance with the Code's provisions, particularly Section 303 thereof. Next it is simply recited that notwithstanding his qualifications, his application was denied. Paragraph four and the prayer of Appellee's complaint state in full as follows:
"4.
"The refusal and denial by said Board to approve your petitioner's application for the license to practice his profession is not justified, and further, petitioner avers that the law provides him no relief by ordinary means, and justice and reason require that a writ of mandamus issue herein directing the Board of Electrical Examiners of the City of Baton Rouge and Parish of East Baton Rouge to approve the application by your petitioner for a license to practice his profession as an electrician."
"WHEREFORE, petitioner prays that an order issue herein addressed to the Board of Electrical Examiners of the City of Baton Rouge and Parish of East Baton Rouge, directing the approval of the application submitted by petitioner, Arthur E. Gautreau, for a license to practice his profession as an electrician, or to show cause to the contrary within a certain time after the service of the order to be fixed by the Court.
"Further, for all equitable and general relief as the law and the nature of the case may provide."
Nowhere in the petition or prayer do we find an attack on the legality or validity of the ordinance in question. Quoted paragraph four of appellee's petition supra, in substance merely charges, in the most general terms, the abuse of discretion by defendant Board without specifying the nature of such alleged abuse. By implication and inference the refusal to perform an alleged ministerial duty is averred. Such, however, is not sufficient to raise the unconstitutionality of the ordinance. The learned trial court did not favor us with written reasons for judgment therefore we cannot say whether he considered the ordinance invalid. Had our esteemed colleague below held the act invalid he would under the circumstances shown clearly have contravened the jurisprudence established in State ex rel. Hutton v. City of Baton Rouge, supra, and State ex rel. Monk v. Police Jury of Vernon Parish, supra. We presume therefore the judgment of the trial court was based on the premise the applicable section of the Code imposed the ministerial duty upon defendant Board of licensing an applicant possessing five years experience.
In view of the cited jurisprudence we hold that the issue of alleged unconstitutionality of the Code (because of its reputed failure to prescribe guides for giving the examination prescribed therein) is not before this Court inasmuch as said issue was not specifically plead. We further hold that the sole question before us on this appeal is whether mandamus lies herein because (as contended by appellee) the Code does not require a written examination by an applicant with five years experience therefore it is the mandatory, ministerial duty of the Board to issue applicant a license, or whether, as argued by appellant, said Code (admittedly vague and ambiguous) nevertheless requires such an applicant to satisfactorily pass a written examination as a condition precedent to receipt of an electrical contractor's license.
LSA-R.C.C. Article 18 provides that the universal and most effectual way of determining the true meaning and intent of a dubious or ambiguous law is consideration of its reason and spirit, or the cause which prompted the legislature to enact it.
*430 In construing a statute, the Court's function is to discover and apply the legislative intent as appears in the following language which we cite with approval from Dore v. Tugwell, 228 La. 807, 84 So.2d 199:
"In this situation, the question arises as to the duty of the court in construing the statute. It has been many times said that it is the function of the courts to interpret the laws so as to give them the connotation the lawmaker obviously intended and not to construe them so rigidly as to give them preposterous or odd meanings * * *. The object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law in the statute construed so as to produce a reasonable result * * *."
Also apropos the issue at hand is the following language employed in State ex rel. Thompson v. Dept. of City Civil Service, 214 La. 683, 38 So.2d 385:
"Appropriate here is the following found in Re Hibernia Bank & Trust Co., 185 La. 448, 169 So. 464, 472:
"`"In the case of Church of Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226, and glaringly in the case of [Territory of] Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016, the Supreme Court of the U. S. laid down with great force and clearness the doctrine that in construing a statute it is the duty of the Court to seek out the intention of the Legislature and to give effect thereto and in the same manner and to the same extent that it construes a will to determine the intention of the testator, or a contract to determine the intention of the parties thereto, and that no matter how broad and comprehensive may be the language employed by the statute, if it was not the intention of the Legislature to cover a particular case by that broad and comprehensive language, that then no effect should be given to it because the Legislature did not so intend. * * * But even if the language of the act is as broad as opponents contend, it is then the duty of the court to restrain its operation within narrower limits than its words import, if the Court is satisfied that their literal meaning would extend the cases which the legislature never intended to include."'
"That doctrine was affirmed in Smith v. Town of Vinton, 209 La. 587, 25 So. 2d 237, 239, in which we further quoted approvingly from Gremillion v. Louisiana Public Service Commission et al., 186 La. 295, 172 So. 163, as follows:
"`"In the construction of statutes absurd results should be avoided, and when the literal construction would produce such a result, the letter of the law must give way to its spirit and the statute should be construed so as produce a reasonable result. * * *"'"
In instances involving the construction of laws the meaning of the statute involved is to be determined by its reason and spirit, and in ascertaining its intent courts are not bound by the niceties of grammatical rules. In this regard the rule is well and tersely set forth in the following excerpt from Edwards v. Daigle, 201 La. 622, 10 So.2d 209:
"In construing this provision of the statute a strict adherence `to the niceties of grammar rules' would compel us to say that in a case like this only one candidate could receive `the greatest number of votes' and therefore the Committee could declare the nomination of only one candidate but we are not held bound to such strict rules. To the contrary, it is our duty to discover, if possible, the intent of the lawmakers *431 and the `true meaning of the law'. * * *"
The meaning and intent of a law is to be determined by consideration of its provisions in their entirety, effect being given to all its provisions consistent with its express terms and conditions as well as the obvious intent to be drawn from the statute as a whole. Inconsistencies and contradictions in a law are to be resolved, where possible, in such a way as will render the statute valid where such resolution may be made consistent with the spirit which prompted its enactment. C. H. F. Finance Company v. Jochum, 241 La. 155, 127 So.2d 534; Wilkinson v. Poag, La.App., 181 So. 27.
It is clearly settled jurisprudence that the foregoing rules of statutory construction are applicable to municipal ordinances. City of New Orleans v. Leeco, Inc., 226 La. 335, 76 So.2d 387; 62 C.J.S. Verbo Municipal Corporations, § 442d, Page 843.
Our careful consideration of the Code discloses that it purports to adopt a comprehensive Electrical Code for the City of Baton Rouge and the Parish of East Baton Rouge detailing therein the precise manner in which electrical works, wiring and mechanisms are to be performed and installed. In addition the Code provides for the granting and revocation of licenses to engage in the occupation of electrical contractor. Provision is also made for the appointment of inspectors whose functions and duties are expressly stated to consist of supervision and inspection of all electrical installations and work to insure compliance with the code's provisions. Finally, penalties are provided for violations of the terms of the code.
The obvious purpose of such a comprehensive Code is protection of the public welfare by insuring that only qualified persons are licensed as electrical contractors. Patently the field of electrical contracting is one coupled with a public interest considering the danger to life, limb and property attending the improper, faulty, defective or inadequate performance of such work. No great amount of imagination is required to foresee the danger to property by fire or the peril to life and limb arising from improperly or defectively installed electrical installations. The unmistakable intent of the ordinance is protection of the public welfare and interest by insuring that only capable, qualified parties are entitled to pursue the inherently dangerous trade of electrical contractor. That the Code so intended is clearly manifest by the hereinabove quoted Section 301(a) which expressly imposes upon the Board the obligation and responsibility of determining the ability and responsibility of applicants for license.
Fundamentally the dispute herein turns upon the meaning of the phrase "and possesses skill and knowledge in all matter pertaining to the class of business governed by the license of which he is applying" contained in Section 303. Appellee maintains said phrase is applicable only in those cases wherein a person applying for a license has neither 5 years experience nor is a graduate of a trade school and must be given an examination to determine his qualifications. Appellee further maintains that the Code plainly provides that when a person has five years experience (as in his case), or is a graduate of a trade school, no examination is required and the license must be issued as a purely ministerial duty of the Board. On the other hand, however, appellant contends the position of appellee has the effect of writing out of the Code the phrase "and possesses skill and knowledge in all matter pertaining to the class of business governed by the license of which he is applying", which requirement pertains to applicants seeking license based on either five years experience or graduation from a trade school. The Board maintains the cited phrase pertains to all applicants save only registered electrical engineers who are admitted to license without examination under the third category *432 "or possesses a satisfactory knowledge of electricity and the natural laws pertaining to and governing same and the use and function of electrical appliances and devices for electric light, heat or power purposes."
The agreed stipulation of facts appearing of record concedes that the Code since its enactment, has been consistently and continuously interpreted as contended by appellant and that a written examination has been required of applicants seeking license based on five years experience. In this regard, the Board's interpretation is founded on the premise that the Board is required to give an examination by that language in Section 303(a) which states that in order to obtain a license it must be shown that the applicant "possesses skill and knowledge in all matters pertaining to the class of business governed by the license of (sic) which he is applying." In support of its position the Board also points to that portion of Section 301(b) which provides in part that permits for individual jobs may be issued to individuals, firms or corporations when the person in charge of the work shall have passed the examination. The Board also relies, in this connection, upon Section 301(c) which in effect provides that an applicant must pay the license fee and comply with all license requirements within six months of receipt of notice of his successful completion of the examination under penalty of voiding the examination and subjecting the applicant to submit to a new examination as if he were making initial application. Finally, the Board bases its position on Section 303 (b) which states the examination referred to shall be predicated upon the current edition of the National Electric Code, the provisions of the City-Parish Code and other fundamental and elementary questions of theory and wiring diagrams. Predicated on the foregoing interpretation which, in turn, is founded on the mentioned codal provisions, the Board invokes the rule of contemporary construction.
The constitutionality of the Code not being an issue in the present case, we believe the following statement of the law of practical contemporaneous construction set forth in 16 C.J.S. Verbo Constitutional Law § 98, page 387, is applicable herein:
16 C.J.S. Constitutional Law § 98, p. 387
"Practical contemporaneous construction. The permissible rule of practical contemporaneous construction of a statute will be given great, but not necessarily conclusive, weight in order to sustain its constitutionality, but only if doubt exists as to the proper construction of the statute or as to the construction or application of the constitutional provision invoked. The rule is without application where the court has no doubt that a statute is unconstitutional."
It is clear beyond doubt the rule of contemporaneous construction has been adopted by the Courts of this state. In State ex rel. Guillot v. Central Bank & Trust Company, 143 La. 1053, 79 So. 857, the Supreme Court in construing Act 171 of 1898, referred to the interpretation placed on said statute by the Fiscal and Banking Department of the State as being "persuasive" and followed the rule of contemporaneous construction by quoting with approval the following from "Sutherland on Statutory Construction":
"`The practical construction given to a doubtful statute by the public officers of the state, and acted upon by the people thereof, is to be considered; it is perhaps decisive in case of doubt. This is similar in effect to a course of judicial decisions. The Legislature is presumed to be cognizant of such construction, and after long continuance, without any legislation evincing its dissent, courts will consider themselves warranted in adopting that construction.' Sutherland on Statutory Construction, par. 309."
*433 The rule of contemporaneous construction embraced in State ex rel. Guillot v. Central Bank & Trust Company, supra, was reaffirmed in Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111, wherein the Supreme Court made it clear that a court may not disregard the letter of an unambiguous law by resorting to the legislative intent thereof because such is proscribed by LSA-C.C. Article 13, nevertheless where the construction of a statute is ambiguous or doubtful, great persuasive (but not necessarily controlling) weight in the judicial interpretation thereof should be given to that construction consistently accorded the statute by those charged with the duty of its administrative application, citing in support of said position Hester v. Louisiana Tax Commission, 227 La. 1022, 81 So.2d 381; Conley v. City of Shreveport, 216 La. 78, 43 So.2d 223; Jackson v. Coxe, 208 La. 715, 23 So.2d 312; State v. Standard Oil Co., 190 La. 338, 182 So. 531.
That the rule of contemporary construction applies to municipal ordinances is no longer open to question. In Cendon v. H. G. Hill Stores, 171 La. 341, 131 So. 41, it was held that the construction of an ordinance as interpreted by a municipal commission council is entitled to consideration. In the later case of Carrere v. Orleans Club, 214 La. 303, 37 So.2d 715, the interpretation of municipal authorities with respect to a municipal zoning ordinance was held entitled to great weight.
Applying the foregoing rules of construction to the case at bar, we find Section 303 of the Code under consideration to be possessed of some degree of ambiguity regarding the necessity of an applicant with five years experience submitting to a written examination as a condition precedent to obtaining a license as an electrician and contractor. We likewise conclude the interpretation thereof consistently followed by defendant Board appears eminently reasonable and in keeping with the intent and purpose of the statute as a whole. The hereinabove cited provisions relative to examination of applicants appears to warrant the interpretation that a written examination is required of the present applicant to determine his fitness and qualification as an electrical contractor. Such an examination, in our judgment, is compatible with the general purpose and intent of the ordinance which is the protection of the public interest and safety against the perils and dangers to life, limb and property inherent in the improper, defective or faulty installation or construction of electrical wiring, works or equipment. The hazards resulting from inefficiencies in such fields are so inherently inimical to the public interest as to warrant the written examination of applicants seeking license on the ground of five years experience or graduation from a trade school because, manifestly, such qualification alone does not of itself insure that the licensee will be an efficient and capable electrical contractor possessed of that skill and learning which the public interest demands. That this is true in the instant case is amply demonstrated by the fact that applicant, though possessing five years experience, nevertheless failed the examination designed to test his skill, knowledge and ability.
Moreover, the plain intent of the Code is to insure that a licensee is skilled and proficient in all phases of the electrical field including, by way of limitation, residential wiring, as well as commercial and industrial installations inasmuch as a license entitles the licensee to hold himself out as capable of doing all types of electrical work, without supervision or exception and does not limit his participation to any particular phase of electrical installations.
We hold therefore it was not the purely ministerial duty of defendant Board to issue applicant's license and that appellee was not entitled to a license as a matter of right, but, on the contrary, plaintiff was required to satisfactorily pass the written examination prescribed by defendant as a condition precedent to receipt of a license *434 as electrical contractor under the Code in question.
It follows that the writ of mandamus was improvidently made peremptory by the learned trial court and said writ must therefore be recalled, reversed and set aside.
Accordingly, it is ordered, adjudged and decreed the alternative writ of mandamus issued herein and made peremptory by the trial court be and the same is hereby annulled, reversed, recalled and set aside and judgment rendered herein in favor of appellant and against appellee dismissing and rejecting plaintiff's suit, at plaintiff's cost.
Reversed and rendered.
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655 F.2d 643
1984 A.M.C. 2704
Curtis T. BYNUM, Plaintiff-Appellant,v.PATTERSON TRUCK LINES, INC., Atchafalaya Industries, Inc.,U. S. Steel Corporation and Ohio Barge Line, Inc.,Defendants-Appellees.
No. 80-3963
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Unit A
Sept. 8, 1981.
John P. Keegan, New Orleans, La., for plaintiff-appellant.
Waitz, Downer & Best, Huntington B. Downer, Jr., Houma, La., for Patterson.
Mouton, Roy, Carmouche, Bivins & Hill, Ralph E. Kraft, Lafayette, La., for Atchafalaya.
Burke & Mayer, Joseph P. Tynan, New Orleans, La., for U. S. Steel & Ohio Barge.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GEE, GARZA and TATE, Circuit Judges.
TATE, Circuit Judge:
1
The plaintiff Bynum appeals from the dismissal of his suit to recover from non-employer (i. e., third party) defendants for tortious injuries sustained at work on a barge. The sole issue raised by his appeal questions the district court's denial of a jury trial as sought by him.
2
Bynum now concedes that federal jurisdiction is based upon the maritime nature of the cause of action,1 28 U.S.C. § 1333(1). He does not dispute the lack of right to a jury trial in an admiralty or maritime claim, Fed.R.Civ.P. 38(e). However, Bynum contends that, because of the "savings to suitors" clause of § 1333(1), he is nevertheless entitled to a jury trial of the negligence cause of action pleaded, since two of the defendants were of citizenship diverse from his. We affirm the denial of a jury trial, finding that there is no diversity jurisdiction (permitting trial by jury) and that federal jurisdiction of his claim is exclusively based upon the maritime character of the cause of action asserted.
3
By original and supplemental petitions, Bynum sues four defendants to recover for personal injuries resulting from their negligence while he was working for his employer as a harbor worker aboard a barge. His cause of action is based upon third-party negligence, a recovery recognized as allowable in federal court by Section 905(b) of the Longshoremen's and Harbor Workers' Compensation Act. Nevertheless, federal jurisdiction of Section 905(b) claims is based upon general maritime law, 28 U.S.C. § 1333(1), not independently upon Section 905(b)'s statutory recognition of the right of recovery; and accordingly, assertion in federal court of a Section 905(b) claim confers no more right to a jury trial than does any other claim asserted in federal court by reason of its maritime jurisdiction. Russell v. Atlantic and Gulf Stevedores, 625 F.2d 71 (5th Cir. 1980) (see note 1 supra).
4
Bynum contends, however, that because of the diversity of citizenship of two of the defendants he is entitled also to assert jury-triable diversity jurisdiction of his negligence action against them by virtue of the "saving to suitors" clause of 28 U.S.C. § 1333(1).2 As summarized by Gilmore and Black, The Law of Admiralty 37 (2d ed. 1975), the effect of this clause "is that a suitor who holds an in personam claim, which might be enforced by suit in personam in admiralty, may also bring suit, at his election, in the 'common law' court that is, by ordinary civil action in state court, or in federal court without reference to 'admiralty', given diversity of citizenship and the requisite jurisdictional amount."
5
The flaw in Bynum's argument is that, since two of the defendants are citizens of the same state (Louisiana) as he, the requisites of diversity jurisdiction, 28 U.S.C. § 1332, are not met: In order to sustain diversity jurisdiction, there must be complete diversity between each defendant and each plaintiff. Owen Equipment and Erection Company v. Kroger, 437 U.S. 365, 373-74, 98 S.Ct. 2396, 2402-03, 57 L.Ed.2d 274 (1978); 13 Wright, Miller & Cooper, Federal Practice and Procedure, § 3605 (1975).3 By virtue of this requirement, diversity jurisdiction as a basis for jury trial is ineffectual as asserted against the two diverse defendants, since two non-diverse defendants are also joined upon a cause (or causes) of action arising under the general maritime law, even though jurisdiction of non-diverse defendants is asserted only on a (non-jury) maritime basis. Powell v. Offshore Navigation, Inc., 644 F.2d 1063 (5th Cir. 1981).
6
Accordingly, we find no error in the order of the district court denying a jury trial, and we AFFIRM the dismissal of the plaintiff's suit.
7
AFFIRMED.
1
As originally pleaded, the plaintiff Bynum also asserted federal-question jurisdiction, 28 U.S.C. § 1331(a), because the claim was asserted as arising under 33 U.S.C. 905(b) of the Longshoremen's and Harbor Workers' Compensation Act. For present purposes, Bynum concedes that this basis of federal jurisdiction is foreclosed by our subsequent decision in Russell v. Atlantic & Gulf Stevedores, 625 F.2d 71 (5th Cir. 1980), which rejected 1331 as basis for jurisdiction of a Section 905(b) claim, on its holding that the latter section did not create a new federal cause of action for third-party negligence but merely preserved the existing right of an injured worker to recover damages from third parties in accord with nonstatutory negligence principles
2
28 U.S.C. § 1333(1) provides (italics supplied):
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
3
The cited section of Wright, Miller & Cooper, notes that the "pendent parties" doctrine does not permit a litigant to evade the complete-diversity requirement, id., at 620, see Owen Equipment cited supra in text, and that the only recognized exception to the requirement is in the case of statutory interpleader. Id. at 620-24
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Criminal No. 08-057-M (AK)
v.
ALEKSANDER ALEKSOV,
Defendant.
MEMORANDUM OPINION
The Government asks this Court to order the involuntary medication of defendant Aleksander
Aleksov (“Defendant” or “Aleksov”), who suffers from mental illness, to render him competent to
stand trial. Pursuant to Sell v. United States, 539 U.S. 166, 180, 123 S.Ct. 2174, 156 L.Ed.2d 197
(2003), this Court must consider whether involuntary medication is medically appropriate and
necessary to significantly further important government interests. Upon consideration of the
pleadings, the record, and the arguments and evidence presented at the April 20, 2009 Sell hearing,
the Court concludes that the Government has shown by clear and convincing evidence1 that the
standards under Sell have been met, and involuntary medication is required. The Government’s oral
motion to involuntarily medicate the Defendant is therefore granted.
1
Though the D.C. Circuit has not addressed the standard of proof applicable to a Sell hearing, other
circuits and at least one district judge on this Court have approved of the use of the clear and convincing standard.
See United States v. Austin, No. 06-368, 2009 W L 910187, at *2 n. 3 (D.D.C. April 6, 2009) (noting and applying
the clear and convincing standard used by the Tenth and Second Circuits.)
-1-
I. Background
On January 28, 2008, it is alleged that Aleksov approached two uniformed Secret Service
officers just outside the gates of the White House and stated that he wanted to kill the president.
(Govt.’s Mem. [11] at 1.) When asked to repeat what he had just said, Aleksov allegedly repeated
the statement. (Id.) The Defendant was arrested for making threats against the president, in
violation of 18 U.S.C. § 871. A search incident to arrest revealed a small knife among his personal
belongings. (Id.) The Defendant was arraigned on January 29, 2008.
On February 6, 2008, the Court ordered the Defendant committed to the Attorney General
for the purpose of a competency evaluation. The Defendant was evaluated at the Federal Medical
Facility Devens in Ayer, Massachusetts, and the forensic report was authored by Shawn E. Channell,
Ph.D, on April 9, 2008. (See Forensic Report [12].) The report concluded that Defendant’s
delusional beliefs caused Defendant not to have a rational understanding of court proceedings and
that Defendant was not capable of assisting his attorney in his defense. (Id. at 8.) Dr. Channell
further noted that because Defendant did not have any insight into his illness and was opposed to
taking medication, involuntary medication might need to be pursued in the future to restore
competency. (Id.) The report recommended that Defendant be committed for further evaluation and
treatment for restoration of competency. (Id.)
On May 19, 2008, this Court held a competency hearing and subsequently found Defendant
to be incompetent. The Court further ordered that Defendant be returned to the custody of the
Attorney General for further treatment and a competency restoration study. Defendant was evaluated
at the Federal Medical Center in Butner, North Carolina. In a report dated November 13, 2008 that
was authored by Adeirde Stribling, Ph.D. and Kwanna Williamson, M.D., Defendant was diagnosed
as Schizophrenic, Paranoid Type. (See Forensic report [7] at 9.) The report found that Defendant
-2-
requires treatment with antipsychotic medication, that his is not currently competent to consent to
or refuse such treatment, and that no less intrusive alternatives are available to address his needs.
(Id. at 19.) The report further concluded that there is a substantial probability2 that Defendant’s
capacity can be restored with a period of treatment with antipsychotic medication. (Id.)
At a November 20, 2008, Competency Status Hearing, Defendant orally opposed involuntary
medication and requested a Sell hearing. The Court ordered briefing and held a Sell hearing on April
20, 2009. At the hearing, the Government presented testimony from Dr. Stribling, staff psychologist
and Dr. Williamson, staff psychiatrist, via video-conference from the Federal Medical Center at
Butner. Dr. Stribling, who the Court qualified as an expert in the area of determining competency,
testified that in her opinion and to a medical degree of certainty, Defendant suffered from
Schizophrenia, Paranoid type. In particular, Dr. Stribling testified that Defendant suffers from
bizarre delusions that are, at least in part, intertwined with his understanding of the criminal case
against him and that Defendant is unable to separate his delusions from the case. The doctor further
testified that Defendant’s preoccupation with his delusions leave him below the threshold for
competency, but that it is substantially likely that medication will significantly improve his ability
to aid counsel and understand the nature of the case. Dr. Stribling also testified that potential side
effects from the proposed medication can be monitored and, if necessary, treated with other
medication or by stopping the treatment periodically. Dr. Williamson, who was qualified by the
Court as an expert in the diagnosis and treatment of mental illness, testified that treatment with
antipsychotic medication was medically necessary and that possible side-effects could be monitored
and targeted with other medication if needed. Dr. Williamson opined that the probability of success
2
The Report surmised that expected efficacy in this case should approach approximately 70%. (Id.)
-3-
of treatment would approach 70%.
II. Discussion
The government may administer antipsychotic medication to render a mentally ill defendant
competent to stand trial on serious criminal charges if: (1) doing so advances important
governmental interests to include bringing to trial an individual accused of a serious crime and
assuring him of a fair trial; (2) the medication is substantially likely to render the defendant
competent and substantially unlikely to have side effects that will interfere significantly with the
defendant’s ability to assist counsel in conducting a trial defense; (3) alternative less intrusive
treatments are unlikely to achieve the same result; and (4) administration of the medication is
medically appropriate. Sell v. United States, 539 U.S. 166, 180, 123 S.Ct. 2174, 156 L.Ed.2d 197
(2003).
On the first factor, whether involuntary medication will advance an important governmental
interest such a bringing to trial an individual accused of a serious crime, the Court finds that the
important governmental interest of bringing Defendant, who is charged with the very serious crime
of threatening to kill the President of the United States, to trial will be advanced by involuntary
medication. In making this determination, the Court has conscientiously considered the
circumstances of the instant case and Defendant’s current situation. As was noted by defense
counsel at the Sell hearing and in Defendant’s Opposition, Defendant has been confined for a
substantial period of time – what is now approximately sixteen months. As roughly calculated by
defense counsel, Defendant would likely face a sentencing range of anywhere from 10 to 33 months
based on the guidelines. Defendant has therefore already served a considerable portion of a possible
sentence should he be convicted. Moreover, a plea bargain might further reduce the sentence to the
-4-
point where a sentence of time served and supervised release would be a realistic possibility. It is
unclear, however, whether Defendant, without medication rendering him competent, would within
a reasonable time period regain his liberty by being able to stand trial and, if convicted, serve out his
sentence. Magistrate Judge Facciola confronted a similar situation in United States v. Orloski, 554
F. Supp.2d 4 (D.D.C. 2008), and concluded that where there was no certainty of the defendant’s civil
commitment and where the defendant’s resistance to involuntary medication was based on a
delusional system, involuntary medication was necessary for a prompt resolution of the matter and
was ultimately in the interest of both the government and the defendant. See id. at 8. This Court
concurs with and adopts Judge Facciola’s apt analysis of the competing interests in that case, whose
facts and posture significantly mirror the instant case. See id. at 7-8 (describing the conflict inherent
in an incompetent defendant refusing medication and therefore facing the possibility of confinement
beyond a potential sentence for the crime with which he has been charged and concluding that
involuntary medication was ultimately in the defendant’s interest.) The Court therefore concludes
that the important governmental interest in bringing Defendant to trial will be advanced by
involuntary medication, and that a restoration of competency will allow for a prompt resolution of
the matter. This is ultimately in Defendant’s own interest.
There is little argument from Defendant rebutting the Government on the second through
fourth factors, and Defendant did not present any rebuttal evidence at the Sell hearing. The Court
is convinced that all three factors have been satisfied by the Government by clear and convincing
evidence. As detailed in the November 13, 2009 forensic report and confirmed through expert
testimony at the Sell hearing, the antipsychotic medication proposed for treatment is substantially
likely to render the Defendant competent to stand trial. (See Forensic report [7] at 15, 19.) The
doctors have concluded that the efficacy of such treatment would approach 70%. (Id. at 19)
-5-
Furthermore, both doctors testified and concluded in their report that potential side effects could be
monitored closely and mitigated upon the first showing of symptoms. (Id. at 15-19.) The Court
therefore finds that the administration of such drugs is substantially unlikely to have side effects that
would interfere significantly with the Defendant’s ability to assist counsel in conducting a trial
defense. Alternative less intrusive treatments to medication would not be likely to achieve the same
results, as the doctors have testified and concluded that medication is the only primary treatment for
Defendant’s condition that would render him competent to stand trial. (See id. at 15.) Finally, the
Court concludes that the administration of medication is medically necessary, as it is the common
and standard course of treatment for Defendant’s psychotic condition. (Id.)
III. Conclusion
For the foregoing reasons, the Court will order that the Defendant be involuntarily medicated.
The Government, in consultation with the Federal Medical Center, will be required to provide the
Court with a detailed order that sets forth the protocol the Medical Center plans to follow in
medicating the Defendant involuntarily and the time line for apprising the Court of the status of
progress made. Such protocol shall be submitted to the Court within 10 days of the date of this
Memorandum Opinion.
An Order consistent with this Memorandum Opinion is filed contemporaneously herewith.
Dated: May 7th , 2009 /s/
ALAN KAY
UNITED STATES MAGISTRATE JUDGE
-6-
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516 So.2d 1142 (1987)
Oscar Kay CARTER, Appellant,
v.
STATE of Florida, Appellee.
No. 86-1204.
District Court of Appeal of Florida, Fifth District.
December 24, 1987.
*1143 Hugh H. Lee, Asst. Public Defender, Citrus County, Inverness, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Pamela D. Cichon, Asst. Atty. Gen., Daytona Beach, for appellee.
ORFINGER, Judge.
This is the second appearance of this case before this court.[1] On remand, the trial court entered identical sentences on the four counts of attempted sexual battery and the one count of lewd and lascivious acts, giving as reasons for departure, 1) that the three young victims have been psychologically traumatized by the offenses and 2) that the mothers of the young children have been traumatized by the offenses. In so departing, the trial court relied on our decision in Lerma v. State, 476 So.2d 275 (Fla. 5th DCA 1985) and on the cases of Casteel v. State, 481 So.2d 72 (Fla. 1st DCA 1986) and Brooks v. State, 487 So.2d 68 (Fla. 1st DCA 1986).
The supreme court reversed our Lerma decision on a holding that psychological trauma to the victim in a sexual battery case cannot justify departure because that trauma is inherent in the crime and has thus been factored into the guidelines. Lerma v. State, 497 So.2d 736 (Fla. 1986). Casteel was also reversed, Casteel v. State, 498 So.2d 1249 (Fla. 1986), but in doing so the supreme court clarified Lerma to the extent that emotional hardship or trauma to a victim which arises from extraordinary circumstances not inherent in the crime charged may justify a departure sentence. There, the extraordinary circumstance was the fact that the sexual battery took place in the presence of the victim's young son who was traumatized by witnessing the attack, as was the victim because she knew her son was present. This particular circumstance was not inherent in the crime. The continued validity of Brooks, the third case relied on by the trial court, wherein departure was upheld because of psychological trauma to the victims caused by their presence in their home during the burglary, is questionable based on State v. Rousseau, 509 So.2d 281 (Fla. 1987) where the court held that the psychological trauma a victim of a burglary suffers when the sanctity of his or her home is violated is inherent in the crime of burglary and does not justify departure.
Based on these principles, the emotional hardship suffered by the mothers of these young victims, while understandable and predictable, does not, in this case, flow from any extraordinary circumstance other than the fact that their children were the victims, and will not justify departure.
Because none of the grounds for departure are valid, we must vacate the sentences and remand for resentencing under the guidelines. Based on the recent decision in Shull v. Dugger, 515 So.2d 748 (Fla. 1987), no new grounds for departure may be advanced. We must also note that based on Miller v. State, ___ U.S. ___, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) the guidelines which must be followed in determining the appropriate sentences are those which were in effect when the crimes here were committed.
Sentences VACATED, REMANDED.
DAUKSCH and COWART, JJ., concur.
NOTES
[1] See Carter v. State, 483 So.2d 740 (Fla. 5th DCA 1986) where we held that the five separate sentences were departure sentences for which written reasons must be supplied.
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421 F.Supp. 80 (1976)
Godofredo C. PASCUAL and Jesusa Raquinio Pascual, Petitioners,
v.
John F. O'SHEA, District Director, Immigration and Naturalization Service, and the Chairman and Members, Board of Immigration Appeals, Respondents.
Benigno DELA CRUZ and Luciana Dela Cruz, Petitioners,
v.
John F. O'SHEA, District Director, Immigration and Naturalization Service, and the Chairman and Members, Board of Immigration Appeals, Respondents.
Civ. Nos. 76-0081, 76-0099.
United States District Court, D. Hawaii.
September 30, 1976.
*81 B. Martin Luna, Wailuku, Maui, Hawaii, for plaintiffs.
Harold M. Fong, U.S. Atty., William J. Eggers III, Asst. U.S. Atty., Honolulu, Hawaii, for defendants.
ORDER GRANTING PETITIONS
WONG, District Judge.
By separate petitions, Petitioners Pascual and Dela Cruz seek review by this court of the decisions of the Board of Immigration Appeals, Department of Justice (BIA). The petitions have been consolidated pursuant to Rule 42, F.R.Civ.P.
The facts in these two cases are not in dispute. Petitioners Pascual are husband and wife who adopted a child pursuant to Chapter 578, Hawaii Revised Statutes (H.R. S.). A Degree of Adoption was duly filed in the Family Court, Second Circuit (Island of Maui), in the State of Hawaii. Petitioners Dela Cruz are also husband and wife who adopted two children pursuant to the same Chapter 578, H.R.S. Decrees of Adoption were duly filed in the same Family Court. At the time the Family Court approved the adoptions, it was aware that all three children were residing in the Philippines and had never been in the State of Hawaii.
Subsequent to the adoption, Petitioner Jesusa Pascual filed with Respondent District Director, Immigration and Naturalization Service (INS), a petition to classify her adopted child as an "immediate relative" under 8 U.S.C. § 1151(b), in relation to 8 U.S.C. § 1101(b)(1)(E), so that the adopted child could emigrate into the United States. Petitioner Benigno Dela Cruz, subsequent to the adoption of the two children, filed with Respondent District Director, INS, separate petitions to classify the two children as "immediate relatives" under §§ 1151(b) and 1101(b)(1)(E) so that the adopted children could emigrate into the United States.
The three adopted children were each below the age of 14 years at the time of their adoption. Each of the petitioners who petitioned for classification of the adopted children as "immediate relatives" was a naturalized citizen of the United States at the time of filing said petitions.
Prior to the adoption, Petitioner Jesusa Pascual had resided with her adopted child for more than two years. Prior to the adoption of her two children, Petitioner Luciana Dela Cruz had resided with them for more than two years.
Respondent District Director denied all of the petitions to classify on the ground that the adoption decrees were invalid inasmuch as the Family Court did not have jurisdiction over the adopted children, who were residing in the Philippines at the time of the adoptions. The District Director's decisions were appealed to the BIA. The BIA affirmed the District Director's decisions and dismissed the appeals. It found the District Director's determination that the State court lacked jurisdiction to be correct. With respect to the Dela Cruz petition, the BIA added: "Moreover, there is no evidence *82 that there has been compliance with the two-year residence requirement of section 101(b)(1)(E), either prior to or subsequent to the alleged adoption."
This court has jurisdiction under 8 U.S.C. § 1329 (Immigration and Nationality Act, § 279), Stokes v. U. S., Immigration and Nat. Serv., 393 F.Supp. 24 (S.D.N.Y. 1975), and under 5 U.S.C. §§ 702, 704 and 706, Blackhawk Heat & Plumb. Co. v. Driver, 140 U.S.App.D.C. 31, 433 F.2d 1137 (1970); Reddy, Inc. v. U. S. Dept. of Labor, 492 F.2d 538 (5th Cir. 1974).
The scope of inquiry and judicial review granted to the District Court by § 706 includes the power and authority to decide all relevant questions of law and to interpret the statutory provisions involved in the administrative decision. Henault Mining Co. v. Tysk, 271 F.Supp. 474 (D.Mont.1967), rev'd on other grounds, 419 F.2d 766 (9th Cir. 1969), cert. denied, 398 U.S. 950, 90 S.Ct. 1869, 26 L.Ed.2d 290 (1970).
The conclusion of the INS, affirmed by the BIA, that the State court lacked jurisdiction to grant the adoption is without merit. Under § 578-1, H.R.S., a husband and wife jointly may petition a judge of the family court of the circuit in which they reside or in which the child resides. Respondents do not contend that petitioners were not residents of Maui at the time they petitioned for and were granted the decrees of adoption. Instead they predicate their decisions on the fact that the adopted children "were not in the territorial jurisdiction of the Court issuing the decrees of adoption." (Decision of INS)
The state law plainly confers jurisdiction in the family court of the circuit in which either the petitioning adoptive parents or the adoptive child resides. The adoptions by petitioners were therefore valid under the state statute.
Even though a person may be validly adopted under state law, he still may not qualify for classification as an adopted "child" under 8 U.S.C. § 1101(b)(1)(E). Nazareno v. Attorney General of the U. S., 168 U.S.App.D.C. 22, 512 F.2d 936 (1975). This section requires that a child be adopted while under the age of 14 years "if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years; . .." The adopted children in this case were all adopted prior to their attaining the age of 14 years. All had been in the legal custody of the adopting parents for at least two years after their adoption and all had resided with their adoptive parents for at least two years prior to their adoption.
It would therefore appear that the requirements prescribed by § 1101(b)(1)(E) have all been met, perhaps with the exception of the residency requirement. It is clear from the statutory language that the two-year legal custody must be after adoption. The word "thereafter" facially refers also to the residency requirement. In the Matter of M , Interim Decision No. 988, the BIA construed the word "thereafter" to refer only to custody and not to residence. The Attorney General approved the order of the BIA. See Yin v. Esperdy, 187 F.Supp. 51, 54 (S.D.N.Y.1960), where the court stated that if the Attorney General "meant to hold that residence with the adopting parents before legal adoption is sufficient he was, for the purpose of preserving family unity, doing violence to the clear words of the statute since the statute provides that residence must be after the adoption." In Nazareno, supra, at 938, however, the same section was construed by the court as follows: "In 1957, Congress amended the Act to include within the statutory definition of `child' in section 101(b)(1)(E) which meant an entitlement to entry without regard to quota minors adopted under the age of 14 who thereafter resided with or were in the legal custody of their adopting parents for at least two years."
The BIA seems to have taken a consistent position that the statutory language permits residence prior to the adoption. Thus, in its order dismissing the appeal of Dela Cruz, it stated:
*83 Moreover, there is no evidence that there has been compliance with the two-year residence requirement of section 101(b)(1)(E), either prior to or subsequent to the alleged adoption. (Emphasis added.)
Inasmuch as the undisputed facts show that all of the three adopted children had resided with their adoptive parents for at least two years, it will serve no useful purpose to remand for further hearing on this point.
This court having found the adoptions by petitioners to be valid under state law and that the requirements of 8 U.S.C. § 1101(b)(1)(E) have been fully met, the petitions are accordingly granted and the Clerk is directed to enter judgment reversing and vacating both decisions of the Respondents District Director and the Chairman and Members of the Board of Immigration Appeals denying petitioners' petitions submitted pursuant to 8 U.S.C. § 1151(b) and further directing Respondents District Director and the BIA to approve the petitions submitted to them to classify the adopted children as immediate relatives.
So ordered.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT January 17, 2012
___________________________________
Elisabeth A. Shumaker
Clerk of Court
HEAVY PETROLEUM PARTNERS,
LLC; CHEROKEE WELLS, LLC,
Plaintiffs-Counter-Defendants-
Appellees, No. 11-3017
v. (D.C. No. 6:09-CV-01077-EFM)
(D. Kan.)
PAUL ATKINS; J.J.R. OF KANSAS
LIMITED,
Defendants-Counter-Claimants-
Appellants.
___________________________________
ORDER AND JUDGMENT*
____________________________________
Before BRISCOE, Chief Judge, BALDOCK and LUCERO, Circuit Judges.
____________________________________
Plaintiff Heavy Petroleum Partners (HPP) and Defendant J.J.R. of Kansas Limited
(J.J.R.) entered into a contract whereby HPP would develop and use steam injection to
increase production on an oil lease owned by J.J.R. Under the terms of the contract,
J.J.R. would assign HPP a 75% working interest in the lease if HPP were able to produce
oil on the lease in commercial quantities. Before HPP reached a point of commercial
production, however, J.J.R. executed an unconditional assignment of the 75% interest to
HPP. Thereafter, Defendant Paul Atkins, who is the owner of Defendant J.J.R., took
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
actions inconsistent with HPP’s 75% ownership interest, including “shutting in” the oil
wells on the lease. Plaintiff Cherokee Wells is the current operator of the lease.
Plaintiffs filed suit against Atkins and J.J.R., and Defendants counterclaimed. The
district court granted Plaintiffs’ motion for partial summary judgment and denied
Defendants’ motion for leave to file an amended counterclaim. The court then submitted
the remaining issues to a jury, which found Defendants had breached the contract and
awarded damages. Defendants appealed. We have jurisdiction under 28 U.S.C. § 1291.
We affirm in part, vacate in part, and remand.
I.
Defendant J.J.R. acquired an oil and gas lease on property located in Jefferson
County, Kansas. On May 19, 2006, J.J.R. and HPP entered into a farmout agreement
under which HPP would form a test pod and “commence actual operations for the drilling
of new wells and the reworking of existing wells . . . to inject steam into the McClouth
Sandstone for the purpose of producing oil in commercial quantities.”1 If HPP failed to
commence operations on the lease, the farmout would terminate without penalty. But if
HPP “timely and properly” completed the test pod, developed “a facility capable of
producing oil in commercial quantities,” and complied with the farmout’s other terms,
then J.J.R. would “assign to [HPP], subject to the reservations and conditions contained
herein, a 75% Working Interest” in the oil lease. The farmout gave Plaintiffs the right to
1
“Farmout Agreements are common agreements in the oil and gas business by
which the owner of a lease agrees to assign an interest in the lease to another if it drills a
well on the lease.” Shell Rocky Mountain Prod., LLC v. Ultra Res., Inc., 415 F.3d 1158,
1160 n.1 (10th Cir. 2005).
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develop additional 2.5-acre pods if it did not allow more than 180 days to elapse between
“the completion of one Pod and the commencement of operations on the next Pod.”
Under paragraph 9 of the farmout, if Plaintiffs ceased to drill and develop additional
pods, the lease on all undeveloped pods “shall be reassigned” to Defendant J.J.R.
The farmout provided that if HPP “violate[d] or fail[ed] to comply with any of the
terms and provisions of this agreement,” J.J.R. would give HPP written notice of the
violation by certified mail. HPP would then have thirty days in which to correct the
violation. “Failure of [HPP] to come into compliance with said agreement will result in
the termination of said agreement in its entirety with all rights and interest in the Contract
Area reverting to [J.J.R.].” (Appellants’ App. at 63.) In the event of an uncured breach,
HPP would then reassign its interest in the lease to J.J.R. within 30 days of the farmout’s
termination.
Plaintiffs allege the farmout agreement “included an A.A.P.L. Form 610-1989
Model Form Operating Agreement, often referred to as a joint operating agreement
(JOA).” (Am. Compl. at ¶ 15.) Both “Heavy Petroleum Partners, LLC” and “JJR of
Kansas” were typed into the attestation page of the JOA, but the parties’ representatives
did not actually sign the attestation page. (Appellants’ App. at 87.) The JOA designated
Blue Jay Operating, LLC, as the operator of the lease, but Blue Jay Operating later
assigned its interest as operator to Plaintiff Cherokee Wells. The JOA provided that
J.J.R. would pay a share of the costs and expenses of developing further oil production on
the lease, as well as a portion of the overhead once additional wells began operation. (Id.
at 89, 93.) The JOA contained a provision granting attorney’s fees and costs to the
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prevailing party in any suit to enforce a party’s financial obligations under the JOA. The
parties orally agreed that Defendant Atkins would oversee some operations on the lease.
HPP proceeded to develop a test pod capable of “producing in paying quantities”
by August 2006, but steam injection did not commence until October 2006, when the
Kansas Corporation Commission approved a steam injection permit. Nevertheless, on
August 23, 2006, J.J.R. executed an assignment to HPP of 75% of the working interest in
the lease. The assignment had an effective date of May 19, 2006, the same day the
farmout was executed. J.J.R. made this assignment even though HPP had not yet fully
complied with the farmout by commencing steam operation.2 The assignment made no
reference to the farmout or the conditions therein.
In early January 2009, Plaintiffs noticed diminished oil sales from the lease from
the prior month and directed Defendant Atkins to increase production. Atkins appeared
to correct the deficiency, and sold 300 barrels of oil from the lease in January 2009. On
January 26, 2009, however, Atkins filed an affidavit of non-production in the county
records in which he stated “there is at present no production of oil or gas in commercial
quantities at this time and secondary recovery attempts have failed. Assignment and
farmout agreement authorizing said assignment has expired by its own terms.” A few
days later, Atkins filed a “Request of Change of Operator” with the Kansas Corporation
Commission designating J.J.R. as the operator of the lease. He did so despite the JOA’s
2
In the district court, Defendants explained this surprising move as resulting from
“pressure” from Plaintiffs, who needed an assignment in order to receive payment for the
oil they sold. (Appellants’ App. at 146.) Defendants did not support this assertion by
reference to any evidence, however.
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provision that the operator “may be removed only for good cause by the affirmative vote
of Non-Operators owning a majority interest” in the lease. The Commission approved
the change of operator request. Atkins then informed the crude oil buyer that J.J.R. was
now the operator, and the buyer changed its records to reflect this information.
In March 2009, HPP noticed the lack of oil sales from the lease in the prior month.
HPP personnel subsequently discovered the wells on the lease had been shut in and steam
injection had stopped. HPP personnel spoke with Atkins, who admitted he had shut in
the wells and turned off the steam.3 He said he could not afford his share of the operating
costs because Plaintiffs were running up costs to put him out of business.
II.
Plaintiffs then filed this diversity action under 28 U.S.C. § 1332 against
Defendants, asserting various state law tort and contract claims. They also sought a
temporary restraining order (TRO) and preliminary injunction prohibiting Defendants
from interfering with operations on the lease. In order to avoid the expense of a hearing
on the TRO and preliminary injunction, the parties entered into a “standstill agreement”
in which Defendants agreed not to interfere with the operations of the lease pending
3
Defendants’ disputed this fact in their answer to the First Amended Complaint.
In their answer to the original Complaint, however, they said “defendant Atkins admits
that he spoke to HPP personnel and admitted that he had shut the wells since there was no
one to operate the Lease. Further, it is admitted the steam generators had been turned off,
but that was at the direction of plaintiffs.” A statement in a legal pleading is an
admission binding on a party. Rooms v. S.E.C., 444 F.3d 1208, 1213 (10th Cir. 2006).
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resolution of the litigation.4 Defendants counterclaimed against Plaintiffs for conversion
and quiet title, alleging Plaintiffs breached the farmout agreement by ceasing to drill and
develop further pods. Plaintiffs subsequently filed an amended complaint asserting
causes of action for (I) breach of contract, (II) quiet title, (III) “breach of contract—
unpaid joint interest billing,” (IV) “breach of contract—unpaid overhead,” (V) “breach of
contract—failure to offer other leases/acreage,” (VI) “breach of contract—standstill
agreement,” and (VII) declaratory judgment. Plaintiffs moved for partial summary
judgment, seeking summary judgment as to counts I, II, III, IV, and parts of count VII, as
well as to all of Defendants’s counterclaim.5 Defendants filed a response and at the same
time sought leave to file an amended counterclaim. The district court denied Defendants’
motion for leave to file an amended counterclaim, concluding the amendment would be
futile because the claims would be subject to dismissal.
Thereafter, the district court granted Plaintiffs’ motion for partial summary
judgment, and held the following: (1) Plaintiff HPP was the owner of an unconditional
75% interest in the lease (2) Plaintiff Cherokee Wells had the exclusive right to operate
the lease, and Defendants had no right to “operate, manipulate, or otherwise control
equipment” on the lease, (3) Defendants had no right to interfere with Cherokee Wells’
operation of the lease, (4) Cherokee Wells had the right to collect from Defendant J.J.R.
the share of overhead attributable to J.J.R.’s working interest in the lease, and (5)
4
Defendants allegedly violated this agreement, and the district court later entered
a preliminary injunction prohibiting Defendants from interfering with the lease.
5
Plaintiffs later abandoned counts V and VII, and stipulated to this effect in the
pretrial order.
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Defendants were permanently enjoined from operating or manipulating any machinery
located on the lease property and from taking any action to interfere with Plaintiffs’
production on the lease property. The district court then submitted the remaining narrow
questions to the jury: whether Defendants breached their duty to pay amounts owed under
the JOA, and if so, what damages were appropriate. The district court also submitted the
amount of “litigation expenses,” including attorney’s fees, to the jury. The jury found
Defendants failed to pay their share of oil production expenses under the JOA and
awarded Plaintiffs $52,012.03 for “Unpaid Joint Interest Billing,” $35,375 for “Unpaid
Overhead,” and $155,239.36 for “Litigation Expenses.” Pursuant to the jury verdict, the
court entered judgment against Defendants for $242,626.39 in damages.
III.
Defendants attempt to raise five issues on appeal, although they have waived a
number of them. First, they argue Defendant Atkins is not personally liable on the
farmout agreement or the JOA because he was not a party to those agreements. Second,
Defendants argue the JOA was not a valid contract because it was not attached to the
farmout or signed in compliance with the statute of frauds. Third, Defendants contend
the district court abused its discretion in denying leave to file an amended counterclaim.
Fourth, they argue the district court erred in quieting title to the lease in Plaintiffs. Fifth,
Defendants argue the district court erred in awarding Plaintiffs attorney’s fees and costs.
A.
Defendants first argue Defendant Atkins is not personally liable on the farmout
agreement or JOA. In Count I of the First Amended Complaint, Plaintiffs asserted,
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“Defendants’ actions in shutting in the wells, attempting to change the operatorship with
the [Kansas Corporation Commission], and attempting to change the operatorship and/or
the division of interest recognized by the crude oil purchaser breached the Farmout and
the JOA . . . .” Count II merely sought to quiet title, not to impose liability on
Defendants. Counts III and IV did not allege action by “defendants,” but only by J.J.R.
Plaintiffs abandoned Counts V and VI, and Count VII requested a declaratory judgment
of Plaintiffs’ rights vis-à-vis J.J.R. without mentioning Defendant Atkins. Thus, only
Count I alleged Atkins’ individual liability on the contract. Plaintiffs did not make clear
whether they were seeking money damages on Count I or simply injunctive relief. Under
Count I, the First Amended Complaint said, “[Plaintiffs] have suffered, and will continue
to suffer, damages from this breach in the form of lost production and additional
operating expenses . . . . Damages from this breach are difficult to determine, and
[Plaintiffs] have no adequate remedy at law.” In their prayer for relief, Plaintiffs
requested “actual damages,” without specifying on which counts.
Although Plaintiffs argued in their brief that Atkins was personally liable on the
contract, they reversed course at oral argument and conceded Atkins was not personally
liable for damages. At our request, Plaintiffs clarified their position in a letter submitted
after oral argument. Plaintiffs now concede,
[T]he trial court’s amended judgment was in error to the extent, and only to
the extent, that it awarded money damages against defendant/appellant Paul
Atkins individually. The trial court’s judgment was correct, and should be
affirmed, in all other respects, including . . . the declaratory and injunctive
relief provided against Paul Atkins . . . .
(Letter of John W. Broomes to the Clerk of Court, Nov. 28, 2011.) Because Plaintiffs
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concede the point, we need not consider whether the district court actually erred.6 On
remand, the district court should vacate the damages award against Defendant Atkins.
See U.S. ex rel. Moody v. Am. Ins. Co., 835 F.2d 745, 749 (10th Cir. 1987).
B.
Defendants next argue the JOA is not a valid and binding contract. “We review a
district court’s grant of summary judgment de novo, applying the same standard as the
district court.” Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Summary
judgment is appropriate “if the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Bowling v. Rector, 584 F.3d 956,
963–64 (10th Cir. 2009) (internal quotations omitted). Defendants argue the JOA is not
binding because it was neither signed nor attached to the farmout agreement. Defendants
have waived any challenge to the JOA’s validity a number of times. First, Defendants
admitted in their answer the truth of Plaintiffs’ allegation that the JOA was included with
the farmout agreement. (Answer to Am. Compl. at ¶ 3.) “A pleading prepared by an
attorney is an admission . . . because the attorney presumably speaks for the litigant.”
Rooms v. S.E.C., 444 F.3d 1208, 1213 (10th Cir. 2006). Second, the parties stipulated in
the pretrial order that “[t]he Farmout included A.A.P.L. Form 610-1989 Model Form
6
The only potential “error” by the district court we can discern is the court’s
assumption that Plaintiffs’ Complaint sought money damages against Defendant Atkins.
But this would have been at least a plausible assumption based on the Complaint’s
ambiguity and the fact that neither party challenged this reading of the Complaint. Thus,
the district court’s judgment may not have been “in error.” Plaintiff’s concession of
error, however, is sufficient to relieve Atkins of personal liability.
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Operating Agreement, often referred to as a joint operating agreement (JOA).” (Pretrial
Order at 3.) Moreover, the pretrial order reflects that Defendants requested “Attorney
fees and litigation costs expressly recoverable pursuant to JOA.” (Appellees’
Supplemental App. at 159.) Our law is clear that “claims, issues, defenses, or theories of
damages not included in the pretrial order are waived . . . .” Wilson v. Muckala, 303 F.3d
1207, 1215 (10th Cir. 2002). Finally, Defendants failed to raise any objection to the JOA
in the district court. “Absent extraordinary circumstances, we will not consider
arguments raised for the first time on appeal.” Turner v. Pub. Serv. Co. of Colo., 563
F.3d 1136, 1143 (10th Cir. 2009).
Defendants also argue “there was an insufficient finding of evidence of a joint
venture to support the validity of the unsigned JOA . . . .” Defendants further contend
they “would be privileged under Kansas statute to remove themselves and cease to
participate in the joint venture that would have existed if the plaintiff’s [sic] joint
operating agreement was executed by either.” This argument is misdirected; joint
venture principles are simply inapplicable. The district court found Defendants liable
based on contractual liability, not based on a finding of a joint venture or partnership.
Defendants also challenge the JOA based on its failure to comply with the statute
of frauds. Defendants have waived this objection as well because they failed to raise it
prior to this appeal. “Failure to plead an affirmative defense results in a waiver of that
defense.” Bentley v. Cleveland Cnty. Bd of Cnty. Comm’rs, 41 F.3d 600, 604 (10th Cir.
1994). Federal Rule of Civil Procedure 8(c) specifically lists the statute of frauds as a
waivable defense, and thus Defendants cannot raise the statute of frauds at this late
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juncture. The district court correctly determined the JOA to be a binding contract.
C.
Defendants next argue the district court erred in denying them leave to file an
amended counterclaim. We generally review the district court’s denial of leave to amend
a counterclaim for abuse of discretion. Manning v. United States, 146 F.3d 808, 812
(10th Cir. 1998). Leave to amend should be freely given “when justice so requires,” Fed.
R. Civ. P. 15(a)(2), but a district court may deny leave to amend if the amendment would
be futile. U.S. ex. rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir.
2009) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “[W]hen denial is based on a
determination that amendment would be futile, our review for abuse of discretion
includes de novo review of the legal basis for the finding of futility.” Miller ex. rel. S.M.
v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1249 (10th Cir. 2009).
Defendants sought to add counterclaims for (1) negligence, (2) fraud, (3) “intentionally
fraudulent actions” giving rise to punitive damages, and (4) intentional infliction of
emotional distress. The district court held that all four claims would be futile. The
negligence claim would fail because it was barred by the JOA and because the contract
specifically required the allegedly negligent actions. The court said the second and third
claims were “conclusory” and not pleaded with the particularity required by Fed. R. Civ.
P. 9(b). Finally, the fourth claim failed the pleading requirements set forth in Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009).
The district court properly denied leave to amend. Defendants’ first counterclaim
asserted that “plaintiffs have negligently damaged production capabilities of the oil
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bearing formation on the lease by injecting water and steam into the formation without
conducting reasonable and proper research and investigation into the effects of the water
and steam on the . . . oil bearing formation.” The farmout agreement specifically
required Plaintiffs to conduct steam injection in the test pod and, if it were successful, in
additional pods. Thus, Plaintiffs had a contractual duty to conduct steam injection in the
test pod, and the contract required no further “research and investigation.” As the district
court said, “defendants may not circumvent the terms of the contract by resorting to
negligence allegations.”7 Under Kansas law, “[i]t is elemental that negligence does not
operate in a vacuum. In order for negligence to be actionable, there must exist a duty
owed to the plaintiff.” Schmeck v. City of Shawnee, 651 P.2d 585, 605 (Kan. 1982). In
this case, such a duty must arise apart from the contract. See Moore v. Muntzel, 642 P.2d
957, 960 (Kan. 1982) (“[T]he issue of negligence of defendant must involve violation of
some duty arising independently of the contract.”); Pancake House, Inc. v. Redmond ex
rel. Redmond, 716 P.2d 575, 578 (Kan. 1986) (“A tort . . . is a violation of a duty
imposed by law, a wrong independent of contract.”). Defendants have not alleged that
Plaintiffs had any statutory or common law duty to conduct steam injection in a way that
did not damage the oil-bearing formation. And if Plaintiffs violated their contractual
duties, Defendants must sue in contract, rather than in tort. Thus, Defendants’ first
counterclaim would have been futile.
7
Additionally, the JOA provided that the “operator” would have no liability
except for injuries resulting from “gross negligence or willful misconduct.” This
protection would extend to the Cherokee Wells, who is designated as the operator under
the JOA. The protection would not, as the district court suggests, apply to Plaintiff HPP,
because HPP is not the operator of the lease.
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Defendants’ second and third counterclaims fare no better. Rule 9(b) requires
parties asserting fraud to “state with particularity the circumstances constituting fraud or
mistake.” Fed. R. Civ. P. 9(b). The complaint must “set forth the time, place and
contents of the false representation, the identity of the party making the false statements
and the consequences thereof.” Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246,
1252 (10th Cir. 1997) (quoting Lawrence Nat’l Bank v. Edmonds, 924 F.2d 176, 180
(10th Cir. 1991). Here, the entirety of Defendants’ second counterclaim reads:
Defendants have been damaged by their reliance upon the false, fraudulent,
intentionally misleading statements and representations of partners,
employees and agents of plaintiffs when defendants detrimentally relied on
the statements that plaintiff Heavy Petroleum Partners, L.L.C. was skilled,
experienced and qualified to conduct heavy petroleum extraction on
defendants’ lease with the use of secondary recovery steam injection
technology. This fraud resulted in damages to defendants due to their
detrimental reliance.
(Def.’s First Amended Counterclaim ¶ 8.) These allegations list the basic elements of
fraud and allege some facts, but they do not indicate the time or place of the alleged
misstatements. Such conclusory allegations do not meet the heightened pleading
standard of “particularity.” Fed. R. Civ. P. 9(b). Defendants’ third proposed claim, for
“intentionally fraudulent actions,” is probably not even a separate counterclaim. It reads,
“Defendants request punitive damages based on the intentionally fraudulent actions of
plaintiff.” (Id. ¶ 9.) This is most likely simply a prayer for punitive damages, but if it
were construed as a separate fraud claim, it too would fail for lack of particularity.
Therefore, Defendants’ second and third proposed counterclaims would have been
subject to dismissal under Fed. R. Civ. P. 12(b)(6).
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Defendants’ fourth counterclaim for intentional infliction of emotional distress
was also futile. In order to survive a motion to dismiss, a pleading under Rule 8(a) “must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 129 S. Ct. at 1949 (quotations omitted). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id. Defendants’ counterclaim states:
Paul Atkins requests that he be awarded monetary compensation for
damages suffered due to the intentional infliction of emotional distress by
plaintiffs in their intentionally abusive treatment and cruel and unwarranted
financial dealings with Paul Atkins, resulting in his inability to enjoy his
family, home, and life.
(Def.’s First Amended Counterclaim ¶ 10.) This claim is devoid of any specific facts that
would support a plausible claim for relief. Iqbal, 129 S. Ct. at 1949. It merely alleges
“intentionally abusive treatment” and “cruel and unwarranted financial dealings,” but
does not support these allegations with any concrete facts. Because the proposed
amended counterclaim would have been futile, the district court did not abuse its
discretion in denying Defendants leave to file the counterclaim.
D.
Next, Defendants argue the district court erred in quieting title in Plaintiffs
because, according to Defendants, title to the lease reverted back to J.J.R. when Plaintiffs
breached the farmout agreement.8 We review the district court’s grant of summary
8
Defendants do not enlighten us on how Plaintiffs breached the farmout
agreement. Defendants assigned a 75% interest in the lease to Plaintiffs before Plaintiffs
had fulfilled all the conditions in the farmout. But Plaintiff HPP’s mere acceptance of an
early and unearned assignment cannot constitute a breach of the farmout. Defendants
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judgment on the quiet title issue de novo. Helm, 656 F.3d at 1284. In a diversity action,
we apply the substantive law of the forum state, which here is Kansas. Cohen-Esrey Real
Estate Servs., Inc. v. Twin City Fire Ins. Co., 636 F.3d 1300, 1302 (10th Cir. 2011).
Under Kansas law, “[t]he primary rule for interpreting written contracts is to ascertain the
parties’ intent. If the terms of the contract are clear, the intent of the parties is to be
determined from the contract language without applying rules of construction.”
Carrothers Constr. Co. v. City of S. Hutchinson, 207 P.3d 231, 239 (Kan. 2009). Absent
any ambiguity, Kansas courts “must give effect to the intent of the parties as expressed
within the four corners of the instrument.” Blair Constr., Inc. v. McBeth, 44 P.3d 1244,
1252–53 (Kan. 2002). Here, the district court interpreted the August 2006 assignment as
unambiguous, because it did not refer to the farmout agreement or JOA. The district
court therefore concluded the assignment was not conditioned on the farmout or JOA,
and quieted title to a 75% working interest in the lease to Plaintiffs.
The district court, however, failed to consider an important rule of Kansas contract
interpretation which neither party has raised. Under Kansas law, “[d]ocuments which are
executed at different times, but in the course of the same transaction concerning the same
subject matter, will be construed together to determine the intent of the parties to the
also argued that we should abstain from this case under Burford v. Sun Oil Co., 319 U.S.
315, 327 (1943), because Plaintiffs allegedly conducted steam injection without a proper
state permit. This argument is utterly frivolous. Burford “is concerned with protecting
complex state administrative processes from undue federal interference.” New Orleans
Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 362 (1989). To resolve this
case, neither we nor the district court need to interfere with state administrative
processes, complex or otherwise. At most, we need to determine whether the allegedly
unauthorized steam injection constituted a breach of the farmout agreement.
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contract.” Hollenbeck v. Household Bank, 829 P.2d 903, 906 (Kan. 1992). This rule
applies to contracts executed in the course of the same transaction even if “they do not in
terms refer to each other.” West v. Prairie State Bank, 436 P.2d 402, 405 (Kan. 1968).
Additionally, this rule applies even if the contract being interpreted is unambiguous. See
Schnug v. Schnug, 454 P.2d 474, 477–78 (Kan. 1969) (construing two documents
together even after finding them both unambiguous); Harder v. Wagler, 838 P.2d 366,
408 (Kan. Ct. App. 1992) (applying the rule despite a party’s contention that two
documents were unambiguous if interpreted separately).
1.
The August 2006 assignment clearly “concerns the same subject matter” as the
farmout agreement and JOA, because it concerns the same lease. The more difficult
question is whether it was executed “in the course of the same transaction.” The Kansas
courts have not discussed this element in much depth, but their decisions provide some
insight. The earliest Kansas case to articulate this rule was Jordon v. Clark, 121 P. 345
(Kan. 1912). There, a married couple executed a separation agreement in which each
released the other from “all claims . . . now or hereafter” on a quarter section of land they
jointly owned. Id. at 345. On the same day, the couple conveyed to each other by
warranty deed separate halves of the jointly owned property. Id. These deeds contained
clauses barring the grantor and his or her heirs and assigns from any claim or inheritance
to the land. Id. The Kansas Supreme Court was faced with the question of whether the
separation agreement renounced the wife’s right to inherit her husband’s half of the
property. The court determined the warranty deeds should be construed along with the
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separation agreement, and all three “should be regarded as a single contract.” Id. at 346.
The court said,
The presumption is that different writings made by the same parties, on the
same day, relating to the same subject-matter, and in the course of the same
transaction, should be read together and construed as a single contract.
Especially should they be regarded as parts of one transaction, where, as
here, they refer to each other.
Id. (emphasis added). The court concluded, based on the language in the warranty deeds,
that the wife had disclaimed her inheritance rights in her husband’s portion of the
property.
The Kansas courts later abandoned Jordon’s requirement that the documents be
executed “on the same day,” and substituted the words “at or near the same time.”
Dearborn Motors Credit Corp. v. Neel, 337 P.2d 992, 1001 (Kan. 1959). From there, the
rule evolved into its modern iteration—documents will be construed together if executed
by the same parties “contemporaneously or even at different times in the course of the
same transaction” as long as they “concern the same subject matter.” In re Cooper’s
Estate, 403 P.2d 984, 988 (Kan. 1965). Unlike this case, however, most Kansas cases
have involved documents that were executed within hours or days of each other, making
the “same transaction” element more easily satisfied.
At least one Kansas case, however, has construed together documents that were
executed years apart. In Parsons v. Biscayne Valley Investors Ltd., 935 P.2d 218, 220
(Kan. Ct. App. 1997), the Kansas Court of Appeals considered a case in which plaintiffs
loaned money to an apartment complex developer in exchange for two promissory notes
secured by two mortgages. A bank held a second mortgage on each apartment complex.
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Id. Ten years after executing the mortgages, the parties modified the two mortgages with
the bank’s consent. Id. The plaintiffs argued the modification gave their mortgages
priority over the bank’s mortgages. The Kansas Court of Appeals determined the
plaintiffs’ mortgages, the bank’s mortgage, and the modification agreement should “be
construed together.” Id. at 222. The court quoted Hollenbeck’s rule that documents
“executed at different times, but in the course of the same transaction concerning the
same subject matter” were construed together. Id. (citing Hollenbeck, 829 P.2d at 906).
The court noted the modification agreement referred to all three mortgages and “the
documents concern the same subject matter.” Id. “Therefore, it is appropriate to
construe all of the instruments together.” Id. Parsons is significant because the
documents which were construed together were executed ten years apart. Yet the court
still determined, at least impliedly, that they related to the same transaction.9
9
The Kansas Supreme Court appeared to reach the same result in Federal Land
Bank of Wichita v. Krug, 856 P.2d 111, 113 (Kan. 1993), but its opinion is not entirely
clear. In Krug, the original borrowers purchased land with a loan secured by a mortgage
in favor of the Federal Land Bank. Three years later, the borrowers sold the land to
S & S Ranch, which signed a separate agreement assuming the mortgage. S & S later
stopped making payments on the mortgage because it never received a deed. The Kansas
district court rescinded the land sale contract between the borrowers and S & S, but held
both the borrowers and S & S were liable to the Bank. The Kansas Court of Appeals
reversed, holding that the mortgage assumption agreement was also rescinded because it
was unsupported by consideration. The Kansas Supreme Court reversed again, saying
the question on appeal was whether rescinding the land sale contract also rescinded the
assumption agreement. The court said,
An assumption agreement is an act of assuming or taking an obligation on
one’s self and can include the undertaking or adoption of a debt or
obligation resting upon another. When one contracts to assume a mortgage
even though the documents are executed at different times, but in the course
of the same transaction concerning the same subject matter, they will be
- 18 -
In Giefer v. Swenton, 928 P.2d 906, 911 (Kan. Ct. App. 1996), by contrast, the
Kansas Court of Appeals did not construe two documents together where they were
intended to take effect at different times. In Giefer, “the trial court attempted to construe
a deed, which was intended to take effect immediately, along with two unprobated wills
executed by decedent.” Id. The court of appeals “consider[ed] this to be mixing apples
with oranges” because a will does not take effect until the testator dies and the will is
admitted to probate. Id. The court said, “These documents are so divergent that we
believe they should not be construed together.” Id.
2.
Based on the foregoing authority, we conclude the documents in this case are part
of the “same transaction.” Black’s Law Dictionary defines “transaction” as “[t]he act or
an instance of conducting business or other dealings” and “[s]omething performed or
carried out; a business agreement or exchange.” Black’s Law Dictionary 1635 (9th ed.
2009). Even though the assignment was executed three months after the farmout, it
related to the same “business agreement or exchange” as the farmout—Plaintiff’s right to
a 75% interest in the lease in exchange for developing steam injection. The assignment
construed together to determine the intent of the parties to the contract.
Id. at 115 (citing Hollenbeck, 829 P.2d at 903). A cursory reading suggests the court was
construing the mortgage assumption agreement together with the original mortgage.
Yet the court actually was construing the mortgage with the land sale contract. The
court went on to say the land sale contract was conditioned on “the approval of the Bank
and the buyer’s assumption of the note and mortgage. Under these circumstances, the
Bank’s approval was sufficient consideration for the assumption agreement.” Id. Thus,
despite wording suggesting otherwise, the Kansas Supreme Court has not construed
documents executed three years apart as being “in the course of the same transaction.”
- 19 -
would have made no sense if it were not part of the exchange set forth in the farmout
agreement. Furthermore, the court in Jordon said documents are particularly likely to be
part of the “same transaction” if they refer to each other. Jordon, 121 P. at 346. Here, the
farmout referred to the assignment, or at least contemplated it. Specifically, the farmout
said that if HPP developed a successful test pod and “complied with all of the terms and
conditions contained herein,” then J.J.R. would “assign to [HPP], subject to the
reservations and conditions contained herein, a 75% Working Interest” in the lease.
Finally, the assignment was dated to take effect the same day as the farmout, May 19,
2006, even though it was executed three months later. This date indicates the parties’
intent to treat the assignment as part of the May 19, 2006, transaction.
Accordingly, we vacate the district court’s judgment quieting title in Plaintiffs and
remand for the district court to consider whether, reading the assignment and the farmout
agreement together, Plaintiffs are entitled to a 75% working interest in the lease. We
leave that determination to the district court because it presents a multitude of questions
that are neither adequately briefed nor addressed by the record on appeal. Under
paragraph 15 of the farmout, Defendants were not entitled to reassignment of a 75%
working interest in the lease unless (1) Plaintiffs breached the farmout, (2) Defendants
gave Plaintiffs notice of the breach by certified mail, and (3) Plaintiffs failed to cure the
breach within thirty days. Defendants have failed to assert any breaches of the farmout in
their briefs before this court, even though such a breach is essential to their argument.
They did perfunctorily reference seven alleged breaches in the district court in response
to the motion for partial summary judgment. But these “breaches” are so tied up in the
- 20 -
facts of this case that we are loathe to address them as a matter of law. Defendants have
also made many inconsistent and confusing assertions and denials in the course of this
litigation, making it difficult to determine what assertions we should credit or reject.
Because the district court is better equipped to determine whether fact issues
remain, we leave it to the district court to decide whether summary judgment is
appropriate when the assignment is read in conjunction with the farmout. In determining
whether Plaintiffs are entitled to an interest in the lease, the district court may need to
consider such questions as (1) whether assignment of the lease was conditioned on the
test pod producing commercial quantities using steam injection, or simply conventional
methods, (2) whether Defendants waived any conditions in the farmout agreement, (3)
whether Plaintiffs failed to “commence operations,” and, if so, whether the lease
terminated automatically, (4) whether Defendants provided Plaintiffs proper notice
regarding any actual breaches, (5) whether any fact issues remain, and (6) whether, in
light of paragraph 9 of the farmout, Plaintiffs are entitled to any interest in the lease
beyond the first two pods. We express no view on how these questions are to be resolved
and whether the quiet title remedy is appropriate. We leave that determination to the
district court.
E.
Defendants’ final contention is that the district court “abused its discretion by
granting arrearages, fees and costs to be paid to Plaintiff[s] without documentation and a
stated contractual right in the executed agreement.” We first address Defendants’
contention that the attorney’s fees were not authorized by contract. Under Kansas law, a
- 21 -
prevailing party may recover attorney’s fees if such fees are “specifically authorized by
statute or agreement.” T.S.I. Holdings, Inc. v. Jenkins, 924 P.2d 1239, 1254 (Kan. 1996).
Here, the JOA contained the following provision:
Costs and Attorney’s Fees: In the event any party is required to bring legal
proceedings to enforce any financial obligation of a party hereunder, the
prevailing party in such action shall be entitled to recover all court costs,
costs of collection, and reasonable attorney’s fees which the lien provided
for herein shall also secure.
(Appellants’ App. at 82.) Defendants’ only response to this provision is to argue the
JOA is not a binding contract, an argument the district court properly rejected.10 The
provision unambiguously authorized attorney’s fees to the prevailing in suits arising out
of financial obligations imposed by the JOA. Because we vacate the district court’s
decision on the quiet title issue, however, we must also vacate the award of attorney’s
fees. Until the district court resolves the quiet title question, Plaintiffs cannot be a
“prevailing party” entitled to attorney’s fees.
We next address the manner in which fees were awarded. Ordinarily, we review a
district court’s decision whether to award attorney’s fees for abuse of discretion and its
application of the legal principles underlying that decision de novo. Pound v. Airosol
Co., 498 F.3d 1089, 1100 (10th Cir. 2007). This is not an ordinary case, however,
because the district court did not award attorney’s fees, but rather submitted the issue and
the amount of attorney’s fees to the jury. Thus, Defendants’ argument is misdirected; the
10
Defendants’ challenge to both the JOA and the recovery of attorney’s fees at
this stage is disingenuous given that Defendants themselves sought to recover “Attorney
fees and litigation costs expressly recoverable pursuant to JOA.” (Appellees’
Supplemental App. at 159.)
- 22 -
district court did not “grant” attorney’s fees. Defendants have not challenged the jury’s
damages award that included $155,239.36 in “litigation expenses.” Nor have Defendants
argued that the district court erred in submitting attorney’s fees to the jury.
Nevertheless, the procedure by which the district court awarded attorney’s fees
was improper. Federal Rule of Civil Procedure 54(d)(2)(A) instructs, “A claim for
attorney’s fees . . . must be made by motion unless the substantive law requires those fees
to be proved at trial as an element of damages.” We apply the substantive law of Kansas,
Cohen-Esrey, 636 F.3d at 1302, and Kansas law does not require attorney’s fees to be
proved as an element of damages. In fact, under Kanas law, “ordinarily . . . the court,
sitting without a jury, makes an allowance of attorney’s fees.” Thomas v. Kansas City S.
Ry. Co., 421 P.2d 51, 57 (Kan. 1966). This is because “a claim for attorney’s fees is not
part of the merits of the action to which the fees pertain.” Snodgrass v. State Farm Mut.
Auto. Ins. Co., 789 P.2d 211, 214 (Kan. 1990) (quoting Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 200 (1988)). Although we have recognized a right to a jury for a
claim “for attorneys’ fees already incurred in a separate, underlying action against a third
party,” J.R. Simplot v. Chevron Pipeline Co., 563 F.3d 1102, 1117 (10th Cir. 2009), we
have never held that Rule 54(d)(2)(A)’s exception applies to contracts such as the JOA in
this case, which authorize attorney’s fees for the prevailing party in the same lawsuit.
The Seventh Circuit has concluded that the exception is inapplicable to such cases.
Rissman v. Rissman, 229 F.3d 586, 588 (7th Cir. 2000). In Rissman, the Seventh Circuit
said,
What Rule 54(d)(2)(A) requires is that a party seeking legal fees among the
- 23 -
items of damages—for example, fees that were incurred by the plaintiff
before the litigation begins, as often happens in insurance, defamation, and
malicious prosecution cases—must raise its claim in time for submission to
the trier of fact, which means before the trial rather than after. Fees for
work done during the case should be sought after decision, when the
prevailing party has been identified and it is possible to quantify the award.
Id. at 588 (emphasis added). Because the fee agreement in this case did not fit Rule
54(d)(2)(A)’s exception, the fees should have been requested pursuant to Rule 54(d)
rather than submitted to a jury. On remand, the prevailing party may seek an award of
costs and attorney’s fees pursuant to Rule 54(d).
We AFFIRM the district court’s denial of leave for Defendants to file an amended
counterclaim and its ruling that the JOA is a valid and binding contract; we VACATE the
grant of quiet title, the grant of summary judgment, the jury verdict, and the award of
attorney’s fees; and REMAND for further proceedings.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
- 24 -
| {
"pile_set_name": "FreeLaw"
} |
107 Cal.Rptr.2d 62 (2001)
89 Cal.App.4th 1
Adam Nieto RESENDIZ, Petitioner,
v.
The SUPERIOR COURT of San Diego County, Respondent;
The People, Real Party in Interest.
No. D036738.
Court of Appeal, Fourth District, Division One.
May 16, 2001.
Ordered Not Officially Published August 8, 2001.[*]
*64 Sandra Resnick, El Cajon, for Petitioner Adam Nieto Resendiz.
No appearance for Respondent.
Paul J. Pfingst, District Attorney, Gregory Thompson, Assistant District Attorney, Thomas F. McArdle and Anthony Lovett, Deputy District Attorneys, for Real Party in Interest.
*63 McDONALD, J.
At the March 7, 2000, California general election the voters approved Proposition 21, the Gang Violence and Juvenile Crime Prevention Initiative (Proposition 21). Section 26 of Proposition 21, which became effective the day after the election, amended Welfare and Institutions Code section 707.[1] The amendment replaced the former section 707, subdivision (d) in its entirety with a new provision that permits the prosecuting authority, in its discretion, to file certain criminal accusations against juveniles in either the adult criminal court or the juvenile court. As a result, Proposition 21 permits the prosecuting authority to determine in its discretion not only whether a crime should be charged, what crime should be charged and who should be charged, but also which of two legislatively authorized sentencing schemes the court may use to impose sentence if the charges are found true. We conclude that by placing within the discretion of the prosecuting authority the determination of which of two legislatively authorized sentencing schemes are available to the courts, Proposition 21's amendment to section 707, subdivision (d) violates the constitutional principle of the separation of powers between the executive and judicial branches of government.
Briefly summarized, section 707, subdivision (d), as amended by Proposition 21 (hereafter section 707(d)), provides that if *65 a juvenile is 16 years old or older at the time he or she is alleged to have committed a specified qualifying offense identified by section 707(d), or is 14 years old or older at the time he or she is alleged to have committed a specified qualifying offense identified by section 707(d), the district attorney is given discretion to either (1) file a petition against the juvenile in juvenile court or (2) prosecute the juvenile as an adult in criminal court. If the district attorney elects to file a petition in juvenile court, the court must on motion conduct a fitness hearing to determine whether the juvenile, if found guilty of the charge, is subject to adult or juvenile penalties. However, if the district attorney elects to prosecute the juvenile as an adult in criminal court and the juvenile is found guilty, the court does not have the option to prescribe a juvenile court disposition; instead, the court must sentence the juvenile as an adult to adult penalties. (Pen. Code, § 1170.17, subd. (a).)
In this case, the San Diego District Attorney filed an accusatory pleading in adult court under section 707(d) against juvenile Resendiz (Petitioner). Under section 707(d) the District Attorney had discretion to file the accusatory pleading in either the adult court or juvenile court. Petitioner challenged the constitutionality of section 707(d) below by demurring to the accusatory pleading (Pen.Code, § 1004), a proper vehicle for asserting the criminal statute under which he was prosecuted is unconstitutional. (Velasco v. Municipal Court (1983) 147 Cal.App.3d 340, 195 Cal.Rptr. 108.) The trial court overruled the demurrer and Petitioner filed with this court a petition for writ of prohibition seeking review of the trial court's order. We issued an order to show cause and the parties waived oral argument.
Petitioner argues section 707(d) is unconstitutional because it violates the separation of powers provision of the California Constitution and is invalid because it deprives him of equal protection of the laws. We conclude that section 707(d) is unconstitutional under the separation of powers doctrine, and it is therefore unnecessary to examine in detail Petitioner's other constitutional arguments.[2]
Although the Legislature is constitutionally entitled to define crimes and to prescribe the punishments for crimes, Petitioner argues that when the Legislature has prescribed that sentencing alternatives be available on conviction it is the judiciary's role to select from the legislatively-prescribed menu of sentences the disposition appropriate for the individual. Petitioner contends that section 707(d) violates this principle because it gives the executive branch the unchecked authority to prescribe which legislatively-authorized dispositional scheme will be available to the court if the charges are found true.
I
BACKGROUND
A. Separation of Powers Principles
Both the California and United States Constitutions follow the principle of separation of powers among the legislative, executive and judicial branches of government. This principle precludes one branch from exercising, or interfering with the exercise of, the functions or powers of either of the other branches. (Cal. Const., art. III, § 3 [explicit declaration]; Springer v. Government of the Philippine *66 Islands (1928) 277 U.S. 189, 48 S.Ct. 480, 482, 72 L.Ed. 845 [separation of powers implicit in United States Constitution].) Although we address here the provisions of a statute enacted through the initiative process, the separation of powers principles are applicable and essentially treat a voter-enacted statute as an act of the Legislature. (See generally People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 [applying separation of powers analysis to statute enacted by initiative]; cf. Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, 26, 132 Cal.Rptr. 668, 553 P.2d 1140 [electorates power to enact law through initiative subject to same limitations applicable to legislative body].)
The separation of powers doctrine allocates discrete functions to each of the three branches of government. In the arena of criminal law, the power to define crimes and fix penalties is vested solely in the legislative branch, subject to applicable constitutional prohibitions. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 629, 87 Cal.Rptr. 481, 470 P.2d 617.) The power to determine whether to bring charges, against whom to bring charges, and what charges to bring among those potentially available is vested in the prosecuting authority as a member of the executive branch. Separation of powers principles prohibit the judiciary from supervising or interfering with that prosecutorial discretion (People v. Birks (1998) 19 Cal.4th 108, 134-135, 77 Cal.Rptr.2d 848, 960 P.2d 1073) even though a decision to charge one offense rather than another may on conviction require the court to impose a harsher sentence. (United States v. Batchelder (1979) 442 U.S. 114, 122-125, 99 S.Ct. 2198, 60 L.Ed.2d 755.) After the charging decisions have been made and the proceedings instituted, the process leading to conviction or acquittal and the choice of the sentence or other disposition is a judicial function (People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993), and the court's authority to select from the legislatively-prescribed sentencing options cannot be controlled by the prosecution. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 516, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Although the Legislature (or the electorate by way of initiative) may restrict the sentencing options available to the court (ibid.), the courts have repeatedly held that after the Legislature has prescribed the dispositions available to the court, separation of powers principles preclude the Legislature from giving to the prosecutor the power to control the court's selection of the disposition. (See People v. Tenorio, supra, 3 Cal.3d at pp. 94-95, 89 Cal.Rptr. 249, 473 P.2d 993 [legislatively granted power of court to strike allegation for sentencing purposes cannot be conditioned on consent of prosecutor]; People v. Navarro (1972) 7 Cal.3d 248, 258-260, 102 Cal.Rptr. 137, 497 P.2d 481 [although Legislature not required to give court power to commit narcotic addicts to a treatment program "having conferred this power it cannot condition its exercise upon the approval of the district attorney"]; People v. Clay (1971) 18 Cal.App.3d 964, 967-970, 96 Cal.Rptr. 213 [exercise of legislatively conferred power to grant probation cannot be statutorily conditioned on consent of prosecution]; cf. Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 124-128, 95 Cal.Rptr. 524, 485 P.2d 1140 [although the Legislature is not required to give power to a magistrate to reduce a wobbler offense from a felony to a misdemeanor, if it does so the Legislature cannot condition the court's power to make that decision on the approval of the district attorney].)
B. The Juvenile Court System
At common law, persons 14 years and older were deemed to have criminal *67 capacity and their crimes were prosecuted in adult court. In the early part of the 20th century state legislatures began creating juvenile court systems in which children under a certain age who committed offenses that would be crimes if committed by adults were instead adjudicated as juvenile delinquents. (In re Gault (1967) 387 U.S. 1, 14-17, 87 S.Ct. 1428, 18 L.Ed.2d 527; LaFave & Scott, Substantive Criminal Law (1986) § 4.11, pp. 566-569.) The Juvenile Court Law enacted in California in 1937, which has undergone numerous subsequent revisions, is designed to avoid ordinary criminal trials and punishments for juveniles charged with criminal conduct in favor of a system of informal hearings and treatment designed to rehabilitate and reform the juvenile offender. (10 Witkin, Summary of Cal. Law (9th ed. 1989) Parent and Child, § 449 et seq., p. 493 et seq.)
The legislative changes to California's juvenile court system during the 1970's included a steady lowering of the age, from 21 to 18 and then to 16 years of age, at which a juvenile could be tried as an adult, depending on the crime committed and the juvenile's fitness or unfitness for the rehabilitative nature of the juvenile court system. (Hicks v. Superior Court (1995) 36 Cal.App.4th 1649, 1659, 43 Cal.Rptr.2d 269.) By 1995, the statutory scheme had been modified to permit some 14- and 15-year-old juveniles, if accused of specific serious crimes and found unfit by the court for a juvenile court disposition, to be tried and sentenced as adults in adult court. (Id. at pp. 1654-1657, 43 Cal.Rptr.2d 269.)
C. The Pre-Proposition 21 System
Under the juvenile court system as it existed before the current version of section 707(d) was added by the adoption of Proposition 21, the decision of whether a juvenile would be exposed to adult penalties rather than the comparatively benevolent dispositions available under the juvenile court laws began with an assessment of the age of the offender and the charged offense. With limited exceptions, when a juvenile, even if 16 years of age or older, was alleged to have committed a crime, the prosecution was required to commence the action in the juvenile court.[3] (§ 707, subd. (a).) However, for many crimes, the juvenile court could, on motion by the prosecution to place the juvenile into the adult system, hold a fitness hearing to determine whether to transfer the juvenile from juvenile to adult court. At the fitness hearing, statutorily-specified presumptions operated to place the burden of proof either on the prosecution to show unfitness to remain in juvenile court or on the juvenile to show fitness to remain in the juvenile court system.[4] (Hicks v. Superior *68 Court, supra, 36 Cal.App.4th at pp. 1654-1657, 43 Cal.Rptr.2d 269.) The court would hold a hearing, consider evidence and argument, and weigh statutorily specified factors[5] to guide its determination of whether the juvenile was unfit for a juvenile court disposition and should be subject to adult prosecution and penalties.
Beginning in 1995, some juveniles who were 14 or 15 years old at the time of the alleged commission of the crime could be tried as adults under the circumstances provided by former section 707, subdivisions (d) and (e), in effect before passage of Proposition 21. For these juveniles, the prosecution was required to file its petition in the juvenile court even for the most serious of crimes. However, if the offense allegedly committed was one of the qualifying offenses listed in former section 707, subdivision (d)(2), the prosecution could seek a court order transferring the action from juvenile to criminal court; the court could order the transfer if, considering five statutory criteria, it found the juvenile was not amenable to a juvenile court disposition. (Former § 707, subd. (d)(1); Hicks v. Superior Court, supra, 36 Cal.App.4th at pp. 1655-1656, 43 Cal.Rptr.2d 269.) Under the statutory scheme in effect immediately prior to approval of Proposition 21, a 14- or 15-year-old offender accused of committing certain special forms of murder was presumed unfit for trial as a juvenile. As to those crimes, the juvenile bore the burden of proof to rebut the presumption by showing he or she was amenable to juvenile court treatment based on the five statutory criteria. (Hicks v. Superior Court, supra, 36 Cal. App.4th at pp. 1656-1657, 43 Cal.Rptr.2d 269.)
Thus, prior to the adoption of section 707(d) as section 26 of Proposition 21, the Legislature provided that in most cases in which a juvenile was accused of a criminal offense, two alternative dispositional schemesone under the juvenile laws and one under the adult sentencing lawswere available to a court if the allegations of wrongdoing were found true. Unless the juvenile was within the limited set of persons for whom the Legislature made a direct filing in the adult court mandatory, it was the judiciary's function after hearing the evidence and weighing the statutory factors to select which dispositional scheme should apply to the juvenile on conviction.
D. The Impact of Section 707(d)
Proposition 21 gives prosecutors the ability to curtail the judiciary's power to select which dispositional scheme to apply if the juvenile is convicted of a specified qualifying offense.[6] Under section 707(d), *69 for juveniles 16 or 17 years old at the time they commit one or more of the section 707(d)'s specified qualifying offenses, or juveniles 14 years old or older at the time they commit one or more of a narrower list of section 707(d)'s specified qualifying offenses, a juvenile court is empowered to determine by way of a fitness hearing whether the particular juvenile should be subject to the adult penalties or should instead be subject to the juvenile court laws only if the district attorney chooses to confer that authority on the juvenile court. However, the district attorney need not give that option to the court: section 707(d) permits the district attorney to prosecute these juveniles as adults in criminal court, and if the district attorney elects to prosecute in adult court and the juvenile is convicted of the charged qualifying offense (or of any other qualifying offense) the court cannot prescribe a juvenile court, disposition but must sentence the juvenile as an adult under the adult laws. (Pen.Code, § 1170.17, subd. (a).)
II
ANALYSIS
A. Section 707(d) Violates Separation of Powers Principles by Giving the District Attorney Discretion to Grant or Withhold from the Court the Option to Prescribe a Juvenile Court Disposition
Separation of powers principles give the district attorney, as a member of the executive branch, the discretion to make the "charging decisions." Accordingly, the power to determine whether to bring charges, what charges to bring, and against which persons, is within the discretion of the prosecution and the judiciary may neither supervise nor interfere with that discretionary determination. (People v. Birks, supra, 19 Cal.4th at pp. 134-135, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) Once the charging decisions have been made and the proceedings instituted, separation of powers principles commit to the judiciary the authority over the process leading to conviction or acquittal, and the authority to decide, subject to the legislatively-imposed guidelines, the sentence or other disposition to impose upon a convicted defendant; these judicial functions cannot be controlled by the prosecution. (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal. Rptr. 249, 473 P.2d 993.)
Whether section 707(d)'s discretionary direct filing provisions transgress the separation of powers principles turns on whether the choice given to the district attorney to file a juvenile court petition or an adult court information is in its nature a charging decision that is allocated to the executive branch or is instead a sentencing decision that is allocated to the judicial branch and may not be delegated to the executive branch in derogation of the judicial power over sentencing. We conclude that the fundamental nature of the decision given to district attorneys under section 707(d) is a decision that the adult sentencing scheme rather than the juvenile court dispositional scheme must be imposed if the juvenile is found guilty of the charged offenses. Therefore, section 707(d)'s provisions giving the district attorney the power to preemptively veto a court's sentencing discretion violates separation of powers principles.
In People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 (On Tai Ho), the court examined the separation of powers doctrine as developed in People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, People v. Navarro, supra, 7 Cal.3d 248, *70 102 Cal.Rptr. 137, 497 P.2d 481 and Esteybar v. Municipal Court, supra, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 to test whether a provision of a statutory scheme for pretrial diversion of certain defendants violated the separation of powers doctrine. Under that scheme, the court was authorized to divert from the normal criminal process persons charged with first-time possession of drugs who were found to be suitable for treatment and rehabilitation. The first step was a preliminary screening for eligibility, conducted by the district attorney under standards prescribed by the statute, to determine whether the defendant met certain minimum standards of eligibility for the diversion program.[7] If the defendant appeared to be eligible under the minimum standards, the matter was referred to the probation department to collect the facts bearing on the particular defendant's suitability for diversion. (On Tai Ho, supra, at pp. 61-62, 113 Cal. Rptr. 21, 520 P.2d 405.)
The second step involved weighing the facts developed by the probation department, as well as other relevant facts, and making a decision to divert the defendant into a rehabilitation program; that decision was vested in the trial court. (On Tai Ho, supra, 11 Cal.3d at p. 63, 113 Cal. Rptr. 21, 520 P.2d 405.) The On Tai Ho court concluded that one provision of the scheme, a statutory provision subjecting the court's ability to order diversion to a prosecutorial veto,[8] violated the separation of powers doctrine. The court noted that, under the standards developed in Tenorio, Esteybar and Navarro, separation of powers principles precluded the Legislature from giving the prosecutor the ability to control or limit the court's dispositional powers after the criminal proceedings had been instituted, and stated at page 65 that "[i]n the light of these precedents it is clear that if the decision to divert a defendant into a rehabilitation program ... is an exercise of judicial power, it cannot constitutionally be subordinated to a veto of the prosecutor." The On Tai Ho court then turned to the central issue: was the decision to divert an aspect of the charging decisions vested in the prosecution, or an aspect of the process leading to acquittal or sentencing that is vested in the judiciary?
The On Tai Ho court rejected the argument that the decision to divert was a mere extension of the charging process; diversion occurred after the charging decisions had been made and thereafter, "`the process which leads to acquittal or [to] *71 sentencing is fundamentally judicial in nature.'" (On Tai Ho, supra, 11 Cal.3d at p. 65, 113 Cal.Rptr. 21, 520 P.2d 405, quoting People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.) In On Tai Ho, the People sought to exempt the decision to divert from the types of decisions described as judicial by Tenorio by arguing the decision to divert did not result either in a defendant's acquittal or his sentencing, and a district attorney's refusal to consent to diversion meant only that the defendant would go to trial as charged. The On Tai Ho court rejected this distinction and stated at page 66, 113 Cal.Rptr. 21, 520 P.2d 405 that:
"[T]his is reading Tenorio and the present statute too narrowly. [¶] The principle summarized in the quoted language from Tenorio is that when the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility. It is true that acquittal or sentencing is the typical choice open to the court, but in appropriate cases it is not the only termination. With the development of more sophisticated responses to the wide range of antisocial behavior traditionally subsumed under the heading of `crime,' alternative means of disposition have been confided to the judiciary. The most commonly invoked, of course, is probation; and under the rule of the Clay case, the decision to grant probation in the interests of justice is a judicial act within the meaning of the separation of powers doctrine. In turn, civil commitment to the narcotics addict rehabilitation program is a disposition which may be viewed as a specialized form of probation; under Navarro, it too is an exercise of the judicial power. "The analogy to the program here in issue is clear: diversion may also be viewed as a specialized form of probation, available to a different class of defendants but sharing many similarities with general probation and commitment for addiction. Like those programs, diversion is intended to offer a second chance to offenders ... and the decision to divert is predicated on an in-depth appraisal of the background and personality of the particular individual before the court."
The On Tai Ho court also noted that the nature of the decision to divert, as well as the consequences flowing from the decision to divert, were fundamentally judicial in nature. The decision, the court noted, required a weighing of evidence and a determination of whether the particular defendant was suitable for rehabilitative programs, which were typical of adjudicative acts. Moreover, the consequences flowing from diversion were analogous to the consequences flowing from a successful or unsuccessful period of probation. (On Tai Ho, supra, 11 Cal.3d at pp. 67-68, 113 Cal.Rptr. 21, 520 P.2d 405.) The On Tai Ho court cautioned that the timing of the decision was not determinative of whether the decision was judicial in nature and concluded at page 68:
"Our decision in Esteybar teaches that the issue whether a power is judicial in nature depends not on the procedural posture of the case but on the substance of the power and the effect of its exercise. Here the Legislature's choice of pre-conviction rather than post-conviction intervention is easily understandable.... At whatever stage such intervention occurs, however, it is an integral step in the process leading to the disposition of the case before the court, and therefore constitutes an exercise of judicial authority within the meaning of the constitutional doctrine of separation of powers."
*72 The discretionary direct filing decision given to the district attorney under section 707(d) cannot be neatly characterized as either a traditional charging-type decision or a traditional dispositional-type decision. The decision to file in adult court bears some resemblance to a charging decision: it occurs before the jurisdiction of a court has been invoked by the filing of a criminal charge, and some types of charging decisions may be accompanied by a choice to seek imposition of more severe punishments upon conviction. (Cf. People v. Kirkpatrick (1994) 7 Cal.4th 988, 1024, 30 Cal.Rptr.2d 818, 874 P.2d 248 [prosecutor has discretion to select, from pool of those eligible cases, which cases it will actually seek death penalty without violating separation of powers].) However, the decision to file in adult court also bears some of the hallmarks of a prohibited prosecutorial control over a court's dispositional decision: it gives the prosecutor the ability to decide which juveniles among the statutorily eligible pool are fit for a juvenile court disposition, and it gives the prosecutor the ability to prevent a court from giving an otherwise eligible and fit juvenile the benefits of a juvenile court disposition.
Because On Tai Ho teaches that whether a power is judicial in nature depends not on when it is exercised but instead on "the substance of the power and the effect of its exercise" (On Tai Ho, supra, 11 Cal.3d at p. 68, 113 Cal.Rptr. 21, 520 P.2d 405), we conclude that section 707(d) violates the separation of powers principles by giving the district attorney the unchecked authority to prescribe which legislatively-authorized dispositional scheme will be available to the court if the charges are found true. It is undisputed that, for juveniles who commit a section 707(d) offense (except those for whom a direct filing in the adult court is mandated by section 602, subdivision (b)), the Legislature has provided that alternative sentencing schemes will be available: the juvenile is eligible to be sentenced under either the juvenile court laws or under the adult laws. It is also undisputed that, absent section 707(d), the determination of which scheme will apply requires a particularized, evidentiary hearing to adjudicate the individual juvenile's fitness or suitability for juvenile court treatment, and that these adjudicatory functions are essentially judicial in nature. Because the decision to be made is adjudicatory in nature, and the effect of that decision is a de facto selection among the sentencing alternatives otherwise available to the court, section 707(d) allocates a judicial power and function to the district attorney in violation of separation of powers principles.
The People argue that, under Davis v. Municipal Court (1988) 46 Cal.3d 64, 249 Cal.Rptr. 300, 757 P.2d 11, a prosecutor is entitled to make charging decisions without violating the separation of powers even though the decision restricts the court's dispositional alternatives. In Davis, the local diversion program was available only to persons charged with a misdemeanor. The defendant argued that because his eligibility for diversion was conditioned on being charged with a misdemeanor, a prosecutor's discretion to decide whether a wobbler should be charged as either a felony or a misdemeanor eliminated the court's option to order diversion and therefore violated the separation of powers doctrine. (Id. at p. 81, 249 Cal.Rptr. 300, 757 P.2d 11.) Davis rejected this claim based on two considerations. First, Davis recognized that diversion programs routinely limit eligibility based on the offense charged. Second, Davis recognized that prosecutors in felony cases almost invariably are presented with facts that, although supporting a felony charge, could also support a misdemeanor charge. (Id. *73 at pp. 81-82, 249 Cal.Rptr. 300, 757 P.2d 11.) Davis implicitly recognized that were the defendant's argument accepted, either (1) misdemeanor diversion programs would necessarily be invalid (to preserve the prosecutor's charging discretion) or (2) the prosecutor's discretion to select which crime to prosecute would be severely limited (to preserve the defendant's access to an available diversion program). (Ibid.) The core rationale underlying Davis is that a prosecutor's discretion to choose which of the possible offenses to charge is a function vested in the prosecutor, and such discretion may not be curtailed or controlled merely because the prosecutor's decision will, as an inevitable collateral consequence, narrow a court's dispositional alternatives. (Id. at pp. 82-86, 249 Cal. Rptr. 300, 757 P.2d 11.)
We conclude Davis is inapplicable to the issues raised by section 707(d). Under section 707(d), a prosecutor makes two distinct and severable decisions. First, the prosecutor examines the facts of the crime to determine what offenses are supported by the facts; it is this charging decision that Davis preserved to the prosecutor. Second, if the prosecutor decides the facts support charging an offense that section 707(d) specifies as a qualifying offense, section 707(d) gives the prosecutor the discretion to make a second and distinct decision: whether to permit the court to make a juvenile law disposition or to limit the court to adult law sentencing. The latter decision is neither an inevitable nor collateral effect of the charging decision and, unlike Davis, preserving the latter decision for the court will not curtail or control the prosecutor's discretion to make his traditional charging determinations. Davis's separation of powers analysis does not control the separation of powers issue presented by section 707(d).
The People also rely on cases from other states in which the courts are argued to have held that statutes giving a prosecutor discretion to file charges against juveniles directly in adult court did not violate the separation of powers principle and were constitutional.[9] We are convinced, however, that the analyses of those courts are consistent with our conclusion here.
For example, in Hansen v. State (Wyo. 1995) 904 P.2d 811, a statute gave concurrent jurisdiction to both juvenile and adult courts for certain crimes involving juveniles 14 years or older. The juvenile argued that granting the prosecutor the unguided discretion to file in either juvenile or adult court violated separation of powers principles. The court rejected that argument because the statutory scheme permitted the juvenile to seek, and the court to order, that a matter commenced in adult court be transferred back to juvenile court; accordingly, the prosecutor's filing decision placed no restrictions on the court's power to impose a juvenile court disposition. (Id. at pp. 822-823.) The availability of similar retransfer powers convinced the court in Bishop v. State (1995) 265 Ga. 821, 462 S.E.2d 716 that a statute giving the district attorney discretion to file in either juvenile or adult court did not infringe on the judicial power to select the appropriate disposition. In State v. Cain (Fla.1980) 381 So.2d 1361, the statutory scheme permitted minors to be tried as adults if (1) the court concluded *74 they were unfit for juvenile court treatment and ordered them sent to adult court or (2) the district attorney made the discretionary decision to directly file in adult court. (Id. at pp. 1362-1363.) The Cain court concluded, however, that the latter procedure did not restrict the dispositions available to the judiciary because, even were the juvenile convicted in adult court, the judge would determine whether to use the juvenile or adult dispositional schemes by evaluating the same factors and using the same procedures he or she would have originally used to determine whether to send the case filed in juvenile court to adult court. (Id. at p. 1367.) Finally, in People v. Thorpe (Colo.1982) 641 P.2d 935, a discretionary direct filing statute was found constitutional because the scheme retained both of the above-described avenues: when a child was directly prosecuted in adult court, the court retained the power "`to make any disposition of the case that any juvenile court would have'" as well as the discretion to remand the case to the juvenile court for disposition. (Id. at pp. 939-940, fn. 4.)
In all of the cases upholding the constitutionality of a discretionary direct filing statute against a separation of powers argument, the prosecution's power to select the forum did not interfere with or restrict the court's dispositional authority; the adult court retained the authority to prescribe a juvenile court disposition, or order the action retransferred to juvenile court, or both.[10] No similar provision exists under section 707(d): if the district attorney files the proceeding in adult court and the juvenile is convicted of the charged qualifying offense, or is convicted of any other offense that would have qualified for direct filing, the court may not select a juvenile court disposition but must sentence the defendant as an adult under the adult laws. (Pen.Code, § 1170.17, subd. (a).) Thus, unlike the statutes considered by the courts in other states, the prosecution's power to select the forum under section 707(d) does interfere with and restrict the court's dispositional authority.
B. The Invalidity of Section 707(d) Does Not Fatally Infect the Balance of Proposition 21
Because we have determined that section 707(d) is invalid, we must determine whether the invalid provision is severable from the balance of Proposition 21.
Section 38 of Proposition 21 contains a severability provision stating that, "If any provision of this act, or part thereof, is for any reason held to be invalid or unconstitutional, the remaining sections shall not be affected, but shall remain in full force and effect, and to this end the provisions of this act are severable." (Ballot Pamp., Primary Elec. (March 7, 2000) Prop. 21, § 38, p. 131.) In Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605, our Supreme Court explained the effect of such a clause by stating at page 331: "Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable.... Such a clause plus the ability to mechanically sever the invalid part while normally allowing severability ... does not conclusively dictate it. The final determination depends on whether the remainder ... is complete in itself and would have been adopted by *75 the legislative body had the latter foreseen the partial invalidity of the statute ... or constitutes a completely operative expression of the legislative intent ... [and is not] so connected with the rest of the statute as to be inseparable." (Interior quotation marks and citations omitted.)
There are three criteria for severability: the invalid provision must be grammatically, functionally, and volitionally separable. (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821-822, 258 Cal.Rptr. 161, 771 P.2d 1247.) We conclude section 707(d) is severable under these criteria.
First, section 707(d) is mechanically and grammatically severable. It constitutes a distinct and separate provision of Proposition 21 that can be removed as a whole without affecting the wording of any provision other than section 26 of the initiative.
Second, section 707(d) is functionally severable. The overarching purpose of the bulk of Proposition 21 was to increase the penalties for and consequences of juvenile and gang-related offenses, and to make a larger group of juveniles eligible for treatment as adults. Because the principal purpose of section 707(d) was to provide a procedural mechanism for expediting the processing of the targeted juveniles into the adult system, its removal merely eliminates a procedural avenue while leaving intact the increased penalties and consequences of juvenile and gang-related offenses.
Third, we believe section 707(d) is volitionally severable because the remainder of the initiative, after deleting the discretionary direct filing provision, would likely have been adopted by the electorate had they foreseen the invalidity of that provision. The voters who enacted Proposition 21 would presumably prefer that the core purpose of changing the penalties and consequences of juvenile and gang-related offenses from those that existed before the initiative was enacted remain operable even though the fitness determinations remain committed to the judiciary. There is no persuasive reason to suppose the discretion given to the prosecutors under section 707(d) was so critical to the enactment of Proposition 21 that the measure would not have been enacted in its absence.
We therefore conclude that section 26 of Proposition 21, including section 707(d), although invalid, is severable from the other provisions of Proposition 21.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its September 22, 2000, order overruling Petitioner's demurrer and to enter a new order sustaining the demurrer. Petitioner shall recover costs in this writ proceeding.
HUFFMAN, Acting P.J., concurs.
NARES, J., dissenting:
A. Introduction
The question presented by the petitioner's constitutional challenge to Welfare and Institutions Code[1] section 707, subdivision (d) (hereafter section 707(d)), is this: If the people of the State of California can, as the majority concedes, abolish the juvenile justice system completely, or mandatorily deny access to that system to juveniles of a certain age charged with certain crimes, can the people also take a more moderate approach by enacting Proposition 21, which delegates to the executive branch (i.e., the district attorney) the discretion *76 to determine whether to file charges against juveniles of a certain age accused of particular crimes in juvenile or criminal court? I believe the people of this state have the constitutional power and the right to take such a measured approach to combat serious and violent juvenile crimes. The majority on the other hand believes that the citizens of this state do not.
Because the power of government ultimately resides in the people, the constitutional right of initiative measures is a power reserved by the people, not granted to them. (Cal. Const., art. IV, § 1.) To these ends, "`"[the] power of initiative must be liberally construed ... to promote the democratic process."'" (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219-220, 149 Cal.Rptr. 239, 583 P.2d 1281.) "[I]t is [the court's] solemn duty jealously to guard the sovereign people's initiative power, `it being one of the most precious rights in our democratic process.' [Citation.] ... [W]e are required to resolve any reasonable doubts in favor of the exercise of this precious right." (Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal. Rptr. 30, 651 P.2d 274, original italics.)
Further, once an initiative measure is passed and enacted into law, its statutory provisions must be construed in a manner favoring their constitutionality. "`If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable. [Citations.] The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute within the scope of its constitutional powers.' [Citations.]" (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero).)[2]
I believe that section 707(d), reasonably and properly construed, and giving all intendments in favor of its constitutionality, does not violate constitutional separation of powers or equal protection principles.
An analysis of the constitutionality of section 707(d) must begin with the recognition that juveniles do not have a constitutional right to be tried in the juvenile court system. (Hicks v. Superior Court (1995) 36 Cal.App.4th 1649, 1658, 43 Cal.Rptr.2d 269 (Hicks).) That system is entirely a creature of statute. (In re Jose H. (2000) 77 Cal.App.4th 1090, 1099, 92 Cal.Rptr.2d 228.) Accordingly, the legislative branch may restrict a juvenile's access to the juvenile court system, or even, if it so chooses, eliminate the system entirely. (Hicks, supra, 36 Cal.App.4th at pp. 1657-1661, 43 Cal.Rptr.2d 269.)
Consistent with this power, and in response to the "legitimate public anxiety about the increase in juvenile crime," the Legislature in this state, prior to the passage of Proposition 21, narrowed the scope of availability of juvenile treatment for the most serious juvenile offenders and removed some of the most serious offenses *77 completely from the juvenile system. (Hicks, supra, 36 Cal.App.4th at pp. 1658-1659, 43 Cal.Rptr.2d 269.)[3] For example, the Legislature has identified certain offenses which, if committed by a juvenile of a certain age, eliminate the possibility of juvenile treatment and require prosecutors to automatically file charges in the criminal courts (mandatory direct filing). (See former § 602, as amended by Stats. 1999, ch. 996, § 12.2.) The Legislature also adopted a process for identifying juveniles who do not belong in the juvenile court system and returning them to the criminal courts. In this process, certain juveniles are, based upon their age, the crime charged and other criteria, presumed unfit to remain in juvenile court. The juvenile must overcome this presumption of unfitness and prove to the court that he or she is fit to remain in juvenile court. (See former § 707, subd. (c), added by Stats. 1975, ch. 1266, § 4, p. 3325;[4]Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 805, 210 Cal.Rptr. 204, 693 P.2d 789.)
In 2000, the people of California, expressing their continued concern and frustration over serious and violent juvenile crime, particularly gang violence, revised the juvenile justice statutes again by passing Proposition 21, which, among other things, amended portions of section 707, as well as other sections of the Welfare and Institutions Code, to further limit access to the juvenile court system for minors charged with the most serious and violent of offenses. Of relevance to our inquiry, section 707(d), as amended by Proposition 21, gives prosecutors the discretion to file charges against juveniles of a certain age, and who commit certain crimes, directly in criminal court or in juvenile court. (§ 707(d)(1)-(3).)
B. Separation of Powers
The petitioner, and the majority, does not contend that previous legislative directives that prosecutors must file certain charges against juveniles in criminal court are constitutionally infirm. Nor is there any question that a statutory presumption of unfitness for juvenile court treatment for certain juveniles charged with certain offenses is constitutionally permissible. (Hicks, supra, 36 Cal.App.4th at pp. 1657-1661, 43 Cal.Rptr.2d 269; Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812, 817, 178 Cal.Rptr. 418; People v. Superior Court (Steven S.) (1981) 119 Cal.App.3d 162, 177, 173 Cal.Rptr. 788.) Because a juvenile has no constitutional right to a juvenile court disposition, the Legislature can restrict, qualify or deny the privilege of juvenile treatment as it sees fit. The petitioner contends (and the majority agrees), however, that merely because section 707(d) delegates to prosecutors the discretion to file charges for certain crimes in juvenile or criminal court, it violates the separation of powers doctrine. Such a contention does not withstand scrutiny.
Prosecuting authorities, in determining what charges to file against an individual, or whether to file charges at all, are given *78 largely unfettered discretion that is not subject to judicial supervision. (People v. Birks (1998) 19 Cal.4th 108, 134, 77 Cal. Rptr.2d 848, 960 P.2d 1073 (Birks); Davis v. Municipal Court (1988) 46 Cal.3d 64, 77, 249 Cal.Rptr. 300, 757 P.2d 11 (Davis).) This exercise of discretion is limited only to the extent that it may not be applied in a discriminatory manner. (United States v. Batchelder (1979) 442 U.S. 114, 125, fn. 9, 99 S.Ct. 2198, 60 L.Ed.2d 755.)
The wide discretion given to prosecutors at the charging stage itself derives from the separation of powers doctrine. (Birks, supra, 19 Cal.4th at p. 134, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) Placing such broad discretion in the hands of prosecutors "rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." (Wayte v. United States (1985) 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547.) Thus, the mere fact that a prosecutor must exercise discretion in determining whether to file a charge under section 707(d) in criminal or juvenile court does not render such decision unconstitutional as a violation of separation of powers.
The majority finds a constitutional defect here by characterizing the decision to file in juvenile or criminal court as a "judicial" function, not part of the prosecutor's broad authority to file charges, because the exercise of discretion under section 707(d) impacts whether a juvenile will be subject to juvenile or adult sentencing and disposition. The majority characterizes this as a "veto" of the court's sentencing and dispositional power, (p. 69 ante.) This conclusion is unsupportable for several reasons.
First, a fair reading of Proposition 21 and section 707(d) demonstrates that the people of this state enacted a narrow and limited refinement of the juvenile justice system, that has properly delegated to the executive branch at the charging stage the discretion to remove certain juveniles from the juvenile justice system. There is no veto power over a judicial decision here as this discretion is given to prosecutors at the charging stage, and there is no prosecutorial interference with judicial functions once a charge is filed. After a charge is filed in criminal court under section 707(d), the judicial branch retains its traditional power, unconstrained by the executive branch, to make any adult sentencing or dispositional determinations available to it. As with mandatory direct filing, section 707(d) simply removes from the judicial branch, as to a limited class of juveniles, the power to determine that they may be diverted into the juvenile system. If it is a constitutional delegation of power for the legislative branch to require that a prosecutor file charges for certain crimes committed by juveniles in criminal court, it is also constitutional for the legislative branch to delegate to prosecutors the discretion to file charges for certain crimes in juvenile or criminal court.
There is also no legal support for the majority's proposition that section 707(d) violates the separation of powers doctrine. The cases upon which the majority rely (People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 (Tenorio) & its progeny) for the proposition that section 707(d) violates the doctrine of separation of powers, do not support the majority's conclusion. They all have one fundamental and determinative difference from section 707(d): "[I]n all of those cases the challenged statutory provisions *79 purported to give a prosecutor the right to veto a decision made by a court after criminal charges had already been filed." (Davis, supra, 46 Cal.3d at p. 82, 249 Cal.Rptr. 300, 757 P.2d 11, original italics.)
In Tenorio and its progeny, the constitutional defect arose because the Legislature reserved a power to the judicial branch, but at the same time conditioned its exercise upon approval of the prosecution. (See Tenorio, supra, 3 Cal.3d at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993 [prosecution's veto power over court's decision to dismiss prior offense allegation invalid]; People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 64-68, 113 Cal.Rptr. 21, 520 P.2d 405 [prosecutor's veto power over a court's decision to divert a defendant charged with a narcotics offense to a treatment and rehabilitation program invalid]; People v. Navarro (1972) 7 Cal.3d 248, 258-260, 102 Cal.Rptr. 137, 497 P.2d 481 [requiring prosecutor's consent before court could sentence a defendant to a treatment program for narcotics addicts]; Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 124-128, 95 Cal.Rptr. 524, 485 P.2d 1140 [prosecutor's veto power over court's treatment of "wobbler" as a misdemeanor rather than a felony invalid].) None of these cases purports to hold that the Legislature cannot delegate to the executive branch the power to make discretionary decisions as part of its charging function before invocation of the jurisdiction of the courts, even if the decisions have a real and substantive effect upon disposition and sentencing.
Davis (supra, 46 Cal.3d 64, 249 Cal. Rptr. 300, 757 P.2d 11) is instructive. There, the high court upheld the constitutional validity of statutes giving local district attorneys the authority to approve or disapprove local diversion programs. The court recognized that under the statutes a prosecutor could deny the availability of diversion by charging a wobbler as a felony rather than a misdemeanor. The court held that this did not violate the separation of powers doctrine, even though it affected the defendant's sentencing and dispositional options, because it was a power exercised prior to invocation of the court's jurisdiction. (Id. at p. 82, 249 Cal.Rptr. 300, 757 P.2d 11.) The Davis court concluded the Tenorio line of decisions was inapplicable as those cases were "concerned with an entirely different kind of interference by the executive with a court's exercise of the judicial function.... None of the cases suggests that the exercise of prosecutorial discretion prior to the filing of such charges improperly subordinates the judicial branch to the executive in violation of the Constitution, even though the prosecutor's exercise of such charging discretion inevitably affects the sentencing or other dispositional options available to the court." (Ibid., original italics.)
The Davis court distinguished Esteybar (supra, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140), which also involved the decision to reduce a charge from a felony to a misdemeanor, by noting that in that case the court was presented with a prosecutor's veto power over a judicial decision made after charges had been filed: "Thus, Esteybar expressly emphasized the timing of the exercise of prosecutorial discretion as a crucial factor in the Tenorio analysis. All of the subsequent cases applying Tenorio to invalidate legislative provisions have similarly involved statutes which authorized the exercise of a prosecutorial veto after the filing of criminal charges, when the criminal proceeding has already come within the aegis of the judicial branch. [Citations.]" (Davis, supra, 46 Cal.3d at p. 83, 249 Cal.Rptr. 300, 757 P.2d 11, original italics.)
*80 Thus, Davis teaches us two things. First, timing is critical to a separation of powers analysis. If the challenged statute involves an exercise of prosecutorial discretion prior to the invocation of the court's jurisdiction, the separation of powers doctrine simply does not comes into play. Second, the nature of the prosecutor's exercise of discretion, whether it would traditionally be viewed as a "judicial" or "prosecutorial" action, is not the focus. For example, in Davis, the court analyzed the discretionary power of a prosecutor to reduce a felony to a misdemeanor, and declared such authority constitutional when exercised at the charging stage, but unconstitutional if exercised as a veto power over a court's decision after jurisdiction of the court is invoked.
The majority's quote from On Tai Ho (supra, 11 Cal.3d at p. 68, 113 Cal.Rptr. 21, 520 P.2d 405) that "the issue whether a power is judicial in nature depends not on the procedural posture of the case but on the substance of the power and the effect of its exercise," does not help their conclusion that section 707(d) is unconstitutional. In making that statement, the court in On Tai Ho was merely stating that for purposes of defining an action as "judicial" it mattered not whether the power was exercised pre- or post-conviction, both of which are stages that occur after invocation of the court's jurisdiction. (On Tai Ho, supra, at pp. 67-68, 113 Cal.Rptr. 21, 520 P.2d 405.) The court in On Tai Ho in no way intimated that in a separation of powers analysis we ignore whether the particular power is exercised before or after invocation of the court's jurisdiction. In fact, as the court in Davis held, this issue is "crucial" to a separation of powers analysis. (Davis, supra, 46 Cal.3d at p. 83, 249 Cal.Rptr. 300, 757 P.2d 11 .)
The high court's most recent analysis of the separation of powers doctrine and a prosecutor's discretionary powers in Romero, supra, 13 Cal.4th 497, 53 Cal. Rptr.2d 789, 917 P.2d 628, also supports the conclusion that section 707(d) is constitutional. There again, the Romero court recognized that (1) the Legislature and electorate may take away judicial power to make sentencing determinations, and (2) it is only where the Legislature has reserved such power in the judiciary, but subjected it to prosecutorial approval, that a separation of powers issue is implicated. (Id. at p. 516, 53 Cal.Rptr.2d 789, 917 P.2d 628.)
Likewise, in the case of section 707(d), the separation of powers doctrine is not at issue because the people of this state have abolished juvenile court disposition as to juveniles who meet certain criteria. There can be no prosecutorial "veto" of a judicial sentencing or disposition determination under section 707(d), because the judiciary does not have the power to make such a determination in the first place.
Accepting for the moment the majority's proposition that discretionary actions by a prosecutor made at the charging stage could be deemed an improper exercise of "judicial" power under some circumstances, such is not the case with the authority delegated by the legislative branch to prosecutors under section 707(d). Section 707(d) gives much less discretionary authority to the prosecution that could be labeled judicial action than the statute found constitutional in Davis. In Davis, the prosecutors were allowed unbridled discretion to charge a wobbler as a felony or misdemeanor, and thereby decide whether a defendant was eligible for diversion or subject to criminal penalties, without any statutory criteria or standards. (Davis, supra, 46 Cal.3d at pp. 89-96, 249 Cal.Rptr. 300, 757 P.2d 11 (dis. opns. of Mosk, J. & Kaufman, J).)
Here, by contrast, under Proposition 21 prosecutors may only file a charge in criminal court under section 707(d) if the juvenile *81 meets certain statutory criteria (e.g., 16 years of age and charged with murder (without special circumstances); 14 years old and personally used a firearm in the commission of a felony, etc.). (See § 707(d)(1) & (2)). The legislative branch has determined that if a juvenile meets the statutory criteria of section 707(d), he or she is deemed fit as a matter of law for processing through the criminal court system, including sentencing and disposition. The prosecution does not make any "fitness" determination that could be labeled a "judicial" function. The legislative branch accomplishes this, in advance, by enumerating the criteria under which a juvenile may be prosecuted in criminal court.
Nor do I believe that the decision of a prosecutor to file an action against a juvenile who meets the criteria of section 707(d) in the criminal court or juvenile court goes beyond traditional notions of what are "charging" powers. I view the exercise of discretion under section 707(d) as akin to a prosecutor's decision whether or not to charge an individual at all with a particular crime. All the statute does is allow the prosecutor to choose to prosecute a juvenile who meets section 707(d)'s criteria in criminal court, or not, and file in juvenile court. As I have already discussed, the fact that the exercise of this discretionary power impacts sentencing or dispositional options is of no moment. Anytime a prosecutor exercises his or her discretion to charge a certain crime over another, sentencing and disposition are directly, and sometimes severely, impacted. This fact does not make the prosecutor's decision constitutionally infirm or turn it into an improper exercise of a "judicial" function.
The basic flaw in the majority's analysis is shown when it is applied to the mandatory direct filing portions of section 707 that require a prosecutor to file certain charges against juveniles in criminal court. In applying the mandatory direct filing section, prosecutors have the power and discretion to charge the individual with a crime that would require filing in criminal court, or elect to file a lesser charge that would subject the minor to only a juvenile disposition, or at least a hearing to determine if the minor is fit to be processed in the juvenile justice system. No one argues that such discretion, although its exercise decides whether a juvenile is subject to criminal sentencing and disposition or those of the juvenile courts, is unconstitutional.
Indeed, imposition of mandatory direct filing in criminal court, which is admittedly constitutional, eliminates much more of a court's sentencing or dispositional authority and is much more severe in its application. The people of this state are constitutionally permitted to completely eliminate availability of the juvenile system for certain juveniles. The majority tells us, however, that the people cannot take the measured approach of allowing the prosecution to decide, as to juveniles who meet certain narrow criteria (i.e., age and serious or violent felony), whether to file charges in juvenile or criminal court. If this is the law, and the people are not allowed to delegate such limited discretion to prosecutors, the people of this state may well decide that their only recourse is to include all serious and violent crimes in the mandatory direct file system or eliminate the juvenile system as a whole. The people of this state have enacted a law that is a narrow and focused limitation upon the availability of the juvenile justice system to juveniles who meet certain statutory criteria. Such a reasoned and balanced approach does not violate the constitution, particularly given the fact that juveniles have no constitutional right to a juvenile justice system at all.
As the majority recognizes, several out-of-state cases have upheld against constitutional *82 challenge statutes giving prosecutors the discretion to file certain charges against juveniles in either criminal or juvenile court. (Hansen v. State (Wyo.1995) 904 P.2d 811, 817-820; Bishop v. State (1995) 265 Ga. 821, 462 S.E.2d 716, 717; State v. Cain (Fla.1980) 381 So.2d 1361, 1363-1366; People v. Thorpe (Colo. 1982) 641 P.2d 935, 938-940.) The majority attempts to distinguish these cases on the basis that the challenged statutes all provided for a discretionary remand to the juvenile system by the court after the court process had been initiated. However, none of these cases held that the statutes at issue survived a separation of powers challenge because of such a remand provision. (Hansen, supra, at pp. 817-820; Bishop, supra, at p. 717; Cain, supra, at pp. 1363-1366; Thorpe, supra, at pp. 938-940.) Rather, the cases that addressed a separation of powers challenge held that there was no constitutional infirmity simply because the exercise of discretion by a prosecutor in deciding to file charges in criminal or juvenile court was not a judicial act. The fact that the statutes contained remand provisions quite simply had no bearing on the separation of powers analysis in those cases. (Hansen, supra, at pp. 817-820; Bishop, supra, at pp. 717-718; Cain, supra, at pp. 1363-1367.) Accordingly, the above-cited out-of-state cases provide additional and strong authority for the conclusion that section 707(d) is a proper delegation of prosecutorial charging authority that does not violate the separation of powers doctrine.
C. Equal Protection
Petitioner also challenges the constitutionality of section 707(d) on the basis that it purportedly deprives him of equal protection of the law. I would also reject this argument as a basis for finding section 707(d) unconstitutional.[5]
In assessing petitioner's contention that section 707(d) is deficient under equal protection principles, we first must determine the appropriate standard of review. If a challenged statute "adversely affects a `fundamental right,' is `"protected by [a] specific guarantee of the United States Constitution,"' involves a `suspect classification' or `"discrete and insular minority"' or has an impact on `"the integrity of the political process,"' we apply a strict scrutiny standard and look for a compelling state interest that cannot be accomplished by less restrictive means to uphold the statute. [Citation.] In all other cases, the statute is vested with a presumption of constitutionality and need only bear a rational relationship to some conceivable legitimate legislative purpose." (Hicks, supra, 36 Cal.App.4th at p. 1657, 43 Cal. Rptr.2d 269, fn. omitted.)
In Hicks, an earlier version of section 707 was upheld against an equal protection challenge. There, the Court of Appeal applied the rational relationship test because the statute did not affect a suspect classification, a fundamental right or specific guarantee of the constitution, or the integrity of the political system. (Hicks, supra, 36 Cal.App.4th at pp. 1657-1658, 43 Cal.Rptr.2d 269.) In so doing, the court noted that "there is no express constitutional guarantee giving a minor the right to trial in juvenile court...." (Id. at p. 1658, 43 Cal.Rptr.2d 269.) The court also concluded that the right to juvenile disposition *83 did not impact a "fundamental right implicitly guaranteed by the Constitution. [Citation.]" (Ibid., fn. omitted.)
Further, the Hicks court held that "[a]ge is not an immutable characteristic and is not recognized as a suspect classification under either the United States or California Constitutions. [Citations.]" (Hicks, supra, 36 Cal.App.4th at p. 1657, 43 Cal.Rptr.2d 269.) In Hicks, as here, there was no contention that the terms of section 707 affects the integrity of the political process. (Hicks, supra, at p. 1658, 43 Cal.Rptr.2d 269.)
Petitioner in this case argues for a review under the strict scrutiny standard because section 707(d) purportedly "permits different treatment for similarly situated defendants" and impinges upon a defendant's fundamental right of "personal liberty."
However, as the court in Hicks held, there is no fundamental right to juvenile court treatment. Therefore, the fact that section 707(d) gives prosecutors the discretion to charge certain defendants under the age of 18 in adult court and certain ones in the juvenile court system for the same crime does not impact a fundamental liberty interest.
Petitioner submits that section 707(d) involves a suspect classification because it gives "arbitrary power" to the prosecution "to choose adult court for one juvenile offender, and juvenile disposition for another minor of similar personal background and an identical criminal offense." However, as I discussed, ante, in addressing the separation of powers argument, prosecutors are given such powers to treat similarly situated defendants differently any time they make charging decisions. The unfettered discretion to charge one defendant in adult court, and, even if only motivated by mercy, to charge a similarly situated defendant in juvenile court, does not offend the equal protection clause of the California Constitution. (Davis, supra, 46 Cal.3d at p. 87, 249 Cal.Rptr. 300, 757 P.2d 11 ["The equal protection clause ... has never been thought to abrogate a prosecutor's authority to exercise leniency in the charging process"].)
Indeed, the discretion given to prosecutors under section 707(d) is not as unfettered or arbitrary as petitioner imagines. Minors may only be subjected to the discretionary filing provisions of section 707(d) if they meet certain criteria, i.e., they are of a certain age, commit certain crimes, and have a certain prior history of criminal behavior. Prosecutorial discretion is also checked by constitutional limits that prevent it from being exercised in a discriminatory manner. (United States v. Batchelder, supra, 442 U.S. at p. 125, fn. 9.) Additionally, if a judge does not believe that a minor falls within the terms of section 707(d), he or she may dismiss the charge. Finally, if the minor is not convicted of a qualifying offense, he or she is subject to remand to the juvenile system. (See Pen.Code, §§ 1170.17,1170.19.)
Assessing section 707(d), therefore, under the rational relationship test, it passes constitutional muster. Under this standard, "`"It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it."'" (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 79, 177 Cal.Rptr. 566, 634 P.2d 917, fn. omitted.) In enacting section 707(d), the people of this state desired to take a measured approach to serious and violent crime and gang activity committed by juveniles. The people also recognized that certain of the most serious and violent crimes committed by juveniles of a certain age are not acts of delinquency, but the equivalent of adult crimes that may be processed in the criminal court *84 system. Section 707(d) furthers these goals by allowing prosecutors the discretionary power to charge those juveniles who have committed the most serious of crimes, and, based upon the crime and their background show the least chance of rehabilitation, in adult court. Others as to whom juvenile court treatment is more appropriate may, at the prosecutor's discretion, be charged under that system. Section 707(d) bears a rational relationship to a proper legislative goal and is therefore constitutional.
For all of the foregoing reasons, I would uphold the constitutionality of section 707(d), and affirm the court's order overruling petitioner's demurrer.
NOTES
[*] The Supreme Court ordered that the opinion be not officially published. (See California Rules of Court Rules 976 and 977.)
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] The issue in this case is now pending before the California Supreme Court in Manduley v. Superior Court (2001) 86 Cal.App.4th 1198, 104 Cal.Rptr.2d 140 (review granted April 25, 2001, S095992).
[3] For a specific group of 16- and 17-year-old juveniles, the prosecution was required to file directly in adult court. The mandatory direct file applied if the juvenile (1) had been declared a ward of the court for prior felonies committed after he was 14 and (2) the new charge alleged he committed one or more of a list of serious offenses. (§ 602, subd. (b).) Additionally, if a juvenile had previously been (1) convicted in adult court of an offense that resulted in a finding of unfitness, or (2) found unfit based on his prior delinquent history or lack of success in rehabilitation, under certain circumstances the prosecutor could directly file certain new charges against the juvenile in adult court. (§ 707.01.)
[4] For most offenses, first-time offenders were presumed fit for juvenile court treatment, and the prosecution had the burden of proof at the fitness hearing to show the juvenile was not amenable to the care, treatment and training in juvenile court based on an assessment of five statutory criteria. (Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 805, 210 Cal. Rptr. 204, 693 P.2d 789.) However, for some offenders and some serious offenses, it was presumed the juvenile was unfit for treatment in juvenile court; the burden was then on the juvenile to convince the juvenile court otherwise based on each of five statutory criteria. (Former § 707, subd. (c); Ramona R. v. Superior Court, supra.)
[5] The criteria to be considered by the court in making its fitness assessment are (1) criminal sophistication, (2) necessary period for rehabilitation, (3) previous delinquent history, (4) past rehabilitative efforts and (5) the seriousness of the offense. (§ 707, subd. (a); Cal. Rules of Court, rule 1482(a).)
[6] Section 18 of Proposition 21 also expanded the set of juveniles for whom a direct filing in the adult court is mandatory by amending the provisions of the mandatory direct filing statute, section 602, subdivision (b). First, it lowers from 16 to 14 the age a juvenile can qualify for mandatory direct filing of criminal charges. Second, it eliminates the requirement that the juvenile be previously declared a ward of the court for prior felonies committed after age 14. Finally, it adds one qualifying offense (i.e. violation of Penal Code section 288, subdivision (a) unless the defendant qualified for probation under Penal Code section 1203.066, subdivision (c)) while apparently deleting other crimes from the list of qualifying offenses. (Compare former § 602, subd. (b) [1999 Stats., ch. 996, § 12.2] with § 602, subd. (b), added by initiative, Primary Elec. (March 7, 2000) [Proposition 21].)
[7] In Sledge v. Superior Court (1974) 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412, a companion case to On Tai Ho, the court evaluated whether placing the preliminary determination of eligibility in the hands of the district attorney also violated the separation of powers. In Sledge, the court concluded the eligibility determination did not vest in the district attorney the power to make a final adjudicative determination. First, because the Legislature had prescribed the criteria for eligibility, the district attorney needed only to gather information, and did not need to decide materiality or relevance of the information, and was not called upon to assess the credibility or weigh the effect of the facts. (Id. at p. 74, 113 Cal.Rptr. 28, 520 P.2d 412.) Second, the court noted that there was a potential for judicial review of an erroneous eligibility decision, and required the district attorney to accompany any determination of ineligibility with a statement of the grounds of ineligibility and the evidence relied on for the determination. (Id. at pp. 75-76 and fn. 6, 113 Cal. Rptr. 28, 520 P.2d 412.)
[8] The statute declared the case could not be diverted "`unless the district attorney concurs'" with the court's decision to do so, and reiterated the criminal proceedings would be resumed if the district attorney did not consent to the order of referral. (On Tai Ho, supra, 11 Cal.3d at p. 63, 113 Cal.Rptr. 21, 520 P.2d 405.)
[9] We are cited only one case, State v. Mohi (Utah 1995) 901 P.2d 991, in which a discretionary direct filing statute analogous to section 707(d) was held unconstitutional. Although the Mohi defendants' challenges to the constitutionality of the statute included a separation of powers argument, the Utah Supreme Court expressly declined to reach that issue because it concluded the statute was invalid for the separate reason that it violated Utah's "uniform operation of laws" constitutional provision. (Id. at p. 1004, fn. 21.)
[10] State v. Grayer (1974) 191 Neb. 523, 215 N.W.2d 859, is silent on whether its discretionary direct filing statute provided for either a court-ordered retransfer or permitted the adult court to elect to impose a disposition under the juvenile laws. However, the silence is understandable because the defendant in Grayer did not raise, and the court did not discuss, the separation of powers issue.
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] Whether a statute is enacted through initiative process or through the Legislature, it is considered a power exercised by the legislative branch of government. (See Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, 26, 132 Cal.Rptr. 668, 553 P.2d 1140.) Accordingly, references in this dissent to the "legislative branch" apply equally to actions taken by the people through the initiative process and laws enacted by the Legislature.
[3] Several other states have also recently narrowed and limited access to the juvenile court system. (See Ariz.Rev.Stat. Ann. §§ 8-302, 13-501(B); Ark.Code Ann. § 9-27-318; Colo. Rev.Stat. Ann. § 19-2-517; D.C.Code Ann. § 16-2301(3); Fla. Stat. Ann. § 985-227; Ga. Code § 15-11-28; La. Children's Code Ann. art. 305; Mass. Gen. Laws Ann. ch. 119, § 54; Mich. Comp. Laws Ann. § 600.606; Mont. Code Ann. § 41-5-206; Neb.Rev.Stat. § 43-247; Okla. Stat. Ann. tit. 10, §§ 7306-2.12; Vt. Stat. Ann. tit. 33, § 5505; Va.Code Ann. § 16.1-269.1(C); Wyo. Stat. Ann. § 14-6-203.)
[4] Proposition 21 retained section 707, subdivision c, but amended it to reduce the age of juveniles coming under its provisions from 16 to 14 years of age.
[5] The majority did not address this issue as they have determined that section 707(d) violates separation of powers principles. Because I would uphold the court's decision to overrule petitioner's demurrer, I accordingly address both grounds put forward by petitioner for finding section 707(d) unconstitutional.
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259 Wis. 169 (1951)
ESTATE OF RADE:
STATE, Appellant,
vs.
ALIEN PROPERTY CUSTODIAN, Respondent.
Supreme Court of Wisconsin.
April 3, 1951.
May 8, 1951.
*172 For the appellant there were briefs by the Attorney General of Wisconsin, Stewart G. Honeck, deputy attorney general, and Beatrice Lampert, assistant attorney general, and oral argument by Mrs. Lampert.
For the respondent there was a brief by Harold I. Baynton, assistant attorney general of the United States, Timothy T. Cronin, United States district attorney for the Eastern district of Wisconsin, and Thomas H. Creighton, George B. Searls, and Irwin A. Seibel, Department of Justice, all of Washington, D. C., and oral argument by Mr. Seibel.
BROADFOOT, J.
Upon this appeal the state contends that the issues in each case must be resolved on the basis of the interpretation of the Wisconsin statutes by the state courts. There seems to be no issue in respect to that contention.
The state next argues that the Wisconsin statutes condition succession upon the distributive share being claimed by the heir, and provide for alternative succession to the school fund on failure of the condition. The state is asking for a strict construction of the provisions of sec. 318.03, Wis. Stats., which reads in part as follows:
"(1) Heirs unknown. In case there shall be no known heir of the decedent, the residue of the estate, not disposed of by will, shall escheat and shall be ordered paid into the state school fund. . . .
"(3) Unclaimed legacies and shares; escheat. Except as provided in section 331.42, if any share of intestate property including property distributable as intestate property under subsection (2) shall not be claimed by the heir within one hundred twenty days after the entry of final judgment by the county court, or within such time as shall be designated in said final judgment, the executor or administrator shall convert the same into money and pay it to *173 the state treasurer for the state school fund, and it shall be a part of said fund until and unless refunded as prescribed by subsection (4).
"(4) The moneys received by the state treasurer pursuant to subsections (1) and (3) shall be paid to the owner on proof of his right thereto. The claimant may, within seven years after the date of publication by the treasurer of notice of receipt thereof as provided by section 14.42 (15), file in the county court in which the estate was settled, a petition alleging the basis of his claim to the residue or to the legacy or share. . . ."
The state contends that, even though there are known heirs of a decedent and even though there has been a determination of heirship, the residue of the estate does not automatically become the property of such heirs and that it becomes the property of an heir only when it is claimed "by the heir" as provided by said statute. We cannot agree with this strict construction. When it is established that a decedent leaves known heirs the state has no interest in the residue of said estate except in remote instances where no claim is made for the share of a known heir. However, the heir has an interest in the estate that can be reached by garnishment or other action. In the cases before us the vesting orders have the effect of assignments by operation of law and vest the interest of the named heirs in the Alien Property Custodian.
The state next contends that the interests vested by the Alien Property Custodian were conditional and defeasible, and that he did not obtain a greater interest than the enemy alien had under our laws of succession, and that under its prior argument the interest of the alien heir would be defeated if he did not claim the property. This contention is answered by our determination of the state's prior argument.
In the matter of the estate of John Rade, deceased, the state further claims that when peace is concluded with an enemy country prior to judgment of distribution the distributive *174 shares payable to nationals of such country are not subject to vesting by the Alien Property Custodian. That may or may not be true. Even if true, it would avail the state nothing. The distributive shares of the Bulgarian heirs would then go to the Bulgarian minister to the United States by virtue of the power of attorney he holds. In neither case would the residue of the estate, nor any portion thereof, escheat to the state. Possible conflicting claims between the heirs, through their attorney in fact, and the attorney general of the United States are not before us. It is sufficient to note that the state of Wisconsin as appellant has no further interest in this particular estate.
The orders in the other three matters provided that the public administrator, upon entry of the decree of distribution, make immediate payment of the shares of the persons named in the respective vesting orders to the attorney general of the United States. This can be done only after there has been a determination of heirship. The court retained jurisdiction of said proceedings to make such further order or judgment with respect to distribution as may be necessary. This might be a sufficient safeguard. The orders, however, seem to be premature and the petitions of the state should not be denied until heirship has been determined. Although its chance of sharing in these estates seems to be remote, it can do no harm to permit the state to remain a party in interest in the proceedings and all questions can be determined at the time of the hearing on the final account and the determination of heirship. The funds can safely be held by the public administrator and a reasonable time can be given to the attorney general of the United States to present his proofs that each of said decedents has known heirs and that they are nationals of an enemy country.
By the Court.The order entered August 1, 1950, in the estate of John Rade, deceased, is affirmed. The orders entered October 2, 1950, in the estates of Stephen Kern, Martin *175 Mack, and Johanna Reis, deceased, are reversed and causes remanded with directions to enter orders consistent with this opinion.
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382 F.2d 567
CARTER ELECTRIC COMPANY and General Insurance Company ofAmerica, Appellants,v.The TRAVELERS INDEMNITY COMPANY and Beacon ConstructionCompany of Massachusetts, Inc., Appellees.
No. 9078.
United States Court of Appeals Tenth Circuit.
Aug. 9, 1967.
William J. Becker, Clayton, Mo. (James Yates, Kansas City, Kan., and Joseph J. Becker, Clayton, Mo., were with him on the brief), for appellants.
Robert J. Sherer, Boston, Mass. (Leonard O. Thomas, Kansas City, Kan., was with him on the brief), for appellees.
Before PHILLIPS, LEWIS and HILL, Circuit Judges.
LEWIS, Circuit Judge.
1
Appellant Carter Electrical Company was the electrical subcontractor and appellee Beacon Construction Company the prime contractor on the construction of a Capehart housing project for the United States Army at the Fort Leavenworth Military Reservation in Kansas. This diversity action was brought by Carter against the surety on Beacon's payment bond, The Travelers Indemnity Company, for an alleged unpaid balance due, plus interest, under the specific terms of the Beacon-Carter subcontract. Beacon intervened as a voluntary defendant, joined Carter's Surety, General Insurance Company of America, as third-party defendant and filed a counterclaim for damages caused by Carter's alleged performance delays and failure to correct or complete certain work as contemplated by the subcontract. Carter then attempted to amend its petition with a claim against Beacon for punitive damages for 'tortious' breach of contract, but upon timely motion of defendants the claim was ordered stricken from the pleadings. The case was tried to the court without a jury. The parties stipulated that the payments due Carter under the subcontract amounted to $47,763.00 and to this the trial court added $1,035.00 for the reasonable value of additional labor and materials furnished by Carter in the performance of certain repair work outside the subcontract. On the counterclaim, the trial court found damages suffered by Beacon of $16,867.27 for Carter's delay of the construction project and $1,435.22 for costs of correcting and completing some of Carter's contract work. A net judgment was accordingly entered in favor of Carter and against Beacon and Travelers in the amount of $30,495.51 plus costs. Carter's claim for pre-judgment interest was denied.
2
In this appeal, Carter strenuously urges that the finding of the trial court with respect to the set-off of $16,867.27 for alleged delays was clearly erroneous. Carter also complains of the trial court's order striking the claim for punitive damages and its denial of pre-judgment interest on the net recovery. Neither of the appellees has cross-appealed. Carter's surety, General Insurance Company of America, was discharged as thirdparty defendant by the judgment of the trial court and for all practical purposes is no longer a party to this litigation.
3
Appellee Beacon Construction Company entered into a contract with Fort Leavenworth C-3 Housing, Inc., and the Department of the Army on August 13, 1959 for the construction of a 100-building, 200-unit armed services housing project at Fort Leavenworth, Kansas. On August 14, 1959, Beacon entered into a subcontract with appellant Carter Electric Company whereby, in consideration for a total price of $182,000.00, Carter was to furnish all labor and materials required for the complete electrical wiring of the project, including all equipment and fixtures to be used for electrical-distribution systems, street lighting, interior lighting, and electric-utilities connections. The subcontract incorporated by reference the prime contract which required that all work be completed 365 calendar days after the date of closing. Payments to Carter were to be made monthly on the basis of Carter's work progress, less the usual ten percent retention until final payment to Beacon by the government.
4
Work on the project commenced immediately after execution of the contracts and proceeded in a routine manner until May 19, 1960 when a portion of the project was struck by a tornado. As a result of the tornado, all work was suspended until the amount of damage could be determined and work-progress schedules could be revised.1 On June 25, 1960, at a meeting between representatives of Beacon and its various subcontractors, a revised completion date of November 1, 1960 was agreed upon with no indication from Carter's representative that there would be any difficulty in completing the electrical phase of the project by that date. Subsequently, the government granted Beacon an extension of 111 days to December 1, 1960 for completion of its performance on the prime contract, but the trial court found that this in no way operated to further extend the time for completion of Carter's subcontract.
5
The first serious problem relating to the progress of Carter's work arose in early September 1960. At that time some sixty percent of the buildings were ready to receive connecting lines or 'service drops' from the distribution poles, but such work had not even been started. On September 12, 1960, Carter's president promised Beacon representatives that installation of service drops would commence on September 19 and would be completed by September 30. Work on the service drops actually commenced on October 3 and was completed on October 31. On September 30, the date promised for completion of the service drops, ninety to ninety-five percent of the buildings had been made ready for service-drop connections. Without electricity in the buildings during the month of October, furnaces could not be operated, and the resulting lack of heat caused a series of delays in the work of other subcontractors whose operations required minimum building temperatures.2 There were also problems with Carter's progress beginning in mid-November 1960. By November 11, kitchen cabinets had been installed in twenty-five percent of the buildings and were thus ready to receive fluorescent strip light fixtures. On November 16, Carter's president advised Beacon's job superintendent and general superintendent that all of the electrical work would be complete on December 7. On November 18, with forty-eight percent of the kitchen cabinets ready for light fixtures, Beacon officials learned that no such fixtures had even as yet been acquired by Carter. Carter in fact did not begin to install the fixtures until the first week of December and apparently did not complete these installations until the first week of January 1961. Most of the work performed during the final month of construction consisted of corrective or 'punch list' work on deficiencies called to Beacon's attention by government inspectors. Many of the 'punch list' items represented work which was or should have been performed by Carter.3
6
The project was turned over to and approved by the government on January 13, 1961 and Beacon closed its on-site facilities on January 20, some eighty days after the revised completion date of November 1, 1960. No payments had been made by Beacon to Carter for any work performed from October 1, 1960 to January 12, 1961. On January 13, representatives of Beacon and the government met in Albany, New York and, among other things, agreed to place in escrow in a Boston, Massachusetts bank for a period of one year without interest approximately $400,000 to guarantee payment of all monies owing to Beacon's various subcontractors, including $47,757 to Carter. On March 17, 1961, Beacon tendered to Carter a final settlement of its account which included the following notation:
7
'You consistently failed to perform in accordance with the requirements of the subcontract. This has been the subject of considerable correspondence which you have in your files. Because of the delays, we have incurred additional costs amounting to approximately Eighty Five Thousand Dollars ($85,000.00). In an effort to make an amicable settlement, we have indicated settlement damages of only Thirty Thousand Dollars ($30,000.00).'
8
Carter refused to accept the settlement and in August 1961 initiated the present action to recover the full amount of monies due under its subcontract plus interest. Upon all of the evidence, the trial court found that Beacon had shown damages caused by the eighty-day delay of $67,469.10, that twenty days of the eighty-day delay were attributable to the derelictions of Carter, and that therefore one-fourth or $16,867.27 of Beacon's damages should be set off against the amount owing to Carter on the subcontract.
9
Appellant's initial contention is that the trial court erred in striking its claim for punitive damages. The claim was premised on the allegation that Beacon, with the knowledge and consent of its surety Travelers, had wrongfully, willfully and maliciously breached its contractual obligation to make final payment to Carter and other subcontractors by entering into the escrow arrangement with the government in order to receive final payments on the prime contract while preventing subcontractors from collecting monies contractually owing to them and thereby oppressing them into acceptance of unfavorable settlements or protracted litigation. We agree with the trial court that such an allegation, even when taken as true in its entirety, does not make out a case of tortious conduct on the part of Beacon. The rule in Kansas, as elsewhere, is that the motive of a defendant in breaching a contract is immaterial to the issue of damages. Mabery v. Western Casualty & Surety Co., 173 Kan. 586, 250 P.2d 824; 25 C.J.S. Damages 120. Unless Beacon can be charged with having incidentally committed an independent tort such as a wrongful conversion, Watkins v. Layton, 182 Kan. 702, 324 P.2d 130, or fraud, Roseberry v. Scott, 120 Kan. 576, 244 P. 1063, mere allegations that the breach was willful or malicious cannot premise a claim for punitive damages. Nor may such a claim be premised upon allegations that the defendant forced the plaintiff into the expenses of litigation. Such expenses, with the exception of ordinary court costs, are recoverable only if a statute or the contract itself so provides. E.g., Ablah v. Eyman, 188 Kan. 655, 365 P.2d 181, 90 A.L.R.2d 766.
10
Appellant also complains of the trial court's denial of a motion to compel Beacon to give further answers to certain interrogatories concerning back charges and offsets made or asserted by Beacon against other subcontractors on the project. The purpose of these interrogatories, according to appellant, was to show that Beacon had charged other subcontractors with the same damages for the same delay that it was attempting to charge against Carter in the counterclaim. In its answers, Beacon listed three subcontractors with whom litigation or settlements were still pending, but failed to list three additional subcontractors with whom settlements had already been made. Carter moved to compel further answers on grounds that Beacon's replies were evasive, unresponsive and had failed to disclose that Beacon's alleged damages for alleged delays had been substantially reduced by these three prior settlements. Attached to the motion were several pages of affidavits, correspondence and other documents showing both the names of the subcontractors and the amounts of back charges or offsets involved. Although the record does not indicate that any annoyance, expense, embarrassment, or oppression might have resulted to Beacon by compelling further answers, see Fed.R.Civ.P. 33, we think it is clear that denial of the motion in no way prejudiced Carter's position at the trial. Carter, as evidenced by the documents attached to the motion, already had in its possession all of the information which it sought to elicit by compelling further answers. There is no suggestion that the documents were any less probative of the damages issue than Beacon's answers to interrogatories. Thus, while we deem the trial court's ruling to have been improper, we perceive no prejudice warranting reversal to be inherent in the error.
11
We turn then to the principal issue in this appeal which is whether there is clear error, either in fact or in law, to be found in the trial court's award of $16,867 as a set-off in favor of Beacon on account of Carter's alleged performance delays. Essentially, appellant urges that the evidence supports an overall project delay of only about half of what the court found and that there was no competent evidence to support a finding that any of the delay was caused by Carter. We conclude that both of appellant's contentions in this regard must be rejected.4
12
Appellant places great emphasis on the fact that subsequent to the meeting between Beacon and its subcontractors wherein the parties agreed upon a completion date of November 1, 1960, the government extended to December 1, 1960 the date for completion of the prime contract by Beacon. It is urged that since Carter's subcontract incorporated Beacon's prime contract by reference, extension of the prime contract operated to extend the performance deadline on the subcontract. We disagree. Both Beacon's extension to its subcontractors and the government's extension to Beacon were due to the change in conditions resulting from the tornado of May 19, 1960. Nothing in Carter's subcontract need be construed as having prevented the parties from setting two different revised completion dates, both of which were adjustments for the same past unforeseen event. Appellant also insists that since the government accepted the project on January 13, 1961, the trial court erred in including as part of the total period of delay the last week, or until January 21, that Beacon was required to maintain operations and facilities on the job site. Suffice it to say that Beacon incurred substantial expenses during that week, as it had in the ten previous weeks, and that such expenses would not have been incurred had beacon been able to close the project on or before the revised completion date of November 1, 1960.
13
Appellant makes extensive references to the testimony of witnesses for both sides which, it urges, conclusively shows that none of the delay in completing the project was attributable to Carter. Counsel's advocacy, however, tends to gloss over much of the testimony and other evidence that was favorable to its adversary and that apparently was relied upon by the trial court in formulating its findings of fact, findings which we are now urged to conclude are clearly erroneous. Upon examination of the whole record, we think the evidence may be fairly characterized and summarized as follows: Witnesses for Carter, which included another subcontractor, a government inspector and the government's project supervisor, stated in substance that Carter had not been the cause of any delays, that some delays were caused by other subcontractors, and that much of the overall delay in completion of the project was in fact caused by the organizational incompetency of Beacon. Carter's president admitted to some delays in the electrical phase of the work but insisted that these were caused by Beacon's failure to make payments in accordance with the terms of the subcontract. The only witnesses for Beacon were its general superintendent and job superintendent. They testified in substance that the project was delayed by Carter's delays in (1) installation of 'service drops,' (2) wiring of basements, (3) installation of kitchen cabinet fluorescent strip fixtures, and (4) performance of other minor work such as installation of a telephone system and television receptacles and correction of 'punch list' items. Their testimony in this regard was in part corroborated by the daily logs of construction progress. It is manifest, therefore, that many of the trial court's most important findings represented resolutions of the credibility of witnesses and other similar choices between conflicting evidence of equal weight. Giving the deference that is due the finder of fact in such circumstances, Fed.R.Civ.P. 52(a); United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150; McSorley's, Inc. v. United States, 10 Cir., 323 F.2d 900, 902-03; St. Paul-Mercury Indemnity Corp. v. United States for the Use of Jones, 10 Cir., 238 F.2d 917, 922, we cannot say, in view of the entire record, that any critical aspect of the trial court's portrayal of the facts was clearly erroneous. See United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Mid-Continent Casualty Co. v. Everett, 10 Cir., 340 F.2d 65, 70. Nor can we accept appellant's argument that the evidence fails to 'connect up' the separate delays of Carter with the overall delay of the project and that without such a connection the finding that Carter caused damage to Beacon is nothing more than mere speculation and therefore clearly erroneous as a matter of law. We think the requisite connection is inherent in the findings which showed that after November 1, 1960 much of the work performed was either performed by Carter for the first time or by other subcontractors whose work was dependent, both directly and indirectly, upon electricity and/or heat.
14
Considerable and, we believe, unwarranted emphasis is also placed by appellant upon the uncontroverted evidence that there were other delays occurring concurrently with Carter's. For example, the major source of damages claimed by Beacon was the delay in installation of the service drops so that the buildings did not have electricity and heat. The evidence shows that there was in addition a similar delay in installation of furnaces. Thus, reasons appellant, even with electricity in the buildings thirty-one days earlier, there still would have been no heat and the vinyl flooring, painting and floor finishing would still have been subjected to the same consequent delays. But since there is no indication that installation of service drops was in any way dependent upon prior installation of furnaces, all appellant can possibly show by its argument is that one or more other people or companies in addition to Carter were jointly responsible for the overall delay in the project work. This fact was clearly and reasonably reflected in the allocation to Carter of only one-fourth of the relevant damages.5
15
Appellant next complains of being denied pre-judgment interest on the net recovery on the ground that it was unreasonable and vexatious for Beacon to withhold payment of a liquidated sum that was admitted to be owing. To the contrary, we think it clear both from the final judgment itself and from a composite view of the record that Beacon's refusal to pay the monies contractually owing pending resolution of the substantial disputed claims over performance delays was in complete good faith. The net recovery was not a liquidated amount but an amount arrived at after adding and subtracting the several claims, both liquidated and unliquidated, with the result that appellant recovered only about two-thirds of what was originally prayed for. Under such circumstances, the Kansas authorities hold that interest may be assessed only from the date of judgment. E.g., Southern Painting Co. of Tenn. v. United States for the Use of Silver, 10 Cir., 222 F.2d 431, 434-36 (citing and applying Kansas law); Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P.2d 731, 740.
16
It is finally contended by appellant that the trial court abused its discretion in denying appellant's motion for leave to file a supplemental complaint to show that Beacon had already recovered in settlements with other subcontractors and adjustments with the government much of the damages it had claimed were caused by Carter. The motion was not made until after the trial court had filed amended findings of fact and conclusions of law which was some five months after the pertinent information was allegedly first brought to appellant's attention. Under the circumstances, the motion was properly treated as based upon newly discovered evidence. Horn v. Allied Mutual Casualty Co., 10 Cir., 272 F.2d 76, 80. Since it appears that the evidence of and surrounding the settlements could have been discovered by appellant during or prior to trial with the exercise of reasonable diligence,6 we are not able to say that denial of the motion constituted an abuse of discretion.
17
Affirmed.
1
Apparently, the only effect the tornado had on the electrical work was the dislocation of nine distribution poles. Carter reinstalled the poles with Beacon's tacit approval. This was the subject of the trial court's award of $1,035.00 to Carter for labor and materials furnished outside the subcontract
2
In addition to the delays in completing service drops, the trial court found from evidence submitted at the trial by Carter that in many instances intervals of between three and four weeks elapsed from the time the furnace contractor completed his work to the time Carter wired the basements where the furnaces were located. Operations dependent upon minimum temperatures were installation of vinyl asbestos tile flooring, painting, and, to a limited extent, floor finishing. Delays in installation of tile flooring created consequent delays in installation of plumbing fixtures. Delays in painting created consequent delays in installation of door hardware
3
Costs to Beacon of correcting Carter's 'punch list' items were among the subjects of the trial court's second set-off of $1,435.22 in Beacon's favor
4
Our examination of the record, however, lends understanding to the dissatisfaction of appellants with the result of the case and also to the difficulties presented to the trial judge in rendering judgment based essentially upon a determination of credibility. In our opinion, portions of the testimony of every principal witness were refuted in one aspect or another by documentary evidence or by self-contradiction
5
The designation to Carter of one-fourth of the damage to Beacon is arbitrary only in the sense that it represents the considered judgment of the trial court under the complex totality of the circumstances interwoven by the acts of the contractor and the several subcontractors and was not proven as a specific. The trial court actually found that Carter was responsible for thirty days of delay. If the finding is inconsistent with the judgment it favors Carter in result
6
In a pre-trial conference, Beacon's counsel reported to the trial court in the presence of Carter's counsel that a settlement had been reached in a case involving claims by Beacon against B & B Dry Wall Company, one of the subcontractors listed by Beacon in its answers to Carter's interrogatories. Other settlements could be assumed to have been known to Carter from the documents attached to its motion to compel further answers. In addition, from documents supplied to the court by Beacon it was shown that the adjustments by the government had nothing in common with the controversy between Beacon and Carter
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531 F.Supp. 1094 (1982)
Jorge SURO, Plaintiff,
v.
Orlando LLENZA, et al., Defendants.
Civ. No. 80-2088.
United States District Court, D. Puerto Rico.
February 10, 1982.
*1095 Jorge M. Suro, Santurce, P. R., pro se.
Raymond L. Acosta, U. S. Atty., Hato Rey, P. R., for defendants.
OPINION AND ORDER
PÉREZ-GIMÉNEZ, District Judge.
The present action was brought by plaintiff seeking to enjoin defendants from reassigning him from his present position as Section Chief in the Selective Service Section of the Puerto Rico National Guard *1096 (hereinafter PRNG) to the position of G.2 Intelligence Office. Such reshuffling of duties would bring about the concomitant loss of plaintiff's federal recognition as a member of the PRNG and the subsequent loss of a total of[1] Fifteen Thousand Dollars ($15,000.00) of income and the retirement benefits resulting therefrom. Named as defendants were Orlando Llenza, personally, as the Adjutant General of the PRNG and as representative of the National Guard Bureau; and the Chief, National Guard Bureau.
On September 25, 1980, the Court entered a temporary restraining order prohibiting the defendants from relieving plaintiff from his present position and from withdrawing his federal recognition. After various extensions to the TRO were stipulated by the parties and granted by the Court, the hearing on the preliminary injunction was called on November 21, 1980, at which time statements of counsel were heard. Instead of receiving evidence, and at the request of the parties, they were granted time to file motions to dismiss and replies thereto. Motions were filed on November 24 and December 15, 1980.[2] The TRO was extended until the motions were ruled upon.
Plaintiff's opposition to both motions to dismiss was filed on December 29, 1980, and additionally, plaintiff requested that summary judgment be entered in his favor. Federal defendants filed a subsequent motion to dismiss on February 17, 1981, adducing four reasons in support thereof, to wit; (1) the Court lacks subject matter jurisdiction over them; (2) plaintiff fails to state a claim upon which relief can be granted; (3) plaintiff's claim is neither justiciable nor reviewable; and finally, (4) plaintiff has failed to exhaust an available administrative remedy. Likewise, Commonwealth defendants filed on February 20, 1981, their opposition to summary judgement and their reply to the opposition to the motion to dismiss. The matter is now ripe for adjudication.
Plaintiff was commissioned as Second Lieutenant in the Armed Forces of the United States on May 27, 1942. After serving during the Second World War, plaintiff was appointed as Captain in the PRNG on November 10, 1946. Plaintiff then was assigned to the Selective Service Section of the PRNG on November, 1959, and on November 24, 1969, he was promoted to the position of Chief of the Selective Service Section of the PRNG. On March 12, 1970, plaintiff was granted by the National Guard Bureau a retention in his position as Chief of the Selective Service Section of the PRNG to age sixty (60), that is, until March 1983. On August 10, 1971, he was again promoted to the rank of Colonel in the PRNG. On June 23, 1980, plaintiff was reassigned by defendant Llenza from his position as Chief of the Selective Service Section of the PRNG to the position of G.2 Intelligence Office.
Previous to plaintiff's reassignation, on June 19, 1980, Colonel Wilfredo Meléndez, Personnel Officer of the PRNG, sent a memorandum to defendant Llenza informing him that due to the terms of plaintiff's retention, he was not eligible for change in military status according to provisions of National Guard Regulation 635-100.
Defendant Llenza notified Suro on September 4, 1980, that he had been notified by the National Guard Bureau that plaintiff's federal recognition would be withdrawn effective September 27, 1980. In view of these circumstances, on September 16, 1980, plaintiff sent a letter to defendant Llenza requesting him to reconsider his decision of June 23, 1980. Since said letter was never *1097 answered by defendant, plaintiff sent another letter to the Governor of Puerto Rico requesting reconsideration of Llenza's decision.
On June 18, 1980, Dr. Bernard Rostker, Director of the Selective Service System, wrote to plaintiff to find out if he would be available to continue serving in the Selective Service System. And, finally, on March 10, 1981, plaintiff was informed by defendant Llenza that the Selective Retention Board which considered him had recommended his retention in his position in the Selective Service System.
I. Subject Matter Jurisdiction
It has been held and reiterated that military officers serve at the pleasure of the President and have no constitutional rights to be promoted or retained in service and that the services of an officer may be terminated with or without cause. Diliberti v. Brown, 583 F.2d 950 (7 Cir., 1978); Pauls v. Secretary of the Air Force, 457 F.2d 294 (1 Cir., 1972). In spite of the above stated doctrine of service at the pleasure of the President, this Court is not precluded from entertaining an action in which failure to comply with administrative regulations is alleged. United States v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Suro v. Padilla, 441 F.Supp. 14 (D.C.P.R., 1976).
Plaintiff alleges that on March 12, 1970, he was granted by the National Guard Bureau a retention in his position in the Selective Service Section of the PRNG to age sixty, that is, until March of 1983. According to plaintiff, the statutory authority for his retention is derived from 10 U.S.C. § 3848(c)[3] and paragraph 6(d) of the National Guard Regulation 20-4, also known as 635-100, of November 30, 1969.[4] Thus, by reassigning him to G.2 Intelligence Office, the defendants violated the abovementioned administrative provisions, exposing him to loss of federal recognition for continued active service in the National Guard, and opening the door for this Court to entertain the present action.
Defendants, on the other hand, allege that the said National Guard Regulation 20-4 (635-100) does not provide nor has it ever provided that service members assigned to the Selective Service Section beyond their mandatory separation date and until age 60 are not eligible for a change in their military status. Therefore, in order to determine which of the contentions presented to this Court is legally sound, this Court will have to interpret the meaning and *1098 scope of 10 U.S.C. § 3848 and paragraph 6(d) of National Guard Regulation 20-4 (635-100), of November 30, 1969. Thus, there is subject matter jurisdiction over this action under 28 U.S.C. § 1331(a).
II. Failure to State a Claim
A
Plaintiff contends in this case that defendant Llenza's action of reassigning him from his position as Chief of the Selective Service Section of the PRNG to the position of G.2 Intelligence Office, is illegal and has the effect of depriving him of his acquired rights and property interest without due process of law. The grounds for plaintiff's allegation is that on March 12, 1970, he was granted, at the instance of the then Adjutant General of the PRNG, Alberto Picó, by the National Guard Bureau, a retention in his position in the Selective Service Section of the PRNG until age sixty, that is, until March 1983. According to plaintiff, defendant Llenza is duty bound, pursuant to regulations of the National Guard Bureau and by the actions of his predecessor from transferring him from his position.
Defendants allege that National Guard Regulation 20-4 (635-100) does not prohibit the separation from an active status, prior to age sixty, of a National Guard officer who has been assigned to the Selective Service Section of the State National Guard and who has been retained, beyond his mandatory removal date, in such position. Referring to the letter of March 20, 1970, from the National Guard Bureau to the Adjutant General of Puerto Rico, defendants allege that although Colonel Jorge Suro was permitted to remain in an active status until age sixty, this by no means vested any right upon Colonel Suro to any position in the Selective Service Section of the PRNG. On the contrary, the letter merely authorized the Adjutant General, in his sole discretion, to retain Colonel Suro in an active status until age sixty, provided he remains otherwise qualified. To defendants the proviso contained in the letter that plaintiff remain "otherwise qualified" included the requirement that Colonel Suro maintain an assignment in the Selective Service Section of the PRNG.
It appears that National Guard Regulation 20-4 (635-100) has not been previously interpreted in relation to facts as set forth herein. The wording of said regulation may seem to provide for different and conflicting interpretations, but in this instance it is plaintiff's interpretation of the regulation in question which convinces us to be the correct one.
Pursuant to 10 U.S.C. § 3848 (fn. 1, ante) on May 26, 1970, plaintiff would have been removed from active status, thus, losing his federal recognition from the Army National Guard of the United States and the PRNG since as of that date he would have completed the maximum years of service allowed by law. Desiring to keep plaintiff past his mandatory retirement date, Alberto Picó, then Adjutant General of the PRNG, on November 23, 1969, requested that the National Guard Bureau continue the retention of plaintiff until age sixty, that is, March 1983. The request to the National Guard Bureau was made in accordance with Section 6(d) NGR 20-4 (635-100) and 10 U.S.C. § 3848. On March 12, 1970, the National Guard Bureau granted General Picó's petition with the proviso that plaintiff "remain otherwise qualified".[5] This means, in the case of plaintiff, that he can continue in an active status as long as he remains otherwise qualified. There is no magic or hidden meaning that eludes us in analyzing the phrase "remains otherwise qualified". The simple, straight-forward *1099 definition is found in Colonel Suro's own personnel record kept by defendants.
According to said record, since 1969 plaintiff has been Chief of the Selective Service Section of the PRNG; he has been promoted to the rank of Colonel in the PRNG and has been federally recognized as such; he has received repeated commendations from his superiors.[6] Furthermore, on March 10, 1981,[7] the Selective Retention Board of the PRNG recommended, and defendant Orlando Llenza, Adjutant General, PRNG, approved plaintiff's retention in the PRNG. Therefore, it is plaintiff's contention that his retention until March 1983 conferred to him tenure in his position as Chief of the Selective Service Section of the PRNG since plaintiff's only originally imposed requirement was to remain qualified.
Going one step further in ascertaining the import of the phrase "remain otherwise qualified" leads in the direction of which areas are the ones encompassed within the word "qualified". Once again, we must necessarily turn to plaintiff's Exhibits to search for our answer. Exhibit 16[8] reveals that once the Selective Service State Headquarters were eliminated, their duties and the implementation of the State Reconstruction Plan to activate the Selective Service System for Puerto Rico would now fall within the jurisdiction of the Chief of Section of the Selective Service Section, PRNG, and "these added responsibilities require the expertise of the officers who have been involved in the drafting and preparation of said plan. Under these circumstances it is considered that ... your valuable experience and technical knowledge in these matters, now warrant your retention in the active service of the PRNG.". Again, plaintiff's proficiency in the field of Selective Service System procedures appears in Exhibit 17.[9] Specific reference is made therein to plaintiff's "... outstanding service..." as "... a key factor in the progress we have made toward improving the mobilization readiness capability of the Selective Service System...". Replying to plaintiff's inquiry as to the reaction of the then Acting State Director of the State Headquarters For Selective Service to the proposed release of plaintiff from the PRNG Selective Service Section, Lt. Col. José A. Canals wrote to plaintiff on February 27, 1976 (Exhibit 15):
"... The additional responsibilities to be assumed by the National Guard Selective Service Section of organizing the State Headquarters, if Selective Service System is reactivated, makes it advisable to have available experienced and trained officers with as much knowledge and background on the operations and future plans of the organization as is possible...."
It is undisputable that plaintiff has fully complied with his obligation to "remain otherwise qualified" in the field of Selective Service System activities and procedures.
Additionally, we must give due consideration to General Picó's request of November 23, 1969, to retain plaintiff past his retirement age. It would certainly lack logic to have such a request made and have plaintiff serve at the Selective Service Section if at a later date plaintiff would be subject to a transfer to an Intelligence Office or any other office where his skills and technical knowledge would not be put to the best use. This reasoning is strengthened by defendants' own argument in their motion to dismiss.
*1100 In explaining the purpose of NGR 20-4 (635-100) defendants note:[10]
"The purpose for extending officers assigned to the Selective Service Section to age 60, instead of completion of their maximum length of service, is to obtain greater use of their services in what is a highly specialized position. As most officers are not assigned to the Selective Service Section until later in their career, and because it can take several years to train officers for these positions, it is more cost-effective to retain individuals assigned to such jobs beyond their normal separation date." (citations omitted)
Defendants, by assigning plaintiff to serve in another position within the PRNG contravene and defeat the very purpose of NGR 20-4 (635-100).
B
Plaintiff also argues that defendants' decision to reassign him to the position of G.2 intelligence Office deprived him of his "acquired rights and property interest without due process of law afforded him by the Fifth Amendment". It is plaintiff's position that 10 U.S.C. 3848 and paragraph 6(d) of NGR 20-4 (635-100) together with the interpretation given by the National Guard Bureau to them in the retention letter of March 12, 1970, conferred to him a protected property interest in his position as Chief of the Selective Service Section of the PRNG, which could not be in any way taken away from him without due process of law. Defendants argue as to this issue that plaintiff, as member of the Armed Forces, has no property interest in any particular duty assignment; and, therefore, plaintiff has no property interest in his retention that could be protected under the Due Process Clause of the Constitution, thus, failing to raise a cause of action under the federal question jurisdiction.
A person has a property interest when he has more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1971). Furthermore, "(t)hese interests, property interests, may take many forms." Ibid, at 576.
The property interest of military officers was recognized by this Court in Suro v. Padilla, 441 F.Supp. 14 (D.C.P.R., 1976). It defined the nature of this property interest as follows:
"It is true that the nature of property interest is not identical for military officers as for civil service employees. Nevertheless, to hold that officers have no property interest at all would be inconsistent with the spirit of the Constitution. It would certainly undermine the reasonable expectations of able members of the Armed Forces, with the inevitable concomitant results."
It is true that military officers serve at the pleasure of the President. They do not have a constitutional or inherent right to be promoted or retained in service, but once the Federal Government and/or state authorities confer to a military officer an expectancy (directly or implied) in his position, it may not constitutionally authorize the deprivation of such an interest without appropriate procedural safeguards. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); Suro v. Padilla, supra. Plaintiff's transfer from his position in the Selective Service Section will result in depriving him of his acquired rights and property interest, conferred on him by virtue of a federal statute and a federal regulation. We, thus, believe that plaintiff's present status[11] and expectations *1101 therein constitute protected rights, and as such, cannot be subject of deprivation without due process of law.[12]
III. Claim not Justiciable nor Reviewable
Plaintiff contends that this Court has the power to review defendants' administrative decision due to the fact that he was transferred from his position, thereby depriving him of his property interest without due process of law. Defendants violated their own valid disposition of 10 U.S.C. 3848, paragraph 6(d), NGR 20-4 (635-100), dated November 30, 1960, the argument goes on. On the other hand, defendants allege that plaintiff's claim is non-justiciable because it involves a substantive intrusion into National Guard duty assignments and non-reviewable since plaintiff's transfer is a discretionary determination of the National Guard.[13]
This Court is aware that judicial review precludes us from entertaining actions which challenge discretionary decisions made within a valid jurisdictional range. Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). Nevertheless, it is this Court's duty to review cases in which a violation of the Constitution, statutes or regulations is alleged. Mindes v. Seaman, 453 F.2d 197 (5 Cir., 1977); Dilley v. Alexander, 603 F.2d 914 (D.C.Cir., 1979). The military department enjoys no immunity to ignore its own laws and regulations since it is fundamental to our legal system that the government follow and abide by its own regulations. Actions by an agency of the Executive Branch in violation of its own regulations are illegal and void. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). This principle is fully applicable to the PRNG. Suro v. Padilla, supra. It has also been held that the federal courts may review matters which are purely internal military affairs to determine if an official has acted outside the scope of his powers. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958).
In this case petitioner has not asked this Court to engage in a task for which he has no competence. Suro is seeking, once again, constitutional review of a regulation, a task which traditionally and constitutionally has been committed to such forum. Dillard v. Brown, 652 F.2d 316, 321 (3 Cir., 1981). What Suro has done in this case is present a claim and request a relief "of the type which admit(s) of judicial resolution". Powell v. McCormack, 395 U.S. 486, at 516-517, 89 S.Ct. 1944, at 1961-1962, 23 L.Ed.2d 491 (1969).
As seen from our discussion above (See II, A, pp. 5-10), PRNG's actions in reassigning Suro is in contravention of its own regulations and recommendations (See note 11). The military justification for such action in this case is nil. The other pan of the scale tips heavily on plaintiff's favor as a result of the infringement of plaintiff's acquired rights and property interest (See II, B, pp. 10-11). Under these circumstances we cannot find Suro's claim to be non-justiciable.[14]
*1102 IV. Failure to Exhaust Administrative Remedies
It is finally asserted by defendants that plaintiff has failed to exhaust his administrative remedies prescribed by 25 L.P. R.A. 2802, which provides that:
"Any member of the Military Forces of Puerto Rico who believes himself aggrieved by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commanding officer, who shall forward the complaint to the Governor or Adjutant General."
Plaintiff, on September 16, 1980, sent a letter to defendant Llenza asking him to reconsider his decision of June 23, 1980. On September 19, 1980, he sent another letter to the Governor of Puerto Rico asking him to revoke defendant Llenza's decision since plaintiff's letter to defendant was not answered. Thus, plaintiff has exhausted the administrative remedy available to him within the military sphere under circumstances of his case.
Summary judgment lies when there is no genuine issue as to any material fact. Defendants have failed to controvert the facts established in plaintiff's motion for summary judgment by not filing a proper counter affidavit. Thus, when a motion for summary judgment is made and supported as provided in Rule 56 of the Federal Rules of Civil Procedure, and said motion was not properly opposed by the other party, plaintiff has met the burden to show that he is entitled to a judgment as a matter of law. Hahn v. Sargent, 523 F.2d 461 (1 Cir., 1975); Maiorana v. McDonald, 596 F.2d 1072 (1 Cir., 1979).
The availability of summary judgment in injunction actions is permitted by Rules 1 and 2 of the F.R.Civ.P. Accordingly, these rules, govern and promote the speedy and just completion of litigation in all civil actions whether in cases at law or in equity or in admiralty. Thus, the facts of each case decide the question of whether summary judgment should be granted, and not the nature of the action. Wright and Miller, Federal Practice and Procedure, Civil Section 2731, at 602; Engl v. Aetna Life Ins. Co., 139 F.2d 469, 472 (2 Cir., 1943); California Apparel Creators v. Wieder of California Inc., 68 F.Supp. 499, 507 (D.C.N.Y., 1946), cert. denied 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393 (1947); Holmes v. Government of the Virgin Islands, 370 F.Supp. 715, 718 (D.C.V.I., 1974).
Summary judgment may be used in granting a permanent injunction where there is no genuine issue of facts as in this case. Auto Drive-Away Co. of Hialeah, Inc. v. ICC, 360 F.2d 446 (5 Cir., 1966); Standard Oil Co. of Texas v. Lopeno Gas Co., 240 F.2d 504 (5 Cir., 1957); SEC v. Geyser Minerals Corp., 452 F.2d 876 (10 Cir., 1971).
Therefore, since there is no genuine issue as to any material fact, plaintiff as a matter of law is entitled to the issuance of a preliminary and permanent injunction enjoining defendant Orlando Llenza from *1103 transferring plaintiff from his position as Chief of the Selective Service Section of the Puerto Rico National Guard.
WHEREFORE, in view of the foregoing, defendants' motion to dismiss is hereby DENIED, and it is hereby ORDERED that defendant Orlando Llenza, his successors, agents and subordinate officers, are hereby enjoined and restrained from separating plaintiff from his position as Chief of the Selective Service Section of the Puerto Rico National Guard.
IT IS SO ORDERED.
NOTES
[1] Plaintiff will reach age sixty (60) on March 1983. At the time the Complaint was filed, September 25, 1980, plaintiff had two and a half years (2½) to serve in his position, at an annual income of approximately Six Thousand Dollars ($6,000).
[2] The first motion dated November 24 was filed by Orlando Llenza on behalf of federal defendants, National Guard Bureau, and Chief, National Guard Bureau. The December 15 motion was filed by Orlando Llenza in his official capacity as Adjutant General to the PRNG and as representative of the PRNG, the Commonwealth defendants.
[3] "3848. Twenty-eight years: reserve first lieutenants, captains, majors, and lieutenant colonels
"(a) After July 1, 1960, each officer in the reserve grade of first lieutenant, captain, major, or lieutenant colonel who is not a member of the Retired Reserve shall, 30 days after he completes 28 years of service computed under section 3853 of this title
"(1) be transferred to the Retired Reserve, if he is qualified and applies therefor; or
"(2) if he is not qualified or does not apply therefor, be discharged from his reserve appointment.
"(b) Each officer in the reserve grade of lieutenant colonel who has been recommended for promotion, and who would otherwise be removed from an active status under this section, shall be retained in that status until he is appointed or is refused appointment to the next higher grade.
"(c) Notwithstanding subsections (a) and (b) of this section, the Secretary of the Army may authorize the retention in an active status until age 60 of any officer of the Army National Guard of the United States who would otherwise be removed from an active status under this section and who
"(1) is assigned to a headquarters or headquarters detachment of a State or territory, the Commonwealth of Puerto Rico, the Canal Zone, or the District of Columbia; or
"(2) is employed as technician under section 709 of title 32, United States Code, in a position for which Army National Guard membership is prescribed by the Secretary.
"(d) ...."
[4] "d. Officers assigned to the Selective Service Section, State Headquarters and Headquarters Detachment, may be retained for any period but not beyond the end of the month in which they reach age 60, provided they are otherwise qualified. Requests for retention should be submitted to the Chief, National Guard Bureau, at least 6 months prior to the date they would otherwise be removed from an active status under sections 3848 or 3851 of title 10, United States Code."
[5] According to Exhibit 13 submitted by plaintiff in support of his opposition to the motion to dismiss and motion for summary judgment, the National Guard Bureau announced on June 10, 1975, new policies affecting paragraph 6(d), NGR 20-4 (635-100) of November 30, 1969. Paragraph 3(c) states the new policy that: "Officers currently in a retained status as of July 1, 1975, may continue in an active status in accordance with the terms of their retention authority."
[6] Exhibits, 14, 15, 16 and 17 accompanying plaintiff's motion of December 29, 1980.
[7] Exhibit 19, submitted by motion dated April 20, 1981, paragraphs 3 and 4, read as follows:
"3. You should take particular pride in the confidence that has been evidenced by your selection. I urge you to continue your education and enhance your effectiveness at every opportunity.
"4. The Puerto Rico Army National Guard will continue to rely on you in meeting its objectives."
[8] Letter of February 22, 1977, from Orlando Llenza to Colonel Jorge Suro, Jr. SUBJECT Reconsideration of Non-Selection for Retention.
[9] Letter of September 12, 1979, from Robert E. Shuck to Col. Suro upon the former's relinquishment of his position as Acting Director of the Selective Service System.
[10] Defendants' memorandum in opposition to plaintiff's motion for preliminary injunction and in support of defendants' motion to dismiss, pp. 6-7, footnote 7.
[11] Further considering that on March 10, 1981, the Selective Retention Board considered him and had recommended his retention in his position in the Selective Service Section.
[12] Both plaintiff and defendants use the Fifth and Fourteenth Amendments to the issue of the constitutional right of procedural due process in this case. We are not here to determine whether the Fifth Amendment applies to Puerto Rico directly or by operation of the Fourteenth Amendment. However, the Supreme Court of the United States has determined that Puerto Rico is subject to the Due Process Clause of either the Fifth Amendment or the Fourteenth Amendment. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); Torres v. Puerto Rico, 442 U.S. 465, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979).
[13] For the purposes of this Opinion and Order the terms non-justiciable and non-reviewable are not at variance with each other.
[14] Some courts are at variance on how to proceed in their analytical approach to review military regulations, especially in this area of non-justiciability of claims. The Fifth Circuit Court of Appeals in Mindes v. Seaman, supra, first looks for an allegation of deprivation of a Constitutional right or an act by the military which violates a statute or their own regulations and at the exhaustion of available intraservice correctional measures. Once these two elements are present, there are four additional factors which must be weighed before considering review: (1) the nature and strength of the challenges to the military determination; (2) the potential injury to the plaintiff if review is not granted; (3) the type and degree of interference with the military function; and (4) the extent to which the exercise of military expertise or discretion is involved. Accord: Doe v. Alexander, 510 F.Supp. 900 (D.Minn., 1981); Dilley v. Alexander, supra; Schlanger v. U. S., 586 F.2d 667 (9 Cir., 1978), reh. and reh. en banc den. 1978; Turner v. Egan, 358 F.Supp. 560 (D.Alaska, 1973), aff'd. 414 U.S. 1105, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973).
Other courts have taken the view that the "Mindes analysis... intertwines the concept of justiciability with the standards to be applied to the merits of the case". Dillard v. Brown, supra, at 323. The Third Circuit Court of Appeals looks for the basic parameters found in Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) and Orloff v. Willoughby, supra, and if the claims fall within them, the controversy is found to be justiciable.
In Lindenau v. Alexander, 663 F.2d 68 (10 Cir., 1981) Chief Judge Seth and Judge Holloway adopt the position of the Fifth Circuit in Mindes, supra. Judge McKay, concurring in the judgment, nevertheless views the Third Circuit's approach in Dillard, supra, as the correct analysis. Utilizing either of the approaches this Court finds (See III, pp. 12-13) that petitioner's claim is justiciable.
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473 F.2d 912
Howardv.Perini
72-2002
UNITED STATES COURT OF APPEALS Sixth Circuit
2/27/73
N.D.Ohio
AFFIRMED
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537 U.S. 1125
LEBARv.WADDINGTON, SUPERINTENDENT, STAFFORD CREEK CORRECTIONS CENTER.
No. 02-7279.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied.
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-27-2006
USA v. Grayson
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3533
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Grayson" (2006). 2006 Decisions. Paper 1707.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1707
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3533
UNITED STATES OF AMERICA
v.
ISSIAH N. GRAYSON,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
D.C. Crim. 03-cr-00250-7
District Judge: The Honorable Christopher C. Conner
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2006
Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE,* District Judge
(Opinion Filed: January 27, 2006)
OPINION
*
The Honorable Dickinson R. Debevoise, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
BARRY, Circuit Judge
Appellant Issiah Grayson pled guilty to a one count Information charging him with
Interstate Travel in Aid of Racketeering, in violation of 18 U.S.C. § 1952(a)(3). Based on
its finding that Grayson possessed in excess of five grams of crack cocaine, the District
Court determined that the base offense level was 26 and that, after a downward
adjustment of two levels for acceptance of responsibility, the total offense level was 24.
Although the Sentencing Guidelines imprisonment range was 100 to 125 months given
Grayson’s criminal history category of VI, the statutory maximum term of imprisonment
was five years. The District Court sentenced Grayson to sixty months imprisonment.
Grayson challenges his sentence under United States v. Booker, 543 U.S. 220
(2005). In Booker, the Supreme Court held that mandatory enhancement of a maximum
sentence under the Sentencing Guidelines based on facts neither admitted by the
defendant nor found by a jury violates the Sixth Amendment. Grayson contends that his
sentence violates the Sixth Amendment because there was neither a jury finding nor an
admission regarding the quantity of drugs involved in his crime.
Grayson was sentenced before the Supreme Court’s decision in Booker. In United
States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), we concluded that defendants
sentenced before Booker should have their sentencing challenge “remand[ed] for
consideration of the appropriate sentence by the District Court in the first instance.” Id. at
166. Thus, although we will affirm Grayson’s conviction, we will vacate his sentence
2
and remand for resentencing in accordance with Booker.
3
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827 F.2d 330
126 L.R.R.M. (BNA) 2199, 56 USLW 2192,107 Lab.Cas. P 10,109
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, and Chicago andNorth Western System Federation, Brotherhood ofMaintenance of Way Employees, Appellees,v.CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Appellant.
No. 86-5403.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 15, 1987.
Decided Aug. 25, 1987.Rehearing and Rehearing En Banc Denied Nov. 13, 1987.
Ralph J. Moore, Jr., Washington, D.C., for appellant.
Roger J. McClow, III, Southfield, Mich., for appellees.
Before LAY, Chief Judge, and HEANEY and ARNOLD, Circuit Judges.
HEANEY, Circuit Judge.
1
The Chicago & Northwestern Transportation Company (CNW) appeals an order of the district court granting the Brotherhood of Maintenance of Way Employees (BMWE) a preliminary injunction prohibiting enforcement of one of the CNW's employee rules subjecting employees to discipline for possession, use, or sale of illegal drugs while off duty until such time as the CNW complies with section 6 of the Railway Labor Act (RLA), 45 U.S.C. Sec. 156.
2
* On April 27, 1986, the CNW unilaterally implemented an amendment to its "Operating Rule G" (hereinafter Rule G) prohibiting use, possession or sale of any illegal drug by an employee while off duty. The BMWE informally protested the rule change. On June 17, 1986, Michael White, a BMWE member and CNW employee, was arrested for possession of marijuana. On June 20, 1986, White was informed that he was suspended from employment with the CNW. On July 22, 1986, before White had an opportunity to enter a plea in local court to the charges against him, the CNW held a hearing to determine whether he had violated Rule G. At the hearing, White vigorously denied the charges against him. Nonetheless, relying solely upon the criminal complaint in the matter, the CNW terminated White for violating Rule G on July 25, 1986.1
3
On July 28, 1987, the BMWE brought a motion in district court for a preliminary injunction prohibiting the CNW from enforcing Rule G until it had fully complied with the notice, negotiation, and mediation procedures of the RLA, 45 U.S.C. Secs. 151-188. The BMWE also sought to have White reinstated with back pay. After hearing arguments on the motion on August 14, 1986, and September 23, 1986, and considering affidavits and exhibits submitted by the parties, the district court granted the BMWE's motion in an oral ruling from the bench. The court found that although Rule G is not part of the written collective bargaining agreement of the parties, the knowledge and acquiescence of the parties over a long period of time in the rule has elevated it to an implied term of the collective bargaining agreement of the parties affecting the actual working conditions at the CNW. In addition, the court found that the amendment of Rule G represented a formal change in the agreement of the parties rather than a reinterpretation or application of the agreement. It concluded that the action represented a major dispute in which it was obliged to enter a status quo injunction pursuant to section 6 of the RLA, 45 U.S.C. Sec. 156. Finally, as a result of the injunction requiring maintenance of the preamendment status quo, the court ordered White reinstated with back pay from the date of his discharge. The CNW appeals.
II
4
Relations between the BMWE and the CNW are governed by the RLA, 45 U.S.C. Secs. 151-188. Under the RLA, both sides have an obligation to negotiate whenever a dispute arises. See 45 U.S.C. Sec. 152 first and second. If such negotiations prove fruitless, the dispute may take one of two settlement routes depending upon whether it is a major or minor dispute. If a dispute is major, the parties must follow an "almost interminable process" beginning with the National Mediation Board. See 45 U.S.C. Sec. 155; Detroit and Toledo Shore Line R.R. Co. v. United Transportation Union, 396 U.S. 142, 149, 90 S.Ct. 294, 299, 24 L.Ed.2d 325 (1969). If, on the other hand, the dispute is minor, it must be submitted to arbitration by the National Railroad Adjustment Board. See 45 U.S.C. Sec. 153. Additionally,
5
[t]he question whether a dispute is major or minor determines the degree to which a federal court may become involved in the dispute. If the dispute is major, the courts have broad powers to enjoin unilateral action by either side in order to preserve the status quo while settlement procedures go forward. Such an injunction may issue without regard to the usual balancing of the equities. But if the dispute is only minor, the court's power is more limited since the NRAB has exclusive jurisdiction over such minor disputes. The traditional power to enjoin under equitable principles remains, but in the usual case it is inappropriate to exercise this power since irreparable loss and inadequacy of the legal remedy cannot plainly be shown until the NRAB has had an opportunity to act.
6
Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R.R. Co., 802 F.2d 1016, 1021 (8th Cir.1986) (citations omitted).2
7
The terms major and minor dispute are not found in the RLA. Rather, major dispute is a shorthand term for a dispute falling under 45 U.S.C. Sec. 156 which speaks of "change[s] in agreements affecting rates of pay, rules, or working conditions," and minor dispute is a shorthand term for a dispute falling under 45 U.S.C. Sec. 153(i) which speaks of "disputes ... growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions."
8
Determining whether a dispute is major or minor is often a question of degree and turns upon the facts in each case. Missouri Pacific Joint Protective Board v. Missouri Pacific R.R. Co., 730 F.2d 533, 536-37 (8th Cir.1984). At base, the question is whether the dispute may be resolved by interpretation or application of the existing agreement of the parties. If so, it is a minor dispute. In contrast, if the dispute arises out of an area not contemplated by the agreement or arises because a party is seeking to change a term of the agreement, it is a major dispute. See Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945); Brotherhood of Maintenance of Way Employees, Lodge 16, 802 F.2d at 1021 n. 3; Independent Federation of Flight Attendants v. Trans World Airlines, Inc., 655 F.2d 155, 157-58 (8th Cir.1981).
9
It is not, however, for the courts to interpret the agreement of the parties for the purpose of finally adjudicating a dispute between employees and the carrier. See Order of Railway Conductors of America v. Pitney, 326 U.S. 561, 564, 66 S.Ct. 322, 323, 90 L.Ed. 318 (1946). The RLA clearly leaves this task to the National Railroad Adjustment Board. See 45 U.S.C. Sec. 153(i). Thus, although for purposes of deciding whether a section 6 injunction should issue a court must first determine what the agreement of the parties is, Brotherhood of Maintenance of Way Employees, Lodge 16, 802 F.2d at 1022, this Court has held that a dispute must be considered minor and a status quo injunction should not ordinarily issue if the agreement of the parties is "reasonably susceptible" of the interpretations sought by both the employer and the employees. Independent Federation of Flight Attendants, 55 F.2d at 158. On review, questions as to the content of the agreement of the parties are factual, and may be reversed only if clearly erroneous, while the susceptibility of the interpretations of the agreement sought by the employer and the employees presents an issue of law.
III
10
In applying the RLA to the facts of this case, the district court found that although not part of the written collective bargaining agreement, Rule G has regulated employee intoxicant use for a sufficient period of time with the knowledge and acquiescence of the CNW and the BMWE to become part of the implied agreement of the parties. The CNW contends that this finding is clearly erroneous. In support of its contention, the CNW argues that its explicit collective bargaining agreement with the BMWE is completely silent on employee alcohol or drug use and that the effect of this silence is to commit the subject to its discretion. More specifically, the CNW argues that the district court erroneously invoked section 6 of the RLA, 45 U.S.C. Sec. 156, because
11
[t]here is no * * * agreement between the parties--written or unwritten--concerning employee drug involvement, or illegal off duty conduct, since these subjects * * * historically have been left to C & NW as a matter of managerial prerogative.
12
CNW reply brief at 8-9.
13
We cannot, on the basis of the record before us, accept the CNW's argument. As this Court has recently stated:
14
Since, as a practical matter, it is impossible for the written collective bargaining agreement to describe every possible permutation of working conditions which might arise, it is not unusual for the parties to a labor agreement to develop working relationships, customs, and practices which are understood to be the norm, but which are nowhere reduced to a formal contract term. When longstanding practice ripens into an established and recognized custom between the parties, it ought to be protected against sudden and unilateral change as though it were a part of the collective bargaining agreement itself.
15
Brotherhood of Maintenance of Way Employees, Lodge 16, 802 F.2d at 1022.
16
After reviewing the record existing at this stage in the case, we find that the district court did not err in holding that Rule G, by virtue of the parties' longstanding and recognized custom and practice, has become an implied term in the agreement of the parties.
17
Having found that Rule G constitutes an implied term in the agreement of the parties, it is necessary to determine whether the pre-amendment version of the parties' agreement (the implied term under the "old Rule G") is "reasonably susceptible" to being interpreted in a manner consistent with the post-amendment version (the implied term under the "new Rule G"). If the pre-amendment version is reasonably susceptible to such an interpretation, the dispute is a minor one and an injunction should issue only in rare circumstances. See Brotherhood of Maintenance of Way Employees, Lodge 16, 802 F.2d at 1022; Independent Federation of Flight Attendants v. Trans World Airlines, 655 F.2d at 158.
18
In this respect, the district court held that, "[s]ince the grievances at issue grew out of a formal change to Rule G rather than out of an interpretation or application of that rule, the grievance is a major dispute." The CNW contends that this holding is erroneous. The CNW argues that the amendment to Rule G served only to make explicit that which was already prohibited by its operating Rule 7, the "conduct unbecoming rule." Although we recognize that the evidence on the issue is not as clear and complete as the parties may wish, the district court was correct in rejecting the CNW's argument with respect to Rule 7 on the basis of the evidence properly before it when it granted the preliminary injunction.
19
Determining the state of the record before the district court at the time it granted the motion for a preliminary injunction is difficult due to the procedural history of the case. On August 14, 1986, a hearing was held before the district court on the BMWE's motion for a preliminary injunction and the CNW's cross motion to dismiss. Both parties presented briefs in support of their motions. In its brief, the CNW referred to the conduct unbecoming rule but focused primarily on its right to unilaterally amend Rule G. In addition, the CNW presented an affidavit of Ronald Cuchna, vice president of labor relations for the CNW (8/1/86 affidavit). The affidavit made no mention of any past practice of regulating off duty employee drug use, possession, or sale under the conduct unbecoming rule. Attached to the affidavit were copies of portions of the CNW's past and present disciplinary rules depicting the evolution of Rule G and a copy of a board of adjustment decision in a dispute between Southern Pacific Transportation Company and Brotherhood of Locomotive Engineers holding a rule similar to the amended Rule G applicable to off duty sale of drugs.
20
At the August hearing, the BMWE presented its argument in full to the court. Before the CNW could present its argument, however, the trial judge suggested that the remainder of the proceeding be stayed pending efforts by the parties to resolve their differences privately. On September 23, 1986, after efforts to settle the dispute failed, the hearing before the district court was resumed and the CNW presented its argument. Also at the September hearing, the BMWE offered to supplement the record with additional exhibits and live testimony. The trial judge refused the offer and granted the BMWE's motion for the preliminary injunction.
21
The CNW subsequently brought a motion urging the district court to reconsider its decision. Appended to that motion was another affidavit by Ronald Cuchna (9/29/86 affidavit) stating:
22
The Rule G provisions, as promulgated by the C & NW on April 27, 1986, regarding the illegal use, possession or sale of drugs while on or off duty are merely a specification of General Rule 7 provisions which are applicable to employees of the C & NW. * * * General Rule 7 would also prohibit the conduct cited in the complaint concerning Mr. White.
23
The district court denied CNW's motion stating:
24
In its reconsideration motion, the Railroad fervently argues that it has traditionally regulated employee off-duty conduct through Rule 7, known as the "conduct unbecoming" rule, as well as through various other company rules. It is clear, of course, that only Rule G was before this Court when considering the underlying motion for a preliminary injunction. Simply put, the propriety of the company's regulation of off duty conduct by means other than Rule G is not at issue in this case.
25
Although the parties will have the right to supplement the record in any further proceedings with respect to past practice under Rule 7, on the basis of the record before it at the time it granted the preliminary injunction, we hold that the district court was correct in determining that Rule 7 was not at issue in the case. At the time the district court granted the injunction, the record did not reflect that the CNW applied Rule 7 and the amended Rule G in a manner that would suggest the two rules covered the same territory. On the contrary, several factors strongly suggested that this was not the case. First, the CNW had found it necessary to amend Rule G and to insist on the amendment despite strong opposition in the form of this action. If the two rules actually covered the same conduct in the same manner, it would be senseless for the CNW to waste time, energy and money attempting to enforce amended Rule G. Second, in the proceedings the CNW brought against him, White was only charged with violating Rule G and not Rule 7. If the rules are coextensive, one would think White would have been charged with violating both. Third, and most importantly, Rule 7, on its face, is limited to instances in which the employee's conduct has an adverse effect on the carrier, i.e., a loss of good will, potential danger to other employees, or reduced work performance.3 Rule G is not so limited. In fact, White's case provides an example of the distinction. White was discharged solely on the basis of a criminal complaint. The CNW, by the terms of Rule G, did not have to show loss of good will, danger to other employees, or reduced job performance.
26
Alternatively, the CNW argues that Rule G is at most a minor change in the implicit agreement of the parties because the past practice of the parties, which itself is part of the implicit agreement of the parties, shows that the CNW always possessed the right to make unilateral changes in Rule G. In other words, the CNW contends that the agreement of the parties consists not only of the Rule G in effect at any given time, but also consists of the right of the CNW to change the rule unilaterally. The district court, in defining the status quo to be maintained during the preliminary injunction, rejected this position as unreasonable. It stated:
27
Since 1910 the Railroad has unilaterally regulated employee's intoxicant use while on duty, subject to duty, or on company property, all under Rule G. The Railroad has never regulated the off duty conduct of an employee while away from company property until the change in Rule G, which it unilaterally promulgated in April 1986.
28
In support of its position, the CNW cites United Transportation Union, Lodge No. 31 v. St. Paul Union Depot Co., 434 F.2d 220 (8th Cir.1970), for the proposition that an implied term in a bargaining agreement may include the unilateral power to change the term.4 Whatever the merit of the proposition, St. Paul Union Depot also requires that an implied term, "demonstrate not only a pattern of conduct but also some kind of mutual understanding, either express or implied." The case goes on to state that factors to consider in determining whether a past practice has become an implied term of a bargaining agreement are, "the mutual intent of the parties, their knowledge of and acquiescence in the prior acts, along with evidence whether there was joint participation in the prior course of conduct, all to be weighed with the facts and circumstances in the perspective of the present dispute." Id. at 223.
29
Common sense and this Court's prior cases indicate that there are limits on the extent to which the CNW may amend Rule G consistent with the history and acquiescence of the parties in past amendments. In this light we agree with the district court that the agreement of the parties (including any terms necessarily implied as a result of established past practices and working conditions) is not reasonably susceptible to the CNW's proposed interpretation whereby it has the right to unilaterally extend its operating rules to regulate off duty use, possession, or sale of illegal drugs in the manner contemplated by the amendment to Rule G.5
30
Thus, we hold that the CNW has failed to meet its "relatively light burden" of showing that the pre-amendment agreement of the parties, including both express and implied terms, is reasonably susceptible of being interpreted to allow the amendment to Rule G the CNW seeks to implement unilaterally. See Brotherhood of Maintenance of Way Employees, Lodge 16, 802 F.2d at 1022. The district court correctly concluded that the action represents a major dispute in which it could issue a status quo injunction pursuant to 45 U.S.C. Sec. 156.6
IV
31
As a final matter, the CNW argues that the district court exceeded its jurisdiction by entering an order that enjoins enforcement of Rule G against any of the CNW's employees, not just against employees represented by the BMWE. Since the BMWE did not seek to enjoin the CNW from enforcing Rule G as amended against any parties other than those it represents, the district court's order, shall be amended to enjoin enforcement of Rule G only against those represented by the BMWE.
32
Accordingly, as modified by part IV of this opinion, the judgment and order of the district court are affirmed.
1
Aside from White's denial of the charges against him, the only evidence introduced at the hearing pertaining to the violation of Rule G is found in the testimony of Donald G. Mundth, inspector of police for the CNW who testified:
Q. Mr. Mundth, in what way did you become involved in this incident?
A. On Thursday, June 18, 1986, Mr. Terbell approached me and requested that I assist him in the investigation of an employee who was arrested at Mankato, Minnesota for possession of controlled substance. I told Mr. Terbell that I would follow up and investigate the matter.
Q. In your follow-up did you have any contact with the local Civil Authorities here at Mankato?
A. Yes, I did.
Q. Did you discuss the charges against Mr. White with the Civil Authorities?
A. Yes, I did.
Q. And do you have any information of what these charges are?
A. Yes I do. Mr. Irwin, I have a copy of the District Court's Criminal Complaint which charges Mr. Michael Bruce White with various charges.
Q. Would you please, for the record, read what these charges are?
A. The Criminal Complaint consists of three pages. The first page establishing facts of the matter and determining what probable cause exists to make the charges. The second page is actually the page on which the charges are listed * * *.
* * *
Q. Mr. Mundth * * * are these charges filed against Mr. White a violation of Rule G?
A. Yes, they are.
2
In its brief, the CNW contends that the district court erred as a matter of law in failing to engage in the traditional balancing of the equities prior to granting the injunction. As the quoted passage indicates, however, an injunction pursuant to 45 U.S.C. Sec. 156 "may issue without regard to the usual balancing of the equities." Brotherhood of Maintenance of Way Employees, Lodge 16, 802 F.2d 1016, 1021 (8th Cir.1986). Therefore, we reject the CNW's contention
3
Rule 7, in its entirety, states:
Employees are prohibited from being careless of the safety of themselves or others, disloyal, insubordinate, dishonest, immoral, quarrelsome, or otherwise vicious or conducting themselves in such a manner that the railroad will be subjected to criticism and loss of good will, or not meeting their personal obligations.
Affidavit of Ronald J. Cuchna dated September 29, 1986, exhibit 2.
4
The CNW also argues that the district court's factual finding that "[t]he Railroad has never regulated the off duty conduct of an employee while away from company property until the change in Rule G" is clearly erroneous. We disagree. The statement must be taken in the light of the record before the court at the time it granted the preliminary injunction as well as in the context of the case. Clearly the court did not intend by the statement that the CNW had never before regulated off duty employee conduct in any way. Rather, in the context of the case, it is clear that the district court was considering only regulation of that off duty conduct that would be regulated under the amendment to Rule G, that is, off duty possession, use, or sale of illegal drugs. So understood, the district court's finding is not clearly erroneous
5
The CNW additionally contends that because it has retained the right to unilaterally amend Rule G since its inception, the status quo imposed pursuant to 45 U.S.C. Sec. 156 must also include that right. The district court rejected this contention. On the basis of our rejection of the CNW's assertion that any implied term must include the absolute power to amend Rule G unilaterally, we affirm the district court in this regard
6
In so holding we note that this case comes to the Court on appeal from a grant of a preliminary injunction. In the present posture of the case our review is limited to the record before the district court at the time it issued the preliminary injunction
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300 F.Supp.2d 366 (2004)
UNITED STATES of America
v.
Alric BERRY
No. CRIM L-03-0313.
United States District Court, D. Maryland.
January 28, 2004.
*367 Jane M. Erisman, Thomas M. DiBiagio, Baltimore, MD, for Plaintiff.
Harvey Greenberg, Towson, MD, for Defendant.
MEMORANDUM
LEGG, Chief Judge.
On January 21, 2004, the Court issued a brief Order denying Defendant Alric Berry's ("Berry") Motion to Suppress Evidence. The Court now writes to explain its ruling.
I. BACKGROUND
On April 9, 2003, Judge Thomas Bollinger of the Circuit Court for Baltimore County authorized the placement for sixty days of an electronic tracking device on a car owned by Monika Hill ("Hill"), Berry's former co-defendant. On April 9th, armed with the court order, police placed a global positioning system ("GPS") under the bumper of Hill's Mercedes Benz. The GPS provided the police with information that Hill's car traveled to New York City four times within the next sixty days. Although the court order expired on June 8th, the GPS continued to record information about the movements of Hill's Mercedes Benz, and the police learned that her car made a fifth trip to New York City on June 12th, returning to Maryland on June 14th.
Drug Enforcement Administration ("DEA") Special Agent Todd Edwards ("Edwards"), suspecting that Hill was trafficking in drugs, applied for a warrant to search Hill's apartment. In his affidavit, Edwards mentioned all five trips that Hill's vehicle made to New York City. On June 23, 2003, Judge A. Gordon Boone of the District Court of Maryland issued a search warrant for Hill's apartment. The police executed the warrant that day, after Berry and Hill had returned from a long trip to Florida by car. Among other things, the police found twenty-three balloons filled with heroin, several digital scales, and a supply of small glass vials.
On July 3, 2003, the grand jury returned an indictment charging Berry with: (i) conspiracy to distribute 100 grams or more of heroin, and (ii) possession with intent to distribute 100 grams or more of heroin. The government seeks to introduce the drugs and the drug paraphernalia. Berry has moved to suppress the evidence. On January 16, 2004, the Court held an evidentiary hearing during which Defendant's Counsel argued the following:
(i) the information received from the GPS was obtained in violation of the Fourth Amendment, and, therefore, the information cannot support a finding of probable cause to search Hill's apartment;
(ii) the search warrant for Hill's apartment was invalid because the information in the affidavit was "stale;" and
(iii) the officers did not comply with the "knock and announce" provisions of 18 U.S.C. § 3109.
The Court will address each argument in turn.
II. ANALYSIS
A. GPS Device
It is unclear whether the information stored by the GPS placed on Hill's car was the product of a search and seizure. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), the Supreme Court reasoned that the police may place a beeper in a car and monitor it without first obtaining a court order.[1] Measured *368 against today's technology, a beeper is unsophisticated, and merely emits an electronic signal that the police can monitor with a receiver. The police can determine whether they are gaining on a suspect because the strength of the signal increases as the distance between the beeper and the receiver closes.
Beepers placed on cars merely help the police stay in contact with the vehicle that they are actively "tailing." A car driving on the street is in plain view, and the police may follow it without a search warrant or other court order. Binoculars, spotter airplanes, and beepers merely assist the police in keeping the car in view. The Supreme Court held that the police may, therefore, install a beeper without first seeking a judge's permission.[2]
The Supreme Court's analysis may or may not cover a GPS, which, unlike a beeper, is a substitute for police surveillance. Using signals from satellites, the GPS on Hill's Mercedes kept track of the car's location. That device did not broadcast this information in "real time." Instead, the device stored the data in its memory. The police could download the data only by bringing their receiver close to Hill's Mercedes, presumably when the car was parked. The device, therefore, told the authorities where Hill's car had traveled. The GPS neither assisted the police in "tailing" Hill's vehicle nor told them where the car was currently located.
Now on the market are GPS devices even more sophisticated than the one employed against Hill. Such devices can be tracked with the aid of a computer that displays a map showing where the device is in real time. The computer's memory can store the device's movements moment-by-moment for days, weeks, or even years. This improved technology may be viewed as a more sophisticated beeper. A GPS merely records electronically what the police could learn if they were willing to devote the personnel necessary to tail a car around the clock. The Supreme Court might conclude, however, that the new technology is so intrusive that the police must obtain a court order before using it.
This Court need not decide whether modern GPS devices effect a search and seizure. In this case, the police obtained a court order permitting the placement of the device on Hill's Mercedes for sixty days. Even if the GPS data regarding the first four trips to New York City was gathered by a search and seizure, the court order renders the evidence admissible.
The fifth trip to New York City is potentially problematic because it occurred outside the permitted sixty day period. The government will not, however, seek to introduce evidence concerning the fifth trip at trial. Moreover, there was probable cause to search Hill's apartment even if all mention of the fifth trip were removed from the application. This Court, therefore, need not decide whether a GPS, unlike a beeper, requires a court order.
B. Search Warrant
Berry asserts that the search warrant is invalid because (i) there was no probable cause to believe that Hill was involved in drug trafficking in the spring and summer *369 of 2003, and (ii) the historical information about Hill's drug activities ended in May 2002, and was, therefore, "stale."[3] The Court disagrees.
As Special Agent Edwards's Affidavit details, Hill was a member of a sophisticated, well-organized drug ring that moved multi-kilogram loads of cocaine from Texas into Maryland and New York. On May 15, 2002, one of the ring's couriers was arrested in Maryland with five kilograms of cocaine. On May 23rd, another of the ring's couriers was arrested in Texas with five kilograms of cocaine. Hill was also arrested in connection with the Texas bust.
In July 2002, Special Agent Edwards was attempting to locate Hill as part of his investigation of the drug ring. As Edwards testified at the hearing, he had lost Hill's trail. He did not believe that Hill and her associates had given up the drug trade, however. An informant had told Edwards that Hill and her confederates had decided to lay low for a few months following the drug seizures. Edwards regained Hill's trail in Maryland in the early summer of 2003 by putting together telephone records, a tip from a confidential informant, and the criminal history check on a person whose name matched one of Hill's aliases.
Edwards confirmed that the "Cynthia Shaw" living at 29 Cue Court Apartment 1C, Owings Mills, Maryland was Hill. Edwards did not request an immediate search warrant, but instead took steps to investigate Hill's current activities. The GPS showed that Hill was making frequent, short trips to New York City, which is a "source city" for drugs coming into Maryland. Surveillance showed that Hill was working with Berry, that they drove luxury cars, that they had no record of employment, and that they "switched" cars in an apparent attempt to detect if they were being followed.
Even if the police had not uncovered evidence of unexplained wealth and frequent short trips to New York City, probable cause would have existed to search Hill's apartment. Similar to legitimate businesses, drug organizations maintain records including telephone numbers, address books, tally sheets, "owe" sheets, rental car receipts, airline tickets, personal tax returns, and the like. Because this type of business information has ongoing value, one would expect a drug operator like Hill to have taken her records when she moved from Texas to Maryland. See United States v. Rhynes, 206 F.3d 349 (4th Cir.1999) (finding that a warrant was not stale even though the alleged drug activities were two years old because the items to be seized were documentary evidence not ordinarily destroyed). Hill's suspect conduct in 2003 reinforces the probability that her apartment would contain evidence of drug trafficking. Accordingly, the search warrant was supported by an affidavit demonstrating probable cause.[4]
C. "Knock and Announce"
Berry asserts that the officers violated the "knock and announce" provisions outlined in 18 U.S.C. § 3109 because they did not announce their presence and give Hill enough time to open the door before using a battering ram to gain entry. The Court disagrees and is satisfied, based on the evidence presented at the hearing, that *370 the officers complied with the "knock and announce" requirement.
Special Agent Edwards, who has participated in the execution of more than 300 search warrants during his nine years with the DEA, was in charge of the team that executed the search warrant. Edwards testified that his usual practice is to pound on the door with his fist and loudly announce "DEA search warrant" three times. Edwards also testified that he usually waits fifteen to twenty seconds between each knock and announce, and that he followed this standard procedure at Hill's apartment. This means that approximately one minute elapsed between the first knock and the use of the battering ram.
Edwards also recalled that he had a brief disagreement with DEA Special Agent Bernard Malone ("Malone") after the second knock and announce. Malone, who had heard movement inside the apartment, argued that they should enter immediately. Edwards refused and knocked and announced a third time. Malone, who was sequestered during Edwards's testimony, fully corroborated Edwards's recollection.
Berry did not testify. He did, however, call Hill as a witness. Hill, originally a co-defendant, has signed a plea agreement and has agreed to testify against Berry at trial. Hill's recollection of the execution of the warrant is at odds with that of Edwards and Malone. Hill stated that she and Berry had arrived home in the afternoon of June 23rd after a long drive from Florida. The couple had been in the apartment for roughly five minutes before the police forced open the door and arrested Berry and Hill.
Hill testified that she and Berry were in the bedroom unpacking when she heard someone rap using the small plastic knocker on the front door. After asking "who was it," Hill headed towards the door. Hill also explained that the walls are thin, the apartment is small, and she could usually hear people when they arrived at her front door.
It is difficult to reconcile Hill's testimony with that of the two officers. Because of the apartment's small size and thin walls, anyone inside would have been able to hear an officer pounding on the door and demanding entry. There are reasons that could explain why Hill did not hear Edwards. Hill testified that she had just completed a long and taxing drive, that she had driven part of the way, that she had smoked marijuana earlier that day, and that she was tired. The presence of the drugs in the car undoubtedly added to the stress of the drive, and Hill might have been preoccupied with unpacking and storing them.
Even if these facts do not account for the discrepancy, this Court would accept the officers' testimony. Nothing in the officers' demeanor suggested that they were supplying facts that they did not recall, shading an uncomfortable truth, or being untruthful in any degree. Accordingly, the Court finds that the officers complied with the "knock and announce" provisions outlined in 18 U.S.C. § 3109.
III. CONCLUSION
For the foregoing reasons, the Court DENIED Defendant's motion to suppress the evidence obtained during the search at Hill's apartment.
NOTES
[1] In both cases the police placed a beeper in a container that the suspect subsequently transported in his car. The Supreme Court's analysis does not suggest a constitutional difference between the container and the car itself.
[2] The police may be guilty of a trespass when they install a beeper, but the Supreme Court has held that the commission of a trespass, without more, does not violate the Fourth Amendment. Compare Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (no trespass, but Fourth Amendment violation), with Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (trespass, but no Fourth Amendment violation).
[3] The government does not contest that Berry's standing to assert these arguments.
[4] Moreover, even if the search warrant was not supported by probable cause, there is nothing to suggest that the good faith exception outlined in United States v. Leon, 468 U.S. 897 (1984), does not apply. For example, Berry does not provide any evidence that Special Agent Edwards was deceptive or reckless in presenting his affidavit to the issuing magistrate judge.
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235 F.3d 897 (4th Cir. 2000)
RONALD WAYNE FRYE, Petitioner-Appellant,v.R. C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
No. 00-7.
UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.
Argued: September 26, 2000.Decided: December 22, 2000.
Appeal from the United States District Court for the Western District of North Carolina, at Statesville.
Lacy H. Thornburg, District Judge. (CA-99-108-5-T)[Copyrighted Material Omitted]
COUNSEL ARGUED: Marilyn Gerk Ozer, William F.W. Massengale, MASSENGALE & OZER, Chapel Hill, North Carolina, for Appel-lant. Edwin William Welch, Special Deputy Attorney General, NORTH CAROLINA ATTORNEY GENERAL'S OFFICE, Raleigh, North Carolina, for Appellee.
Before WILKINSON, Chief Judge, and MOTZ and KING, Circuit Judges.
Certificate of appealability denied and appeal dismissed by published opinion. Judge King wrote the opinion, in which Chief Judge Wilkinson and Judge Motz joined.
OPINION
KING, Circuit Judge:
1
Ronald Wayne Frye, sentenced to death by the State of North Carolina for the crime of first-degree murder, seeks relief in this Court following the district court's refusal to grant his petition for a writ of habeas corpus. Because we conclude that Frye has failed to make a substantial showing of the denial of a constitutional right, we decline to grant Frye a certificate of appeal ability, and we dismiss his appeal.
I.
2
Frye was sentenced to death on November 15, 1993, in the Superior Court of Catawba County, North Carolina, for the murder of his landlord. The Supreme Court of North Carolina affirmed Frye's conviction, State v. Frye, 461 S.E.2d 664 (N.C. 1995), and the Supreme Court of the United States denied certiorari. Frye v. North Carolina, 517 U.S. 1123 (1996). Frye then initiated post-conviction proceedings in the Superior Court of Catawba County ("MAR court"). The MAR court denied Frye's Motion for Appropriate Relief ("MAR"), with its written decision setting forth findings of fact and conclusions of law. State v. Frye, No. 93 CRS 1884, No. 93 CRS 3215 (N.C. Super. Ct. April 24, 1998) (hereinafter cited as "MAR Hearing"). That decision was upheld on April 8, 1999, when the Supreme Court of North Carolina denied certiorari. State v. Frye, 535 S.E.2d 34 (N.C. 1999).
3
Pursuant to 28 U.S.C. § 2254, Frye petitioned for a writ of habeas corpus in the district court for the Western District of North Carolina. The Warden ("State") moved for summary judgment, which the district court granted by its Memorandum of Opinion dated March 9, 2000. Frye v. Lee, 89 F. Supp. 2d 693 (W.D.N.C. 2000). On May 30, 2000, the court denied Frye's application for a certificate of appeal ability.1
4
Frye now appeals to this Court, asserting two constitutional defects in the imposition of his death sentence. First, Frye claims that he has been denied his Sixth Amendment right to the effective assistance of counsel, alleging, inter alia, that his two court-appointed lawyers failed to adequately prepare for and present mitigation evidence during the sentencing phase of his jury trial. Second, Frye asserts that certain jury instructions given during the sentencing phase, specifically those relating to the statutory aggravating circumstance of "heinous, atrocious, or cruel" murder, were unconstitutionally vague and overbroad.
A.
5
The facts underlying this case, summarized below, are largely drawn from the accounts related by the state courts-the Supreme Court of North Carolina and the MAR court. See 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.").
6
On January 24, 1993, Frye committed the crime of first-degree murder in Catawba County, when he repeatedly rammed a pair of scissors into the neck and chest of his seventy-year-old landlord, Ralph Childress. Local police, responding to a call from the decedent's brother, found Mr. Childress dead on the floor of his home with a pair of scissors protruding from his chest. An empty wallet was discovered on the floor of the house, and blood stains appeared throughout the residence. Childress had been stabbed five other times. Three days later, the police arrested Frye at the apartment of a local crack dealer.
7
Frye was thereafter tried in the Superior Court of Catawba County for first-degree murder and for robbery with a dangerous weapon. The prosecution case against Frye was, in a word, substantial. The testimony revealed that, on the day before the murder, Childress had ordered Frye to vacate his trailer for failing to pay rent. A crack cocaine dealer, Michael Ramseur, testified for the prosecution that Frye, just prior to the murder, had attempted to enlist him to rob Childress. According to Ramseur, Frye wanted a third party to commit the robbery because Frye knew that he would be recognized. Ramseur refused Frye's request. On the day after Childress's murder, Frye, who had been without sufficient funds to satisfy his drug habit, was able to purchase crack cocaine with a thick wad of money. Another witness, Kevin Templeton, testified that Frye told him about robbing and killing Childress. According to Templeton, Frye only intended to rob Childress but "got carried away." Other testimony established that, around the time of the murder, Frye developed cuts on his hand and somehow obtained large amounts of cash.
8
The physical evidence implicating Frye was overwhelming. Frye's blood was found at the murder scene on a mattress, on a knife, and on one of Childress's pistols. Blood discovered on Frye's jacket matched that of the victim. Frye's attorneys presented no evidence in defense during the trial's guilt phase. The jury convicted Frye of firstdegree murder, and it also convicted him of robbery with a dangerous weapon.
9
Frye's court-appointed lawyers, Theodore Cummings and Thomas Portwood, possessed a legitimate tactical basis for not presenting evidence of their client's innocence. Their plan was to instead focus on avoiding the death penalty by presenting mitigation evidence to the jury during the trial's sentencing phase.2 This plan was frustrated, however, by Frye's insistence that none of his family members be contacted. Frye specifically instructed his attorneys that he "would not permit contact with his family and friends," and would not permit them "to assist in forming mitigating factors[.]" MAR Hearing at 6, 9. Frye's lawyers "fully informed" Frye about the consequences of his decision and "the importance of using family members to develop mitigating circumstances." Id. at 11. However, Frye "maintained [his] position throughout the trial." Id. at 9.
10
In an effort to deal with the problem created by Frye's instructions that family members not participate in his defense, Portwood and Cummings arranged two separate psychological evaluations of their client. The first evaluation occurred more than four months before the trial, at Dorothea Dix Hospital in Raleigh, North Carolina. At the hospital, a psychiatrist performed an extensive analysis of Frye's psychological state for use by his attorneys in their death penalty defense.
11
Two weeks before trial, when it was clear that neither Frye nor his family members would testify, Portwood and Cummings contacted a clinical forensic psychologist, Dr. Noble, to secure another evaluation of Frye and to gather evidence as to his mental state and possible mitigating circumstances. While interviewing with Dr. Noble, Frye recounted a particularly troubled personal history: at the age of four, he was given away at a restaurant by his parents to a family of strangers; he was severely beaten and subjected to extreme physical torture by the father of that family; subsequently, he had lived in several foster homes. Later, as a teenager, Frye dropped out of high school and abused drugs. He had very few friends -one of whom had been Mr. Childress, the victim. Moreover, Frye had excessive fears of being conspired against and of being persecuted.
12
During the trial's sentencing phase, Dr. Noble was called as a defense witness and asserted that Frye suffered from paranoia, mixed substance abuse, mixed personality, and child abuse syndrome. Dr. Noble also testified that Frye possessed a "diminished capacity to know right from wrong and to conform his behavior to social requirements." Frye, 461 S.E.2d at 671. On cross-examination, however, Dr. Noble admitted that his knowledge of Frye's personal history was limited to what Frye had told him, since Frye had specifically instructed him not to contact family members. In his closing argument in the sentencing phase, the prosecutor attacked Dr. Noble's testimony by suggesting that Frye may have lied to Noble about the horrors of his childhood.
13
Frye's defense attorneys presented one other witness at the sentencing phase. One of Frye's jailers testified that Frye was wellbehaved in custody, having adapted well to prison life. The prosecution then presented rebuttal evidence consisting of Frye's criminal record, which included convictions for destruction of property, resisting arrest and assaulting an officer, felonious breaking and entering, and various drug crimes.
14
In furtherance of his defense, Frye's attorneys presented the jury with fifty-nine "mitigating circumstances."3 Under North Carolina law, if a single juror finds a mitigating circumstance present, the jury is instructed to answer "Yes" on the verdict form, indicating the presence of that circumstance. See State v. Meyer , 412 S.E.2d 339, 34546 (N.C. 1992). In Frye's case, the jury answered"Yes" to thirty-four of the fifty-nine asserted mitigating circumstances. However, the jury also found the aggravating circumstances of the Childress murder to outweigh those in mitigation, and it recommended a sentence of death.4 The trial judge accepted the jury's recommendation and imposed the death penalty.
B.
15
As we explained, Frye appealed directly to the Supreme Court of North Carolina, which upheld the jury verdicts and his death sentence. Frye then petitioned for review to the Supreme Court of the United States, which denied certiorari on April 1, 1996.
16
On November 18, 1996, Frye filed his MAR in state court. He was granted an evidentiary hearing in the Criminal Superior Court of Catawba County (presided over by a judge not previously involved in Frye's case or his appeals). That court conducted a four-day MAR hearing, from October 14-17, 1997, and it denied relief on April 24, 1998. The Supreme Court of North Carolina denied certiorari.
17
Since Frye filed his MAR in state court within one year of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1), the AEDPA statute of limitations was tolled during his state court proceedings. 28 U.S.C. § 2244(d)(2); Hernandez v. Caldwell, 225 F.3d 435, 438 (4th Cir. 2000). After his state court remedies were exhausted, Frye timely filed his petition for a federal writ of habeas corpus in the district court. The district court granted the State's motion for summary judgment and dismissed the petition. Frye now seeks to appeal. We review de novo the district court's grant of summary judgment. Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir. 1990).
II.
A.
18
Frye has raised two constitutional questions in this proceeding. Frye initially contends that he was denied his right to the effective assistance of counsel because his lawyers failed to competently prepare for the sentencing phase of his trial. Frye alleges two different bases for the ineffective assistance of his counsel. First, he asserts that his lawyers were constitutionally ineffective in not presenting the jury with supplemental witnesses and other evidence to verify and explain Frye's troubled past. Specifically, Frye maintains that additional nonfamily witnesses and certain documentary evidence would have provided crucial support of the mitigating circumstances presented to the jury by Dr. Noble. Perhaps more importantly, this evidence may have facilitated the jury's belief in the story of Frye's childhood, as related to the jury through Dr. Noble. Second, Frye maintains that his representation in the trial's sentencing phase was compromised by an asserted alcohol dependency on the part of Mr. Portwood. According to the district court, Portwood consumed approximately twelve ounces of liquor each evening during the course of the trial, but was never intoxicated prior to or during each day's proceedings. Frye, 89 F. Supp. 2d at 701.
19
Frye also contends that constitutional error is found in the sentencing court's jury instructions regarding the "heinous, atrocious, or cruel" aggravating circumstance of the Childress murder. These terms may be, without an appropriate limiting instruction, unconstitutionally vague. Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988). Although the instruction in this case was accompanied by a narrowing provision, Frye argues that the limiting language does not meet the standards required by Maynard and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64L.Ed.2d 398 (1980).5 Thus, Frye contends that this instruction, as given, did not provide adequate guidance to the jury in limiting the circumstances in which a death sentence is warranted.
B.
20
As pointed out above, both of the constitutional claims asserted by Frye have been adjudicated on their merits by the North Carolina state courts. Accordingly, we review his 28 U.S.C. § 2254(d) petition under the standards recently enunciated by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000). Under § 2254, as interpreted by Williams, we are precluded from granting habeas corpus relief unless we find the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. at 1518. Thus Frye can only secure relief by demonstrating: (1) the state court decision was contrary to, or an unreasonable application of, federal law that (2) was clearly established.
21
At the threshold, we must consider whether Frye's claims are premised on "clearly established Federal law." The first claim in Frye's petition -ineffective counsel -is certainly based on clearly established law, notably Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that, for a conviction to be invalidated because of ineffective assistance, the defendant must show that "particular errors of counsel were unreasonable [and that those errors] actually had an adverse effect on the defense." Id. at 693. Williams involved facts somewhat similar to those here, i.e., failure to present mitigation evidence. In Williams, the petitioner argued that his claim was premised on Strickland, and it thus satisfied the requirement of being based on clearly established federal law. The Supreme Court agreed, observing that the question of whether the petition fell under clearly established law was "easily answered." Williams, 120 S. Ct. at 1511. This observation applies to Frye's ineffective assistance claim as well.
22
Frye's second claim -the unconstitutional instruction -is based on the Supreme Court's decision in Shell v. Mississippi, 498 U.S. 1 (1990), and on a line of related authorities. Although the challenged instruction in Frye's case is similar to the one held to be unconstitutional in Shell, the instruction under challenge here contained a limiting provision that, the State argues, cures the Shell problem. While we must determine whether the State's position has validity, this second claim of Frye's petition is also governed by clearly established law enunciated by the Supreme Court.
23
Our conclusion that Frye's claims are premised on clearly established federal law, however, merely allows us to continue our inquiry. Even though Frye's petition is properly premised on errors of clearly established federal law, we may not grant habeas corpus relief merely because we conclude "that the relevant state-court decision applied [such law] erroneously or incorrectly." Rather, the state court's "application must also be unreasonable" in order for us to grant the writ.6 Williams, 120 S. Ct. at 1522 (emphasis added). We are cognizant of, and we are bound to apply, the Williams reasonableness standard as we analyze and consider the claims made in this proceeding.
III.
A.
1.
24
Frye asserts that his counsel was constitutionally ineffective for failing to adequately investigate and present mitigating evidence to the jury. His claim is primarily based on his assertion that the holding in Williams, supra, is controlling in his case. In Williams, the Court held defense counsel's performance deficient for failing to adequately prepare for the sentencing phase of a murder trial. We, however, are able to identify controlling factual distinctions that doom Frye's claims. In Williams, for example, preparations were not even begun until a week before trial. And when counsel finally prepared the defense, they purposely ignored evidence of the"petitioner's nightmarish childhood, not because of any strategic calculation, but because they incorrectly thought state law barred access to such records[.]" Williams, 120 S. Ct. at 1514.
25
Another important factor distinguishing this case is that Frye adamantly refused to permit his lawyers to contact his family members or to engage their services in securing mitigation evidence. In Williams, the prisoner's counsel failed to gather the required evidence because of professional negligence, while in this situation Frye personally stymied his lawyers' efforts. As the Supreme Court concluded in Strickland, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland, 466 U.S. at 691.
26
Based on Frye's refusal to allow himself or his family members to participate in the development or presentation of mitigation evidence, Frye's counsel came to the reasonable conclusion that attempting to find such evidence would be fruitless. Simply because a defendant objects to the development of evidence, however, does not necessarily absolve his lawyers from gathering that evidence. The Sixth Circuit, in a situation involving failure to present adequate mitigation evidence, observed that "reluctance on [the defendant's] part to present a mental health defense or to testify should not preclude counsel's investigation of those potential factors." Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000). Similarly, the Eleventh Circuit has found error when defendant's counsel "acquiesced in [the defendant's] defeatism without knowing what evidence [the defendant] was foregoing." Blanco v. Singletary, 943 F.2d 1477, 1501 (11th Cir. 1991). See also Emerson v. Gramley, 91 F.3d 898, 908 (7th Cir. 1996).7
2.
27
The controlling distinction in this case, however, is that Frye not only flatly forbade his attorneys from involving his family in investigating his background, but that his defense counsel also took numerous alternative steps to prepare for and present evidence of Frye's personal history. Unlike the cases arising from the Sixth and Eleventh Circuits, supra, this is not a situation where counsel completely gave up in response to reluctance or defeatism that ambiguously telegraphed the client's uninformed wishes. Frye gave repeated and explicit instructions to his lawyers about not contacting or involving family members. Nonetheless, counsel convinced him to go to Dorothea Dix Hospital for a psychological evaluation.8 They then hired Dr. Noble to examine their client and present evidence to the sentencing jury. These steps were a logical -and indeed thorough -response to Frye's continued insistence that he did not want his family members "to assist in forming mitigating factors[.]" MAR Hearing at 6. As the MAR court concluded, defense counsel painstakingly informed Frye of the consequences of not involving family members in the mitigation stage. Id. Frye, however, refused to accede to the warnings and advice of his lawyers. And it is not our role to second-guess the competence of counsel in these circumstances. Fisher v. Lee, 215 F.3d 438, 447 (4th Cir. 2000); Eaton v. Angelone , 139 F.3d 990, 994 (4th Cir. 1998).
28
This is simply not a case involving professional negligence or lack of attention on the part of counsel. We instead perceive this to be a situation where two court-appointed lawyers endeavored to do their best, under difficult circumstances interposed by their client. Frye's counsel, as a result of their investigation, knew that Frye had suffered from serious child abuse and neglect, and they introduced evidence in that connection -in the most effective way possible under the circumstances. However, Frye now claims that the method of introducing the evidence -through Dr. Noble -was constitutionally inadequate, in part because Dr. Noble was not presented with sufficient background information about Frye. In this regard, Frye relies on our decision in McCarver v. Lee, 221 F.3d 583, 595 (4th Cir. 2000), where we concluded that "it is sound and reasonable trial strategy to provide all available information" to an expert psychological witness.
29
Frye's reliance on McCarver, however, is misplaced, and he overstates its relevance in this instance. While it may be "reasonable" to provide an expert witness with all available information, we did not hold in McCarver that it is per se"unreasonable" to fail to provide the expert with such information. Importantly, Frye's attorneys simply did not possess all the relevant information, and they were not privy to it, because of their client's steadfast refusal to allow them to complete a full investigation.9 Significantly, however, counsel provided Dr. Noble with a "stack" of documents from Dorothea Dix Hospital, which was all the "available information" they were able to provide while honoring their client's explicit instructions.
30
Dr. Noble testified at the MAR hearing that his work in preparing for trial was constrained by the lack of time and paucity of background material, and that he was unable to testify as convincingly as he otherwise might have. However, he gave no indication, either at trial or at the MAR hearing, that he had been unable to render a competent opinion. Indeed, at the MAR hearing, he testified that supplementary materials concerning Frye's background (which Frye's trial counsel did not uncover and therefore did not present to Dr. Noble before his testimony) had "not really altered[his] diagnosis[.]" J.A. 418.
31
The purpose of Frye's pretrial meeting with Dr. Noble was to develop additional evidence and history, which Frye was unwilling to allow his lawyers to uncover by way of interviews with his family. Frye only agreed to meet with Dr. Noble on the insistence of his counsel, which led to a compromise -between Frye and his lawyers -that Frye would accept expert testimony as an alternative way of presenting mitigating evidence. In these circumstances, any diminution in the effectiveness of Dr. Noble's testimony did not result from his counsel's lack of competence, but emanated directly from Frye's refusal to follow their advice.
32
Notwithstanding the complications hindering its development, Dr. Noble's testimony was effective, as demonstrated by the jury's acceptance of thirty-four of the fifty-nine mitigating circumstances. Whether Dr. Noble could have been more effective if corroborated by other evidence is speculative. We must, under the law, judge the reasonableness of the lawyers' conduct as of the time their actions occurred, not the conduct's consequences after the fact. Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."); see also Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991) ("When examining ineffective assistance claims, however, we must appreciate the practical limitations and tactical decisions that trial counsel faced."). In this situation, the presentation of mitigation evidence through Dr. Noble was a reasonable solution to the dilemma faced by Frye's lawyers.
3.
33
In our analysis of the ineffective assistance claim alleged by Frye, we are mindful that in North Carolina -as in most jurisdictions -the client must be permitted by his lawyers to control his own defense, as long as he is "fully informed" in making his decisions. See State v. White, 508 S.E.2d 253, 273 (N.C. 1998), cert. denied, 527 U.S. 1026 (1999); State v. Wilkinson, 474 S.E.2d 375, 382 (N.C. 1996) ("The attorney is bound to comply with her client's lawful instructions, `and her actions are restricted to the scope of the authority conferred.'") (quoting People v. Wilkerson, 463 N.E.2d 139, 14344 (Ill. App. Ct. 1984)); State v. Ali, 407 S.E.2d 183, 189 (N.C. 1991).
34
Frye's attorneys took reasonable steps to comply with their professional responsibilities in this regard. Frye's decision not to allow his family to aid in mitigation was unchanged after repeated discussions where his lawyers explained their displeasure with his position, and the consequences thereof. The MAR court specifically found that:
35
Mr. Portwood engaged in several conferences with the defendant wherein he sought to convince the defendant to permit the defense to produce mitigating evidence. Also, Mr. Portwood tried to convince the defendant to permit fam ily members to testify.
36
MAR Hearing at 6. There is simply no basis for us to conclude that this finding of fact is unreasonable. Williams , 120 S. Ct. at 1522. Indeed, this finding is fully supported in the record, and it is uncontroverted. Were we to hold that Portwood and Cummings rendered ineffective assistance, despite their repeated attempts to have Frye change his mind on presenting mitigation evidence, we would be forcing defense lawyers in future cases to choose between Scylla and Charybdis.10 If the lawyer facing a reluctant client accedes to the client's requests, he might be constitutionally ineffective. On the other hand, if the lawyer defies his client's wishes, and in so doing presents evidence that harms the client, he might render ineffective assistance and commit malpractice as well.
B.
37
Frye also contends, in connection with his ineffective assistance claim, that Portwood's asserted alcohol dependency rendered him incapable of providing constitutionally effective assistance up to and during the sentencing phase of the trial. We are indeed troubled by Portwood's acknowledgment of a decades-long routine of drinking approximately twelve ounces of rum each evening. However, the district court found that Portwood "never consumed alcohol during the work day and never performed any work on the case when he had consumed alcohol." Frye, 89 F. Supp. 2d at 701. We agree with our sister circuits that, in order for an attorney's alcohol addiction to make his assistance constitutionally ineffective, there must be specific instances of deficient performance attributable to alcohol. See Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995); Cabarello v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Berry v. King , 765 F.2d 451, 454 (5th Cir. 1985); Young v. Zant, 727 F.2d 1489, 1492-93 (11th Cir. 1984). In this case, there is no evidence of specific instances of defective performance caused by Portwood's alcohol abuse.11 Furthermore, it is significant that Frye was not represented by Portwood alone -he had the benefit of two court-appointed lawyers assisting in his defense. And no attack is made on the professional capacity of Mr. Cummings. See Lopez-Nieves v. United States, 917 F.2d 645, 647 (1st Cir. 1990) ("[T]he presence of a second attorney during the proceedings seriously undermines appellant's claim of ineffective assistance of counsel.").
C.
38
Under the Strickland standard, the performance of Frye's lawyers was simply not deficient, and the sentencing phase defense was conducted reasonably. Moreover, Frye is unable to point to a single instance where Portwood's consumption of alcohol affected his performance. We have carefully considered all of Frye's contentions in this regard, and we are unable to conclude that the legal assistance he received was constitutionally defective.12
IV.
39
Frye also claims that the jury instruction relating to a statutory aggravating circumstance was unconstitutionally vague and overbroad. This instruction was given with respect to the jury's determination of whether the prosecution had established the aggravating circumstance that the Childress murder was "heinous, atrocious, or cruel" under N.C. Gen. Stat. § 15A-2000(e)(9) (1999).13
40
As we have pointed out, the first paragraph of the challenged instruction bears similarities to the instruction found to be unconstitutional in Maynard, 486 U.S. at 363-64. The Maynard instruction, like this one, was given pursuant to state law which permitted imposition of a death sentence if the murder was "especially heinous, atrocious, or cruel." In Maynard, the Court held the instruction overly vague, and therefore unconstitutional, because it provided no meaningful basis to distinguish a murder warranting the death penalty from those in which the ultimate punishment should not be imposed. 486 U.S. at 363-64. See also Godfrey, 446 U.S. at 428-29.
41
Likewise, we have previously held a North Carolina instruction on the statutory aggravating circumstance of "especially heinous, atrocious, or cruel" to be, standing alone, unconstitutionally vague. Smith v. Dixon, 14 F.3d 956, 974 (4th Cir. 1994) (en banc). There is, however, a controlling distinction here -the instruction given to Frye's jury did not stand alone. A statutory aggravating circumstance that is otherwise vague may be constitutional if it is accompanied by an appropriate limiting provision providing sufficient guidance to the jury. Fisher v. Lee, 215 F.3d at 457-58. Indeed, the Supreme Court of North Carolina, in Frye's direct appeal, held that the limiting explanation in this case -defining the level of brutality or torture to the victim -provided sufficient guidance to the jury. Frye, 461 S.E.2d at 685. We are unable to disturb the state court's finding in this regard, since it was not contrary to, or an unreasonable application of, governing Supreme Court precedent.
V.
42
We find no reason to upset the carefully considered judgments of the courts that have considered Frye's petitions for post-conviction relief. Neither the MAR court's conclusion that Frye's lawyers were not constitutionally ineffective, nor the Supreme Court of North Carolina's conclusion that the sentencing instruction was not unconstitutionally vague, constitutes an unreasonable application of governing legal principles enunciated by the Supreme Court of the United States. The district court therefore properly granted summary judgment to the State. We must decline to issue Frye a certificate of appeal ability, and we dismiss his appeal.
43
CERTIFICATE OF APPEAL ABILITY DENIED AND APPEAL DISMISSED
Notes:
1
Pursuant to 28 U.S.C. § 2253(c)(2), "a certificate of appeal ability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."
2
North Carolina law provides that"[u]pon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment." N.C. Gen. Stat. § 15A-2000(a)(1) (1999).
3
North Carolina law, particularly N.C. Gen. Stat. § 15A-2000 (1999), provides a full list of "aggravating circumstances" and a partial list of "mitigating circumstances" that a jury may consider in deciding whether to recommend a death sentence for a defendant convicted of a capital felony. If the jury finds that one or more aggravating circumstances exist and outweigh mitigating circumstances, it may recommend a death sentence. As explained infra, of the fifty-nine mitigating circumstances presented in this case by Frye's lawyers, thirty-four were found by the jury to exist. These thirty-four included, for example:
38. That the Defendant is [a] victim of child abuse syndrome.
44. The Defendant was whipped repeatedly by his foster father with a bullwhip.
55. The Defendant has been a drug abuser since his teens.
J.A. 129-36.
4
The two aggravating circumstances found by the sentencing jury were: (1) the Childress murder was committed during an aggravated robbery; and (2) it was "especially heinous, atrocious and cruel." See Part IV, infra.
5
The limiting provision of the challenged instruction in this case provides as follows:
For this murder to have been especially heinous[,] atrocious or cruel, any brutality which was involved in it must have exceeded that [which] is normally present in any killing. Or this murder must have been a [conscienceless] or pitiless crime which was unnecessarily torturous to the victim.
6
On the interpretation of the crucial word "unreasonable," the Court counseled that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 120 S. Ct. at 1522.
7
Furthermore, the American Bar Association's guidelines for defense counsel in death penalty cases provide that "investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered." American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1.c (1989). While practice advisories such as those published by the ABA are "guides to determining what is reasonable," they cannot always "take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Strickland, 366 U.S. at 688.
8
Frye now argues that his position changed after the Dix report was prepared, and that counsel then had a duty to investigate notwithstanding his earlier instructions. The problem with this argument, raised in Frye's reply brief, is that it is contradicted by the facts reasonably found by the state court. MAR Hearing at 6 ("The defendant maintained his position that he did not want his family members . . . to assist in forming mitigating factors throughout the trial up to and including the sentencing phase.") (emphasis added).
9
Frye asserts additional authority that, as a general proposition, it constitutes ineffective assistance not to provide expert psychological witnesses with background material. See Wallace v. Stewart, 184 F.3d 1112 (9th Cir. 1999); Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995). These decisions are inapposite, inasmuch as they do not involve situations where the defendant insisted that his family members not be involved in "forming mitigating factors."
10
In Homer's Odyssey, Odysseus is presented with a most difficult choice: he must sail through straits that are bracketed by two monsters, and he must choose a course which leads closer to one or the other. One choice, Scylla, is a six-headed creature who is certain to eat six of his crewman, while the other, Charybdis, spews forth a whirlpool that poses an uncertain risk to the entire ship and crew. Odysseus, following the advice of the sorceress Circe, chose Scylla, and six of his men perished.
11
Indeed, with respect to Portwood's alcohol dependency, Cummings testified at the MAR hearing that he "never saw Mr. Portwood's professional demeanor or behavior affected by the consumption of alcohol" and that he was a "diligent, hard-working lawyer working for the defendant[.]" J.A. 742.
12
Having concluded that the performance of Frye's counsel was not deficient, we need not decide whether Frye was prejudiced by the errors he alleged. Strickland, 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one."). See also Chandler v. United States, 218 F.3d 1305, n.44 (11th Cir. 2000); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998).
13
The entirety of the sentencing instruction on the aggravating circumstance of "heinous, atrocious, or cruel," embodied in § 15A-2000(e)(9), was as follows:
Aggravating factor number two. Was this murder especially heinous[,] atrocious or cruel? In this context heinous means extremely wicked or shockingly evil. Atrocious means outrageously wicked and vile. And cruel means designed to inflict a high degree of pain with utter indifference to and even enjoyment of the suffering of others. However, it is not enough that this murder be heinous[,] atrocious or cruel as these terms have just been defined. This murder must have been especially heinous, atrocious or cruel, and not every murder is especially so. For this murder to have been especially heinous[,] atrocious or cruel, any brutality which was involved in it must have exceeded that [which] is normally present in any killing. Or this murder must have been a [conscienceless] or pitiless crime which was unnecessarily torturous to the victim.
J.A. 97-98.
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446 So.2d 200 (1984)
Maria Luisa RIVERA, Appellant,
v.
RANDLE EASTERN AMBULANCE SERVICE, INC., Hugh Randolph Caines, Jr., and Fidelity and Casualty of New York, Appellees.
No. 82-2548.
District Court of Appeal of Florida, Third District.
February 21, 1984.
Rehearing Denied March 28, 1984.
*201 Albert P. Rosillo and David I. Schlosberg, Miami, for appellant.
Gerald E. Rosser, Miami, for appellees.
Before HENDRY, HUBBART and JORGENSON, JJ.
JORGENSON, Judge.
Maria Rivera and the estate of Juan Rivera, her late husband, filed an action against Randle Eastern Ambulance Service seeking damages for the wrongful death of Juan and for the personal injuries suffered by Maria as a result of Randle Eastern's alleged negligence. The wrongful death claim was settled and the case proceeded to trial on Maria's personal injury claim which, in large part, was based upon a theory of mental distress. At the close of all the evidence the trial court granted Randle Eastern's motion for a directed verdict. For the reasons which follow we reverse and remand for further proceedings consistent with the views expressed herein.
Mr. and Mrs. Rivera were seated on a bus bench waiting for the next bus when a Randle Eastern ambulance ran a red light, collided with another vehicle, careened across the intersection and smashed into the bus bench, shattering it. The impact threw Mrs. Rivera backwards, injuring her head. As Mr. Rivera lay pinned beneath the ambulance, bleeding profusely, Mrs. Rivera screamed for someone to come to his aid. Mr. Rivera died a short time later at Jackson Memorial Hospital.
The trial court, relying on Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA), review denied mem., 407 So.2d 1005 (Fla. 1981), directed a verdict in favor of Randle Eastern because of
the lack of sufficient medical evidence or sufficient legal evidence to go to the jury to determine a jury verdict on the issue of whether Maria Luisa Rivera's mental injuries were due to her own experience by being involved in the accident or if such injuries were the result of seeing her husband lying there (at the scene of the accident) bleeding to death.
We believe that this case is controlled not by Selfe but by National Car Rental Systems v. Bostic, 423 So.2d 915 (Fla. 3d DCA 1982). In Bostic, a case involving a plaintiff who was injured in an automobile accident in which his mother was killed, this court held that it was not error for the fact finder to receive evidence regarding the emotional pain and suffering felt by the plaintiff when his mother was killed in his presence. See id. at 917. The court in Selfe limited the plaintiff's recovery to mental distress caused by the plaintiff's own injury or by the traumatic event considered in relation to the plaintiff alone. See Selfe at 350. To the extent that Selfe and Bostic cannot be harmonized we reject Selfe and adhere to Bostic.
Viewing, as we must, the evidence in a light most favorable to the party against whom the verdict is directed, and this state's inexplicable affinity with the impact *202 rule having been satisfied,[1] we conclude that Mrs. Rivera is entitled to a jury determination as to whether she may be compensated for her mental pain and suffering. See Bostic.
Reversed and remanded for further consistent proceedings.
NOTES
[1] We agree with Judge Pearson's special concurrence in Bostic, particularly his statement "that the reasons for the [impact] rule have been thoroughly repudiated and that the rule should be abolished and replaced, as it has been in other jurisdictions, by some more enlightened rule," id. at 918 (citations omitted).
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495 F.2d 1370
U. S.v.Dixon
73-1790
UNITED STATES COURT OF APPEALS Fourth Circuit
4/18/74
1
D.Md.
AFFIRMED
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33 S.W.3d 176 (2000)
Connie KREATE; Vivian Colemire; and E. Hanlin Bavely, Trustee, Appellants,
v.
DISABLED AMERICAN VETERANS, Appellee.
No. 1999-CA-001846-MR.
Court of Appeals of Kentucky.
November 22, 2000.
*177 Steven L. Schiller, Newport, KY, for Appellant.
John O. Sheller, Smith and Smith, Attorneys, Louisville, KY, for Appellee.
Before BUCKINGHAM, KNOPF, and SCHRODER, Judges.
OPINION
KNOPF, Judge:
Vivian Colemire, Connie Kreate, and Kreate's successor in interest, E. Hanlin Bavely,[1] appeal from a July 7, 1999, order of Campbell Circuit Court acknowledging Colemire and Kreate's abandonment of age-discrimination-based claims against their former employer, the appellee, Disabled American Veterans (DAV). The July 7th order rendered final and appealable an earlier dismissal of similar claims by Colemire and Kreate based on disability-discrimination.[2] The appellants' disability-based claims are the subject of this appeal. The trial court ruled that DAV is exempt from the provisions of Kentucky's Civil Rights Act that forbid disability-based discrimination by employers. The appellants insist that DAV is not exempt. For the following reasons, we agree with the trial court.
Colemire and Kreate allege that they are disabled individuals as that term is used in Kentucky's Civil Rights Act, KRS Chapter 344 (the Act). They further allege that, as of the beginning of 1998, they had been employed "for a considerable period" at the DAV facility in Cold Spring, Campbell County, Kentucky, where they processed contributions mailed to the organization. In 1998, they claim, the manager of the Cold Spring facility reorganized the office and moved them from the jobs they had long performed to jobs their disabilities made difficult if not impossible. When they allegedly objected to this change in the conditions of their employment, they were advised to quit their jobs and to apply for disability benefits. Meanwhile, their former positions were given to newly hired workers who were younger than the appellants and not disabled. Denied accommodation for their disabilities, Colemire and Kreate were compelled to quit their jobs. Soon thereafter they brought this suit.
The appellants' complaint seeks damages and injunctive relief pursuant to KRS 344.040, which makes it an unlawful practice for an employer
[t]o fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, ... because the person is a qualified individual with a disability.
As noted above, DAV responded to the complaint by denying that it is an "employer" in these circumstances under the Act. KRS 344.030(2), upon which DAV relies, provides in pertinent part as follows:
for purposes of determining discrimination based on disability, employer means a person engaged in an industry affecting commerce who has fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, and any agent of that person,.... For the purposes of determining discrimination based on disability, employer shall not include:
....
(b) A bona fide private membership club (other than a labor organization) that is exempt from taxation under Section 501(c) of the Internal Revenue Service Code of 1986.
*178 There is no dispute that DAV enjoys a tax exemption under Section 501(c). The trial court agreed, furthermore, that DAV is a "bona fide private membership club," and thus concluded that it is not subject to suits, such as Colemire and Kreate's, for disability discrimination. It is from this determination that Colemire and Kreate appeal.
As a preliminary matter, we note that, although DAV tendered its motion to dismiss pursuant to CR 12, it supplemented its motion with affidavits and other matters outside the pleadings. The motion to dismiss effectively became one for summary judgment, therefore, and we shall fashion our review accordingly. CR 12.02. Summary judgments involve no finding of disputed fact and are reviewed without deference to the conclusions of the trial court. As did the trial court, this Court asks whether material facts are in dispute and whether the party moving for judgment is clearly entitled thereto as a matter of law. Under this state's rules of practice, summary judgments are to be granted cautiously; they are appropriate only when it appears impossible for the non-movant to prove facts establishing a right to relief or release, as the case may be. Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
Because we are called upon to construe a statute, it may also be well to note at the outset that guiding our construction is the general rule that we are to give effect to the intent of the legislature as expressed in the statutory language and context and revealed by the evil the law was intended to remedy. Sisters of Charity v. Raikes, Ky., 984 S.W.2d 464 (1998); Democratic Party of Kentucky v. Graham, Ky., 976 S.W.2d 423 (1998); Wathen v. General Electric Company, 115 F.3d 400 (6th Cir.1997).
The statutory context is particularly important in this case because the Kentucky Civil Rights Act has not been written on a blank slate, but has been based extensively on federal civil rights law. Indeed, "[e]xecution within the state of the policies embodied [in federal civil rights legislation]" is an express purpose of our Act. KRS 344.020(1). Federal legislation has provided not only much of the substance of our Act, but also much of its form. An exemption like the one at issue in this case for "bona fide private membership clubs" appears in Title VII of the Civil Rights Act of 1964. 42 U.S.C.2000e(b). The same exemption is included in the Americans With Disabilities Act of 1990. 42 U.S.C. § 12111(5). This latter act seems to have been the basis of our statute's exemption, which first became effective in 1992. Because there is apparently no Kentucky appellate decision construing KRS 344.030(2)(b), and because of the General Assembly's intent that our law comport with federal law, we shall turn to the federal-court decisions that have applied the "private membership club" exemptions appearing in the federal statutes.[3]
*179 In Quijano v. University Federal Credit Union, 617 F.2d 129 (5th Cir.1980), for example, a former employee alleged that a credit union had injured her as a result of its racially discriminatory hiring practices. The court was asked to decide whether the federally chartered, tax exempt credit union was a "private membership club" under Title VII. The court duly began by trying to fit the ordinary meaning of the phrase to its statutory context:
The sole issue presented for review is whether the district court erred in granting summary judgment for the University Federal Credit Union holding that the credit union was not an employer within the language of section 701(b)(2) of Title VII. The proposition which guides our analysis of this question is that "Title VII of the Civil Rights Act of 1964 is to be accorded a liberal construction in order to carry out the purposes of Congress to eliminate the inconvenience, unfairness and humiliation of racial discrimination." Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 425 (8th Cir.1970). Accord, Rogers v. EEOC, 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). The statute's definition of "employer" is entitled to similar liberal construction. Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977).
....
Webster's Third International Dictionary of the English Language offers the following definition at page 430:
cluban association of persons for social and recreational purposes or for the promotion of some common object (as literature, science, political activity) usually jointly supported and meeting periodically, membership in social clubs usually being conferred by ballot and carrying the privilege of use of the club property.
The common understanding of the term "club" is reinforced by Webster's definition. The adjectives "bona fide", "private" and "membership", included in the statute serve to indicate the more limited type of club sought to be exempted by the narrow exception in the statute. These modifiers suggest that, in order to be exempt from coverage by Title VII, an association of persons for social or recreational purposes or for the promotion of some common literary, scientific or political objective must also be legitimate (as opposed to sham), private (as opposed to public) and must require some meaningful conditions of limited membership.
Id. at 130-131 (footnotes omitted).
In holding that the credit union was not entitled to the private club exemption, the Fifth Circuit emphasized the credit union's narrowly mercantile purpose. The court likened the credit union to automobile clubs that had been found non-exempt under Title VII in other cases. The members of such associations, the court noted, did not commingle or seek from their associations a social outlet and were not selected for membership on that basis. Rather, they had banded together, in the court's words, almost solely for the purpose of achieving a sort of volume discount in the acquisition of certain services. Although this was a legitimate purpose, although the credit union was indeed tax exempt, and although the credit union's membership was plainly limited in the sense of being offered only to the occupants of certain jobs, these factors did not overcome, the court ruled, the absence of social intercourse from the credit union's purposes and practices. Such intercourse, the court suggested, is at the heart of what is ordinarily understood as a private club and is one of the few interests fundamental enough to justify an exception from Congress's otherwise clear intention to eradicate invidious discrimination.[4]
*180 Similarly, in Fesel v. Masonic Home of Delaware, Inc., 428 F.Supp. 573 (D.Del.1977), the Court ruled that a nursing home affiliated with a masonic lodge was not a club and so was not exempt from Title VII. Although its "membership" (i.e. its residents) was strictly limited to Masons and their spouses, the home principally provided housing and health-care services, not the sort of sociability ordinarily associated with a private club. See also Mills v. Fox, 421 F.Supp. 519 (E.D.N.Y.1976) (nursing home not entitled to exemption because is did not resemble what is ordinarily understood as a private club). And in Willson v. Association of Graduates of the United States Military Academy, West Point, 946 F.Supp. 294 (S.D.N.Y.1996), the court rejected a summary judgment motion by an alumni association facing discrimination charges because the association's claim that it was entitled to the private club exemption had been countered by plausible allegations that the association was a mere fund-raising organ and not a bona fide club whose primary purposes included social intercourse.
Sociability was also a crucial factor in Equal Employment Opportunity Commission v. The Chicago Club, 86 F.3d 1423 (7th Cir.1996). In that case, the EEOC sought to compel one of Chicago's historic clubs to comply with Title VII's record-keeping and reporting requirements. Against the club's assertion of the exemption, the EEOC noted that the association's membership is fairly large, (in excess of 1200), and through a liberal guest policy, club facilities are available to a substantial portion of the public. These facts, the EEOC asserted, belied the club's claim to be private.
The court strongly disagreed. It regarded the appellee's practices and purposesits providing for its members, as one of its principal functions, dining facilities and meeting spaces; its limiting new memberships to existing members' acquaintances who are nominated and elected by existing members; and its extending guest privileges only to those properly sponsored by a memberas plainly geared toward private social intercourse. Indeed, the court chided the EEOC for seeking "to change the rules of the game so as to facilitate [its] implementation of its ambitious agenda for oversight of private clubs under Title VII." 86 F.3d at 1433.
In upholding the Chicago Club's claimed exemption from Title VII, the Seventh Circuit recognized the factors potentially indicative of that status quoted above from Quijano and cited these factors from an EEOC policy statement:
(1) the extent to which it limits its facilities and services to club members and their guests;
(2) the extent to which and/or the manner in which it is controlled or owned by its membership; and
(3) whether, and, if so, to what extent and in what manner it publicly advertises to solicit members or to promote the use of its facilities or services by the general public.
*181 Id. By all these standards, the court believed, the Chicago Club is private. The EEOC conceded the second and third factors: the club was completely owned and controlled by its members, and it did not solicit either members or guests by public advertisement. As for the first factor, size alone, the court stated, does not determine an association's status. Rather, the court opined,
selective membership practices are the essence of private clubs. Decisions concerning a club's membership expansion are to individual members significant as their own decisions to join the club. One presumably affiliates with a private club because of the community of interests or agendas shared by the membership. The integrity of those common interests or agendas has much at stake in the membership selection process, and membership participation in the selection of new members is a crucial attribute of a private club. By participating in the selection process, members guarantee that the interests they share with other members will continue to bind the membership in the future.
86 F.3d at 1436. The Seventh Circuit concluded that the Chicago Club satisfied this selective membership requirement. "The undisputed facts suggest that the members of the Club exercise complete autonomy in the selection process." Id. This discussion by the Court in Chicago Club, concerning "selective membership" seems to us again to be based on the fundamental interest people have in intimate social contact. A "private club" is one that limits its membership to further such social intercourse.
We have referred at some length to these precedents to underscore both the importance of the issue raised by this appeal and its difficulty. As these cases show, fundamental interests are implicated on both sides. How best to characterize and coordinate them is by no means clear. As we have indicated in our discussion of these cases, it seems to us that exemption from federal civil rights laws has been recognized only when the membership association has had as one of its primary purposes genuine social intercourse among its members. That purpose, furthermore, must be meaningfully reflected in the method by which members are chosen and guests admitted to the club's facilities. This requirement comports with the ordinary meaning of the statutory term "club" as well as with that term's anti-discrimination context, which clearly indicates that the exemption is to be a narrow one.[5] This is not to say that an exempt private association may not have purposes other than sociality. Distinctly private clubs form around a vast array of interests and enthusiasms from the most narrowly personal to the political. It is to say, however, that sociality must remain a principal purpose of the association relative to any others, particularly mercantile ones.
The appellants insist that DAV's purposes are not appropriately private and geared toward sociality to exempt it from compliance with KRS 344.040. They note that DAV is a federally chartered corporation, whose purposes and membership are dictated by its founding legislation. 36 U.S.C. §§ 50301 et seq. (formerly 36 U.S.C. §§ 90 et seq.). DAV is dedicated, among other purposes, "to advance the interests, and work for the betterment, of all wounded, injured, and disabled American veterans." 36 U.S.C. § 50302(3). To further that aim, DAV has established national and regional offices that provide services to all veterans and all disabled veterans, whether members of DAV or not. Its *182 total membership exceeds 1,000,000, and admission to DAV, while restricted to individuals disabled in the line of duty during time of war in the service of the United States armed forces or its allies,[6] is not subject to the sort of member control discussed in Chicago Club, supra, which was based on existing members' subjective estimates of the prospective member's compatibility. Its membership, rather, may perhaps be characterized as open to anyone in the general public who has come to occupy a particular role, like the credit union membership discussed in Quijano v. University Federal Credit Union, supra.
Of particular significance, appellants assert, in demonstrating DAV's essentially public nature is the fact that its federal income-tax exemption derives not from the section of the tax code that refers specifically to "clubs,"[7] but rather from the section exempting "[c]ivic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare[.]" 26 U.S.C. § 501(c)(4). Moreover, appellants note, donations to DAV are tax deductible by the donor, a deduction that would not exist if DAV did not put those donations to public uses. In short, appellants contend, DAV is to a large extent devoted to fund raising and to the provision of public service, and so, like the nursing home in Fesel v. Masonic Home of Delaware, Inc., supra, it should not be deemed exempt from the civil rights laws.
We agree with appellants that DAV's interest-group and public-service purposes tend to weigh against its claimed exemption as a private club. On the other hand, however, DAV does serve its members' interest in sociability. True, its membership is large and is selected on an objective basis. The military experience admitting one to membership to the DAV, however, unlike the employment relationship in Quijano, is profoundly meaningful for almost all who go through it. It defines, it seems to us, not simply an interest group, but a group for whom a very special social intimacy is possible. Encouragement of such intimacy, furthermore, is among DAV's express purposes:
The purposes of the corporation are
...
(5) to stimulate a feeling of mutual devotion, helpfulness, and comradeship among all wounded, injured, and disabled veterans.
This purpose is given practical expression in the local chapters of the DAV, which serve as clubs for their members in much the same way the Chicago Club does for its members.
Is the DAV, then, the institutional means for individuals with common economic interests to band together, like the credit union in Quijano? Is it a public-service provider, like the nursing homes in Fesel and Mills? Or is it a private club serving its members' interest in comradeship, and sociality, like the membership association in Chicago Club? The problem is that the DAV is all of these and is each of them to a significant degree. As discussed above, however, a private association's public activities need not disqualify it from exemption provided that the association's structure remains meaningfully private and that private sociability remains, in practice as well as theory, one of the association's core purposes. We are persuaded that DAV satisfies this test. Notwithstanding DAV's significant public purposes and activities, its core purpose, embodied in its many local chapters, is to provide social opportunities for its members. Its membership, moreover, is genuinely limited in a manner calculated to further that private purpose. The trial court did not err, therefore, by concluding that DAV, as a bona fide private membership club, is exempt from KRS 344.040's provision against disability discrimination.
*183 Given this conclusion, a second issue raised by Kreate needs only brief comment. Between the time she left her employment with DAV and when she filed this suit, Kreate petitioned for relief under Chapter 7 of the Bankruptcy Code. 11 U.S.C. §§ 701 et seq. On her petition she listed as an asset her potential cause of action against her former employer. Soon after this suit was commenced, DAV moved to have Kreate dismissed as a party on the ground that the bankruptcy estate had become the only entity with standing to assert Kreate's claim. The trial court agreed with this contention and as part of its April 21, 1999, order granted DAV's motion. Kreate has appealed from that ruling.
She maintains that some of the relief to which she would be entitled were her cause of action to succeed (future damages, for example) would not be property of her bankruptcy estate. Her interest in the cause of action has thus not been completely subsumed by the bankruptcy, she argues, and consequently the trial court erred by ruling that she lacks standing.
Because the dismissal of Kreate's cause of action has rendered moot this question of her standing, this latter issue is not subject to our review. Sharp v. Robinson, Ky., 388 S.W.2d 121 (1965); Civil Service Commission v. Tankersley, Ky., 330 S.W.2d 392 (1959). Therefore, we must decline to address it.
In sum, although it is certainly ironic that an association of disabled persons should find itself seeking refuge from a law forbidding disability-based discrimination, we are persuaded that DAV has a right to the refuge it seeks. The disability-based discrimination claims brought by Colemire and Kreate do not apply, according to KRS 344.030(2), to bona fide private membership clubs. Although DAV is federally chartered, has become a large organization with various tax advantages, and has succeeded in providing important public services to veterans beyond its own membership, DAV, especially through its local chapters, is fundamentally concerned with restoring and enriching the private social lives of its members. Because DAV's principal purpose is strongly geared toward serving its members in this way as a private club, we agree with the trial court that, despite its public activities, it is exempt from Colemire and Kreate's suit.
For these reasons, we affirm the July 7, 1999, order of the Campbell Circuit Court.
ALL CONCUR.
NOTES
[1] Bavely is trustee of Kreate's Chapter 7 bankruptcy estate. Through Bavely the estate asserts an interest in Kreate's cause of action. 11 U.S.C. §§ 701 et seq.
[2] The prior order was entered April 21, 1999, in response to DAV's CR 12 motion to dismiss. Motions for specific findings and to alter or amend that result were denied by order entered June 3, 1999.
[3] Among the materials DAV submitted in support of its motion to dismiss were nine "right to sue" letters from the EEOC to individuals who had filed complaints with that federal agency alleging disability-based discrimination by the DAV. The letters are from the period December 1986 through October 1998, and in each the EEOC dismissed the complaint on the ground that the DAV was exempt from suit under Title VII because it "is a bona fide membership club." Not surprisingly, DAV submits that these dismissals are conclusive of the issue before us. The appellants, on the other hand, would have us disregard these notices because they did not result from a fully adversarial process and because they do not explain why the agency concluded as it did. The import of these notices, we believe, falls between these two extremes. Courts owe some deference to an agency's interpretation of its controlling legislation, but their fundamental duty, even in the administrative context, is to construe pertinent statutes so as to give effect to legislative intent. Delta Air Lines, Inc. v. Commonwealth of Kentucky Revenue Cabinet, Ky., 689 S.W.2d 14 (1985). Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, we are not completely indifferent to the EEOC notices deeming DAV exempt from Title VII, but, as conclusory as these notices are, they provide very little guidance to the construction of KRS 344.030(2) and so are of limited authority.
[4] A similar focus on sociality has informed the cases construing the slightly different private club exemption in Title II of the Civil Rights Act. 42 U.S.C. § 2000a(e). Title II forbids invidious discrimination in places of public accommodation, resort, or amusement. Cf. KRS 344.120. Rotary clubs, Jaycees, Kiwanis clubs, Little League, Boys Clubs, and the Boy Scouts, among others, have all sought exemption from Title II or state-law counterparts on the ground that they are distinctly private membership associations and not public accommodations. In making this distinction courts have looked closely at, among other things, the extent to which the association's purposes and practices are sociable as opposed to commercial or business related. See Board of Directors of Rotary International v. Rotary Club, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474, (1987) (membership association's other purposes sufficiently over shadowed by its business purposes to make it subject, within the United States Constitution, to state public accommodations statute); Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462, (1984) (same); Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir.1993) (membership association's purposes primarily sociable and so not subject to state public accommodations statute); Kiwanis International v. Ridgewood, 806 F.2d 468 (3rd Cir.1986) (same).
[5] Although the distinction does not affect our present analysis, we note that Kentucky's exemption is even narrower than the federal one. It is limited to "discrimination with respect to disability." Whether it is a private membership club or not, therefore, DAV (assuming that it qualifies otherwise as an "employer" under our statute) may not discriminate in its employment practices on the basis of race, color, religion, national origin, sex, or age forty (40) and over.
[6] 36 U.S.C. § 50303(a)(1)(A), (2)(A).
[7] 26 U.S.C. § 501(c)(7).
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539 U.S. 907
Nolingv.Ohio.
No. 02-10109.
Supreme Court of United States.
June 2, 2003.
1
Appeal from the Sup. Ct. Ohio.
2
Certiorari denied. Reported below: 98 Ohio St. 3d 44, 781 N. E. 2d 88.
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In the United States Court of Federal Claims
No. 03-2625C
(Filed: November 18, 2016)
************************
* Spent Nuclear Fuel; Partial
ENTERGY GULF STATES, INC., and * Breach of Contract; Damages;
ENTERGY GULF STATES * Causation; Fuel Characterization
LOUISIANA, L.L.C., * Costs; High-Burn-Up Fuel.
*
Plaintiffs, *
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
************************
Alexander D. Tomaszczuk, Pillsbury Winthrop Shaw Pittman LLP, 1650 Tysons
Boulevard, McLean, VA 22102, for Plaintiffs. Jay E. Silberg, and Clare Cavaliero Pincoski,
Pillsbury Winthrop Shaw Pittman LLP, 1200 17th Street NW, Washington, D.C. 20036, Of
Counsel. L. Jager Smith, Jr., Jager Smith LLC, 1340 Echelon Parkway, Jackson, MS 39213, Of
Counsel.
Benjamin C. Mizer, Robert E. Kirschman, Jr., Allison Kidd-Miller, and Eric P. Bruskin,
U.S. Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben
Franklin Station, Washington, D.C. 20044, for Defendant. Christopher J. Carney, Christopher K.
Wimbush, and Anand R. Sambhwani, U.S. Department of Justice, Civil Division, Commercial
Litigation Branch, P.O. Box 480, Ben Franklin Station, Washington, D.C. 20044, Of Counsel.
Jane K. Taylor, U.S. Department of Energy, Office of General Counsel, 1000 Independence
Avenue, SW, Washington, DC 20585, Of Counsel.
________________________________________________________________________
OPINION AND ORDER
________________________________________________________________________
WILLIAMS, Judge.
This opinion is a continuation of the Court’s prior decision in Entergy Gulf States, Inc. v.
United States, 125 Fed. Cl. 678 (2016). On April 14, 2016, this Court awarded Plaintiffs a
partial judgment of $42,341,604 for site modifications, payroll and materials loaders, and
additional security. Id. at 718. The Court deferred Plaintiffs’ claim for cask loading costs,
pending the decision of the United States Court of Appeals for the Federal Circuit in System
Fuels, Inc. v. United States, 818 F.3d 1302 (Fed. Cir. 2016).
Following the issuance of the Federal Circuit’s decision in System Fuels awarding
storage cask loading costs, this Court entered partial judgment granting Plaintiffs their
uncontested costs for the preparation, packaging, and loading of spent nuclear fuel, and permitted
further briefing on whether fuel characterization costs were encompassed within the System
Fuels ruling. Entergy Gulf States, Inc. v. United States, No. 03-2625C, 2016 WL 5234692, at *1
(Fed. Cl. Sept. 21, 2016).
In System Fuels, the Federal Circuit affirmed the trial court’s award of cask loading costs
including fuel characterization costs, but the trial court had only awarded costs for characterizing
high-burn-up fuel. System Fuels, Inc. v. United States, 120 Fed. Cl. 737, 748-50 (2015) (“ANO
II”), rev’d and remanded, 818 F.3d at 1307. The ANO II trial court was precise in segregating
the processes of loading high-burn-up fuel as opposed to non-high-burn-up fuel and found that
damages for characterizing non-high-burn-up fuel were not warranted because the process of
loading non-high-burn-up fuel into Holtec storage casks was similar to the process of loading
that type of fuel into DOE transportation casks. Because Plaintiffs did not store high-burn-up
fuel during the damages period, Plaintiffs have not established entitlement to damages for fuel
characterization. See ANO II, 120 Fed. Cl. at 748-50.
Findings of Fact1
Pursuant to the Nuclear Waste Policy Act, on August 28, 1985, Plaintiffs entered into a
contract with the Department of Energy (“DOE”) to collect and dispose of spent nuclear fuel at
the River Bend Nuclear Generating Station beginning in 2006. Entergy Gulf States, 125 Fed. Cl.
at 684. Under this contract, DOE was obligated to take title to Plaintiffs’ spent nuclear fuel and
transport the spent nuclear fuel to a DOE facility. Plaintiffs in turn were responsible for
preparing and loading the spent nuclear fuel for transportation. Id. at 683.
Upon realizing that DOE would not begin collecting fuel in 2006, Plaintiffs evaluated
several options for increasing their spent fuel storage capacity and ultimately decided on dry fuel
storage. Id. at 686. Plaintiffs designed and constructed a 10 C.F.R. Part 72 storage facility,
1
These findings of fact are derived from the record developed at the original trial held
from May 11-22, 2015. Additional findings of fact are in the Discussion.
2
known as an Independent Spent Fuel Storage Installation (“ISFSI”), which became operational in
2005. Id.
Plaintiffs’ River Bend reactor produces both high-burn-up and non-high-burn-up fuel
assemblies. Trial Tr. 1603. Because River Bend changed from operating on an 18-month cycle
to a 24-month cycle, the fuel will remain in the reactor for a longer period of time, resulting in
more high-burn-up fuel bundles, depending upon where they are located in the reactor core. Id.
at 1603-04. When discharged at the end of their lifetime, high-burn-up fuel assemblies have a
cumulative exposure of 45 gigawatt days per metric ton of uranium - - meaning that high-burn-
up fuel has operated in the reactor core for more than 45 gigawatt days (or 45,000 megawatt
days) per metric ton of uranium. Id. at 1602-03. Problematic hydriding of the cladding is likely
to occur with high-burn-up fuel stored over time, causing increased brittleness of the cladding
and impeding the ability of the assembly to contain the fuel. Id. at 1613-14. The buildup of
zirconium hydrides would be an issue for storage of high-burn-up fuel at River Bend. Id. at
1616. Although Plaintiffs are permitted to store high-burn-up fuel in their Holtec MPC-68 casks,
they had not yet loaded any high-burn-up fuel into these canisters as of May 20, 2015. Id. at
1616-18. As such, Plaintiffs have not loaded any high-burn-up fuel into storage during the
damages period in this case. Id. River Bend’s supervisor of reactor engineering anticipates that
the plant will ultimately have to load many high-burn-up fuel assemblies into the Holtec
canisters at River Bend if DOE does not pick up the spent fuel. Id. at 1618.
As part of the process of cask loading, Plaintiffs loaded 15 Holtec HI-STORM 100
MPC-68 dry fuel storage casks onto the ISFSI, with casks being loaded in 2005, 2006, 2007,
2008, and 2010. Entergy Gulf States, 125 Fed. Cl. at 686. Prior to loading these casks, Plaintiffs
performed fuel characterization - - “documenting the physical and nuclear characteristics of
spent fuel assemblies.” Id. at 702; Dairyland Power Coop. v. United States, No. 12-902C, 2016
WL 5404168, at *2 n.2 (Fed. Cl. Sept. 28, 2016) (internal citation and quotation marks omitted).
Fuel characterization tests individual fuel assemblies to determine whether the fuel assembly is
damaged or is leaking radioactive materials. Plaintiffs performed fuel characterization because
the Holtec cask system’s Certificate of Compliance, an NRC license governing the parameters,
design, and configurations for that cask loading system, required Plaintiffs to load only fuel
assemblies that were intact and did not pose a risk of leaking. Trial Tr. 108, 150-52.2
Fuel sipping is one form of fuel characterization, which is used to test whether a fuel
assembly has a defect or breach. Trial Tr. 1623. According to Jerrell Campbell, the senior
project manager for dry fuel storage at River Bend, to perform fuel sipping, Plaintiffs installed
Westinghouse Electric Corporation’s vacuum sipping equipment in the spent fuel pool, placed a
spent fuel assembly into a device they call a “can,” and ran water through the fuel assembly in
the “can.” Id. at 151. If there was a crack in the fuel assembly’s cladding, and gas was emitted,
there would be a failure in the fuel assembly. Id. at 1623-24. According to John Vukovics, the
supervisor of reactor engineering at the River Bend plant, in performing this test, Plaintiffs were
“looking for radioactive energy signatures of gaseous fission fragments.” Id. at 1557, 1624.
Plaintiffs performed this fuel characterization process underwater in the spent fuel pool during
2
The NRC issues a unique Certificate of Compliance for each individual cask loading
storage system. Trial Tr. 152. In order to use a particular cask storage system, a utility must
implement the criteria and requirements in the Certificate of Compliance. Id.
3
the claim period to determine the integrity of fuel assemblies in the spent fuel pool and to ensure
that these assemblies were intact, met Holtec’s Certificate of Compliance, and were suitable for
loading into a Holtec Multi-Purpose Canister. Id. at 151-52, 1611, 1624-25.
The Federal Circuit issued its opinion in System Fuels on April 4, 2016, finding that
because storage casks may not be used for transportation, “System Fuels was entitled under the
law to all of the costs of loading these storage casks.” Sys. Fuels, 818 F.3d at 1306. The Court
stated that the expenses incurred for loading the storage casks “are expenses incurred entirely for
storage due to the government’s breach,” and that because the storage casks cannot be used for
transportation, “System Fuels will be required, if and when the government begins to comply, . .
. to unload the spent nuclear fuel from these storage casks and reload it into suitable
transportation casks provided by the government.” Id. at 1307. Although the Federal Circuit
was not called upon to separately address whether fuel characterization costs were recoverable as
part of the utilities’ process of cask loading, the underlying trial court opinion did address that
issue. ANO II, 120 Fed. Cl. at 748-50.
In System Fuels, the Federal Circuit affirmed the trial court’s award of cask loading costs
including fuel characterization costs, but the trial court only awarded costs for characterizing
high-burn-up fuel. ANO II, 120 Fed. Cl. at 748-50. The ANO II trial court segregated the
processes of loading high-burn-up fuel as opposed to non-high-burn-up fuel. The ANO II trial
court denied damages for characterizing non-high-burn-up fuel because the process of loading
non-high-burn-up fuel into Holtec storage casks was similar to the process of loading that type of
fuel into DOE transportation casks. Id. at 750-51.
Discussion
Plaintiffs seek $564,651 in fuel characterization costs and associated payroll loaders. The
parties dispute whether the Federal Circuit’s award of cask loading costs in System Fuels
included costs for re-characterizing the fuel. Defendant urges the Court to deny recovery
claiming that System Fuels did not address fuel characterization costs, that Plaintiffs would have
incurred these same costs in the non-breach world, and that Plaintiffs have not shown that they
will incur these costs again when DOE performs.
Defendant argues that fuel characterization costs were not encompassed in the System
Fuels decision, as none of the plaintiffs made a separate claim for fuel characterization costs on
appeal to the Federal Circuit and there is no evidence in the record in ANO II that fuel
characterization activities were included in the work order encompassing cask loading costs.
Def.’s Second Suppl. Br. 5-13. Contrary to Defendant’s argument, the ANO II plaintiffs did
seek fuel characterization costs, and the trial court found that because ANO was loading high-
burn-up fuel, which cannot be transported in a Holtec storage cask, that type of fuel would have
to be re-characterized prior to being reloaded into DOE transportation casks. ANO II, 120 Fed.
Cl. at 749-50. The ANO II Court explained that the high-burn-up fuel can affect the fuel
assemblies by causing the cladding walls to become brittle and subject to breakage during
transportation, and expressly found that “[p]rior to transportation, the condition of [the spent
nuclear fuel] will have to be re-characterized before it can be safely delivered to DOE.” Id. at
750 (emphasis added).
4
The ANO II Court found that the plaintiffs were entitled to fuel characterization costs for
the high-burn-up fuel, but not for other types of fuel. Id. at 751-52. The trial court concluded
that plaintiffs’ costs for characterization and loading of the high-burn-up fuel were allowable,
because high-burn-up fuel would have to be re-characterized, but that costs for the non-high-
burn-up fuel were not recoverable due to the similarities in loading non-high-burn-up fuel into
Holtec casks and DOE transportation casks. Id. at 750-51. Specifically, the ANO II Court stated
that for non-high-burn-up spent fuel:
similar steps would have had to be performed to load DOE transportation casks in
the but-for world. These steps are somewhat akin to those undertaken to load the
Holtec multi-purpose canisters at ANO, depending on the fuel type.
Id. at 750 (emphasis in original). The ANO II Court went on to state that disallowing the
plaintiffs’ costs for loading non-high-burn-up fuel would “reflect the fact that loading Holtec
canisters at ANO would be similar to, and have a counterpart in, loading DOE-supplied casks for
transport.” Id. at 751. The ANO II Court continued:
evidence at trial regarding high-burn-up spent fuel showed that . . . such fuel at
ANO could not be loaded for DOE transportation under the regulatory
arrangements currently in place. For that spent fuel, there are no “incurred” costs
in the but-for world that must be eliminated from System Fuels’ damages.
Id. at 750 (emphasis added).
Because in affirming ANO II the Federal Circuit in System Fuels only granted costs for
characterization of high-burn-up fuel as part of cask loading costs, that precedent does not
warrant awarding fuel characterization costs here, as only non-high-burn-up fuel was loaded
during the damages period.
Defendant further argues that an earlier Federal Circuit decision, Vermont Yankee
Nuclear Power Corp. v. Entergy Nuclear Vermont Yankee, LLC, 683 F.3d 1330 (Fed. Cir.
2012), mandates denying fuel characterization costs. Def.’s Suppl. Br. 2. 3 In Vermont Yankee,
the Federal Circuit denied fuel characterization costs, reasoning:
In preparing SNF for on-site dry storage, ENVY incurred $156,000 in costs to
characterize the SNF. Such a characterization is required for storage in any NRC-
approved cask. ENVY’s theory is that the fuel characterization may well be required a
second time for DOE-supplied casks, when and if DOE performs. Thus, ENVY argues
that it may have to pay for two characterizations, whereas in a non-breach world, it would
have had to pay for only a single characterization for the DOE-supplied casks. However,
ENVY has not established the likelihood that DOE will require ENVY to incur further
characterization costs upon performance. In fact, the Claims Court noted that ENVY
[itself] believes that DOE will accept the previously performed characterization before
finding that it is possible that another review of the spent fuel condition will be required.
3
Defendant argued Vermont Yankee broadly requires denying fuel characterization costs
without regard to whether high-burn-up or non-high-burn-up fuel was characterized.
5
Vermont Yankee, 683 F.3d at 1350 (alteration in original) (emphasis added) (internal citations
and quotation marks omitted).
The Federal Circuit’s denial of fuel characterization costs in Vermont Yankee was
predicated on the plaintiffs’ failure to meet their burden of proving that fuel characterization
would be required again upon DOE’s performance. The Vermont Yankee decision does not
reflect what type of fuel was being characterized, and did not reference high-burn-up fuel. The
Vermont Yankee Court relied upon the plaintiffs’ own belief that DOE would accept the earlier
characterized fuel without re-characterization. Id. Based on that record, the Vermont Yankee
Court concluded that it was “possible that another review of the spent fuel condition [would] be
required” if DOE performs. Id. (internal citation and quotation marks omitted). As such,
Vermont Yankee’s denial of fuel characterization costs, based upon the plaintiffs’ arguments and
the record in that case, does not mandate a blanket denial of such costs here.
Conclusion
The Court DENIES Plaintiffs’ claimed damages for costs incurred in performing fuel
characterization.
This is the final decision in this matter. In total, the Court has awarded Plaintiffs
$47,539,368 in damages for Defendant’s partial breach of the Standard Contract through
December 31, 2010. See Entergy Gulf States, 2016 WL 5234692, at *1; Entergy Gulf States,
125 Fed. Cl. at 718.
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge
6
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980 So.2d 1118 (2008)
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant,
v.
David A. JOHNSON, Appellee.
No. 5D06-2931.
District Court of Appeal of Florida, Fifth District.
March 7, 2008.
Rehearing Denied May 6, 2008.
*1119 Bill McCollum, Attorney General, and Timothy D. Osterhaus, Deputy Solicitor General, Tallahassee, for Appellant.
Michael J. Snure and William R. Ponall, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellee.
SAWAYA, J.
This appeal emanates from a declaratory judgment action instituted by David A. Johnson after the Department of Highway Safety and Motor Vehicles refused his request for licensure reinstatement. The trial court granted Johnson's motion for summary judgment and subsequently entered a final declaratory judgment in his favor, holding that the amended version of section 322.271(4), Florida Statutes (1997), is void ab initio and that the general reenactment of the Florida Statutes by chapter 03-25, Laws of Florida, did not cure the single subject defect in chapter 98-223. In so holding, the trial court declared as a matter of law: "(1) the version of Fla. Stat. § 322.271 that existed prior to the enactment of Chapter 98-223 is currently in effect; and (2) the Plaintiff [Johnson] is not statutorily precluded from seeking reinstatement of his driving privileges based solely on the fact that he has four convictions for DUI." We will now explain why we must reverse.
Johnson was convicted of his fourth offense for driving under the influence of alcohol, and on January 14, 1993, his driver's license was permanently revoked pursuant to section 322.28(2)(e), Florida Statutes. Sometime thereafterthe record does not reveal the dateJohnson petitioned to have his license reinstated pursuant to section 322.271(4), Florida Statutes (1997), which provided that a person whose driver's license was permanently revoked under section 322.28(2)(e) was permitted, "upon the expiration of 5 years after the date of such revocation . . . [to] petition the department for reinstatement of his or her driving privilege." The impediment to Johnson's petition is the fact that in 1998, the Legislature enacted chapter 98-223, which amended section 322.271(4) by deleting the portion of the statute that allowed a person with four DUI convictions, such as Johnson, to apply for reinstatement of his driving privileges. Johnson claims the impediment was removed by the Florida Supreme Court's decision in Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003), which declared chapter 98-223 unconstitutional because it violated the single subject rule.
The Department responds that matters occurring subsequent to the release of the Critchfield decision dictate a contrary conclusion. Specifically, the Department argues that the Legislature's post-Critchfield enactment of chapter 03-25 cured the single subject defect in chapter 98-223, Laws of Florida, because it adopted the 2002 edition of the Florida Statutes, "together with corrections, changes, and amendments to and repeals of provisions of Florida Statutes 2002 enacted in additional reviser's bill or bills by the 2003 Legislature," as the official statutory law of the state. § 11.2421, Fla. Stat. (2003). Chapter 03-25 took effect on July 1, 2003, the 60th day after the adjournment sine die of the legislative session in which it was enacted. Ch. 03-25, § 5, Laws of Fla.; State v. Rothauser, 934 So.2d 17 (Fla. 2d DCA 2006); Envtl. Confederation of Sw. Fla., Inc. v. State, 852 So.2d 349, 350 (Fla. 1st DCA 2003); see also Lescher v. Dep't of Highway Safety & Motor Vehicles, 946 So.2d 1140, 1141 (Fla. 4th DCA 2006) ("The legislature then adopted the provision as an amendment to section 322.271(4), effective July 1, 2003."), review granted, 949 So.2d 198 (Fla.2007). Hence, we must determine whether the Legislature's *1120 subsequent reenactment of chapter 98-223, which included the amended version of section 322.271(4), cured the single subject rule violation. In making this determination, we undertake de novo review of the case. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001) ("The standard of review governing a trial court's ruling on a motion for summary judgment posing a pure question of law is de novo.").
Adverting to the decision in Critchfield, the supreme court affirmed this court's decision in Department of Highway Safety & Motor Vehicles v. Critchfield, 805 So.2d 1034 (Fla. 5th DCA 2002), and held that chapter 98-223 violated the single subject rule because it unconstitutionally combined "the subject of assigning the collection of bad check debt to a private debt collector with the subject of driving, motor vehicles, and vehicle registration." Critchfield, 842 So.2d at 786. Despite Johnson's contention and the trial court's ruling to the contrary, neither the supreme court nor this court declared chapter 98-223 void ab initio. However, the conclusion to this court's Critchfield opinion did indicate the manner in which the constitutional defect could be cured:
Finally, we recognize that the single subject requirement of Article III, section 6 only applies to chapter or session laws and sections of the Florida Statutes need not conform to the requirement. Johnson. Once reenacted by way of an adoption act as a portion of the Florida Statutes, a chapter or session law is no longer subject to challenge on the grounds that it violates the single subject requirement. Johnson. Chapter 98-223 was enacted effective July 1, 1998 but has yet to be the subject of an adoption act which became law. Accordingly, the final judgment invalidating Chapter 98-223, Laws of Florida, based upon violation of the single subject rule is affirmed.
Critchfield, 805 So.2d at 1038 (citing State v. Johnson, 616 So.2d 1 (Fla.1993)).
Our revelation in Critchfield of the cure mechanism for single subject violations was nothing new: the Florida Supreme Court had previously established that "the general mechanism for curing single subject rule violative chapter laws is through the Legislature's biennial adoption of the Florida Statutes." Trapp v. State, 760 So.2d 924, 927 (Fla.2000); see also Johnson. A single subject rule violation can also be cured prior to biennial readoption by the Legislature's separation and reenactment of the unrelated provisions originally contained in the chapter law. Trapp.
We conclude, as have the First, Second, and Fourth District Courts, that the single subject rule violation contained in chapter 98-223 was cured by the enactment of chapter 03-25. See Lescher, 946 So.2d at 1141-42; Rothauser, 934 So.2d at 19-20; Gorman v. State, 927 So.2d 1043 (Fla. 4th DCA 2006); State, Dep't of Highway Safety & Motor Vehicles v. Fountain, 883 So.2d 300 (Fla. 1st DCA 2004); Gillman v. State, 860 So.2d 1099 (Fla. 1st DCA 2003). Accordingly, the amended version of section 322.271(4) became effective on July 1, 2003, and Johnson had a window period, which closed on that date, to obtain reinstatement of his license from the Department. See Lescher; Dep't of Highway Safety & Motor Vehicles v. Gaskins, 891 So.2d 643 (Fla. 2d DCA 2005); Fountain, 883 So.2d at 301; Cantrall v. Dep't of Highway Safety & Motor Vehicles, 828 So.2d 1062, 1063 (Fla. 2d DCA 2002). Whether Johnson falls within that window period is not an issue that has been raised in these proceedings and, therefore, we will not address it.
Accordingly, the trial court erred in granting summary judgment in favor of *1121 Johnson and rendering the final declaratory judgment under review.
REVERSED.
TORPY and EVANDER, JJ., concur.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0392p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
DIXIE FUEL CO., LLC and BITUMINOUS
Petitioners, --
CASUALTY CORP.,
-
No. 11-4298
,
>
-
v.
-
-
DIRECTOR, OFFICE OF WORKERS’
-
COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR and ARLIS HENSLEY, -
Respondents. -
-
-
N
On Petition for Review of a Decision and Order
of the Benefits Review Board, United States Department of Labor.
No. 10-0363 BLA.
Decided and Filed: November 28, 2012
Before: SUTTON and STRANCH, Circuit Judges; STEEH, District Judge.*
_________________
COUNSEL
ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus, GREENBERG TRAURIG LLP,
Washington, D.C., for Petitioners. Gary K. Stearman, Michelle S. Gerdano, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., Joseph E. Wolfe, Ryan C.
Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia, for
Respondents.
*
The Honorable George Caram Steeh III, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 11-4298 Dixie Fuel, et al. v. Dir., Office of Workers’ Comp., et al. Page 2
_________________
OPINION
_________________
SUTTON, Circuit Judge. For two decades, Arlis Hensley tried to obtain benefits
under the Black Lung Benefits Act. 30 U.S.C. § 901 et seq. On his third try, he
succeeded—or so it seemed. An Administrative Law Judge concluded that Hensley’s
pulmonary troubles arose from the thirteen years he spent in the coal mines as opposed
to a long-time smoking habit or other causes. As misfortune would have it, the ALJ
erred in reaching this conclusion by failing to adhere to a key regulatory directive in
weighing the medical evidence concerning Hensley’s disease. As a result, we must
reverse and remand, albeit with the hope that the ALJ will quickly, fairly and finally
resolve this long-running claim.
I.
Arlis Hensley worked in various capacities as a coal miner at various times for
thirteen years between 1972 and 1988. App. at 22. He also smoked half a pack of
cigarettes every day for at least ten years. Id. For twenty years, from 1990 to 2010,
Hensley tried to convince the federal government that one feature of his past as opposed
to the other caused a disabling pulmonary impairment. Id. at 21–22.
In February 2010, ALJ Kenneth Krantz concluded that Hensley suffered from a
disabling form of pneumoconiosis caused by his jobs in the coal mines and awarded him
benefits under the Act. Id. at 56. The Benefits Review Board affirmed, id. at 18, and
Hensley’s former employer, Dixie Fuel Company, appealed.
II.
A claimant may establish work-related pneumoconiosis through x-rays,
autopsies, biopsies and medical opinions. 20 C.F.R. § 718.202(a). In this instance, the
record contains five x-rays, two biopsies, several CT scans and the medical opinions of
numerous physicians. Ordinarily, when an ALJ reviews such evidence, his decision to
No. 11-4298 Dixie Fuel, et al. v. Dir., Office of Workers’ Comp., et al. Page 3
grant or deny benefits will be upheld so long as “substantial evidence” supports it.
Eastover Mining Co. v. Williams, 338 F.3d 501, 508 (6th Cir. 2003). If, however, an
ALJ has “failed to account [for] relevant record material, deference is inappropriate and
remand is required.” Id.
The ALJ committed just such an error. After summarizing the parties’ medical
evidence—some supportive of Hensley’s claim, some not—the ALJ noted that a
“Claimant may establish the existence of pneumoconiosis under any one of the alternate
methods” in § 718.202. App. at 50 (emphasis added). He then determined that
Hensley’s x-ray evidence was sufficient and by itself “established the existence of
pneumoconiosis.” Id.
The ALJ erred by singling out the x-ray evidence to the exclusion of the other
evidence. Although an ALJ may give more weight to some evidence than other
evidence, he is not allowed to ignore competing evidence. “[N]one” of the categories
of evidence, we have held, “is conclusive if outweighed by contrary evidence.” Gray
v. SLC Coal Co., 176 F.3d 382, 389 (6th Cir. 1999); see also Island Creek Coal Co. v.
Compton, 211 F.3d 203, 208 (4th Cir. 2000) (overturning an ALJ’s decision because he
failed to “weigh the X-ray evidence with the medical opinion evidence”); Penn
Allegheny Coal Co. v. Williams, 114 F.3d 22, 25 (3d Cir. 1997) (criticizing the Board
for relying solely on x-ray evidence and failing to consider biopsy evidence).
The Black Lung Benefits Act commands judges to consider “all relevant
evidence” in determining the validity of a given claim. 30 U.S.C. § 923(b) (emphasis
added). Construing an analogous regulation (§ 718.304), Gray explained that “‘all
relevant evidence’ means just that—all evidence that assists the ALJ in determining
whether a miner suffers from complicated pneumoconiosis.” 176 F.3d at 389. Although
§ 718.202(a) lists four alternatives, each of which may be sufficient to support a
diagnosis of pneumoconiosis, that does not mean that any of the four kinds of evidence
automatically proves the existence of pneumoconiosis in the face of contrary evidence.
“[W]hether or not a particular piece or type of evidence actually is a sufficient basis for
a finding of pneumoconiosis will depend on the evidence [as a whole] in each case.”
No. 11-4298 Dixie Fuel, et al. v. Dir., Office of Workers’ Comp., et al. Page 4
Island Creek Coal Co., 211 F.3d at 209; see also Mullins Coal Co. of Va. v. Dir., Office
of Workers’ Compensation Programs, 484 U.S. 135, 148–49 (1987) (adopting a similar
approach in interpreting § 727.203(a) of the Black Lung Benefits Act and rejecting the
possibility that a single x-ray can constitute sufficient proof of an illness in the face of
contradictory evidence).
This reading respects the Director’s own interpretation of the regulation.
According to the Director, “although section 718.202(a) enumerates four distinct
methods of establishing pneumoconiosis, all types of relevant evidence must be weighed
together to determine whether the claimant suffers from the disease.” Br. for the Federal
Respondent at 22 (emphasis added). Because this is a reasonable interpretation of a
regulation the Director is responsible for administering, it is controlling. Auer v.
Robbins, 519 U.S. 452, 461 (1997); see also Talk America, Inc. v. Mich. Bell Tel. Co.,
131 S. Ct. 2254, 2261 (2011).
Cases from other circuits come out the same way. The Third and Fourth Circuits
both agree that the “plain meaning of [the ‘all relevant evidence’] statutory language is
that all relevant evidence is to be considered together rather than merely within discrete
subsections of § 718.202(a).” Island Creek Coal Co., 211 F.3d at 208; see also
Consolidation Coal Co. v. Held, 314 F.3d 184, 186–87 (4th Cir. 2002). No circuit to our
knowledge has reached a contrary conclusion.
Nor is a contrary conclusion easy to fathom. “[W]eighing all of the relevant
evidence together makes common sense.” Island Creek Coal Co., 211 F.3d at 209.
Otherwise, an ALJ could find that a claimant had pneumoconiosis even though the
evidence taken together supports a different finding, even though indeed it conclusively
establishes a different finding.
Nor was this error a harmless one. The other evidence cuts the other way,
permitting a finding that Hensley does not suffer from pneumoconiosis. The biopsy of
Hensley’s lungs came back negative, App. at 47, the CT scans may have been
inconclusive, and several physicians testified against an award of benefits, App. at
47–50. The ALJ must weigh all of the evidence—for and against a finding of
No. 11-4298 Dixie Fuel, et al. v. Dir., Office of Workers’ Comp., et al. Page 5
pneumoconiosis—before granting benefits. This is not to say that the ALJ must
reconsider his prior judgment with respect to any one piece of contrary evidence or end
up with a different conclusion. All of that is up to the ALJ in the first instance.
Because Hensley’s claim has been pending for so long, we hope (and expect) that
the agency will resolve this claim once and for all expeditiously. If Hensley deserves
benefits under the Act, he should not have to wait this long to obtain them.
III.
For these reasons, we vacate the decision of the Board and remand with
instructions for the Board to remand this case to an ALJ for further consideration.
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298 F.Supp.2d 1140 (2003)
UNITED STATES of America, Plaintiff,
v.
William Leonard PICKARD, Defendant.
No. 00-40104-01-RDR.
United States District Court, D. Kansas.
December 4, 2003.
*1141 William K. Rork, Rork Law Office, Topeka, KS, for Defendant.
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for Plaintiff.
MEMORANDUM AND ORDER
ROGERS, District Judge.
On November 25, 2003 the court imposed sentence in this case. The purpose of this memorandum and order is to memorialize the sentence imposed by the court at the conclusion of the sentencing hearing.
On March 31, 2003, the defendant and his co-defendant, Clyde Apperson, were *1142 found guilty by a jury of (1) conspiracy to manufacture, distribute and dispense 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD) in violation of 21 U.S.C. § 846, and (2) possession with intent to distribute or dispense 10 grams or more of a mixture or substance containing a detectable amount of LSD in violation of 21 U.S.C. § 841(a)(1). Prior to trial, the government had filed an information pursuant to 21 U.S.C. § 851. The information indicated that the defendant had two prior felony drug offenses.
The government and the defendant raised objections to the presentence report. The government raised one objection while the defendant raised numerous objections. The objections raised by the defendant were categorized by the probation office into 22 objections. The court considered them as grouped by the probation office. The court conducted an extensive sentencing hearing with the government and the defendant providing evidence. The evidence offered focused on the drug quantities attributable to the defendant.
GOVERNMENT'S OBJECTION
Defendant's Base Offense Level
The government contends that the defendant's base offense level should be increased by two levels pursuant to U.S.S.G. § 2D1.2(a)(1) because he used a pregnant woman, Natasha Kluglova, in the conspiracy for which he was convicted. The government further argues that the defendant's offense level should be increased by three levels pursuant to U.S.S.G. § 2D1.10(a) because he endangered the lives of several individuals during the manufacture and cleanup of his LSD manufacturing locations. The defendant, without providing any reasons, disagrees with the arguments of the government. The probation office contends that the government is misapplying the guidelines. The probation office suggests that U.S.S.G. § 2D1.1 is the appropriate guideline to determine the defendant's base offense level, and that the conduct here is not sufficient to warrant the use of §§ 2D1.2 or 2D1.10.
The court believes that the probation office has properly calculated the defendant's base offense level through the use of U.S.S.G. § 2D1.1. The court rejects the government's arguments that §§ 2D1.2 or 2D1.10 should be applied here.
DEFENDANT'S OBJECTIONS
Charges and Convictions
The defendant initially objects to the wording of the charges and convictions in this case as stated in paragraphs 9, 101 and 102 of the presentence report. The court need spend little time with this contention since it is clearly frivolous. The presentence report accurately sets forth the charges and convictions in this case. As stated by the probation office, this objection does not affect the defendant's sentence.
Factual Background/Drug Quantities
The defendant next objects to a number of the facts stated in the presentence report. The defendant also objects to the drug quantities found in the presentence report. The government and probation office assert the facts stated in the presentence report are accurate. They also contend that the drug quantities in the presentence report accurately reflect the trial testimony of DEA Forensic Chemist Timothy McKibben.
The court has undertaken a thorough review of the facts as set forth in the presentence report. The court has also carefully considered the objections made by the defendant. The defendant has quibbled with some facts, suggested that others were not supported by the record, *1143 and argued that some facts lack corroboration of Skinner's testimony. He also suggests at times that the probation office was biased in the presentation of the facts. The court finds that the facts contained in the presentence report accurately reflect the evidence provided at trial. Accordingly, these objections shall be denied.
The court shall next consider the defendant's arguments concerning the drug quantities. Drug quantities attributable to a defendant convicted of a conspiracy are established "on the basis of the quantity of drugs which [the defendant] reasonably foresaw or which fell within `the scope' [of the defendant's] agreement with the conspirators." United States v. Roberts, 14 F.3d 502, 522 (10th Cir.1993) (citations, quotations and emphasis omitted). For sentencing purposes, the government bears the burden of proving the quantity of drugs by a preponderance of the evidence. United States v. Hooks, 65 F.3d 850, 854 (10th Cir.1995), cert. denied, 516 U.S. 1083, 116 S.Ct. 797, 133 L.Ed.2d 745 (1996). In calculating the quantity of drugs attributable to a defendant, sentencing courts may consider a wide range of information so long as it bears a minimum indicia of reliability to support its probable accuracy. United States v. Browning, 61 F.3d 752, 754 (10th Cir.1995); see also U.S.S.G. § 6A1.3(a).
The presentence report indicates that the following substances were discovered during the initial "sneak and peak" at the Wamego missile base on October 31, 2000 or upon the arrest of the defendant on November 5, 2000: 41.3 kilograms of LSD, 23.6 kilograms of iso-LSD (a byproduct of the reaction that can be converted back to LSD), 97.5 kilograms of lysergic acid (the immediate precursor in the manufacturing process), and 6.5 kilograms of ergocristine (a commercially available precursor). The evidence further showed that an additional 13 kilograms of ergocristine that belonged to the defendants was subsequently recovered. In arriving at a base offense level of 38 under the U.S.S.G. § 2D1.1, the probation office relied solely upon 41.3 kilograms of LSD. In doing so, the probation office relied upon the total liquid amount of the LSD. The weight of the pure LSD found in the 41.3 kilograms was determined to be 198.9 grams.
The court shall begin by considering the issue of how the amount of LSD is to be determinedthe weight of the liquid LSD or the weight of the LSD in pure form. Every circuit court that has considered this issue has determined that when LSD is contained in a liquid solution, the weight of the pure LSD alone should be used to determine the offense level. United States v. Morgan, 292 F.3d 460, 464 (5th Cir.2002); United States v. Camacho, 261 F.3d 1071, 1074 (11th Cir.2001); United States v. Sia, No. 96-1808, 1996 WL 728191 (1st Cir.1996) (unpublished); United States v. Ingram, 67 F.3d 126, 128 (6th Cir.1995); United States v. Turner, 59 F.3d 481, 485 (4th Cir.1995). Although we have some concerns about the merit of these decisions, we shall apply this rule to this case.
The court has carefully considered the testimony provided by DEA chemist McKibben and the defendant's expert witness, Dr. Peter Lott. The court recognizes the various flaws noted by Dr. Lott. Nevertheless, the court finds that the procedures used by the DEA were proper and the results obtained were reliable. Given the testimony presented during the sentencing hearing, the court is convinced that the total amount of LSD involved in this case exceeds 300 grams by a considerable quantity. This amount includes the actual LSD, the iso-LSD, and the lysergic acid, as well as the ergocristine. The evidence is clear that the amounts of actual *1144 LSD coupled with the amounts that could be produced through the use of the ergocristine rise far above the 300-gram threshold. Accordingly, the court shall apply a base offense level of 38. Of course, this amount does not include the LSD that was manufactured by the defendant at Aspen, Santa Fe and Ellsworth. The evidence is very strong that considerable amounts of LSD were produced at Santa Fe and Ellsworth. Some or all of these drug amounts from these activities could be considered relevant conduct here. See U.S.S.G. § 1B1.3. In sum, the court is thoroughly convinced that the drug amounts attributed to the defendant are extremely conservative. Accordingly, this aspect of the defendant's objection shall be denied.
Obstruction of Justice
The defendant objects to the portions of the presentence report concerning an adjustment for obstruction of justice, paragraphs 91 to 97 and 108. The defendant argues that there is no factual or legal basis for a two-level enhancement under U.S.S.G. § 3C1.1. The government and the probation office contend that the enhancement has been properly applied. The probation office points out in the presentence report that the enhancement is appropriate because the defendant (1) filed a false affidavit prior to trial in support of codefendant Apperson; (2) testified falsely at trial concerning co-defendant Apperson's lack of knowledge of the LSD laboratory; (3) directed Kluglova to provide certain materials to Alfred Savinelli in an effort to threaten him; (4) contacted government witnesses and others prior to trial in an attempt to influence their testimony or learn the nature of it; (5) presented one of his witnesses, Brandon Valerius, with a false affidavit; and (6) testified falsely concerning the return of Stinger missiles from Afghanistan.
The court believes that this adjustment is appropriate here for several reasons. However, the court shall focus only upon the allegations concerning the defendant's perjury. The court believes that the two-level enhancement is proper because the defendant filed a false affidavit prior to trial and testified falsely during trial concerning the knowledge of his codefendant of the LSD laboratory.
Recently, in United States v. Sarracino, 340 F.3d 1148, 1172-73 (10th Cir.2003), the Tenth Circuit outlined the requirements for application of the adjustment for obstruction of justice based upon perjury as follows:
The district court must enhance a defendant's base offense level by two levels if it finds that:
[T]he defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and ... the obstructive conduct related to ... the defendant's offense of conviction and any relevant conduct; ...
U.S.S.G. § 3C1.1(A)-(B). A section 3C1.1 enhancement predicated upon perjury is appropriate when the sentencing court finds that the defendant has given "`[i] false testimony [ii] on a material matter [iii] with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.'" See United States v. Mounkes, 204 F.3d 1024, 1029 (10th Cir.) (quoting United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)), cert. denied, 530 U.S. 1230, 120 S.Ct. 2661, 147 L.Ed.2d 275 (2000). "`Material' evidence ..., as used in ... section [3C1.1], means evidence ... that, if believed, would tend to influence or *1145 affect the issue under determination." U.S.S.G. § 3C1.1, comment. (n.6).
The mere fact that a defendant testifies to his innocence and is later found guilty does not automatically warrant a finding of perjury. United States v. Markum, 4 F.3d 891, 897 (10th Cir.1993). To make a finding of perjury every time the defendant testifies and is convicted "would impinge upon the constitutional right to testify on one's own behalf." Id. Mere disagreement "between the defendant's testimony and the jury's verdict is insufficient to support a finding of perjury." United States v. Weller, 238 F.3d 1215, 1222 (10th Cir.2001).
The sentencing court is required to "carefully review the evidence and make findings independent of the jury verdict which specifically identify the testimony at issue and establish that it, in fact, constitutes perjury." Id. The required findings must cover all the factual criteria of perjury. United States v. Anderson, 189 F.3d 1201, 1213 (10th Cir.1999).
In an affidavit submitted to the court on January 10, 2001, the defendant stated: (1) his co-defendant, Clyde Apperson, accompanied him to Kansas for the purpose of moving some industrial equipment belonging to a friend; (2) he never advised Apperson that the equipment he was moving was or could be used for the purpose of manufacturing LSD; (3) he never advised Apperson that the equipment he was moving could be used for illegal purposes; and (4) Apperson never participated or engaged in any conspiratorial agreement with him or anyone else to manufacture or distribute LSD or any other illegal substance. At trial, the defendant testified that Apperson had no knowledge of the LSD equipment and had never engaged in any conspiracy to manufacture or distribute LSD.
The statements contained in the affidavit and the testimony offered at trial by the defendant concerning the lack of knowledge and involvement by his co-defendant were clearly false. The evidence at trial, particularly the tape recordings, demonstrated that the defendant's statements were false on material matters and made with the willful intent to provide false testimony. There can be little dispute that Apperson was actively involved in the charged conspiracy and fully aware of the mission to move the LSD lab when he arrived in Kansas. Accordingly, for these reasons, the court finds that the defendant committed perjury and that an enhancement for obstruction of justice is appropriate.
Acceptance of Responsibility
The defendant next objects to paragraphs 98 and 99 concerning an adjustment of acceptance of responsibility. The defendant apparently believes that he is entitled to a reduction for acceptance of responsibility. He points out that he has not benefitted from having transcripts of the trial, and wishes to preserve this objection until he has reviewed the transcripts. The government and the probation office assert that acceptance of responsibility has properly been denied.
A defendant is entitled to a reduction in offense level if he "clearly demonstrates acceptance of responsibility for his [or her] offense." U.S.S.G. § 3E1.1(a). A defendant who requires the government to prove his or her guilt at trial may qualify for acceptance of responsibility only in rare situations. Id., at comment. (n.2). A defendant has acted in a manner inconsistent with acceptance of responsibility adjustment if he or she "falsely denies ... relevant conduct...." Id., at comment. (n.1(a)). Although a defendant who is convicted at trial is not precluded automatically from receiving an acceptance of responsibility *1146 adjustment, a defendant who goes to trial only to require the government to prove his or her factual guilt generally would not be entitled to the adjustment. Id., at comment. (n. 2). In addition, false testimony that results in an enhancement for obstruction of justice generally is inconsistent with an adjustment for acceptance of responsibility. Id., at comment. (n. 4).
The court agrees wholeheartedly with the government and probation office. Any suggestion by the defendant that he is entitled to acceptance of responsibility is laughable. He has contested every factual matter in this case. Acceptance of responsibility under U.S.S.G. § 3E1.1 is clearly not appropriate here. As accurately pointed out by the probation office, the transcripts of the court proceedings are certainly not necessary to conclude that the defendant is not eligible for this reduction.
Unlawful Discharge, Emission or Release of Hazardous or Toxic Substances
The defendant objects to paragraph 104 concerning the unlawful discharge, emission or release into the environment of a hazardous or toxic substance. He contends that the facts do not support a two-level enhancement under U.S.S.G. § 2D1.1(b)(5)(A). The government and probation office assert that the enhancement has been properly applied. The probation office contends that the enhancement is appropriate based upon the defendant's (1) dumping of LSD and LSD-related substances onto the ground at the Wamego missile base on November 5, 2000; and (2) transportation of those same substances in and around various locations around the country.
In order to apply this enhancement, the court need only focus on the first basis for the enhancement. The evidence is clear that on November 5, 2000, Pickard dumped many gallons of liquid containing LSD and LSD by-products onto the grounds at the Wamego missile base. This evidence requires the application of this enhancement. Accordingly, this objection shall be denied.
Role in the Offense
The defendant next objects to the four-level enhancement applied in paragraph 106 for his role in the offense. He suggests that a four-level enhancement under U.S.S.G. § 3B1.1(a) is not supported by the facts or the law. He concedes, however, that a one-level enhancement might be appropriate. The government and the probation office assert that a four-level enhancement under § 3B1.1(a) is proper here.
U.S.S.G. § 3B1.1(a) provides that a defendant's offense level shall be increased by four points "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." The government bears the burden of proving by a preponderance of the evidence the facts necessary to establish the applicability of this enhancement. See United States v. Cruz Camacho, 137 F.3d 1220, 1224 (10th Cir.1998). In determining whether a defendant is a leader or organizer, a court should consider the following factors:
the exercise of decision-making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1, comment (n.4.). "In considering these factors, the sentencing *1147 court should remain conscious of the fact that the gravamen of this enhancement is control, organization, and responsibility for the actions of other individuals because § 3B1.1(a) is an enhancement for organizers or leaders, not for important or essential figures." United States v. Torres, 53 F.3d 1129, 1142 (10th Cir.1995) (citations and quotations omitted). Nevertheless, "[t]he Guidelines do not require that each of the factors be satisfied for § 3B1.1(a) to apply." United States v. Bernaugh, 969 F.2d 858, 863 (10th Cir.1992).
There is no question that this enhancement must be applied. The defendant was the primary organizer of an operation that produced substantial amounts of LSD. He was the individual who possessed control over the operation, made the important decisions and recruited accomplices. Any suggestion to the contrary is completely against the weight of the evidence in this case. Accordingly, this objection must be denied.
Abuse of a Position of Trust or Use of a Special Skill
The defendant objects to the two-level enhancement imposed in paragraph 107 for abuse of a position of trust or use of a special skill under U.S.S.G. § 3B1.3. The defendant again suggests that there is no factual or legal basis for this adjustment. The government and probation office contend that this enhancement has been properly applied. The probation office asserts that this enhancement is proper because the defendant (1) used his positions at Harvard and UCLA to further his involvement in the manufacture of LSD; and (2) used his special skills as a chemist to manufacture LSD.
The court is persuaded that this enhancement is appropriate because the defendant used his special skill as a chemist to manufacture LSD. A special skill is one "not possessed by members of the general public and usually requiring substantial education, training, or licensing." U.S.S.G. § 3B1.3, comment. (n. 2). Because the comment adds the word "usually," there is no basis for limiting the increase to only those with formal educations or professional skills. See United States v. Hummer, 916 F.2d 186, 191 (4th Cir. 1990) (finding that the use of the word "usually" in the note to U.S.S.G. § 3B1.3 "implies that substantial training is not a mandatory prerequisite to making a special skills adjustment"), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991).
The defendant used his special skills as a chemist to produce vast quantities of LSD. His special knowledge and research allowed him to produce quantities that exceeded normal production. Accordingly, this enhancement is proper. See United States v. Carlson, 87 F.3d 440, 446-47 (11th Cir.1996); United States v. Spencer, 4 F.3d 115, 120 (2nd Cir.1993).
Adjusted Base Offense Level
The defendant objects to the adjusted base offense level contained in paragraph 109 based upon his aforementioned objections. Since the court has found no merit to any of the defendant's previous objections, the court finds no basis to alter the adjusted base offense level contained in paragraph 109. The court notes that even if the court has erred in the application of one or more of the aforementioned enhancements so that the defendant's guideline range would drop to 360 months to life, I would still impose a sentence of life.
Criminal History
The defendant has raised various objections to the criminal history portion of the presentence report. The defendant contends that (1) the information concerning his 1998 false statement in a passport conviction *1148 is incorrect [paragraph 117]; (2) the addition of one point for his 1988 false identification to a peace officer conviction is inappropriate [paragraph 118]; and (3) the charge of carrying a concealed weapon in 1986 does not indicate that it was not prosecuted due to the age of the case [paragraph 122]. The government and the probation office assert that the defendant's criminal history is accurately and properly calculated under the guidelines.
The court has considered each of the defendant's objections to the criminal history portion of the presentence report. The court finds no merit to any of them. The court finds that the information is accurate and the analysis provided by the probation office is correct. Accordingly, these objections shall be denied.
Offender Characteristics
The defendant has raised various objections to the offender characteristics portion of the presentence report. The government has not responded to any of these objections. The probation office asserts that the information contained in the presentence report is accurate.
The court finds it unnecessary to make any rulings on these objections because they do not impact the application of the guidelines. Fed.R.CrimP. 32(i)(3)(B).
Imposition of a Fine
The defendant objects to paragraph 152 where the probation office indicated that the defendant failed to complete the necessary forms to determine if a fine should be imposed. The defendant asserts that the probation office has enough information in its possession, or can obtain the necessary information, to determine if a fine should be imposed. The government has not responded to this motion. The probation office acknowledges that it has some information on the defendant, but also reiterates that the defendant has not submitted the forms submitted to him. The probation office contends that, without the submission of the forms, the defendant has not met his burden of proving that a fine should be waived here.
The court has reviewed prior documents submitted by the defendant on his financial condition. The court has determined that the defendant has met his burden of proving that a fine should be waived here. The court does not intend to impose a fine.
Upward Departure
The defendant objects to paragraphs 171, 172 and 173 concerning the possibility of an upward departure. He argues that a departure based upon the possession of liquid LSD is not appropriate. The government has filed no response to this objection. The probation office suggests that the information contained in these paragraphs is an accurate interpretation of the Sentencing Guidelines.
The court finds it unnecessary to decide this objection because it does not intend to depart upward.
Downward Departure
The defendant seeks a downward departure based upon prosecutorial misconduct and improper investigative techniques. The defendant has noted a variety of examples where the government engaged in misconduct. The defendant also suggests that the court should depart downward because of his efforts to provide substantial assistance to the government. The government and the probation office assert that there are no grounds for a downward departure here.
Before granting a downward departure, the district court must find that "there exists ... [a] mitigating circumstance of a kind ... not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." *1149 18 U.S.C. § 3553(b); see also U.S.S.G. § 5K2.0; United States v. Ziegler, 39 F.3d 1058, 1060 (10th Cir.1994).
The court recognizes that a downward departure can be applied based on governmental misconduct. See, e.g., United States v. Nolan-Cooper, 155 F.3d 221, 242-243 (3rd Cir.1998). Nevertheless, the court is not persuaded that a downward departure is appropriate here. The court has not found sufficient evidence of governmental misconduct to justify a downward departure. In considering the defendant's motion for new trial, the court addressed the defendant's allegations of governmental misconduct and improper investigative techniques. There, the court found no evidence of any substantial misconduct by the government. Accordingly, the court shall not depart downward on this basis.
The defendant has also suggested that the court should depart downward because he has cooperated with the government and the government has refused to file a motion pursuant to U.S.S.G. § 5K1.1. In the absence of a government motion for a substantial assistance downward departure, a court may review the prosecutor's decision not to move for a departure only if the refusal is based on an unconstitutional motive, such as race or religion, or if "the government's stubborn refusal presents an egregious case because of `overwhelming evidence that the accused's assistance has been so substantial as to cry out for meaningful relief.'" United States v. Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir.1999). The court finds no evidence of any improper motive by the government in not filing such a motion. The court also does not find that the circumstances here suggest a stubborn refusal by the government in an egregious case.
Having concluded that the government has not improperly failed to file a motion pursuant to § 5K1.1, the court has no power to depart on this basis. United States v. Maldonado-Acosta, 210 F.3d 1182, 1184 (10th Cir.2000) (U.S.S.G. § 5K2.0 does not authorize sentencing court to grant departure for substantial assistance without a motion from the government requesting the departure pursuant to § 5K1.1).
CONCLUSION
With these rulings, the defendant's total offense level is 48 and his criminal history category is IV. The application of the sentencing grid mandates a sentence of life on both of the convictions. In addition, pursuant to 21 U.S.C. § 841(b)(1)(A), the court must sentence the defendant to a mandatory term of life imprisonment on each conviction.
IT IS SO ORDERED.
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26 So.3d 597 (2010)
POWELL
v.
STATE.
No. 5D09-2909.
District Court of Appeal of Florida, Fifth District.
January 12, 2010.
Decision Without Published Opinion Affirmed.
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628 F.2d 1360
202 U.S.App.D.C. 337
FRY TRUCKING COMPANY, Appellant,v.SHENANDOAH QUARRY, INC.FRY TRUCKING COMPANYv.SHENANDOAH QUARRY, INC., Appellant.
Nos. 79-1668, 79-1761.
United States Court of Appeals, District of Columbia Circuit.
Argued April 14, 1980.Decided June 24, 1980.
1
Appeal from the United States District Court for the District of Columbia Circuit Civil Action No. 76-1066.
2
Daniel B. Johnson, Washington, D. C., with whom James Anton, Washington, D. C., and Gary E. Thompson were on brief, for appellant in No. 79-1668 and appellee in No. 79-1761.
3
Paul M. Rhodes, Washington, D. C., for appellee in No. 79-1668 and cross-appellant in No. 79-1761.
4
Before McGOWAN and WILKEY, Circuit Judges, and RONALD N. DAVIES,* United States Senior District Judge for the District of North Dakota.
5
Opinion for the court filed by Senior District Judge RONALD N. DAVIES.
RONALD N. DAVIES, Senior District Judge:
6
This appeal stems from the attempt of a common carrier by motor vehicle operating under a certificate of convenience and necessity issued by the Interstate Commerce Commission (ICC) to recover sums allegedly due for transportation charges which were billed and paid for at less than published tariff rates.
7
Section 217(b) of the Interstate Commerce Act, 49 U.S.C. § 317(b) provides in part that:No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff than the rates, fares, and charges specified in the tariffs in effect at the time . . .
8
Fry Trucking Company (Fry), a common carrier with published tariff rates, commenced in June, 1973, to transport stone from a quarry in West Virginia to Bethesda, Odenton, Mitchelville and Rockville, Maryland and the District of Columbia pursuant to a written contract with Shenandoah Quarry, Inc. (Shenandoah), which provided, inter alia, that:
9
Tariff The haul rate from said quarry to the stock pile area located on the premises of Asphalt Construction, Inc., Ninth and Brentwood Streets, Washington, D. C. shall be two dollars ($2) per ton. All other haul rates shall be mutually agreed upon as the need arises, but in no case shall any haul rate exceed the lowest haul rate quoted to Shenandoah Quarry, Inc. by more than five percent (5%).
10
Fry, not having authority to provide services to Odenton and Mitchelville, Maryland, entered into an oral lease to use the equipment of Paul Liskey, a common carrier with authority to provide services to these points.
11
From June, 1973 to March, 1974, Shenandoah paid and Fry accepted the agreed upon contract rates. After the parties terminated their business arrangement, Fry, relying on § 217(b) of the Act, supra, commenced this action seeking to recover, as undercharges, the differences between the agreed upon contract rates and its published tariff rates for services to Bethesda, Rockville and the District of Columbia and the differences between the agreed upon contract rates and Liskey's published tariff rates for services to Odenton and Mitchelville.
12
Shenandoah, contending that Fry was estopped by its actions from claiming common carrier status, denied liability and, alleging that Fry had violated the Act by performing services to Odenton and Mitchelville without authority, counterclaimed for the amounts paid for services to these points.
13
The district court ordered the parties to file cross motions for summary judgment on the issue of liability and referred the matter to a magistrate. The magistrate, in a memorandum opinion, rejected Shenandoah's estoppel argument:
14
". . . it is now well settled that 'no legal or equitable defenses are available to a shipper who has been undercharged.' Alleghany Corp. v. Romco, Inc. (392 F.Supp. 38 (D.C.)) at 39; Louisville and Nashville Railroad Company v. Central Iron and Coal Company, 65 (265) U.S. 59 (, 44 S.Ct. 441, 68 L.Ed. 900) (1924); Lowden v. Simonds-Shields-Lonsdale Grain Company, 306 U.S. 516 (, 59 S.Ct. 612, 83 L.Ed. 953) (1939). Thus, courts have consistently applied the published tariff rate and will not consider the parties intent, acts, omissions, contracts or hardships on the shipper. Chicago and North Western R. Co. v. Union Packaging Company, 514 F.2d 30, 32 (8th Cir. 1975); Alleghany Corporation v. Romco, Inc., supra; Bowser (and) Campbell v. Knox Glass, Inc., (390 F.2d 193 (3rd Cir. 1968)); Baldwin v. Scott County Milling Company, 307 U.S. 478, 485 (, 59 S.Ct. 943, 948, 83 L.Ed. 1409) (1939).
15
"Accordingly, Fry is entitled to summary judgment as to liability on its claim for the difference between what was actually paid under its arrangement with Shenandoah and the amount which should have been forthcoming had the scheduled tariff rates been used . . ."
16
The magistrate also held against Shenandoah on its counterclaim:
17
". . . Defendant's counterclaim must fail. It is clear that a shipper is liable even if the carrier has violated the Act. Here, there is no evidence, nor any formal adjudication demonstrating that plaintiff, in fact, has violated the Act and even if there were, as a matter of law and policy, the shipper is entitled to receive the tariff rate for services rendered. Alleghany Corp. v. Romoco (sic), Inc., 392 F.Supp. 38 (W.D.Penn. 1975)."The district court, after reviewing the magistrate's findings and the parties' exceptions thereto, entered judgment against Shenandoah on the issue of liability and ordered the matter referred to the magistrate for findings of fact and conclusions of law on the issue of damages.
18
After resolving the question of the number of miles to Rockville, Bethesda, and the District of Columbia to be used in determining the tariff rates to be applied to the undisputed number of shipments and tonnage transported, the magistrate calculated the amount of undercharges, adjusted by amounts previously received by Fry, for services to these points. However, the magistrate refused to award undercharges for services to Odenton and Mitchelville, holding that:
19
"15. The Interstate Commerce Act prohibits 'Transportation (by common carrier) of passengers and property unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published . . .'
20
"16. Plaintiff was not authorized by the ICC to perform transportation services to Odenton and Mitchelville, Maryland. Plaintiff's oral agreement with Paul Liskey, who did have such authority, pursuant to which plaintiff purported to lease Liskey's operating authority was not approved or authorized by any regulation or ruling of the Commission. The Commission has determined that such arrangements are unlawful. See Samuel Tischler Extension-Canned Goods, No. MC-60612 (sub No. 12), decided January 7, 1960.
21
"17. If this court were to enforce such an agreement, it would, in effect, approve a convenient method of circumventing the regulatory scheme of the Commission and would contravene the oft stated goal of maintaining respect for the rates established under ICC procedures. 7
22
"18. Because plaintiff did not follow its authorized route in performing transportation services to Odenton and Mitcheville (sic), Maryland, it cannot take advantge of published tariff rates to recover undercharges. See Mars Express, Inc. v. David Masnick (sic), Incorporated, 401 F.2d 891 (2nd Cir. 1968)."
23
The district court, in adopting the magistrate's findings of fact and conclusions of law and entering judgment thereon, held that:
24
". . . Rule 53(e)(2) of the Federal Rules of Civil Procedure provides that a 'court shall accept the master's findings of fact unless clearly erroneous.' Applying this standard to the master's findings of fact, the court is unable to find that any finding is clearly erroneous. Moreover, the court is in complete accord with the magistrate's conclusions of law."
25
Both parties have appealed, Shenandoah from the dismissal of its counterclaim and the determination that it was liable for undercharges1 and Fry from the denial of its claim for undercharges for services to Odenton and Mitchelville.
26
The general principles of law involved are well established:
27
"The Interstate Commerce Act was designed to provide uniformity in charges for services, and, thereby, to prevent rate discrimination. . . . If a carrier could modify its tariffs without filing a new tariff, it could engage in rate discrimination. Similarly, to permit a party to invoke estoppel in cases in which a recipient of services covered by a tariff was promised a different charge for those services would undermine the policy of uniformity in charges that underlies the Interstate Commerce Act; it would be possible for rate discrimination to occur through the subterfuge of a carrier's deliberately misinforming a shipper as to the proper charges for services to be rendered."Therefore, filed tariffs have the force of law, . . . and establish the liability of a recipient of services covered by the tariff, even if the recipient was quoted a different price, . . . or was party to a contract under which the services were to be provided at a different price . . . . A carrier cannot waive or modify legally applicable tariffs, . . . and individual hardship is not a defense to the application of such tariffs. . . . Equitable considerations cannot justify a carrier's failure to collect authorized tariff charges . . . . nor can they be invoked as the basis for an estoppel to collect such charges. . . ." (Citations omitted.) Ill. Cent. Gulf R. Co. v. Golden Triangle, etc., 586 F.2d 588 (5th Cir. 1978).
28
However, these principles have never been understood to mean that carriers are entitled to recover the charge set by the tariff even if the carriage is unauthorized or illegal, St. Louis Southwestern Ry. Co. v. Garvey Elevators, Inc., 505 F.2d 625 (5th Cir. 1974), and where the particular service performed is not authorized by the carriers ICC certificate of public convenience, which limits the territorial scope of operations, any extra-territorial service is illegal. Mars Express, Inc. v. David Masnik, Incorporated, 401 F.2d 891 (2d Cir. 1968), Nyad Motor Freight, Inc. v. W. T. Grant Company, 486 F.2d 1112 (2d Cir. 1973).
29
The lower court, in adopting the magistrate's findings of fact and conclusions of law, correctly determined that Shenandoah was liable to Fry for charges made at below published tariff rates for services to Bethesda, Rockville, and the District of Columbia, points within its territorial scope of operations authorized by its certificate of public convenience issued by the ICC.
30
The district court was also correct in adopting the magistrate's determination that Fry could not recover undercharges for services to Odenton and Mitchelville,2 points outside its operating authority. To permit a common carrier, without ICC consideration or approval, to perform extra-territorial services by using the equipment of a carrier with such authority and then to base a claim for undercharges on the second carrier's published tariff rates would create a type of situation the Act was designed to prevent.
31
The distinction between allowing recovery of the full filed tariff rate in the case of the carrier who performed services on his own certificated route and of disallowing recovery of such full tariff rate, when the carrier is not certificated on that route but performs services under a private contract calling for a lower rate than the filed tariff, is that the rationale for allowing the carrier to recover the full tariff rate is that the shipper is charged with constructive notice of the actually filed rate. See, e. g., Nyad Motor Freight v. W. T. Grant Company, 486 F.2d 1112 (2d Cir. 1973); Louisville & N. R. R. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915); Bowser & Campbell v. Knox Glass, Inc., 390 F.2d 193, 196 (3d Cir. 1968) ("The rate filed is a matter of public record of which the shipper must take notice at his peril"). The problem is that if the carrier is not authorized on the route, then he has no rate on file with the ICC, and the shipper has no way of checking the file for that carrier and discovering what the actual rate is. Therefore, it is impossible to charge the shipper with constructive notice of the rate, and it would be unjust to charge him the full tariff rate established for some other carrier on that route.
32
The ICC is charged with enforcing compliance with the Act, 49 U.S.C. §§ 304, 312, 322, and must depend on filed documents to make a knowledgeable determination that the services rendered and the charges made are appropriate. While the Act does not prevent one carrier from placing his equipment under control of another authorized carrier under a lease or similar arrangement, e. g., 49 C.F.R. § 1057, the statute is enforced by treating the user of the equipment as the provider of services who must possess a certificate issued by the ICC. 49 U.S.C. § 303(c).
33
As to Shenandoah's counterclaim, we find that it cites neither statutory nor case-law authority for the proposition that a court must compel a carrier which has provided services outside the scope of its authority to refund amounts the shipper has already paid for those services. Mars Express, Inc. v. David Masnik, Inc., 401 F.2d 891 (2d Cir. 1968), which Shenandoah cites in its brief, is not an authority, since there the court held only that it would not compel a shipper to pay undercharges for services performed outside the scope of the carrier's authority. We therefore affirm the dismissal of Shenandoah's counterclaim.
34
Affirmed.
*
Sitting by designation pursuant to 28 U.S.C. § 294(d)
" This conclusion is contrary to the conclusion reached by the magistrate in the memorandum opinion filed April 7, 1978."
1
Shenandoah also asserts as erroneous the findings of the magistrate as to the mileages to be used in computing the undercharges. The findings of the magistrate, adopted by the district court, are not clearly erroneous, Fed.Rules Civ.Proc. rule 52(a), and will not be set aside
2
By adopting the magistrate's conclusions of law on the issue of damages that were contrary to the conclusion on the issue of liability for services to these points, the district court implicitly amended the judgment entered earlier on the issue of liability
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7247
ANTONIO BURTS,
Plaintiff - Appellant,
v.
GREENVILLE CLERK OF COURT; SOLICITORS OFFICE, 13th Judicial
Circuit; DOROTHY A. MANIGAULT, Attorney; PHILPOT LAW FIRM,
P.A.; ROBERT M. ARIAIL, Solicitor; JOSEPH L. SAVITZ, III,
Appellate Defense Chief Attorney; WANDA H. CARTER, Chief
Deputy; HENRY MCMASTER, Attorney General; KAREN RATJAN,
Assistant Attorney General; KENNETH C. GIBSON, PCR Attorney;
EVERETT P. GODFREY, Jr., Esq., Case #06-OF-775; FRANK L.
EPPS, Esq., Case no. 06-DE-L-777, in connection with case
no. 6-06-2500 and case PCR no. 2006-CP-23-0611; DAVID
WAGNER, Esq., Case no. 06-DE-L-873; DAVID ROSS, Esq., Case
no. 06-DE-L-873; SUSANNAH ROSS, Esq., Case no. 06-DE-L-778;
EDWARD E. WELMAKER, Judge; GARY MICHAEL NETTLES, Judge -
PCR; EDWARD W. MILLER, Trial Judge 11/28/05; DANIEL E.
SHEARHOUSE; SUPREME COURT OF SOUTH CAROLINA; BRENDA F.
SHEALY; RALPH ANDERSON, Senator; KAY PATTERSON, Senator;
SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY; GREENVILLE
COUNTY INVESTIGATIONS DIVISION; O. B. SMITH, Sergeant -
Selective Enforcement Division; UNITED STATES DEPARTMENT OF
JUSTICE, Washington, DC; UNITED STATES POSTAL SERVICE; SOUTH
CAROLINA STATE CONFERENCE; MARSHALL CLEMENT SANFORD, Jr.,
Governor; LINDSEY GRAHAM, U. S. Senator; GLENN F. MCCONNELL;
SOUTH CAROLINA LEGISLATORS; APPELLATE DEFENSE SOUTH CAROLINA
OFFICE; HOLLIE M. JENKINS, Circuit Court Reporter; PCR COURT
REPORTER, on 2/27/07; GREENVILLE COUNTY MAGISTRATE COURT
JUDGES, in connection with all criminal background records
of bond proceedings etc., within herein, indigent defense of
South Carolina; KAYE GORENFLO HEARN, Court of Appeals; JEAN
HOEFER TOAL, Supreme Court Judicial Department; JAMES E.
MOORE; SOCIAL SECURITY ADMINISTRATION, Washington, DC,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (8:07-cv-03011-HMH-BHH)
Submitted: October 21, 2008 Decided: October 29, 2008
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Antonio Burts, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Antonio Burts seeks to appeal an unspecified order in
his 42 U.S.C. § 1983 (2000) action. The district court issued
its most recent decision on December 19, 2007, when it dismissed
Burts’ action without prejudice for failure to prosecute and for
noncompliance with court orders. ∗ We dismiss the appeal for lack
of jurisdiction because the notice of appeal was not timely
filed.
Parties are accorded thirty days after the entry of
the district court’s final judgment or order to note an appeal,
Fed. R. App. P. 4(a)(1)(A), unless the district court extends
the appeal period under Fed. R. App. P. 4(a)(5), or reopens the
appeal period under Fed. R. App. P. 4(a)(6). This appeal period
is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of
Corr., 434 U.S. 257, 264 (1978) (quoting United States v.
Robinson, 361 U.S. 220, 229 (1960)).
The district court’s order was entered on the docket
on December 19, 2007. The notice of appeal was filed in July
2008. Because Burts failed to file a timely notice of appeal or
to obtain an extension or reopening of the appeal period, we
dismiss the appeal. We dispense with oral argument because the
∗
Burts’ previous appeal from this order was timely but
unsuccessful. See Burts v. Greenville Clerk of Court, 275 F.
App’x 239 (4th Cir. 2008) (No. 08-6243).
3
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
4
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635 S.W.2d 639 (1982)
William Carlton SUITER, Appellant,
v.
Raymond G. WOODARD, et al., Appellees.
No. 10-81-050-CV.
Court of Appeals of Texas, Waco.
June 17, 1982.
Rehearing Denied July 15, 1982.
David F. Beale, Houston, for appellant.
J. Michael Dorman, Liddell, Sapp, Zivley, Brown & LaBoon, William G. Nedd, Law Offices of Ed Tynes, Billy Lee, Asst. County Atty., Thomas B. Foster, Clifton & Foster, Houston, for appellees.
OPINION
McDONALD, Chief Justice.
This is an appeal by plaintiff Suiter from an instructed verdict he take nothing in suit *640 to enforce an option to buy a house and lot; and from assessment of an attorney ad litem fee against him.
Plaintiffs Don Little and wife had several lawsuits with defendant Woodard concerning a house and lot. On January 21, 1977 the Littles and Woodard signed an agreement settling all lawsuits and disputed matters between such parties. In such agreement the Littles acknowledged Woodard to be the owner of the property; Woodard agreed to sell the property to the Littles or their designate for $56,000.00 plus all costs related to the sale; and Woodard was to deliver a general warranty deed (excepting certain items not material here). There existed an approximate $42,000.00 first lien on the property in favor of Holland Mortgage Company. The Littles' rights to the property terminated on March 19, 1977 if they did not submit a contract to Woodard, which complied with the settlement agreement before that time. The Littles and Suiter as designate of the Littles submitted a contract to Woodard on March 18, 1977 which offered some $14,000.00 cash and an assumption by Suiter of the Holland note. Woodard rejected the contract because it called for an assumption of the Holland note instead of tendering $56,000.00 cash.
Suiter's attorney attempted to cure Woodard's objection by adding an addendum to the contract: "I [purchaser] agree that seller will be relieved of all liability upon closing on the first lien note to Holland Mortgage Company, and that the note will be assumed by me as the sole obligor as of that date". Woodard still rejected the contract, and thereafter caused the Littles to be evicted by the constable (and a moving company) from the house.
Plaintiffs Little and wife, and Suiter then sued Woodard seeking to enforce the option to purchase the property provided for in the settlement agreement between the Littles and Woodard; and the Littles and their two minor children sued the moving company, its insurance carrier and the constable and two of his deputies for wrongfully evicting them, and for damages to their possessions.
The trial court appointed an attorney ad litem to represent the interest of the two minor Littles children.
After plaintiffs rested, defendant Woodard moved for an instructed verdict as to plaintiffs' claims against him for enforcement of the option contract to sell the property to plaintiffs, which was granted by the trial court.
The Littles' case for wrongful eviction and damages against the other defendants continued before the jury and resulted in verdict the moving company was negligent in removing the Littles' possessions from the premises and fixed their damages.
The trial court thereafter rendered judgment plaintiffs Little and wife and Suiter take nothing against defendant Woodard; plaintiffs Little and wife recover $1428.00 against the moving company and its insurance carrier; the two Littles' minor children recover $148.76 against the moving company and its insurance carrier; and fixed the fee for the minor children's attorney ad litem at $5000.00 prorated as follows: $1000.00 against Woodard, $1000.00 against the Moving Company, $1000.00 against its Insurance Carrier, $500.00 against Mr. & Mrs. Little, and $1500.00 against plaintiff Suiter.
Plaintiff Suiter only appeals.
Point 1 asserts the trial court erred in granting Woodard's motion for instructed verdict and in rendering judgment Suiter take nothing because the evidence does not show as a matter of law that Suiter is not entitled to enforcement of the [option] contract.
Suiter was the Littles' designate to purchase the property under the option created in the Littles' settlement agreement with Woodard. The agreement provided that the purchase price was $56,000.00. Woodard was obligated to convey the property by a general warranty deed (subject only to items not pertinent here). The property had a first lien against it for some $42,000.00 in favor of Holland Mortgage Company. Suiter's proposed contract and tender was not according to the offer in settlement agreement, but was for some *641 $14,000.00 cash and an assumption of the Holland note. Suiter's attorney added an addendum stating: "seller will be relieved of all liability upon closing on the first lien note to Holland and that the note will be assumed by me as sole obligor * *". No offer of $56,000.00 cash was ever made by Suiter to Woodard by contract prior to March 19, 1977; and on trial an officer of Holland Mortgage Company testified that Holland would not release an obligor from liability on a note even though a purchaser assumed such note.
An option must be accepted strictly in accordance with its terms. Zeidman v. Davis, 161 Tex. 496, 342 S.W.2d 555; Hutcherson v. Cronin, (Tyler) NWH, Tex. Civ.App., 426 S.W.2d 638; Vratis v. Baxter, (Beaumont) NRE, Tex.Civ.App., 315 S.W.2d 331. Vratis, supra expresses the rule thusly:
"Acceptance of an option, to be effectual must be unqualified, absolute, unconditional, unequivocal, unambiguous, positive, without reservation and according to the terms or conditions of the option. Substantial compliance with the terms of the option is held not sufficient to constitute an acceptance; and an attempted acceptance which modifies any of the terms of the option is ineffective".
Suiter's attempted acceptance of the option modified its terms and was ineffective.
Point 1 is overruled.
Point 2 asserts the trial court erred in assessing any portion of the attorney ad litem's fees against Suiter.
This case contained two separate causes of action. First, plaintiffs Little, his wife and Suiter sued Woodard in contract to enforce an option to purchase real property. Secondly plaintiffs Little, his wife and their two minor children sued the constable, his deputies, a moving company and its insurance carrier, in tort, for wrongfully evicting them from a house, and for negligence in handling their furniture and property.
The trial court initially assessed all of the attorney ad litem fees for the two minor children against parties other than Suiter, but on rehearing of the matter assessed $1500.00 of such fees against him.
Rule 131 TRCP provides a successful party shall recover of his adversary all costs incurred therein, except where otherwise provided; and Rule 141 TRCP provides the court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these Rules.
Normally the taxing of an attorney ad litem fee for minor parties is in the discretion of the trial court. Costal States Gas Prod. Co. v. Locker, (Houston 14) NWH, Tex.Civ.App., 436 S.W.2d 592; Lofton v. Norman, (Corpus Christi) NRE, Tex. Civ.App., 508 S.W.2d 915.
Suiter was neither adverse nor on the same side as the minor plaintiffs. He was a part of a different cause of action, although a part of the same lawsuit.
We think good cause was lacking to tax $1500.00 of the attorney ad litem fees against Suiter under this record, and that to do so was an abuse of discretion.
Point 2 is sustained.
The judgment is modified to delete the taxing of all attorney ad litem fees against Suiter, and is in all other respects affirmed.
Costs of appeal are taxed one-half against Suiter and one-half against appellees.
MODIFIED & AFFIRMED.
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512 S.W.2d 356 (1974)
The MARFA NATIONAL BANK, a National Bank Corporation, Appellant,
v.
Ralph POWELL, Appellee.
No. 6369.
Court of Civil Appeals of Texas, El Paso.
June 19, 1974.
Rehearing Denied July 24, 1974.
Scott, Hulse, Marshall & Feuille, J. Sam Moore, Jr., El Paso, Norman C. Davis, Marfa, for appellant.
Collins, Langford & Pine, John A. Langford, El Paso, for appellee.
OPINION
OSBORN, Justice.
This is a case involving non-payment by a payor-depositary bank of a Bill of Sale Draft. The owner, Appellee, filed suit to collect the face amount of the instrument, plus interest and attorney's fees, contending the Bank did not timely handle the item when it was deposited and presented for payment. The Bank contends that the instrument was a documentary draft, that its handling was timely, and denies liability to the owner. The trial Court in a non-jury trial entered judgment for Appellee for the *357 amount of the draft, plus interest and attorney's fees. We reverse and render judgment for Appellant.
The following is a copy of both the front and back of the Bill of Sale Draft made the basis of this suit:
On April 13, 1970, Ralph Powell, acting through Joseph F. Hendrix, a customshouse broker, sold 90 steers to Buddy Webb and received in payment the above Bill of Sale Draft. At that time, the Buddy Webb Cattle Account had a checking account balance at the Bank in excess of $20,000.00. At the same time, Buddy Webb was indebted to the Bank in excess of $40,000.00. On April 14, 1970, the Bank, unaware of the draft, withdrew from the Appellee's checking account the sum of $16,000.00 and credited it as a payment to-ward the indebtedness owed by the Appellee. The trial Court found that the above draft with a deposit slip was mailed to the Bank from Presidio by Mr. Hendrix on April 15, 1970, and received by the Bank during banking hours the following day. By reason of the withdrawal from the checking account on April 14, 1970, there were insufficient funds to pay the draft when it was received.
Under Section 4.302 of the Tex.Bus. & Comm.Code Ann., V.T.C.A., if an item is presented on and received by a payor bank the bank is accountable for the amount of a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice *358 of dishonor until after its midnight deadline. Section 4.104, Tex.Bus. & Comm.Code Ann., defines a "Documentary draft" as any negotiable or non-negotiable draft with accompanying documents, securities or other papers to be delivered against honor of the draft. That section also states that the "Midnight deadline" with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later. Section 5.112, Tex.Bus. & Comm. Code Ann., provides that a bank to which a documentary draft or demand for payment is presented under a credit may without dishonor of the draft, demand or credit, defer honor until the close of the third banking day following receipt of the document; and further defer honor if the presenter has expressly or impliedly consented thereto. In this case, the trial Court found that the draft was not a documentary draft and that it having been received by the Bank on Thursday, April 16th, and having been retained past the midnight deadline of the following day, Friday, April 17th, it was accountable for the amount of the item under the provisions of Section 4.302, Tex. Bus. & Comm.Code Ann. The trial Court further found that Appellee's agent, Mr. Hendrix, called The Marfa National Bank on Monday, April 20, 1970, the third banking day after receipt, when he did not receive his receipt for deposit back from the Bank, and after being advised that there were not sufficient funds to cover the amount of the draft, it was mutually agreed that the Bank would hold the item for future payment.
Those cases which have passed upon this particular Code section recognize that there is strict liability upon the part of the bank which does not timely act upon a demand item when presented to a payor bank. Rock Island Auction Sales, Inc. v. Empire Packing Co., Inc., 32 Ill.2d 269, 204 N.E.2d 721 (1965); Farmers Cooperative Livestock Market, Inc. v. Second National Bank of London, 427 S.W.2d 247 (Ky.Ct. App.1968); National City Bank of Rome v. Motor Contract Company of Rome, 119 Ga.App. 208, 166 S.E.2d 742 (1969); Central Bank and Trust Company v. First Northwest Bank, 332 F.Supp. 1166 (E.D. Mo.1971).
The Appellant contends that the instrument was a documentary draft and that under the provisions of Section 5.112, Tex.Bus. & Comm.Code Ann., it could defer honor until the close of the third banking day following receipt of the document and could further defer honor if the presenter consented thereto, and that in this particular case Mr. Hendrix did consent to the Bank holding the draft before the end of the third banking day following receipt of the document. We agree with this contention. A very similar bill of sale draft was before the Court in Valenzuela v. Bank of America, 272 Cal.App.2d 673, 77 Cal.Rptr. 609 (1969). The Court in that case said the bill of sale draft on its face is a documentary draft and therefore the bank could defer honor of it until close of the third banking day following its receipt. The only distinction between the draft in that case and the one before this Court is that the draft in that case contained a provision that the livestock described therein was made subject to a security interest between the drawer of the instrument and the bank. The instrument is a documentary draft regardless of the provision for a security interest.
Section 5.103, Tex.Bus. & Comm.Code Ann., states that a "documentary draft" is one honor of which is conditioned upon the presentation of a document or documents. The word "Document" is defined to mean any paper including document of title, security, invoice, certificate, notice of default and the like. The draft in this case specifically provides that the Bank, at its option, may refuse to honor this draft unless the Bill of Sale is properly filled out. Thus the instrument on its face specifically provides that a condition of honor is the *359 Bill of Sale attached to the draft as a document of title to the described cattle.
In Wiley v. Peoples Bank and Trust Company, 438 F.2d 513 (5th Cir. 1971), the Court pointed out that the term "documentary draft" means any negotiable or non-negotiable draft with accompanying documents, securities or other papers to be delivered against the honor of the draft. Clearly in this case, the Bill of Sale which warranted title to the 90 steers was an accompanying document to the draft and made the instrument within the terms of the Code provisions a "documentary draft."
We sustain the Appellant's first and second points of error, hold that the item was a documentary draft, and that the Bank is not accountable for the amount thereof for failure to timely honor or pay it within one day after receipt.
The judgment of the trial Court is reversed and judgment rendered for the Appellant.
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Bobby Adame v. State of Texas
IN THE
TENTH COURT OF APPEALS
No. 10-99-139-CR
BOBBY ADAME,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court # 31,243
DISSENTING OPINION
The State did not allege that the BB pistol was a deadly weapon by design. Maybe they
should have, given the warnings that accompany these products. The indictment alleged that it
was a deadly weapon because of the manner of its use or intended use. The defendant brandished
the BB pistol at the early stage of the robbery and then concealed it under a shirt. The clear intent
was a non-verbal threat that if the store clerk failed to comply, there would be serious
consequences. The clerk testified to her fear upon display of the BB pistol. The BB pistol had
its intended effect.
The majority holds that because there was no evidence that the BB pistol was loaded, there
is legally insufficient evidence that the BB pistol was a deadly weapon. I disagree. The evidence
referred to above would allow a reasonable juror to conclude that his threat, though implied, was
not an idle threat. See Delgado v. State 986 S.W.2d 306, 309 (Tex. App.—Austin 1999, no pet.).
After this case was submitted, the Court of Criminal Appeals held that carrying a butcher knife
in a hip pocket during the commission of a robbery was sufficient to affirm the deadly weapon
finding. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). The Court concluded
that they agreed with the State that “...objects used to threaten deadly force are in fact deadly
weapons.” Id. The court held:
For legal sufficiency purposes, the question is whether, "after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). Given the
foregoing discussion, the mere carrying of a butcher knife during such a violent attack
as occurred in the present case was legally sufficient for a factfinder to conclude that the
"intended use" for the knife was that it be capable of causing death or serious bodily
injury. Hence, the evidence was legally sufficient to show that the butcher knife was a
deadly weapon under the circumstances.
Id.
I believe the majority has failed to properly apply McCain. I would hold that the evidence
was legally sufficient to uphold the finding that a deadly weapon was used in the commission of
the offense. Because the majority does not, I respectfully dissent.
TOM GRAY
Justice
Dissenting opinion delivered and filed January 10, 2001
Publish
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/23/2020 12:09 AM CDT
- 124 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 306 Neb. 124
Alexander Lanham, appellant and
cross-appellee, v. BNSF Railway
Company, appellee and
cross-appellant.
___ N.W.2d ___
Filed June 12, 2020. No. S-19-114.
supplemental opinion
Appeal from the District Court for Lancaster County:
Robert R. Otte, Judge. Former opinion modified. Motion for
rehearing overruled.
Corey L. Stull and Jeanette Stull, of Atwood, Holsten,
Brown, Deaver & Spier, P.C., L.L.O., and Christopher H.
Leach, of Hubbell Law Firm, L.L.C., for appellant.
Nichole S. Bogen, of Lamson, Dugan & Murray, L.L.P.,
Wayne L. Robbins, Jr., of Robbins Travis, P.L.L.C., and
Andrew S. Tulumello, of Gibson, Dunn & Crutcher, L.L.P.,
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by
the appellant and cross-appellee, Alexander Lanham, con-
cerning our opinion in Lanham v. BNSF Railway Co. 1 While
1
Lanham v. BNSF Railway Co., 305 Neb. 124, 939 N.W.2d 363 (2020).
- 125 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 306 Neb. 124
there is no substantive merit to the motion, Lanham correctly
points out that a statutory citation, also used by the district
court, addressed nonprofit corporations rather than for-profit
corporations such as BNSF Railway Company. This had no
effect upon the outcome of the appeal, as the two statutes
are substantially identical. We overrule the motion, but we
modify the original opinion to substitute the correct citation
as follows:
In syllabus point 11, 2 we withdraw the reference to “Neb.
Rev. Stat. § 21-19,152 (Reissue 2012)” and substitute “Neb.
Rev. Stat. § 21-2,209 (Cum. Supp. 2018).”
We make two changes in the background section. We with-
draw the phrase “Pursuant to Neb. Rev. Stat. § 21-19,152
(Reissue 2012),” in the fourth sentence of the third paragraph. 3
In the first sentence of the fifth paragraph, we add “Neb.
Rev. Stat.” before “§ 21-19,152” and “(Reissue 2012)” after
the statute. 4
We also modify the analysis section in five respects
under the subheading “Consent by Registration.” In the
eighth paragraph, 5 after the first sentence, we add “Because
§ 21-19,152 applies to nonprofit corporations, the district court
should have cited to Neb. Rev. Stat. § 21-2,209 (Cum. Supp.
2018), a nearly identical statute applicable to for-profit cor-
porations like BNSF.” We withdraw the ninth paragraph 6 and
substitute:
Section 21-2,209 provides:
. . . Each foreign corporation authorized to trans-
act business in this state must continuously maintain in
this state:
2
Id. at 125, 939 N.W.2d at 363.
3
Id. at 126, 939 N.W.2d at 366.
4
Id. at 127, 939 N.W.2d at 366.
5
Id. at 133, 939 N.W.2d at 370.
6
Id. at 133-34, 939 N.W.2d at 370.
- 126 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 306 Neb. 124
(1) A registered office that may be the same as any of
its places of business; and
(2) A registered agent, who may be:
(i) An individual who resides in this state and whose
business office is identical with the registered office;
(ii) A domestic corporation or not-for-profit domestic
corporation whose business office is identical with the
registered office; or
(iii) A foreign corporation or foreign not-for-profit cor-
poration authorized to transact business in this state whose
business office is identical with the registered office.
In the 10th paragraph, 7 we substitute “21-2,209” for “21-19,152”
in the first and third sentences. Finally, in the second sen-
tence of the last paragraph of the subsection, 8 we substitute
“21-2,209” for “21-19,152.”
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.
7
Id. at 134, 939 N.W.2d at 370.
8
Id. at 135, 939 N.W.2d at 371.
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Hutchins v. Peterson, No. 480-10-00 Wmcv (Wesley, J., Jan. 30, 2004)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]
STATE OF VERMONT
WINDHAM COUNTY, SS.
LISA HUTCHINS and
DUSTIN HUTCHINS,
Plaintiffs,
v. WINDHAM SUPERIOR COURT
DOCKET NO. 480-10-00 Wmcv
MICHAEL PETERSON,
SHAWN LUNDRIGAN and
THOMAS L’ESPERANCE,
Defendants.
ORDER ON DEFENDANTS’ MOTIONS FOR JUDGMENT
In 1997, Plaintiff was arrested and charged with selling crack cocaine to an undercover
officer, Defendant Lundrigan. The charges against Plaintiff were dismissed without prejudice in
1998. In 2000, Plaintiff brought this action alleging that Defendants, all of whom were involved
in her arrest, had violated her rights under the federal constitution, had violated her rights under
the state constitution, and had committed various torts against her under state common law.
Defendants removed the case to federal district court and moved to dismiss on qualified
immunity grounds. In March 2001, the federal court denied Defendants’ motion to dismiss for
lack of a prima facie case, reasoning that Plaintiff might be able to show lack of probable cause
to support Plaintiff’s arrest, and that Defendants would not be entitled to qualified immunity if
they arrested her without probable cause. See Hutchins v. Peterson, 139 F.Supp.2d 575 (2001).
However, in October 2002, after discovery, the federal court concluded that Defendants were
entitled to qualified immunity because the evidence, even viewed favorably to Plaintiff, established that Defendants
had probable cause to arrest and proceed against her. Thus, the arrest and prosecution did not violate clearly
established rights of which the officers should have known, and they were entitled to qualified immunity. The
federal court then granted summary judgment for Defendants on the federal claims, but remanded the state claims to
this Court. Hutchins v. Peterson, 2:00-CV-457, “Opinion and Order” issued October 21, 2002. Plaintiff took no
appeal from the federal order.
Defendants Lundrigan and Peterson have filed motions for summary judgment, and Defendant L’Esperance
has filed a motion for judgment on the pleadings, which Defendants Lundrigan and Peterson have also joined. As
these motions all rely on issue preclusion and qualified immunity, the Court will address them together, applying a
summary judgment standard. Based on the Vermont Supreme Court’s recent decision in Stevens v. Stearns, 2003
VT 74, 14 Vt. L.W. 211 (2003), the Court concludes that the federal court’s determinations
as to probable cause and qualified immunity is entitled to preclusive effect, and that Defendants’ motions for
judgment must be GRANTED. Furthermore, the Court concludes that the other pending motions – Plaintiff’s
motion to amend her complaint, and three discovery motions filed by Plaintiff (one against each Defendant) –
should be DISMISSED AS MOOT.
Background
1
Summary judgment is appropriate if, viewing the evidence favorably to the non-moving party
and giving her the benefit of all reasonable doubts and inferences, the Court determines that there are no
genuine questions of material fact and the moving party is entitled to judgment as a matter of law. See
Select Designs, Ltd. v. Union Mutual Fire Ins. Co., 165 Vt. 69, 72 (1996).
2
The Court acknowledges that its Entry Order issued May 1, 2003 allowed Plaintiffs to pursue
further discovery in an effort to undermine the probable cause determination. However, that order was
issued before the decision in Stevens clarified the application of claim preclusion in this context.
In the fall of 1997, the Southern Vermont Drug Task Force was investigating a suspected crack house on
Maple Street in Brattleboro. As part of the investigation, Officer Lundrigan went into the house undercover to
purchase crack cocaine. One of his purchases was from a white woman. During another purchase three days later,
another dealer identified this woman as "Julie." Officer Lundrigan later described “Julie” as in her thirties, with
straight, shoulder length, dirty blond hair, and tattoos on her left arm. Two and a half weeks later, the task force
raided the crack house and arrested several members of the drug distribution ring. However, “Julie,” the woman who
sold crack to Officer Lundrigan, was not there.
Officers Peterson (a Brattleboro policeman working as a liaison with the task force), L'Esperance (a
supervisor with the task force), and Lundrigan attempted to identify “Julie” by having Lundrigan look, one by one,
at white females whom they knew had been at the crack house based on videotape surveillance. Officer Lundrigan
considered two women before he considered Plaintiff. One of these women was Julie Maynard -- a woman who
spent a lot of time in the house and had her own room there. A videotape of the front and side of the house taken on
the day of Lundrigan’s purchase showed Julie Maynard was there on that day. Furthermore, there was evidence that
a dog was in the house at the time of Officer Lundrigan’s purchase of crack from the woman, and that Julie Maynard
had a dog. A diagram found in Officer L’Esperance’s file seems to indicate that based on these circumstances,
someone with the force had concluded that “Julie” was probably Julie Maynard. Nevertheless, Officer Lundrigan
looked at Julie Maynard and concluded that she was not the one who had sold him the crack cocaine. The other
woman Officer Lundrigan looked at and rejected was an unidentified woman in the parking lot of the Drop-In
Center who had also been observed at the house during the investigation.
Officer Lundrigan was then taken to look at Plaintiff, as she had been seen at the crack house several times,
and Officer Peterson felt that she fit the general description of “Julie” and was known to him to have “prior
associations with persons known to use and/or sell illegal drugs”. However, she had not been on the task force’s list
of house suspects, and was not on the videotape of the crack house on the day of the sale. She also did not exactly fit
the description Officer Lundrigan had previously given of “Julie”: she was in her late twenties rather than her
thirties, with wavy dirty blond hair longer than shoulder length. She also had tattoos on both arms rather than just
her left, and she wore a lot of jewelry, to the extent that it would have been logical to mention it in a description.
3
Nonetheless, Officer Lundrigan positively identified Plaintiff as the one who sold him the crack, and she was
arrested.
Subsequent events shed doubt on Lundrigan’s identification. Julieanna Shea, known as “Lisa” by other
residents in the house, had been arrested as a member of the drug distribution ring. On March 14, 1998, almost four
months after she and Plaintiff had been arrested, Julieanna Shea gave a sworn statement to the police saying that she
had never met Plaintiff, and that Julie Maynard was the one who sold Officer Lundrigan the crack.
In April1998, the charges against Plaintiff were dismissed without prejudice. In 2000,
she brought this action, and Defendants removed the case to federal court as described above.
After discovery, which disclosed the evidence just summarized, the federal court granted
summary judgment. The federal court acknowledged the existence of circumstances tending to
indicate that the seller was Julie Maynard. While each Defendant maintained that at the time of
the arrest he was unaware of any substantial evidence that would contradict Lundrigan’s
identification, they conceded for the purpose of the federal summary judgment proceeding that
Plaintiff had been mistakenly identified. Nonetheless, the court concluded that given Officer
Lundrigan’s positive identification of Plaintiff, coupled with his consideration but positive
rejection of Julie Maynard, the circumstances suggesting Julie Maynard was the seller were not
logically compelling enough to negate the existence of probable cause at the time of the arrest,
and nothing subsequently learned by the officers undermined it.
3
Plaintiff’s malicious prosecution claims are apparently based on the assumption that even if
arresting officers have probable cause at the time of the arrest, they have a continuing duty to ensure that
the arrested person is not prosecuted if they subsequently learn of information which undermines probable
cause. For purposes of this motion, the Court accepts this assumption, as the federal court apparently did.
However, the federal court held that the subsequently learned information (i.e., Julieanna Shea’s
statement that the seller was Julie Maynard rather than Lisa Hutchins) did not undermine the existence of
probable cause, because that had been based on the undercover officer’s positive eyewitness
identification. Thus, for the purposes of the issue preclusion analysis, whether there was probable cause
to prosecute or whether there was probable cause to arrest are analytically indistinguishable..
4
Analysis
The State Claims
Plaintiff alleges that Defendant officers violated her right to liberty under the Vermont
Constitution, Chapter One, Articles 1, 9 & 10, and her right to be free from warrantless search
and seizure under Article 11. In addition to these constitutional torts, Plaintiff also asserts state
common-law tort claims based on theories of false arrest, false imprisonment, and malicious
prosecution.
Qualified Immunity Under State Law
Under state law, “‘lower-level government actors are immune from tort liability when
they perform discretionary acts in good faith during the course of their employment and within
the scope of their authority,’” and “‘good faith exists where an official’s acts did not violate
clearly established rights of which the official reasonably should have known.’” Stevens v.
Stearns, 2003 VT 74, Para. 15. Here, Defendants’ arrest of Plaintiff based on Officer
Lundrigan’s identification of her as the seller, despite circumstances suggesting the seller might
be someone else, was clearly a discretionary act done in the course of their employment and
within the scope of their authority. Thus, Defendants are entitled to immunity under state law if
they acted in good faith – that is, if they did not violate Plaintiff’s clearly established rights.
In Vermont, persons have a clearly established right not to be seized unlawfully.
However, it is also clearly established that an officer may arrest a person, even without a
warrant, if the officer has probable cause to believe the arrested person has committed a felony.
See V.R.Cr.P. 3(a). It follows that the viability of Plaintiff’s claims turns on whether Defendants
had probable cause to believe she had committed a felony.
5
Issue Preclusion
Issue preclusion is appropriate if a final judgment on the merits has already been entered
in litigation between the same parties; the same issue was adjudicated in that litigation as is now
presented; the parties had a full and fair opportunity to litigate the issue in the prior action; and
applying preclusion is fair. See Stevens, 2003 VT 74, Para. 13. Here, litigation between the
same parties has produced a final judgment on the merits, determining that Defendants were
entitled to qualified immunity with respect to the federal claims because they had probable cause
to arrest Plaintiff. The pivotal question, then, is whether the issues of qualified immunity and
probable cause currently before this Court are the same as the ones already decided in federal
court.
Until recently, it was unclear whether preclusion should apply in this context, where
questionable conduct on the part of a state official gave rise to both federal and state claims, and
after removal, the federal court disposed of the federal claims on qualified immunity grounds but
left the state claims to be dealt with in state court. In Stevens v. Stearns, 2003 VT 74, however,
the Vermont Supreme Court clarified that issue preclusion could and should be applied to
qualified immunity determinations made in federal court whenever the parallel federal and state
claims are based on essentially the same facts and law.
In Stevens, the plaintiff brought an action for damages against a probation officer and
others, claiming that they had illegally searched her home. 2003 VT 74, Para. 1. The plaintiff
had consented to searches as a condition of probation, but she charged that the search in question
occurred after her probationary period ended. The plaintiff brought her action in state court,
alleging federal as well as state claims. After removal, the federal court granted summary
6
judgment for the defendants on the federal claims on qualified immunity grounds, reasoning that
the termination date of the probation period was unclear, such that a reasonable probation officer
could have concluded that she was still on probation and subject to a search. Id. at Para. 5. The
plaintiff appealed the federal court decision, but it was affirmed. Id. at Para. 7.
The plaintiff in Stevens then pursued her state claims in state court. The trial court
granted summary judgment for the defendants on all state claims, however, giving preclusive
effect to the federal court’s determinations regarding objective reasonableness and qualified
immunity. On appeal, the plaintiff argued that collateral estoppel should not apply, reasoning
that since the search and seizure protections of Chapter I, Article Eleven of the Vermont
Constitution are in some instances greater than those provided by the Fourth Amendment to the
Federal Constitution, the issues of objective reasonableness and qualified immunity under state
law are simply not the same as the issues of objective reasonableness and qualified immunity
under federal law. Id. at Paras. 16-17. The Vermont Supreme Court rejected this argument and
affirmed. Pointing out that the “clearly established” right under both provisions is the right to be
free from unreasonable searches and seizures, the Court held that “[t]he relevant question in both
cases is whether, in light of plaintiffs’ clearly established right to be free from unreasonable
searches and seizures and in light of the information possessed by defendants, it was nonetheless
objectively reasonable for defendants to believe that their conduct was lawful.” Id. at Para. 23.
The Court concluded that the issues were indistinguishable under state or federal law, and
therefore the plaintiff was not entitled to a separate adjudication in state court, but was bound by
the federal court’s determination of qualified immunity.
Like the plaintiff’s claims in Stevens, Plaintiff’s claims here, whether federal or state, all
7
asserted essentially the same right – the right to be free from unlawful seizure, meaning the right
to be free from arrest without probable cause. Plaintiff nonetheless contends that Stevens does
not control, because Stevens did not involve probable cause law, and probable cause under
Vermont law differs from probable cause under federal law. If probable cause did present
different issues under state law, the parallel claims would not be based on essentially the same
facts and law, and issue preclusion could not apply. However, Plaintiff’s suggestion that
probable cause is different under Vermont law is unsupportable.
Plaintiff’s argument stems from a distinction in the language of Article Eleven of the
Vermont Constitution (which forbids searches and seizures without a warrant), compared with
the language of the Fourth Amendment to the United States Constitution (which forbids
unreasonable searches and seizures without a warrant), and the fact that Vermont has not
followed federal Fourth Amendment jurisprudence in all respects. Cf., e.g., State v. Sprague,
2003 VT 20, 14 Vt. L.W. 39 (officer conducting traffic stop cannot routinely ask driver to exit
vehicle under state law, although such limited further restraint has been upheld under federal
law; notably, the decision addressed not the scope of what constitutes probable cause, but rather
the quantum of suspicion regarding other criminal activity short of probable cause that will
suffice to justify additional investigatory detention after a stop based on probable cause for a
motor vehicle violation). Plaintiff cites State v. Record, 150 Vt. 84, 86 (1988),ostensibly for its
recognition of the difference in the two provisions, and of our Supreme Court’s rightful authority
to interpret Article Eleven in a manner different from the Fourth Amendment. However,
Plaintiff fails to note that the Court in Record actually rejected the very argument she is making
– that the absence of the word “unreasonable” in Article Eleven warrants the conclusion that
8
Vermont law should be considered more protective than federal law in all aspects of search and
seizure jurisprudence. See 150 Vt. at 85 (“the word ‘unreasonable’ is as implicit in Article
Eleven as it is express in the Fourth Amendment”). Moreover, in State v. Caron, 155 Vt. 492
(1990), in which a defendant challenged the legality of his arrest under both federal and state
law, the Court engaged in a single analysis, utilizing a single definition of probable cause. Id. at
500 (under federal and state law, probable cause to arrest exists where facts and circumstances
are sufficient to warrant a prudent person to believe that the defendant had committed an
offense). Therefore, the Court concludes that though Vermont in certain respects affords more
protection against unlawful search and seizure than federal law, the issue particular to this case
as to the elements of probable cause is the same under either state or federal analysis.
As demonstrated above, in assessing the applicability of issue preclusion, this case and its
federal predecessor present the same probable cause and qualified immunity issues, and involve
the same parties. Unless Plaintiffs can demonstrate that they were deprived of a full and fair
opportunity to litigate the issues, the final judgment rendered in federal court is binding on them
here. Stevens, supra. Yet, the Court concludes that Plaintiff had a full and fair opportunity to
litigate the probable cause and qualified immunity issues in federal court. The federal court
initially denied Defendants’ motion to dismiss, allowing Plaintiff to pursue discovery. Plaintiff
served, and received answers to, two sets of interrogatories, requests to produce, and requests to
admit for each Defendant. She also took depositions. Following this ample discovery period,
4
Plaintiff would have liked to pursue further discovery, in an attempt to find other circumstances
which might strengthen the inference that the seller was Julie Maynard rather than Plaintiff. However,
while a full and fair opportunity to litigate arguably includes adequate discovery, it clearly does not
require limitless discovery. Furthermore, as the federal court held, “in evaluating the probable cause
9
Plaintiff was unable to convince the federal court that, given significant amounts of information
suggesting a different seller, a prudent person in the position of any of the Defendants would not
have believed she was the seller, despite the fact that Officer Lundrigan positively identified her
as the seller. The federal court considered her evidence and arguments at length, but nonetheless
concluded that there was probable cause to arrest her.
Based on the totality of the circumstances, probable cause existed to arrest
Hutchins. L’Esperance and Peterson reasonably relied on Lundrigan’s
identification of her, based on his having transacted a hand to hand sale three
weeks before, and his having rejected Maynard, their more likely candidate, as the
unknown “Julie”. Assuming that the diagram from L’Esperance’s investigative
file was created before Hutchins arrest, it is information that suggests another
culprit, but does not negate Hutchins’ involvement. This and other arguably
exculpatory evidence known to the officers warranted the officers’ caution, in
eliminating Maynard as the suspect before looking to another, but did not give
them reason to doubt Lundrigan’s veracity, nor to believe that his identification
would be unreliable. “[A] police officer is not required to explore and eliminate
every theoretically plausible claim of innocence before making an arrest.
Martinez, 202 F. 3d at 635 (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d
123, 128 (2d Cir. 1997)).
Hutchins v. Peterson, 2:00-CV-457, “Opinion and Order” (10/21/02) at p.12. Following the
rejection of her claim as a matter of summary judgment, Plaintiff had the opportunity to appeal
as a matter of right, but she chose not to do so.
determination, only the facts available to the officers at the time of the arrest are considered.” Hutchins v.
Peterson, 2:00-CV-457, “Opinion and Order” (10/21/02) at p.11, citing Martinez v. Simonetti, 202 F.3d
625, 635 (2d Cir. 2000) . Thus, the federal court concluded that “[t]he Shea affidavit can play no part in
determining whether the police officers had probable cause”. Id.at fn. 2. There is no basis in the present
record for concluding that Plaintiff was given an inadequate opportunity in federal court to explore the
facts that were available to the officers at the time of the arrest.
5
Plaintiff cites State v. Dann, 167 Vt. 119 (1997) for the proposition that issue preclusion should
not apply if the losing party did not have the ability or incentive to appeal. In Dann, however, the losing
party was the State in a misdemeanor prosecution, and thus not entitled to appeal. Here, Plaintiff was
entitled to appeal as a matter of right, and the Court cannot accept her suggestion that she did not have
incentive to appeal. It is true that her decision not to appeal was made before Stevens was issued, but the
issue preclusion issue was entirely foreseeable.
10
The final consideration is fairness. In considering whether it is fair to deny Plaintiff the
opportunity to relitigate this qualified immunity issue, the Court believes it is appropriate to
consider the nature and purpose of qualified immunity itself. Substantial social costs accompany
suits against state officials, including the cost and distraction of the litigation and deterrence
from going into public service. See Heleba v. Allbee, 160 Vt. 283, 292 (1992). Thus, the goal is
to minimize protracted litigation of the type represented by this case by providing immunity for
“all but the plainly incompetent or those who knowingly violate the law.” Id. Moreover, since
qualified immunity is immunity from the suit itself, not just from ultimate liability, it should be
decided at as early a stage in the litigation as possible. Cf. Murray v. White, 155 Vt. 621, 626-27
(1991) (explaining why interlocutory denial of qualified immunity should be appealable under
collateral order exception to finality rule).
It is now more than six years since the incident at issue here, and three years since this
suit was initiated. Plaintiff is not responsible for all of this delay, but it is nonetheless the case
that her claims remain hanging over the heads of these Defendants, causing these public officials
exactly the type of distraction and worry that qualified immunity was meant to prevent. Plaintiff
has pursued discovery and had the opportunity to convince a federal court that there was no
probable cause to arrest her. That court considered her arguments at length, and explained its
decision in detail. Considering all these matters, and in light of the implicit message of Stevens
that federal-state issue preclusion in this context does not offend state interests or sensibilities as
a general proposition, the Court cannot conclude that fairness requires giving Plaintiff another
chance to pursue further discovery in a likely futile second attempt to establish that there was no
probable cause.
11
Defendants’ motions for judgment are therefore GRANTED.
Other Motions
Also pending are Plaintiff’s motions to amend and three discovery motions. The focus of
the discovery motions, as well as the arguably new allegation Plaintiff seeks to add, is the same:
a diagram found in Officer L’Esperance’s file that indicates that prior to November 24, 1997, the
day of Plaintiff’s arrest, the police believed Julie Maynard was probably “Julie.” However, this
is something the federal court assumed to be true for purposes of ruling on the motion, and
something the officers conceded for purposes of that proceeding. Given this Court’s analysis on
issue preclusion, Plaintiff’s motions could not affect the outcome. Accordingly, these motions
will be DISMISSED AS MOOT.
ORDERS
Defendants’ motions for judgment are GRANTED, and judgment shall be entered for
Defendants against both Plaintiffs.
Plaintiffs motion to amend, motion for sanctions against Defendant L’Esperance, motion
to compel against Defendant Peterson, and motion to compel against Defendant Lundrigan are
DISMISSED AS MOOT.
Signed at Brattleboro, Vermont, this ____ day of ____________, 200__.
_____________________________
John P. Wesley
Presiding Judge
6
Although the Court’s discussion has focused only on Plaintiff Lisa Hutchins’ claims, judgment
will also be entered on her son’s claims, which are derivative.
12
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FOURTH DIVISION
March 9, 2006
No. 1-05-0284
NICHOLAS W. GALASSO AND JEFFREY D. )
GALASSO, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees, ) Cook County.
)
v. )
)
KNS COMPANIES, INC., )
)
Defendant-Appellant. ) Honorable
) Thomas P. Quinn
) Judge Presiding.
)
PRESIDING JUSTICE QUINN delivered the opinion of the court:
Defendant KNS Companies, Inc. (KNS), appeals from an order
of the circuit court of Cook County affirming an arbitration
award in favor of plaintiffs Nicholas W. Galasso (Nicholas) and
Jeffrey D. Galasso (Jeffrey). On appeal, defendant contends that
the arbitrator exceeded his authority by determining the
existence of employment contracts and awarding damages beyond
those provided for in the alleged contracts. Defendant also
contends that the circuit court should have modified the
arbitrator's determination where it contained evident
miscalculations of figures and mistakes in descriptions. For the
1-05-0284
following reasons, we affirm.
I. Background
KNS is a closely held Illinois corporation with 24
shareholders. KNS is in the business of producing interior
linings for steel drums and pails. KNS' board of directors
observed informal procedures. Nicholas and Jeffrey are father
and son, respectively, and were employed by KNS until 2002.
Nicholas was president and a director of KNS. Nicholas was
primarily responsible for the day-to-day operations of KNS, and
through informal relations with members of the board of directors
and shareholders, operated KNS with little or no supervision.
Jeffrey was employed by KNS and held the office of executive vice
president and treasurer. He was elected treasurer in an informal
action by the board of directors on December 5, 1999. Prior to
December 5, 1999, Jeffrey was not an officer of KNS. Jeffrey's
responsibilities included full charge of the plant, including
plant personnel, manufacturing, inventory, purchasing and lab
technical projects.
On April 26, 2002, KNS relieved Nicholas of his duties as
president of KNS. KNS's board of directors agreed to compensate
Nicholas as president emeritus of KNS from April 26, 2002,
through December 2002. After being named president emeritus, on
May 14, 2002, Nicholas was suspended by KNS from employment
pending an audit. Jeffrey was also suspended on the same date,
-2-
1-05-0284
pending an audit. In June 2002, pursuant to their employment
agreements, Nicholas and Jeffrey each filed a demand for
arbitration with the American Arbitration Association
(Association). Nicholas and Jeffrey alleged that KNS breached
their employment contracts by terminating their employment and
failing to pay wages and benefits due under their employment
contracts. KNS denied that Nicholas and Jeffrey had valid
employment contracts during the arbitration proceedings.
The record contains two documents entitled "Employment
Agreement" between KNS and Nicholas, and between KNS and Jeffrey.
These agreements also contain an arbitration clause, which
provides:
"Any controversy or claim arising out of, or relating
to, this Agreement or the breach thereof, shall be
settled by arbitration in accordance with the rules
then obtaining of the American Arbitration Association,
and judgment upon the award rendered may be entered in
any Court having jurisdiction thereof."
Following seven days of testimony, on July 14, 2004, the
arbitrator found in favor of Nicholas and Jeffrey and awarded
various monetary awards. The arbitrator specifically found that
Nicholas and Jeffrey each had an employment contract and
agreement with KNS, which expired in December 2002. The
arbitrator found that neither Nicholas nor Jeffrey breached any
of the terms or conditions of their employment contracts and
-3-
1-05-0284
agreements with KNS, and each of them devoted his best efforts to
the business interests of KNS. The arbitrator determined that
KNS was liable to Nicholas for the following amounts: $194,000
for unpaid compensation for the period May 1, 2002, through
December 7, 2002; $3,500 in business expenses; $2,666.74 for
medical insurance for the period from August 1 through December
8, 2002; and $3,263.55 for medical expenses from May 2002 through
December 8, 2002. The arbitrator determined that KNS was liable
to Jeffrey for the following amounts: $101,000 for unpaid
compensation for the period from May 1, 2002, to December 7,
2002, and $7,968.40 for medical expenses and insurance. The
arbitrator also determined that Nicholas and Jeffrey were
entitled to reasonable attorney fees in the amount of $80,000.
The arbitrator further determined that KNS was liable for the
administrative fees and expenses of the Association and the
arbitrator. Accordingly, the arbitrator directed KNS to pay
Nicholas and Jeffrey $24,900 for amounts previously advanced to
the Association.
On July 19, 2004, Nicholas and Jeffrey filed an action in
the circuit court to confirm the final award of the arbitrator.
KNS filed a motion to vacate or modify the arbitrator's award.
On December 21, 2004, the circuit court entered an order
affirming the arbitrator's final award and denying KNS's motion.
KNS appeals from that order.
II. Analysis
-4-
1-05-0284
A. KNS's Claim That the Arbitrator Lacked the Authority to
Determine the Existence of Employment Contracts
KNS first contends that the circuit court should have
vacated the arbitrator's award where the arbitrator exceeded his
authority. Relying on Kilianek v. Kim, 192 Ill. App. 3d 139
(1989), KNS argues that the arbitrator had no authority to
determine whether a contract existed in this case because it was
an issue of law determinable only by the courts.
However, our supreme court addressed this issue in Jensen v.
Quik International, 213 Ill. 2d 119 (2004). In Jensen, the
plaintiff sought to rescind a franchise agreement with the
defendant on the grounds that the agreement violated the Franchise
Disclosure Act of 1987 (Franchise Act) (815 ILCS 705/5 (West
2002)), because the defendant franchisor was not registered with
the Attorney General's office at the time of sale. Jansen, 213
Ill. 2d at 120-21. The defendant sought to stay any litigation on
the agreement pending arbitration pursuant to an arbitration clause
contained therein; however, the circuit court denied the motion.
Jensen, 213 Ill. 2d at 121. The appellate court affirmed the
denial, holding that because compliance with the Franchise Act was
a condition precedent to an enforceable contract, the agreement and
the arbitration clause were not binding because the contract did
not exist if the Franchise Act had been violated. Jensen, 213 Ill.
2d at 121. Therefore, the appellate court found, the question of
whether the Franchise Act had been violated had to first be
-5-
1-05-0284
determined in a court of law prior to enforcement of the
arbitration clause. Jensen, 213 Ill. 2d at 121-22. Our supreme
court disagreed and reversed the trial and appellate courts.
In its decision, the supreme court concluded that registration
with the Attorney General's office was not a condition precedent to
an enforceable franchise agreement. The Franchise Act provides
that in the case of a violation of the statute, the available
remedies are rescission and damages. The Franchise Act does not
provide that agreements entered into in violation of the Act are
invalid and unenforceable. Jensen, 213 Ill. 2d at 127. Our
supreme court also noted that Illinois public policy favors
arbitration as a means of resolving disputes. Jensen, 213 Ill. 2d
at 128-29. It concluded that if a party where allowed to avoid
arbitration simply by alleging that no contract existed, it would
be undermining that policy, as "almost any plaintiff can find some
theory or claim upon which to allege that no contract existed,
thereby avoiding arbitration." Jensen, 213 Ill. 2d at 128-29.
Therefore, the supreme court found that the issue of whether the
statute was violated, thereby entitling the plaintiff to rescission
of the franchise agreement, was arbitrable under the arbitration
clause of the franchise agreement.
In Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 156
L. Ed. 2d 414, 123 S. Ct. 2402 (2003), the United States Supreme
Court considered the petitioner's argument that the arbitration
clause in question precluded class arbitration. The Supreme
-6-
1-05-0284
Court noted that the parties agreed to arbitrate " 'all disputes,
claims or controversies arising from or relating to this contract
or the relationships which result from this contract.' " Bazzle,
539 U.S. at 451, 156 L. Ed. 2d at 422, 123 S. Ct. at 2407. The
Supreme Court determined that "the dispute about what the
arbitration contract in each case means" is a dispute "relating
to this contract" and the resulting "relationships." Bazzle, 539
U.S. at 451, 156 L. Ed. 2d at 422, 123 S. Ct. at 2407.
Therefore, the Court concluded that the parties seem to have
agreed that an arbitrator, not a judge, would answer the relevant
question and that if there is doubt about the scope of arbitrable
issues, the Court should resolve the doubt in favor of
arbitration. Bazzle, 539 U.S. at 451-52, 156 L. Ed. 2d at 422,
123 S. Ct. at 2407. Accordingly, where the arbitration agreement
contains sweeping language concerning the scope of the questions
committed to arbitration, as in the present case, matters
relating to the preliminary arbitrability questions should be for
the arbitrator, not the courts, to decide.
However, in Illinois, section 2 of the Uniform Arbitration
Act (Arbitration Act) (710 ILCS 5/2 (West 2002)) provides the
parties with an avenue to bring arbitrability questions before
the courts. Section 2 provides in pertinent part:
"Proceedings to compel or stay arbitration. (a) On application of a
party showing an agreement described in Section 1, and the opposing
party's refusal to arbitrate, the court shall order the parties to proceed with
-7-
1-05-0284
arbitration, but if the opposing party denies the existence of the agreement
to arbitrate, the court shall proceed summarily to the determination of the
issue so raised and shall order arbitration if found for the moving party,
otherwise, the application shall be denied. (b) On application, the
court may stay an arbitration proceeding commenced or threatened on a
showing that there is no agreement to arbitrate. That issue, when in
substantial and bona fide dispute, shall be forthwith and summarily tried
and the stay ordered if found for the moving party. If found for the
opposing party, the court shall order the parties to proceed to arbitration."
710 ILCS 5/2(a),(b) (West 2002).
This procedure allows a party to petition the circuit court to determine arbitrability
questions where the party challenges the existence of an arbitration agreement. Upon
such application, the court is charged with interpreting the parties' agreement and
determining whether the issue is arbitrable or one that it must address. Here, KNS did
not petition the circuit court pursuant to section 2 of the Arbitration Act to challenge the
existence of the arbitration agreement. Rather, KNS engaged in the arbitration and
argued the validity of the employment contracts before the arbitrator. In doing so, KNS
submitted the issue to the arbitrator's determination. Applying the Supreme Court's
analysis in Bazzle, we find that the preliminary arbitrability questions in this case (i.e.
the validity of the employment agreements), should be for the arbitrator, not the courts,
to decide.
B. KNS's Claim That the Arbitrator Exceeded His Authority in Awarding the Amount of
-8-
1-05-0284
Unpaid Compensation
KNS next contends that the circuit court should have vacated the arbitrator's
award where the arbitrator exceeded his authority by awarding Jeffrey and Nicholas
greater wages than those provided for in their contracts and awarding them attorney
fees.
Judicial review of an arbitration award is more limited than the review of a trial
court's decision. Equity Insurance Managers of Illinois, LLC v. McNichols, 324 Ill. App.
3d 830, 835 (2001). Because the parties have agreed to have their dispute settled by
an arbitrator, it is the arbitrator's view that the parties have agreed to accept, and the
court should not overrule an award simply because its interpretation differs from that of
the arbitrator. Everen Securities, Inc. v. A.G. Edwards & Sons, Inc., 308 Ill. App. 3d
268, 273 (1999). There is a presumption that the arbitrator did not exceed his authority
(Tim Huey Corp. v. Global Boiler & Mechanical Inc., 272 Ill. App. 3d 100, 106 (1995))
and a court must construe an award, if possible, so as to uphold its validity (Equity
Insurance, 324 Ill. App. 3d at 835). A court has no power to determine the merits of the
award simply because it strongly disagrees with the arbitrator's contract interpretation.
Herricane Graphics, Inc. v. Blinderman Construction Co., 354 Ill. App. 3d 151, 156
(2004). Also, a court cannot overturn an award on the ground that it is illogical or
inconsistent. Herricane Graphics, Inc., 354 Ill. App. 3d at 156. In fact, an arbitrator's
award will not even be set aside because of errors in judgment or a mistake of law or
fact. Herricane Graphics, Inc., 354 Ill. App. 3d at 156.
The limited circumstances under which this court may modify or vacate an
-9-
1-05-0284
arbitration award are set forth in the Arbitration Act (710 ILCS 5/1 et seq. (West 2002)).
Under section 12(a) of the Arbitration Act (710 ILCS 5/12(a) (West 2002)), a court can
vacate an award in the following circumstances: (1) the award was
obtained by corruption or fraud; (2) the arbitrator was partial;
(3) the arbitrator exceeded his powers; (4) the arbitrator
unreasonably refused to postpone the hearing or hear material
evidence; or (5) there was no arbitration agreement.
Although a court cannot vacate an award due to errors in
judgment or mistakes of fact or law, a court can vacate an
arbitration award where a gross error of law or fact appears on
the award's face, or where the award fails to dispose of all
matters properly submitted to the arbitrator. Herricane
Graphics, Inc., 354 Ill. App. 3d at 156. The burden is placed on
the challenger to prove by clear and convincing evidence that an
award was improper. Thomas v. Leyva, 276 Ill. App. 3d 652, 654
(1995).
Here, KNS disagrees with the arbitrator's determination of
the amount of unpaid compensation awarded to Nicholas and
Jeffrey. KNS argues that the circuit court should have vacated
the arbitrator's award where he exceeded his powers, pursuant to
section 12(a)(3) of the Arbitration Act.
However, we find that the circuit court did not have the
authority to vacate the arbitrator's award. In determining the
proper standard to be applied in construing section 12(a)(3) of
the Arbitration Act, the appellate courts have looked to the
-10-
1-05-0284
explanation of the chairman of the committee that drafted the
Arbitration Act:
" ' "[T]he question for the court is whether the
construction of the contract made by the arbitrator is
a reasonably possible one that can seriously be made in
the context in which the contract was made. Stated
affirmatively, if all fair and reasonable minds would
agree that the construction of the contract made by the
arbitrator was not possible under a fair interpretation
of the contract, then the court would be bound to
vacate or refuse to confirm the award." ' " Herricane
Graphics, Inc., 354 Ill. App. 3d at 157, quoting Rauh
v. Rockford Products Corp., 143 Ill. 2d 377, 391-92
(1991), quoting M. Pirsig, Some Comments on Arbitration
Legislation and the Uniform Act, 10 Vand. L. Rev. 685,
706 (1957).
It is clear that the arbitrator heard the testimony,
assessed the credibility of the witnesses, and considered the
exhibits and evidence presented. The arbitrator found that KNS
agreed to pay Nicholas as president emeritus from April 26, 2002
through December 2002. The arbitrator also found that KNS
suspended Nicholas on May 14, 2002, and did not pay him after May
1, 2002. The arbitrator considered that Nicholas's compensation
for the year 2002 was $303,490. The arbitrator then determined
that KNS was liable to Nicholas, pursuant to his employment
-11-
1-05-0284
contract, in the amount of $194,000 for unpaid compensation for
the period of May 1, 2002, through December 7, 2002. The
arbitrator also found that Jeffrey had an employment contract
with KNS providing for wages through December 2002. The
arbitrator found that Jeffrey was terminated on May 14, 2002, and
that he was not terminated for cause. The arbitrator concluded
that KNS was liable to Jeffrey in the amount of $101,000 for
unpaid compensation for the period from May 1, 2002, to December
7, 2002. Here, there is no indication that the arbitrator acted
in bad faith, was guilty of fraud or chose not to follow the law.
Accordingly, the circuit court did not have the authority to
vacate the award where the arbitrator's calculation of unpaid
compensation due to Nicholas and Jeffrey was a reasonable
construction of the employment contracts.
C. KNS's Claim That the Arbitrator Exceeded His Authority By
Awarding Attorney Fees
KNS further argues that the arbitrator exceeded his
authority by awarding Nicholas and Jeffrey attorney fees, which
were not part of their employment agreements or permitted by
statute. Nicholas and Jeffrey argue that the arbitrator's award
was proper under the Attorneys Fees in Wage Actions Act (Attorney
Fees Act) (705 ILCS 225/0.01 et seq. (West 2002)), which provides
that where an employee establishes by the decision of the court
or jury that he is owed wages, he is entitled to attorney fees.
-12-
1-05-0284
705 ILCS 225/1 (West 2002).
In his award, the arbitrator found that Nicholas and Jeffrey
were "employees under the Illinois Wage Payment and Collection
Act" (820 ILCS 115/1 et seq. (West 2002)). The arbitrator
subsequently determined that Nicholas and Jeffrey were entitled
to "reasonable attorney's fees as provided under Illinois law and
consistent with the applicable rules of the American Arbitration
Association."
KNS argues that the arbitrator exceeded his authority in
awarding attorney fees because the Attorney Fees Act is
inapplicable in this case. Section 1 of the Attorney Fees Act
provides, in relevant part:
"Whenever a mechanic, artisan, miner, laborer,
servant or employee brings an action for wages earned
and due and owing according to the terms of the
employment, and establishes by the decision of the
court or jury that the amount for which he or she has
brought the action is justly due and owing, and that a
demand was made in writing at least 3 days before the
action was brought, for a sum not exceeding the amount
so found due and owing, then the court shall allow to
the plaintiff a reasonable attorney fee of not less
than $10, in addition to the amount found due and owing
for wages, to be taxed as costs of the action."
(Emphasis added.) 705 ILCS 225/1 (West 2002).
-13-
1-05-0284
As previously discussed, section 2 of the Arbitration Act
allows a party to petition the circuit court to determine arbitrability questions. In this
case, KNS did not submit such application to the court to challenge the arbitration
agreement; nor did KNS raise an objection before the arbitrator challenging the
arbitrability of the attorney fees sought by Nicholas and Jeffrey in their demands for
arbitration. Rather, following the arbitrator's final award, KNS argued that the
arbitrator's determination awarding attorney fees was improper because the alleged
employment contracts did not provide for them and the Attorney Fees Act was
inapplicable to the plaintiffs as they were officers, not employees, of KNS.
In asking the circuit court to vacate the award, KNS also argued that the
arbitrator's award of attorney fees improperly included fees incurred in claimant's
wrongful discharge claim, as well as the breach of contract claims at issue in this case.
In doing so, KNS conceded that the arbitrator could decide the issue of attorney fees.
Accordingly, we find that KNS forfeited its arguments that the arbitrator exceeded his
authority in awarding attorney fees. We need not decide in this case
whether the Attorney Fees Act, in referring to "establishe[d] by
the decision of the court or jury," encompasses arbitration
awards. As we noted in Heatherly v. Rodman & Enshaw, Inc., 287
Ill. App. 3d 372, 379 (1997), the determination of whether the
Attorney Fees Act applies to arbitration awards is best left to
the legislature. In Heatherly, the plaintiff argued that the
legislature could not have intended that attorney fee recovery in
arbitration proceedings be treated differently from the recovery
-14-
1-05-0284
available in court proceedings. However, this court explained
that "[b]ecause arbitration is considered to be easier, more
expeditious, and less expensive than litigation [citations],
recovery of attorney fees incurred therein could be deemed to be
less important than recovery of costs incurred in litigation.
That is a matter properly left to the General Assembly."
Heatherly, 287 Ill. App. 3d at 379. We also leave open the issue of
whether a circuit court may award attorney fees pursuant to the Attorney Fees Act,
where such fees are not provided for in the arbitration agreement, when a motion to
confirm an arbitration award is brought before the court.
D. KNS's Claim That the Circuit Court Should Have Modified the
Arbitrator's Award
KNS lastly contends that the circuit court should have
modified the arbitrator's award pursuant to section 13 of the
Arbitration Act. KNS argues that the court should have modified
the arbitrator's miscalculation of the unpaid compensation due
Nicholas and Jeffrey and the arbitrator's inaccurate description
of the dates of Jeffrey's employment contract and the dates he
incurred medical expenses.
Section 13(a) of the Arbitration Act (710 ILCS 5/13(a) (West
2002)) allows a court to modify or correct an award where: (1)
there was an evident miscalculation or an error in a description;
(2) the arbitrators ruled on a matter not submitted to them, and
-15-
1-05-0284
the court is able to correct the award without affecting the
merits of the decision upon the issues submitted; or (3) the
award is imperfect in form.
We find that KNS' alleged errors relating to the
compensation due to Nicholas and Jeffrey are not claims of error
in mathematical computations which appear on the face of the
award. Rather, KNS disagrees with the arbitrator's
interpretation of the evidence, construction of the employment
contracts, and ultimate assessment of damages. As previously
discussed, it is clear that the arbitrator heard the testimony,
assessed the credibility of the witnesses, and considered the
exhibits and evidence presented. The arbitrator determined that
Nicholas's total compensation for the year 2002 was $303,490, and
that KNS was liable to Nicholas, pursuant to his employment
contract, in the amount of $194,000 for unpaid compensation for
the period of May 1, 2002, through December 7, 2002. The
arbitrator also found that Jeffrey had an employment contract
with KNS and that KNS was liable to Jeffrey in the amount of
$101,000 for unpaid compensation for the period from May 1, 2002,
to December 7, 2002. KNS disagrees with the arbitrator's
analysis and suggests mathematical computations that the
arbitrator should have followed to determine the award.
However, the arbitrator's award does not contain a mathematical
computation or specific accounting to indicate the manner in
-16-
1-05-0284
which he arrived at the awards of unpaid compensation for
Nicholas and Jeffrey. The award merely sets forth the evidence
that was considered and mentions only several figures that were
considered in arriving at the ultimate award. To accept KNS'
argument would interfere with the arbitrator's role of
interpreting the contracts and discretion in fashioning an
equitable award.
In its second issue, KNS argues that Jeffrey's employment
contract terminated on December 20, 2002, not December 7, 2002,
as indicated by the arbitrator's award. However, the award
determined that KNS was liable to Jeffrey for "unpaid
compensation" for the period from May 1, 2002, to December 7,
2002. The arbitrator's reference to December 7, 2002, was not
describing the date of termination of Jeffrey's employment
contract.
In its final issue, KNS notes that the arbitrator's award
referred to Jeffrey incurring "medical insurance charges of
$500.82 per month between June and December 2002." The
arbitrator then determined that KNS was liable to Jeffrey "for
$7,968.40 for medical expenses and insurance." KNS does not
dispute the arbitrator's award but argues that the testimony and
exhibits show that KNS paid Jeffrey's medical insurance premiums
through July 2002. KNS therefore argues that the circuit court
should have modified the arbitrator's award to reflect that
Jeffrey incurred medical insurance charges between "August and
-17-
1-05-0284
December 2002." Courts are limited in their ability to modify
and correct arbitration awards. We find that because this
alleged error was not evident on the face of the award, the
circuit court did not err in failing to modify the award on this
basis.
III. Conclusion
For the above reasons, we affirm the decision of the circuit
court of Cook County.
Affirmed.
CAMPBELL and GREIMAN, JJ., concur.
-18-
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Filed 8/20/14 Donaldson v. Ojaroodi 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
CHARLES O. DONALDSON, JR., B251472
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VS023783)
v.
MOHAMMAD OJAROODI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Debra
Cole-Hall, Judge. Affirmed.
Charles O. Donaldson, Jr., in pro. per., for Plaintiff and Respondent.
Mohammed Ojaroodi, in pro. per., for Defendant and Appellant.
_________________________
Appellant Mohammed Ojaroodi appeals from the entry of a civil restraining order
against him in favor of his neighbor. Finding no grounds for reversal, we affirm.
FACTUAL AND PRODCEDURAL SUMMARY
Appellant Ojaroodi and his neighbor respondent Charles Donaldson, Jr. have been
in a dispute for some years, culminating in Donaldson’s request for a temporary
restraining order in 2012. After a series of continuances while related criminal charges
proceeded, the restraining order came on for hearing on August 8, 2013.
Donaldson testified that Ojaroodi had thrown gasoline on Donaldson’s door, had
threatened him and his wife, and threatened to shoot him. Donaldson asserted he was in
fear for his life, and that of his wife and grandchildren. Donaldson also testified that
Ojaroodi had sprayed water on him and his wife and called him offensive names.
Ojaroodi was represented by counsel at the hearing. Counsel asserted the dispute
concerned cigarette smoke coming from Donaldson’s garage onto Ojaroodi’s property,
and denied the allegations of threats and use of gasoline. Ojaroodi testified that he had
not made the threat asserted by Donaldson, but instead had tried to work out a solution
for the smoke. He also denied putting gasoline on the door.
The court indicated its intention to grant the restraining order, at which point
Ojaroodi asked to bring to the court’s attention a conflict in the statements in the police
report; his counsel made no request. The court made no ruling on the issue, and, after the
parties discussed the terms of the order, issued an order with a term of three years.
Ojaroodi timely appealed.
DISCUSSION
On appeal, Ojaroodi, representing himself, argues that the trial court erred because
it: failed to issue a statement of decision; granted the order without sufficient evidence;
and refused to consider impeachment evidence.
2
1. Standard of Review
We review the trial court’s decision to determine whether there is sufficient
evidence to support the ruling; “we review the evidence before the court in accordance
with the customary rules of appellate review. We resolve all factual conflicts and
questions of credibility in favor of the prevailing party and indulge in all legitimate and
reasonable inferences to uphold the finding of the trial court if it is supported by
substantial evidence which is reasonable, credible and of solid value.” (Schild v. Rubin
(1991) 232 Cal.App.3d 755, 762.)
2. Statement of Decision
Code of Civil Procedure, Section 632,1 requires the court to issue a statement of
decision, explaining the basis for its decision, when requested by a party appearing at the
trial. In a case such as this, where the trial was concluded within one calendar day, the
request must be made prior to the submission of the matter for decision.2
The record of this proceeding does not indicate any request by counsel for
Ojaroodi, or by Ojaroodi himself, for a statement of decision. Accordingly, the court did
not err.
1 All further statutory references, unless otherwise noted, are to the Code of Civil
Procedure.
2 “In superior courts, upon the trial of a question of fact by the court, written
findings of fact and conclusions of law shall not be required. The court shall issue a
statement of decision explaining the factual and legal basis for its decision as to each of
the principal controverted issues at trial upon the request of any party appearing at the
trial. The request must be made within 10 days after the court announces a tentative
decision unless the trial is concluded within one calendar day or in less than eight hours
over more than one day in which event the request must be made prior to the submission
of the matter for decision. The request for a statement of decision shall specify those
controverted issues as to which the party is requesting a statement of decision. After a
party has requested the statement, any party may make proposals as to the content of the
statement of decision. [¶] The statement of decision shall be in writing, unless the
parties appearing at trial agree otherwise; however, when the trial is concluded within one
calendar day or in less than 8 hours over more than one day, the statement of decision
may be made orally on the record in the presence of the parties.”
3
3. Sufficiency of the Evidence
Section 527.6 provides three grounds for possible relief: unlawful violence (527.6,
subd. (b)(1)); a credible threat of violence (527.6, subd. (b)(2)); or harassment (527.6,
subd. (b)(3)). Although the court did not indicate in its ruling the ground on which it
based its decision, the testimony of Donaldson, which the trial court believed, pointed
most directly to a finding of a credible threat of violence.
This ground requires clear and convincing evidence of a “knowing and willful
statement or course of conduct that would place a reasonable person in fear for his or her
safety, or the safety of his or her immediate family, and that serves no legitimate
purpose.” (527.6, subd. (b)(3).) Here, there was sufficient evidence of a threat to kill,
which placed Donaldson in fear of his own safety as well as that of his family. (See, e.g.,
USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436 [party told co-workers he
had a gun and would kill them].) Moreover, Donaldson also testified that gasoline had
been placed on his door, raising a reasonable fear of explosion. Taken together, and
resolving all credibility questions in favor of the prevailing party, as we must, this
evidence is sufficient to support the order.
4. Impeachment Evidence
Ojaroodi asserts the court erred in excluding prior inconsistent statements by
Donaldson contained in a police report. While the court is required to receive relevant
testimony, and to give a party charged with harassment the opportunity to present his or
her case (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110), the party seeking to
introduce evidence must object to its exclusion and make known to the trial court the
substance of the excluded evidence, along with its relevance. (Malatka v. Helm (2010)
188 Cal.App.4th 1074, 1086.)
Here, the record is silent. Ojaroodi’s counsel did not request cross-examination of
Donaldson, nor did he request that the court consider statements in the police report in
any manner. While Ojaroodi himself suggested there was a conflict in the statements,
counsel did not proffer the report or indicate what those conflicting statements were. The
4
record on appeal does not contain the police report, or any information pertaining to it.
As a result, not only did Ojaroodi fail to adequately raise the issue at the trial court, he
has failed to provide any basis for us to determine whether the evidence was relevant
impeachment.
DISPOSITION
The issuance of the restraining order is affirmed. Respondent is to recover his
costs on appeal.
ZELON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
5
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 95-1962
___________
Albert Burnham; Ronald *
Marchese; Michael Kohn; *
Louise Kohn, *
*
Appellees, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Lawrence Ianni, in his *
official capacity as *
Chancellor of the University *
of Minnesota at Duluth and *
in his individual capacity, *
*
Appellant. *
___________
Submitted: January 14, 1997
Filed: July 11, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, JOHN R. GIBSON, FAGG,
BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges, en banc.
___________
BEAM, Circuit Judge.
In this section 1983 action, Chancellor Lawrence Ianni appeals from
the district court’s1 denial of his motion for summary judgment based on
qualified immunity. A panel of this court reversed. Our decision to grant
en banc review vacated that
1
The Honorable Michael J. Davis, United States District Court
Judge for the District of Minnesota.
decision. See Burnham v. Ianni, 98 F.3d 1007 (8th Cir. 1996). We now
affirm.
I. BACKGROUND
Because discovery has not been conducted in this case, the facts are
derived from the plaintiffs’ pleadings and the affidavits submitted by the
parties. Plaintiff Albert Burnham has been a part-time professor in the
history department at the University of Minnesota-Duluth (UMD) since 1986.
Plaintiff Ronald Marchese is a tenured professor in the University of
Minnesota system. He is a professor of humanities, classics and history
at UMD and a professor of ancient history and archaeology in the Center for
Ancient Studies at the University of Minnesota-Minneapolis. The History
Club, active for a number of years on campus, operates under the auspices
of the UMD history department. At all relevant times, Professor Burnham
was the faculty advisor to the Club.
During the fall quarter of 1991, two student members of the History
Club, plaintiffs Michael and Louise Kohn,2 conceived an idea for a project
that was intended to publicize some of the areas of expertise and interest
of the history department’s faculty, while at the same time portraying the
instructors in an informal, somewhat humorous way. The Kohns approached
Professors Burnham and Marchese as well as other members of the department,
all of whom agreed to participate. They agreed to pose for a picture with
a “prop” that related to their areas of interest. They also supplied
information about their fields of expertise, academic background, and
historical heroes, as well as a quotation to be used along with the above
information and their photographs.
2
The Kohns have now graduated from UMD.
-2-
For his photograph, Professor Burnham posed with a .45 caliber
military pistol, wearing a coonskin cap. His special interest in American
history includes military history in particular. He listed John Adams and
Davy Crockett among his historical heroes. Consistent with his
professional interests, Professor Marchese elected to hold an ancient Roman
short sword while wearing a cardboard laurel wreath. He listed his
specialties as “Ancient Greece and Rome, Homeric Literature” and identified
Homer and Alexander the Great as his historical heroes.
A total of eleven professors posed for or supplied pictures. The
Kohns assembled an exhibit that incorporated these photographs along with
the written comments submitted by each faculty member. The photographs and
the accompanying written material were thought to communicate matters of
public interest.3 The exhibit was
3
The debate over how to present history in our nation’s
schools has been a topic of public concern for some time. Indeed,
it has been the subject of numerous books, law reviews and
newspaper articles. See, e.g., Stephen E. Gottlieb, In the Name of
Patriotism: The Constitutionality of ‘Bending’ History in Public
Secondary Schools, 62 N.Y.U.L. Rev. 497 (June 1987) (compiling
authorities). In 1994, this nationwide concern resulted in the
release of a national curriculum guidebook which was widely
criticized as bowing to political correctness to the detriment of
offering students an accurate account of United States history.
See Connie Cass, History Standards Criticized as Too Politically
Correct, 1994 WL 10105333 (1994). The most widely criticized
aspect of the guidebook was its downplaying of historical heroes,
to the exclusion of persons such as Thomas Edison, Paul Revere and
Robert E. Lee. Id. Although a revised guidebook emerged in 1996,
it too caused quite a stir. See Elizabeth Martinez, A New Way of
Looking At Our U.S. Origin Myth, 1996 WL 2163654 (1996).
Regardless of the current status of a proposed national guidebook,
however, the debate over how to teach history is alive and well.
As one author recently stated:
One cannot study history without an appreciation of the
conflicts it contains both among the actors in the past
and among the historians of the present. The idea that
history can be taught as a set of names and dates or that
science can be taught as a set of formulas is as
distasteful to students as to those with any knowledge of
the disciplines. Yet, if one is to get beyond the level
-3-
intended to be viewed by students and prospective students, as well as any
members of the public who might be on the premises. It was designed to
impart information about the professors and their attitudes toward history-
-as reflected, for example, in their choices of historical heroes.
The exhibit was put up in the history department’s display case,
located in the public corridor next to the classrooms used by the
department, on March 27, 1992. The case and its contents are seen by
students taking classes nearby, faculty members, and members of the general
public. The display case is reserved for the use of the history
department. It has contained, for a number of years, an exhibit on Roman
siege warfare equipment that was assembled by Professor Marchese. The
device has been used by members of the History Club as well as by the
history department faculty. The case is used only to communicate matters
that are considered to be of general interest. It is not used for private
communications, like a mailbox or a message system.
The exhibit was, in fact, observed by hundreds, if not thousands, of
people. Members of the department received many compliments on the
presentation, as did the students who assembled it. For two weeks, no one
expressed any criticism about the exhibit. To the contrary, the display
appeared to contribute to morale and good relations within the department.
of names and dates, one dwells in a realm of disputed
ideas.
Gottlieb, 62 N.Y.U.L. Rev. at 573 (footnote omitted).
-4-
On April 10, 1992, Judith Karon, who was then UMD’s affirmative
action officer, and UMD Police Captain Harry Michalicek came to the history
department and viewed the exhibit. This was in response to a complaint by
Charlotte Macleod, an assistant professor who was the head of the UMD
Commission on Women. Karon went to the departmental secretary, Elizabeth
Kwapick, and demanded that the pictures of Professors Burnham and Marchese
be removed. The department denied this demand.
Upon hearing of this attempt to remove the pictures, Professor
Burnham called a lawyer in the University of Minnesota’s Legal Department,
who told him that she could find nothing wrong with the display as
described. The history department agreed that the department should resist
any attempt by the administration to censor the photographs, and the
department declined to remove them.
On April 27, 1992, Karon sent a memorandum to the Dean of the College
of Liberal Arts, John Red Horse, stating that she expected the pictures to
be removed immediately because she found them to be “totally
inappropriate.” Dean Red Horse apparently refused to act on Karon’s
request. On April 30, 1992, Karon sent Professor Burnham a memorandum
explaining her reasons for wanting to remove the photographs of Professors
Burnham and Marchese. In her memorandum, Karon again stated that she
ordered the exhibit taken down because she found the photographs
“insensitive” and “inappropriate.”
On the morning of April 29, 1992, Louise Kohn, Michael Kohn,
Elizabeth Kwapick and Professor Burnham met with Chancellor Ianni to
explain the display and protest Karon’s attempted censorship of the
pictures and the students’ work. During that meeting, Ianni said that he
personally found nothing wrong with the photographs. On the afternoon of
the same day, the history department held a
-5-
meeting on this issue, which was also attended by Ianni, Karon, and Red
Horse. During that meeting, Chancellor Ianni again stated that he
personally saw nothing wrong with the photographs, but hinted that he might
nevertheless support their removal.
When asked to explain why she wanted the photographs removed, Karon
tried to connect them to a written threat against Professor Judith
Trolander which had been found on March 16, 1992.4 Members of the
department told Karon that they thought her attempt to link the pictures
to this deranged message was absurd. Karon also stated that she considered
the photographs to constitute sexual harassment. She was unable to explain
what she meant by this. She was also unable to state by what authority she
could order the removal of a student departmental display.
On May 4, 1992, Chancellor Ianni ordered UMD Plant Services Director
Kirk Johnson to remove the pictures of Professors Burnham and Marchese.
Because Johnson was unable to obtain access to the pictures at that time,
Ianni ordered the UMD police to remove the photos. The next day, UMD
Police Captain Michalicek removed the photographs from the display. Only
the two photographs with weapons were removed. The other nine photographs
remained on display. Professors Burnham and Marchese then removed the
balance of their contributions to the exhibit.
Following the removal of the photographs, Ianni explained that he
removed them because Karon had claimed that she had received anonymous
complaints about the display which objected to the
4
Apparently, Professor Trolander had not initially been
offended in any way by the pictures; in fact, she participated in
the project by posing for a photograph and specifying her
specialties. On the day the display was put up, Trolander said
that she thought the display was “very nice.”
-6-
depiction of faculty members with weapons. Karon also claimed that
Professor Trolander had contacted her about the display’s upsetting effect
on her. Ianni expressed his belief that the campus was enshrouded in an
atmosphere of anxiety due to the earlier threats against Trolander and
others.5 He further explained that his removal of the photographs was an
attempt to stop the disruption caused by the display and to prevent
aggravation of the atmosphere of fear. Plaintiffs dispute that any milieu
of concern existed and contend that the campus atmosphere, whatever it may
have been, was not aggravated or affected by the two photographs.
Copies of the photographs were later posted at the student center by
a group of students protesting the administration’s actions. The student
center display advanced the subject of censorship and was entitled “The
Administration Does Not Want You to See These.” The students used the
incidents surrounding the removal of the photographs as an example of
impermissible actions under the First Amendment. Apparently, no complaints
were lodged about the student center exhibit, nor was there any evidence
of an institutional breakdown upon the showing of the photographs.
Plaintiffs, alleging First Amendment violations, filed this 42 U.S.C.
§ 1983 action against Chancellor Ianni and the University of
5
The threats to others to which Ianni referred had occurred
during the previous year. In June 1991, Sandra Featherman was
appointed UMD Vice Chancellor. She later began receiving anonymous
threats warning her to stay away from Duluth, or face the
possibility of kidnapping or even death. In March 1992, Professor
Trolander became the target of similar threats. Both Featherman
and Trolander had been involved in a campus-wide campaign to
promote diversity in the UMD community. In response to these
threats, Chancellor Ianni distributed a campus memorandum dated
March 16, 1992, assuring the UMD community that the matter was
being investigated by local and federal authorities and stating
that the school was still committed to improving the conditions for
women and minorities on campus.
-7-
Minnesota. Defendants moved for summary judgment, which the district court
granted in part and denied in part. The court dismissed, with prejudice,
all plaintiffs’ claims against the University of Minnesota, all plaintiffs’
claims for money damages against Ianni in his official capacity as
Chancellor of UMD, and the Kohns’ claims against Ianni for injunctive
relief. The district court denied summary judgment on the remaining
contentions, including the issue of qualified immunity for Chancellor
Ianni.6 The district court found that Chancellor Ianni’s actions violated
the plaintiffs’ clearly established First Amendment rights, in a way that
an objective university chancellor would have known. Burnham v. Ianni, No.
5-94-6, mem. op. at 10-11 (D. Minn. Mar. 17, 1995). Ianni appeals the
denial of summary judgment on this ground, contending that the plaintiffs’
First Amendment rights were not clearly established, thereby rendering his
actions protected by qualified immunity. We review the district court’s
conclusion on the qualified immunity issue de novo.7 White v. Holmes, 21
F.3d 277, 279 (8th Cir. 1994).
6
In their amended complaint, plaintiffs sought a declaration
that Ianni’s actions were unconstitutional, injunctive relief
against Ianni in his official capacity, and monetary relief against
Ianni in his individual capacity in the amount of at least $50,000,
plus interest. Appellant’s App. at 4 (amended complaint).
7
Because this appeal solely concerns the denial of qualified
immunity, implicating only Ianni’s liability for money damages, we
do not, of course, address plaintiffs’ claims for injunctive or
other equitable relief. We note, however, that neither the state’s
Eleventh Amendment immunity nor the doctrine of qualified immunity
would protect Ianni from injunctive or other equitable relief.
See, e.g., Treleven v. University of Minnesota, 73 F.3d 816, 819
(8th Cir. 1996) (state’s Eleventh Amendment immunity does not
shield official from prospective injunctive relief); Grantham v.
Trickey, 21 F.3d 289, 295 (8th Cir. 1994) (qualified immunity does
not shield officials from equitable relief); Rose v. Nebraska, 748
F.2d 1258, 1262 (8th Cir. 1984) (state’s Eleventh Amendment
immunity does not shield officials from declaratory or injunctive
relief).
-8-
II. DISCUSSION
Since this matter is before the court on a motion for summary
judgment based on qualified immunity, the court “ordinarily must look at
the record in the light most favorable to the party [plaintiffs/appellees]
opposing the motion, drawing all inferences most favorable to that party.”
Harlow v. Fitzgerald, 457 U.S. 800, 816 n.26 (1982). Qualified immunity
shields government officials from suit unless their conduct violates a
clearly established constitutional or statutory right of which a reasonable
person would have known. Id. at 818; Yowell v. Combs, 89 F.3d 542, 544
(8th Cir. 1996).
Chancellor Ianni’s assertion that he is protected by qualified
immunity triggers a three-pronged inquiry: (1) whether the plaintiffs have
asserted a violation of a constitutional or statutory right; (2) if so,
whether that right was clearly established at the time of the violation;
and (3) whether, given the facts most favorable to the plaintiffs, there
are no genuine issues of material fact as to whether a reasonable official
would have known that the alleged action violated that right. Yowell, 89
8
F.3d at 544. Ianni focuses on the second prong of this analysis. He
argues that the plaintiffs’ rights were not clearly established at the time
of the removal of the photographs. Whether a legally protected interest
is clearly established turns on the “objective
8
We have recently framed the inquiry in a slightly different,
but substantively similar, way by saying that “we must consider
what specific constitutional rights the defendants allegedly
violated, whether the rights were clearly established in law at the
time of the alleged violation, and whether a reasonable person in
the official’s position would have known that his conduct would
violate such rights.” Waddell v. Forney, 108 F.3d 889, 891 (8th
Cir. 1997).
-9-
legal reasonableness of an official’s acts. Where an official could be
expected to know that certain conduct would violate statutory or
constitutional rights, he should be made to hesitate.” Harlow, 457 U.S.
at 819.
Ianni bears the burden of proving that the plaintiffs’ First
Amendment rights were not clearly established. See, e.g., Siegert v.
Gilley, 500 U.S. 226, 231 (1991); Watertown Equip. Co. v. Norwest Bank
Watertown, 830 F.2d 1487, 1490 (8th Cir. 1987). In an attempt to shoulder
this burden, Ianni argues that: (1) some restrictions on speech in
nonpublic forums are constitutionally acceptable and, thus, which
restrictions are acceptable in a given situation is never “clearly
9
established;” and (2) the professors were public employees and their First
Amendment rights were subject to the fact-intensive Pickering10 balancing
test, thus, precluding the rights from being “clearly established.” These
arguments will be addressed in turn.
First, however, we note that the expressive behavior at issue here,
i.e., the posting of the photographs within the history department display,
qualifies as constitutionally protected speech. See, e.g., Spence v.
Washington, 418 U.S. 405, 410 (1974); Tinker v. Des Moines Indep. Community
Sch. Dist., 393 U.S. 503, 505-06 (1969); Tindle v. Caudell, 56 F.3d 966,
969 (8th Cir. 1995). Nonverbal conduct constitutes speech if it is
intended to convey a particularized message and the likelihood is great
that the message will be understood by those who view it, regardless of
whether it is actually understood in a particular instance in such a way.
Spence, 418 U.S. at 411. Burnham and Marchese, through their
9
The two student/plaintiffs would clearly not be covered by
this argument.
10
Pickering v. Board of Educ., 391 U.S. 563 (1968).
-10-
photographs, were attempting, at least in part, to convey and advocate
their scholarly and professorial interests in military history and in
military weaponry’s part in their vocation. Michael and Louise Kohn, as
well, were attempting to show their creativeness and interest in the scope
of the teaching mission of the history department. The display was the
Kohns’ idea; they organized and exhibited it. Because these messages
sufficiently satisfy the Spence test, the photographs and the display
qualify as speech. Id. And, we do not understand that Ianni disputes this
conclusion.
Although the right of free speech is not absolute, the First
Amendment generally prevents the government from proscribing speech of any
kind simply because of disapproval of the ideas expressed. R.A.V. v. City
of St. Paul, 505 U.S. 377, 382 (1992). Indeed, with a few exceptions, most
speech receives First Amendment protection. Cohen v. California, 403 U.S.
15, 24 (1971); see, e.g., New York v. Ferber, 458 U.S. 747, 756 (1982)
(child pornography is unprotected speech); Miller v. California, 413 U.S.
15, 23 (1973) (obscene speech is unprotected speech); Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942) (fighting words are unprotected
speech). The First Amendment’s protection even extends to indecent speech.
Sable Communications v. Federal Communications Comm’n, 492 U.S. 115, 126
(1989). It also extends to speech unprotected on one basis (e.g.,
obscenity) but protected on another (e.g., content in opposition to
governmental acts). R.A.V., 505 U.S. at 384-86. Clearly then, plaintiffs’
speech is worthy of constitutional protection.
Because this case involves Ianni’s suppression of plaintiffs’
protected speech, plaintiffs have (at least for purposes of summary
adjudication) sufficiently established a violation of a constitutional
right--unless limitations indigenous to the forum
-11-
lawfully permit restrictions on plaintiffs’ First Amendment privileges.
We turn to that inquiry.
A. The Forum
Access to and the character of speech on government-controlled areas
may be limited depending upon the type of property at issue. Courts
recognize three categories of property on which the government may, in
greatly varying degrees, restrict speech: (1) public forums, places which
by tradition have been devoted to assembly or debate; (2) limited public
forums,11 properties which the state has opened for use by the public as
places for expressive activity; and (3) nonpublic forums, places which are
not by tradition or designation forums for public communication. Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983).
In public forums, the state’s right to limit expression is “sharply
circumscribed.” Id. at 45. In limited public and nonpublic forums,
however, the state’s right to regulate speech is more pervasive.
Ianni argues, and the district court found, that the history
department display case is a nonpublic forum. Ianni further claims that
because the expression occurred in a nonpublic forum, speech restrictions
were permissible or, at least, the extent of any permissible restriction
was unclear. Thus, Ianni states,
11
We recognize that both the terms “limited public forum” and
“designated public forum” are used to describe this second category
of property. See, e.g., International Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 686 (1992) (using terms
interchangeably); see also Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983); Capitol Square Review &
Advisory Bd. v. Pinette, 115 S. Ct. 2440, 2469 (1995). For
purposes of our discussion, we will use the term “limited public
forum.”
-12-
plaintiffs’ First Amendment rights were extinguished, limited or at a
minimum, not clearly established. Therefore, Ianni says, the district
court’s denial of qualified immunity was error. We disagree.
In this case the nature of the forum makes little difference.12 Even
if the display case was a nonpublic forum, Ianni is not entitled to
qualified immunity. The Supreme Court has declared that “the State may
reserve [a nonpublic] 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, 460 U.S. at 46; see also Lamb’s Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (stating control
over access to nonpublic forum can be based on subject matter and speaker
identity so long as the distinctions drawn are reasonable in light of the
purpose served by the forum and are viewpoint neutral); United States v.
Kokinda, 497 U.S. 720, 732 (1990) (stating constitutionality of regulation
must be considered in light of the nature and function of the forum
involved). Here, we
12
We do note, however, that the display case could well be a
limited public forum. See Perry, 460 U.S. at 48; Forbes v.
Arkansas Educ. Television Comm’n, 93 F.3d 497, 500 (8th Cir. 1996),
cert. granted, 117 S. Ct. 1243 (1997). The case, as earlier noted,
was located in the hall outside the history department’s classrooms
and was intended for public viewing. UMD had designated it as a
forum for use by the history department. In turn, the history
department allowed its faculty and students access to the case--to
communicate information about the history department to students,
prospective students, faculty and the public on an ongoing basis.
If the display case were considered a limited public forum, the
content-based suppression at work here would have to have served a
compelling state interest and would have to have been narrowly
drawn to serve that interest in order to be upheld. Widmar v.
Vincent, 454 U.S. 263, 270 (1981). However, because we find that
the suppression here fails even the most lenient forum test, we
need not address this issue.
-13-
find that the suppression was unreasonable both in light of the purpose
served by the forum and because of its viewpoint-based discrimination.
The display case was designated for precisely the type of activity
for which the Kohns and Professors Burnham and Marchese were using it. It
was intended to inform students, faculty and community members of events
in and interests of the history department. The University was not
obligated to create the display case, nor did it have to open the case for
use by history department faculty and students. However, once it chose to
open the case, it was prevented from unreasonably distinguishing among the
types of speech it would allow within the forum. See, e.g., Lamb’s Chapel,
508 U.S. at 392-93; Widmar v. Vincent, 454 U.S. 263, 267 (1981). Since the
purpose of the case was the dissemination of information about the history
department, the suppression of exactly that type of information was simply
not reasonable.
We recognize that UMD “may legally preserve the property under its
control for the use to which it is dedicated.” Lamb’s Chapel, 508 U.S. at
390. However, as the Supreme Court has stated:
“[A]lthough a speaker may be excluded from a nonpublic forum if
he wishes to address a topic not encompassed within the purpose
of the forum . . . or if he is not a member of the class of
speakers for whose especial benefit the forum was created . .
. , the government violates the First Amendment when it denies
access to a speaker solely to suppress the point of view he
espouses on an otherwise includible subject.”
Id. at 394 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,
473 U.S. 788, 806 (1985)).
-14-
The suppression of this particular speech was also viewpoint-based
discrimination. As the Supreme Court has noted, in determining whether the
government may legitimately exclude a class of speech to preserve the
limits of a forum,
we have observed a distinction between, on the one hand,
content discrimination, which may be permissible if it
preserves the purposes of that limited forum, and, on the other
hand, viewpoint discrimination, which is presumed impermissible
when directed against speech otherwise within the forum’s
limitations.
Rosenberger v. Rector and Visitors, 115 S. Ct. 2510, 2517 (1995) (citing
Perry, 460 U.S. at 46). As Rosenberger illustrates, what occurred here was
impermissible. The photographs of Professors Burnham and Marchese
expressed the plaintiffs’ view that the study of history necessarily
involves a study of military history, including the use of military
weapons. Because other persons on the UMD campus objected to this
viewpoint, or, at least, to allowing this viewpoint to be expressed in this
particular way, Ianni suppressed the speech to placate the complainants.13
To put it simply, the photographs were removed because a handful of
individuals apparently objected to the plaintiffs’ views on the
13
Although difficult to tell from the record, the objections
of Karon, Macleod and Ianni may have been substantially directed
toward the display of the weapons on the campus and, perhaps, not
simply toward history department curriculum or Burnham’s and
Marchese’s teaching methodology. Suppression on these more limited
grounds, however, would be unconstitutional in light of the
purposes served by the display case, as discussed above.
Additionally, we do not discern how generalized concerns over the
display of weapons in any way advance Ianni’s rights of suppression
or attenuate Burnham and Marchese’s free speech privileges in this
case. The fact that the professors’ history-based message happened
to fall victim to Ianni’s parochial point of view on exhibiting
weapons makes the censorship no less pernicious and no more
acceptable, especially given the fact that the purpose of the
display was carefully explained to Ianni in advance of his action.
-15-
possession and the use of military-type weapons and especially to their
exhibition on campus even in an historical context. Freedom of expression,
even in a nonpublic forum, may be regulated only for a constitutionally
valid reason; there was no such reason in this case.14
B. Reasonable Public Official
Ianni further claims that at the time the photographs were
suppressed, a reasonably objective chancellor of a large public university
would not have known that the conduct violated the plaintiffs’
15
constitutional rights. We again disagree.
As a basic matter, the Supreme Court stated in 1969 “[i]t can hardly
be argued that either students or teachers shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate.” Tinker, 393
U.S. at 506. Indeed, a year earlier, the idea that a faculty member could
be compelled to relinquish First Amendment rights in connection with
employment at a public school was “unequivocally rejected” by the Supreme
Court. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
14
We by no means hold that government has no control over
speech in the workplace or the schoolhouse. We envision many
instances when speech, or proposed speech, is beyond the “speaker
identity” or “content” designation of the forum and in such
instances the speech may be regulated. See Lamb’s Chapel, 508 U.S.
at 394; Rosenberger, 115 S. Ct. at 2517. This is not such a case,
however.
15
In this regard, we note that Chancellor Ianni himself stated,
at a meeting with the history faculty, that if the plaintiffs
brought a lawsuit alleging a violation of their First Amendment
rights, “they might have a good case.”
-16-
Applying these long established tenets to this case, we note that our
earlier quotation from Rosenberger, 115 S. Ct. at 2517, links its
observations on viewpoint discrimination within a nonpublic forum to Perry,
460 U.S. at 46, a teacher speech case decided by the Supreme Court in 1983.
Similarly, the language proscribing viewpoint discrimination found in
Lamb’s Chapel, 508 U.S. at 394, quotes directly from Cornelius, 473 U.S.
at 806, a 1985 decision. In addition, Widmar’s holding prohibiting
unreasonable discrimination among “types of expression” within a specific
forum, clearly made in the context of an analysis of the purpose of the
particular forum, was available as early as 1981. Widmar, 454 U.S. at 265-
67, 277.
Judge Heaney, writing for a panel of this court, recently noted that
once a controlling opinion has been decided, a constitutional right has
been clearly established.16 See Waddell v. Forney, 108 F.3d 889, 893 (8th
Cir. 1997). And, admittedly, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). But, as noted by Judge McMillian in his opinion for the court in
Hayes v. Long, 72 F.3d 70, 73 (8th Cir. 1995), “[t]his court has taken a
broad view of what constitutes ‘clearly established law’ for the purposes
of a qualified immunity inquiry.” More particularly, he stated, with
regard to “clearly established” law, that:
16
Some circuits have been slightly more charitable on this
timing issue. In Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994),
the Sixth Circuit stated: “[S]tate officials must have some time
to adjust to and learn about judge-made law as it evolves . . . .
This [the Sixth] and other circuits have struggled to decide how
long after a decision state officials have to become familiar with
‘the law.’” Id. at 306. Lintz then cited an extensive list of
cases allowing from twelve days to five months.
-17-
“In order to determine whether a right is clearly established,
it is not necessary that the Supreme Court has directly
addressed the issue, nor does the precise action or omission in
question need to have been held unlawful. In the absence of
binding precedent, a court should look to all available
decisional law including decisions of state courts, other
circuits and district courts. . . .”
Id. at 73-74 (quoting Norfleet v. Arkansas Dep’t of Human Servs., 989 F.2d
289, 291 (8th Cir. 1993)).
Here, of course, we have long established, binding precedent totally
supportive of plaintiffs’ claims. The Supreme Court and this court have
both clearly and directly spoken on the subject on numerous occasions and
in years long prior to the 1992 censorship by Ianni. Accordingly,
Chancellor Ianni’s “not clearly established” claim must be rejected.17
C. Pickering Balancing Argument
Finally, Chancellor Ianni seizes upon the two incidents involving
threats to Ms. Featherman and Ms. Trolander in an attempt to interject
First Amendment precedent not applicable to this dispute. We reject this
endeavor.
Ianni contends that the plaintiffs’ rights to express this particular
speech must additionally be balanced against UMD’s right to suppress it in
the name of workplace efficiency and harmony. He
17
The record establishes, as noted, that the history department
contacted the law department of the University for an opinion on
the propriety of the display. One may only presume that Chancellor
Ianni had equal or superior resources at his disposal if he had
questions about the contours of these well-defined constitutional
rights.
-18-
urges this court to invoke a line of employee discipline and termination
cases to summarily dispose of any violation of constitutional rights. See,
e.g., Pickering, 391 U.S. 563 (teacher discharged for writing letter to
newspaper criticizing school board and school superintendent); Connick v.
Myers, 461 U.S. 138 (1983) (assistant district attorney discharged for
distributing questionnaire concerning office morale, policy and confidence
in supervisors). We decline to do so here.
The Supreme Court, in Pickering, held that in an employee discipline
case, a court must determine whether the employee’s speech was on matter
of public concern, and if so, whether the employee’s interest in that
speech is outweighed by the governmental employer’s interest in promoting
the efficiency and effectiveness of the services it performs. Pickering,
391 U.S. at 568. In conjunction with his argument in favor of this
balancing requirement, Ianni also advances the theory that government
employers must always be granted qualified immunity under such
circumstances. We not only find that the Pickering balancing test is
inapposite under these facts, but we also disagree with Ianni’s analysis
of qualified immunity law.
The Pickering standard applies to determinations of whether a public
employer has properly discharged or disciplined an employee for engaging
in speech. Waters v. Churchill, 511 U.S. 661, 668 (1994); Rankin v.
McPherson, 483 U.S. 378, 384 (1987); Kincade v. City of Blue Springs, 64
F.3d 389, 395 (8th Cir. 1995), cert. denied, 116 S. Ct. 1565 (1996). In
this case, it is argued that there is no adverse employment action (unless
the censorship itself
-19-
serves that purpose), against which the plaintiffs’ free speech rights
might be balanced.18 Indeed, the district court found:
The gravamen of the complaint is not whether the photographs
were the basis for adverse employment action; rather, the
gravamen of the complaint is whether the ideas conveyed in the
photographs fall within any of the exceptions to the general
rule “that under our Constitution, the public expression of
ideas may not be prohibited merely because the ideas are
themselves offensive to some of the hearers.”
Burnham, mem. op. at 10 (quoting Street v. New York, 394 U.S. 576, 592
(1969)).
We need not decide whether an adverse employment action can be
fashioned from the evidence, however, because Ianni has factually failed
to put the Pickering balancing test in play. See, e.g., Kincade, 64 F.3d
at 398. As this court recently observed, “it is critical to determine
whether the defendants [employers] have put the Pickering balancing test
at issue by producing evidence that the speech activity had an adverse
effect on the efficiency of the . . . employer’s operations.” Grantham v.
Trickey, 21 F.3d 289, 294 (8th Cir. 1994). As the district court found,
“[t]his is not an employment case where there is a threatened disruption
to the efficient delivery of services.” Burnham, mem. op. at 9; see also
Pickering, 391 U.S. at 570 (noting
18
The speech at issue in Pickering and Connick was directly
critical of the efficiency and operations of the employers’
businesses. Here the speech essentially supported University
operations and extolled the capabilities and interests of certain
faculty members. Moreover, the photographs of Burnham and Marchese
were not presumptively divisive, even in the ambiance of the
threats on campus, nor were they shown to have been a palpable
threat to workplace morale, efficiency or harmony. Compare Tindle,
56 F.3d at 969 (police officer suspended for attending Fraternal
Order of Police party wearing blackened face, bib overalls, black
curly wig and carrying watermelon).
-20-
that “no evidence to support [professional damage to the school board and
superintendent] was introduced at the hearing” and rejecting the workplace
disruption argument of the board.)
As in our Kincade decision, we find that Ianni has failed to carry
his burden on this prong of the Pickering rationale. Ianni has made no
factual showing that the suppressed conduct “substantially” interfered
with the efficiency of the workplace or UMD’s educational mission.
Kincade, 64 F.3d at 398. “In our system, undifferentiated fear or
apprehension of disturbance is not enough to overcome the right to freedom
of expression." Tinker, 393 U.S. at 508. It is simply unreasonable, as
a matter of law, to assert that a photograph of a cardboard laurel-wreath
bedecked faculty member holding a Roman short sword, as part of an eleven-
person faculty display, somehow exacerbated an unestablished ambiance of
fear on the UMD campus.
And, even if the Pickering balancing test were somehow applicable,
which it is not, Ianni’s defense would fail. As stated earlier, the
Pickering balancing test requires a court to determine whether the
employee’s speech involves a matter of public concern and, if so, how the
employee’s rights in the speech balance against the occurrence of workplace
disruption. Both of these questions are issues of law for the court to
decide. Kincade, 64 F.3d at 395.
To determine whether the speech at issue here involves a matter of
public concern, we examine the “content, form and context” of the speech,
given the record as a whole. Connick, 461 U.S. at 147-48. To be
considered speech on a matter of public concern, the discourse must relate
to a “matter of political, social, or other concern to the community.” Id.
at 146; see also Kincade, 64 F.3d at 396. That definition includes many
types of
-21-
speech, excluding mainly speech relating merely to internal office
grievances. Connick, 461 U.S. at 148-49; see also Cox v. Dardanelle Pub.
Sch. Dist., 790 F.2d 668, 672 (8th Cir. 1986).
The history exhibit, displayed for public viewing, was intended, at
least, to inform the University and surrounding community of the views and
specialties of the history department and its faculty. As such, the speech
involved more than a mere internal office grievance. See, e.g., Cox, 790
F.2d at 673 (stating “educational theories and practices employed by school
administrators is clearly a question of public concern . . . [h]ow we teach
the young, what we teach them, and the environment in which we teach them
are of the most central concern to every community in the nation”). See
also Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 314 (8th Cir. 1986)
(holding speech involving proposed transfer of teacher was on matter of
public concern due to large turnout at meeting regarding transfer and
teacher interest in the subject); Roberts v. Van Buren Pub. Schs., 773 F.2d
949, 955 (8th Cir. 1985) (holding speech involving content of rules
governing fifth grade field trip was on matter of public concern due to
parental dissatisfaction with and interest in the subject).
Admittedly, the speech at issue here is not of the utmost public concern
when compared with an assassination attempt against the President, as in
Rankin. 483 U.S. at 381. However, when balancing an employee’s interest
against an employer’s interest, the constitutional standard takes
proportionality into account. “[T]he closer the employee’s speech reflects
on matters of public concern, the greater must be the employer’s showing
that the speech is likely to be disruptive before it may be punished.”
Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.), cert. denied, 116 S. Ct.
173 (1995). The converse is also true. When weighed against the meager
evidence of workplace disruption, the plaintiffs’ speech
-22-
clearly addresses matters of public concern within the meaning of the
Pickering test. See supra n.3.
Our next consideration is whether UMD’s interest in suppressing the
speech, to purportedly control workplace disruption, outweighs the
plaintiffs’ First Amendment rights in the display. See, e.g., Barnard v.
Jackson County, Missouri, 43 F.3d 1218, 1224 (8th Cir.) (stating pertinent
considerations for Pickering balancing test are “whether the employee’s
speech has a detrimental impact on working relationships where personal
loyalty or confidence is necessary, and whether the speech impedes the
efficient operation of the governmental entity’s function”), cert. denied,
116 S. Ct. 53 (1995). The government employer must make a substantial
showing that the speech is, in fact, disruptive before the speech may be
punished. Waters, 511 U.S. at 673. We recognize that the government, as
an employer, has broader powers in suppressing free speech than the
government as a sovereign. Indeed, we have given some deference to an
employer’s predictions of workplace disruption. Id. However, we have
never granted any deference to a government supervisor’s bald assertions
of harm based on conclusory hearsay and rank speculation. As stated
above, the procedural posture of this case requires us to view the facts
in the light most favorable to the nonmoving party, i.e., the plaintiffs.
In so doing, we note that both Burnham and Marchese, by affidavit,
expressly dispute that a “climate of fear and violence” existed on the
campus, stating that campus life continued as normal, no classes were
suspended or schedules altered and not a single act of violence occurred
on UMD premises.
Even if we were to attempt to balance the plaintiffs’ free speech
rights against the purported disruption of the pedagogical tasks of UMD,
it is clear that the impact of the speech on UMD’s mission is totally
unproven and unaddressed except in the most
-23-
conclusory fashion. There is simply no evidence that establishes a nexus
between the two photographs and an exacerbated climate of fear on the
campus or, more importantly, that establishes a relationship between the
photographs and a decrease in the efficiency and effectiveness of UMD’s
educational mission.
In sum, then, upholding Ianni’s approach to the First Amendment would
permit the suppression of too much speech on arbitrary and capricious
grounds. Such a holding would presumably permit the suppression of Ms.
Featherman’s advocacy of gender and cultural diversity at UMD if Ianni felt
that such speech contributed to an inefficient and negative working and
learning environment on the campus because of unlawful or vehement
19
opposition to Featherman’s views. “Vigilance is necessary to ensure that
public employers do not use authority over employees to silence discourse,
not because it hampers public functions but simply because superiors
disagree with the content of employees’ speech.” Rankin, 483 U.S. at 384.
Finally, we hold that Ianni’s failure to establish workplace
disruption or, at least, to make a connection between the plaintiffs’
speech and the workplace atmosphere, is fatal to his claim of qualified
immunity under a Pickering analysis. Kincade is both directly on point and
directly contradictory to Ianni’s position. Kincade was discharged by Blue
Springs for exercising
19
Underlying our holding today, in some respect, is the
recognition of the professors’ academic freedom--“a special concern
of the First Amendment.” University of California Regents v.
Bakke, 438 U.S. 265, 312 (1978). The content-based censorship
which occurred here could easily have a stifling effect on the
“‘free play of the spirit which all teachers ought especially to
cultivate and practice.’” Keyishian v. Board of Regents, 385 U.S.
589, 601 (1967) (quoting Baggett v. Bullitt, 377 U.S. 360, 374
(1964)).
-24-
his free speech rights. Because Kincade’s speech, as here, touched on a
matter of public concern, the Pickering balancing test was employed to
review the district court’s denial of a motion for summary judgment on
qualified immunity grounds. After noting that the only evidence of
workplace disruption was conclusory statements to that effect by the mayor
and other city officials, Judge Hansen stated:
the Appellants [city officials] have merely asserted that
Kincade’s speech adversely affected the efficiency of the
City’s operations and substantially disrupted the work
environment without presenting any specific evidence to support
this assertion. They therefore have not put the Pickering
balancing test at issue, and accordingly, we reject their claim
that they are entitled to qualified immunity because free
speech questions for public employees, as a matter of law,
cannot be “clearly established.”
Kincade, 64 F.3d at 398-99. This is precisely the factual and legal
situation we have in this case.
III. CONCLUSION
The district court correctly found that Ianni is not entitled to
qualified immunity from a suit seeking money damages for the violation of
plaintiffs’ First Amendment rights. Accordingly, we affirm.
-25-
McMILLIAN, Circuit Judge, with whom JOHN R. GIBSON, Circuit Judge, joins,
dissenting.
We respectfully dissent. In our original panel opinion, Burnham v.
Ianni, 98 F.3d 1007 (8th Cir.), vacated, 98 F.3d 1028 (1996), we fully set
forth our analysis of this case. We therefore rest upon our original panel
opinion as providing the reasons why we believe Ianni should be afforded
qualified immunity in the present case. The following is a response to the
majority opinion.
I.
We begin by noting the conspicuous absence from the majority opinion
of certain undisputed material facts concerning the circumstances in which
this controversy arose -- facts which the majority has all but ignored by
reducing them to a few obtuse sentences and a footnote. See supra at 6,
7 & n.5. By contrast, the district court appropriately devoted four full
paragraphs at the outset of its opinion to these crucial facts aptly
described by the district court as the "milieu" of the case. Burnham v.
Ianni, 899 F. Supp. at 397. As the district court explained:
In June 1991, Sandra Featherman was appointed to the post
of vice chancellor for [UMD]. Shortly after her appointment
was announced, Featherman began receiving threats. The threats
were bizarre, graphic and frightening:
The dogs are howling, they want blood. There are
footsteps crunching on the forest floor--it's the deer
hunters coming. They're after blood, too. It's the same
dream over and over. The deer hunters stalking--getting
closer and closer, never giving up the hunt, never
putting down their rifles. Overwhelmed by their desire
to kill.
. . . .
-26-
Federman (sic) no Duluth stay away, we will kidnap you,
the FBI can't protect you.
The deer hunters.
At the same time that Featherman was being threatened,
forged memoranda bearing the defendant's name, were circulated
in and about the campus. The memoranda referred to an alleged
plot to kidnap Featherman and used the terms "Prince of Death"
and "Deer Hunters." The forged document was circulated through
the mail to various departments and left in hallways of various
campus buildings.
Beginning in March 1992, history Professor Judith
Trolander became the target of threats. The caption on the
flyers left in the hallways of various University buildings
was: "The Imperial Council of Deer Hunters Proclaim Open Season
on Judy Trolander Lesbian Feminist Bitch." The memorandum
purported to reveal Professor Trolander's home address,
addressed questions concerning the appropriate weapons and
provided the reader with potential locations from which to
carry out an attack. Finally, the flyer proclaimed: "Get
cracking you kill crazy buckaroos. Its [sic] OK to kill her,
the Imperial Council rules UMD, the Commission on Women is
dissolved." The flyer specifically addressed Professor
Trolander, but its threat was targeted to all faculty members
who cooperated with Vice Chancellor Ianni's efforts to develop
a diversity program: "[a]ll faculty would be sentenced to death
along with their pets, children and spouses."
Defendant undertook to calm the concerns of the faculty
regarding these incidents. Despite his distribution of a
memorandum in which he addressed the seriousness with which he
was taking the threats and in which he reiterated his
commitment to the diversity program, the fears of many in the
campus were not alleviated. The investigation of the origin of
the threats continued and the threats continued to hang over
the campus. It is this background against which the substance
of this litigation arose.
Id.
-27-
Not only do we find it necessary to supply these critical facts, we
also caution that there is no legal basis to assume as true facts "derived
from the plaintiffs' pleadings" merely "[b]ecause discovery has not been
conducted in this case." Supra at 2. In ruling on a motion for summary
judgment, the question before the district court, and this court on appeal,
is whether the record, when viewed in the light most favorable to the
non-moving party, shows that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992);
St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992).
Where discovery has not been conducted, the record created by the parties
pursuant to Fed. R. Civ. P. 56 might not include the usual panoply of
discovered documents and deposition transcripts, but will include any
affidavits or other documents properly submitted in accordance with Fed.
R. Civ. P. 56(e). If, upon reviewing the record in the light most
favorable to the non-moving party, some material facts asserted in the non-
moving party's pleadings remain genuinely disputed, there is no legal basis
to assume such facts as true merely because discovery has not been
conducted. In the present case, for example, the majority opinion states
"[p]laintiffs dispute that any milieu of concern existed and contend that
the campus atmosphere, whatever it may have been, was not aggravated or
affected by the two photographs." Supra at 7 (emphasis added). The
majority supplements the above-underscored statement by later noting that
"both Burnham and Marchese, by affidavit, expressly dispute that a 'climate
of fear and violence' existed on the campus, stating that campus life
continued as normal, no classes were suspended or schedules altered and not
a single act of violence occurred on the UMD premises." Id. at 23
(emphasis
-28-
added). Presumably, the majority's assumptions that no milieu of concern
existed at the time the photographs were removed, and that campus life
continued as normal, have formed the basis for the majority's decision to
virtually ignore the facts set forth above. However, according to
undisputed evidence in the record, less than two months before the
photographs were removed, anonymously-written flyers were left in hallways
of various UMD buildings on campus, and those flyers stated the following:
She [Professor Trolander] will be a good target for shooting at
long range. The house has large windows and the terrain is
clear of obstacles in all directions. Shooting from the beach
or even from a boat in the bay or lake Superior is feasible.
A 30-60 rifle with 20X2 Bushnell scope would be a suitable
weapon with dum-dum bullets dipped in poison. Don't forget to
put in a couple of clicks in the crosshairs for windage as the
wind is usually strong there. It is recommended that the
hunter shoot from behind the Surf and Sand Health Center, if
there is return fire from the house it will only kill a few old
people. She is the only occupant of the house, so it is OK to
shoot silhouettes on drawn shades.
Get cracking you kill crazy buckaroos. Its OK to kill her, the
Imperial Counsel rules UMD, the commission on women is
dissolved.
Also, all faculty members ordered to participate in
Featherman's administrative development project will be
sentenced to death along with their pets, children, and spouses
if they comply with these orders. Any one who cooperates with
Featherman will have their target information published.
The deer hunters need target information on Featherman, just
mention where she lives in the faculty club and everything will
be taken care of.
Appellant's Appendix at 38. We certainly agree with the majority's
description of the above-quoted death threat as "deranged." Supra at 6.
However, viewing the record in the light most favorable to plaintiffs and
applying the Rule 56 standard, we would also find
-29-
plaintiffs' description of campus life as "normal" to be patently
inaccurate. Even the district court stated, consistent with the Rule 56
standard, that, despite Ianni's efforts to assuage concerns on campus, "the
fears of many in the campus community were not alleviated. The
investigation of the origin of the threats continued and the threats
continued to hang over the campus." 899 F. Supp. at 397. As the district
court concluded, "[i]t is this background against which the substance of
this litigation arose." Id.
II.
We now turn to the legal issues presented by this case, beginning
with a reminder of the principles that underlie the doctrine of qualified
immunity. In Anderson v. Creighton, 483 U.S. at 638 (citations omitted),
the Supreme Court explained:
When government officials abuse their offices, "action[s] for
damages may offer the only realistic avenue for vindication of
constitutional guarantees.” On the other hand, permitting
damages suits against government officials can entail
substantial social costs, including the risk that fear of
personal monetary liability and harassing litigation will
unduly inhibit officials in the discharge of their duties. Our
cases have accommodated these conflicting concerns by generally
providing government officials performing discretionary
functions with a qualified immunity, shielding them from civil
damages liability as long as their actions could reasonably
have been thought consistent with the rights they are alleged
to have violated.
The Court then went on to explain:
Somewhat more concretely, whether an official protected
by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the
"objective legal reasonableness"
-30-
of the action, assessed in light of the legal rules that were
"clearly established" at the time it was taken.
Id. at 639 (citations omitted). In Anderson v. Creighton, the Supreme
Court also addressed the degree of generality versus specificity with which
the relevant legal rule is to be defined for purposes of determining
whether the law was "clearly established" at the time of the relevant
events. Id. The Court explained that, in order for the concept of a
"clearly established" law to comport with the "objective legal
reasonableness" standard set forth in Harlow v. Fitzgerald, 457 U.S. at
819, "the contours of the right must be sufficiently clear that a
reasonable official would understand that what he [or she] is doing
violates that right." Anderson v. Creighton, 483 U.S. at 640. "This is
not to say that an official action is protected by qualified immunity
unless the very action in question has previously been held unlawful . . .
but it is to say that in the light of pre-existing law the unlawfulness
must be apparent." Id. (citations omitted).
We believe, in the present case, that it could not have been apparent
to Ianni that the actions he took were unlawful in light of the pre-
existing law. Indeed, "the parameters of the protection afforded to a
university professor's academic speech were not clearly defined in May 1992
and are not clearly defined today." Scallet v. Rosenblum, No. 96-1138,
1997 WL 33077, at *2 (4th Cir. Jan. 29, 1997) (unpublished) (per curiam)
(Scallet) (disposition reported in table at 106 F.3d 391), cert. denied,
No. 96-1725 (U.S. June 23, 1997).
As we explained in our original panel opinion, the issue of whether
the removal of the two photographs violated Burnham's and Marchese's First
Amendment right to engage in nonverbal expressive behavior is governed by
the Pickering-Connick-Waters line of
-31-
Supreme Court cases dealing with the First Amendment rights of public
employees. The mere fact that the circumstances of this case are unique
(at least in terms of the controversies that have actually been litigated
in federal court) makes this no less an employment-related case. Thus, the
pertinent case law in existence at the time Ianni removed the photographs
from the display case included the Supreme Court's decisions in Connick and
Pickering, as well as a body of lower federal court decisions which had
applied Connick and Pickering -- none of which were factually similar to
the present case.
Contrary to the majority's assertion, Kincade is not "directly on
point and directly contradictory to Ianni's position." Supra at 25.
Kincade is distinguishable because, in that case, this court held that the
Pickering balancing test had not been put at issue. This court reasoned
that the defendants, city officials, "ha[d] merely asserted that Kincade's
speech adversely affected the efficiency of the City's operations and
substantially disrupted the work environment without presenting any
specific evidence to support this assertion." Kincade, 64 F.3d at 398
(emphasis added) (cited supra at 25). By contrast, in the present case,
Ianni presented specific evidence showing that the photographs were already
having a disruptive effect on the work environment and that their continued
display in the history department display case had the potential to further
disrupt the work environment. Before Ianni ever made the decision to have
the photographs removed, meetings were held, involving Karon, Ianni, the
Kohns, Burnham, Marchese, and other faculty members in the history
department, at which the fate of the two photographs was specifically
addressed. It is clear from the record that feelings were strong on both
sides: some individuals felt that the display of photographs of professors
holding weapons was inappropriate in light of the campus-wide death threats
against Trolander and others; others felt
-32-
adamantly opposed to removing the photographs for that reason. See
Appellant's Appendix at 50 (internal history department memorandum:
"[s]omehow, this ugly trend of History governance by external
administrators and bureaucrats must be called into account; if the photo
display is our line in the sand, so be it"). With respect to one of the
meetings, Karon stated:
Chancellor Larry Ianni and I [Karon] met with the history
department faculty on one occasion during the first few days of
May. Department members offered a variety of reasons for not
wanting to take the photos down. Some said the request was an
undue interference with the department, or an attempt to blame
the department for the threats. Others said it was Judy
Trolander's fault. Professor Trolander expressed her concern
that no one knew how upsetting the photos were to her.
Appellant's Appendix at 12 (Affidavit of Judith Karon, ¶ 13).
We think it fair to say that Ianni, as the unlucky decisionmaker in
this employment-related controversy, was between a rock and a hard place.
Regardless of whether he decided to have the photographs removed or left
alone, it was reasonable for him to assume that some faculty members would
be quite upset. In explaining his decision to remove the photographs,
Ianni stated in his affidavit that the situation with which he was dealing
was unique in his experience, that he tried suggesting to the history
department faculty that "it would be an act of collegiality to remove the
photos" and they "should all be sympathetic to the effects of the agitation
on campus," and that, after the history department refused to accept his
suggestion, he ordered the photographs removed with the intent "to try to
maintain a positive and efficient working and learning environment
conducive to the mission of an academic institution." Id. at 7-8
(Affidavit of Lawrence Ianni, ¶¶ 8-11). Ianni himself was not personally
opposed
-33-
to the photographs. See Supplemental Appendix of Appellees at 37
(Affidavit of Albert Burnham, ¶ 4 ("Ianni stated that he personally saw
nothing wrong with the pictures")). He had them removed because of their
antagonistic effect.
Plaintiffs have not disputed the truthfulness of Ianni's stated
reason for removing the photographs, nor have plaintiffs alleged or
identified anything in the record to suggest that Ianni had any motive
other than those which he described in his affidavit. Instead, plaintiffs
maintain that it was utterly irrational for Ianni to think that removing
the photographs would serve his stated goal. Looking upon Ianni's actions
with the benefit of hindsight, the majority agrees with plaintiffs and
further concludes that Ianni's actions also violated clearly established
First Amendment law as it existed in May of 1992. We disagree.
As we have noted, even today the parameters of the First Amendment
protection afforded to university professors' academic speech is not
clearly defined -- much less so at the time this controversy arose. See
Scallet, 1997 WL 33077, at *2. Moreover, viewing the record in the light
most favorable to plaintiffs does not dispel the fact that, no matter what
course of action Ianni had followed with respect to the two photographs,
the end result would have been the dissatisfaction of some faculty members,
and most likely disruption to the work environment -- at least insofar as
those who had already taken sides were concerned. Faced with this highly
unusual and unenviable predicament, Ianni chose to have the photographs
removed, in the hopes of maintaining a positive and efficient working and
learning environment. In our opinion, it is not appropriate, given the
facts of this case, for this court to now decide the qualified immunity
issue on the basis of whether we think Ianni should have dismissed the
concerns expressed by
-34-
Trolander, Karon, and others as irrational or unjustified; that was a
matter with which Ianni, as the responsible school administrator, was
forced to grapple at that time. The circumstances only permitted him to
accommodate one side's interests or the other's, but not both. We believe
that the Supreme Court has indicated, as a matter of substantive First
Amendment law, that it may not be appropriate for this court to second-
guess Ianni's handling of this employment-related matter. As the Supreme
Court stated in Waters, 511 U.S. at 675 (emphasis added):
The key to First Amendment analysis of government
employment decisions . . . is this: The government's interest
in achieving its goals as effectively and efficiently as
possible is elevated from a relatively subordinate interest
when it acts as sovereign to a significant one when it acts as
employer. The government cannot restrict the speech of the
public at large just in the name of efficiency. But where the
government is employing someone for the very purpose of
effectively achieving its goals, such restrictions may well be
appropriate.
We also reiterate a point emphasized in our original panel opinion.
In considering the weight to be given Ianni's perceptions and predictions
of disruption, the law provides that the disruption need not have been
actual, but may have been merely potential. Id. at 681 (holding, as a
matter of law, that the potential disruptiveness of the speech was enough
to outweigh whatever First Amendment value it might have had); Tindle, 56
F.3d at 972 ("[a] showing of actual disruption is not always required in
the balancing process under Pickering"); accord Jeffries, 52 F.3d at 13
(noting that Waters stresses that actual disruption is not required).
Notably, on this particular point, Kincade does not even mention Waters,
let alone rely on that Supreme Court precedent. In light of Waters, its
progeny, and our understanding of Ianni's predicament in this case, we
conclude that Ianni did not
-35-
violate Burnham's or Marchese's First Amendment right to engage in
nonverbal expressive conduct when he ordered the removal of the two
photographs from the display case; in any event, he certainly did not
violate their clearly established First Amendment rights. "In view of the
difficulty that federal courts themselves have had in grappling with the
concepts of academic freedom both as to the teacher and the educational
institution, [Vice Chancellor Ianni, who is] not trained in the law could
hardly be expected to recognize the contours of [Burnham's and Marchese's]
rights." Scallet, 1997 WL 33077, at *2. We would therefore hold that
Ianni is entitled to qualified immunity with respect to the claims brought
by Burnham and Marchese based upon their alleged nonverbal expressive
conduct.20
Finally, we believe that our position is well-grounded in Eighth
Circuit jurisprudence. In Grantham v. Trickey, 21 F.3d at 292-95, Judge
Hansen, writing for a panel of this court, set forth a comprehensive and
balanced historical analysis of Eighth Circuit case law dealing
specifically with the applicability of qualified immunity in the public
employee speech context. In Grantham v. Trickey, id. at 295, this court
affirmed the district court's grant of summary judgment for the defendants
on the basis of qualified immunity upon determining that it was appropriate
under the
20
In light of the complexities of the law with which we are
dealing, including the balancing process required by the First
Amendment and the "clearly established" standard imposed by the
qualified immunity doctrine, we are not swayed by plaintiffs'
allegations that Ianni himself speculated that "if we [plaintiffs]
sued him, he 'would not stand a chance,' or words to that effect."
Supplemental Appendix of Appellees at 38 (Affidavit of Albert
Burnham, ¶ 8); see also id. at 40 (Affidavit of Richard Morris
(stating, for example, that "[w]hile I do not recall the exact
words used by Chancellor Ianni, I understood the import of his
remarks to be that he believed that the censorship of the
photographs violated the legal rights of the persons involved.")).
-36-
circumstances of that case to follow the analysis of Bartlett v. Fisher,
972 F.2d 911 (8th Cir. 1992) (reversing the district court's denial of
summary judgment for the defendants on the basis of qualified immunity).
In Bartlett v. Fisher, id. at 914, 916-17, Judge Loken also took care to
recognize the historical and policy-based underpinnings of the qualified
immunity doctrine in this area of First Amendment law. In reasoning that
the defendants in that case were entitled to qualified immunity, Judge
Loken noted "[a]t least five circuits have concluded that, because
Pickering's constitutional rule turns upon a fact-intensive balancing test,
it can rarely be considered 'clearly established' for purposes of the
Harlow qualified immunity standard."21 Id. at 916 (emphasis added) (quoted
in Grantham v. Trickey, 21 F.3d at 293). We, too, agree with this general
statement of the law and think that the present
21
A very similar view has been expressed by our court in other
constitutional contexts. For example, in Manzano v. South Dakota
Dep't of Social Servs., 60 F.3d 505, 509-11 (8th Cir. 1995), we
observed that the constitutionally protected liberty interest which
parents have in familial integrity is not absolute, and when a
parent alleges that official conduct infringed upon that right, the
merits of that constitutional challenge are determined by a
balancing test. We then observed that "[t]he need to continually
subject the assertion of this abstract substantive due process
right to a balancing test which weighs the interest of the parent
against the interests of the child and the state makes the
qualified immunity defense difficult to overcome." Id. at 510.
"Moreover, the requirement that the right be clearly established at
the time of the alleged violation is particularly formidable." Id.
(citing cases). In Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.
1987), also a case involving the constitutional right of familial
integrity, we applied the doctrine of qualified immunity after
noting our agreement with the Seventh Circuit's observation in
Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. denied, 479
U.S. 848 (1986), that, when a determination of constitutional
protection turns on application of a balancing test, "the right can
rarely be considered 'clearly established,' at least in the absence
of closely corresponding factual and legal precedent."
-37-
case is not an exception.22 Even if we were to agree with the majority of
this en banc court that Ianni has violated plaintiffs' clearly established
First Amendment rights, we would favor acknowledging the above-quoted rule
of law, which takes into account the tensions and subtleties that lie in
this area of First Amendment jurisprudence, particularly when superimposed
with the doctrine of qualified immunity.
III.
We now turn to the forum-related arguments. Plaintiffs, including
the Kohns, assert a violation of their First Amendment right to use the
display case as a means "to publicize some of the areas of expertise and
interest of the History Department's faculty, while at the same time
portraying the faculty in an informal, somewhat humorous way." In
analyzing this claim, we agree with the district court's conclusion that
the history department display case was a nonpublic forum. 899 F. Supp.
at 403 (focusing on facts that the display case was under UMD's control,
22
We are by no means suggesting that qualified immunity will
protect public officials in every instance where the applicable
constitutional standard involves a balancing test. As plaintiffs
have pointed out, this court has on at least two occasions denied
qualified immunity to school officials who violated teachers' First
Amendment rights under Pickering. See Southside Pub. Schs. v.
Hill, 827 F.2d 270, 272-75 (8th Cir. 1987) (denying qualified
immunity to defendants, school officials, who had constructively
terminated elementary school teachers in retaliation for having
written a letter to the state department of education complaining
about violations of the federal statutory requirement that
handicapped children be provided a free appropriate public
education); Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 318
(8th Cir. 1986) (qualified immunity denied to school superintendent
and school board members who fired school principal for the stated
reason, among others, that he had publicly criticized their
decision to transfer his wife from the high school to the junior
high school level).
-38-
that UMD allowed members of the history club to use it upon request, and
that the display case was dedicated to use of the UMD history department
for disseminating information about the department). Because the display
case was a nonpublic forum, the issue as to whether a First Amendment
violation resulted from the removal of the two photographs turns on whether
"the distinctions drawn [were] reasonable in light of the purpose served
by the forum and [were] viewpoint neutral." Cornelius, 473 U.S. at 806.
So long as these requirements are met, "[c]ontrol over access to a
nonpublic forum can be based on subject matter." Id. "The reasonableness
of the Government's restriction of access to a nonpublic forum must be
assessed in the light of the purpose of the forum and all the surrounding
circumstances." Id. at 809. We believe that Ianni's decision to remove
the two photographs was not an unreasonable subject matter restriction in
light of the purpose of the forum, which was to disseminate information
about the history department, and because his actions were narrowly
tailored and left open other channels through which Burnham's and
Marchese's interests in classical and American military history could still
be publicized.23 See Perry, 460 U.S. at 53 ("the reasonableness of the
limitations . . . is also supported by the substantial alternative channels
that remain open"). Moreover, Ianni has demonstrated beyond any dispute
that his removal of the photographs had nothing whatsoever to do with any
viewpoint which the photographs may have expressed. Contrary to the
majority's conclusion, this was not "an effort to suppress expression
merely because [Ianni] oppose[d] the speaker[s'] view[s]." Id. at 46.
Burnham himself alleges that "Ianni stated that he personally saw nothing
wrong with the
23
For example, nothing prevented plaintiffs from replacing the
removed photographs with similar pictures of Burnham and Marchese
without weapons, while continuing to publicize through written
descriptions their interests in American military and classical
history.
-39-
pictures." Supplemental Appendix of Appellees at 37 (Affidavit of Albert
Burnham, ¶ 4). Ianni was motivated solely by his desire to address the
potential disruptiveness of the photographs, which had already been
foreshadowed by the diametrically opposed views expressed at the history
department meetings.
The majority states that "[t]he photographs of Professors Burnham and
Marchese expressed the plaintiffs' view that the study of history
necessarily involves a study of military history, including the use of
military weapons." Supra at 15. There is absolutely nothing in the record
stating or implying that Ianni or anyone else opposed such a view about the
study of history. The majority further states that Ianni had the
photographs removed "[b]ecause other persons on the UMD campus objected .
. . to allowing this viewpoint to be expressed in this particular way."
Id. This is precisely the point that we have been making all along --
Ianni was attempting to address the potential disruptiveness of the
photographs, not any viewpoint expressed by them. Moreover, his actions
were not unreasonable in light of the circumstances. Nothing in his
actions prevented plaintiffs from expressing the above-described message
through other means -- which, in fact, they clearly could do through the
exhibit's written descriptions of the professors' academic interests. See
Supplemental Appendix of Appellees at 30 (Affidavit of Ronald Marchese, ¶
9 ("Professor Burnham listed U.S. Military History among his principal
interests")). We also think the reasonableness of Ianni's actions is
supported by the facts that, after school resumed the following fall, the
two photographs were posted in the student center and Ianni took no action
at that time because "[t]he atmosphere was substantially calmer after the
summer break of 1992." Appellant's Appendix at 8 (Affidavit of Lawrence
Ianni, ¶ 12).
-40-
In sum, we would hold as a matter of law that Ianni did not violate
plaintiffs’ First Amendment rights by regulating the use of the display
case. We most certainly believe that his actions did not violate any
clearly established First Amendment rights and, thus, he should be afforded
qualified immunity with respect to plaintiffs’ forum-related claims.
IV.
Ianni did not violate any of plaintiffs' First Amendment rights when
he ordered the removal of the two photographs from the display case. More
importantly, given the "background against which the substance of this
litigation arose," 899 F. Supp. at 397, and the lack of clarity in the
applicable law as it existed in May of 1992, Ianni should be afforded
qualified immunity. He should be spared from having to further defend
himself in this litigation and from having to pay money damages to UMD
history professors Albert Burnham and Ronald Marchese and former UMD
students Michael Kohn and Louise Kohn.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-41-
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957 N.E.2d 592 (2008)
379 Ill. App.3d 1083
354 Ill. Dec. 276
PEOPLE
v.
WARD.
No. 2-06-0400.
Appellate Court of Illinois, Second District.
April 22, 2008.
Rev'd & rem.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1903
CHARLES WILLIAM LEVY,
Plaintiff - Appellant,
versus
COMMONWEALTH OF VIRGINIA STATE BOARD OF
ELECTIONS,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-02-283-A)
Submitted: October 24, 2002 Decided: October 30, 2002
Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles William Levy, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles William Levy appeals the district court’s order
dismissing his civil action against the Virginia State Board of
Elections. Our review of the record and the district court’s
opinion adopting the magistrate judge’s recommendation discloses no
reversible error. Accordingly, we affirm on the reasoning of the
district court. See Levy v. State Bd. of Elections, No. CA-02-283-
A (E.D. Va. filed Aug. 2, 2002 & entered Aug. 6, 2002). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
2
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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 46243
STATE OF IDAHO, )
) Filed: May 29, 2019
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
CAMERON SCOTT FIGUEROA, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. George A. Southworth, District Judge.
Judgment of conviction and concurrent unified sentences of four years, with
minimum periods of confinement of one and one-half years, for two counts of
burglary affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
Before GRATTON, Chief Judge; LORELLO, Judge;
and BRAILSFORD, Judge
________________________________________________
PER CURIAM
Cameron Scott Figueroa pled guilty to two counts of burglary. I.C. §§ 18-1401. In
exchange for his guilty pleas, additional charges were dismissed. The district court sentenced
Figueroa to concurrent unified terms of four years, with minimum periods of confinement of one
and one-half years. Figueroa appeals, arguing that the district court should have retained
jurisdiction or placed him on probation.
1
The primary purpose of a district court retaining jurisdiction is to enable the court to
obtain additional information regarding whether the defendant has sufficient rehabilitative
potential and is suitable for probation. State v. Jones, 141 Idaho 673, 677, 115 P.3d 764, 768
(Ct. App. 2005). Probation is the ultimate goal of retained jurisdiction. Id. There can be no
abuse of discretion if the district court has sufficient evidence before it to conclude that the
defendant is not a suitable candidate for probation. Id.
Applying these standards, and having reviewed the record in this case, we cannot say that
the district court abused its discretion. Therefore, Figueroa’s judgment of conviction and
sentence are affirmed.
2
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300 F.2d 496
OCEAN MARINE LIMITED, as owner of THE Steamship SAN JUAN,Libelant-Appellant,v.UNITED STATES LINES COMPANY, Steamship THE AMERICAN CHIEF,Moran Towing& Transportation Co., Inc., and TugTHE MARTHA MORAN, Respondents-Appellees.
No. 185, Docket 26933.
United States Court of Appeals Second Circuit.
Argued Jan. 11, 1962.Decided March 16, 1962.
John H. Hanrahan, Jr., of Foley & Martin, New York City, for libelant-appellant.
Elmer C. Maddy, of Kirlin, Campbell & Keating, New York City (Roy C. Megargel, New York City, on the brief), for appellees United States Lines Co. and Steamship American Chief.
Kenneth H. Volk, of Burlingham, Underwood, Barron, Wright & White, New York City (Eugene Underwood and Robert F. Lynch, of Burlingham, Underwood, Barron, Wright & White, New York City, on the brief), for appellees Moran Towing & Transportation Co., Inc., and Seaboard Shipping Corp.
Before LUMBARD, Chief Judge, and CLARK and FRIENDLY, Circuit Judges.
CLARK, Circuit Judge.
1
Libelant, Ocean Marine Limited, owner of the steamship San Juan, appeals from the decision below holding the San Juan solely liable for damages sustained by that steamship and the barge Seaboard No. 77 as a result of a collision in New York Harbor between the San Juan and the Seaboard No. 77, then in tow of the tug Martha Moran. Judge Noonan rejected the San Juan's claims that the collision was caused by the fault or negligence of the Martha Moran, or of a fourth ship not actually in collision, the steamship American Chief, owned by appellee United States Lines Company. Instead he held that the collision was caused solely by the fault and negligence of the San Juan.
2
The collision occurred in the early evening of December 2, 1957, off St. George, Staten Island. Both the San Juan and the Martha Moran, with her tow, were proceeding out the Kill Van Kull on an eastward course that would take them across New York Harbor. The Martha Moran, in the lead, was headed for the Brooklyn Army Base. Following and overtaking the tug was the San Juan, whose destination was the Todd Shipyard at Erie Basin, Brooklyn. The American Chief, a fast vessel, was proceeding swiftly southward on a course of 208 degrees down the harbor from Pier 59 on the North River.
3
A few minutes before the collision, when the American Chief was in the vicinity of buoy 24, she shifted her course to 180 degrees; as a result the bearing of the San Juan opened. At about this time the Martha Moran, fearing a collision with the American Chief, turned to port. The pilot of the San Juan, occupied with other traffic and located on the port wing of her bridge, did not immediately observe this change of course; and the tanker had no lookout on her bow. The tug's shift in course brought her across the San Juan's bows, and although both ships maneuvered to avoid collision, the tanker's bow collided with the barge Seaboard No. 77, damaging it.
4
Libelant claims, inter alia, that the American Chief had committed a statutory fault when, as the burdened vessel in a crossing situation, she failed to give way to the privileged vessels, and that this violation of Article 19 of the Inland Rules of the Road, 33 U.S.C. 204-- and of Articles 22 and 23, 33 U.S.C. 207, 208-- had led to the collision. Libelant further claimed that the Martha Moran had committed several statutory faults, and was negligent.
5
Judge Noonan rejected all these claims and held that the San Juan herself had violated the Inland Rules in several regards: she had failed to have a proper lookout, she had overtaken the Martha Moran without giving proper signals, she had failed to stay clear of the tug, and she had failed to reverse her engines in sufficient time once the danger of collision had become apparent. As to the American Chief, which had gone down the harbor without stopping for the other vessels, Judge Noonan held that no crossing situation ever existed between that vessel and either the San Juan or the Martha Moran and her tow; hence the Rules of the Road as to crossings never became applicable. For these reasons he dismissed the libel as to the United States Lines Company, the American Chief, the Martha Moran, and the Moran Towing & Transportation Co., Inc., and awarded provable damages to the Seaboard Shipping Corp., owner of the Seaboard No. 77.1
6
The crux of this appeal is whether the district judge erred in finding that the rules of the Board governing crossing situations were inapplicable to the American Chief. Article 19 of the Inland Rules, 33 U.S.C. 204, states that: 'When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.' The other cited rules define more specifically the obligation to keep out of the way. The vessels were crossing, and the American Chief unquestionably had the other ships on her starboard, so that the question for determination is whether the crossing involved 'risk of collision.' Judge Noonan found that the collision was 'not probable' and that a crossing situation was not developing because 'the course change at buoy 24 and the speed of the American Chief would have easily negated any possibility of collision.' Based on these findings, Judge Noonan held that the American Chief was never in a position vis-a-vis either the San Juan or the Seaboard No. 77, in tow of the Martha Moran, to make applicable the rules for steam vessels crossing.
7
The Rules of the Road precribe certain clear-cut obligations for vessels in a crossing situation. Once they become operative no deviation from their dictates is permitted. The rules are familiar to all masters and pilots, and each of the vessels in a crossing situation may presume that the other will comply with the rules. They are designed to prevent collisions; any vessel whose violation of a rule leads to a collision is held liable for damages caused by it. Of course they govern navigation only from the time the need for precaution begins. New York and Liverpool U.S. Mail S.S. Co. v. Rumball, 62 U.S. 372, 21 How. 372, 16 L.Ed. 144. The question of when such necessity arises is to be determined by application of objective standards; the fact that the vessel under scrutiny did not perceive the need for care matters not at all. The Johnson, 76 U.S. 146, 153, 9 Wall. 146, 19 L.Ed. 610; Griffin on Collision 20-21 (1949).
8
Since the rules are designed to prevent the risk of collision as well as collision itself,2 it is not necessary for a collision to be imminent or even probable before the obligation imposed by them accrues. The courts have expressed this concept in various ways. Said Judge Addison Brown: 'There is danger or risk of collision whenever it is not clearly safe to go on.' The Aurania, D.C.S.D.N.Y., 29 F. 98, 123. While Judge Learned Hand put it thus: "Risk of collision' does not mean certainty of collision; but only that prudence demands that the navigators shall watch each other's navigation, and be prepared to do whatever safety may demand.' Secony Vacuum Transp. Co. v. Gypsum Packet Co., 2 Cir., 153 F.2d 773, 776. In short, a situation may involve risk of collision before there is actual danger, but 'when the relation between the vessels is such that danger may shortly arise, if the rules are not obeyed.' Griffin on Collision 23 (1949). Once vessels enter into such a potentially dangerous relationship, their obligations are fixed.
9
An example may serve to clarify the factors which determine whether a situation involves the risk of collision. In Socony Vacuum Transp. Co. v. Gypsum Packet Co., supra, 2 Cir., 153 F.2d 773, the Voco collided in lower Delaware Bay with the Gypsum Prince. Each vessel had a speed of about 10 knots; the collision occurred at night. When the Voco first sighted the Gypsum Prince, that vessel was two and a half to three points off her port bow at a distance estimated to be between two and a half and three miles. Two minutes later the Voco changed her course 8 degrees to starboard; at that time the Gypsum Prince was about three quarters of a mile away. The court found that the situation prior to the change of course involved the risk of collision, and that for that reason the slight course change constituted a statutory fault. It is noteworthy that the court reached this conclusion despite its finding that the ships would not have collided had each kept her course and speed.
10
For these reasons, a finding that collision is not probable clearly does not preclude a conclusion that the situation involves the risk of collision. Moreover, the fact that the course change made by the American Chief at buoy 24 'would have easily negated any possibility of collision' could not affect the American Chief's obligation to navigate in accord with the rules of the road if the situation prior to the course change involved the risk of collision. For as the burdened vessel the American Chief not only had an obligation to keep out of the way of the privileged ships, but also was obliged to avoid crossing ahead of the other vessels. Inland Rules, Article 22, 33 U.S.C. 207. And if a violation of these statutes caused in whole or part the collision between the two vessels coming out of the Kill, the American Chief must at least share the liability.
11
The pilot of the San Juan testified that he first sighted the American Chief when the San Juan was off St. George in the vicinity of buoy 2, and the American Chief was abeam of Caven Point. The American Chief was on a course of 280 degrees at that time, moving at a speed of 13 knots. The San Juan was heading on a course of 110 degrees at approximately 9 knots. Rough calculations indicate that had the vessels continued on these courses, they would have met at a point southeast of buoy 24 approximately 5 minutes from the time the San Juan sighted the American Chief. In this period both vessels altered course, but these changes did not affect the situation. The course change of the San Juan to 85 degrees would not have lessened the risk of collision, and the American Chief did not change course until she reached buoy 24, approximately 1.15 miles from the point where the San Juan sighted her. If the facts were as the San Juan's pilot testified, it would be difficult to conclude that the situation did not involve the risk of collision, for if either ship exercised bad judgment there might have been a collision. Similarly, at some point the conjunction of the courses of the Martha Moran and the American Chief may have involved a possibility of collision. Certainly if a situation where crossing vessels will not collide if they hold their courses can involve risk of collision, the instant situation, where the evidence suggests that the vessels might have collided if they stayed on course, would involve such a risk. Compare Socony Vacuum Transp. Co. v. Gypsum Packet Co., supra, 2 Cir., 153 F.2d 773.
12
The testimony was conflicting, and it is clear that the district judge discredited much of what was said below. Because he took an erroneous view of what constitutes a risk of collision, his findings failed to focus on those aspects of the testimony which would determine what was the possibility of collision before the American Chief's change of course. Moreover, he located the Martha Moran and the collision in Anchorage 23, a finding which is highly improbable in view of the unquestioned courses which the tug and the tanker were following. And that finding has little support in the record outside of the wholly incredible testimony of Captain Dunnett, Master of the American Chief, that before the collision the tug was in the southern portion of Anchorage 23. To have reached such a position, the tug would have had to turn almost 90 degrees off course and proceed in that direction for almost a mile, or over half the distance then remaining in her voyage. Therefore, we find it necessary to reverse for a new or further hearing (as the district court may determine) in order that these issues can be considered and specific pertinent findings made.
13
Of course, even if it is found that the situation involved the risk of collision as we have defined that condition, further findings must be made and conclusions reached as to whether the American Chief's maneuvers were improper, whether they caused the collision, and whether other vessels also were at fault, so that a division of damages must be adjudged. We find it unnecessary to consider any of the other issues raised below, since their adjudication rests on factual determinations which may be altered following the further proceedings here ordered.
14
Reversed and remanded for further proceedings consistent with this opinion.
1
Seaboard Shipping Corp. and Moran Towing & Transportation Co., Inc., which prevailed below, have filed protective appeals. Our resolution of the appeal of Ocean Marine Limited requires us to dismiss these appeals, and it is so ordered
2
The Beryl, 9 Prob.Div. 137, 5 Asp. 321 (1884), cited in Griffin on Collision 23 (1949)
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NOTE: This order is n0np1'ecedentia1.
Um'ted States Court of Appeals
for the FederaI Circuit
SYNQOR, INC.,
Plaintiff-Appellee,
V.
ARTESYN TECHNOLOGIES, INC. AND ASTEC
AMERICA, INC., l 1
Defend0:nts-Appellants,
AND
BEL FUSE, INC., ~
Defencian,t~Appellan,t,
AND
DELTA ELECTRONICS, INC., DELTA PRODUCTS
CORP., AND POWER-ONE, INC.,
Defen,dants-Appellants,
AND
MURATA ELECTRONICS NORTH AMERICA, INC.,
MURATA MANUFACTURING CO., LTD., AND
MURATA POWER SOLUTIONS, INC.,
Defen.dants»Appellants,
AND
CHEROKEE INTERNATIONAL CORP. AND
LINEAGE POWER CORP.,
Defendants.
SYNQOR V. ARTESYN TECH 2
Appea1s from the United States District Court for the
Eastern District of Texas in case no. 07-CV-0497, Judge
T. John Ward.
2011-1191, -1192, -1194, 2012-1070, -1071, -1072
ON MOTION
ORDER
Be1 Fuse Inc. et al. move without opposition to with-
draw Johnny A. Kumar as c0unse1. The court also consid-
ers whether to direct all counsel to submit amended
entries of appearance and amended certificates of inter-
est.
Upon consideration thereof
lt ls Ordered That:
(1) The motion is granted
(2) A11 counsel are directed to file amended entries of
appearance and amended certificates of interest within 14
days from the date of filing of this order.
FoR THE CoURT
APR 1 1 2012
/S/ J an Horbaly
Date J an Horba1y
C1erk
FlLED
PPeALs son
census
APR '| '| 2012
ANHORBA\.V
ii CLER\(
3
cc: Dona1d R. Dunner, Esq.
Constantine L. Tre1a, Jr., Esq.
A1an D. Smith, Esq.
Wi1].iam F. Lee, Esq.
Andrew J. Pincus, Esq.
s19
SYNQOR V. ARTESYN TECH
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2241
ANDRE JAVION PORTEE,
Plaintiff - Appellant,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE; OFFICE OF THE
ASSISTANT SECRETARY FOR CIVIL RIGHTS; THOMAS J. VILSACK,
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:15-cv-13928)
Submitted: March 14, 2019 Decided: March 25, 2019
Before KING and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andre Javion Portee, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Javion Portee appeals the district court’s order accepting the
recommendation of the magistrate judge granting the United States Department of
Agriculture’s motion for summary judgment and denying his motion for summary
judgment. We have reviewed the record and find no reversible error. * Accordingly, we
affirm for the reasons stated by the district court. Portee v. USDA, No. 2:15-cv-13928
(S.D.W. Va. Aug. 31, 2018). We grant leave to proceed in forma pauperis. We dispense
with oral argument because the facts and legal contentions are adequately presented in
the materials before this court and argument would not aid the decisional process.
AFFIRMED
*
Portee asserts numerous issues in his informal brief. However, in his objections
to the magistrate judge’s report and recommendation, he objected only to the magistrate
judge’s findings related to a February 7, 2013, letter to his Congressman. He has
therefore waived appellate review of all other issues. United States v. Midgette, 478,
F.3d 616, 621-22 (4th Cir. 2007).
2
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707 S.E.2d 560 (2011)
The STATE
v.
SMITH.
No. A10A1655.
Court of Appeals of Georgia.
March 10, 2011.
*561 Paul L. Howard Jr. Atlanta, and Bettieanne C. Hart, for The State.
Arthurlyn Combs-Hixson, for Elvis Smith.
DILLARD, Judge.
Elvis Smith was indicted on one count of robbery by force[1] and one count of kidnapping,[2] based on his alleged participation in the hijacking of an automobile and the abduction of one of its occupants. Thereafter, Smith moved to suppress evidence that the victims identified him from photographic lineups and to preclude the same victims from identifying him at trial. Without holding an evidentiary hearing, the trial court granted Smith's motion, finding that the State failed to proffer any evidence to support the admissibility of the identifications despite being given an adequate opportunity to do so. The State appeals, arguing that the trial court erred in granting Smith's motion to suppress the photographic and in-court identifications without first holding an evidentiary hearing. For the reasons set forth infra, we vacate the trial court's order granting Smith's motion to suppress, and remand the case for additional proceedings consistent with this opinion.
Here, the evidence shows that in the early morning hours of July 27, 2007, police responded to a report of an automobile hijacking and kidnapping in downtown Atlanta. Upon arriving at the scene, the police spoke with a young male, who claimed that after leaving a nightclub, he and his sister were followed to their car by three African-American malestwo of whom were later identified as Corey Lakes and Elvis Smith. And before the siblings could drive away, Smith allegedly climbed into the passenger seat of the car on top of the driver's sister and refused to exit the vehicle. According to the *562 brother, he then got out of the car and attempted to remove Smith from the vehicle; but as he did, Lakes jumped into the now vacant driver's seat and drove away with his sister and Smith still in the automobile. Within a few hours, the driver's sister called police on her cell phone after being released by her captors on a dirt road several miles away from the scene of the hijacking. She reported to the police that Lakes had forced her to withdraw money from several ATMs and raped her.
Shortly thereafter, police spotted the stolen car in another part of town. After a brief high-speed chase, the police forced the car to stop and arrested Lakes, who was driving the vehicle, and Smith. A few days later, the victims met with police to view a photographic lineup of possible suspects, and both of them identified Lakes and Smith as the men who hijacked their vehicle.
On January 29, 2008, Smith moved to suppress the photographic-lineup identifications and any in-court identifications. The matter then came up for a hearing on November 17, 2009, at which time the prosecutor for the State claimed that Smith's motion had not been properly served on her office, and she was, therefore, not prepared to argue against it. Smith's counsel countered that she had properly served the prosecutor's office with the motion,[3] and then requested that the trial court either dismiss the indictment or grant the motion. The trial court advised Smith's counsel that while it could not dismiss the case, it could grant the motion to suppress. In response, the prosecutor requested that the trial court not grant the motion to suppress, noting:
It's an evidentiary motion. Had I been aware of having been served with that motion, then I would have subpoenaed the victim. I have spoken to the victim. The victim is local. Her brother, who was with her at the time, is not local. He resides out of state. But the victim of the alleged kidnapping and robbery in this case is a local victim and I would have subpoenaed her to have been here.
At the conclusion of the hearing, the trial court issued no ruling, but stated that it would take the matter under advisement.
On February 8, 2010, the trial court again conducted a hearing on Smith's motion to suppress. During this hearing, the trial court found that the motion had been properly served upon the prosecutor's office, that the State was not ready to proceed in opposition to the motion at the previous hearing, and that, "given the evidence that's been brought forward," it was appropriate to grant the motion without holding an evidentiary hearing. The State's prosecutor immediately moved for reconsideration of this ruling, and in doing so noted that the suppression of the photographic and in-court identifications concerned an issue that was "very substantial." The trial court advised the prosecutor that it would not revisit the matter, but would instead give the State "an opportunity to resolve the case." In doing so, the trial court made the following remarks to counsel:
Quite frankly, I do believe that the defendant's motion [to suppress] is meritorious, given the fact that the State had the opportunity to get its witnesses here. I think the motion was properly set down, and it just didn't materialize on behalf of the State. The offer There was an offer of probation made with respect to the robbery and dead docketing of the kidnapping previously. I assume that the State made that offer for a reason. You know the case better than I do because I don't really recall many of the facts of the case. I do know that we tried the co-defendant.[4]
I will give the State an opportunity to huddle with [Smith's counsel] and talk *563 about it. Try and resolve the case, and we will see where we go from there.
At this point, the prosecutor advised the trial court that she had prepared for an evidentiary hearing, and noted that the investigating officer and two victims were in the courtroom and prepared to testify on behalf of the State in opposition to the motion to suppress. The trial court informed the prosecutor that it was not "inclined to [hold an evidentiary hearing] at that time," and then directed the parties to discuss resolution of the case.
Unsurprisingly, the prosecutor and defense counsel were unable to reach an agreement. The trial court then reaffirmed its decision to grant Smith's motion to suppress, and in doing so noted that it would "include any and all . . . out-of-court as well as in-court identifications of the defendant." The prosecutor, once again, pleaded with the trial court to reconsider its ruling:
There was no recordation of any motions having been filed on any district attorney. So I was operating under the assumption that our office had not been served copies of the motion. However, since that time I have looked at the co-defendant's . . . trial file folder, and I discovered that there was, in fact, in that defendant's file, a copy of the motions, the same exhibit that counsel has tendered [i.e., the motion to suppress].
However, I will state in my place I was not aware of that. And then, in good faith, I assumed that we had not been properly We being the District Attorney's Office, had not been properly served with the motion or I wouldn't [sic] have subpoenaed the victim, who . . . has always been local since the time of their indictment. The detective has always been with the Atlanta Police Department. He has since retired, but is still local. And the brother who is currently local, at one time was out of state, but we have always had contact information for him. So there would have been no reason the State would not have been prepared, other than in good faith. I honestly believed that the State had not been served with copies of the motion . . . So, you know, the State has now been prejudiced as a result.
But, Judge, when I filed the motion for reconsideration, it was just asking for the Court to allow the State to present [sic] evidentiary hearing of evidence before the Court. Those victims . . . were present today as well as [the detective] who conducted the photographic lineup as well as what the State would expect the in-court ID [to show, and this testimony is] very crucial to the case. . . .[5]
Notwithstanding this impassioned plea, the trial court granted Smith's motion to suppress without holding an evidentiary hearing, finding that the State failed to proffer any evidence to contest the motion (even though the State was ready and prepared to do just that at the February 8, 2010 hearing). This appeal follows.
1. We first address the issue of whether we have jurisdiction over this appeal. It is well established that "[t]his Court has a duty to inquire into its jurisdiction to review the errors alleged on appeal,"[6] and it is a duty that we do not take lightly.[7] And after conducting such an inquiry in this matter, we find that despite the admittedly unique circumstances involved, we have jurisdiction over this appeal.
Under OCGA § 5-7-1(a)(4), the State may appeal directly "[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy. . . ." Addressing this statute[8] in Strickman v. State, the Supreme *564 Court of Georgia deemed "the enactment of the appeal statute to be remedial in nature, so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal, and before attachment of jeopardy," and further noted that, "[b]eing remedial in nature, it should be construed liberally."[9] In that same opinion, the Supreme Court held that "if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motionwhatever its nameis subject to direct appeal on the part of the state."[10]
Here, Smith filed a motion to suppress identifications on the ground that they were obtained as a result of an improper photographic lineup, and the State had the burden of showing that this lineup was lawful.[11] However, during the final hearing on Smith's motion, as discussed supra and infra, the trial court refused to allow the State to present evidence to contest the motion as a means of sanctioning it for prosecutorial conduct that the court deemed to be dilatory in nature. Moreover, during the hearing, the trial court remarked to counsel: "Quite frankly, I do believe that the defendant's motion [to suppress] is meritorious."[12] Furthermore, the trial court's written order granting Smith's motion to suppress noted that "the State failed to put forth any evidence in this matter either in support of or counter to [the motion]." Thus, the trial court either (1) granted the motion to suppress as an improper sanction, or (2) denied the State the opportunity to proffer evidence in opposition to the motion as a sanction, and then granted the motion because the State's inability to introduce such evidence precluded it from satisfying its burden of showing the legality of the photographic lineup. In either event, the State's direct appeal is from an order that (1) was issued prior to the impaneling of a jury or Smith being put in jeopardy, and (2) granted Smith's motion to suppress evidence that was allegedly obtained in an illegal manner, and which the trial court deemed "meritorious" even apart from the prosecutor's supposed dilatory conduct. Consequently, we conclude that the State's direct appeal was authorized by OCGA § 5-7-1(a)(4).[13]
The dissent contends that this Court lacks jurisdiction to hear this appeal, arguing that the trial court granted Smith's motion to suppress primarily as a means of sanctioning the State's prosecutor for her allegedly dilatory conduct, and that, for this reason, the trial court's order cannot properly be characterized as the grant of a motion to suppress unlawfully obtained evidence under OCGA § 5-7-1(a)(4). In support of its argument, the dissent cites the Supreme Court of Georgia's opinion in Berky v. State, which held that OCGA § 5-7-1(a), generally, should be *565 construed strictly against the State.[14] The dissent argues that Berky further held that in determining whether a trial court's order is subject to direct appeal, the focus is "not upon the terminology used by the court, but upon the substance of the trial court's action."[15] Additionally, the dissent maintains that in light of the fact that our Supreme Court's opinion in Berky is more recent in time than Strickman, the holding in Strickmanthat the statute delineating when the State can appeal in a criminal case should be construed liberallyis no longer controlling.[16]
In addressing the dissent's concerns, we first note that the transcript from the final hearing on Smith's motion to suppress provides us with at least a modicum of evidence that the trial court granted the motion, in part, on substantive grounds (i.e., that the identifications were unlawfully obtained). Specifically, the trial court indicated that it believed Smith's motion to suppress to be "meritorious." And while the trial court noted immediately thereafter that this belief was based on "the fact that the State had [a previous] opportunity to get its witnesses here," the court also went on to state that "[t]here was an offer of probation made with respect to the robbery and dead docketing of the kidnapping previously[, and] I assume that the State made that offer for a reason."[17] This latter statement strongly suggests that the trial court believed Smith's motion to suppress had substantive merit, and we conclude this is more than enough to satisfy Berky and its progeny's strict jurisdictional test.[18]
But even if we are mistaken in our understanding of the trial court's holding, Strickman still compels us to exercise jurisdiction over the State's appeal. To begin with, Strickman has never been explicitly overruled or even disapproved of by the Supreme Court of Georgia. Indeed, our Supreme Court continues to cite Strickman, and has done so despite recognizing that the decision is in tension with Berky.[19] It is also worth noting that the specific language upon which the dissent relies in Berky has a rather interesting history. Specifically, Berky's admonition to construe "OCGA § 5-7-1(a) strictly against the State" originated directly from a case that the Strickman Court explicitly disapproved of in its opinion.[20] Furthermore, *566 unlike Berky, which specifically involved an interpretation of OCGA § 5-7-1(a)(1), the Supreme Court's opinion in Strickman specifically construes the prior version of OCGA § 5-7-1 (a)(4) at issue in this case. Therefore, while we agree with the dissent that there is unquestionably tension between Strickman and Berky, the former case controls because it deals with the precise statutory provision at issue here, and the doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.[21]
Moreover, we conclude that even under Berky, the trial court's order is directly appealable, because "the substance of the trial court's action"[22] in this case was to bar the State from proffering evidence in opposition to Smith's motion to suppress, which in turn precluded the State from meeting its burden of showing that the identifications were lawfully obtained and "resulted" in Smith's "meritorious" motion being granted.[23] In this respect, the case sub judice is nothing like Berky, where the State was arguably attempting to do an end run around this Court's jurisdictional limitations by seeking to appeal a garden-variety evidentiary ruling.[24] Here, the State merely seeks to appeal a decision granting a criminal defendant's motion to suppress, which was based on the State's "failure" to satisfy its burden of demonstrating the legality of a photographic lineup after the trial court precluded the State from proffering evidence in opposition to the motion as a means of sanctioning the State's prosecutor for her allegedly dilatory conduct. The actual, substantive basis for granting Smith's motion, then, was not the prosecutor's allegedly dilatory conduct, but rather the State's "inability" to meet its burden of showing that the identifications were lawfully obtained (resulting in an implicit determination by the trial court to the contrary).[25] And the fact that the trial court was the direct cause of the State's inability to meet this burden in no way divests this Court of jurisdiction to hear its appeal pursuant to OCGA § 5-7-1(a)(4).[26]
2. The State contends that the trial court erred in granting Smith's motion to suppress the photographic-lineup and in-court identifications without first holding an evidentiary hearing. We agree.
In reviewing a trial court's ruling on a motion to suppress, an appellate court's charge is to ensure that "there was a substantial basis for the decision."[27] And while "the trial court's findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous," a de novo review is *567 conducted "where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented[.]"[28] Finally, we review a trial court's evidentiary rulings for abuse of discretion.[29]
Here, the trial court clearly abused its discretion in barring the State from presenting evidence in opposition to Smith's motion to suppress, and then erred as a matter of law in granting same. Specifically, the trial court held that the State failed to proffer any evidence contesting Smith's motion to suppress in a timely manner, and did so even though the State was prepared to offer evidence in opposition to the motion at the final hearing on same (i.e., the testimony of the investigating officer and two victims). In essence, despite stating in its order that it granted the motion to suppress because the State failed to counter it, the trial court prohibited the State from proffering evidence in opposition to Smith's motion to suppress as a means of sanctioning the State's prosecutor for, in its view, contesting the motion in a dilatory manner, and then granted same because the State was then unable to satisfy its burden of showing that the identifications were lawfully obtained. In doing so, the trial court erred.[30]
No constitutional provision or statute authorizes a trial court to bar the State from presenting evidence at a hearing on a motion to suppress as a sanction for prior prosecutorial conduct that the court deems to be dilatory in nature.[31] And because there is no such express authorization for what the trial court did here, its actions can only be justified, if at all, as an exercise of some inherent authority to manage its own docket.[32] But even if the inherent authority of a trial court to manage its own docket might in some circumstances permit that court to bar the presentation of evidence by the State at a hearing on a motion for which the State bears the burden of proof (an issue we need not decide today), such authority would not justify the trial court's actions in this case. Indeed, as a matter of course, "evidence exclusion is an extreme sanction and one not favored in the law."[33] For this reason, a trial court should exercise great caution before barring the State from showing why evidence it seeks to admit at trial should not be suppressed.
And here, the prosecutor offered a facially reasonable explanation for her unreadiness to present evidence at the earlier hearing (an explanation that showed good faith), even though the State admittedly made a mistake that caused it not to be prepared to proceed in opposition to the motion to suppress at the earlier hearing. Moreover, there was no evidence to rebut this explanation, and the trial court made no finding of bad faith or that Smith had been prejudiced by the delay. Additionally, the trial court's ruling did not serve any interest of judicial economy, given that the State was ready to present its evidence to counter Smith's motion at the hearing *568 in which the court issued its ruling. And by barring the State from presenting evidence to contest Smith's motion as a means of sanctioning the State's prosecutor (which resulted in the exclusion of the victims' identifications of Smith), instead of making a finding that Smith's due-process rights were actually violated,[34] the trial court clearly abused its discretion and impermissibly expanded the scope of a judicially-created rule of evidence suppression far beyond its intended and limited purpose.[35] Accordingly, we vacate the trial court's order granting Smith's motion to suppress, and remand the case to the trial court for additional proceedings consistent with this opinion.[36]
Judgment vacated and case remanded.
SMITH, P.J., ANDREWS, MIKELL, ADAMS, and BLACKWELL, JJ., concur.
BARNES, P.J., dissents.
BARNES, Presiding Judge, dissenting.
This Court has the duty to raise and resolve the question of jurisdiction in all cases where there may be any doubt as to its existence. Rocha v. State, 287 Ga.App. 446(1), 651 S.E.2d 781 (2007). Because the trial court granted the motion to suppress as a sanction for the State's dilatory conduct rather than on the substantive ground that the evidence was unlawfully obtained, we are without jurisdiction to hear the State's interlocutory appeal. Accordingly, we are required to dismiss the appeal, and I dissent from the majority opinion reaching the merits of the trial court's ruling.
Neither the United States nor the Georgia Constitution grant a right of appeal to the State in criminal cases. State v. Martin, 278 Ga. 418, 418-419, 603 S.E.2d 249 (2004). Rather, the authority of the State to directly appeal an adverse ruling in the criminal context is limited to the instances expressly enumerated in OCGA § 5-7-1. State v. Forehand, 246 Ga.App. 590, 593(2), 542 S.E.2d 110 (2000). Moreover, the provisions of OCGA § 5-7-1 must be construed strictly against the State and liberally in favor of the *569 interests of defendants. See Martin, 278 Ga. at 419, 603 S.E.2d 249; Berky v. State, 266 Ga. 28, 30, 463 S.E.2d 891 (1995).
Under OCGA § 5-7-1(a)(4), the State may appeal directly "[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized[.]" Notably, OCGA § 5-7-1(a)(4) has been construed to authorize a direct appeal only if the trial court's exclusion of evidence was based, at least in part, "upon its determination that the [S]tate unlawfully obtained the evidence." (Emphasis supplied.) State v. Lavell, 214 Ga.App. 525, 448 S.E.2d 270 (1994). If the exclusion of evidence is solely based upon some other ground, such as the general evidentiary rules of admissibility, a direct appeal by the State is not permitted. See Berky, 266 Ga. at 28-30, 463 S.E.2d 891 (direct appeal not authorized where trial court suppressed the evidence on ground that State failed to lay a foundation for its admission); Lavell, 214 Ga.App. at 525-526, 448 S.E.2d 270 (direct appeal not authorized where trial court suppressed the evidence on ground that it was inadmissible hearsay). See also State v. McKenna, 199 Ga.App. 206, 207, 404 S.E.2d 278 (1991) (direct appeal not authorized where trial court suppressed the evidence on ground that the Intoximeter test printout had been materially altered); State v. Brown, 185 Ga.App. 701, 702, 365 S.E.2d 865 (1988) (direct appeal not authorized where trial court suppressed the evidence based upon its interpretation of the express stipulation entered into by the State and defendant). In determining whether a trial court's order is subject to direct appeal under OCGA § 5-7-1(a)(4), we focus "not upon the terminology used by the court, but upon the substance of the trial court's action." (Citation and punctuation omitted.) Berky, 266 Ga. at 29, 463 S.E.2d 891. Thus, "even though an order is denominated as one of those which is appealable by the State," an appeal is not authorized if the order is the result of the exclusion of evidence on a ground not specifically enumerated in OCGA § 5-7-1. Id.
Here, the trial court granted Smith's motion to suppress as a sanction for the State's dilatory conduct, not on the ground that the photographic and in-court identifications were conducted in a manner that violated the law. The trial court did not hear from any witnesses; did not receive any documentary evidence; and, in fact, never conducted an evidentiary hearing at all. As such, contrary to the majority's assertion, the trial court cannot be said to have ruled on the substantive merits of Smith's motion. Because the trial court did not exclude the evidence on the ground that the State unlawfully obtained the identification evidence, the State was without authority to pursue a direct appeal under OCGA § 5-7-1(a)(4), and we are without jurisdiction to hear this appeal. See State v. Evans, 282 Ga. 63, 64, 646 S.E.2d 77 (2007) ("If the State attempts an appeal outside the ambit of OCGA § 5-7-1(a), the appellate courts do not have jurisdiction to entertain it.") (citation omitted).
In concluding that jurisdiction was proper, the majority relies upon Strickman v. State, 253 Ga. 287, 288, 319 S.E.2d 864 (1984), in which the Supreme Court of Georgia held that OCGA § 5-7-1 should be construed liberally in favor of jurisdiction. Strickman, however, is inconsistent with the Supreme Court's later decisions in Martin and Berky, which held that OCGA § 5-7-1 should be strictly construed against the State.[37] The Supreme Court has held that, in light of the repeal of the "full bench" rule, where there is conflict in its decisions on a particular subject, "the more persuasive rule is that which is later in time." (Citation and punctuation omitted.) Massey v. Butts County, 281 Ga. 244, 246, n. 2, 637 S.E.2d 385 (2006). Accordingly, *570 Martin and Berky control over Strickman. Indeed, the Supreme Court in Martin recognized the conflict in its precedent and narrowly construed Strickman as standing for the limited proposition that "the right of appeal provided to the [S]tate in the statute should not be frustrated by the manner in which the defendant names his motion," a unique circumstance that clearly does not apply to the present case. (Citation and punctuation omitted.) Martin, 278 Ga. at 419, 603 S.E.2d 249.
For these combined reasons, the instant appeal should be dismissed for lack of jurisdiction. In reaching this conclusion, I express neither approval nor disapproval of the trial court's ruling, and emphasize that public policy questions over whether OCGA § 5-7-1 should be expanded to allow for jurisdiction in a case such as this one are best left to our General Assembly.
NOTES
[1] OCGA § 16-8-40(a)(1).
[2] OCGA § 16-5-40(a).
[3] Defense counsel also claimed during the November 17, 2009 hearing that the trial court's consideration of Smith's motion to suppress had already been delayed by the State's inability to proceed on one or more previous occasions, but the appellate record does not appear to support this contention. But even if such evidence is to be found somewhere in the record before us, Smith chose not to file a responsive brief, and as such we decide this appeal based on the State's Statement of Facts, which we accept as true for purposes of this appeal, see Ga. Ct.App. R. 25(b), and which does not support Smith's characterization of the proceedings below.
[4] (Emphasis supplied.)
[5] (Emphasis supplied.)
[6] Coleman v. State, 305 Ga.App. 680, 680, 700 S.E.2d 668 (2010) (citation and punctuation omitted); see also Miller v. State, 264 Ga.App. 801, 802, 592 S.E.2d 450 (2003) (same).
[7] Cf. Salazar v. Buono, ___ U.S. ___, 130 S.Ct. 1803, 1828, 176 L.Ed.2d 634 (2010) (Scalia, J., concurring) ("[A]dhering to . . . limits upon our jurisdiction respects the authority of those whom the people have chosen to make and carry out the laws.").
[8] The previous version of OCGA § 5-7-1(4) (1984) contained language that was nearly identical to the language currently contained in OCGA § 5-7-1(a)(4). See Ga. L. 1994, p. 311, § 1.
[9] 253 Ga. 287, 288, 319 S.E.2d 864 (1984).
[10] Id.
[11] See, e.g., Clark v. State, 279 Ga. 243, 245(4), 611 S.E.2d 38 (2005) (holding that State met its burden of proving that a photographic lineup was not impermissibly suggestive); Newkirk v. State, 155 Ga.App. 470, 472(2), 270 S.E.2d 917 (1980) (holding that denial of defendant's motion to suppress did not shift burden placed upon State to show that pretrial identification was not tainted or impermissibly suggestive).
[12] When a trial court issues a summary order, an examination of the accompanying hearing transcript can, in some cases, provide this Court with a means of ascertaining or clarifying the trial court's underlying reasoning. See Cates v. Jamison, 301 Ga.App. 441, 442, 687 S.E.2d 675 (2009) (looking to the hearing transcript in order to determine that "the contents of the final order were dictated by the trial court. . . ."); Appling v. Tatum, 295 Ga.App. 78, 82, 670 S.E.2d 795 (2008) (noting that "the trial court's order and the hearing transcript . . . clearly set forth the manner in which the child support award was determined"); Beck v. State, 216 Ga.App. 532, 536(1), 455 S.E.2d 110 (1995) ("In considering the denial of the motion to suppress, we may consider both the transcript on the hearing and the trial transcript."); State v. Lavell, 214 Ga. App. 525, 525, 448 S.E.2d 270 (1994) (examining hearing transcript to determine basis for trial court's decision to grant the defendant's motion to suppress).
[13] See Strickman, 253 Ga. at 288, 319 S.E.2d 864; State v. Morrell, 281 Ga. 152, 152(2), 635 S.E.2d 716 (2006) ("It is undisputed that the State has a right to appeal from an order granting a motion to suppress a defendant's statement."); Van Auken v. State, 304 Ga.App. 802, 805 n. 2, 697 S.E.2d 895 (2010) ("The state is only authorized to appeal from the grant of a motion to suppress.").
[14] Berky v. State, 266 Ga. 28, 29-30, 463 S.E.2d 891 (1995).
[15] Id. at 29, 463 S.E.2d 891.
[16] See Massey v. Butts County, 281 Ga. 244, 246 n. 2, 637 S.E.2d 385 (2006) (holding that in light of the repeal of the "full bench" rule, when there is a conflict in its decisions on a particular subject, "the more persuasive rule is that which is later in time" (citation and punctuation omitted)).
[17] (Emphasis supplied).
[18] See State v. Kramer, 260 Ga.App. 546, 547(1), 580 S.E.2d 314 (2003) (noting that while the State "may not appeal the exclusion of evidence which is based only upon some general rule of evidence[,]" it may, nevertheless, "appeal an order. . . based upon general rules of evidence and a determination that the evidence was illegally obtained"); State v. Pastorini, 226 Ga.App. 260, 260, 486 S.E.2d 399 (1997) (holding that this Court had jurisdiction over State's appeal because the motion to suppress "at least in part was granted on the grounds that the evidence in question had been obtained in violation of law").
[19] See State v. Morrell, 281 Ga. at 153(2), 635 S.E.2d 716 (citing Strickman for the proposition that the State has the right of immediate appeal of suppression orders "so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal, and before attachment of jeopardy" (punctuation omitted)); State v. Martin, 278 Ga. 418, 419, 603 S.E.2d 249 (2004) (noting that Berky holds that the statute providing for appeals by the State in criminal cases should be strictly construed, but also noting that Strickman holds that the right of appeal provided to the State in the statute should not be frustrated by the manner in which the defendant names his motion).
[20] In support of the above-referenced language, Berky cites State v. Land-O-Sun Dairies, Inc., 204 Ga.App. 485, 487, 419 S.E.2d 743 (1992). As its source, Land-O-Sun cites State v. McIntyre, 191 Ga.App. 565, 566, 382 S.E.2d 669 (1989), which cites to identical language in State v. Gribble, 169 Ga.App. 446, 446, 313 S.E.2d 720 (1984). However, the authority for that principle cited by Gribble is State v. Clendinin, 136 Ga.App. 303, 303, 221 S.E.2d 71 (1975), which Strickman disapproved of in its holding. Strickman, 253 Ga. at 288, 319 S.E.2d 864. Although resolving this apparent error is beyond the authority of this Court, its existence is worth documenting if for no other reason than to point out that the foundation upon which the dissent relies is tenuous at best.
[21] See Ga. Const., Art. VI, § VI, ¶ VI (1983) ("The decisions of the Supreme Court shall bind all other courts as precedents."); State v. Jackson, 287 Ga. 646, 658(5), 697 S.E.2d 757 (2010) ("Stare decisis is an important principle that promotes the rule of law, particularly in the context of statutory interpretation, where our incorrect decisions are more easily corrected by the democratic process."); Morse v. State, 288 Ga.App. 725, 729, 655 S.E.2d 217 (2007) (noting that the outcome in that case was compelled by stare decisis); see also Kurt T. Lash, "Originalism, Popular Sovereignty, and Reverse Stare Decisis," 93 Va. L. Rev. 1437, 1454 (2007) (noting that "[v]ertical stare decisis refers to the binding effect of precedent on lower courts," and that "[s]erious rule of law costs would follow if lower courts were free to ignore precedent established by a higher court of appeal").
[22] Berky, 266 Ga. at 29, 463 S.E.2d 891.
[23] Id.
[24] Id. ("There is no basis for the State's appeal of an order granting a defendant's motion in limine on general evidentiary grounds."); see also State v. Kramer, 260 Ga.App. at 547, 580 S.E.2d 314 (holding that the State "may not appeal the exclusion of evidence which is based only upon some general rule of evidence").
[25] Compare State v. Williams, 246 Ga. 788, 789(1), 272 S.E.2d 725 (1980) (noting, in discussing the substance of the trial court's decision, that "the trial judge's grant of the appellees' motion does not rest on the evidence or lack thereof adduced at trial").
[26] We note in passing that if the dissent is correct in its assertion that OCGA § 5-7-1(a)(4) is to be "strictly construed" in all circumstances, and right in its claim that Strickman is no longer binding precedent, then this Court arguably would lack jurisdiction to entertain any appeal by the State under the statute involving the suppression of photographic-lineup and/or courtroom identifications, as neither, strictly speaking, constitutes "evidence illegally seized."
[27] Manders v. State, 281 Ga.App. 786, 788(2)(a), 637 S.E.2d 460 (2006) (citation omitted).
[28] Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994) (citations omitted).
[29] See, e.g., Carter v. State, 297 Ga.App. 608, 610(2), 677 S.E.2d 792 (2009).
[30] The State notes in its appellate brief that service of the motion to suppress by Smith's counsel was "facially inadequate." While this may indeed be the case, it is entirely beside the point. Regardless of whether the motion to suppress was properly served, the trial court was not authorized to bar the State from proffering evidence in opposition to Smith's motion to suppress as a means of sanctioning the prosecutor or her office for failing to contest the motion in a timely manner.
[31] Cf. Boykin v. State, 264 Ga.App. 836, 840(3), 592 S.E.2d 426 (2003) (holding that "before the harsh sanction of excluding the evidence will be imposed by the trial court, OCGA § 17-16-6 requires the defendant to show both that he was prejudiced and that the [S]tate acted in bad faith"); State v. Luttrell, 207 Ga.App. 116, 116, 427 S.E.2d 95 (1993) (holding that no statutory or case authority permits dismissals of criminal cases for want of prosecution).
[32] Cf. State v. Finkelstein, 170 Ga.App. 608, 609(2), 317 S.E.2d 648 (1984) (holding that "[d]iscretion in regulating and controlling the business of the court is necessarily confided in the judge, and this court should never interfere with its exercise unless it is made to appear that wrong or oppression has resulted from its abuse").
[33] State v. Conley, 273 Ga.App. 855, 855, 616 S.E.2d 174 (2005) (citation and punctuation omitted); see also State v. Gomez, 266 Ga.App. 423, 425(1), 597 S.E.2d 509 (2004) (same); State v. Roddy, 231 Ga.App. 91, 93, 497 S.E.2d 653 (1998) (same).
[34] See Garlington v. State, 268 Ga.App. 264, 268(1)(b), 601 S.E.2d 793 (2004) ("The test for determining whether a due process violation occurred in cases such as this is whether the identification procedure was so impermissibly suggestive as to give rise to a (very) substantial likelihood of irreparable misidentification." (citation and punctuation omitted)); Dee v. State, 273 Ga. 739, 739, 545 S.E.2d 902 (2001) (holding that "[a] pre-trial procedure in which either the victim or another eyewitness confronts the accused or views his photograph in an effort `to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial[,]'" and that "[i]f such an identification procedure is `so unnecessarily suggestive and conducive to irreparable mistaken identification, the defendant is denied due process of law'" (citations and punctuation omitted)).
[35] See, e.g., Jones v. State, 273 Ga. 213, 216(2), 539 S.E.2d 143 (2000) ("When a trial court concludes that an identification procedure is impermissibly suggestive, the issue becomes whether, considering the totality of the circumstances, there was a substantial likelihood of irreparable misidentification[,]" and "[i]f not, then both the pre-trial and in-court identifications are admissible."); Miller v. State, 270 Ga. 741, 743(2), 512 S.E.2d 272 (1999) ("It is error to allow testimony concerning a pre-trial identification of the defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification."); see also People v. Bakari, 780 P.2d 1089, 1091(II)(A) (Colo. 1989) (holding that "[t]he district court's order granting the defendant's suppression motions did not serve the purpose of the exclusionary rule" because "the district court's suppression order could not have provided a deterrent against illegal police searches[,]" and that "the district court's order granting the defendant's suppression motions was `tantamount to dismissing the charges against the defendant'"); State v. Reed, 421 So.2d 754, 755 (Fla.App., Dist.4, 1982) (holding that "[o]nly where prejudice will result to the accused should simple neglect or attorney error be sanctioned with the extreme remedy of granting a motion to suppress a confession").
[36] See Grant v. State, 302 Ga.App. 661, 662-63(1), 691 S.E.2d 581 (2010) (remanding case for evidentiary hearing on motion to suppress after trial court incorrectly denied defendant's motion on ground that it was untimely); see also People v. Greenfield, 271 Mich.App. 442, 722 N.W.2d 254, 260-62(IV)(B) (2006) (holding that trial court abused its discretion in granting a defendant's motion to suppress as a means of sanctioning the State's prosecutor for an alleged discovery violation); State v. Fridy, 842 N.E.2d 835, 841 (Ind.App.2006) (holding that "by using the motion to suppress as a sanction, the trial court committed error that resulted in prejudice to the State" (emphasis supplied)).
[37] The majority suggests that Berky and Strickman can be distinguished from one another because they involve different subsections of OCGA § 5-7-1(a). However, neither Supreme Court decision predicates its analysis or bases its reasoning upon a particular subsection of OCGA § 5-7-1(a); rather, both decisions refer to the statute in general terms in discussing the proper mode of construction. See Berky, 266 Ga. at 30, 463 S.E.2d 891 ("Construing OCGA § 5-7-1(a) strictly against the State, as we are bound to do. . . ."); Strickman, 253 Ga. at 288, 319 S.E.2d 864 ("[W]e deem the enactment of the appeal statute to be remedial in nature. . . . Being remedial in nature, it should be construed liberally."). Furthermore, distinguishing Berky from Strickman in the manner suggested by the majority would have the anomalous result of requiring courts to liberally and strictly construe different subsections of the same statute.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1799
HELINA TESFAYE,
Petitioner,
versus
JOHN ASHCROFT, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A79-478-397)
Submitted: December 24, 2003 Decided: February 10, 2004
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Petition dismissed in part, and denied in part by unpublished per
curiam opinion.
Aragaw Mehari, Washington, D.C., for Petitioner. Peter D. Keisler,
Assistant Attorney General, David V. Bernal, Assistant Director,
Elisabeth Layton, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Helina Tesfaye, a native and citizen of Ethiopia,
petitions for review of an order of the Board of Immigration
Appeals (Board) affirming without opinion the Immigration Judge’s
(IJ) denial of her applications for asylum and withholding of
removal.
Tesfaye first challenges the IJ’s finding that her asylum
application is untimely. See 8 U.S.C. § 1158(a)(2)(B), (D) (2000);
8 C.F.R. § 1208.4(a)(4) (2003). We conclude that we lack
jurisdiction to review this claim pursuant to 8 U.S.C. § 1158(a)(3)
(2000). Tesfaye next disputes the IJ’s finding that she failed to
qualify for withholding of removal. We have reviewed the record
and the IJ’s decision, which was designated by the Board as the
final agency determination, and find that she indeed failed to meet
her burden of proof to establish her eligibility for this relief.
See Rusu v. INS, 296 F.3d 316, 324 n.13 (4th Cir. 2002).
We accordingly dismiss in part and deny in part the
petition for review. 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.
PETITION DISMISSED IN PART,
AND DENIED IN PART
- 2 -
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USCA1 Opinion
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ___________________ No. 92-2157 RICHARD AMANN, ET AL., Plaintiffs, Appellants, v. TOWN OF STOW, ET AL., Defendants, Appellee. __________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Edward F. Harrington, U.S. District Judge] ___________________ ___________________ Before Torruella, Cyr and Stahl, Ciricut Judges. ______________ ___________________ Richard Amann on brief pro se. _____________ Scott Harshbarger, Attorney General, and Beth D. Levi, __________________ ______________ Assistant Attorney General, on brief for appellee Commonwealth of Massachusetts. Kevin Hensley and Needham and Warren on brief for appellee _____________ __________________ Town of Stow. Maynard M. Kirpalani, Christine Hasiotis and Parker, ______________________ ___________________ _______ Coulter, Daley & White on brief for appellee Stow School System. ______________________ __________________ April 29, 1993 __________________ Per Curiam. Appellant Christopher Amann is a child with __________ learning disabilities who lives in Stow, Massachusetts. Appellant Richard Amann is Christopher's father. Christopher began to attend public school in Stow in 1983. Because he suffered from learning disabilities, the Town was obligated under the Individuals With Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., to produce an "individualized education program" (IEP) for him, and to review and update the IEP annually. See generally Amann v. Stow School System, _____________ _____ __________________ 982 F.2d 644, 646-47 (1st Cir. 1992) (per curiam) (describing Town's obligations under IDEA). The Town did so until 1987, when Christopher's parents withdrew him from the Stow school system and placed him in a private school. In 1990, at the request of Christopher's parents, Stow came up with a new IEP that called for Christopher to return to the Stow public schools. The Amanns rejected this IEP and challenged its adequacy in a hearing before the Massachusetts Bureau of Special Education Appeals (BSEA). See 20 U.S.C. ___ 1415(b)(2) (requiring administrative "due process hearing" of complaints about IEPs). The BSEA hearing officer decided that Stow's proposed IEP was legally adequate. Section 1415(e)(2) of the IDEA authorizes parties aggrieved by agency decisions concerning the adequacy of an IEP to bring a civil action in either state or federal court, seeking "such relief as the court determines is appropriate." -2- The Amanns challenged the BSEA's procedures and findings in the United States District Court for the District of Massachusetts. The district court affirmed the validity of the IEP, and we did the same on appeal. Amann v. Stow School _____ ___________ System, 982 F.2d at 649-53. ______ As was its duty under the IDEA, see 20 U.S.C. ___ 1414(a)(5) (requiring annual review and, if appropriate, revision of IEP), Stow prepared a new educational plan to cover the period March 1991-March 1992. This IEP, like its predecessor, called for Christopher to attend public schools in Stow. The Amanns rejected this IEP, too, and again sought review before the BSEA. In a decision dated September 9, 1991, the BSEA hearing officer ruled that Stow's 1991-1992 IEP was adequate. On May 21, 1992, the Amanns filed this action in the district court. The district court dismissed the complaint as untimely. This appeal followed. We affirm. I _ The IDEA, like many federal statutes, does not set a time limit for lawsuits brought under its terms. "In such situations we do not ordinarily assume that Congress intended that there be no time limit on actions at all; rather, our task is to 'borrow' the most suitable statute or other rule of timeliness from some other source. We have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state -3- law," DelCostello v. International Brotherhood of Teamsters, ___________ ______________________________________ 462 U.S. 151, 158 (1983), provided that "it is not inconsistent with federal law or policy to do so." Wilson v. ______ Garcia, 471 U.S. 261, 266-67 (1985). ______ The district court, relying on Judge Keeton's decision in Gertel v. School Committee of Brookline School District, ______ ______________________________________________ 783 F.Supp. 701 (D.Mass. 1992), "borrowed" the thirty-day limitations period that governs civil actions seeking judicial review of state agency decisions under the Massachusetts Administrative Procedure Act, M.G.L. c. 30A, 14. Because the Amanns did not sue until eight months after the BSEA decision, the district court properly dismissed their claim unless the court's choice of the thirty-day limitation period was somehow incorrect, or its application of the time bar under the circumstances of this case was somehow inappropriate. II __ Except to suggest that the Gertel decision "set an ______ improper precedent," the appellants do not seriously contest the district court's choice of a limitations period. The appropriate limitations period for IDEA actions, however, is a question of first impression in this circuit, and the issue has not elsewhere generated a harmonious judicial response. Several courts, like the district court here, have applied the short (generally 30-day) limitations periods found in -4- state administrative procedure acts, ruling both that state administrative procedure laws are analogous to Section 1415(e)(2), and that their relatively brief limitations periods are consistent with the IDEA's goal of prompt resolution of disputes over the educational placement of learning-disabled children. Spiegler v. District of ________ ____________ Columbia, 866 F.2d 461 (D.C.Cir. 1989); Adler v. Education ________ _____ _________ Department of New York, 760 F.2d 454 (2d Cir. 1985); _________________________ Department of Education v. Carl D., 695 F.2d 1154 (9th Cir. _______________________ _______ 1983); Gertel, supra; Bow School District v. Quentin W., 750 ______ _____ ___________________ __________ F.Supp. 546 (D.N.H. 1990). Other courts, though they by and large concede that state administrative procedure laws provide the closest available analogue to Section 1415(e)(2), but see Tokarcik v. Forest Hills School District, 665 F.2d _______ ________ _____________________________ 443 (3d Cir. 1981), reason that short limitations periods are nevertheless too inconsistent with the IDEA's "goal of parental involvement" to allow their application to actions under the IDEA. See Schimmel v. Spillane, 819 F.2d 477 (4th ___ ________ ________ Cir. 1987); Scokin v. Texas, 723 F.2d 432 (5th Cir. 1984). ______ _____ These courts have instead borrowed less analogous, but longer -- and in the courts' view, more compatible -- state limitations periods, such as those applicable to tort claims, see Scokin, 723 F.2d at 438 (two years); Tokarcik, 665 F.2d ___ ______ ________ at 454 (two years), or to actions for services rendered but -5- not paid for. Janzen v. Knox County Board of Education, 790 ______ _______________________________ F.2d 484, 489 (6th Cir. 1986) (three years). We conclude that the district court correctly borrowed Massachusetts' thirty-day limitations period for actions under its Administrative Procedure Act. Since the arguments on both sides have been well-rehearsed in the cases cited -- and since the appellants have offered only a perfunctory challenge to the district court's choice -- we will attempt to state our reasons briefly. The Massachusetts Administrative Procedure Act (APA) contains the "most analogous" state law cause of action to the civil action authorized by Section 1415(e)(2). Like the Massachusetts courts operating under M.G.L. c. 30A, 14, courts reviewing agency decisions under the IDEA will rely primarily on the administrative record, see Burlington v. ___ __________ Department of Education, 736 F.2d 773, 790 (1st Cir. 1984) _______________________ ("Burlington II"), and will scrutinize the agency action for _____________ procedural regularity and substantive validity, but will not "impos[e] their view of preferable . . . methods" on the state agency. Board of Education v. Rowley, 458 U.S. 176, ___________________ ______ 206-207 (1982); cf. M.G.L. c. 30A 14(7)(g) (requiring court ___ to respect agency decision unless arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law). Thus, the "character of the hearing" under Section 1415(e)(2), like that of the hearing conducted under the -6- Massachusetts statute, is essentially "one of review." Burlington II, 736 F.2d at 791. _____________ The short limitations period of the Massachusetts APA is fully consistent with one goal of the IDEA: the quick disposition of disputes about a handicapped child's educational placement. "[S]peedy resolutions to the IEP and placement disputes that characterize 1415(e)(2) actions are necessary for such resolutions to serve any substantively useful purposes," Bow School District v. Quentin W., 750 _____________________ __________ F.Supp. at 550, because "[c]hildren develop quickly and their needs often change substantially from year to year." Id. ___ See also Burlington II, 736 F.2d at 798 ("Delay in remedial ________ _____________ teaching is . . . likely to be highly injurious to [learning disabled] children"). The legislative history, statutory terms, and regulatory framework of the IDEA all emphasize promptness as an indispensable element of the statutory scheme. See generally Spiegler, 866 F.2d 461, 466-67 ______________ ________ (D.C.Cir. 1989); Adler, 760 F.2d at 459-60; Bow School _____ ___________ District, 750 F.Supp. at 550-51. ________ It is true that the thirty-day limitations period may to some extent frustrate a competing goal: parental involvement in enforcing the IDEA's requirements. But the imposition of any statute of limitations will to some extent favor ___ "policies of repose" over "substantive policies of enforcement," Wilson v. Garcia, 471 U.S. at 271, and this ______ ______ -7- fact alone is not a sufficient reason for rejecting the shorter limitations period of a closely analogous statute. "Were it otherwise, a federal court should always prefer a longer statute of limitations over an alternative, but shorter, period, a type of approach [the Supreme Court has] rejected before." Burnett v. Grattan, 468 U.S. 42, 58 (1984) _______ _______ (Rehnquist, J., dissenting). The potentially harsh effects of a short limitations period, moreover, are mitigated in this context by three factors which, taken together, so narrow any "inconsistency" with the goal of parental involvement as to permit application of the most analogous state law. Cf. Occidental ___ __________ Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) (finding ___________________ ____ preclusive inconsistency where application of state statute of limitations would have clashed fundamentally with Equal Employment Opportunity Act's requirement that EEOC, an agency plagued by backlogs, engage in time-consuming process of investigation and settlement exploration before filing suit). First, the IDEA instructs school authorities to give parents notice "of all procedures available pursuant to this section." 20 U.S.C. 1415(b)(1)(D). Several courts have interpreted this provision to require notice of any applicable limitations period, in order to ensure that parents who go through the administrative proceedings without the aid of a lawyer do not lose their right to judicial -8- review merely out of ignorance of the law. See Spiegler, 866 ___ ________ F.2d at 467; Scokin, 723 F.2d at 438; Gertel, 783 F.Supp. at ______ ______ 707; Bow School District, 750 F.Supp. at 551; cf. Carl D., ___________________ ___ _______ 695 F.2d at 1158 (declining to reach issue). Second, the parents' only obligation during the thirty- day period is to decide whether to sue under Section 1415(e)(2), a decision they need make only after the issues _____ have been defined, the dispute has been heard, and a record has been created in the administrative forum. Thus, parents contemplating action under the IDEA -- like parties considering action under the Massachusetts APA -- do not bear the same pre-litigation burdens of factual investigation and legal research that face, say, a party who has just suffered or discovered an injury and is thinking about filing a lawsuit. Cf. Burnett v. Grattan, 468 U.S. at 50-51 ___ _______ _______ (rejecting use, in federal civil rights actions, of state limitations periods for filing administrative employment discrimination claims, where "practical difficulties facing an aggrieved person who invokes administrative remedies are strikingly different" from preparation needed to initiate a civil rights lawsuit). Finally, the IDEA requires that IEPs be reviewed and revised at least annually, 20 U.S.C. 1414(a)(5), and, as the Amanns' own experience shows, allows parents to begin litigating afresh over the merits of each new IEP. Parents -9- who, despite notice of the limitations period, "sleep on their rights," therefore, will lose no more than the educational placement for a single school year, and will not have to wait long for a new opportunity to participate in the development, implementation -- and if needed, administrative and judicial review -- of their child's educational plan. See Spiegler, 866 F.2d at 468. ___ ________ III ___ The Amanns contend that, even if thirty days is the right limitations period for IDEA actions in Massachusetts, the time bar should not have operated to deny them a lawsuit here. They give three reasons for this conclusion. First, the Amanns argue that they received inadequate notice of the thirty-day limit. As we have already described, the IDEA directs the states to "fully inform the parents . . . of all procedures available," 20 U.S.C. 1415(b)(1)(D), and some courts have held "that this requirement imposes a duty . . . to give, at the time a final administrative decision is rendered, clear notice of the availability of judicial review and of the 30-day limitations period." Spiegler, 866 F.2d at 467. In Spiegler, the agency ________ ________ gave no notice of any time limit, and the court of appeals therefore refused to invoke the limitations bar in the case under consideration. Id. at 469. ___ -10- The Amanns concede that the BSEA gave them notice of the thirty-day limitations period at the time it rendered a decision. Attached to the September 9, 1991 decision was a document entitled "Effect of Decision and Rights of Appeal," which stated: Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(e)(2). Under Massachusetts General Laws Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision. We agree with the district court in Gertel that the ______ notice given here, though "not a model of careful drafting . . . was sufficient." Gertel, 783 F.Supp. at 708 (assessing ______ identical notice). We do not see how the appellants' pro se ______ status affected the adequacy of the notice. If the Amanns were, because of their pro se status, ignorant of the law, _______ then the only message they could reasonably have derived from the document attached to the decision was: You have thirty days in which to challenge this ruling in court. And if the Amanns were, despite their lack of counsel, knowledgeable enough about the workings of limitations rules to be "aware that 1415(e)(2) provides no statute of limitation and that therefore one must be borrowed from state law, [then] the notice is clear that the position of the Commonwealth of Massachusetts is that the appropriate limitations period is 30 days." 783 F.Supp. at 708. Either way, the notice should -11- have caused the appellants to understand that they took a risk if they did not exercise their right to sue within thirty days of receiving the BSEA decision. The Amanns' second argument is that the defendants are estopped from raising a limitations defense to this action, which challenges the 1991-92 IEP, by virtue of their failure to assert the limitations bar as a defense to the Amanns' previous IDEA action, which challenged the adequacy of the 1990-91 IEP. The simple response is that the defendants to the previous action could not have made a limitations defense. M.G.L. c. 30A, 14(1) starts the limitations clock running upon "receipt of notice of the final decision of the agency or if a petition for rehearing has been timely filed with the agency, within thirty days after receipt of notice of agency denial of such petition for rehearing." The Amanns filed a motion for a rehearing of the BSEA's 1990 decision. Amann v. Stow School System, 982 F.2d at 648. The BSEA _____ ___________________ denied the motion on October 15, 1990. The Amanns filed their first IDEA complaint on November 13, 1990, twenty-nine days after the BSEA denied their motion for a rehearing, and therefore within the thirty-day limitations period. We cannot fault the defendants for failing to make a defense they did not have. Finally, the Amanns say that the new limitations period should not be "retroactively applied" to their case. But the -12- practice of making judicial decisions "fully retroactive, applying both to the parties before the court and to all others by and against whom claims may be pressed . . . is overwhelmingly the norm, and is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law." James B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439, 2443 ____________________________ _______ (1991). The Supreme Court has, on occasion, made an exception to the rule of retroactivity. Under Chevron Oil Co. v. Huson, _______________ _____ 404 U.S. 97, 106-107 (1971), the Court "has accepted prospectivity . . . where a decision displaces a principle of law on which reliance may reasonably have been placed, and where prospectivity is on balance warranted by its effect on the operation of the new rule and by the inequities that might otherwise result from retroactive application." James _____ B. Beam Distilling Co. v. Georgia, 111 S.Ct. at 2445. ______________________ _______ This is not such a case. The Supreme Court has declined to apply new limitations rules retroactively where to do so would be "to bar an action that was timely under binding Circuit precedent." Lampf, Pleva, Lipkind, Prupis & Petigrow ________________________________________ v. Gilbertson, 111 S.Ct. 2773, 2786 (1991) (O'Connor, J., __________ dissenting). For example, in Saint Francis College v. Al- _____________________ ___ Khazraji, 481 U.S. 604, 608-609 (1987), the Court affirmed ________ the prospective application of a new limitations period that -13- "overruled clearly established Circuit precedent" on which the plaintiff had relied in filing suit. See also Chevron ________ _______ Oil Co. v. Huson, 404 U.S. at 107 (prospectively applying _______ _____ limitations rule that "effectively overruled a long line of decisions by the Court of Appeals"). But the Court has applied new limitations rules ___ retroactively where to do so would not "overturn[] the reasonable expectations of a party." Rowlett v. Anheuser- _______ _________ Busch, Inc., 832 F.2d 194, 198 (1st Cir. 1987). Thus, in ____________ Goodman v. Lukens Steel Co., 482 U.S. 656, 662-63 (1987), the _______ ________________ Court affirmed the retroactive application of a new limitations period where there had previously been "no authoritative specification of which statute of limitations applied" to plaintiffs' claim, "and hence no clear precedent on which [plaintiffs] could have relied when they filed their complaint." Here, as in Goodman, there was "no clear precedent" _______ favoring a longer limitations period on which the appellants can claim to have relied while deciding whether to file suit under the IDEA between September 1991 and May 1992. This court had not then decided the limitations issue, the circuits that had done so were split, and the only existing decisional law among the district courts in this circuit pointed to a thirty-day limitations period. -14- As to the remaining Chevron factors, the appellants have _______ not identified, and we do not see, how retroactive application would hinder the operation of the thirty-day limitations rule or the administration of the IDEA. This is not a case like Linkletter v. Walker, 381 U.S. 618, 636-38 __________ ______ (1965), in which the Court decided to apply the then-new exclusionary rule only prospectively since the purpose of rule, to deter illegal police action, would not have been furthered by retroactive application to cases in which illegal conduct had already occurred, and since retroactive operation would have "tax[ed] the administration of justice to the utmost." Nor will retroactive application of the new limitations rule "result in inequity to the [appellants] who are charged with knowledge that [the limitations period for IDEA actions] was an unsettled question," Goodman, 482 U.S. _______ at 663, and who received a notice telling them that they only had thirty days in which to sue. Because we affirm the dismissal on the merits, we again need not decide whether Mr. Amann, a non-lawyer acting "pro ___ se," was capable of representing his son on appeal. See __ ___ Amann v. Stow School District, 982 F.2d at 648 n.2. See also _____ ____________________ ________ Norton v. Mathews, 427 U.S. 524, 532 (1976); Narragansett ______ _______ ____________ Indian Tribe v. Guilbert, 934 F.2d 4, 8 n.5 (1st Cir. 1991). ____________ ________ Affirmed. _________ -15-
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 24, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-2110
v. (D.C. No. CR-04-788 JB)
(New M exico)
STEPH EN REX A LLEN ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Stephen Rex Allen pled guilty to violating 18 U.S.C. § 2113’s prohibition
on attempted and completed bank robberies and was sentenced to 151 months
imprisonment and 3 years of supervised release. On appeal, he contends the
district court erred in calculating his sentencing range under the federal guidelines
and that his sentence is unreasonable. W e affirm.
Prior to sentencing, the United States Probation Office developed a
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
presentence report (PSR ) for M r. Allen. He was assigned a base offense level of
20 and a 2 level increase pursuant to U.S.S.G. § 2B3.1(b)(1) because his objective
was the taking of a financial institution’s property, for an initial adjusted offense
level of 22. Because he was a career criminal, he was assigned an adjusted
offense level of 32 pursuant to U.S.S.G. § 4B1.1, and a downward adjustment of 3
for acceptance of responsibility, see U.S.S.G. § 3E1.1, for a total offense level of
29. W ith a criminal history category of VI, his final offense level led to a
recommended guideline imprisonment range of 151-188 months.
Prior to sentencing, M r. Allen filed a sentencing memorandum asserting he
was entitled to a three level reduction in his offense level pursuant to U.S.S.G. §
2X1.1 on the ground that his crime was an attempt rather than a completed
offense. 1 The district court denied M r. Allen’s request. At the conclusion of the
hearing, the court stated it had “taken account of the sentencing goals that are in
[18 U.S.C.] Section 3553(a)” and the guidelines recommendation, and sentenced
M r. A llen to 151 months imprisonment, the low end of the guidelines range.
Rec., vol. V at 39.
1
See U.S.S.G. § 2X1.1 (“(a) Base Offense Level: The base offense level from
the guideline for the substantive offense, plus any adjustments from such guideline for
any intended offense conduct that can be established with reasonable certainty. (b)
Specific Offense Characteristics (1) If an attempt, decrease by 3 levels, unless the
defendant completed all the acts the defendant believed necessary for successful
completion of the substantive offense or the circumstances demonstrate that the
defendant was about to complete all such acts but for apprehension or interruption by
some similar event beyond the defendant's control.”)
-2-
M r. Allen appeals the denial of a reduction under § 2X1.1 and, in the
alternative, argues his 151 month sentence was unreasonably long in light of the
18 U.S.C. § 3553(a) factors. W hen reviewing the district court’s application of
the guidelines, we review legal findings de novo and factual findings for clear
error. United States v. M artinez, 418 F.3d 1130, 1133 (10th Cir. 2005). W here
the district court errs in applying the guidelines we “must remand . . . unless the
error is harmless.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).
If the district court's application of the guidelines was correct or any errors
harmless, then we decide whether the sentence was substantively reasonable.
United States v. Hernandez-C astillo, 449 F.3d 1127, 1129-30 (10th Cir.2006).
W e first address M r. Allen’s contention that the guidelines were
misapplied. The Probation Office initially calculated an offense level of 22,
assigning 20 levels for bank robbery and a 2 level upward adjustment for his
objective of taking bank property. Because M r. Allen qualified as a career
offender under § 4B1.1(a), however, his final offense level was set by § 4B1.1(b).
See U.S.S.G. § 4B1.1(b) (Career criminal offense levels calculated pursuant to §
4B1.1(b) supersede lesser levels that would be “otherw ise applicable.”). In M r.
Allen’s case, he was assigned an offense level of 32 as required by U.S.S.G. §
4B1.1(b), less a 3 level downward adjustment for acceptance of responsibility, for
an adjusted offense level of 29. The district court sentenced him accordingly.
See Rec., vol. V at 39 (“The offense level is 29 . . . [and t]he guideline
-3-
imprisonment range is 151-188.”).
Pursuant to § 1B1.1, provisions of the guidelines are to be “applied in” a
specified “order.” U.S.S.G. § 1B1.1. In the first two steps, the court must
determine the applicable offense guideline and the appropriate base offense level,
and apply “specific offense characteristics, cross references, and special
instructions contained in the particular guideline in Chapter Two.” U.S.S.G. §§
1B1.1(a) and (b). A fter applying any relevant Chapter Three adjustments, §
1B1.1(c), the guidelines require that the court then apply applicable adjustments
in Parts A and B of Chapter Four, § 1B1.1(f). W e have previously held the
sequential instructions of § 1B1.1 dictate that any pertinent Chapter Three
adjustments are to be incorporated into the “otherwise applicable” offense level,
and not into the level provided by Part Four’s career offender provision. United
States v. Jeppeson, 333 F.3d 1180, 1183 (10th Cir. 2003). Logically, then,
Jeppeson requires that the Chapter Tw o specific offense characteristics must also
be incorporated into the court’s initial determination of the “otherwise applicable”
offense level, and not into the latter career offender level determined by Chapter
Four. 2 Because the attempt provision at issue here is found in Chapter Two, it
2
“Acceptance of Responsibility,” U.S.S.G. § 3E1.1, is the only adjustment that
diminishes offense levels set by the table in § 4B1.1(b). See U.S.S.G. § 4B1.1(b) (“If
an adjustment from § 3E1.1 (Acceptance of Responsibility) applies, decrease the
offense level by the number of levels corresponding to that adjustment.”). We have
concluded from this specific authorization of an acceptance of responsibility reduction
in § 4B1.1 that the Sentencing Commission expressly declined to incorporate other Pre-
Chapter Four adjustments into the career criminal calculations. See Jeppeson, 333 F.3d
-4-
modified M r. Allen’s initial offense level but not the determinative Chapter Four
offense level and resulting guidelines range. W e therefore need not decide
whether the district court erred in refusing to apply the § 2X1.1 reduction for
attempt, because even if it did the error was harmless.
M r. Allen also contends the 151 month sentence imposed by the district
court was unreasonably lengthy in light of the 18 U.S.C. § 3553(a) factors. W e
are not persuaded. The district court explicitly compared the facts of this case to
those of other career criminals convicted of bank robbery and sentenced by the
court. See Rec., vol. V at 40-41. In light of M r. Allen’s serious criminal history
and the other 3553(a) factors, the court concluded a sentence at the bottom of the
guidelines range was appropriate. Although M r. Allen provides specific examples
of lesser sentences for completed bank robberies, he notes that in at least two of
those cases the individual had no prior criminal history. See Aplt. Br. at 25 n.1.
The guidelines seek parity “among defendants with similar records who have been
found guilty of similar conduct,” 18 U.S.C. 3553(a), and these sentences therefore
have limited relevance for M r. Allen, who carries the additional burden of his
significant criminal history. The single case he cites involving a career criminal
was expressly considered by the district court during its sentencing of M r. A llen.
See Aplt. Br. at 25 n.1; Rec., vol. V at 40. W e are not convinced M r. Allen’s
at 1184.
-5-
sentence was unreasonable. 3
Accordingly, we A FFIR M .
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
3
Mr. Allen asks us to consider United States v. Williams, 435 F.3d 1350 (11th
Cir. 2006), in which the Eleventh Circuit concluded a below guidelines district court
sentence was reasonable in light of allegedly analogous facts. This precedent, however,
provides little value in evaluating the reasonableness of a within guidelines sentence.
The breadth of reasonable sentences may broadly encompass both guidelines and non-
guidelines sentences, and we cannot ascertain whether the court in Williams would have
concluded a within guidelines sentence was unreasonable. Thus, even if we were to
attach great precedential weight to Williams, its holding provides limited guidance in
the exercise of our appellate review of Mr. Allen’s within guidelines sentence.
-6-
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September 2, 2015
Paul A. Scales
TDCJ-CID lt 0Jt+ctbf>95
Beto Unit
1391 FM 3328
Tennessee Colony/ TX 75880
Abel Acosta, Clerk
Court of Criminal Appeals
P.O. Box 12308, Capitol Station
Austin/ TX 78711
RE: WR-70t368-01; 02; 03t and; 04;
Ex Parte Paul Anthony Scales.
To whom it may concern;
In the above-numbered and styled causes~ would you please send me a
copy of the Case Summary?
Alternatively/ would you please send me a copy of the final "white card?"
Thank you for your prompt attention to this matter.
Sincerely yours,
Paul A. Scales
C.c. file/ps
RECEiVED IN
COURT OF CRWINAL APPEALS
SEP 10 2015
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535 N.W.2d 916 (1995)
STATE of Minnesota, Petitioner, Appellant,
v.
Jason Alan OSTREM, Respondent.
No. C0-94-56.
Supreme Court of Minnesota.
August 18, 1995.
*917 Hubert H. Humphrey, III, Atty. Gen., Cheryl W. Heilman, Asst. Atty. Gen., St. Paul, and Kenneth Kohler, Nobles County Atty., Worthington, for appellant.
Timothy R. Anderson, Frederic Bruno & Associates, Minneapolis, for respondent.
Heard, considered and decided by the court en banc.
OPINION
GARDEBRING, Justice.
In December 1992, Jason Alan Ostrem was charged with second-degree burglary and theft. In October 1993, Ostrem was convicted of aiding and abetting second-degree burglary and aiding and abetting theft. See Minn.Stat. § 609.582, subd. 2(a) (1994); Minn.Stat. § 609.52, subd. 2(1) (1994); Minn. Stat. § 609.05 (1994). The court of appeals reversed Ostrem's conviction on three grounds: 1) denial of due process resulting from a single-photo identification process; 2) impermissible appearance of partiality resulting from the trial court's instruction on aiding and abetting; and 3) insufficient evidence to sustain the convictions. State v. Ostrem, 520 N.W.2d 426 (Minn.App.1994), pet. for rev. granted (Minn., Oct. 27, 1994). The state appeals and, in accordance with our reasoning below, we reverse.
The record reflects the following facts. Between 8:30 a.m. and 11 a.m. on November 22, 1992, Ardella and Ralph Schroeder's farmhouse, located off a lightly travelled *918 gravel road in a rural area near Worthington, was burglarized. The Schroeders left their home at approximately 8:30 a.m. When they returned, between 11 a.m. and 11:30 a.m., the door was still locked, but they noticed that the bathroom blinds and a rug were out of place and a jar of change was open. Ardella Schroeder then noticed the safe door was ajar and $6,300 in cash, mainly in denominations of $50 and $100 bills, was missing.
The Schroeder's son Kevin and his family live approximately 1½ miles up the road. On the morning of the burglary, Kevin Schroeder and his family drove past his parents' house at approximately 8:45 a.m. As he drove by, he noticed a 1972 or 1973 black Dodge Charger with mag-rimmed wheels parked on the side of the gravel road approximately 100 yards from his parents' house. The car was empty and showed no signs of trouble, but he noticed two men standing on the front deck of the house. Kevin Schroeder drove into the yard to ask if they needed any help. There was contradictory testimony concerning the location of the discussion between Kevin Schroeder and the two men. During the omnibus hearing, one of the investigating officers testified that "[Kevin Schroeder] talked to one of them, and the other one stood back on the deck of the house * * * on the south side of the house * * *." However, at trial, Rodney Boomgaarden, who admitted being present at the scene, testified that Kevin Schroeder approached the two men on the deck. On direct examination, Kevin Schroeder testified that he approached the two men on the deck; however, during cross-examination he indicated he did not get out of the car, but rather the two men walked over to the side of his car.
One of the men, later identified as Boomgaarden, told Kevin Schroeder that the car had overheated and that they wanted to use the telephone.[1] Although Boomgaarden testified that he saw oil leaking from the car, neither Kevin Schroeder nor the investigating officers reported any evidence of an oil leak. Kevin Schroeder offered the men a ride into town, but they refused. Boomgaarden told Kevin Schroeder that his sister knew they were having trouble and he just wanted to call her to be sure she was on her way. Kevin Schroeder again offered them a ride, but they said they would "limp" the car into town. As he drove out of the yard, Kevin Schroeder saw the two men walk toward the black Charger, but did not actually see them get in the car.
At approximately 11:30 a.m., Kevin Schroeder received a telephone call from his mother who told him some money was missing from the safe. He told his mother about the two men on the deck. Ardella Schroeder called the sheriff to report the incident. Deputy Sheriff Kenneth Thompson went to the Schroeder farmhouse in response to the call.
Kevin Schroeder described to Deputy Thompson the men he had seen as both being white, in their twenties, weighing about 140 pounds and standing about 6 feet or a little taller. He also described one of the men, later positively identified as Boomgaarden, as having a mustache and wearing a black ski jacket, a cap, black dockers and white cotton gloves. Kevin Schroeder described the other man as having long hair, wearing glasses, a cap, a hooded sweatshirt, and high-top tennis shoes with multicolored shoe strings. Deputy Thompson inspected the farmhouse and found that a window screen in the back of the house had been slit and there were dirty smudges on the window pane where it had been pushed up. Deputy Thompson and Kevin Schroeder also saw what appeared to be two sets of footprints in the frost which led from the front deck toward the road near where the car was parked, and another set that led from the road toward the back of the house near the window that had been slit. Deputy Thompson recalled seeing a black Charger at Graham Tire in Worthington. Kevin Schroeder called a friend who worked there and was told Boomgaarden owned the car.
On November 23, 1992, Kevin Schroeder went into the police station to view a photographic line-up, and from the display of pictures, *919 he identified Boomgaarden as one of the men he met at his parents' home the morning of the crime. On November 24, 1993, police officers saw Boomgaarden at the wheel of a black Charger parked behind a store in Worthington. At the request of one of the officers, Boomgaarden emptied his pockets and allowed the officers to search his car, including the trunk. The officers found Boomgaarden in possession of a baggie containing $1,650 cash in $100 and $50 bills, as well as $189 in a new billfold. They also found several new purchases in the trunk, including new stereo speakers. Two passengers in the car were identified as Todd Weyker and Jennifer Evenson, Weyker's girlfriend. Weyker had $500 in $50 bills in his pockets. Weyker and Boomgaarden were placed in separate police cars. When one of the officers asked about the large sum of cash, Boomgaarden said $230 came from his last paycheck and $23 was from his savings account. Boomgaarden was unable to explain the rest of the money.[2] Boomgaarden also initially denied that his car had any mechanical problems within the past month and stated that he had not been at the Schroeders' residence. Eventually, Boomgaarden told the officer he had "forgotten" about his car breaking down and then admitted to being at the Schroeders' farmhouse with Weyker.
Later in the day on November 24, 1993, Ostrem took Jennifer Evenson, who was a friend of his wife, to the police station to pick up Weyker's house keys. One of the records clerks notified Deputy Thompson that the man with Evenson closely resembled the description in the police report of the second man on the Schroeders' deck. Deputy Thompson told Ostrem that he fit the description of a person suspected of burglary and asked if he could take a photo of Ostrem's face and shoes. Ostrem was wearing high-top tennis shoes with multicolored fluorescent shoe laces. Ostrem consented to having his pictures taken. The photograph of Ostrem depicts a white man with long brown hair, wearing eyeglasses and a cap. The photograph of the shoes depicts high-top tennis shoes with multicolored shoe laces.
After Ostrem left the station, Deputy Thompson put the photos on his desk and called Kevin Schroeder to ask him to come into the station to look at a photographic line-up concerning the second suspect. Approximately 15 minutes later, Kevin Schroeder and his wife arrived at the police station and were met in the lobby by Deputy Thompson. As soon as the three of them entered Deputy Thompson's office, Kevin Schroeder and his wife saw the photo of Ostrem on the desk and said, "[T]here's the second guy. There's the other guy that was on the deck." Deputy Thompson did not prompt or request Kevin Schroeder to look at the photo of Ostrem on the desk. In fact, Deputy Thompson testified that he had planned on presenting the photos differently, but Kevin Schroeder identified Ostrem's photograph on his desk before he had an opportunity to properly arrange the lineup. Ostrem, Weyker and Boomgaarden were charged with second-degree burglary and theft.
The defense's pretrial motions to dismiss and to suppress the photo identification evidence were denied. At the omnibus hearing, the court found the single photo identification procedure was unnecessarily suggestive but, based on Kevin Schroeder's level of certainty, his opportunity to view Ostrem at the time of the crime and his accurate description to the police officer, the court did not suppress the photo identification.
At trial, the state's theory was that when Kevin Schroeder drove up to the farmhouse, Ostrem and Boomgaarden were on the deck while Weyker was already in the house or at the back of the house where the window screen had been slit. In support of its theory, the state introduced evidence that the three men were friends. Boomgaarden testified that he and Weyker were at the Schroeders' farmhouse on the morning of the burglary, that he owned the black Charger, that they had stopped at the farmhouse because of car trouble, that Ostrem was not with them, and that they did not commit the burglary and theft. The state also introduced *920 a note from Boomgaarden to Weyker that was intercepted by a jailer while both were in custody in jail, prior to Ostrem's arrest.[3] Boomgaarden also testified that he had a police record of prior offenses, which includes conspiracy to commit burglary in 1988, five third-degree burglary counts in 1989, and a felony escape from custody in 1989. The state's case was also supported by testimony from Kevin Schroeder, who made a positive in-court identification of both Ostrem and Boomgaarden. When asked to look at a photograph of Weyker to determine if he could have been the second man on the deck, Kevin Schroeder stated that he had no doubt in his mind that Ostrem was the man he saw, and not Weyker. Deputy Thompson also testified about the description Kevin Schroeder gave him of the two men on the day of the burglary and Kevin Schroeder's positive photo identification of both Boomgaarden and Ostrem.
Ostrem testified that he was not with Boomgaarden and Weyker on the day of the burglary, but was home with his wife all weekend. Ostrem testified that he knew who Boomgaarden was and had been friends with Weyker for a couple of years. Weyker's girlfriend was the best friend of Ostrem's wife and the four of them socialized occasionally. He also confirmed that he owned the glasses and shoes that he was wearing when the police took the photographs. To corroborate his alibi defense, Ostrem offered testimony from his sister. She testified that she called Ostrem at approximately 10:30 a.m. at home on the day of the burglary and he answered the telephone. Ostrem's wife was expected to testify as an alibi witness, but she did not.
At the close of evidence, the trial court held a hearing in chambers to discuss jury instructions. The trial court told the attorneys that it had concluded, as a matter of law, that the state had not presented sufficient evidence to submit the burglary and theft charges in the complaint, but that the court intended to submit the charges under an aiding and abetting theory. The trial court recognized that Ostrem had not been charged with aiding and abetting, but it determined such an instruction did not prejudice him because he was sufficiently put on notice by the burglary and theft charges. Furthermore, the trial court concluded:
In the Court's opinion there is no witness that either side, or that the state failed to call that the Defendant might have called to change the evidence available. In other words, I do not believe it's prejudicial to the Defendant to submit the aiding and abetting charges to the jury in light of his theory of the case and in the absence of any persuasive argument that to do so would be prejudicial.
Ostrem's counsel objected to the court's decision to give the aiding and abetting instruction, indicating that such an instruction put the defense at a strategic disadvantage. However, the trial court concluded:
It doesn't change the State's theory of the case. The State doesn't know whether one or two or three people entered the house. * * * Circumstantially the State has presented evidence that this was a burglary. Circumstantially the State has presented evidence that the Defendant was present at the time. * * * I don't know what other evidence anybody could have presented knowing three days ago that the matter would be submitted to the jury under 609.05, aiding and abetting the theft and the burglary. * * * There were no more people around. It's the same crime that is being discussed.
The trial court instructed the jury that Ostrem could be found guilty if he aided and abetted the commission of a burglary or *921 theft. The court also gave a jury instruction on the elements of second-degree burglary and theft.[4] After deliberating for almost three hours, the jury returned guilty verdicts of aiding and abetting second-degree burglary and aiding and abetting theft.
The first issue we address is whether the pretrial identification procedure was impermissibly suggestive in violation of Ostrem's due process rights. In determining whether pretrial eyewitness identification evidence must be suppressed, a two-part test is applied. Simmons v. United States, 390 U.S. 377, 381, 88 S.Ct. 967, 969-70, 19 L.Ed.2d 1247 (1968); State v. Marhoun, 323 N.W.2d 729 (Minn.1982). The first inquiry focuses on whether the procedure was unnecessarily suggestive. Marhoun 323 N.W.2d at 733. Whether a pretrial identification procedure is unnecessarily suggestive turns on whether the defendant was unfairly singled out for identification. Simmons, 390 U.S. at 383, 88 S.Ct. at 970-71. Single photo line-up identification procedures have been widely condemned as unnecessarily suggestive. Id.; Manson v. Brathwaite, 432 U.S. 98, 104, 97 S.Ct. 2243, 2247-48, 53 L.Ed.2d 140 (1977). However, under the second prong of the test, the identification evidence, even if suggestive, may be admissible if the totality of the circumstances establishes that the evidence was reliable. Manson, 432 U.S. at 116, 97 S.Ct. at 2253-54; State v. Bellcourt, 312 Minn. 263, 251 N.W.2d 631, 633 (1977). If the totality of the circumstances shows the witness' identification has adequate independent origin, it is considered to be reliable despite the suggestive procedure. Manson, 432 U.S. at 116, 97 S.Ct. at 2253-54; Bellcourt, 251 N.W.2d at 633. The test is whether the suggestive procedures created a very substantial likelihood of irreparable misidentification. Id. In Bellcourt we adopted the five factors articulated by the United States Supreme Court to evaluate in considering the totality of the circumstances as articulated:
1. The opportunity of the witness 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 witness at the photo display;
5. The time between the crime and the confrontation.
Bellcourt, 251 N.W.2d at 633 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972)).
We may presume that in the present case the procedure was unnecessarily suggestive, as did the trial court. However, we conclude *922 that the identification is nonetheless admissible because application of the Bellcourt factors supports a conclusion that the evidence is reliable: Kevin Schroeder had an opportunity to see Ostrem during daylight hours from relatively close range at the farmhouse; his attention was focused on the two men on the farmhouse deck and he carried on a conversation with one of the men; his description of Ostrem given to Deputy Thompson was detailed and accurate; his identification of Ostrem from the photo was instantaneous and unprovoked, and his identification of Ostrem's photo was only 48 hours after the crime. As a result, the out-of-court photo identification of Ostrem was properly admitted because it was reliable evidence under the totality of the circumstances test.
Next, we address whether the trial court committed reversible error by submitting the case to the jury under an aiding and abetting theory even though the complaint charging Ostrem with second-degree burglary and theft did not cite the aiding and abetting statute.[5] Ostrem contends that the trial court did not have the authority to sua sponte "amend" the complaint after trial had begun, and alternatively that even if the court had such authority, in this case it caused Ostrem substantial prejudice and deprived him of due process.[6] We find Ostrem's arguments unpersuasive.
Case law and the Minnesota Rules of Criminal Procedure clearly provide the trial court with discretionary authority to determine whether to amend a complaint. The applicable rule of criminal procedure provides:
The court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
Minn.R.Crim.P. 17.05. Additionally, we have held that "[T]he matter of allowing amendments to complaints under Minn.R.Crim.P. 17.05 is in the sound discretion of the trial judge." Gerdes v. State, 319 N.W.2d 710, 712 (Minn.1982).
A two-step process is used to determine whether Minn.R.Crim.P. 17.05 properly authorized the trial court's actions in this case. First, we look to whether the aiding and abetting instruction constituted charging Ostrem with an "additional or different offense." Minn.R.Crim.P. 17.05. It is undisputed that aiding and abetting is not a separate substantive offense. See State v. Britt, 279 Minn. 260, 263-65, 156 N.W.2d 261, 263-64 (1968); State v. Alexander, 290 Minn. 510, 185 N.W.2d 887, 890 (1971); State v. Ortlepp, 363 N.W.2d 39, 45 (Minn.1985). Furthermore, we have previously held that a jury may convict the defendant of aiding and abetting despite the absence of "aiding and abetting" language in the complaint. State v. Lucas, 372 N.W.2d 731, 740 (Minn.1985). In State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979), a case of striking similarity, we affirmed the conviction of a defendant for aggravated robbery based on an aiding and abetting theory even though Minn.Stat. § 609.05 was not specifically mentioned in the complaint. Similarly, in the present case, because aiding and abetting is not a separate or additional charge to the second-degree burglary and theft charges, the instruction did not violate the first element of Minn.R.Civ.P. 17.05.
*923 Ostrem's argument also fails the second prong of the test because his "substantial rights" were not prejudiced by the trial court's instructions. Ostrem argues that his due process rights were violated because the aiding and abetting instructions deprived him of an opportunity to prepare an effective defense, and the court of appeals concluded that the instruction gave the appearance of favoritism toward the prosecution. Ostrem, 520 N.W.2d at 429. We do not agree.[7] In Gerdes we stated the applicable standard:
Upon careful review of Rule 17.05, we find that in order to prejudice the substantial rights of the defendant, it must be shown that the amendment either added or charged a different offense.
Gerdes, 319 N.W.2d at 712. As noted above, aiding and abetting does not constitute a separate or different charge; thus under Gerdes, Ostrem's substantial rights were not prejudiced. Furthermore, in DeFoe we held:
Here, while the [aiding and abetting] statute was not cited in the complaint, the complaint made it clear that defendant was being charged with aggravated robbery, and the reports and statements attached to the complaint made it clear what the state basically contended had happened. There is therefore no possibility that defendant was confused as to the nature of the charges.
DeFoe, 280 N.W.2d at 40. Finally, it is particularly difficult to find any prejudice in this case, where Ostrem's entire defense rested on the alibi theory that he was at home with his wife.[8] Thus, the trial court's instruction does not violate the second element of Minn.R.Crim.P. 17.05. In sum, an additional or different offense was not charged and the substantial rights of Ostrem were not prejudiced. Therefore, the trial court did not abuse its discretion in giving the aiding and abetting instruction.
Finally, we must determine whether there is sufficient evidence in the record to sustain Ostrem's convictions of aiding and abetting second-degree burglary and aiding and abetting theft. We view the evidence in the light most favorable to the verdict when determining whether the jury acted with due regard for the presumption of innocence and for the need to overcome it by proof beyond a reasonable doubt. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn.1994). Furthermore, a conviction based on circumstantial evidence will be upheld and such evidence is entitled to as much weight as any other kind of evidence, so long as a detailed review of the record indicates that the reasonable inferences from such evidence are consistent only with the defendant's guilt and inconsistent with any rational hypothesis except that of guilt. Id.; State v. Scharmer, 501 N.W.2d 620, 622 (Minn.1993). Inconsistencies in the state's case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable. State v. Anderson, 379 N.W.2d 70, 78 (Minn.1985). Thus, to succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt. Steinbuch, 514 N.W.2d at 798-99; State v. Race, 383 N.W.2d 656, 662 (Minn. 1986). Furthermore, the jury is free to question a defendant's credibility, and has no obligation to believe a defendant's story. Steinbuch, 514 N.W.2d at 800; see also State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990).
In the present case, Ostrem was convicted of aiding and abetting second-degree burglary and aiding and abetting theft.[9]*924 The court of appeals concluded that the state's evidence at most showed mere presence and inaction, and was legally insufficient to establish that defendant intentionally participated in the crimes. Ostrem, 520 N.W.2d at 431. The relevant portion of the aiding and abetting statute provides:
A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Minn.Stat. § 609.05, subd. 1 (1994). To impose liability under the aiding and abetting statute, the state must show "some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion." State v. Merrill, 428 N.W.2d 361, 367 (Minn.1988) (citing State v. Jones, 347 N.W.2d 796, 801 (Minn.1984)). Mere presence at the scene of a crime does not alone prove that a person aided or abetted, because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability. State v. Russell, 503 N.W.2d 110, 114 (Minn.1993). Nevertheless, active participation in the overt act which constitutes the substantive offense is not required, and a person's presence, companionship, and conduct before and after an offense are relevant circumstances from which a person's criminal intent may be inferred. Russell, 503 N.W.2d at 114 (citing State v. Ulvinen, 313 N.W.2d 425, 428 (Minn.1981)); Matter of Welfare of M.D.S., 345 N.W.2d 723, 733 (Minn.1984). Thus, we must determine if the evidence was sufficient to support both elements: 1) Ostrem's presence at the farmhouse; and 2) Ostrem's "knowing role" in the burglary and theft.
Although the record contains evidence of two different factual scenarios, after a detailed review of the record, we are convinced that there was sufficient evidence to establish Ostrem's presence at the farmhouse. At trial, Ostrem argued that he was at home with his wife when the crime was committed and introduced the following evidence to support his theory: 1) Boomgaarden's testimony, which consistently maintained that Ostrem was not with him and Weyker at the farmhouse; 2) Ostrem's testimony that he was not at the farmhouse; and 3) Ostrem's sister's testimony that she spoke with Ostrem on the telephone at approximately 10:30 on the morning of the crime. By contrast, the state's theory that Ostrem was present at the farmhouse was supported by the following evidence: 1) Kevin Schroeder's accurate description of the two men he saw on the deck; 2) Kevin Schroeder's positive out-of-court photo identification of both Ostrem and Boomgaarden; 3) Kevin Schroeder's testimony at trial, including a positive in-court identification of Ostrem; 4) Deputy Thompson's testimony of the investigation and arrest of Ostrem; 5) testimony from Boomgaarden and Ostrem concerning their relationship with each other and with Weyker; and 6) impeachment of Boomgaarden's testimony. After determining the weight and credibility of all the evidence, the jury disbelieved Ostrem's alibi defense and concluded he was present at the farmhouse. Viewing all the evidence in the light most favorable to the state, it appears a reasonable jury could conclude Ostrem was at the farmhouse during the crime.
Next we must determine whether the state presented sufficient evidence to allow the jury to reasonably infer not only that Ostrem was not merely present at the farmhouse, but also that he played some knowing role in the crime.[10] We have previously held *925 that a person's presence can be sufficient to impose liability if it somehow aids the commission of the crime. State v. Parker, 282 Minn. 343, 355-56, 164 N.W.2d 633, 641 (1969); State v. Garretson, 293 N.W.2d 44, 45 (Minn.1980). Our analysis in Parker of the circumstances in which "presence" constitutes "aiding and abetting" is particularly instructive:
In the instant case defendant was present during the criminal activity. He did nothing to prevent the offenses committed or the brutal beating which the victim endured. He must have known of the robbery and made no effort to stop it, and we think, under the circumstances, his presence and acts helped to make all the crimes possible.
* * * * * *
[I]f the proof shows that a person is present at the commission of a crime without disapproving or opposing it, it is competent for the jury to consider this conduct in connection with other circumstances and thereby reach the conclusion that he assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting its commission. Certainly mere presence on the part of each would be enough if it is intended to and does aid the primary actors.
* * * * * *
`Once a reasonable inference arises, however, from all the circumstances that defendant was a participant[,] * * * defendant's guilt is sufficiently established. This inference is a fact question for jury determination * * *.'
Parker, 282 Minn. at 355-56, 164 N.W.2d at 641 (quoting State v. Bellecourt, 277 Minn. 163, 152 N.W.2d 61 (1967)). Similarly, in State v. Merrill, 428 N.W.2d at 367, the appellant argued that, although he participated in the burglary and aggravated robbery and was present when the victim was killed, the evidence was insufficient under Minn. Stat. § 609.05 to establish his intentional participation in the murder. We rejected this argument and distinguished between the type of "presence" in Merrill and the type of "presence" in State v. Ulvinen, 313 N.W.2d 425 (Minn.1981):[11]
Appellant contends, however, that more than his mere presence at the scene is necessary to establish the level of activity required of one who aids and abets in the commission of a crime. For this premise, he relies primarily on Ulvinen, where the court construed section 609.05, subdivision 1 as requiring `conduct that encourages another to act.' * * * Significantly, in Ulvinen, all of the defendant's actions were taken after the crime had been completed. * * * Appellant was clearly more than an innocent bystander who assisted [the principal] only after the killing was completed. * * * His involvement in the circumstances here is much greater and more extensive than was the defendant's in Ulvinen.
Merrill, 428 N.W.2d at 367-68 (citations omitted). We concluded in Merrill that the state meets its burden by showing some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion. Id. at 367; see also Russell, 503 N.W.2d at 114.
In the present case, the state introduced substantial evidence placing Ostrem at the farmhouse during the commission of the crime and establishing his long term association with Boomgaarden and Weyker, who also were charged with second-degree burglary and theft. There is convincing evidence indicating not only that Ostrem was at the farmhouse while the crime was being committed, but also that he did nothing to "thwart its completion" and in fact, when confronted by Kevin Schroeder at the farmhouse, Ostrem passively condoned Boomgaarden's *926 efforts to cover up the crime. Overall, looking at all the evidence and reasonable inferences in a light most favorable to the state, and considering our holdings in Parker and Merrill, it appears a reasonable jury could infer that Ostrem's presence constituted aiding and abetting.
We reverse the court of appeals' decision on all three grounds and reinstate Ostrem's convictions for aiding and abetting second-degree burglary and theft.
NOTES
[1] At trial, Boomgaarden testified that the car "just quit" outside the Schroeders' residence because a rear seal in the engine had blown out and caused the oil to leak out. On direct examination, Boomgaarden stated that he saw oil that had leaked from the car.
[2] At trial, Boomgaarden testified that the $1,650 in cash was money he was hiding from the Family Services agency to avoid paying child support.
[3] The note in part stated:
You didn't tell the cops that we were in that f--kin' place did you? [T]hat's just what they told me * * *. They told me that they had the serial numbers to our money. [T]hat's a f--kin' lie and a half. I kept hounding their ass about getting those numbers and matching them up but they kept feeding me a bunch of lines * * *. That's cool that Jenny didn't say anything. They couldn't get anything out of my ass I just more or less told them to kiss my ass. I did tell them that we were at the place to use a phone because my car overheated, and that I was going to call one of my sisters but that was it Hey Homey write back as soon as possible and let me know what you said, so our stories don't get f--ked up. * * * PS I told you we shouldn't have pulled in that f--kin place * * *.
[4] The trial court gave the following jury instructions concerning circumstantial evidence, aiding and abetting, second-degree burglary, and theft:
A fact is proved by circumstantial evidence when its existence can be reasonably inferred from the other facts proved in the case. Before a person can be found guilty on circumstantial evidence alone you must find that the circumstantial evidence, taken as a whole, is consistent with guilt and inconsistent with any other rational conclusion.
* * * * * *
Now, a Defendant is guilty of a crime committed by another person when the Defendant has intentionally aided the other person in committing it, or has intentionally advised, hired, counseled, conspired with or otherwise procured the person to commit it. A Defendant intentionally aids and abets another in committing a crime where the Defendant played some knowing role in the commission of the crime and takes no steps to thwart its commission. Active participation in the overt act constituting the crime is not necessary for a Defendant to be guilty of a crime committed by another. The intent to aid and abet another in committing a crime may be inferred from circumstantial evidence, including Defendant's presence, companionship and conduct before, during and after the commission of the crime. Defendant is guilty of a crime however only if the other person commits a crime. Defendant is not liable criminally for aiding, advising, hiring, counseling, conspiring or otherwise procuring the commission of a crime unless some crime, including an attempt is actually committed.
* * * * * *
Burglary in the second degree. The statutes of Minnesota provide: That whoever with intent to commit a crime therein enters a building without the consent of the person in lawful possession is guilty of burglary in the second degree if the building is a dwelling.
* * * * * *
Now, with respect to the crime of theft. The statutes of Minnesota provide that whoever intentionally takes, and without claim of right takes possession of movable property of another without the others consent, and with intent to permanently deprive the owner of possession of the property is guilty of theft.
[5] We note that, although the trial court and the parties refer to the statute as "aiding and abetting," in fact the word "abet" was not used as a part of Minn.Stat. § 609.05 when it was adopted in 1963, but instead "advises" was used. According to the Advisory Committee comments, "`abet' * * * adds nothing to what is already provided," presumably because the dictionary defines "abet" as nearly synonymous with "aid." See Black's Law Dictionary 17 (4th ed. 1968). We have previously held that "aiding and advising" is more descriptive and is the correct phrase for the offense covered by the statute. Matter of Welfare of M.D.S., 345 N.W.2d 723, 733 n. 5 (Minn.1984). Nonetheless, subsequent cases refer to the statute as "aiding and abetting." See, e.g., State v. Lucas, 372 N.W.2d 731, 740 (Minn. 1985); State v. Ortlepp, 363 N.W.2d 39, 45 (Minn.1985); State v. Campbell, 367 N.W.2d 454, 460 (Minn.1985); State v. McKenzie, 532 N.W.2d 210, 222 (Minn.1995); State v. Pierson, 530 N.W.2d 784, 788 (Minn.1995).
[6] We do not conclude that adding an aiding and abetting instruction constitutes an amendment to the complaint. However, for purposes of responding to Ostrem's argument, we will treat the trial court's action as such an amendment.
[7] It is unclear how the instruction could be said to give "the appearance of favoritism toward the prosecution" when the trial court did not actually dismiss the charges of burglary and theft, nor were the jurors informed about the elements of burglary and theft until the close of evidence, when the trial court put the original charges in the context of aiding and abetting. In this context, it is unlikely that the jurors would have perceived any favoritism to the prosecution upon hearing the court's instructions.
[8] The record indicates that during a chambers discussion concerning the jury instructions, Ostrem's counsel was unable to articulate how Ostrem would be prejudiced by the trial court's decision to submit the case to the jury under an aiding and abetting theory.
[9] Minn.Stat. § 609.582, subd. 2 (1994) provides:
Whoever enters a building without consent and with intent to commit a crime, * * * commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000 or both * * *.
Minn.Stat. § 609.52, subd. 2(1) (1994) provides:
Whoever does any of the following commits theft and may be sentenced as provided * * *: (1) intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property * * *.
[10] We note that if Ostrem could point to evidence in the record that is consistent with a rational explanation for his presence other than participation in the crime, then there would be insufficient circumstantial evidence to sustain the convictions. See Steinbuch, 514 N.W.2d at 799. However, because Ostrem relied exclusively on an alibi defense, there is no evidence in the record supporting any rational alternative to the state's theory for Ostrem's presence at the farmhouse.
[11] In Ulvinen, the defendant was asleep downstairs when her son killed his wife. 313 N.W.2d at 426. After the killing, her son woke her and asked her to keep his children out of the bathroom while he dismembered his wife's body. Id. The defendant later helped clean up the blood and lied to investigators to protect her son. Id. Earlier, her son had told the defendant that he intended to kill his wife and she had done nothing to prevent the killing. Id. at 427. Although defendant's acts were found to be "morally reprehensible," her conviction for murder was reversed because something more than mere inaction is required to impose accomplice liability under the statute. Id. at 428.
| {
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0007p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
KELLY L. VOLPE,
-
Petitioner-Appellant,
-
-
No. 11-4365
v.
,
>
-
Respondent-Appellee. -
GININE TRIM, Warden,
N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:09-cv-790—James L. Graham, District Judge.
Argued: October 12, 2012
Decided and Filed: January 8, 2013
Before: CLAY and WHITE, Circuit Judges; HOOD, District Judge.*
_________________
COUNSEL
ARGUED: Sarah M. Schregardus, Columbus, Ohio, for Appellant. M. Scott Criss,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: Sarah M. Schregardus, Columbus, Ohio, for Appellant. M. Scott Criss,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. Petitioner Kelly L. Volpe (Volpe), an Ohio
state prisoner, appeals the district court’s denial of her 28 U.S.C. § 2254 habeas corpus
petition. She argues that her state convictions of both operating a vehicle while under
the influence, Ohio Rev. Code § 4511.19(A)(1)(a), and aggravated vehicular homicide
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 11-4365 Volpe v. Trim Page 2
as a proximate result of operating a vehicle while under the influence, id.
§ 2903.06(A)(1)(a), violate the federal Double Jeopardy Clause. We AFFIRM.
I.
A.
The facts recounted by the state appellate court are undisputed:
On the evening of February 24, 2006, two motorists in the
northwest area of Columbus called 911 to report a person driving a
pick-up truck erratically. One of the motorists saw that the driver was a
woman and that there was also a child in the truck. Both motorists
witnessed the truck jump up onto the curbed median on at least two
occasions, frequently go left of center, and stop at stop lights far short of
the intersections and then fail to move when the light changed to green
without prompting from other motorists. One of the motorists followed
the truck for half an hour, trying to help the police locate it. Before the
police could find it, the truck went off the road, and crashed into a tree.
State v. Volpe, No. 06AP-1153, 2008 WL 928342, at *1 (Ohio Ct. App. 10th Dist. Apr.
8, 2008) (unpublished). Upon arriving at the crash scene, the police found Volpe,
intoxicated and trapped behind the truck’s steering wheel. Volpe’s daughter, found on
the ground on the other side of the truck, died three days later from multiple blunt-force
injuries consistent with a car accident. Id.
B.
An Ohio grand jury charged Volpe with: (1) two counts of aggravated vehicular
homicide (AVH) (one based on operating a vehicle while under the influence (OVI) and
one based on recklessly causing her daughter’s death), each with a specification that she
had been convicted, or pleaded guilty, of three or more prior OVI or equivalent
municipal offenses within the last six years; and (2) OVI with a specification that she
had been convicted, or pleaded guilty, of five or more equivalent offenses within the last
twenty years.
Volpe proceeded to trial and the jury found her guilty of all three charges and
specifications. For sentencing purposes, the trial court merged the recklessness-based
No. 11-4365 Volpe v. Trim Page 3
AVH count with the OVI-based AVH count and sentenced Volpe to a ten-year prison
term for one AVH count plus a three-year prison term for the specification. The trial
court also sentenced Volpe to a thirty-month prison term for the OVI count plus a
five-year prison term for the specification. The trial court ordered the prison terms, for
both the offenses and specifications, to run consecutively; thus, Volpe received a total
prison term of twenty years and six months.
C.
On direct appeal, Volpe argued that the trial court erred when it imposed
consecutive prison terms for the AVH and OVI convictions—rather than merge them for
sentencing purposes—because the offenses were allied offenses of similar import under
Ohio’s multi-count statute, Ohio Rev. Code § 2941.25, which controls the inquiry
whether the state legislature intended cumulative punishments for the two offenses.
Volpe argued that this asserted error violated the Double Jeopardy Clause of the Fifth
Amendment, which prohibits the imposition of cumulative punishments for the same
offense unless the state legislature intended to authorize cumulative punishments.
In April 2008, the state appellate court affirmed Volpe’s convictions and rejected
her double jeopardy claim:
[A]ppellant contends in her first assignment of error that the trial
court erred when it failed to merge the counts of . . . AVH . . . and OVI
for purposes of sentencing. The concept of merger for sentencing
purposes arises out of the double jeopardy provisions of both the United
States and Ohio Constitutions. These provisions guard against
successive prosecutions and cumulative punishments for the same
offense.
...
. . . [T]o determine whether cumulative punishments may be
imposed for crimes that arise from a single criminal act, we must apply
the Supreme Court of Ohio’s decision in State v. Rance, 710 N.E.2d 699
(Ohio 1999). Under Rance, our analysis begins with R.C. 2941.25, the
General Assembly’s “clear indication” of its intent to permit cumulative
punishments for the commission of certain offenses. With that statute,
the General Assembly permits multiple punishments if the defendant
commits offenses of dissimilar import. If, however, the defendant’s
No. 11-4365 Volpe v. Trim Page 4
actions constitute two or more allied offenses of similar import, the
defendant may only be convicted (specifically, found guilty and
punished) of only one. However, if offenses of similar import are
committed separately or with a separate animus, the defendant may be
punished for both.
Thus, to determine whether appellant may be punished for both
AVH and OVI, we must decide whether those offenses are allied
offenses of similar import. In determining whether crimes are allied
offenses of similar import, the Supreme Court of Ohio explained that
“[c]ourts should assess, by aligning the elements of each crime in the
abstract, whether the statutory elements of the crimes correspond to such
a degree that the commission of one crime will result in the commission
of the other.” The court explained that if the elements do so correspond,
the defendant may not be convicted of both “unless the court finds that
the defendant committed the crimes separately or with separate animus.”
If they do not, the offenses are of dissimilar import, and the defendant
may be punished for both.
The jury found appellant guilty of two counts of AVH in violation
of R.C. 2903.06. The trial court properly merged these two counts for
purposes of sentencing and sentenced appellant only for one count. R.C.
2903.06, the AVH statute, provides:
(A) No person, while operating or participating in the
operation of a motor vehicle, motorcycle, snowmobile,
locomotive, watercraft, or aircraft, shall cause the death
of another or the unlawful termination of another’s
pregnancy in any of the following ways:
(1)(a) As the proximate result of committing a violation
of [R.C. 4511.19(A)] [(the OVI statute)] or of a
substantially equivalent municipal ordinance[.]
***
(2) * * * (a) Recklessly;
***
[(3)] * * *
(a) Negligently[.]
Further, the AVH count also contained allegations of prior OVI
convictions (three convictions within six years) that increased the
No. 11-4365 Volpe v. Trim Page 5
severity of the count from a second-degree felony to a first-degree
felony. When the existence of a prior conviction transforms the crime
itself by increasing its degree, the prior conviction is an essential element
of the crime. These prior convictions are, therefore, also elements that
must be considered in the Rance analysis.
Appellant was also found guilty of OVI in violation of R.C.
4511.19(A)(1)(a). That statute provides:
No person shall operate any vehicle, streetcar, or
trackless trolley within this state, if, at the time of the
operation, any of the following apply:
The person is under the influence of alcohol, a drug of
abuse, or a combination of them.
Additionally, this count contained allegations of prior OVI
convictions (five convictions within 20 years) that increased the severity
of the count from a first-degree misdemeanor to a fourth-degree felony.
These prior convictions are, therefore, also elements that must be
considered in the Rance analysis.
We find these counts of AVH and OVI are not allied offenses of
similar import. Comparing the statutory elements of each offense in the
abstract, they do not correspond to such a degree that the commission of
one crime will result in the commission of the other. It is obvious that
one could drive under the influence of alcohol, a drug of abuse, or a
combination of them in violation of R.C. 4511.19 and not cause the death
of another in violation of R.C. 2903.06. Additionally, one could drive
recklessly or negligently and cause the death of another in violation of
R.C. 2903.06 and not drive under the influence of alcohol, a drug of
abuse, or a combination of them in violation of R.C. 4511.19. Finally,
an individual who has three OVI convictions within six years, and
therefore commits the first-degree felony form of AVH, does not
necessarily commit the fourth-degree felony form of OVI, because that
offense requires five such convictions within 20 years.
One other appellate court has also determined that AVH and OVI
are not allied offenses of similar import. Other courts have found similar
offenses, aggravated vehicular assault and vehicular homicide, not to be
allied offenses of similar import of OVI.
Because the AVH and OVI offenses are not allied offenses of
similar import, the trial court properly sentenced appellant on both
counts. Appellant’s first assignment of error is overruled.
No. 11-4365 Volpe v. Trim Page 6
Volpe, 2008 WL 928342, at *13–15 (formatting altered; internal citations altered or
omitted).
Volpe then filed a motion for reconsideration, relying on an Ohio Supreme Court
decision that was issued one day after the appellate court’s decision in her case. The
motion was denied:
In her application for reconsideration, appellant argues we should
reconsider our opinion in light of State v. Cabrales, 886 N.E.2d 181
(Ohio 2008), which was released one day after we released our opinion
in the case at bar. Appellant argues that Cabrales requires that we reach
a different conclusion on the issue of whether the AVH count and the
OVI count at issue here should merge for sentencing purposes. We
disagree.
Appellant correctly points out that Cabrales attempts to clarify
the Rance test under R.C. 2941.25(A). Cabrales sets forth the following
analysis:
In determining whether offenses are allied offenses of
similar import under R.C. 2941.25(A), courts are required
to compare the elements of offenses in the abstract
without considering the evidence in the case, but are not
required to find an exact alignment of the elements.
Instead, if, in comparing the elements of the offenses in
the abstract, the offenses are so similar that the
commission of one offense will necessarily result in
commission of the other, then the offenses are allied
offenses of similar import. (State v. Rance . . . , clarified.)
Applying the Cabrales analysis to the case at bar, it is obvious
that the commission of the OVI offense at issue here (a fourth degree
felony violation of R.C. 4511.19[A]) will not necessarily result in the
commission of an AVH offense because the OVI offense does not
necessarily result in the death of another. The more difficult question is
whether the commission of the AVH offense at issue here (proximately
causing the death of another while operating a motor vehicle in violation
of R.C. 4511.19[A]), necessarily results in the commission of the fourth
degree felony violation of R.C. 4511.19(A). We conclude that it does
not.
In order to determine whether offenses are allied offenses of
similar import under R.C. 2941.25(A), Cabrales requires that we
compare the elements of the offenses in the abstract without considering
No. 11-4365 Volpe v. Trim Page 7
the evidence in the case to determine whether the commission of one
offense will necessarily result in the commission of the other. However,
as the court clarified in Cabrales, an exact alignment of the elements is
not required.
Here, pursuant to R.C. 4511.19(A) and 4511.19(G)(1)(d), the
elements of fourth degree felony OVI are:
(1) operation of a vehicle;
(2) under the influence of alcohol and/or drugs; and
(3) with five or more prior OVI convictions or guilty pleas within
20 years of the offense.
Pursuant to R.C. 2903.06(B)(2)(c), the elements of the first
degree felony AVH offense at issue here are:
(1) causing death;
(2) as a proximate result of an OVI offense;
(3) while operating a vehicle;
(4) while under suspension; or
(5) having three prior OVI convictions or guilty pleas within the
previous six years.
Comparing the elements of these offenses in the abstract reveals
that the commission of the first degree felony AVH does not necessarily
result in the commission of the fourth degree felony OVI offense because
this OVI offense requires five or more prior OVI convictions or guilty
pleas within the last 20 years. The first degree felony AVH offense
requires only three prior OVI convictions within the previous six years.
Therefore, these offenses are not allied offenses of similar import under
R.C. 2941.25(A), as interpreted by Rance, and clarified by Cabrales.
State v. Volpe, No. 06AP-1153 (Ohio Ct. App. 10th Dist. June 3, 2008) (PID 376–80;
R. 9-1) (formatting altered; internal citations altered or omitted). The Ohio Supreme
Court denied leave to appeal. See State v. Volpe, 893 N.E.2d 518 (Ohio 2008) (table
decision).
No. 11-4365 Volpe v. Trim Page 8
D.
In September 2009, Volpe timely filed this habeas action, raising the double
jeopardy claim that she exhausted in state court. A magistrate judge issued a report,
recommending denial of Volpe’s habeas petition on the basis that the state appellate
court’s determination that the state legislature intended to authorize cumulative
punishments for both AVH and OVI foreclosed habeas relief. Volpe v. Trim, No. 09-cv-
790, 2011 WL 5326073 (S.D. Ohio Sept. 26, 2011) (unpublished). The magistrate judge
noted that:
In 2010, the Supreme Court of Ohio set forth a new test for determining
whether two offenses are allied offenses of similar import pursuant to
Ohio Rev. Code § 2941.25. See State v. Johnson, 942 N.E.2d 1061
(Ohio 2010). Because [a federal] [c]ourt must assess the state court’s
decision at the time it was issued, [I] will not consider this new test.
Id. at *9 n.1 (internal citation altered).
After reviewing Volpe’s timely objections to the magistrate judge’s report, the
district court adopted the report insofar as it recommended denial of Volpe’s petition and
dismissed the action. See Volpe v. Trim, No. 09-cv-790, 2011 WL 5326069 (S.D. Ohio
Nov. 7, 2011) (unpublished). Volpe timely appealed, and the district court granted a
certificate of appealability.
II.
A.
In a federal habeas appeal, “we review de novo the district court’s conclusions
on issues of law and on mixed questions of law and fact and review its factual findings
for clear error.” Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (en banc).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may
grant habeas relief only if the state court’s adjudication of a prisoner’s claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
No. 11-4365 Volpe v. Trim Page 9
(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.
28 U.S.C. § 2254(d).
Only the first provision is at issue here, under which the term “clearly established
Federal law . . . refers to the holdings, as opposed to the dicta, of th[e Supreme Court]’s
decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529
U.S. 362, 412 (2000) (internal quotation marks omitted). A state court’s decision is
“contrary to” clearly established federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 413. An “unreasonable application” occurs when “the
state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
B.
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the
states through the Fourteenth Amendment, provides that no person shall “be subject for
the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; see
Benton v. Maryland, 395 U.S. 784, 794 (1969). “The Double Jeopardy Clause ‘protects
against a second prosecution for the same offense after acquittal. It protects against a
second prosecution for the same offense after conviction. And it protects against
multiple punishments for the same offense.’” Brown v. Ohio, 432 U.S. 161, 165 (1977)
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794 (1989)). Only the last aspect, the protection
against multiple punishments, is at issue here.
The Supreme Court has interpreted the multiple-punishments aspect of the
Double Jeopardy Clause as protecting defendants from being punished more than once
for a single act when the legislature does not intend for the punishments to be
No. 11-4365 Volpe v. Trim Page 10
cumulative. See Albernaz v. United States, 450 U.S. 333, 344 (1981). In other words,
“[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366
(1983); see White v. Howes, 586 F.3d 1025, 1035 (6th Cir. 2009) (“The current
jurisprudence allows for multiple punishment for the same offense provided the
legislature has clearly indicated its intent to so provide, and recognizes no exception for
necessarily included, or overlapping offenses.”). When two different statutory
provisions authorize punishment for the same act, “[t]he first step is to determine
whether [the legislature] intended to punish cumulatively the same conduct which
violates two statutes.” United States v. Johnson, 22 F.3d 106, 107–08 (6th Cir. 1994);
see Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“[T]he question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative
intent.”).
In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court
developed the “same elements” test to determine whether Congress has authorized
cumulative punishments: “The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Id. at 304. The Blockburger test, however, is
a “rule of statutory construction,” Albernaz, 450 U.S. at 340 (quoting Whalen v. United
States, 445 U.S. 684, 691 (1980)), “not a constitutional test in and of itself,” McCloud
v. Deppisch, 409 F.3d 869, 875 (7th Cir. 2005), as quoted in Palmer v. Haviland, 273 F.
App’x 480, 486 (6th Cir. 2008) (unpublished); see Hunter, 459 U.S. at 368 (explaining
that the Blockburger test, as modified by subsequent precedent, “is not a constitutional
rule requiring courts to negate clearly expressed legislative intent”). As a result, the
Blockburger test “does not necessarily control the inquiry into the intent of a state
legislature. Even if the crimes are the same under Blockburger, if it is evident that a
state legislature intended to authorize cumulative punishments, a court’s inquiry is at an
end.” Johnson, 467 U.S. at 499 n.8; accord Hunter, 459 U.S. at 368–69.
No. 11-4365 Volpe v. Trim Page 11
Moreover, “[w]hen assessing the intent of a state legislature, a federal court is
bound by a state court’s construction of that state’s own statutes.” Banner v. Davis, 886
F.2d 777, 780 (6th Cir. 1989) (citing Hunter, 459 U.S. at 368; O’Brien v. Skinner, 414
U.S. 524, 531 (1974)). “Under the [D]ouble [J]eopardy [C]lause, when evaluating
whether a state legislature intended to prescribe cumulative punishments for a single
criminal incident, a federal court is bound by a state court’s determination of the
legislature’s intent.” Id. (citations omitted). “Thus, for purposes of double jeopardy
analysis, once a state court has determined that the state legislature intended cumulative
punishments, a federal habeas court must defer to that determination.”1 Id.; see
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (“We have repeatedly held that
a state court’s interpretation of state law, including one announced on direct appeal of
the challenged conviction, binds a federal court sitting in habeas corpus.”); Jones v.
Sussex I State Prison, 591 F.3d 707, 710 (4th Cir. 2010) (“[W]hen the charged offenses
violate state law, the double jeopardy analysis hinges entirely on the state-law question
of what quantum of punishment the state legislature intended. Once a state court has
answered that state-law question, there is no separate federal constitutional standard
requiring that certain actions be defined as single or as multiple crimes.” (internal
citation and alteration omitted)).
C.
To determine whether the Ohio General Assembly intended to authorize
cumulative punishments, Ohio courts apply the state’s multi-count statute, which
provides:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
1
To the extent this court has independently interpreted the scope of a state’s statutes in the double
jeopardy context, see, e.g., Pryor v. Rose, 724 F.2d 525 (6th Cir. 1984) (en banc), it “appears limited to
a narrow situation in which the state courts below had failed to give a clear expression on the issue of
cumulative punishment,” Banner, 886 F.2d at 782. In Volpe’s direct appeal, the state appellate court
clearly determined that the legislature intended to authorize cumulative punishments for AVH and OVI;
thus, Pryor’s narrow exception is not applicable here.
No. 11-4365 Volpe v. Trim Page 12
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts for
all such offenses, and the defendant may be convicted of all of them.
Ohio Rev. Code § 2941.25. At the time of Volpe’s direct appeal, the Ohio Supreme
Court interpreted section 2941.25 to require a court to compare the elements of offenses
in the abstract to determine whether the offenses were of similar import. See Rance, 710
N.E.2d at 705. Specifically, Rance instructed the state courts to “assess, by aligning the
elements of each crime in the abstract, whether the statutory elements of the crimes
correspond to such a degree that the commission of one crime will result in the
commission of the other.” Id. (citation and internal quotation marks omitted). The Ohio
Supreme Court later clarified, one day after the appellate court’s decision in Volpe’s
case, that “nowhere does Rance mandate that the elements of compared offenses must
exactly align for the offenses to be allied offenses of similar import[.]” Cabrales, 886
N.E.2d at 186.
Two years after Volpe exhausted her appellate remedies and while her habeas
petition was pending, the Ohio Supreme Court overruled Rance, stating that Rance’s “in
the abstract” test proved difficult in application and raised concern about the
“constitutional protection underlying the proper application of” section 2941.25.
Johnson, 942 N.E.2d at 1066–70. Under the heading “[p]rospective analysis of allied
offenses,” the Ohio Supreme Court announced a new interpretation of section 2941.25:
[T]he court must determine prior to sentencing whether the
offenses were committed by the same conduct. Thus, the court need not
perform any hypothetical or abstract comparison of the offenses at issue
in order to conclude that the offenses are subject to merger.
In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is possible to
commit one offense and commit the other with the same conduct, not
whether it is possible to commit one without committing the other. If the
offenses correspond to such a degree that the conduct of the defendant
constituting commission of one offense constitutes commission of the
other, then the offenses are of similar import.
No. 11-4365 Volpe v. Trim Page 13
If the multiple offenses can be committed by the same conduct,
then the court must determine whether the offenses were committed by
the same conduct, i.e., a single act, committed with a single state of mind.
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses
are committed separately, or if the defendant has separate animus for
each offense, then, according to R.C. 2941.25(B), the offenses will not
merge.
Id. at 1070 (reformatted; internal citations and quotation marks omitted).
III.
The essential premises of Volpe’s appeal are that 1) we should apply Johnson’s
new interpretation of section 2941.25 in this federal habeas proceeding, notwithstanding
that the Ohio appellate court, applying the then-controlling Rance test, determined that
the Ohio General Assembly intended to permit cumulative punishments for both AVH
and OVI, and the Ohio Supreme Court did not disturb that ruling on direct appeal; and
2) applying Johnson, the two offenses are allied offenses of similar import. Because we
disagree with her first proposition, we do not reach her second.
A.
In support of her proposition that Johnson “unbinds” this court from the state-
court ruling that the Ohio legislature intended to authorize cumulative punishments for
the two offenses, Volpe cites Walters v. Sheets, No. 2:09-cv-446, 2011 WL 4543889
(S.D. Ohio Sept. 29, 2011) (unpublished), in which a district court in this circuit
conditionally granted habeas relief to an Ohio state prisoner who challenged, on double
jeopardy grounds, his convictions of felony murder and felonious assault. In Walters,
the district court concluded that the Ohio Supreme Court’s decision in Johnson allowed
it to disregard the Ohio intermediate appellate court’s Rance-based decision issued in
the petitioner’s direct appeal, that felonious assault is not an allied offense of similar
import to felony murder. Id. at *3. The district court in Walters based its decision to
No. 11-4365 Volpe v. Trim Page 14
disregard the state-court ruling on its reading of Banner v. Davis, 886 F.2d 777 (6th Cir.
1989), and its conclusion that, because Johnson interpreted the same statute that had
been applied in the petitioner’s direct appeal, it necessarily controlled the application of
that statute to the petitioner’s convictions:
When the Supreme Court of Ohio overrules its interpretation of
a state statute, the correction has retroactive application. Agee v. Russell,
751 N.E.2d 1043 (Ohio 2001). In reviewing a previous statutory
interpretation the court is not creating new law, but rather deciding what
the statute meant from its inception. Additionally, Johnson and Cabrales
make clear that decisions of lower Ohio courts had misinterpreted Ohio’s
statute governing allied offenses, thereby creating unreasonable results
inconsistent with the Double Jeopardy Clause. Therefore, Johnson’s
interpretation of Ohio Revised Code § 2941.25 has retroactive
interpretation [sic].
Habeas courts are required to follow an Ohio court’s
determination of the legislature’s intent only if it is undisturbed by the
Supreme Court of Ohio. Banner, 886 F.2d at 780. Respondent is correct
that in general a habeas court is required to follow an Ohio court’s
determination of whether the Ohio legislature intended that a single act
receive multiple punishments. Id. The Sixth Circuit, however, stated
that the general rule applies only to an interpretation by a majority of a
state’s courts “undisturbed” by the state’s highest court. Id. In this case,
the Supreme Court of Ohio disturbed the former prevailing interpretation
of Ohio Revised Code § 2941.25 through its holding in Johnson.
Therefore, the interpretation of Ohio Revised Code § 2941.25 in
Johnson applies retroactively to this case and convicting Petitioner of
both felonious assault and felony murder violates Ohio’s statute and the
Double Jeopardy Clause. In this case, multiple sentences for one offense
is a result contrary to clearly established federal law which qualifies
Petitioner for a writ of habeas corpus under AEDPA[.]
Id. at *4–5 (internal citations altered or omitted).
B.
We are not persuaded that Johnson controls our consideration of Volpe’s double
jeopardy claim. First, we do not find Walters persuasive. Banner does not suggest that
a federal habeas court is not bound by a state court’s legislative-intent determination
(made in a petitioner’s direct appeal of the challenged conviction and left undisturbed
No. 11-4365 Volpe v. Trim Page 15
by the state’s highest court in that appeal) if that ruling is later called into doubt by new
precedent issued by the state’s highest court after the petitioner has exhausted her state
appellate remedies. Second, Walters did not consider whether the Ohio courts have
applied Johnson retroactively; rather, the district court made its own determination that
the decision should be applied retroactively.
1.
Banner does not permit reexamination of state-law questions in habeas review.
In rejecting the petitioner’s double jeopardy claim, the Banner court reasoned:
[T]he Tennessee Supreme Court affirmed the Tennessee Court of
Criminal Appeals’ holding that the legislature intended cumulative
punishment for aggravated assault and firing into an occupied dwelling.
We are therefore bound by that holding. However much the magistrate
and district court may have agreed with Judge Daughtrey’s dissent for
the Tennessee Court of Criminal Appeals, the district court was obligated
to honor the construction of the majority of judges [of the state appellate
court] on this question of Tennessee law. Barring some other
constitutional impediment, the majority view of that [state appellate]
court, undisturbed by the Supreme Court of Tennessee, must be accepted
as the law of Tennessee and the state law of this case.
Banner, 886 F.2d at 780 (emphasis added).
When read in context, Banner—in relying on the fact that the state appellate
court’s ruling had been “undisturbed” by the state’s highest court—was referring to the
appellate process in that case. Here, as in Banner, the state appellate court’s
determination of legislative intent was undisturbed by the state’s highest court on direct
appeal. Banner did not address the question we now face: Whether subsequent
precedent articulating a new view of the law, issued by the state’s highest court after a
petitioner has exhausted her appellate remedies, permits us to reexamine whether the
state legislature intended to authorize cumulative punishments, and whether, if such
reexamination is proper, the application of the new precedent is a question exclusively
confided to the state courts.
No. 11-4365 Volpe v. Trim Page 16
2.
The Constitution does not require that state-court decisions be applied
retroactively, see Wainwright v. Stone, 414 U.S. 21, 23–24 (1973); Bowen v. Foltz, 763
F.2d 191, 193–94 (6th Cir. 1985), and the retroactive application of new state decisional
law to a petitioner’s conviction after she has exhausted her appellate remedies is a state-
law question, on which the state courts have the last word. See Houston v. Dutton, 50
F.3d 381, 385 (6th Cir. 1995); see also Burleson v. Saffle, 278 F.3d 1136, 1140 (10th
Cir. 2002); Martin v. Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 811 (3d Cir.
1981).
Volpe has not applied for post-conviction relief in an Ohio state court seeking
the application of Johnson. We must therefore determine whether the Ohio courts have
applied or would apply Johnson retroactively. In Agee, a state habeas case on which
Walters relied, the Ohio Supreme Court held that new state supreme court precedent
interpreting a legislative enactment did not present a retroactivity problem because, in
issuing its decision, the court did not announce a new rule of law but merely had
determined what the statute had meant since its enactment. 751 N.E.2d at 1047. Agee
opined that its “conclusion [was] consistent with [the court’s prior] holding that[,] in the
absence of a specific provision in a decision declaring its application to be prospective
only, . . . [a decision of the Ohio Supreme Court] shall be applied retrospectively as
well.” Id. (citation, alteration and internal quotation marks omitted; formatting altered).
Subsequent to Agee, the Ohio Supreme Court rejected the retroactive application
of new state supreme court precedent that involved the construction of its state
sentencing statutes, holding: “A new judicial ruling may be applied only to cases that
are pending on the announcement date. The new judicial ruling may not be applied
retroactively to a conviction that has become final, i.e., where the accused has exhausted
all of [her] appellate remedies.” Ali v. State, 819 N.E.2d 687, 688 (Ohio 2004) (internal
citation omitted).
Agee appears to be in tension with Ali. Nonetheless, assuming Agee applies, the
question is whether the Ohio Supreme Court in Johnson declared its ruling to be
No. 11-4365 Volpe v. Trim Page 17
prospective only. In Johnson, the Ohio Supreme Court labeled its section concerning
its new test as a “[p]rospective analysis of allied offenses under R.C. 2941.25.” 942
N.E.2d at 1070. The court’s use of the term “prospective,” albeit without further
comment, suggests that its new test for allied offenses was not intended to be applied
retroactively. The court, however, did not engage in a retroactivity discussion. Nor did
it explain whether, by using the term “prospective,” its new test would apply only to
pending criminal matters.
Given that the decisions of the Ohio Supreme Court point to no clear answer, we
look to the decisions of the Ohio appellate courts, which have consistently held that
Johnson does not apply retroactively to cases where the defendant has already exhausted
her appellate remedies. See, e.g., State v. Hughes, No. 12AP-165, 2012 WL 4503148,
at *3 (Ohio Ct. App. 10th Dist. Sept. 28, 2012); State v. Boyce, No. 11CA0095, 2012
WL 3542268, at *2 (Ohio Ct. App. 2d Dist. Aug. 17, 2012); State v. Boone, 975 N.E.2d
546, 556 (Ohio Ct. App. 10th Dist. 2012); State v. Pound, Nos. 24789, 24980, 2012 WL
3061455, at *3 (Ohio Ct. App. 2d Dist. July 27, 2012), leave denied, 978 N.E.2d 910
(table decision); State v. Dukes, Nos. 2011-P-0098, 2011-P-0099, 2012 WL 2522968,
at *2 (Ohio Ct. App. 11th Dist. June 29, 2012), leave denied, 977 N.E.2d 694 (2012)
(table decision); State v. Kelly, No. 97673, 2012 WL 2459149, at *3 (Ohio Ct. App. 8th
Dist. June 28, 2012); State v. Champion, No. 24782, 2012 WL 2061590, at *1 (Ohio Ct.
App. 2d Dist. June 8, 2012), leave denied, 976 N.E.2d 914 (2012) (table decision); State
v. Holliday, No. 11CAA110104, 2012 WL 1964026, at *2 (Ohio Ct. App. 5th Dist. May
29, 2012); State v. Hickman, No. 11-CA-54, 2012 WL 1744531, at *2 (Ohio Ct. App.
5th Dist. May 11, 2012), leave denied, 975 N.E.2d 1029 (2012) (table decision); State
v. Smith, No. 9-11-36, 2012 WL 1494285, at *5 (Ohio Ct. App. 3d Dist. Apr. 30, 2012),
leave denied, 974 N.E.2d 1210 (2012) (table decision); State v. Layne, No. 11CA17,
2012 WL 1247209, at *3 (Ohio Ct. App. 4th Dist. Apr. 5, 2012); State v. Parson, No.
24641, 2012 WL 601807, at *2 (Ohio Ct. App. 2d Dist. Feb 24, 2012); cf. Melson v.
Prime Ins. Syndicate, Inc., 429 F.3d 633, 636 (6th Cir. 2005) (“In order to determine
how the state supreme court would rule, we look to the decisions of the state’s
No. 11-4365 Volpe v. Trim Page 18
intermediate courts unless we are convinced that the state supreme court would decide
the issue differently.”).
3.
Volpe argues that notwithstanding the Ohio courts’ determinations to the
contrary, the issue cannot be one of retroactivity because Johnson cannot have
announced new law. The argument proceeds as follows: the law at issue is a statute;
therefore, all the Ohio Supreme Court did in Johnson was make clear what the Ohio
General Assembly meant from the start. When a state’s highest court announces a new
rule of law, it considers whether to give that new law full retroactive, limited retroactive
or solely prospective effect. But when the court announces a new interpretation of a
statute, no retroactivity question arises because the law has not changed, only the court’s
interpretation. The statute has always expressed the same legislative intent; the court’s
earlier pronouncements were simply erroneous. If Rance’s interpretation of the multi-
count statute, Ohio Rev. Code § 2941.25, was incorrect when the Ohio Supreme Court
decided Johnson, it was equally incorrect when Rance was first decided and at all times
in between. The Ohio General Assembly never intended the double punishment that
Rance permitted. And, because the sole inquiry in this habeas proceeding is whether the
Ohio legislature intended double punishment under the facts of this case, the Double
Jeopardy Clause requires that we consider Volpe’s claim under Johnson, separate and
apart from any retroactivity decisions of the Ohio courts, otherwise we cannot know if
the legislature intended double punishment.
The problem with this seemingly compelling argument is that legislatures often
express their intent in broad concepts, leaving the development and application of those
concepts to the state’s highest court. Here, the Ohio legislature did not provide a
statutory definition of the controlling term “allied offenses of similar import.” Ohio
Rev. Code § 2941.25(A); see State v. Jodrey, No. C-840406, 1985 WL 6740, at *4 (Ohio
Ct. App. 1st Dist. Apr. 10, 1985) (“We have previously discoursed about the challenging
nature of determining what are allied offenses of similar import—the basic concept with
which R.C. 2941.25 is concerned.” (citation omitted)); cf. Johnson, 942 N.E.2d at 1066
No. 11-4365 Volpe v. Trim Page 19
(“In Rance, we held that the General Assembly provided R.C. 2941.25 as a guide for
courts to determine whether particular offenses were intended to be allied.” (citation
omitted)). The legislature left it to the Ohio Supreme Court, the entity ultimately
charged with applying the statute, to give life to the concept. In such circumstances, the
judicial development of the legislatively-created concept is little different from the
development of judicially-announced law. The law evolves over time with experience.
In Johnson, the Ohio Supreme Court determined after years of experience applying
Rance that the statutory scale used to weigh impermissible double punishment against
full criminal accountability—“allied offenses of similar import”—was no longer in
balance and required readjustment. See 942 N.E.2d at 1069 (“[T]his court has gone to
great efforts to salvage the Rance standard. We have modified it and created exceptions
to it in order to avoid its attendant absurd results. However, our allied-offenses
jurisprudence has suffered as a consequence.”).
This allowance for judicial development of statutory law without running afoul
of the Constitution is implicit in Fiore v. White, 531 U.S. 225 (2001) (per curiam), and
Bunkley v. Florida, 538 U.S. 835 (2003) (per curiam), which involved the question when
new judicial interpretations of statutory law became controlling. In the context of a state
prisoner’s habeas legal-sufficiency challenge to his conviction, the U.S. Supreme Court
held “that retroactivity [was] not at issue” in applying new state supreme court precedent
interpreting a criminal statute because the state court’s ruling, although issued after the
petitioner’s conviction became final, furnished “[the] correct statement of the law when
[the petitioner’s] conviction became final.” Fiore, 531 U.S. at 226. In Fiore, the habeas
petitioner’s conviction had become final before the Pennsylvania Supreme Court
interpreted the criminal statute at issue for the first time in the petitioner’s co-
defendant’s appeal. Although the petitioner’s conduct would not have come within the
purview of the statute as interpreted in the co-defendant’s intervening appeal, the
Pennsylvania court nevertheless denied the petitioner collateral relief. The U.S.
Supreme Court did not adopt the simple logic that the statute must have had the same
meaning all along. Rather, the Court certified to the Pennsylvania Supreme Court the
question whether the decision was a new interpretation of the statute or a correct
No. 11-4365 Volpe v. Trim Page 20
statement of the law when the petitioner’s conviction became final. See id. The
Pennsylvania court responded that it did not announce a new rule of law, but “merely
clarified the plain language of the statute” applicable to the petitioner’s conviction. Id.
at 228 (citation omitted).
Underlying the Pennsylvania Supreme Court’s answer to the certified question
in Fiore was the fact that it did not overrule or change any controlling precedent
interpreting the statute. See Fiore v. White, 757 A.2d 842, 848 (Pa. 2000) (“[W]hen we
have not yet answered a specific question about the meaning of a statute, our initial
interpretation does not announce a new rule of law. Our first pronouncement on the
substance of a statutory provision is purely a clarification of an existing law. . . .
Consequently, [when interpreting the statute for the first time,] we were not in a position
to overrule a decision by this Court.”). In light of the state court’s certification, the U.S.
Supreme Court held, based on the uncontested facts of the petitioner’s case, that his
conduct did not violate the criminal statute under which he had been convicted and thus
his conviction violated due process. Fiore, 531 U.S. at 228–29.
Further, the Supreme Court held in Bunkley that, when state law has changed or
evolved by judicial decision, the “[t]he proper question under Fiore is not just whether
the law changed. Rather, it is when the law changed.” 538 U.S. at 841–42. In Bunkley,
the Court clarified the Fiore inquiry in the context of a petitioner’s direct appeal from
his state-court collateral proceeding, in which the petitioner raised a sufficiency
challenge based on the Florida Supreme Court’s changed interpretation of the criminal
statute under which he had been convicted. If applicable before his conviction became
final, the new interpretation would arguably have rendered his conviction in violation
of due process. The Court remanded the case for the state supreme court to clarify
whether its changed interpretation applied at the time the petitioner’s conviction became
final. Id. at 842.
Assuming that Fiore extends to sentencing statutes in the double jeopardy
context, its rationale does not apply here because Johnson did not merely clarify section
2941.25, but expressly overruled Rance and changed more than a decade of Ohio
No. 11-4365 Volpe v. Trim Page 21
allied-offenses jurisprudence. See 942 N.E.2d at 1066–70; see also State v. Williams, --
N.E.2d --, --, No. 2011-0619, 2012 WL 6198021, at *5 (Ohio Dec. 6, 2012) (“[I]n
Johnson, this court abandoned the abstract analysis entirely [and] overruled Rance[.]”).
The Ohio Supreme Court issued Johnson two years after Volpe’s conviction became
final. Because Rance was the controlling precedent at the time Volpe’s conviction
became final, the Ohio courts consider Johnson’s new test for allied offenses
inapplicable to her case. See, e.g., Layne, 2012 WL 1247209, at *5 (“Although State v.
Johnson . . . specifically overruled State v. Rance, we must nevertheless apply Rance and
its progeny . . . because it was the applicable law at the time Appellant’s convictions and
sentences became final.”).2
IV.
For the foregoing reasons, we AFFIRM the district court’s judgment.
2
Of course, we do not preclude the application of Johnson in habeas review if the Ohio Supreme
Court declares that its new test for allied offenses applies in the post-conviction context. But as the Ohio
courts have treated Johnson as a change in the law, we reject Volpe’s suggestion that a post-conviction
application of the decision does not involve a retroactivity question.
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995 F.2d 216
Government of Virgin Islandsv.Harrigan (Hugo V.)
NO. 91-3305United States Court of Appeals,Third Circuit.
May 12, 1993
Appeal From: D.V.I.,
Hackett, J.
1
AFFIRMED.
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} |
872 F.2d 1359
13 Fed.R.Serv.3d 1450
Donald PETRU, Plaintiff-Appellant,v.CITY OF BERWYN, Defendant-Appellee.
No. 88-2279.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 10, 1989.Decided May 1, 1989.
John L. Gubbins, Chicago, Ill., for plaintiff-appellant.
Patricia J. Hruby, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellee.
Before POSNER, COFFEY and MANION, Circuit Judges.
COFFEY, Circuit Judge.
1
Donald Petru appeals from the district court's refusal to vacate a summary judgment order in favor of the defendant, City of Berwyn, Illinois, in a civil rights action under 42 U.S.C. Sec. 1983, and claims that the City denied him his procedural due process rights in failing to appoint him to the position of fire fighter. We affirm.
2
* Donald Petru received the highest combination of test scores for the position of fire fighter on an examination administered by the City of Berwyn Board of Fire and Police Commissioners in the fall of 1985.1 Based upon the results of this examination, an eligibility list for fire fighters' positions was posted on January 17, 1986, and Petru ranked first.
3
The City is required to hire replacements for fire fighter vacancies from the hiring eligibility list only after receiving the approval of the mayor and the department head. Authorization to hire is provided only if there is a consensus that there is a need for a replacement and sufficient funds to pay the replacement.2 During 1984 and 1985 the City appointed five new fire fighters within thirty days of the retirement of their predecessors. In April, May and June 1986, Fire Chief John Keating informed Mayor Joseph J. Lanzillotti that he anticipated three openings resulting from the expected retirement of three fire fighters. Ultimately, only one employee retired, with his retirement effective July 1, 1986. When Chief Keating asked Mayor Lanzillotti to authorize the hiring of fire fighters in May and June 1986, the Mayor informed the Chief that the City was at present fiscally strapped and unable to hire replacements. The Mayor's refusal to authorize the appointment of replacements for fire fighters was part of an economic austerity program that involved the refusal to approve the hiring of any full-time employees in city departments during the 1986 year. Accordingly, the City appointed no fire fighter from August 1985 through July 17, 1986. On the latter date, the City retired the eligibility list on which Petru was ranked first.
4
During the first part of 1986, the City's fire fighter hiring practices were also subject to a lawsuit the United States brought against the City under Title VII of the Civil Rights Act of 1964, alleging, inter alia, that the City's hiring eligibility lists, including those utilized by the fire department, were based upon discriminatory voter and residency requirements. During negotiations between the City and the Justice Department concerning the possible settlement of this lawsuit, a Justice Department attorney informed the City's attorneys that the Justice Department expected the City to cease and desist from hiring until the entry of a consent decree. The Justice Department also stated that it would immediately move for the issuance of an injunction if the City did not agree to refrain from hiring, including fire fighters, during the course of settlement negotiations. In late March or early April 1986, the City agreed to the Justice Department's request not to hire during the course of the negotiations and reaffirmed this commitment in May 1986. In April and May 1986, the City Attorney informed various City officials, including the Mayor, of the City's commitment to refrain from any hiring during the course of negotiations. The City complied with this agreement and did not hire fire fighters between March 1986 and the July 17, 1986, entry of the consent decree between the City and the United States. The consent decree ultimately enjoined the City from using any current hiring eligibility list, in any department, on the basis that "such lists were based upon voter and residence requirements that have been eliminated by ... this decree."
5
The City moved for summary judgment on January 19, 1988, in Petru's civil rights suit alleging that the plaintiff-appellant lacked a property interest under state law in an appointment to a position of fire fighter, that any such interest which might exist was preempted by federal law and that any alleged deprivation was premised under color of federal, rather than state law. Petru was given until March 15, 1988, to file a response. Upon Petru's request, the trial court extended the plaintiff-appellant's time for filing his response to March 31, 1988, but Petru failed to file a response to the summary judgment motion.
6
On May 18, 1988, the district court entered summary judgment in the City's favor. In its decision the court noted the hiring freeze, the pending civil rights action and the cancellation of the January 1986 hiring eligibility list upon the entry of the consent decree in the civil rights action. The trial court concluded that: "In these circumstances, assuming [Petru] had an enforceable right in his position on the eligibility list, it cannot be said that he was deprived of his right to due processes of law by actions of the [City]."
7
Petru filed a timely motion to vacate the judgment under Rule 59(e) on May 31, 1986. The district court denied the motion to vacate, ruling that "Petru was not deprived of any arguable property interest." Petru filed a notice of appeal from the order denying vacation of the summary judgment, rather than from the order granting summary judgment.
II
8
The City contends that because the notice of appeal stated that Petru appealed from the district court's order denying his motion to vacate judgment under Federal Rule of Civil Procedure 59(e), review should be limited to this order or, if consideration of the summary judgment order be deemed proper, it should proceed under the abuse of discretion standard the City asserts is applicable to review of a district court's denial of a motion to vacate judgment under Rule 59(e). See generally Danenberger v. Johnson, 821 F.2d 361, 362 (7th Cir.1987) ("Danenberger argues that the trial court abused its discretion in refusing to vacate its judgment dismissing Danenberger's complaint").
9
We have previously held that the review of an underlying judgment will be permitted in certain cases in which an appeal is mistakenly taken from an order denying a motion for a new trial brought under Rule 59(b) rather than from the underlying judgment. We observed:
10
"Plaintiff's appeal from the district court's denial of her motion for a new trial is also flawed, though not fatally so. This flaw lies not with the original motion but rather with the appeal. Plaintiff appeals from an order denying her motion for a new trial, but the generally accepted rule is that the appeal should be taken from the judgment itself rather than the order denying the motion for a new trial. However, the general practice, which we have previously approved, is to treat this error as harmless and view the appeal as instead taken from the judgment, so long as (1) the judgment from which the moving party intended to appeal is final; (2) it is clear what judgment is involved; (3) the motion and appeal were timely made; and (4) there is no prejudice to the other party. In this case, all of these requirements are met, and consequently we treat this appeal as an appeal from the judgment and reach the merits of the case."
11
Johnson v. University of Wisconsin--Milwaukee, 783 F.2d 59, 61 (7th Cir.1986) (citations omitted).
12
There is no legal justification for treating a flawed attempt to appeal from an underlying judgment through an appeal from a denial of a motion to vacate judgment under Rule 59(e) any differently than a similarly flawed attempt to appeal from an underlying judgment through an appeal from a denial of a motion for new trial under Rule 59(b).3 Indeed, in previous decisions under Rule 59(e) we have emphasized the unified policy underlying Rule 59: "[T]he purpose of Rule 59 is to allow the district court to correct its own errors, sparing the parties and appellate courts the burden of unnecessary appellate proceedings." Charles v. Daley, 799 F.2d 343, 348 (7th Cir.1986).
13
Treatment of this appeal in the manner we have previously treated appeals under Rule 59(b) is also consistent with the United States Supreme Court's decision in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). In that case a party filed a notice of appeal from the judgment prior to the district court's disposition of the Rule 59(e) motion and later filed a notice of appeal from the order denying the Rule 59(e) motion. The Court of Appeals had dismissed the appeal on the basis that the second notice "failed to specify that the appeal was being taken from [the] judgment as well as from the orders denying the motions." 371 U.S. at 180-81, 83 S.Ct. at 229-30. The Supreme Court held:
14
"The Court of Appeals' treatment of the motion to vacate as one under Rule 59(e) was permissible, at least as an original matter, and we will accept that characterization here. Even if this made the first notice of appeal premature, we must nevertheless reverse for we believe the Court of Appeals to have been in error in so narrowly reading the second notice.
15
The defect in the second notice of appeal did not mislead or prejudice the respondent. With both notices of appeal before it (even granting the asserted ineffectiveness of the first), the Court of Appeals should have treated the appeal from the denial of the motion as an effective, although inept, attempt to appeal from the judgment sought to be vacated. Taking the two notices and the appeal papers together, petitioner's intention to seek review of both the dismissal and the denial of the motions was manifest. Not only did both parties brief and argue the merits of the earlier judgment on appeal, but petitioner's statement of points on which she intended to rely on appeal, submitted to both respondent and the court pursuant to rule, similarly demonstrated the intent to challenge the dismissal."
16
371 U.S. at 181, 83 S.Ct. at 229.
17
Applying the test set out in Johnson, 783 F.2d at 61, this appeal must be treated as taken from the district court's judgment. At the time of appeal the court's summary judgment order was final. It is clear from Petru's arguments on appeal that the summary judgment order is the order with which he is concerned. Both Petru's motion to vacate the judgment under Rule 59(e) and his appeal were timely filed. Finally, the fact that the City comprehensively discussed the merits of the summary judgment issue in its brief and at oral argument means that the City cannot claim surprise or other prejudice from our review of this case as an appeal from the district court's summary judgment order. Accordingly, we treat Petru's appeal from the denial of the motion to vacate judgment under Rule 59(e) "as harmless [error] and view the appeal as instead taken from the judgment." Johnson, 783 F.2d at 61.
III
18
"Once a party files a motion for summary judgment showing within its four corners entitlement to prevail, judgment must be entered 'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial.' " Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "In order to assert a violation of the Fourteenth Amendment, [Petru] must first demonstrate that he has a protectable property interest in his employment." Farmer v. Lane, 864 F.2d 473, 478 (7th Cir.1988). Thus, a property interest in appointment as a fire fighter is an essential element of Petru's due process case and he bears the burden of proof.4
19
"[W]hen confronted with a motion for summary judgment, a party who bears the burden of proof on a particular issue may not rest on its pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988) (emphasis in original). When, as in this case, a party fails to even file an answer and thus does nothing to resist the motion for summary judgment in the district court, the court is not required to perform the lawyer's work for him. As we observed in a recent case in which the same attorney now representing Petru had also failed to file a response to a motion for summary judgment:
20
"A district court need not scour the record to make the case of a party who does nothing. Indeed, under the rules of the Northern District of Illinois, depositions and other materials are not in the record until introduced by a party. The materials [John Gubbins, attorney in that case and Petru's attorney in this case] now says the district court should have hunted up were not in the record then and are not there now. Henn v. National Geographic Society, 819 F.2d 824, 831 (7th Cir.1987). A lawyer has an ethical obligation, enforceable under Rule 11, not to seek summary judgment if the facts show that his client is not entitled to that relief, see Goka v. Bobbitt, 862 F.2d 646, 650-51 (7th Cir.1988), but courts will not discover that the movant slighted contrary information if opposing lawyers sit on their haunches; judges may let the adversary system take its course."
21
Herman, at 404.
22
In addressing the question of whether a public employee possessed a property right in a particular position, we have previously stated that:
23
"A useful starting point in determining whether Common possessed a constitutionally protected 'property' interest in continued employment is the United States Supreme Court's decision in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), which explained:
24
'To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
25
* * *
26
* * *
27
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings from an independent source such as state law--rules or understandings that secure benefits and that support claims of entitlement to those benefits.'
28
'[P]roperty interests may be a matter of statutory entitlement,' or 'they may also arise from mutually explicit understandings.' Davis v. City of Chicago, 841 F.2d 186, 188 (7th Cir.1988) (citations omitted)."
29
Common v. Williams, 859 F.2d 467, 470 (7th Cir.1988).
30
To recognize a "property" interest for an appointment to a classified position in the realm of public employment would drastically extend the scope of the due process clause and we refuse to make that extension. See generally United States v. City of Chicago, 798 F.2d 969, 974 (7th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 771, 98 L.Ed.2d 858 (1988) ("We need not decide now whether an unconditional agreement for prospective employment gives rise to a protectable property right (all the cases cited by appellants concern the right to continued employment)") (citation omitted, emphasis in original). Cf. United States v. City of Chicago, 869 F.2d 1033, 1038 (7th Cir.1989) ("[T]he message from Bigby and under Illinois law is clear: a roster ranking may create an expectation of promotion, but an officer has no entitlement to a particular roster position or to promotion ") (emphasis added); Thomas v. Board of Examiners, 866 F.2d 225, 227 (7th Cir.1989) (per curiam) ("Thomas clearly has no property entitlement to the promotion"); Bigby v. City of Chicago, 766 F.2d 1053, 1056 (7th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986) ("[T]hese sergeants did not have a property interest in the rank, which they had not yet attained, of lieutenant"); Webster v. Redmond, 599 F.2d 793, 801 (7th Cir.1979), cert. denied, 444 U.S. 1039, 100 S.Ct. 712, 62 L.Ed.2d 674 (1980) ("There is ... no indication in Illinois law that possession of a certificate from the Board of Examiners means anything more than that one is to be placed on the eligibility list and considered at the appropriate time by the Board of Education. Claims of entitlement to promotion sufficient to evoke constitutional protection must be based on a surer footing") (footnote omitted). Petru cites three sources for his alleged property interest in appointment to a position as a City fire fighter, the Illinois Municipal Code, Ill.Rev.Stat. ch. 24 p 10-2.1-1 et seq., the collective bargaining agreement between the City and Local 506 I.A.F.F., and the customs and practices of the City with respect to hiring fire fighters.
31
The Illinois Municipal Code only sets forth procedures for an eligibility register to determine "preference in certification and appointment" to fire fighter positions. Ill.Rev.Stat. ch. 24, p 10-2.1-9. Although the Code specifies the candidate to be appointed to a position when an appointment is made, it does not oblige a City to make an appointment at any particular time. Indeed, Illinois cases have consistently held that a City may choose whether or not it will fill a position and that a position on an eligibility list does not provide a necessary right to appointment. See People ex rel. Hawkonsen v. Conlisk, 119 Ill.App.2d 431, 256 N.E.2d 99, 102-03 (1970) ("[T]he Superintendent of Police, under the facts and circumstances of this case, is under no legal duty to fill vacancies for the position of sergeant merely because appropriations had been made for such officers"); Butts v. Civil Service Commission, 108 Ill.App.2d 258, 246 N.E.2d 853, 856 (1969) ("Section 10-1-16 gave Butts, and other qualified veterans, the right to preferred positions on eligibility registers if requested, but certainly does not grant to anyone a vested right to a Civil Service appointment. A Civil Service position is in the nature of a public office, not a property right"). Thus, the Illinois Municipal Code is not a source for a property right to appointment as a fire fighter.
32
The collective bargaining agreement between the City and the fire fighter's Union also may not be relied upon to support a property interest in this case, because the contract was not introduced as an exhibit or even cited to the district court and, thus, was never made part of the district court record. In this case, as in Herman, "[t]he materials Gubbins now says the district judge should have hunted up were not in the record then and are not there now." Herman, at 404. We may not rely upon material that has not been placed in the record as a basis for finding the genuine issue of material fact necessary to deny the City summary judgment.5
33
Finally, Petru asserts that the City's practice during 1984 and 1985 of replacing retired employees within less than thirty days of retirement has established a custom of prompt replacement that has created a mutually explicit understanding capable of giving rise to a legitimate claim of entitlement to appointment to a fire fighter's position upon the retirement of any current fire fighter.
34
In a case of this nature wherein a party relies upon custom or policy to demonstrate a mutually explicit understanding giving rise to a property interest
35
"the Supreme Court has pointed to the analogous doctrines of 'implied contracts' arising from parties' mutual understandings and of the 'common law of a particular plant that may supplement a collective-bargaining agreement.' A party utilizing ... evidence of custom or policy to establish a mutually explicit understanding capable of giving rise to a legitimate claim of entitlement in continued employment, must demonstrate ' "an expectation ... that was legally enforceable", a mutually binding obligation.' Upadhya v. Langenberg, 834 F.2d 661, 665 (7th Cir.1987) (citations omitted). This expectation must be something which ' "is securely and durably yours under state (or ... federal) law, as distinct from what you hold subject to so many conditions as to make your interest meager, transitory, or uncertain." ' Yatvin [v. Madison Metropolitan School District, 840 F.2d 412, 417 (7th Cir.1988) ] (quoting Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983)). It is clear that 'a mutually subjective and unilateral expectancy is not protected by due process.' Davis [v. City of Chicago, 841 F.2d 186, 188 (7th Cir.1988) ] (citation omitted)."
36
Common, 859 F.2d at 470 (citations omitted).
37
Just because the City has acted promptly in the past in filling vacancies created by retiring employees, this practice, of itself, does not create a binding legal obligation that mandates adherence to this procedure in the future. The undisputed evidence in the record demonstrates that the City replaces employees only in cases when finances are sufficient to permit an appointment and then only after the Mayor and department heads have approved the appointment. The sole limitation on the City's discretion to choose whether or not to fill a fire fighter position is the City's ordinance requiring a complement of thirty fire fighters. The City met this obligation without replacing any of the fire fighters that retired in 1986 or 1987. In this case the Mayor relied upon the City's depleted financial situation as well as the City's legal commitment to honor its agreement with the United States Department of Justice to refrain from hiring fire fighters during the course of the consent decree negotiations, as the reasons for refusing to appoint fire fighters during the time the eligibility list on which Petru was ranked first was posted. In light of the discretion accorded the Mayor to approve or disapprove the hiring of fire fighters, and the agreement with the United States Department of Justice during the relevant time period, Petru's interest in appointment to a fire fighter's position "was too contingent to count as property, which in the constitutional setting is 'what is securely and durably yours under state (or ... federal) law, as distinct from what you hold subject to so many conditions as to make your interests meager, transitory, or uncertain.' " Yatvin, 840 F.2d at 417 (quoting Reed, 704 F.2d at 948).
38
Because we are convinced that Petru has failed to demonstrate a constitutionally protectable property interest in appointment as a City fire fighter, and "[s]ince this 'property' right is an essential element of [Petru's] claim, the district court properly entered summary judgment in favor of [the Cityl."6 The decision of the district court is
39
AFFIRMED.
1
The examination consisted of a written test, a physical test and an oral interview. Each of the three sections was graded separately and, after the sections were weighted, they were averaged to calculate a combined score
2
In addition, a City ordinance requires that the City have at least thirty fire fighters. There is no dispute that the City has complied with this requirement
3
Each of these appeals is "flawed" because the involved notice of appeal does not state that the appeal is taken from the underlying judgment order
4
The district court's order entering summary judgment against Petru was based on the rationale that assuming arguendo Petru might have a property interest in a position on the fire fighters' hiring eligibility list, "it cannot be said that [Petru] was deprived of his right to due processes of law by actions of the defendant." However, it is well settled that "[a]lthough [the district] court did not reach them, grounds preserved in the district court may be urged here, without a cross-appeal, to sustain the judgment." Herman v. City of Chicago, 870 F.2d 400, 403 (7th Cir.1989)
5
If this case had been tried properly, and the collective bargaining agreement had been placed in the record, we would have been required to determine whether the collective bargaining agreement provided a basis for a property interest in appointment as a fire fighter. In the absence of this question being properly before the court, we refuse to reach this issue
6
Common, 859 F.2d at 473. Because we have determined that Petru has failed to demonstrate a property interest in appointment to a fire fighter position, we need not reach the questions of whether Petru's failure to secure a fire fighter position resulted from actions of the federal government rather than the City and whether a consent decree under Title VII, in which the City admitted no liability and to which Petru was not a party, can provide a basis for federal preemption of a constitutional property interest based upon state law
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 44164
TODD WILLIAM CARVER, ) 2017 Unpublished Opinion No. 564
)
Petitioner-Appellant, ) Filed: August 31, 2017
)
v. ) Karel A. Lehrman, Clerk
)
STATE OF IDAHO, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Respondent. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Second Judicial District, State of Idaho,
Idaho County. Hon. Gregory Fitzmaurice, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed.
Nevin, Benjamin, McKay & Bartlett LLP; Dennis Benjamin, Boise, for appellant.
Dennis Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent. Jessica M. Lorello argued.
________________________________________________
GRATTON, Chief Judge
Todd William Carver appeals from the district court’s summary dismissal of his petition
for post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Carver was found guilty by a jury of murder in the first degree. Idaho Code §§ 18-4001,
18-4002, and 18-4003(d). The victim was the three-year-old son of Carver’s live-in girlfriend.
The child suffered multiple blows to his head causing bilateral subdural hematomas, and there
was bruising on his neck consistent with strangulation. The district court sentenced Carver to
life in prison without the possibility of parole. The Idaho Supreme Court affirmed the conviction
and sentence on appeal. State v. Carver, 155 Idaho 489, 314 P.3d 171 (2013).
1
Carver filed a pro se petition for post-conviction relief and a motion for appointment of
counsel. The district court granted Carver’s motion for counsel. The State filed an answer after
which Carver filed a motion to amend his petition. The district court held a hearing on Carver’s
motion and Carver subsequently filed an amended petition for post-conviction relief. Thereafter,
the State filed a motion for summary dismissal. The district court issued a notice of intent to
dismiss. Carver filed a response to that notice asking to again amend the petition based on newly
discovered evidence: the affidavit of prospective juror Arnold Pineda. Thereafter, the district
court held a hearing at which it authorized Carver to file a second amended petition. In his
second amended petition, Carver alleged the following: (1) trial counsel was ineffective in
failing to assert a peremptory challenge to juror V.L., who knew the victim’s mother and a
witness for the prosecution and who had discussed the case with said witness; (2) trial counsel
was ineffective in failing to challenge V.L. for cause; (3) the district court erred by failing to
excuse sua sponte V.L. for cause; and (4) Carver was denied his due process right to a fair trial
because the jury was not impartial.
In support of his second amended petition, Carver submitted excerpts of the transcript
from the voir dire of V.L., excerpts of the trial transcript, and the Pineda affidavit. In his
affidavit, Pineda stated that he was summoned as a prospective juror in Carver’s criminal case
but was replaced because he was late in arriving at the courthouse. Pineda further averred:
When I was waiting with other potential jurors on the second floor of the
courthouse . . . I heard [V.L.] talking to another woman. As best I can remember,
[V.L.] said she was surprised that they kept her on the jury because she knew the
relatives of the child and had discussed the facts of the case with those persons. I
think, but am not certain, she referenced the grandparents. She said she thought
“he was guilty.”
The State filed an amended motion for summary dismissal. Carver filed a written
objection to the State’s motion, which included a request for discovery. The district court held a
hearing on the State’s motion for summary dismissal of Carver’s second amended petition.
Subsequently, the district court entered an order granting the State’s motion to summarily
dismiss Carver’s petition and denying Carver’s request for discovery. Carver timely appeals.
II.
ANALYSIS
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v.
2
Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921,
828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove
by a preponderance of evidence the allegations upon which the request for post-conviction relief
is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition
for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State,
141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short
and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil
Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to
facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence
supporting its allegations must be attached or the petition must state why such supporting
evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must
present or be accompanied by admissible evidence supporting its allegations, or the petition will
be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
Idaho Code Section 19-4906 authorizes summary dismissal of a petition for post-
conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if it
appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. When considering
summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but
the court is not required to accept either the petitioner’s mere conclusory allegations,
unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125
Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715
P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained
to draw inferences in favor of the party opposing the motion for summary disposition; rather, the
district court is free to arrive at the most probable inferences to be drawn from uncontroverted
evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such
inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven
by the record of the criminal proceedings, if the petitioner has not presented evidence making a
prima facie case as to each essential element of the claims, or if the petitioner’s allegations do
3
not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281
(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a
matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in
the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be
appropriate even when the state does not controvert the petitioner’s evidence. See Roman, 125
Idaho at 647, 873 P.2d at 901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925,
929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
A. District Court’s Ruling on Impartial Jury Claim
Carver argues that the district court erred in failing to rule on Carver’s claim that his due
process right to a fair trial was violated. The State argues that the district court’s order
encompasses Carver’s due process claim. The State notes that the district court granted the
State’s motion for summary dismissal and that motion addressed the alleged impartiality of V.L.
Carver relies upon Dawson v. Cheyovich Family Trust, 149 Idaho 375, 234 P.3d 699
(2010). In that case, the district court dismissed the plaintiff’s claims for failure to prosecute and
granted summary judgment on the defendant’s counterclaims. Id. at 378, 234 P.3d at 702. The
plaintiff moved both for reconsideration and to set aside the judgment under I.R.C.P. 60(b)(6).
Dawson, 149 Idaho at 378-79, 234 P.3d at 702-03. The district court denied the reconsideration
but did not issue a ruling on the Rule 60(b)(6) motion. Id. at 379, 234 P.3d at 703. The Idaho
Supreme Court held that the district court “erred by failing to issue a ruling on Dawson’s Rule
4
60(b)(6) motion.” Id. at 380, 234 P.3d at 704. In the present case, the district court did not fail
to rule on the State’s motion for summary disposition. Rather, the district court held as follows:
The State’s Second Motion to dismiss is granted. Carver has not shown
that his trial counsel’s performance fell below an objective standard of
reasonableness because he did not strike [V.L] as a juror. Nor has he shown that
there likely was prejudice to Carver because she was on the jury.
It is within the Court’s discretion to strike a juror for cause. Carver has
not shown that the Court abused its discretion for not striking a juror who has
averred that she can be impartial, regardless of what she had heard.
Further discovery will not yield admissible evidence to assist Carver in
proving his post-conviction claims.
The record establishes that the district court did rule on the State’s motion, granting it as
to all claims after acknowledging that one of Carver’s allegations was that he was denied a fair
and impartial jury. That the district court did not set forth its analysis as to one of those claims
was not error. “Summary disposition of a post-conviction relief application under I.C. § 19-
4906(c) is the procedural equivalent of summary judgment under I.R.C.P. 56.” Roman, 125
Idaho at 647, 873 P.2d at 901. “[F]indings of fact are not necessary to support decisions of
summary judgment motions under I.R.C.P. 56, or to support a decision relating to any other
motion, except with respect to motions for involuntary dismissal under I.R.C.P. 41(b).” Bank of
Idaho v. Nesseth, 104 Idaho 842, 846, 664 P.2d 270, 274 (1983). In summarily dismissing a
petition for post-conviction relief, the trial court need only find that there are no genuine issues
of material fact and that judgment is appropriate as a matter of law. Peltier v. State, 119 Idaho
454, 457, 800 P.2d 373, 376 (1991); State v. Christensen, 102 Idaho 487, 489, 632 P.2d 676, 678
(1981). Carver has failed to show that the district court erred in summarily dismissing his
impartial jury claim.
B. Pineda’s Affidavit
Carver argues that the district court erred in refusing to consider Pineda’s affidavit. The
district court found that the affidavit was inadmissible hearsay. On appeal, Carver argues that
Pineda’s affidavit was admissible under Idaho Rule of Evidence 803(1) (present sense
impression) and I.R.E. 803(3) (then existing mental, emotional, or physical condition), and
because the statements were not offered to show the truth of the matter asserted. Further, as to
Pineda’s statement that he heard V.L. say that she thought Carver was guilty, Carver claims the
statement is admissible because it tends to show that the statements made during voir dire were
false.
5
The trial court has broad discretion whether to admit hearsay under one of the many
exceptions to the general rule that hearsay is inadmissible. We will not overturn the exercise of
that discretion absent a clear showing of abuse. Dep’t of Health and Welfare v. Altman, 122
Idaho 1004, 1007, 842 P.2d 683, 686 (1992). When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the
lower court correctly perceived the issue as one of discretion; acted within the boundaries of
such discretion and consistently with any legal standards applicable to the specific choices before
it; and reached its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho
Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
Our first inquiry is whether the statements were hearsay. Hearsay evidence is testimony
in court, or written evidence, of a statement made out of court, the statement being offered as an
assertion of the truth of the matters asserted therein, and thus resting for its value upon the
credibility of the out-of-court asserter. Isaacson v. Obendorf, 99 Idaho 304, 309, 581 P.2d 350,
355 (1978). The district court examined the statements allegedly made by V.L. and determined
that they were being offered to prove the truth of the matters asserted therein and were, therefore,
hearsay. Indeed, the proffered statement that Pineda overheard V.L. say that she thought Carver
was guilty is the crux of Carver’s argument that he was denied his due process right to an
impartial jury. Because Pineda’s affidavit contains hearsay, the next inquiry is whether it is
admissible under an exception to the hearsay rule.
In his opposition to the State’s motion for summary dismissal, Carver argued that
Pineda’s affidavit was admissible under I.C. § 19-4906(c). However, Carver did not argue that
the affidavit was admissible based on hearsay exceptions. Generally, issues not raised below
may not be considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815
P.2d 1061, 1062 (1991). Because Carver did not make the argument that the affidavit was
admissible pursuant to a hearsay exception below, we will not consider it on appeal.
6
C. Constitutional Violation
Carver argues he presented a prima facie case that he was deprived of an impartial jury
sufficient to merit an evidentiary hearing. 1 The State argues that Carver failed to provide
admissible evidence demonstrating a genuine issue of material fact in relation to any of his
claims. “The determination whether a juror can render a fair and impartial verdict is directed to
the sound discretion of the trial court and will not be reversed absent a showing of abuse of
discretion.” State v. Hauser, 143 Idaho 603, 609, 150 P.3d 296, 302 (Ct. App. 2006). As noted
above, when a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the
issue as one of discretion; acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and reached its decision by an
exercise of reason. Sun Valley Shopping Ctr., Inc., 119 Idaho at 94, 803 P.2d at 1000.
A criminal defendant has a constitutional right to trial by an impartial jury. U.S. CONST.
amends. V, VI, XIV; IDAHO CONST. art. I, §§ 7, 13. The Idaho Code provides criminal
defendants with the right to a jury trial, as well as the ability to strike potential jurors for cause if
actual or implied bias exists. I.C. §§ 19-1902, 19-2019. See also Idaho Criminal Rule 24(b)
(addressing the procedure for voir dire examination and challenges for cause). Actual bias is
defined as “the existence of a state of mind on the part of the juror in reference to the case, or to
either of the parties, which, in the exercise of a sound discretion on the part of the trier, leads to
the inference that he will not act with entire impartiality . . . .” I.C. § 19-2019(2). However, a
trial court does not abuse its discretion by refusing to excuse for cause a juror whose answers
during voir dire initially give rise to a challenge for cause but who later assures the court that he
or she would be able to remain fair and impartial. Nightengale v. Timmel, 151 Idaho 347, 353,
256 P.3d 755, 761 (2011).
In support of his second amended petition, Carver offered transcript excerpts from the
voir dire of V.L. In the petition, Carver claimed that he was “deprived of his right to trial by an
impartial jury” because “[t]he Due Process Clause protects a defendant from jurors who are
actually incapable of rendering an impartial verdict based on the evidence and the law.” The
following voir dire exchange reveals V.L.’s assurances that she could remain impartial:
1
Carver does not argue on appeal that the district court erred in dismissing any of his other
claims for relief.
7
[Prosecutor]: Now, I guess the key question is you’ve gotten that information,
can you set that aside and judge this case just on its facts as
presented in the courtroom?
[V.L.]: You know, I’ve thought about that. I thought I may have trouble
with that, but then after the Judge said about remember everything
you hear it’s secondhand or thirdhand or fourth hand information,
and so I kind of realized that, yes, this is totally second and third
hand information so the answer is, yes, I can put it aside.
[Prosecutor]: You feel like you can?
[V.L.]: Yes.
[Prosecutor]: What I mean is that there’s going to be people testifying.
[V.L.]: Yeah.
[Prosecutor]: There’s going to be evidence, photographs introduced, other pieces
of evidence, and so what I understand you saying is you can listen
to all of that and watch all of that and judge the case just on the
evidence?
[V.L.]: I believe I can, yes.
[Prosecutor]: And you can block out these things that they’ve --
[V.L.]: I think so. I think so. I have heard all this, but I think if it’s not
brought up in court I’m not even going to listen to it.
[Prosecutor]: Now, do you do anything socially with them?
[V.L.]: No.
....
[Prosecutor]: Is it strictly just a business relationship?
[V.L.]: Strictly business.
[Prosecutor]: Now, is that business relationship going to make it difficult for
you?
[V.L.]: No, no, absolutely not.
[Prosecutor]: Would you --
[V.L.]: In fact, I have told them--they know that I was called for jury duty
and--
[Prosecutor]: Well, let me give you a hypothetical. Let’s say the State does not
prove its case beyond a reasonable doubt. Would you have any
trouble finding Mr. Carver guilty--I’m sorry, not guilty because the
State didn’t prove it beyond a reasonable doubt because of your
relationship with the [potential witnesses]?
[V.L.]: No, no.
[Prosecutor]: You wouldn’t have a problem seeing them later and you had voted
not guilty because the State didn’t prove its case you wouldn’t
have any trouble talking to them about that--
[V.L.]: I don’t think so.
[Prosecutor]: --or facing them after that?
[V.L.]: No. No, I can handle that.
Defense counsel did not ask additional questions, and V.L. was ultimately empaneled on the
jury.
8
To succeed on a claim that the district court erred by failing to sua sponte
remove a juror for cause, where, “as here, no motion was made during jury
selection to dismiss the juror in question for cause,” the defendant “assumes a
greater burden: he must show that the evidence of partiality before the district
court was so indicative of impermissible juror bias that the court was obliged to
strike [the juror] from the jury, even though neither counsel made the request.”
Dunlap v. State, 159 Idaho 280, 308, 360 P.3d 289, 317 (2015) (quoting United States v.
Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009)). The transcripts are insufficient to show a
genuine issue of material fact on any of Carver’s claims. V.L. advised the court that she knew
witnesses who would likely testify at trial and had received information from those witnesses
about the case, but could be impartial despite those relationships and that knowledge. The
district court properly relied upon [V.L.’s] assurances that she could follow the court’s
instruction, and accordingly, the district court did not abuse its discretion. 2 Carver did not
present evidence sufficient to show that the district court should have inferred from V.L.’s voir
dire testimony that her state of mind was such that she would not act with entire impartiality.
Consequently, Carver’s assertion that he raised a genuine issue of material fact entitling him to
an evidentiary hearing fails.
D. Carver’s Discovery Request
Carver argues the district court erred when it denied his request for discovery. The
district court noted in its order that Carver must identify the specific subject matter of the
discovery requested and why discovery is needed, but explained its reason for denial based on an
apparent assumption that Carver intended to depose V.L. to determine whether she was biased.
On appeal, Carver argues that “the requested discovery was necessary because it could show that
[V.L.] was untruthful during voir dire and did in fact have a pre-existing belief that [Carver] was
guilty which she could not put aside.”
When questioning the validity of a verdict, I.R.E. 606(b) prohibits jurors from testifying
about anything occurring during the jury’s deliberations or anything influencing the jury in the
deliberations. The rule permits a juror to testify about whether: (1) extraneous prejudicial
information was improperly brought to the jury’s attention; (2) any outside influence was
improperly brought to bear upon any juror; and (3) the jury determined any issue by resorting to
2
Having determined that Pineda’s affidavit constitutes inadmissible hearsay, we will not
address Carver’s argument that its contents create a genuine issue of material fact as to whether
V.L. lied during voir dire.
9
chance. I.R.E. 606(b). The rule does not prohibit inquiry into juror dishonesty during voir dire.
Levinger v. Mercy Medical Center, Nampa, 139 Idaho 192, 197, 75 P.3d 1202, 1207 (2003).
When a petitioner believes discovery is necessary for acquisition of evidence to support a
claim for post-conviction relief, the petitioner must obtain authorization from the district court to
conduct discovery. I.C.R. 57(b); Raudebaugh v. State, 135 Idaho 602, 605, 21 P.3d 924, 927
(2001). Discovery in a post-conviction action is not required unless necessary to protect a
petitioner’s substantial rights. Murphy v. State, 143 Idaho 139, 148, 139 P.3d 741, 750 (Ct. App.
2006); Griffith v. State, 121 Idaho 371, 375, 825 P.2d 94, 98 (Ct. App. 1992). Discovery may be
denied where the petitioner’s claims are nothing more than speculation, unsupported by any
evidence. Raudebaugh, 135 Idaho at 605, 21 P.3d at 927. Indeed, discovery may not be used to
engage in fishing expeditions, as post-conviction actions provide a forum for known grievances,
not an opportunity to search for them. Murphy, 143 Idaho at 148, 139 P.3d at 750. Whether to
authorize discovery is a matter directed to the discretion of the court. Raudebaugh, 135 Idaho at
605, 21 P.3d at 927.
In Carver’s response to the State’s motion for summary dismissal, Carver requested
“discovery within the bounds of Rule 606(b).” Carver also noted that the district court “may also
authorize depositions under strict conditions as to scope and subject matter.” However, this
statement was not attached to any specific request by Carver to depose V.L. A request for
“discovery within the bounds of Rule 606(b)” is not appropriately specific. “In order to be
granted discovery, a post-conviction applicant must identify the specific subject matter where
discovery is requested and why discovery as to those matters is necessary to his or her
application.” State v. LePage, 138 Idaho 803, 810, 69 P.3d 1064, 1071 (Ct. App. 2003).
Assuming that Carver was requesting to depose V.L. “under strict conditions as to scope and
subject matter,” he failed to show why such discovery was pertinent to his application for post-
conviction relief. Therefore, we conclude that the district court did not abuse its discretion by
denying Carver’s request for discovery.
In Hall v. State, 151 Idaho 42, 253 P.3d 716 (2011), the district court prohibited the
applicant from contacting a juror from the underlying criminal case in discovery. The Hall Court
evaluated a number of cases from other jurisdictions that limited counsel’s contact with jurors
after the case had been decided. In summarizing those cases, the Court stated:
10
As noted above, courts have consistently upheld orders and rules
restricting attorneys from post-verdict contact with jurors absent a showing of
good cause, despite the limited attorney First Amendment interests at stake.
However, where there is a showing of good cause, suggesting that juror
misconduct occurred, questioning the jury may lead to admissible evidence even
where the jurors themselves may not testify.
Hall, 151 Idaho at 50, 253 P.3d at 724. The Court further stated:
The goal in limiting contact with the jury is not to unduly restrict the
discovery of evidence suggesting juror misconduct, but rather to protect jurors
from unwanted contact and potential harassment. A court must, therefore,
balance its legitimate goal of juror protection with the court’s primary duty of
ensuring that justice is done and that defendants receive fair trials.
Id. at 50-51, 253 P.3d at 724-725. The Court reiterated that the test for determining whether a
trial court should have permitted juror contact in discovery is whether the party “had shown that
there was good cause to believe that juror misconduct had occurred.” Id. at 51, 253 P.3d at 725.
If good cause is shown, then juror contact is permitted on the subject of misconduct.
Here, the district court denied Carver’s request for discovery stating:
Post-trial discovery of jurors is limited by Idaho Rule of Evidence 606(b).
A juror can not testify as to any matter occurring during deliberations or the effect
of anything upon his mind or emotions influencing him to assent or dissent from
the verdict or anything about the mental process used. I.R.E. 606(b). This rule
protects public policy interests in preserving a full and fair trial, protecting juror
privacy and protecting the finality of verdicts.
The ultimate question here is whether [V.L.’s] alleged impartiality
affected the jury verdict. I.R.E. 606(b) prevents Carver from asking her, or any
other juror, if she did act with impartiality. As stated in Hall:
As juror statements are the only way to ascertain what took place
in the deliberative process or in the minds of the jury, the effect of
this rule is to make lines of inquiry pertaining to these areas
inherently fruitless. Where such questioning could never lead to
admissible evidence there is necessarily no showing of good cause
to interview the jurors on these topics.
(Citations omitted). Discovery directed at the juror’s assurances of impartiality and fairness
inherently relate to the juror’s mental processes in deliberation and rendering a verdict.
The district court also noted that even if V.L. testified that she told another jury pool
member that she thought Carver was guilty, “the court was entitled to rely on her assurances that
she could be impartial.” The district court properly determined that Carver’s assertions failed to
rise to the level of good cause and, recognizing the policy concerns behind limiting juror contact,
denied the discovery motion in exercise of its discretion.
11
III.
CONCLUSION
Carver has failed to show any error in the summary dismissal of his second amended
petition for post-conviction relief. The judgment summarily dismissing Carver’s second
amended petition for post-conviction relief is affirmed.
Judge GUTIERREZ and Judge Pro Tem WALTERS CONCUR.
12
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161 F.3d 22
Casev.I.R.S.*
NO. 98-8044
United States Court of Appeals,Eleventh Circuit.
October 01, 1998
1
Appeal From: N.D.Ga. , No.97-01141-1-CV-CAM
2
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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60 So.3d 401 (2011)
GLOBAL FX, INC.
v.
BANCO DE DESARROLLO RURAL, S.A.
No. 3D10-554.
District Court of Appeal of Florida, Third District.
March 9, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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820 F.2d 1225
Mascot Realty Corp.v.American Economy Ins. Co.
85-1849
United States Court of Appeals,Sixth Circuit.
6/16/87
1
E.D.Mich.
AFFIRMED
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Filed 7/12/13 Bielasz v. Mestler Construction CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROGER BIELASZ et al., D059565
Plaintiffs, Cross-defendants and
Respondents,
(Super. Ct. No. 37-2009-00052477-
v. CU-BC-NC)
MESTLER CONSTRUCTION, INC.,
Defendant, Cross-complainant and
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Thomas P.
Nugent, Judge. Affirmed.
Law Offices of Jerome J. Schiefelbein, Jerome J. Schiefelbein; Law Offices of
James E. Swingley and James E. Swingley for Defendant, Cross-complainant and
Appellant.
McDonnell & Associates, Michael B. McDonnell and Douglas M. Fieldfor
Plaintiffs, Cross-defendants and Respondents.
Mestler Construction, Inc. (Mestler) appeals following a jury verdict against it in a
lawsuit brought by Roger Bielasz and Dena Bielasz (the Bielaszes) finding that Mestler
breached contracts to design a residence and to perform building pad preparation work.
Mestler contends that the trial court prejudicially erred by denying its motion in limine to
exclude evidence of the damages that the Bielaszes suffered as a result of the contractual
breaches. As we will explain, we conclude that the trial court was within its discretion to
deny the motion in limine and to admit the Bielaszes' evidence of damages. Accordingly,
we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties' Dispute and the Jury Verdict
As alleged in the parties' pleadings, Mestler is a licensed contractor who
(1) performed design work for a home that the Bielaszes planned to build after their
former home was destroyed in a wildfire, and (2) performed building pad preparation and
other work to prepare for construction of the home. The Bielaszes sued Mestler,
alleging — among other things — that Mestler breached the design contract by
(1) preparing plans for a home that was in excess of the square footage specified by the
Bielaszes, and (2) performing work during the pad preparation that made the pad unsafe
and created a potential for rockslides. In their first amended complaint, the Bielaszes
asserted eight causes of action against Mestler: (1) negligence; (2) breach of contract;
(3) breach of the covenant of good faith and fair dealing; (4) declaratory relief;
(5) intentional interference with prospective economic relations; (6) fraud; (7) slander of
2
title; and (8) trespass to chattel. Mestler filed a cross-complaint for breach of contract
and equitable restitution.
The matter proceeded to trial, and the jury found in favor of the Bielaszes on a
breach of contract theory. In a special verdict form, the jury found that Mestler breached
a contract to design the house; breached a contract for preparation of the lot; and
breached a contract to design a retaining wall. The jury awarded damages in the amount
of (1) $61,800 for breach of the contract for the house design, and (2) $37,500 for breach
of the contract for lot preparation. The jury awarded no damages in connection with the
contract to design a retaining wall.
B. The Relevant Discovery
This appeal focuses on Mestler's contention that the trial court should have
excluded evidence of damages at trial because of the Bielaszes' purportedly deficient
responses to certain discovery propounded by Mestler. We therefore describe the
relevant discovery.
In February 2010, the Bielaszes responded to form interrogatories propounded by
Mestler.
In response to form interrogatory No. 7.1, which asked for a description of the
property damaged, the nature of the damage, the amount of the damage, and how the
amount was calculated, the Bielaszes provided an extensive description of the damage
caused by the improper excavation of the building pad, set forth in several paragraphs.
Among other things, the response stated that "[a]ll excavation work . . . had to be
redone," but that "[t]he work that is being redone is currently ongoing so the exact cost is
3
unknown at this time." The Bielaszes then provided projected costs for some of the
work, including (1) approximately $72,000 to remove boulders necessary to stabilize the
building pad, and (2) in excess of $27,000 for the design, engineering and permit costs
for a new retaining wall.
Form interrogatory No. 7.2 asked, "Has a written estimate or evaluation been
made for any item of property referred to in your answer to [form interrogatory No. 7.1],"
and form interrogatory No. 7.3 asked if any item of property had been repaired and
inquired about the repair cost. To these interrogatories, the Bielaszes responded that
"[e]valuation, repair, and estimates are presently in the process."
Form interrogatory No. 9.0 asked about any other damages being claimed by the
Bielaszes. They responded by providing a description of the type of expenses caused by
the flawed design plans for the house. Specifically as to the amount of damages incurred,
they stated that "[a]s discovery is still continuing[,] the exact amount is unknown at this
time[;] however it is known that it is no less than $50,000 that the Bielaszes paid to
Mestler for services that were rendered useless."
During Roger Bielasz's deposition several months later on September 21, 2010,
which was two days before the discovery cutoff date, counsel for Mestler referred to
some of the earlier responses to form interrogatories and asked Mr. Bielasz whether there
were "evaluations, repairs, and estimates as described in [interrogatory No. ]7.2 that were
done sometime after" the date of the February 2010 interrogatory responses. Mr. Bielasz
answered, "I have not done all those estimates as of yet." However, counsel for the
Bielaszes interjected that that "[t]here are some from the contractors and stuff," and
4
Mr. Bielasz followed up by stating, "Correct. They have not been collated and organized
into a total."
C. Mestler's Motion in Limine to Exclude Evidence of the Bielaszes' Damages
On October 25, 2010, Mestler filed a motion in limine, which requested an order
precluding the Bielaszes "from introducing evidence of and/or making reference to any
damages claimed to have been sustained by [the Bielaszes], or any reference to the
amount of damages [the Bielaszes] claim to have sustained as a result of any act or
omission by [Mestler]." Mestler contended that the exclusion of evidence was required
because the Bielaszes "have failed and refused to identify the amount of their damages
and/or the manner of calculation of their claimed damages in response to timely and
proper written discovery, or in response to proper deposition questions asked just two
days prior to the discovery cut[]off date."
The trial court denied the motion. In its comments, the trial court pointed out that
bringing a motion to compel is required when a party does not adequately respond to
discovery; that the Bielaszes did produce at least 2,700 documents and had indicated that
that they were prepared to provide documentation about damages prior to trial;1 and that
it was improper to raise discovery disputes for the first time on the eve of trial. Further,
the trial court observed that it "would be a short trial" if the plaintiffs were precluded
from putting on evidence of damages.
1 It is unclear whether the Bielaszes filed a written opposition to the motion in
limine, as Mestler did not include it in the appellate record.
5
Prior to the beginning of trial, counsel for Mestler stated a "continuing and
standing objection to the admission of any evidence by the [Bielaszes] of the amount of
damages they incurred as the result of my clients' alleged conduct or the manner in which
it was calculated."
During trial, the Bielaszes presented evidence about the damages that they
suffered as a result of Mestler's alleged breach of contract. The jury relied on that
evidence to award damages to the Bielaszes in the amount of $99,300.
II
DISCUSSION
The sole issue that we resolve in this appeal is whether the trial court erred in
denying Mestler's motion in limine to exclude evidence of the Bielaszes' damages.2
A. Standard of Review
As an initial matter, we address the proper standard of review. Regardless of
whether the trial court's ruling is best characterized as a ruling on a request to exclude
evidence or a ruling on a request to impose a discovery sanction, we apply an abuse of
discretion standard of review. (Pannu v. Land Rover North America, Inc. (2011) 191
2 Mestler's appellate brief identifies several interrelated appellate issues, each of
which is based on a common fundamental premise, namely that the trial court erred in
denying the motion in limine to exclude the Bielaszes' evidence of damages.
Specifically, in addition to its general argument that the motion in limine was improperly
denied, Mestler argues that because evidence of damages was improperly admitted,
(1) the jury should not have been asked on the special verdict form about the amount of
the Bielaszes' damages; and (2) insufficient evidence supports the jury's findings
regarding damages. Because we conclude that the trial court did not err in admitting
evidence of the Bielaszes' damages, we need not, and do not, address either of Mestler's
additional appellate issues.
6
Cal.App.4th 1298, 1317 ["Trial court rulings on the admissibility of evidence, whether in
limine or during trial, are generally reviewed for abuse of discretion."]; Bell v. H.F. Cox,
Inc. (2012) 209 Cal.App.4th 62, 76 [a ruling on a motion to exclude witness testimony at
trial as an evidence sanction for misuse of the discovery process is reviewed for abuse of
discretion].)
Mestler asserts two different theories as to why a de novo standard of review is
appropriate. It first argues that the de novo standard of review applicable to questions of
statutory interpretation applies here because the trial court's ruling involved the
interpretation of the Evidence Code. (See Sinaiko Healthcare Consulting, Inc. v. Pacific
Healthcare Consultants (2007) 148 Cal.App.4th 390, 401 [issues of statutory
interpretation arising in the review of an order imposing discovery sanctions is reviewed
de novo].) We disagree. Nothing in the trial court's ruling or in our review presents an
issue of statutory interpretation. Second, Mestler states generally that "[w]here there is
no factual dispute, independent appellate review is appropriate." However, the cases it
cites for that proposition have nothing to do with the admission of evidence or the
imposition of evidentiary sanctions as a result of discovery abuses. (People v. Avila
(2006) 38 Cal.4th 491, 529 [review of ruling to exclude a juror for cause]; People ex rel
Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144
[review of a ruling to disqualify a party's counsel].) As we have explained, those types of
rulings are reviewed under an abuse of discretion standard.
7
B. The Trial Court Did Not Err in Denying the Motion in Limine to Exclude Evidence
of the Bielaszes' Damages
We now turn to Mestler's main argument — that the trial court should have
excluded evidence of the Bielaszes' damages based on "undisputed facts of discovery
abuse" that were purportedly demonstrated by the Bielaszes' responses to Mestler's form
interrogatories and by Mr. Bielasz's statements during his deposition regarding damages.
1. Mestler Did Not Establish an Abuse of the Discovery Process
The fundamental problem with Mestler's argument is that Mestler has not
established any discovery abuses by the Bielaszes.
Mestler contends that the Bielaszes failed to provide information about their
damages in their responses to the form interrogatories. That is not accurate. The
Bielaszes provided lengthy responses that thoroughly discussed the factual basis for their
damage claims against Mestler. Further, to the extent possible at the time, the Bielaszes
quantified their damages by providing specific monetary amounts relating to some of the
items. There is no indication in the record that the Bielaszes were untruthful in
responding to the form interrogatories or omitted any information that was available to
them.
Although Mestler takes issue with the Bielaszes' failure to provide any written
estimates of their damages, there is no indication in the record that any such written
estimates existed at the time. Therefore, the responses to the form interrogatories
properly stated that "[e]valuation, repair, and estimates are presently in the process." By
responding in this way, the Bielaszes followed the statutory requirement that responses
8
should be as "complete and straightforward as the information reasonably available to the
responding party permits," and that "[i]f an interrogatory cannot be answered completely,
it shall be answered to the extent possible." (Code. Civ. Proc., § 2030.220, subds. (a),
(b).)
It is well established that as long as responses to interrogatories contain the
information that is currently known to the responding party, that party will not be
prevented at trial "from presenting subsequently discovered facts." (Singer v. Superior
Court of Contra Costa County (1960) 54 Cal.2d 318, 326.) Therefore, the Bielaszes
properly presented evidence at trial about damages developed after they responded to the
form interrogatories.
If Mestler means to argue that the Bielaszes were required to provide additional
information about their damages as that information became available, there is no merit
to that position. Code of Civil Procedure specifically prohibits continuing interrogatories
that require a party to "supplement an answer . . . that was initially correct and complete
with later acquired information." (Id., § 2030.060, subd. (g).) Mestler was required to
propound supplemental interrogatories if it wanted to know if there were additional
investigations or factual developments that would change the original responses given by
the Bielaszes, but there is no indication that it did so. (Id., § 2030.070, subd. (a) ["a party
may propound a supplemental interrogatory to elicit any later acquired information
bearing on all answers previously made by any party in response to interrogatories"].)
The record also reveals no abuse of the discovery process with respect to how
Mr. Bielasz answered questions about damages at his deposition. As we have described,
9
when counsel for Mestler asked Mr. Bielasz whether he had prepared a written estimate
of damages as referred to in form interrogatory No. 7.2, Mr. Bielasz responded that he
had not yet prepared any such estimate. Mestler has presented no evidence suggesting
that Mr. Bielasz's answer was untruthful. Further, as shown in other statements during
Mr. Bielasz's deposition, Mestler did receive all of the existing evidence concerning the
Bielaszes' damages through the Bielaszes' extensive document production.3 The trial
court noted in its ruling on the motion in limine that the Bielaszes had produced
numerous documents. 4
3 In the excerpt from Mr. Bielasz's deposition that appears in the record, after
confirming that the Bielaszes had complied with a request for production of documents,
counsel for Mestler asked, "That means that if we look in the documents that you
provided to us, we will find all of the evidence which you have with respect to the
damages incurred by you, for example?" Mr. Bielasz replied, "Correct." In its appellate
brief, Mestler argues that there is no evidence in the appellate record that the Bielaszes
produced all of the documents concerning their damages. We disagree. Mr. Bielasz's
deposition provides that evidence. Mestler also contends that the documents produced by
the Bielaszes could not have contained evidence concerning the Bielaszes' damages
because the responses to the form interrogatories "indicate[] the non-existence of such
documents." Mestler is wrong. The form interrogatories do not ask whether any
documents exist evidencing the Bielaszes damages; instead they ask about the existence
of a written estimate of damages.
4 Mestler also relies on a provision in the Code of Civil Procedure under which a
complaint for money damages must include a statement as to the amount demanded. (Id.,
§ 425.10, subd. (a)(2).) Citing this provision, Mestler contends that the Bielaszes were
required to respond to discovery requests about their damages by providing exact
information about the amount of damages they were claiming. We reject that argument
because Code of Civil Procedure section 425.10, subdivision (a)(2) concerns the
standards for deciding whether a complaint is properly pled, not for whether a plaintiff
has a specific obligation to produce evidence of damages during discovery. Except in a
default judgment where the relief granted to the plaintiff "cannot exceed that demanded
in the complaint," in all other cases "the court may grant the plaintiff any relief consistent
with the case made by the complaint and embraced within the issues." (Id., § 580,
10
Accordingly, because Mestler did not establish any discovery abuse by the
Bielaszes, the trial court was well within its discretion to reject Mestler's motion in limine
to exclude evidence of damages as a remedy for the Bielaszes' purported discovery
abuses.
2. Mestler's Remaining Arguments Lack Merit
Mestler asserts additional arguments to support its contention that the trial court
erred in denying the motion in limine. As we will explain, none of the arguments has
merit.
First, Mestler takes issue with the trial court's comment that Mestler should have
earlier dealt with perceived discovery abuses by bringing a motion to compel rather than
seeking the drastic remedy of an evidentiary sanction on the eve of trial. According to
Mestler, the trial court's comments were improper in that Mestler could not have brought
a motion to compel further responses from the Bielaszes because they claimed that they
did not have any additional information to turn over. This argument is puzzling because
Mestler clearly believes that the Bielaszes did something wrong in responding to
Mestler's discovery requests that constituted an abuse of the discovery process. Although
Mestler is not clear about what it thinks the Bielaszes should have done differently, it was
Mestler's responsibility to file a discovery motion to obtain an order compelling the
Bielaszes to respond the discovery in the manner that Mestler believed to be required. As
the trial court properly recognized, if Mestler had acted diligently during the discovery
subd. (a), italics added.) Thus, the omission from a complaint of a precise damages
figure does not limit the ability of the plaintiff to obtain a judgment awarding damages.
11
process, the problem with the Bielaszes perceived discovery abuses could have been
addressed and resolved without requiring Mestler to seek an order excluding all evidence
of damages from the trial.5
In a related argument, Mestler contends that the trial court improperly denied the
motion in limine because it incorrectly viewed a motion in limine as an improper forum
for seeking a discovery sanction. This argument fails because it misapprehends the trial
court's ruling. Mestler apparently relies on the trial court's comment that "this isn't the
time to take care of those issues," which followed the trial's observation that Mestler
should have brought a motion to compel. As we understand the trial court's comments, it
was not stating that a motion in limine is always an improper forum for obtaining
exclusion of evidence from trial as a result of discovery abuses. Indeed, a trial court
could reasonably choose to make such an order in ruling on a motion in limine if the
party seeking that order had diligently pursued all other avenues of remedying the
discovery abuses during the pretrial discovery process, and if the opposing party received
the notice and opportunity to respond required by the Code of Civil Procedure prior to the
imposition of evidentiary sanctions. (See Code Civ. Proc., §§ 2023.030, subd. (c),
2023.040; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 216-217 [trial court
granted motion in limine to exclude all evidence of economic loss as a sanction for
party's willful noncompliance with court-ordered discovery after extensive discovery
5 To the extent Mestler argues that there was insufficient time to bring a motion to
compel regarding Mr. Bielasz's deposition, which took place two days before the
discovery cutoff date, the trial court reasonably pointed out that an ex parte procedure
was available to Mestler.
12
motion practice].) However, the trial court indicated that in this particular case it was
improper for Mestler to bring up the issue of discovery abuses for the first time in the
context of a motion in limine because those issues could have been addressed more
efficiently and effectively at an earlier stage of the litigation. That observation is
reasonable and well grounded, and the trial court was thus well within its discretion to
rely on Mestler's belated attention to discovery issues as one ground to deny the request
to exclude evidence of the Bielaszes' damages.
Finally, Mestler argues that the trial court should have excluded evidence of the
Bielaszes' damages pursuant to Evidence Code section 352. However, Mestler did not
develop that argument in the trial court, and accordingly it may not rely on Evidence
Code section 352 as a ground for its appellate argument. "Evidence Code section 353,
subdivision (a) allows a judgment to be reversed because of erroneous admission of
evidence only if an objection to the evidence or a motion to strike it was 'timely made and
so stated as to make clear the specific ground of the objection,' " and " ' " 'defendant's
failure to make a timely and specific objection' on the ground asserted on appeal makes
that ground not cognizable." ' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)
13
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.
14
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579 S.E.2d 384 (2003)
357 N.C. 61
Karen Ann BLANKENSHIP and Mike Thompson
v.
TOWN AND COUNTRY FORD, INC. and Ford Credit Leasing Company, Inc.
No. 92P03.
Supreme Court of North Carolina.
March 27, 2003.
Harvey L. Cosper, Jr., Charlotte, for Town & Country Ford, Inc.
David Q. Burgess, for Blankenship & Thompson.
Prior report: 155 N.C.App. 161, 574 S.E.2d 132.
ORDER
Upon consideration of the petition filed by Defendant (Town and Country Ford, Inc.) 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:
*385 "Denied by order of the Court in conference, this the 27th day of March 2003."
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00042-CR
ALESHA DAWN KELLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Hunt County, Texas
Trial Court No. CR1200591
Before Morriss, C.J., Carter and Moseley, JJ.
ORDER
Alesha Dawn Keller appeals from her conviction of driving while intoxicated. Her notice
of appeal was timely filed March 4, 2013. The clerk’s record was filed April 5, and the
reporter’s record was filed April 26, 2013, making the appellant’s brief due May 28. Counsel is
appointed.
Appellate counsel filed two motions to extend the briefing deadline which were granted,
leaving a due date of July 19, with a notation that no more extensions would be granted. Counsel
then filed another request for extension. We denied that motion and ordered the brief filed on or
before August 30, 2013. The brief has not been filed, and counsel has not again contacted this
Court.
Because the brief has not been filed and because we have heard nothing further from
appellant’s counsel, we abate this case to the trial court pursuant to Rule 38.8(b) of the Texas
Rules of Appellate Procedure for a hearing to determine why counsel has not filed the brief,
whether the brief can be promptly filed with this Court, whether Keller desires to prosecute her
appeal, and whether she is indigent. See TEX. R. APP. P. 38.8(b)(2). The hearing is to be
conducted within fifteen days of the date of this order. The trial court may also address other
matters as it deems appropriate, including appointing different counsel for appellant, if
necessary.
The trial court’s findings and recommendations on the issues set forth above shall be
entered into the record of the case and presented to this Court in the form of a supplemental
clerk’s record within fifteen days of the date of the hearing. See TEX. R. APP. P. 38.8(b)(3). The
2
reporter’s record of the hearing shall also be filed with this Court in the form of a supplemental
reporter’s record within fifteen days of the date of the hearing. See id.
All appellate timetables are stayed and will resume on our receipt of (1) the appellant’s
brief or (2) the supplemental appellate record.
IT IS SO ORDERED.
BY THE COURT
Date: September 12, 2013
3
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#26654-a-JKK
2014 S.D. 32
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
BRIAN HINES and BRADLEY HINES, Plaintiffs and Appellants,
v.
RODNEY HINES, SUSAN HINES
ZIEGLER, MAX HINES, ESTATE OF
TEX HINES and BRENDA TJEERDSMA, Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HYDE COUNTY, SOUTH DAKOTA
****
THE HONORABLE KATHLEEN F. TRANDAHL
Judge
****
GEORGE H. DANFORTH
Huron, South Dakota
and
MICHELE K. BENNETT
Huron, South Dakota Attorneys for plaintiffs
and appellants.
DANIEL K. BRENDTRO
WILLIAM D. SIMS of
Zimmer, Duncan & Cole, LLP
Sioux Falls, South Dakota Attorneys for defendants
and appellees.
****
CONSIDERED ON BRIEFS
ON APRIL 28, 2014
OPINION FILED 06/11/14
#26654
KONENKAMP, Justice
[¶1.] In this action to reform a warranty deed, the circuit court ruled that
the plaintiff did not present clear and convincing evidence that the deed failed to
express the intent of the deceased grantors.
Background
[¶2.] Joseph and C. Elaine Lingscheit had numerous landholdings in Hyde
and Hand counties in South Dakota. Over the years, the Lingscheits either gifted
or sold over 3,000 acres to Elaine’s children, who were also Joseph’s stepchildren.
Of particular relevance here are two conveyances, one in 1980 and another in 2001.
In 1980, the Lingscheits transferred 240 acres in fee simple to their seven children
as tenants in common. The land was described as: East Half of the Southeast
Quarter (E1/2 SE1/4) of Section 36, Township 111, Range 71 (80 acres), Northeast
Quarter (NE1/4) of Section 1, Township 110, Range 71 (160 acres). The children in
turn transferred a life estate to the Lingscheits. Then in 2001, the Lingscheits
executed a warranty deed conveying in fee simple 240 acres to their son, Brian
Hines. The land was described as: South Half (S1/2) of the Northeast Quarter
(NE1/4) of Section 1, Township 110, Range 71 (80 acres), Southeast Quarter (SE1/4)
of Section 1, Township 110, Range 71 (160 acres). Unknown to the Lingscheits or
their children, the 2001 deed conveyed 80 acres that had been previously conveyed
to all seven children in 1980, in which acres the Lingscheits only held a life estate
interest.
[¶3.] Elaine died in 2001; Joseph died in 2005. Through the probate
proceedings for both Elaine and Joseph, the Lingscheit children discovered that
-1-
#26654
their parents had twice transferred the same 80-acre tract of land in Hyde County.
Also during the probate proceedings, the children learned that the Lingscheits still
owned, in fee simple, a different 80-acre tract of pasture land. The children had
thought their parents either conveyed or sold all their pasture land before they died.
At issue in this case is the ownership of the 80-acre tract conveyed twice and the 80-
acre tract never conveyed.
[¶4.] After the mistake in the 2001 deed was discovered, Brian Hines, joined
by Bradley Hines, asked the remaining five children (the Siblings) to execute a new
warranty deed to Brian, which would give Brian the 80 acres owned by the
Lingscheits in fee simple and remove the 80 acres that had been transferred to all
seven children in 1980. The Siblings refused, asserting that Brian merely had a life
estate in the 80 acres transferred by the 2001 deed and that the 80 acres owned by
the Lingscheits in fee simple passed to the seven children equally. Brian and
Bradley brought suit against the Siblings asking the circuit court to reform and
revise the 2001 warranty deed. Brian contended that reformation was necessary
because the Lingscheits intended to convey to him 240 acres of pasture land in
Hyde County, and that this intent would not be accomplished unless Brian received
the 80 acres owned by the Lingscheits in fee simple.
[¶5.] Before trial, the parties submitted a statement of stipulated facts.
Those facts related that the parties were presently engaged in a separate civil
partition action in Hand County, involving 1,600 acres of pasture land in both Hand
and Hyde counties. They agreed that ownership of the 80-acre tract in Hyde
County must be decided before the civil partition action could continue. They also
-2-
#26654
agreed that the 2001 warranty deed was prepared by Attorney Galen Gillette, who
“filed the deed for record, and verified the descriptions in the deed by letter dated
February 16, 2006.” Galen Gillette died in 2007.
[¶6.] In the bench trial, Brian called no witnesses. He relied on ten exhibits
and the stipulated facts. Included in those exhibits were Galen Gillette’s
handwritten notes from his meeting with Elaine, Joseph, Brian and Brian’s spouse
related to the 2001 warranty deed. Relying on these notes as proof of the
Lingscheits’ intent, Brian pointed to the notation, “Want Gift 240 Acres of Hyde
County Land to BRIAN HINES.” The notes also included diagrams or boxes with
notations, which the parties agree are not clearly discernable. Nonetheless, Brian
asserted that these diagrams and notations indicated that the Lingscheits did not
intend to give Brian only a life estate in the 80 acres, but instead they intended to
give him 240 acres of pasture land.
[¶7.] The Siblings called Rodney Hines to testify about how the family
treated the pasture land in Hyde County. According to Rodney, the 240 acres
purportedly transferred to Brian in 2001, were referred to as the “south pasture”
and the 240-acre tract that encompassed the 80-acre tract owned in fee simple by
the Lingscheits, was referred to as the “north pasture.” Rodney described fences
surrounding and separating the north and south pastures. Each pasture also had
only one water source. The water source for the north pasture was within the 80
acres sought by Brian, and therefore, transferring that land to Brian would remove
the water source for the remaining 160 acres in the north pasture. Rodney believed
that the Lingscheits would never have transferred land without a water source, and
-3-
#26654
therefore, did not intend to transfer to Brian the 80 acres they owned in fee simple.
The Siblings also called Brian to testify. He confirmed that the land was referred to
as the north and south pasture. But he recalled that the two pastures were
operated as one and that they “may have separated them to keep different cows and
bulls separate from other cows and bulls[.]”
[¶8.] Following the trial, the court issued findings of fact and conclusions of
law, incorporating the parties’ stipulated facts. It also took judicial notice of the
Hand County civil partition action and of the Last Wills and Testaments of Joseph
and Elaine. It found that “Rodney testified credibly that during the time that their
family has owned this property, it was divided into two separate and distinct
pastures.” It further found that there is one water source on the north pasture
within the 80 acres Brian sought and another water source on the south pasture
within the land conveyed to Brian in 2001 in fee simple. In regard to Galen
Gillette’s notes, the court recognized that the “document that purports to be the
notes” from the meeting, indicate that: “(1) Want Gift 240 Acres of Hyde County
Land to BRIAN HINES.” According to the court, the drawing in the notes “clearly
shows a box around the legal description for the south pasture with the words
‘BRIAN HINES’ next to that box.” But the court remarked that there was no
mention in the notes of the 80 acres in the north pasture. Based upon the exhibits
and testimony, the court concluded that Brian did not present clear and convincing
evidence that the 2001 deed should be reformed. In the court’s view, “there is no
evidence that the Lingscheits intended to gift Plaintiff Brian Hines the W1/2 SE1/4
of Section 36, Township 111, Range 71, which property is located in the north
-4-
#26654
pasture. This description does not appear in the notes of the attorney, and there is
no evidence that this 80 acres of land in Hyde County was discussed at the
meeting.” The court denied Brian and Bradley’s request to reform the 2001 deed
and ruled that this deed transferred to Brian the title owned by the Lingscheits in
2001, namely a life estate interest.
[¶9.] Brian appeals on the ground that the circuit court abused its discretion
when it failed to reform the 2001 deed to reflect the Lingscheits’ intent at the time
of the preparation of the deed. We review a circuit court’s decision to grant or deny
a request to reform a contract under the abuse of discretion standard. LPN Trust v.
Farrar Outdoor Adver., Inc., 1996 S.D. 97, ¶ 13, 552 N.W.2d 796, 799 (citation
omitted). An abuse of discretion is generally understood as “a fundamental error of
judgment, a choice outside the range of permissible choices, a decision, which, on
full consideration, is arbitrary or unreasonable.” Arneson v. Arneson, 2003 S.D. 125,
¶ 14, 670 N.W.2d 904, 910.
Analysis and Decision
[¶10.] Brian poses the following question: did the “Lingscheits, at the time of
the preparation of the 2001 warranty deed, want [Brian] Hines to have only a life
estate interest in 80 acres of land? If yes, no reformation of the deed; if no, then
reformation is warranted.” But the issue is more complex. Even if we accept that
the Lingscheits did not want Brian to have only a life estate in the 80-acre tract, the
question remains: would the Lingscheits have, upon learning of the mistake in the
2001 deed, conveyed to Brian the 80-acre tract they owned in fee simple? In answer
to that, Brian maintains that his parents would have conveyed to him the non-
-5-
#26654
contiguous 80 acres, because the record clearly establishes that the Lingscheits
wanted him to have 240 acres of pasture land in Hyde County. He claims,
therefore, that the court abused its discretion when it “overvalued” Rodney’s
“testimony at the expense of [an] adequate consideration of the entire record” and
failed to give sufficient weight to the language of the 2001 warranty deed and Galen
Gillette’s notes.
[¶11.] “The remedy of reformation is given when the minds of the parties
have met on the terms of the contract they intended but the writing fails to express
that intention.” Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 152
(S.D. 1986) (citing Burke v. Bubbers, 342 N.W.2d 18 (S.D. 1984); Garber v. Haskins,
84 S.D. 459, 172 N.W.2d 721 (1969); Essington v. Buchele, 79 S.D. 544, 115 N.W.2d
129 (1962)). Reformation does not make the contract for the parties, but rather
revises the contract to reflect the parties’ intended agreement. Id. A contract may
be reformed when there is “fraud or mutual mistake of the parties, or a mistake of
one party which the other at the time knew or suspected[.]” SDCL 21-11-1. Yet
there is a presumption that the writing accurately reflects the parties’ intent, and
therefore, those seeking reformation must prove their “case by clear and convincing
evidence.” Enchanted World Doll Museum, 398 N.W.2d at 152 (citation omitted);
see also Nw. Nat’l Bank of Sioux Falls v. Brandon, 88 S.D. 453, 458-59, 221 N.W.2d
12, 15 (1974).
[¶12.] From our review of the evidence, we conclude that the circuit court did
not abuse its discretion when it ruled that Brian failed to present clear and
convincing evidence that the 2001 deed should be reformed. Brian presented no
-6-
#26654
evidence that, upon learning of the mistake in the 2001 deed, the Lingscheits would
have conveyed to Brian a non-contiguous 80-acre tract of land, which had the only
water source for the pasture land surrounding it. Rather, Brian relied on inferences
he believed the circuit court should have made on the evidence. Yet our review is
for abuse of discretion, and therefore, we defer to the circuit court’s weighing of the
evidence and judging of the credibility of the witnesses. See Fuerstenberg v.
Fuerstenberg, 1999 S.D. 35, ¶ 22, 591 N.W.2d 798, 807 (citations omitted).
[¶13.] Here, the court found credible Rodney’s testimony that the Lingscheits
treated the land in Hyde County as two separate and distinct north and south
pastures. Indeed, when Brian testified, he agreed that a fence separated these two
pastures. The court further found persuasive that though Gillette’s notes indicated
that the Lingscheits wanted to convey to Brian 240 acres of pasture land in Hyde
County, the notes made no reference to the 80-acre tract owned by the Lingscheits
in fee simple. Without persuasive evidence of what the Lingscheits would have
done had they learned of the mistake in the 2001 deed, Brian failed to meet his
burden of proof.
[¶14.] Affirmed.
[¶15.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
-7-
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800 F.2d 1143
*U.S.v.Abbott
85-2501
United States Court of Appeals,Fifth Circuit.
9/3/86
1
W.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
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Subsets and Splits