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487 F.2d 1205
159 U.S.App.D.C. 334
UNITED STATES of Americav.Michael H. HINKLE, Appellant.
No. 72-1990.
United States Court of Appeals,District of Columbia Circuit.
Argued Sept. 5, 1973.Decided Nov. 7, 1973.Rehearing Denied Dec. 4, 1973.
Robert L. Weinberg, Washington, D. C., and John F. Mathews, appointed by this Court, for appellant.
Lee Cross, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Warren L. Miller, Asst. U. S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
PER CURIAM:
1
Appellant was indicted for second degree murder. The evidence showing that Hinkle stabbed the decedent was undisputed. Hinkle, himself, testified that he had no recollection of the events that took place on the evening in question because he was intoxicated. His defense rested on claims of self-defense, provocation, lack of malice, and a contention that the fatal wound was not the one he administered, but one that occurred during the surgery occasioned by the initial wound. The jury found him guilty as charged, and he was sentenced to five to twenty years, to run concurrently with sentences in two other cases.
2
On appeal, Hinkle raises several challenges to his conviction: failure to hold a coroner's inquest into the cause of death; improper jury instructions on the definition of malice; failure to allow the jury to consider appellant's intoxication in deciding whether he acted with sufficient "recklessness" to justify a finding of second degree murder; and failure to grant a subpoena duces tecum for production of the deceased's juvenile records.
3
We do not address the issues of whether appellant's first and last contentions constitute error, for we find that even if they were error, in the context of this case they were harmless. Although appellant was entitled to a coroner's inquest, Crump v. Anderson, 122 U.S.App.D.C. 173, 352 F.2d 649 (1965), the likelihood that the inquest if held would have produced evidence tending to exculpate him is so remote that we see no justification for reversing, and in effect (since a coroner's inquest is now impossible),1 dismissing his homicide charge. Similarly, even if Hinkle were entitled to subpoena the deceased's juvenile records, it seems inconceivable that they would be of any assistance to him. He claims that they might show prior acts that indicate a propensity toward violence, and thereby buttress his claim of self-defense.2 But appellant's case on self-defense was virtually non-existent, and thus it does not appear that he was harmed by being denied the juvenile records.
4
Appellant's claim that the trial court gave an improper jury instruction on malice is a troubling one. He requested the proper instruction as set forth in our decision in United States v. Bush, 135 U.S.App.D.C. 67, 416 F.2d 823 (1969). Bush prohibited use of the phrase " 'malice' is a state of mind showing a heart regardless of social duty," and in subsequent cases we have advised that the Bush instruction should be used "to avoid a claim of reversible error." Carter v. United States, 141 U.S.App.D.C. 259, 437 F.2d 692, 697 (1970).3 In the face of these decisions, defense counsel's request, and his subsequent objection, the court still gave the improper "social duty" instruction. The Government now admits that the court's instruction was error, but argues it was harmless. We are concerned that the court would simply ignore the proper instruction in these circumstances, but since death was caused by a knife wound, we do not find that appellant was harmed by the erroneous instruction.4 We hope that in the future, trial courts do not place us in this sort of difficult situation.
5
We take this occasion to amplify on Bush by condemning interrelated portions of the "old" standard instruction:
6
"Malice" is a state of mind showing a heart regardless of social duty, a mind deliberately bent on mischief, a generally depraved, wicked and malicious spirit.
7
In Bush, as indicated above, we set forth the need for eliminating the phrase whereby any violation of "social duty" or "duty" might be equated to malice, even though not dangerous to life or limb. On further reflection, we conclude that similar problems of over-reach are presented by the segment that defines malice in terms of "a mind deliberately bent on mischief, a generally depraved, wicked and malicious spirit." Juries are to determine whether specific acts have been committed with requisite culpability, not whether defendants have generally depraved, wicked and malicious spirits. A sound replacement for the original sentence would be simply this:
8
"Malice" is a state of mind showing a heart that is without regard for the life and safety of others.
9
Here again we recognize that there are cases where the old instruction could lead a jury to misconstrue its role or be otherwise prejudicial; however, the facts before us do not present such a case. Although we do not reverse Hinkle's conviction, we trust that our comments on the deficiency of the old "standard" instruction will be given heed.
10
Appellant also alleges error in the failure of the trial court to instruct the jury as to the difference in the nature of recklessness required for second degree murder, and that required for manslaughter. Although we do not foreclose consideration of this issue in an appropriate case, the facts here do not justify serious consideration of the matter at this time.
11
Otherwise we find appellant's trial without error. His conviction is therefore
12
Affirmed.
1
The office of coronor and the statutory requirement of an inquest have been abolished in the District of Columbia
2
See Evans v. United States, 107 U.S.App.D.C. 324, 277 F.2d 354 (1960)
3
See also United States v. Lumpkins, 141 U.S.App.D.C. 387, 439 F.2d 494 (1970)
4
See United States v. Johnson, 140 U.S.App.D.C. 54, 433 F.2d 1160, 1164 n. 27 (1970); United States v. McCall, 148 U.S.App.D.C. 444, 460 F.2d 952, 958 (1972)
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This opinion is subject to administrative correction before final disposition.
Before
TANG, LAWRENCE, and KASPRZYK,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Richard G. LANGILL
Aviation Structural Mechanic Second Class (E-5), U.S. Navy
Appellant
No. 201900206
Decided: 29 January 2020.
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Captain Aaron C. Rugh, JAGC, USN. Sentence ad-
judged 15 April 2019 by a special court-martial convened at Naval
Station San Diego, California, consisting of a military judge sitting
alone. Sentence in the Entry of Judgment: confinement for 11
months, 1 and a bad-conduct discharge.
For Appellant: Lieutenant Commander Erin L. Alexander, JAGC,
USN.
For Appellee: Brian K. Keller, Esq.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
1 The convening authority suspended confinement in excess of 8 months pursuant
to a pretrial agreement.
United States v. Langill, NMCCA No. 201900206
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence are correct in law
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866.
However, we note that the Entry of Judgment does not accurately reflect
the disposition of the charges. The Entry of Judgment does not accurately re-
flect the disposition of Specification 3 of the Charge. As referred to special
court-martial, Specification 3 alleged Appellant committed an aggravated as-
sault. Appellant entered a plea of guilty to the lesser-included offense of as-
sault consummated by battery. Prior to announcement of the findings, the
trial counsel moved to withdraw the greater offense to be dismissed without
prejudice upon announcement of sentence, with such dismissal to ripen into
dismissal with prejudice upon completion of appellate review in which the
findings and sentence have been upheld. Although we find no prejudice from
these errors, Appellant is entitled to have court-martial records that correctly
reflect the content of his proceeding. United States v. Crumpley, 49 M.J. 538,
539 (N-M. Ct. Crim. App. 1998). Accordingly, pursuant to this Court’s author-
ity under Rule for Courts-Martial 1111(c)(2), Manual for Courts-Martial,
United States (2019 ed.), the Entry of Judgment shall be modified to properly
reflect the disposition of the greater offense originally alleged in Specification
3.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
2
UNITED STATES NMCCA NO. 201900206
v. ENTRY
OF
Richard G. LANGILL JUDGMENT
Aviation Structural Mechanic
Second Class (E-5)
U. S. Navy As Modified on Appeal
Accused 29 January 2020
On 15 April 2019, the Accused was tried at Naval Station San Diego, California
by a special court-martial, consisting of a military judge sitting alone. Military
Judge Captain Aaron C. Rugh, JAGC, USN, presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses the
convening authority referred to trial:
Charge : Violation of Article 128, Uniform Code of Military Justice,
10 U.S.C. § 928.
Plea: Guilty.
Finding: Guilty.
Specification 1: Assault and Battery on or about 9 August 2018.
Plea: Guilty.
Finding: Guilty.
Specification 2: Assault and Battery on or about 9 August 2018.
Plea: Guilty.
Finding: Guilty.
Specification 3: Aggravated Assault on or about 9 August 2018.
Plea: Not Guilty of aggravated assault, but Guilty of assault
and battery.
United States v. Langill, NMCCA No. 201900206
Modified Entry of Judgment
Finding: Guilty of assault and battery. 2
SENTENCE
On 15 April 2019, a military judge sentenced the Accused to the following:
Confinement for 11 months.
A bad-conduct discharge.
The convening authority suspended confinement in excess of 8 months.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
2 The greater offense of aggravated assault was withdrawn and dismissed without preju-
dice, with such dismissal to ripen into prejudice upon completion of appellate review in which
the findings and sentence have been upheld.
4
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121 F.3d 537
7 A.D. Cases 308, 24 A.D.D. 833, 10NDLR P 258,97 Cal. Daily Op. Serv. 6497,97 Daily Journal D.A.R. 10,619
Cynthia THOMPSON, Plaintiff-Appellant,v.HOLY FAMILY HOSPITAL, a division of Dominican HealthServices, Defendant-Appellee.
No. 96-35336.
United States Court of Appeals,Ninth Circuit.
Submitted Aug. 8, 1997.*Decided Aug. 15, 1997.
William J. Powell, Rosanna M. Peterson, Powell & Morris, Spokane, WA, for plaintiff-appellant.
James M. Kalamon and Michael B. Love, Chase, Hayes & Kalamon, Spokane, WA, for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Chief Judge, Presiding. D.C. No. CV-94-00483-WFN.
Before: WRIGHT, D.W. NELSON, and KOZINSKI, Circuit Judges.
PER CURIAM:
1
Cynthia Thompson appeals the district court's grant of summary judgment in favor of her former employer, Holy Family Hospital. Thompson brought this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (1994), alleging that she was terminated from her position as a registered nurse on the basis of her disabling neck and back strain. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I. Factual and Procedural Background
2
Thompson was employed by Holy Family beginning in October 1984. In April 1987, she sustained a work-related cervical injury which recurred several times between 1988 and 1991. In February 1992, after her most recent injury-related absence, Thompson's personal physician released her to return to work but imposed a restriction from lifting more than 25 pounds on a continuous basis, more than 50 pounds twice a day, and more than 100 pounds once a day. Holy Family previously had accommodated Thompson's injury by modifying her schedule and assigning her to a light-duty position in the Short Stay Unit in May 1989.1 However, when it was informed that the restrictions on her ability to lift were permanent, the hospital determined that Thompson could not provide total patient care and placed her on a leave of absence as of March 1992. Holy Family subsequently notified Thompson of an available position elsewhere in the hospital, but her application for the job was rejected. Thompson contends that she was terminated by Holy Family rather than placed on a leave of absence; she currently is employed in a sales position at a health care equipment company.
3
In December 1994, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Thompson filed a complaint under the ADA and Title VII.2 Holy Family moved for summary judgment on the basis of Thompson's failure to raise a genuine issue of material fact as to whether she is disabled or regarded as disabled within the meaning of the ADA. The district court granted the hospital's motion, and Thompson appeals.
II. Standard of Review
4
We review the grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). We must determine, viewing the evidence in the light most favorable to Thompson's claim, whether there are any genuine issues of fact and whether the district court correctly applied the ADA. Id.
III. Discussion
5
In order to lay claim to the protections of the ADA, Thompson must first demonstrate that she is disabled within the meaning of the Act. Disability is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Thompson claims that her cervical injury substantially limits her ability to lift and to work; the ADA's implementing regulations include both lifting and working within the compass of "major life activities." See 29 C.F.R. Pt. 1630, App. § 1630.2(i) (1996) (lifting); 29 C.F.R. § 1630.2(i) (working).
6
Thompson has not, however, put forth the requisite evidence that she is substantially limited with respect to these activities. In general, "substantially limited" refers to the inability to perform a major life activity as compared to the average person in the general population or a significant restriction "as to the condition, manner, or duration" under which an individual can perform the particular activity. 29 C.F.R. § 1630.2(j)(1)(i)-(ii).
7
In assessing whether Thompson is so limited, we are in territory well-charted by our colleagues in other circuits. A number of courts have held that lifting restrictions similar to Thompson's are not substantially limiting, and we agree. See Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir.1996) (declaring, as a matter of law, that a 25-pound lifting limitation "does not constitute a significant restriction on one's ability to lift, work, or perform any other major life activity"), cert. denied, 520 U.S. 1240, 117 S.Ct. 1844, 137 L.Ed.2d 1048 (1997). see also Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996) (holding that a 25-pound lifting restriction did not substantially limit any major life activities); Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir.1996) (concluding, where a plaintiff could lift and reach as long as he avoided heavy lifting, that he was not substantially impaired).
8
We further conclude that Thompson has not raised a genuine issue of fact as to whether her injury curtails her general ability to work. To establish a substantial limitation, Thompson must demonstrate that she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). The inability to perform one particular job does not constitute such a limitation. Id.
9
Thompson points to no evidence that the restrictions on her ability to perform total patient care preclude her from engaging in an entire class of jobs. Nor does she offer the information relevant to this particularized determination. See 29 C.F.R. § 1630.2(j)(3)(ii); see also Bolton v. Scrivner, 36 F.3d 939, 944 (10th Cir.1994) (affirming summary judgment for the employer where the evidence did not address the plaintiff's "vocational training, the geographical area to which he has access, or the number and type of jobs demanding similar training from which [plaintiff] would also be disqualified"), cert. denied, 513 U.S. 1152, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). The only evidence in the record addressing Thompson's experience and opportunities is the affidavit of a vocational rehabilitation counselor that was submitted by the hospital. After stating his belief that total patient care is not an appropriate assignment for an individual with a 25-pound exertional limitation, the counselor notes that Thompson would be qualified for a number of the positions available to registered nurses in the Spokane, Washington labor market. Thompson has not countered this suggestion with evidence of a significant decline in her ability to obtain employment. Indeed, while no longer performing total patient care, she currently is employed in the health care industry. See Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir.1995) (stating that the major life activity of working "does not mean working at a particular job of that person's choice"); Miller v. AT & T Network Sys., 722 F.Supp. 633, 639 (D.Or.1989) ("[I]n order to come within the protection of the statute, the impairment must substantially limit an individual's employability generally, and not just with respect to one particular job."), aff'd and adopted, 915 F.2d 1404 (9th Cir.1990). Compare Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir.1996) (holding that a reasonable jury could conclude that physical restrictions on lifting, pulling and pushing substantially limited the ability of a coal miner to work in a broad range of jobs including mining and construction.)
10
Recent decisions from other circuit courts support our view that Thompson's conclusory allegations are insufficient to withstand the motion for summary judgment. In McKay v. Toyota Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir.1997), the Sixth Circuit determined that a plaintiff with carpal tunnel syndrome who was incapable of lifting over 20 pounds did not raise a genuine issue as to her disqualification from a broad range of jobs in various classes. The Fifth Circuit reached a similar conclusion in Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir.1995), in which it stated that "the inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to substantial limitation of the activity of working." Id. at 727; see also Daley v. Koch, 892 F.2d 212, 215 (2d Cir.1989) (holding, under the Rehabilitation Act, that unsuitability to be a police officer is not a substantial limitation on working); Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir.1986) (reasoning that a substantially limiting impairment under the Rehabilitation Act must pose a "general disadvantage in [the] search for satisfactory employment").
11
Furthermore, we reject Thompson's assertion that Holy Family "regarded" her as substantially limited in her ability to lift or work. See 42 U.S.C. § 12102(2)(C). "As with real impairments, ... a perceived impairment must be substantially limiting and significant." Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 913 (11th Cir.1996). Even if Holy Family believed that Thompson was incapable of lifting 25 pounds, it does not follow that the hospital regarded her as disabled. We noted previously that a 25-pound restriction does not amount to a substantial limitation on the ability to lift. See Williams, 101 F.3d at 349.
12
Thompson also points to affidavits by her supervisors noting her inability to perform the duties required in a position of total patient care. However, an employer's decision to terminate an employee "based upon the physical restrictions imposed by [her] doctor ... does not indicate that [the employer] regarded [her] as having a substantially limiting impairment." Wooten, 58 F.3d at 386. The evidence does not establish that the hospital viewed Thompson as precluded from performing a broad class of jobs.3 Indeed, Thompson was made aware of another job opportunity at the hospital, and Holy Family submitted a counselor's affidavit enumerating several possible jobs in the nursing industry. See Gordon, 100 F.3d at 913 (determining that, in the context of perceived disabilities, a significant impairment is one that the employer views as foreclosing the type of employment involved); Ray, 85 F.3d at 229-30 (although an employee was terminated because his medical condition prevented him from performing his job as a lift truck operator, there was no evidence that his employer regarded him as incapable of performing another job); Welsh v. City of Tulsa, Okl., 977 F.2d 1415, 1419 (10th Cir.1992) ("[A]n impairment that an employer perceives as limiting an individual's ability to perform only one job is not a handicap under the [Rehabilitation] Act.").
IV. Conclusion
13
For the foregoing reasons, we conclude that Thompson cannot demonstrate a disability within the meaning of the ADA, and we affirm the grant of summary judgment to Holy Family.
14
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a) and Ninth Circuit Rule 34-4
1
In January 1992, an independent vocational counselor performed a job analysis of the registered nurse position in the Short Stay Unit where Thompson was employed and determined that a nurse in her position would have to lift 100 pounds two to three times per week, 50 to 100 pounds one to two times per week, 20 to 50 pounds rarely, 10 to 20 pounds occasionally, and 0 to 10 pounds frequently. He also concluded that the nursing position could not be modified to eliminate exertional requirements in excess of 25 pounds
2
Thompson has since agreed to the dismissal of her Title VII claim
3
In support of her claim, Thompson cites Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996), cert. denied, 520 U.S. 1162, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997), in which this court identified a genuine issue of fact as to whether an employer regarded a claimant as disabled where the claimant had exhibited abusive behavior toward his coworkers, and the employer had received reports diagnosing the employee with depression, anxiety, and stress. Id. However, in contrast to Thompson's exertional limitation, the perception that an employee suffers from a disabling psychiatric condition would disqualify the employee from a broad range of jobs
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FILED
NOT FOR PUBLICATION MAY 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CATHERINE Z. CASS, No. 13-60032
Debtor, BAP No. 12-1513
CHARLES W. DAFF, Chapter 7 Trustee, MEMORANDUM*
Appellant,
v.
JAMES WALLACE; REBECCA
WALLACE; GLORIA SUESS,
Appellees.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Kirscher, Pappas, and Taylor, Bankruptcy Judges, Presiding
Submitted May 5, 2015**
Pasadena, California
Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellant Charles W. Daff, Chapter 7 Trustee (“Trustee”) challenges the
bankruptcy court’s grant of summary judgment in favor of Appellees James Wallace,
Rebecca Wallace, and Gloria Suess (“Judgment Creditors”) on their counterclaims for
declaratory and injunctive relief. We have jurisdiction under 28 U.S.C. § 158(d), and
we affirm on the narrow basis that, despite her fraudulent transfer, Catherine Z. Cass
(“Debtor”) retained an equitable interest in the Residence to which Judgment
Creditors’ lien attached.
As an initial matter, the doctrines of claim preclusion (res judicata) or issue
preclusion (collateral estoppel) do not preclude Judgment Creditors from arguing that
Debtor retained an equitable interest in the Residence. Under either California or
federal preclusion law, a subsequent lawsuit must raise the same claim or issue as the
prior lawsuit. Compare Boeken v. Philip Morris USA, Inc., 48 Cal. 4th 788, 797
(2010) (discussing the elements of California claim preclusion and issue preclusion),
with Littlejohn v. United States, 321 F.3d 915, 919–20, 923 (9th Cir. 2003) (discussing
the elements of federal claim preclusion and issue preclusion). Whether applying the
California “primary rights” test or the federal “transactional nucleus of facts” test to
determine the similarity of claims and issues between the prior lawsuit and the current
lawsuit, Trustee’s arguments fail. See Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir.
2009) (setting forth the California and federal tests).
2
The bankruptcy court held that the Avoidance Judgment1 entered in the prior
lawsuit did not address “(1) whether the judgment lien from the recorded abstract of
judgment attached to the Debtor’s property,” or “(2) whether the judgment lien is
superior to Trustee’s interests,” which are at issue in this case. We must give
substantial deference to the bankruptcy court in its interpretation of its own order, i.e.,
what the Avoidance Judgment did and did not resolve, and we find that the
bankruptcy court did not abuse its discretion in making such a determination. See,
e.g., In re Marciano, 459 B.R. 27, 35 (B.A.P. 9th Cir. 2011) (“We owe substantial
deference to the bankruptcy court’s interpretation of its own orders and will not
overturn that interpretation unless we are convinced that it amounts to an abuse of
discretion.” (quoting In re Res. Tech. Corp., 624 F.3d 376, 385 (7th Cir. 2010))), aff’d,
708 F.3d 1123 (9th Cir. 2013). In addition—to the extent that there is any overlap in
the issues or claims—when the parties entered into a stipulation dismissing without
prejudice the non-adjudicated claims in the prior lawsuit, they expressly agreed that
“the remaining claims between the Trustee and the Judgment Creditors may be
1
Trustee did not raise in this appeal his previous argument that the
bankruptcy court’s “Homestead Exemption Order” precludes Judgment Creditors’
counterclaims. Even if this argument had not been waived, it would fail because
the bankruptcy court correctly found that “the issue of the perfection of [the]
judgment lien was not an issue decided in the prior litigation over the claimed
homestead exemption and was not actually and necessarily decided in the court’s
denial of the claimed homestead exemption.”
3
adjudicated in the Declaratory Relief Adversary” and that the dismissal “shall not give
rise to any adverse legal or other effect on any party or issue to be determined in [the
Declaratory Relief] Adversary[.]”
Judgment Creditors are not judicially estopped from arguing that Debtor
retained an equitable interest in the Residence. The position taken by Judgment
Creditors in the prior litigation to avoid and set aside Debtor’s fraudulent transfer is
not inconsistent with their position in this case to seek to attach their lien to Debtor’s
equitable interest in the Residence. See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.
1990) (“The doctrine of judicial estoppel . . . is invoked to prevent a party from
changing its position over the course of judicial proceedings when such positional
changes have an adverse impact on the judicial process.” (quotation omitted)). In
pursuing their positions, Judgment Creditors have not made inconsistent factual
assertions. See id. (“Judicial estoppel is most commonly applied to bar a party from
making a factual assertion in a legal proceeding which directly contradicts an earlier
assertion made in the same proceeding or a prior one.” (citation omitted)).
Turning to the merits of the appeal, there is no dispute that Debtor fraudulently
transferred the Residence to her daughter. Debtor transferred the Residence without
receiving any consideration, continued to live in the Residence after the transfer, and
obtained a written promise that her daughter would return the Residence upon request.
4
Debtor therefore retained an equitable interest in the Residence even though her
daughter held legal title to it. See Alhambra Bldg. & Loan Ass’n v. DeCelle, 47 Cal.
App. 2d 409, 411–12 (1941) (affirming that by holding the property in “secret trust”
for the transferor, the transferee had “mere naked legal title” to the fraudulently
conveyed property, whereas the transferor “was and at all times had been the
beneficial owner”); 30 Cal. Jur. 3d Enforcement of Judgments § 118 (2015) (“Where
only nominal title is conveyed to a third party by the judgment debtor, the debtor’s
beneficial interest in the property is liable for the debts of subsequent creditors as well
as those existing at the time of the transfer.”).
After Debtor’s conveyance but before she filed for Chapter 7 bankruptcy,
Judgment Creditors obtained a judgment lien against Debtor by recording an abstract
of a tort judgment for $320,000 with the Orange County Clerk-Recorder. Cal. Civ.
Proc. Code § 697.310(a). Judgment Creditors’ lien attached to Debtor’s equitable
interest in the Residence. Id. § 697.340(a) (“A judgment lien on real property attaches
to all interests in real property in the county where the lien is created (whether present
or future, vested or contingent, legal or equitable) that are subject to enforcement of
the money judgment against the judgment debtor . . . .”); Fid. Nat’l Title Ins. Co. v.
Schroeder, 179 Cal. App. 4th 834, 849 (2009) (“California law provides that a
5
judgment lien attaches to all interests in real property, including equitable interests.”
(emphasis in original)).
That Trustee successfully avoided Debtor’s fraudulent transfer under California
Civil Code §§ 3439.04 and 3439.07 does not thereby extinguish Judgment Creditors’
secured claim. Trustee points to 11 U.S.C. §§ 550 and 551—allowing a trustee to
recover and preserve, “for the benefit of the estate,” a property whose transfer was
avoided—neither of which provide support for the notion that a perfected judgment
lien is eliminated by an avoidance action. Cf. Cal. Civ. Proc. Code § 697.400
(perfected judgment liens are extinguished by the recording of an acknowledgment
of satisfaction of the underlying judgment or by the judgment creditor’s release of the
lien). In a case factually similar to our own, a Minnesota bankruptcy court noted:
11 U.S.C. § 551 does not operate to somehow make [the judgment
creditor’s] perfected lien disappear upon the Trustee’s later avoidance of
the transfer. Section 551 preserves an avoided transfer only with respect
to property of the estate. It is intended to prevent junior lienors from
improving their position at the expense of the estate when a senior lien
is avoided. It is not intended to strip from recovered property, interests
equal or senior to the transfer avoided. [The judgment creditor’s]
general judgment lien attached to the property upon docketing of the
judgment, and, from the filing of the bankruptcy case, it remained at all
times an interest senior to the bankruptcy estate’s interest in the property.
The lien was not extinguished or subordinated to the bankruptcy estate’s
interest by § 551, as it was at all times senior to the transfer avoided and
recovered, namely—the Debtors’ interest.
6
In re Mathiason, 129 B.R. 173, 177 (Bankr. D. Minn. 1991), aff’d, 16 F.3d 234 (8th
Cir. 1994) (citations omitted). By contrast, Trustee’s reliance on In re Saylor, 178
B.R. 209 (B.A.P. 9th Cir. 1995), aff’d, 108 F.3d 219 (9th Cir. 1997), is unavailing
because that case did not address a judgment creditor’s lien rights.
Trustee’s reliance on the language in the Avoidance Judgment that the estate
recovered “all legal title to, and beneficial interest in, the real property” is similarly
unavailing. The estate’s recovery of beneficial interest in the Residence does not
prevent it from satisfying Judgment Creditors’ previously secured, senior interest.
AFFIRMED.
7
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688 F.2d 242
UNITED STATES of America, Appellee,v.Richard W. McLEAN, Appellant.
No. 82-5044.
United States Court of Appeals,Fourth Circuit.
Argued July 19, 1982.Decided Sept. 8, 1982.Rehearing Denied Oct. 19, 1982.
Russell L. McLean, III, Waynesville, N. C., for appellant.
Max O. Cogburn, Jr., Asst. U. S. Atty., Asheville, N. C. (Charles R. Brewer, U. S. Atty., on brief), for appellee.
Before RUSSELL, WIDENER and HALL, Circuit Judges.
PER CURIAM:
1
Richard W. McLean appeals his conviction under 16 U.S.C. § 403h-3 for carrying a loaded uncased weapon in the Great Smoky Mountains National Park in violation of 36 C.F.R. § 2.11(a). He admits that he was carrying the weapon, but contends that the area in which he was charged with carrying a weapon consisting of a 44,400 acre tract called the Fontana Addition never became part of the park. He asserts that the agreement by which the Department of Interior acquired title to the land constituted a "purchase", and that the park's enabling act provided that land, even though earmarked for inclusion in the park in the statute creating the park area, could not be purchased, but could be acquired only through public or private donation. See 16 U.S.C. § 403 (1974). He argues that the district court accordingly erred in denying his motion to dismiss for want of subject matter jurisdiction. We affirm.
2
In 1926, Congress enacted 16 U.S.C. § 403, which designated land to be included, when acquired, in the Great Smoky Mountains National Park. The Act, however, provided that the "United States shall not purchase by appropriation of public moneys any land within the aforesaid areas, but that such land shall be secured by the United States only by public or private donation." Id. The Fontana Addition fell within the designated area, but the United States did not acquire title to it until 1942, when the Addition was transferred to the Department of Interior by the Tennessee Valley Authority (TVA).
3
The TVA sought in 1942 to build a lake in the Addition. The proposed lake, however, threatened to cut off over two hundred families' only means of egress as provided by a highway built with county bonds. To relieve this objection to the proposed lake, the state, the county, the TVA, and the Department of Interior entered into an agreement, under the terms of which the state gave TVA $100,000 to purchase the property, the TVA gave Swain County $400,000 to retire the outstanding bonds, and promised to transfer to the Department of Interior, subject to a flood easement, title to the property, and the Department of Interior agreed to receive the property for inclusion in the park, and to build a new road to replace the one flooded by the lake.*
4
The Supreme Court in TVA v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946), upheld the TVA's purchase, but apparently did not consider the Department of Interior's role in the transaction. See 327 U.S. at 556, 66 S.Ct. at 719 (Reed, J., concurring). Defendant contended that the Department's participation in the agreement made it a purchaser. The District Court disagreed, finding that only the TVA had purchased the property in question, that its purchase was upheld in Welch, and that its transfer to the Department of Interior of such property was a permissible "public donation."
5
We find the ruling of the District Court correct, and, for the reasons set forth in its opinion, we affirm. Any responsibility undertaken by the Department of Interior in the agreement was for the purpose of assisting the TVA in carrying out its statutory duties, and not in consideration for the interdepartmental transfer. As we hold that the Fontana Addition is a part of the park, it follows that defendant was in the park when apprehended with an uncased firearm. Accordingly, the judgment of conviction is
6
AFFIRMED.
*
The terms of this agreement are set forth in TVA v. Welch, 150 F.2d 613, 615 (4th Cir. 1945), rev'd., 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946)
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415 F.Supp.2d 225 (2006)
Everton HIBBERT, Petitioner,
v.
Thomas POOLE, Respondent.
No. 03 CV 6050.
United States District Court, W.D. New York.
February 16, 2006.
*226 *227 Everton Hibbert, Romulus, NY, pro se.
Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Respondent.
DECISION AND ORDER
BIANCHINI, United States Magistrate Judge.
INTRODUCTION
Petitioner, Everton Hibbert ("Hibbert"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County) following a guilty plea. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
*228 FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction here at issue stems from Hibbert's guilty plea to charges of second degree murder and second degree criminal possession of a weapon in connection with the shooting death of his estranged girlfriend, Ella Reaves ("Reaves"). The shooting occurred on March 24, 2000, as Reaves left the nursing home where she worked in the Town of Pittsford, New York. Hibbert then fled to New York City.
On March 30, 2000, officers from the 28th Precinct of the New York City Police Department received a phone call from a woman who said that her son had overheard a conversation in which a man was claiming to have killed his girlfriend, a nurse, up in Rochester. According to the tip, the man claiming to have killed his girlfriend was staying at an apartment in Harlem. H.18, 164.[1] Detective Frank Pascarelli ("Pascarelli") confirmed with the authorities in Rochester that such a crime had occurred and obtained a faxed photograph and description of the alleged perpetrator. He and his partner, Detective Joseph Litrenta ("Litrenta"), went to the address where they found the door ajar. They knocked and were told to enter. They knocked again and said, "Police" as an unnamed male individual opened the door. H.10. Litrenta stated that they had received a call that a woman was being held against her will in the apartment, which was a ruse to keep the occupants of the apartment at case. H.11, 28, 60. The man said that there was no problem and that they could come in and look around. H.59. Once inside the apartment, Litrenta and Pascarelli saw a man who matched the faxed photograph sitting on the bed. H.33. The detectives asked all of the occupants for identification, but Hibbert did not have identification on him. Litrenta asked Hibbert to step out in the hallway so that he could write down Hibbert's contact information. H.64-65.
When Litrenta asked Hibbert his name, Hibbert "mumbled" a name that was not the name they had been given by the Rochester police. H.65. Litrenta showed Hibbert the faxed photograph they had received and asked him, "Do you know who this is?" H.66. Hibbert replied, "Yeah, that's me." Id. Litrenta then patfrisked Hibbert and handcuffed him. H.67. Pascarelli escorted Hibbert back to the precinct in a marked police car that they had summoned to the scene. Right after they got in the car, Pascarelli said, "You know what this is all about?" to Hibbert. H.42. Hibbert replied, "I shot my girlfriend." H.43. There was no further conversation after that.
Once back at the precinct, Litrenta received a phone call from a detective in Rochester who advised him that after reading the Miranda warnings to Hibbert, he should ask Hibbert if he had an attorney. H.71. Litrenta recited the Miranda warnings to Hibbert from a pre-printed card, asking him if he understood each warning as it was read. H.73. Hibbert stated that he did and agreed to talk to the detectives. H.74. He never requested an attorney and did not demonstrate any reluctance in speaking to the police. H.74-75.
Hibbert then gave an oral statement which Litrenta reduced to writing. H.75. Litrenta read it back to Hibbert, who said it was accurate and agreed to sign it. H.76. In it, Hibbert stated that he had come to the United States from Jamaica about five years ago. He had been with Reaves, the victim, for about four years; they had a two-year-old daughter together. *229 App. E at 34.[2] Hibbert stated that for several days, he followed Reaves after she left work and discovered that she was seeing another man. Id. On the day of the incident, Hibbert walked to the nursing home where Reaves worked. He said that he had a gun in his coat pocket and he waited for Reaves to come out after her shift. Id. When he saw her, he walked up to her and "started shooting at her." She fell to the ground and Hibbert began to run. Id. at 35. According to Hibbert, he spent several days living in the woods near the highway. He eventually ended up purchasing a bus ticket to New York City; when he arrived there he went to the apartment of his friend "Duce" who told him to turn himself in. Id. Hibbert stated that he thought about killing himself while he was on the run but then thought of his daughter and threw the gun away. Id. at 36. Litrenta then gave Hibbert a pad and pen asked to write down in his own handwriting what he had told Litrenta. H.78; see App. E at 37-38.
On the drive back to Rochester, Investigator Gerber ("Gerber") of the Monroe County Sheriff's Department talked further with Hibbert about the shooting. Gerber informed Hibbert that the Miranda warnings still applied and that he did not have to discuss the incident, but Hibbert stated that he would talk about it. Hibbert told Gerber that he "had done everything for [Reaves]," treating her five children (four of whom were not his) like his own and giving her money. When he found out that she was seeing another man, she was "angry and jealous" and that is why he shot her. App. E. at 32. Gerber told Hibbert that he knew that Hibbert's friend Charlie had given Hibbert a ride to the nursing home and that he knew that Hibbert did not spend several days living in the woods. See id.
Hibbert was arraigned on April 18, 2000, on Monroe County indictment # 162/2000 which charged him with two counts of murder in the second degree and one count of criminal possession of a weapon in the second degree. Hibbert initially pleaded not guilty to the charges. On June 23, 2000, the parties appeared for a hearing in New York Supreme Court (Monroe County) before Justice Mark on Hibbert's motion to suppress his statements made to police officers at the time of his arrest. At the conclusion of the hearing, the trial court reserved decision.
Several months later, on September 19, 2000, the parties again appeared in court. The prosecutor informed the court that Hibbert had agreed to plead guilty to the first and third counts of the indictment in exchange for a sentence promise of an indeterminate term of imprisonment of twenty years to life. According to the agreement, Hibbert also had to waive his right to appeal and withdraw his pending suppression motion.
Represented by a different attorney from the same public defender's office, Hibbert appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Counsel argued that Hibbert's waiver of appeal was invalid and that the negotiated sentence was unduly harsh and excessive. Hibbert submitted a pro se supplemental brief in which he argued that his oral and written statements to police at the precinct were obtained in violation of his Sixth Amendment right to counsel; that his oral statements in the police car were not admissible because he had not been issued his Miranda *230 warnings; that his arrest was illegal; that his waiver of the right to appeal was invalid; and that his plea was involuntary. The Fourth Department unanimously affirmed his conviction. The New York Court of Appeals denied leave to appeal.
Acting pro se, Hibbert collaterally attacked his conviction by means of a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in which argued that his oral statements to police were obtained in violation of his Sixth Amendment right to counsel. Supreme Court (Mark, J.) denied the motion in a written decision and order entered December 6, 2002. Hibbert filed another C.P.L. § 440.10 motion on January 3, 2003, this time alleging that due to his low IQ, his guilty plea was not voluntary because he "did not understand anything that was taking place in the proceedings." See Supreme Court Order at 3 (App. R). Hibbert also contended that his trial counsel coerced him into pleading guilty. See id. at 2-3. Justice Affronti, who had been newly assigned to Hibbert's case following Justice Mark's retirement denied the second C.P.L. § 440.100 motion on the basis that the issues raised therein could have been included in the first C.P.L. § 440.10 motion. See Supreme Court (Affronti, J.) Letter Decision and Order dated January 24, 2003 (citing N.Y.Crim. Proc. Law § 440.10(3)(c)). The Appellate Division, Fourth Department, of New York State Supreme Court denied leave to appeal on March 11, 2003.
This federal habeas petition followed on January 29, 2003. In the form habeas petition filed with this Court, Hibbert asserts that (1) his guilty plea was not made voluntarily because he was not aware of the nature and consequences of his guilty plea, due to his low IQ; and (2) that he pleaded guilty because trial counsel told him to do so. See Petition ("Pet.") at 5 (Docket # 1). Hibbert also states that he was denied the effective assistance of counsel because counsel "coerced him into taking [a] plea." Id. Finally, Hibbert states that he was interrogated by the police in violation of his Sixth Amendment right to counsel; he claims that he was represented by counsel on another matter when he was arrested and questioned. Id. In his memorandum of law filed in support of the petition, Hibbert provides further argument regarding the Sixth Amendment claim and the voluntariness claim, stating that counsel "scared" him into taking the plea offer by telling him that he could receive up to 40 years to life in prison if he were convicted after a trial. See Petitioner's Memorandum of Law ("Peer Mem.") at (Docket # 1). Hibbert also contends that he was denied the effective assistance of counsel because counsel failed to investigate his case and counsel failed to advise him regarding the "viable defense" of intoxication. Id. He also contends that certain oral statements that he made to the police were inadmissible because they were given prior to the issuance of Miranda warnings and that his warrantless arrest violated the Fourth Amendment. For the reasons set forth below, the petition is denied.
DISCUSSION
Legal Effect of Guilty Plea
In Tollett v. Henderson, the Supreme Court reaffirmed the principle articulated in the "Brady trilogy"[3] that "a guilty plea represents a break in the chain of events which has preceded it in the *231 criminal process." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Once a defendant has pleaded guilty in open court to the offense with which he is charged, he may not subsequently raise independent claims relating to alleged violations of constitutional rights that occurred prior to the entry of the guilty plea. Id. Rather, a defendant "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." Id. In other words, under Tollett, the only issues reviewable by a federal habeas court relate to whether the guilty plea in state court "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant," North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Given the Supreme Court's clear holding in Tollett, Hibbert's guilty plea forecloses this Court's consideration on habeas review of the following three claims: (1) that he was questioned by the police despite being represented by counsel on another, unrelated matter; (2) that his oral statements to the police were inadmissible due to their being made prior to the issuance of Miranda warnings; and (3) that his arrest violated the Fourth Amendment.[4]
Thus, the only claims that Hibbert may raise before this Court are those relating to the voluntary nature of his plea and whether he received the effective assistance of counsel in regard to his decision to plead guilty. The Court will consider the ineffective assistance claim first.
Merits of the Petition
1. Ineffective Assistance of Counsel
To prevail on a claim that trial counsel rendered constitutionally ineffective assistance, a habeas petitioner must show that counsel's representation fell below "an objective standard of reasonableness" under "[p]revailing norms of practice" and "affirmatively prove prejudice" by showing that there is a "reasonable probability" that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must establish both that counsel's performance was deficient and that he was prejudiced as a result of counsel's errors in order to obtain relief on an ineffective assistance claim. See id. at 687, 104 S.Ct. 2052.
A petitioner seeking to establish constitutionally ineffective assistance of counsel must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)); see also, e.g., United States v. Jones, 918 F.2d 9, 11 (2d Cir. 1990) (holding that counsel's decisions should not be evaluated in hindsight). Even if a petitioner can establish that counsel was deficient, he still must show that he was prejudiced. See id. at 693-94, *232 104 S.Ct. 2052. In the context of a guilty plea, the prejudice prong of the test is met by showing "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." United States v. Coffin, 76 F.3d 494, 498 (2d Cir. 1996) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
The Supreme Court explained in Strickland that "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." 466 U.S. at 693, 104 S.Ct. 2052 (internal citation omitted). Rather, the defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
Here, Hibbert contends that defense counsel failed to advise him that he had a viable defense of intoxication and failed to investigate the prosecution's case. As the Supreme Court explained in Hill v. Lockhart, the Strickland "prejudice" inquiry undertaken in many guilty plea cases "will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial." 474 U.S. at 59, 106 S.Ct. 366. Turning to the failure-to-investigate claim, Hibbert contends that defense counsel violated his Sixth Amendment rights when "he informed the defendant to plea[d] guilty to the charges . . . without the Court making a ruling of the evidence of the Suppression hearing to determine if the evidence would be used against the defendant during his trial if he elected to proceed to trial." Pet'r Mem. at 23 (Docket # 1). The determination whether this alleged error "prejudiced" Hibbert by causing him to plead guilty rather than go to trial "will depend on the likelihood" that waiting for a decision on the suppression motion would have led counsel to change his recommendation as to the plea. See id. In turn, this assessment will depend "in large part on a prediction whether the evidence likely would have changed the outcome of a trial." Id.
Here, the suppression hearing was concerned with four categories of statements made by Hibbert: (1) oral statements made to Detective Litrenta at the New York City apartment where petitioner was apprehended that it was he in the faxed photograph of the suspect in the Reaves murder; (2) oral statements to Detective Pascarelli en route to the precinct that he knew why he was here and that it was because he "shot [his] woman"; (3) oral statements to Detective Litrenta at the precinct which were reduced to writing; (4) oral statements to Investigator Gerber en route from New York City to Rochester; and (5) Hibbert's handwritten statement made at request of Detective Litrenta. See Notice Pursuant to N.Y.Crim. Proc. Law § 710.30 (App.E).
Hibbert contends that his statement at the apartment identifying himself would not have been admissible because it was obtained as part of an illegal warrantless search. He also argues that his statement to Detective Pascarelli in the police car on the way to the precinct would not have been admissible because it was made prior to the issuance of the Miranda warnings. As to his admission made to Detective Pascarelli prior to the issuance of the Miranda warnings, Hibbert had a strong argument that it was not admissible because he was in a custodial situation, having been *233 handcuffed and placed in a police car, and under Miranda, "interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response[.]" People v. Hardy, 223 A.D.2d 839, 636 N.Y.S.2d 459 (3d Dep't 1996) (citations omitted). Here, Detective Pascarelli's question to a handcuffed Hibbert in the patrol car, "You know what this is about?" was more than reasonably likely to elicit an incriminating response, given the events leading up to that point. Moreover, Hibbert also had a compelling argument that even the statements made to Detective Litrenta and Investigator Gerber, which apparently were made after Hibbert waived his Miranda rights, were inadmissible as a matter of state constitutional law because Hibbert was represented by counsel on an unrelated matter and could not give a valid Miranda waiver except in the presence of counsel. See, e.g., People v. Grice, 100 N.Y.2d 318, 763 N.Y.S.2d 227, 794 N.E.2d 9 (2003) (citing People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968)).
In New York state, an "indelible" right to counsel arises from the provision of the state's Constitution that guarantees due process of law, the right to effective assistance of counsel and the privilege against compulsory self-incrimination. People v. Grice, 100 N.Y.2d at 320, 763 N.Y.S.2d 227, 794 N.E.2d 9 (citing N.Y. Const., art. I, § 6; People v. Bing, 76 N.Y.2d 331, 338-339, 559 N.Y.S.2d 474, 558 N.E.2d 1011 (1990)). The right is deemed "indelible" because once it "attaches," interrogation is prohibited unless the right is waived in the presence of counsel. Id. at 320-21, 763 N.Y.S.2d 227, 794 N.E.2d 9 (citation omitted). There are several ways that "attachment" can occur, such as the formal commencement of a criminal action by the filing of an accusatory instrument. Id. at 321, 763 N.Y.S.2d 227, 794 N.E.2d 9 (citations omitted). In addition, the indelible right to counsel can attach before commencement of a criminal action when a person in custody requests to speak to an attorney or when an attorney who is retained to represent the person "enters" the matter under investigation. Id. (citations omitted). The New York Court of Appeals has held that "a telephonic communication between a defendant's attorney and the police suffices to establish counsel's entry into a case, at which point the police are required to cease all questioning[.]" Id. (citing People v. Gunner, 15 N.Y.2d 226, 231-232, 257 N.Y.S.2d 924, 205 N.E.2d 852 (1965)). The indelible right to counsel is not dependent upon such "mechanical and arbitrary requirements" as a formal retainer, but rather "once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant, the accused's right to counsel attaches[.]" Arthur, 22 N.Y.2d at 329, 292 N.Y.S.2d 663, 239 N.E.2d 537 (quoted in Grice, 100 N.Y.2d at 321, 763 N.Y.S.2d 227, 794 N.E.2d 9).
At the suppression hearing, Detective Litrenta testified that he was informed by the Monroe County Sheriff's Department, which was investigating the homicide, to ask Hibbert whether he was represented by counsel. However, there is no indication the Litrenta or anyone else questioned Hibbert about this. Defense counsel called attorney Brian Wirley ("Wirley") of the Monroe County Public Defender's Office who testified that he began representing Hibbert on some family court matters in December 1999. H.182. The matter was open at the time of Hibbert's arrest on March 30, 2000, and did not get resolved until May 30, 2000. H.183. Wirley testified *234 that on March 30, 2000, he faxed a letter to the Monroe County Sheriffs Department stating that he represented Hibbert and requesting that Hibbert not be questioned unless counsel was present.
Investigator Gerber testified on cross-examination that prior to speaking with Hibbert on the way back to Rochester, he knew that the Sheriff's Department had received a faxed letter indicating that Hibbert had an attorney. H.137. Gerber stated that he believed that his supervisor, Investigator Sarkis, had "already taken care of that [issue]" by asking the detectives in New York City to "add another question to the Miranda [warnings]," H.138, that is, to ask him specifically if he had representation of counsel in connection with the homicide, H.172. When he spoke with Hibbert on the drive back to Rochester, Gerber did not ask Hibbert if he knew who Wirley was or if he had a matter pending in family court. Gerber did ask Hibbert if he knew who Roger Brazill ("Brazill") was because the fax indicated that Brazill was going to be assigned to represent him.[5] H.142. Not surprisingly, Hibbert denied that he knew Brazill, who had not yet been assigned to represent him.
Investigator Sarkis admitted that he had the faxed letter from attorney Wirley of the Public Defender's Office at the time that he was discussing with the New York City detectives how to handling the questioning of Hibbert. Investigator Sarkis testified that the prosecutor, assistant district attorney Cruikshank, had attempted to contact attorney Brazill by telephone but was unsuccessful. H.152. Investigator Sarkis never made any attempt to contact Wirley. Investigator Sarkis admitted that he did not recall "getting into the details" about the faxed letter with the Public Defender's office when he spoke to Detective Litrenta in New York City and agreed to add a question to the Miranda warnings. H.169.
Based on the testimony presented at the hearing, Hibbert had a very strong argument that his oral and written statements at the precinct and his oral statements on the way back to Rochester were inadmissible because Hibbert's indelible right to counsel had attached, and that because he was represented, Hibbert could not validly waive his Miranda rights without counsel present. Arguably, the faxed letter from the Public Defender's Office to the County Sheriffs Department, in which Wirley requested that Hibbert not be questioned unless counsel was present, constituted an "entry" into the proceedings for purposes of the attachment of the right to counsel. See Arthur, 22 N.Y.2d at 329, 292 N.Y.S.2d 663, 239 N.E.2d 537.
Assuming that there was a reasonable probability that Hibbert would have prevailed on his suppression motion and his statements held inadmissible, the question then becomes what was the likelihood that defense counsel would have changed his recommendation as to the advisability of pleading guilty. This requires looking at the strength of the prosecution's case. Even without Hibbert's inculpatory statements, the state had a compelling case against him. There were at least two eyewitnesses to the event, the victim's sister and her boyfriend, who were picking the victim up after work and who saw the shooting from their car. There was Hibbert's friend Charlie, who had given Hibbert a ride to the nursing home on the day of the shooting, although it is not clear whether Charlie also witnessed the shooting. The forensics evidence was that Reaves was shot four times, which strongly supported the prosecution's contention *235 that Hibbert acted with intent to kill. Finally, Hibbert's flight from Rochester after the incident was further evidence of his guilt. Certainly, the prosecution's case against Hibbert was strong, even without his admissions of guilt. Given these factors, the likelihood that defense counsel would have changed his recommendation as to the advisability of pleading guilty was not very high. Hibbert thus is unable to establish that he was prejudiced by pleading guilty prior to receiving a decision on the suppression motion.
I next turn to Hibbert's claim that trial counsel failed to properly investigate the viability of the defense of intoxication and to advise Hibbert that such a defense was available to him. Where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, "the resolution of the `prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366. At the outset, the Court notes that intoxication is not actually a complete affirmative defense to a criminal charge; it rather merely reduces the gravity of the offense by negating an element of the crime charged. People v. Harris, 98 N.Y.2d 452, 474 n. 4, 475, 749 N.Y.S.2d 766, 779 N.E.2d 705 (2002) (citing N.Y. Penal Law § 15.25). While the requisite level of intoxication "need not be to the extent of depriving the accused of all power of volition or of all ability to form an intent," People v. Kastenhuber, 57 A.D.2d 655, 393 N.Y.S.2d 480 (3d Dep't 1977) (internal quotation and citation omitted), the degree of intoxication that a defendant must demonstrate is quite high, see, e.g., People v. Monroe, 277 A.D.2d 598, 716 N.Y.S.2d 114 (1st Dep't 2000) (rejecting contention that counsel should have argued intoxication defense; defendant's conduct in driving his vehicle away from the scene, his actions upon apprehension and his ability to repeatedly recount his detailed version of the events "simply d[id] not evince incapacitating intoxication").[6] Although it is true that a defendant may offer evidence of his intoxication whenever it is relevant to negate an element of the crime charged, see N.Y. Penal Law § 15.15, even an intoxicated person may be capable of forming the requisite intent. People v. Robinson, 161 A.D.2d 676, 555 N.Y.S.2d 448 (2d Dep't 1990) (citations omitted). Through counsel, Hibbert claimed at the sentencing hearing that on the day of the incident, he had spent the entire day drinking and smoking marijuana. Nevertheless, whatever Hibbert may have drunk or inhaled, it is highly unlikely that the jury would have found that his alleged state of intoxication negated or reduced his intent when he was capable of requesting a ride to the victim's place of employment, waiting outside for her to get off work, and then walking up to her and shooting her four times. In short, all of petitioner's actions that day appear to have been intentional and the product of sober and rational thought. Moreover, there appears to be no corroborating evidence *236 of Hibbert's claims of intoxication, nor any details concerning its effect on his mental processes.
Hibbert also contends that trial counsel "scared" him into pleading guilty by informing that if he went to trial and were convicted of all counts in the indictment, he could receive a sentence of up to 40 years to life. Hibbert does not state that trial counsel was incorrect in his assessment of the possible sentence exposure, although trial counsel appears to have overestimated the possible sentence exposure.[7] While logically one could argue *237 that a counsel who would exaggerate a potential sentence to persuade a client to accept a plea-bargain has committed a fraud on the client, there is no evidence that trial counsel intentionally misrepresented the sentencing possibilities to Hibbert. Additionally, the Court has failed to discover any cases in which trial counsel was found to have rendered ineffective assistance in the plea context where he overestimated a defendant's potential sentence.
On the other hand, there is authority in this Circuit for finding constitutionally deficient representation where counsel grossly underestimated a defendant's possible sentence exposure and, on that advice, the defendant elected to proceed to trial and was convicted. See United States v. Gordon, 156 F.3d 376, 380-82 (2d Cir.1998) ("By grossly underestimating [defendant]'s sentencing exposure in a letter to his client, [trial counsel] breached his duty as a defense lawyer in a criminal case `to advise his client fully on whether a particular plea to a charge appears desirable.'") (quoting Boria v. Keane, 99 F.3d 492, 496 (2d Cir.1996)). Obviously, this circumstance does not exist under the facts of this case. Hibbert seems to be implying that trial counsel's overestimation of the potential sentence was another factor counsel used to persuade Hibbert to plead guilty when in fact counsel should have been preparing for trial since "the prosecutor had no case." Pet'r Mem. at 25 (Docket # 1). Contrary to Hibbert's contention, the prosecutor did have a compelling case against him, as discussed above.
It is troubling to the court that trial counsel effectively guided his client to accept a "straight up" plea where, as a practical matter, Hibbert got a maximum sentence after pleading guilty and thus did not get a "bargain" from his plea in this so-called plea bargain. However, taken singly or together, none of counsel's alleged errors resulted in constitutional prejudice to Hibbert. Because he has failed to make a sufficient showing with respect to the prejudice prong of the Strickland standard, the Court need not evaluate the performance aspect of that test. See 466 U.S. at 697, 104 S.Ct. 2052.
2. Knowingness and Voluntariness of Plea
Hibbert argues that it was his responsibility to explain to the trial court "his action and conduct without being told by his attorney what to say[.]" Pet'r Mem. at 24 (Docket # 1). He points to the "off the court Record discussion" between him and trial counsel as support for his argument that the plea allocution was coerced by counsel. Id. Hibbert is referring to two occasions during the plea colloquy, the first of which occurred when the prosecutor asked Hibbert what he did when went to the nursing home where the victim worked:
Mr. Cruikshank: When you went to that location what did you do, Mr. Hibbert?
Mr. Hibbert: I went nearI was drunk.
Mr. Brazill: Drunk.
Mr. Cruikshank: You were intoxicated?
Mr. Hibbert: Yes.
Mr. Cruikshank: But you did know what you were doing, correct?
Mr. Hibbert: Not very much.
(Discussion held off the record between the defendant and his counsel.)
Mr. Cruikshank: Despite your intoxication you knew what you were doing, correct, Mr. Hibbert?
Mr. Hibbert: Yes.
Mr. Cruikshank: And what did you do?
*238 Mr. Hibbert: I shot her.
Mr. Cruikshank: Who did you shoot?
Mr. Hibbert: Ella Reeves [sic.]
Mr. Cruikshank: How many times did you shoot her? Four times, sir?
Mr. Hibbert: I shot
Mr. Cruikshank: If you have to recess Mr. Hibbert: I shoot. I don't remember how much I shoot, but I shoot.
Mr. Cruikshank: It was more than one shoot [sic,] correct?
Mr. Hibbert: Yes.
P. 5-6.[8] The second off-the-record discussion occurred when the prosecutor questioned Hibbert about his intent at the time of the shooting:
Mr. Cruikshank: Okay. You intentionally shot her. You meant to shoot her, correct?
Mr. Hibbert: No, I didn't mean to shoot her, but I shoot her.
(Discussion held off the record between the defendant and counsel.)
Mr. Cruikshank: I will ask you again, Mr. Hibbert. Did you intend to shoot Ella Reeves [sic?]
Mr. Hibbert: Yeah.
Mr. Cruikshank: And you possessed that weapon for that purpose, correct?
Mr. Hibbert: Yeah.
Mr. Cruikshank: Thank you, Judge.
P.6. I find it significant that although Hibbert claims that these off-the-record exchanges between him and defense counsel are evidence of "coercion," Hibbert has never indicated what precisely counsel said to him at those times: Hibbert has never said that during those discussions, counsel told him what to say or pressured him into pleading guilty. Moreover, the remainder of Hibbert's plea colloquy supports a finding that Hibbert's plea was voluntarily made. Hibbert confirmed that he had discussed the plea with his attorney and was entering the plea with counsel's advice and consent. He stated that he understood that by pleading guilty he was admitting his guilt as to the charges against him. The judge explained all of the rights that Hibbert was giving up in detail, and Hibbert confirmed that he understood that he was giving up his right to a trial by jury, to have the prosecution present witnesses against him, to have trial counsel cross-examine those witnesses and bring in witnesses on Hibbert's behalf, to testify or not testify at trial, to require that the prosecution prove his guilt beyond a reasonable doubt at trial, and to bring any motions. When asked if he was pleading guilty of his own free will, Hibbert answered affirmatively. He also confirmed that all his statements to the court were truthful.
Hibbert next argues that because he is "limited from an intellecual [sic] stand point [sic,"] he "never really unstood [sic] what he was agreeing to when he took the plea offer on the advise [sic] of his attorney, and not upon his own free will." Pet't Mem. at 24 (Docket # 1). Hibbert states that "Mr. Cruishank [sic] [the prosecutor], acknowledge[d] that he was having some difficulty in communication with the defendant, So he in July of that year, Had defendant tested, And the People's who conducted the test founded [sic] that the defendant Mr. Everton had an IQ of 59." Id. Hibbert actually is referring to the following statements made by trial counsel, Roger Brazill, at sentencing when he was discussing sentencing recommendations:
. . . It is not the first homicide case that I have handled, nor the first case that has been before the Court. Normally, when you look at a homicide defendant *239 you see someone who has had a history of breaking the law, and this is a final step in the process. Mr. Hibbert came to this country in search of a better life and was making steps towards that. He has no prior criminal record.
In July of this year I had him tested psychologically because I was having some difficulty in communicating with him. The people who testify him found him to be significantly limited from an intellectual standpoint, an IQ of approximately 59. Despite that, he maintained steady employment as a painter and a metal worker, until the spring of 1999 when lifting a large object at work he sustained a severe injury to his back and was disabled on account of that.
S.6. Although the transcript reads "Mr. Cruikshank," it is apparent from the context of the sentencing minutes that it was trial counsel who was speaking. These allegations do give the Court some pause.
In Godinez v. Moran, the Supreme Court articulated the standard for gauging a defendant's competence to plead guilty: he must have the "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and has "a rational as well as factual understanding of the proceedings against him." 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (adopting the same competency standard used to judge a defendant's ability to stand trial, as set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). The case law is scanty regarding question of whether a person's mental retardation precludes him from knowingly entering a voluntary guilty plea. In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), the Supreme Court overturned the conviction of a petitioner who had been committed to the Rome State School for Mental Defectives and classified as "retarded" and who was described by the court as "substantially below average intelligence." The petitioner had been indicted on charges of first degree murder and had pleaded guilty to second degree murder. The conviction was not overturned because the petitioner's mental disabilities prevented him from knowingly and voluntarily pleading guilty-rather, the Morgan court found that the plea was involuntary because petitioner had been unaware of the fact that intent to cause death was an element of second-degree murder and therefore had not received inadequate notice of the offense to which he pleaded guilty.
In the context of determining the voluntariness of a waiver of Miranda rights, courts have generally have concluded that "`no single factor, such as IQ, is necessarily determinative in deciding whether a person was capable of knowingly and intelligently waiving . . . the constitutional rights embraced in the Miranda rubric.'" United States v. Murgas, 967 F.Supp. 695 (N.D.N.Y.1997) (quoting Fairchild v. Lockhart, 744 F.Supp. 1429, 1453 (E.D.Ark. 1989)) (collecting and discussing numerous federal cases where the defendant's limited cognitive abilities were a factor in determining the validity of the waivers), aff'd, 900 F.2d 1292 (8th Cir.1990); see also Moore v. Dugger, 856 F.2d 129 (11th Cir. 1988) (holding that defendant's confession was voluntary, although testimony showed defendant had IQ of 62, functioned at intellectual level of eleven-year-old, and was classified as educable mentally handicapped, and defendant claimed that at time he confessed he had been without food or sleep for 25 to 30 hours); Harris v. Riddle, 551 F.2d 936 (4th Cir.1977) (holding that seventeen-year-old defendant with IQ of 67 had sufficient comprehension where expert testified that defendant had a sixth-grade intelligence and understood the right to remain silent, although not all of *240 the consequences of giving up that right); United States v. Young, 529 F.2d 193, 195 (4th Cir.1975) (holding that although defendant had a below average IQ, limited education and reading ability, he validly waived his rights; "these factors are not in themselves determinative of the voluntariness of a waiver, for one must examine the totality of the circumstances surrounding the waiver"); United States v. Marenghi, 896 F.Supp. 207 (D.Maine 1995) (holding that defendant with "cognitive limitations" and an IQ of 79 validly waived her Miranda rights), aff'd, 109 F.3d 28 (1st Cir. 1997).
After performing an exhaustive review of cases considering whether a defendant's lack of mental capacity, including low IQ, precluded a knowing waiver of rights, the district court in Fairchild succinctly stated, "[s]hort of the level of absolute incapacity, the cases all consider lack of intelligence (and the related factor of low IQ) as one part of the totality of circumstances to be examined in deciding whether a waiver is knowingly made." 744 F.Supp. at 1450. The district court in Fairchild found a number of analytical flaws in petitioner's argument that because he was mentally retarded, he was, therefore, unable to intelligently waive his constitutional rights. Id. at 1454. The court elaborated as follows:
First, the authorities seem to be in agreement that IQ scores are not dispositive of mental retardation, and that such measurements of intelligence make up only one of three elements of the overall clinical definition of retardation. Second, petitioner's giving paramountcy to IQ levels runs counter to most current teaching on the subject since advocates for the mentally retarded have usually argued that courts should place less emphasis on IQ scores when passing on such a defendant's competency and, instead, inquire more into the specific functional disabilities of putative mentally retarded criminal defendants. Finally, there is substantial recognition in the courts, growing out of long experience, that IQ tests and other forms of standardized testing have in the past exhibited patterns of racial, socio-economic, and cultural bias which would further call into question the accuracy of IQ scores.
Id.
According to the third edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-III"), the essential clinical features of mental retardation are (1) significantly subaverage general intellectual functioning, (2) resulting in, or associated with, deficits or impairments in adaptive behavior, (3) with onset before the age of eighteen. Id. (citing Diagnostic and Statistical Manual of Mental Disorders, 36 (3d ed.1980)). As the Fairchild court pointed out, only the first element of the retardation definition-intellectual functioning-is measured by reference to an IQ score. See id. The DSM-III groups mentally retarded individuals into four categories or subtypes, using IQ scores as guide-posts. See id. If Hibbert were found to fit the other criteria for mental retardation (deficits in adaptiveness occurring before age eighteen), his IQ score of 59 most likely would place him in the least severe category, known as "mild" mental retardation. See id. (citing DSM-III at 39). Such a classification, however, depends upon establishing that Hibbert has deficits in adaptive behavior, which are not measured by IQ scoring. See id. By "adaptive behavior," the DSM-III "refers to the effectiveness with which an individual meets the standards of personal independence and social responsibility expected of his or her age and cultural group." Id. (quoting DSM-III at 37).
*241 Aside from Hibbert's IQ score, the Court does not have before it any other results of the psychological testing performed on Hibbert. However, the Court has gleaned from the record that Hibbert was living independently and supporting himself financially; counsel noted at sentencing that Hibbert had maintained steady employment as a painter and metal worker until he suffered a disabling back injury. Furthermore, the Court cannot discount the possibility that Hibbert's IQ score is skewed because he is an immigrant and is black. As the district court in Fairchild pointed out, measures of intelligence such as IQ testing "have been repeatedly attacked for their racial and cultural bias against blacks, immigrants and other minorities." Id. at 47 (noting that it was "well documented" that minorities do not perform as well as Anglo-Americans on standardized exams, "principally because of cultural and socioeconomic differences") (citing Columbus Board of Educ. v. Penick, 443 U.S. 449, 511 n. 17, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) (Rehnquist, J., dissenting)). Finally, the Court observes that Hibbert himself never informed anyone at any time that he was having difficulty understanding what was occurring in his criminal proceeding. Thus, the Court concludes that, Hibbert's admittedly low IQ, standing alone, is insufficient to serve as a basis for finding that he was incapable of knowingly, intelligently and voluntarily entering a guilty plea.
Moreover, Hibbert has not provided credible evidence that would justify overlooking his statements under oath that he was choosing to plead guilty of his own accord. In the context of a plea allocution, a defendant's "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); accord, e.g., Adames v. United States, 171 F.3d 728, 732 (2d Cir.1999). Such statements "are generally treated as conclusive in the face of the defendant's later attempt to contradict them." Adames v. United States, 171 F.3d 728, 732 (2d Cir.1999) (citing United States v. Gonzalez, 970 F.2d 1095, 1101 (2d Cir. 1992) (no evidentiary hearing necessary where criminal defendant makes allegations that simply contradict his statements made under oath at plea allocution); United States v. Bambulas, 571 F.2d 525, 526 (10th Cir.1978) (statements at plea allocution are conclusive absent credible reason "justifying departure from their apparent truth")). Based on what has been presented to his Court on habeas review, the Court concludes that no evidentiary hearing is necessary to decide this claim. Relief is accordingly denied.
CONCLUSION
For the reasons stated above, petitioner Everton Hibbert's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253.
IT IS SO ORDERED
NOTES
[1] Citations to "H.___" refer to the transcript of the suppression hearing.
[2] Citations to "App. X at refer to respondent's Appendix of Exhibits, attached to its Answer (Docket # 8).
[3] Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).
[4] The Fourth Amendment claim also must be dismissed because such a claim is not cognizable on federal habeas review. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (holding that federal courts should deny habeas review where the state has provided "an opportunity for full and fair litigation of a Fourth Amendment claim," because "the remedy for Fourth Amendment violations provided by the exclusionary rule `is not a personal constitutional right'") (quoting Stone v. Powell, 428 U.S. 465, 468, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (emphasis supplied)).
[5] Brazill was, in fact, appointed to represent Hibbert.
[6] Cf. People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 (1994) (defendant not entitled to jury charge on defense of intoxication where defendant's evidence lacked requisite details tending to corroborate his claim of intoxication, such as the number of drinks, the period of time during which they were consumed, the lapse of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state; neither witness's statement that defendant was "high" nor the police officer's comments that defendant had glassy eyes and alcohol on his breath "added sufficiently to defendant's statements to warrant the intoxication instruction").
[7] In fact, it appears that trial counsel was incorrect in his calculation of Hibbert's possible sentence exposure. Trial counsel believed that Hibbert's "maximum exposure" was 40 years to life because in addition to the second degree murder charge, Hibbert also had a second degree criminal possession of a weapon charge, a class C violent felony offense which carries a maximum determinate term of fifteen years. Letter of Roger Brazill to Petitioner, dated February 2, 2001 (App. C.). According to counsel, the sentence on Hibbert's criminal possession charge could run consecutively to the second degree murder charge, which carries a maximum term of twenty-five years to life. Thus, counsel reasoned, "25 to life plus 15 years determinate consecutive [sic] makes a potential exposure of 40 years to life." Id. While counsel is correct that New York's Penal Law allows the imposition of a consecutive sentence on a criminal possession of a weapon charge, it is doubtful that this would have happened under the circumstances of Hibbert's case.
Hibbert was charged with second degree criminal possession of a weapon under § 265.03 of the Penal Law; the "essence of the illegal conduct" defined therein "is the act of possessing a weapon unlawfully." People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984). Once the evidence establishes a defendant's unlawful possession of the weapon, "the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime[.]" Id. (citations omitted). On the other hand, the Penal Law provides that sentences must run concurrently when two or more offenses are committed through a single act or through an act which itself constituted one of the offenses and also was a material element of the other. N.Y. Penal Law § 70.25(2) (emphasis added); People v. Sturkey, 77 N.Y.2d 979, 980-81, 571 N.Y.S.2d 898, 575 N.E.2d 384 (1991) ("Under the facts of this case, the robbery and possession offenses were committed through the single act of seizing the gun. Thus, defendant was properly convicted of both robbery and criminal possession of a weapon but the sentences for the two offenses must be concurrent under section 70.25(2) of the Penal Law[.]"). However, trial courts retain the discretion to impose consecutive sentences when separate offenses are committed through separate acts, even though they are part of a single transaction. People v. Brown, 80 N.Y.2d 361, 364, 590 N.Y.S.2d 422, 604 N.E.2d 1353 (1992) (citations omitted). An "act" is defined by the Penal Law as a "bodily movement." N.Y. Penal Law § 15.00(1).
In People v. Brown, the New York Court of Appeals upheld the trial court's imposition of consecutive sentences. The court distinguished its precedents dealing with weapons possession and interrelated, ensuing substantive crimes by explaining that the evidence in the instant case "render[ed] it virtually certain that defendant did not initially possess the stolen vehicle for the purpose of recklessly endangering the lives of others[.]" Thus, in Brown, the defendant's mental state was "significantly discrete from that associated with the creation of the grave risk of death to others, i.e., reckless endangerment." 80 N.Y.2d at 364, 590 N.Y.S.2d 422, 604 N.E.2d 1353. As the court explained in Brown, the case did not involve a "possessory offense with an instrumentality that is naturally or inherently interrelated[.]" Id. For those reasons, consecutive sentences were permissible. The circumstances of Hibbert's case arguably would have placed it in the category of cases where the possessory offense is "naturally or inherently interrelated" with the ensuing substantive crime. For instance, in People v. Crosby, the Fourth Department modified the judgment to make the defendant's sentences run concurrently on his convictions of second degree murder and second degree criminal possession of a weapon because the evidence adduced at trial did not establish "that for any period prior to the shooting, defendant possessed the gun with an intent distinct from his specific intent at the time of the shooting . . . such that a possessory crime would have been complete prior to the shooting[.]" 265 A.D.2d 858, 696 N.Y.S.2d 596 (4th Dep't 1999) (quotation and citations omitted).
[8] Citations to refer to the transcript of the plea colloquy.
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812 F.2d 1410
U.S.v.Reina
86-1184, 86-1185
United States Court of Appeals,Seventh Circuit.
2/6/87
1
N.D.Ill.
AFFIRMED
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10-2936-ag
Dokaj v. Holder
BIA
Balasquide, IJ
A094 044 753
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29th day of March, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 VALDETE DOKAJ,
14 Petitioner,
15
16 v. 10-2936-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Parker Waggaman, Woodside, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Jennifer L. Lightbody,
27 Senior Litigation Counsel; Stefanie
28 A. Svoren, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Valdete Dokaj, a native and citizen of Albania, seeks
6 review of a June 24, 2010, order of the BIA, affirming the
7 October 1, 2008, decision of Immigration Judge (“IJ”) Javier
8 Balasquide, pretermitting her asylum application and denying
9 her application for withholding of removal and relief under
10 the Convention Against Torture (“CAT”). In re Valdete Dokaj
11 No. A094 044 753 (B.I.A. June 24, 2010), aff’g No. A094 044
12 753 (Immig. Ct. N.Y. City Oct. 1, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have
16 considered both the IJ’s and the BIA’s opinions “for the
17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
18 (2d Cir. 2008) The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
20 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
21 Under the REAL ID Act, which applies to Dokaj’s
22 application for relief, “an IJ may rely on any inconsistency
23 or omission in making an adverse credibility determination
2
1 as long as the ‘totality of the circumstances’ establishes
2 that an asylum applicant is not credible” (emphasis in
3 original) (quoting 8 U.S.C. Section 1158 (b) (1) (B) (iii).
4 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
5 see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007)
6 (finding that “the REAL ID Act no longer requires the trier
7 of fact to find a nexus between inconsistencies and the
8 ‘heart of the claim’”).
9 Substantial evidence supports the IJ’s adverse
10 credibility determination. See Xiu Xia Lin, 534 F.3d at
11 167. The IJ found Dokaj not credible based on her admission
12 that she had lied at her asylum interview, claiming that, in
13 2005, she had been dragged into a car, threatened, driven
14 for several miles, and then thrown back out of the vehicle.
15 See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2006) (“a
16 single false document or a single instance of false
17 testimony may (if attributable to the petitioner) infect the
18 balance of the alien’s unauthenticated or uncorroborated
19 evidence”); see also Diallo v. Gonzales, 445 F.3d 624, 631-
20 33 (2d Cir. 2006) (reasoning that asylum interviews “take
21 place after the alien has arrived in the United States, has
22 taken the time to submit a formal asylum application, and
3
1 has had the opportunity to gather his or her thoughts, to
2 prepare for the interview, and to obtain counsel,” and are
3 therefore not entitled to the “special scrutiny” afforded to
4 airport and credible fear interviews) (emphasis in
5 original). We are not compelled to find error in the IJ’s
6 refusal to credit the explanations Dokaj offered because she
7 first denied that she had lied, and did not admit her
8 fabrication until after the Asylum Officer who had
9 interviewed her had testified. See Majidi v. Gonzales, 430
10 F.3d 77, 80-81 (2d Cir. 2005) (holding that the agency need
11 not credit an applicant’s explanations for inconsistent
12 testimony unless those explanations would compel a
13 reasonable fact-finder to do so); Yun-Zui Guan v. Gonzales,
14 432 F.3d 391, 396, 397 n.6, 399 n.8 (2d Cir. 2005) (stating
15 that an applicant’s “mere recitation that he was nervous or
16 felt pressured during an airport interview will not
17 automatically prevent” the agency from relying on the
18 interview for an adverse credibility determination as long
19 as the agency acknowledges and evaluates the explanation).
20 Accordingly, because the adverse credibility determination
21 infected the basis of Dokaj’s requests for withholding of
22 removal and CAT relief, the agency was permitted to rely on
4
1 that finding to deny both forms of relief. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148, 156
3 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
5
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25 F.Supp.2d 630 (1998)
Louis P. DiNICOLA, Plaintiff,
v.
Dominick DiPAOLO, Donald Gunter, William Vorsheck, Edward Wayne Edwards, and the City of Erie, Defendants.
No. CIV. A. 94-323.
United States District Court, W.D. Pennsylvania.
March 31, 1998.
*631 *632 *633 *634 *635 David L. Hunter, Erie, PA, Ramsey Clark, Lawrence W. Schilling, New York, NY, David Rudovsky, Philadelphia, PA, for Louis P. DiNicola.
Gary Eiben, The McDonald Group, Erie, PA, for Dominick DiPaolo, Donald Gunter, Erie Police Department.
James D. McDonald, Brian M. McGowan, The McDonald Group, Erie, PA, for William Vorsheck.
Natalie Dwyer Haller, Quinn, Buseck, Leemhuis, Toohey & Kroto, Inc., Erie, PA, for Edward Wayne Edwards.
Gary Eiben, The McDonald Group, Erie, PA, Gregory A. Karle, Dailey, Restifo & Dailey, Erie, PA, for City of Erie, Penn.
MEMORANDUM OPINION
MCLAUGHLIN, District Judge.
Plaintiff Louis P. DiNicola brings the instant action against Defendants Dominick DiPaolo and Donald Gunter (former police officers for the City of Erie, Pennsylvania), William Vorsheck (a hypnotist formerly residing in Erie County), Edward Wayne Edwards (a former witness against DiNicola), and the City of Erie (the "City") under 42 U.S.C. §§ 1983 and 1988 and Pennsylvania state law. The claims arise out of Plaintiff's arrest and conviction in 1980 on charges of arson and second degree murder for which he was eventually retried and acquitted. This Court has jurisdiction over Plaintiff's claims based on 28 U.S.C. §§ 1331, 1343 and 1367(a).
Presently pending before this Court are motions by all Defendants for summary judgment. For the reasons stated below, these motions will be granted.
I. BACKGROUND
On the night of August 30 and early morning hours of August 31, 1979, a fire ravaged a two-story residence at 622 West 16th Street in Erie, Pennsylvania. The fire claimed three lives, including two children of one Deborah Sweet, the first floor occupant. Plaintiff was suspected by the Erie police of being responsible for the fire. On March 26, 1980 he was arrested and charged with arson and three counts of murder in the second degree. On October 20, 1980, Plaintiff was convicted on all counts. His conviction was subsequently overturned by the Pennsylvania Supreme Court[1] and, following extensive interim proceedings, Plaintiff was retried and acquitted in May of 1994. This suit followed on November 23, 1994.
Plaintiff alleges that the Defendants acted to deprive him of his rights under both federal and state law. Count I of his amended complaint asserts claims under 42 U.S.C. §§ 1983 and 1988 for alleged violations of his Fourth Amendment right to be free from unlawful seizure (including arrest without probable cause, false imprisonment, and malicious prosecution), and his Fourteenth Amendment right to due process of law. Count II asserts a cause of action for malicious prosecution under Pennsylvania law.[2]*636 Underlying these claims are several central factual allegations, viz: (a) that Defendants, through highly suggestive hypnotic regression, procured false testimony from Deborah Sweet implicating Plaintiff as the perpetrator of the fire; (b) that, through Defendants' collaborative conduct, critical exculpatory evidence was destroyed and/or deliberately concealed from Plaintiff, from the judge who authorized his arrest warrant, and from the original trial court; (e) that Defendants Gunter and DiPaolo deliberately failed to record and retain evidence that implicated a different person in the crime; and (d) that false testimony from Defendant Edwards was used against Plaintiff in an effort to convict him in his second criminal trial. Plaintiff claims that his constitutional injuries were the proximate result of a practice or custom on the part of the City of failing to properly train, discipline and supervise its police officers and agents with respect to the constitutional rights of the criminally accused.
All Defendants have now filed motions for summary judgment with respect to all of Plaintiff's claims. Defendants Vorsheck and Edwards argue that they cannot be liable because they were not persons acting under color of state law for purposes of Plaintiff's federal claims and because their respective actions were not unlawful. Vorsheck further claims that, if he was in fact a state actor, he is entitled to summary judgment under the doctrines of collateral estoppel and/or qualified immunity. DiPaolo and Gunter likewise claim that they are entitled to summary judgment on the basis of qualified immunity. Alternatively, they claim that there is no evidence to establish any violation of Plaintiff's constitutional rights. The City contends that it is entitled to summary judgment on the § 1983 claim because Plaintiff has failed to adduce evidence of a municipal custom or policy that could have caused the alleged violations of his constitutional rights.
We conclude that summary judgment is appropriately granted in favor of Defendants DiPaolo and Gunter because, as a matter of law, they had probable cause to arrest Plaintiff and to assist in filing criminal charges against him. In the alternative, the Court concludes that DiPaolo and Gunter are entitled to qualified immunity for their conduct.
Our resolution of the claims against DiPaolo and Gunter necessarily leads us to conclude that the claims against Vorsheck and Edwards, which are premised on essentially the same conduct, also fail as a matter of law. In short, there is insufficient evidence to establish that Vorsheck or Edwards committed any violation of Plaintiff's federal constitutional rights or that they violated his rights under Pennsylvania law. Alternatively, we conclude that Vorsheck and Edwards are entitled to summary judgment on DiNicola's § 1983 claims because DiNicola cannot establish that those individuals acted under color of state law. Finally, based on our resolution of the claims against the individual Defendants, we conclude that the City is likewise entitled to judgment as a matter of law.
II. STANDARD OF REVIEW
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Upon a motion for summary judgment, the non-moving party, to prevail, must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Knabe v. Boury Corp., 114 F.3d 407, 410 n. 4 (3d Cir.1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In evaluating whether the non-moving party has established each necessary element, we must grant all reasonable inferences from the evidence to the non-moving party. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). However, "[w]here the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Id. (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348).
*637 III. DISCUSSION
1. Plaintiff's Federal Claims
Plaintiff's federal claims are brought pursuant 42 U.S.C. § 1983,[3] which provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any ... person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C.A. § 1983 (West 1994). In order to maintain an action under § 1983, a plaintiff must demonstrate: (i) a violation of a right secured by the Constitution or the laws of the United States; and (ii) that the alleged deprivation was committed by a person acting under color of state law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996) (citation omitted).
A.
We initially consider Plaintiff's claims against DiPaolo and Gunter premised on their alleged violations of his Fourth Amendment rights, including his right to be free from arrest without probable cause, false imprisonment, and malicious prosecution. The lack of probable cause is an essential element for each of these claims. See Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir.1995) (to prevail on false arrest claim under § 1983, plaintiffs would have to prove that the police lacked probable cause to arrest suspect); Id. at 636 (false imprisonment claim under § 1983 may be premised upon arrest made without probable cause); Rose v. Bartle, 871 F.2d 331, 349 (3d Cir.1989) (to establish a claim for malicious prosecution under § 1983, plaintiff must demonstrate that (1) the defendant initiated a criminal proceeding (2) which ended in plaintiff's favor (3) the criminal proceeding was initiated without probable cause, and (4) the defendant acted maliciously or for a purpose other than bringing the defendant to justice) (citation omitted) (emphasis added). Otherwise stated, the presence of probable cause is a complete bar to DiNicola's federal claims for false arrest, false imprisonment, and malicious prosecution. See Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.1996) (citation omitted); Williams v. Kobel, 789 F.2d 463, 470 (7th Cir.1986); Whitmore v. Smith, No. Civ. A. 96-2745, 1997 WL 438441 at *5 (E.D.Pa., Jul 30, 1997); Schertz v. Waupaca County, 683 F.Supp. 1551, 1564 (E.D.Wis. 1988) (citing cases), aff'd, 875 F.2d 578 (7th Cir.1989); Seip v. Newark Police Dept., 648 F.Supp. 489, 492 (D.N.J.1986).
Although the existence vel non of probable cause is normally a factual issue for the jury's determination, like any other factual issue it may be resolved by the court as a matter of law if no genuine dispute exists on the recordi.e. if, based on the evidence as a whole, a jury could not reasonably conclude that the officers lacked probable cause to make the arrest and institute criminal proceedings. See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir.1997) (citing Deary v. Three Un-Named Police Officers, 746 F.2d 185, 192 (3d Cir.1984)).
The concept of probable cause is "defined in terms of facts and circumstances `sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.'" Sharrar, 128 F.3d at 817-18 (quoting Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Thus, the standard is an objective one and is to be applied based on the facts available to the officers at the time of their alleged unlawful conduct. Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.1994) (citing Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) and Edwards v. City of Philadelphia, 860 F.2d 568, 571 n. 2 (3d Cir.1988)). Whether the accused is ultimately convicted is of no moment: "Evidence that may prove insufficient to establish guilt at trial may still be sufficient to find the arrest occurred within the bounds of the law." Id. (citing Henry v. United States, 361 *638 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)). As long as DiPaolo and Gunter had some reasonable basis to believe that DiNicola had committed the crimes with which he was charged, the arrest and prosecution are justified as being based on probable cause. See id.
In order to determine whether Plaintiff can demonstrate a lack of probable cause on this record, we must undertake a somewhat extensive review of the facts. First, however, some commentary is warranted regarding this Court's factual scope of review. Plaintiff has challenged his arrest and prosecution on the basis that the affidavit in support of the arrest warrant contained material omissions and/or misrepresentations which, when corrected, vitiate probable cause. In other words, DiNicola posits that his arrest (albeit effectuated pursuant to an arrest warrant) was unconstitutional because the warrant was allegedly procured through deception on the part of DiPaolo and Gunter: "An arrest warrant does not defeat a claim of malicious prosecution where ... the plaintiff can show that the warrant was secured by fraud, perjury or other corrupt means." (Pl.'s Br. in Opp. to Summ. Judg. at 30 (citing Rose v. Bartle, supra)). Implicit in Plaintiff's position is the view that the existence vel non of probable cause is determined by examining the four corners of the affidavit in support of the arrest warrant.
The Court does not agree that its review must be so limited. Instead, we will treat DiNicola's arrest as essentially a warrantless arrest, which is constitutionally valid as long as it was supported by probable cause. Furthermore, in analyzing the issue of probable cause, we will look beyond the information which the officers chose to include in their affidavit in support of the arrest warrant and will consider the totality of factors known to DiPaolo and Gunter at the time the arrest was effectuated and criminal charges filed. The Court fully recognizes that DiNicola was arrested at his home on March 26, 1980 and that, normally, when a person is arrested in his or her home, a warrant is required to properly effectuate the arrest. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable."). However, federal courts have recognized an exception to this rule where exigent circumstances exist, or where entry into the home is consensual. Steagald v. United States, 451 U.S. 204, 214 n. 7, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) ("[A]bsent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effectuate an arrest is unreasonable without a warrant.") (emphasis supplied); United States v. Cotnam, 88 F.3d 487, 495 (7th Cir.1996) (recognizing that an individual can consent to a warrantless entry of officers into their home), cert. denied, ___ U.S. ___, 117 S.Ct. 326, 136 L.Ed.2d 240 (1996); Parkhurst v. Trapp, 77 F.3d 707, 710-11 (3d Cir.1996) (although warrantless arrests in public places are valid, greater burden is placed on an official who enters a home or dwelling without consent) (citing Payton, 445 U.S. at 587, 100 S.Ct. 1371); United States v. Vaneaton, 49 F.3d 1423, 1428 (9th Cir.1995) (Payton left open only two ways for the government to overcome the presumption that warrantless seizure in the home is invalid: a showing of exigent circumstances or a showing of consent to the entry) (dissent), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 218 (1996); United States v. Sager, 743 F.2d 1261, 1263 (8th Cir.1984) (referencing in dicta Payton's holding that police may not enter a suspect's home to make a routine felony arrest absent consent or a warrant), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985).[4] The "consent" exception is based on the recognition that an individual's privacy interest in the sanctity of his or her home is a primary concern behind the requirement for an arrest warrant. See Payton, 445 U.S. at 587, 100 S.Ct. 1371 ("Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment."); Parkhurst v. Trapp, 77 F.3d *639 at 711. This interest is not violated where officers gain consensual entry prior to effectuating an arrest in the suspect's home or dwelling.
In this case, there is no dispute but that DiPaolo and Gunter gained consensual entry into DiNicola's house on the morning of his arrest.[5] By virtue of this consensual entry, no warrant was technically necessary in order to lawfully arrest DiNicola, assuming that the arrest was otherwise supported by probable cause. See, e.g., Stokes v. O'Connor, Civ. A. Nos. 93-16, 93-208-SLR, 1994 WL 829066 at *8 (D.Del. June 30, 1994) (where police had lacked warrant to enter apartment dwelling in which plaintiff was arrested, plaintiff's fourth amendment claim under § 1983 would turn on whether police had consent to enter the apartment or whether exigent circumstances justified warrantless, non-consensual entry); United States v. Tidswell, 753 F.Supp. 1001, 1007 (D.Me.1990) (defendant voluntarily exposed himself to warrantless arrest by consenting to undercover agent's entry into his residence).
To sum up, we can view DiNicola's arrest as a lawful warrantless arrest as long as probable cause existed to support it. In making the latter determination, we consider the broad array of information known by the officers, i.e. the totality of the facts not simply those facts which they chose to include in their affidavit in support of the arrest warrant. Accordingly, we will review in some detail the chain of events leading up to DiNicola's arrest and prosecution.
(i) The Background Facts[6]
On the afternoon or early evening of August 30, 1979, DiNicola accompanied his friend, Michael Jefferson, from their workplace at the McCreary Roofing Company to Jefferson's home at 622 West 16th Street in Erie. Upon arriving at Jefferson's residence, the two men worked on Jefferson's truck, smoked marijuana and drank beer. Jefferson lived in the upstairs apartment with his mother, Cora Jefferson, and Cora's fiancé, Eugene Pitts.
While Jefferson and DiNicola were working on the truck, Deborah Sweet arrived home with her two children. Sweet had just recently moved into the first floor apartment. She began talking with Jefferson and DiNicola and eventually invited them inside her apartment for a beer. DiNicola retrieved a newly purchased case of beer from Sweet's car and carried it inside her apartment. Jefferson followed.
Inside the apartment, the three individuals talked, drank beer and smoked marijuana. At some time around 9:00 p.m. or shortly thereafter, Sweet put her two children, Alisa Minton (age eight) and Geoffrey Sweet (age four) to bed. At approximately 10:00 p.m., Sweet received a telephone call from a friend named Glen Martin. While Sweet was on the telephone, Jefferson, still dirty from his work, took a bath in Sweet's bathtub. When he was finished, DiNicola asked permission to take a bath and Sweet consented. Jefferson retrieved some additional marijuana and, while DiNicola bathed, he and Sweet smoked the marijuana and listened to music in Sweet's living room. Subsequently, while DiNicola was still in the bathroom, Jefferson and Sweet entered Sweet's bedroom and, with the door ajar, engaged in sexual intercourse. DiNicola subsequently exited the bathroom at the northwest end of the apartment *640 and proceeded past Sweet's bedroom toward the south end of the apartment.
Sweet and Jefferson remained in her bedroom together until, at some point around midnight, they arose to find that the apartment was engulfed in flames. DiNicola, Jefferson and Sweet exited the apartment through the only operable exit at the north end of her apartment. Sweet, unfortunately, was unable to save her children. Both Alisa Minton and Geoffrey Sweet perished in the fire, along with Cora Jefferson's fiancé, Eugene Pitts.
(ii) The Criminal Investigation of the Fire at 622 West 16th Street[7]
At the time of the fire at 622 West 16th Street, Defendants DiPaolo and Gunter were both employed as detectives with the Erie Police Department. They first became involved in the investigation of the fire on the morning of August 31, 1979. (Def.'s App., Vol. V at 2052a.) On that date DiPaolo and Gunter proceeded to the scene of the fire and found that two Pennsylvania State Police Fire Marshals, Troopers Roger Bellotti and Thomas May, were already in the process of investigating the cause and origin of the fire. Also present was John Kucinski, Chief Fire Inspector of the Erie Fire Department. Troopers Bellotti and May examined the interior and exterior of the house. Inside the house, they found evidence of "alligator" burn patterns on the floor of the den area.[8] The evidence suggested to the troopers that the fire was of incendiary origin, that it began from the inside of the house, and that a flammable liquid had been used by the perpetrator. (Id. at 2160a.) They ruled out accidental means or an electrical fire as possible causes. (Id.) The troopers located the den area on the first floor as the point of origin. (Def.s' App., Vol. V at 2157a, 2162a.) They submitted samples of debris for chemical analysis, including pieces of burned floor boards. (See generally Def.s' App., Vol. V at 2156a-2162a.) Chemical testing would subsequently reveal the presence of a flammable liquid known as "stoddard solvent." Stoddard solvent was one of the substances used by the McCreary Roofing Company, where both Jefferson and DiNicola worked. (Id. at 2165a.)
Upon arriving at the scene of the fire, DiPaolo and Gunter began interviewing witnesses. (See generally Def.s' App., Vol. V. at 2052a et seq.) They took a detailed statement from Michael Jefferson, who had been with Sweet at the time the fire broke out. Jefferson essentially recounted the sequence of events on the night of the fire, as set forth above. He informed the officers that the last thing he remembered was being in bed with Sweet and awakening to the sound of DiNicola shouting, "Let's get out of here, there's a fire." Jefferson recalled that he got out of bed, looked into the dining room area and found the dining room fully engulfed in flames. He then ran from Sweet's bedroom out of the apartment. Once outside, Jefferson saw a number of neighbors congregated in the street. By this time, according to the police report of Jefferson's statement, the entire house was in flames. Jefferson recalled that he was not wearing shoes at the time, and that DiNicola was. Aware that his mother Cora was in the upstairs apartment, Jefferson stated that he asked DiNicola to kick in the door to the upstairs apartment and retrieve his mother, since DiNicola was not in bare feet. According to Jefferson. DiNicola complied and did in fact help Mrs. Jefferson out of the upstairs apartment.
*641 DiPaolo and Gunter also interviewed Evelyn Wynkoop, the daughter of Cora Jefferson. Ms. Wynkoop informed the detectives that Cora had previously lived with a man by the name of Pete Moore for approximately 10 years and had broken up with Mr. Moore about one year prior to the fire. According to the police report, Ms. Wynkoop related that Mr. Moore had called Cora on several occasions, stating that he would stop the wedding between Cora and Mr. Pitts one way or another and that "he didn't care what happened but [Cora] would never marry" Mr. Pitts. (Def.'s App. Vol. V at 2054a.) Ms. Wynkoop advised that Mr. Moore had last contacted Cora Jefferson on August 25, 1979, just days before the fire. Another witness, Judith Pristello, confirmed that Pete Moore had argued with Cora Jefferson about one week prior to the fire and had made a statement to the effect, "You[] [and Pitts] will never be together as long as I can help it." (Def.'s App. Vol. V at 2054a.) Nonetheless, as discussed in more detail infra, the detectives' investigation into the whereabouts of Pete Moore on the night of the fire ultimately led them to believe that Moore had a solid alibi.
In addition to interviewing Michael Jefferson and Evelyn Wynkoop, DiPaolo and Gunter interviewed several neighbors who had witnessed the fire. By all accounts, the fire occurred shortly after midnight on the morning of August 31, 1979 and was very intense and fast moving. Some witnesses claimed that the entire house was up in flames in a matter of seconds. (Def.'s App., Vol. V at 2055a.) As a result of their interviews, the detectives were aware that both Sweet and Cora Jefferson had been taken to the hospital for treatment following the fire. Michael Jefferson had remained at the scene of the fire even after the firefighters arrived. Jefferson advised DiPaolo and Gunter that, to the best of his knowledge, DiNicola had left the scene of the fire shortly after it started and had gone to his mother's house to sleep.
On the afternoon of August 31, 1979, DiPaolo and Gunter interviewed DiNicola at a job site where he was working. (Def.s' App., Vol. V at 2056a et seq.) DiNicola corroborated the fact that he and Jefferson had been working together on Jefferson's truck after work the previous evening when Sweet arrived home with her children. He confirmed the fact that Sweet had invited the two men inside for beer and that he, Jefferson and Sweet had smoked marijuana that evening. DiNicola also remembered Sweet getting a telephone call that evening. He informed the officers that Sweet had seemed upset from the call and that she had instructed him not to answer the telephone if it rang again. Following the telephone call, DiNicola asked Sweet's permission to take a bath in her bathtub. Sweet consented. DiNicola told the detectives that, after finishing his bath, he came out of the bathroom and noticed that Sweet and Jefferson were in her bedroom. He claimed that he then went into the living room (at the southwest end of the apartment) and fell asleep on the couch in that room. He stated that he had been sleeping in the living room when something woke him up. Upon waking, he saw that the wall directly across from him, i.e. the east interior wall of the living room, was on fire. He claimed that he ran from the room, yelling and screaming that there was a fire in the home. Being unfamiliar with the house and the floor plan, he saw a door in the kitchen area which he tried to kick open, only to discover that the door he was kicking was the door to the bathroom. He claimed that he saw a light shining from one of the doors on the east side of the home and lunged through the door to the outside of the house. Jefferson followed behind him.
DiNicola further stated that, once outside, he ran to the front (south side) of the home and yelled for others to call the fire department. He thought he recalled going upstairs to take Cora Jefferson to safety, but he was not sure. Once the fire department had arrived and began fighting the fire, he had felt there was nothing that he could do and, it being late, he left the scene and went to his mother's house to sleep.
DiPaolo and Gunter next interviewed Cora Jefferson, who had been sleeping upstairs with Eugene Pitts at the time of the fire. Mrs. Jefferson confirmed that her son Michael, DiNicola and Sweet had been downstairs at the time of the fire, while she and *642 Mr. Pitts had been upstairs. Mrs. Jefferson recalled hearing screaming and smelling smoke. She then attempted to run down the stairs to safety. She recalled being about halfway downstairs when someone (she thought DiNicola) grabbed her arm and pulled her down to the ground. Meanwhile, Pitts was upstairs on the second floor. Some witnesses to the fire, along with Cora Jefferson, had yelled for Pitts to jump out of the window, but he did not do so and eventually died on the stairwell to the first floor.
DiPaolo and Gunter spoke with DiNicola again the following day, September 1, 1979. That morning, DiNicola came to the police station and was questioned about the exact location where he had allegedly been sleeping at the time of the fire. Upon DiNicola's request, the officers accompanied him to the scene of the fire so that he could physically show them where he had been sleeping. Together, they walked through the remains of Sweet's apartment. Upon entering the living room area, DiNicola grabbed a piece of wood and began digging through the ashes and debris. He remarked that, if he could locate his sandals, he would be able to point out where he had been sleeping. DiNicola explained that, upon awaking to the fire, he had run out of the house, leaving his sandals in the living room next to the couch on which he had lain. He dug through the debris and presented to the officers what appeared to be the burnt remains of a sandal. He pointed to that spot as the location where he had been sleeping. The detectives noted that a portion of a couch remained in place against the west wall of the living room in the southwest corner of the living room. DiNicola remarked that the source of the fire was probably the stereo. The stereo had formerly rested against the east interior wall of the living room, directly across from the couch on which DiNicola allegedly had lain.
On September 5, 1979, Troopers Bellotti and May returned to the scene of the fire. At the request of Detective DiPaolo, they undertook a more detailed inspection of the living room, especially the area around the stereo and the east wall of the living room. Low burn patterns in and around the stereo suggested to the troopers that this was another point of intense burning and that, here too, some type of accelerant had been used. The troopers inspected the electrical outlet by the stereo and ruled out an electrical fire as a possible cause. They then collected additional samples, including a piece of floor board near the stereo and part of the cabinet which had held the stereo. These samples were submitted for chemical analysis. It was subsequently determined that the stereo cabinet showed traces of stoddard solvent.
DiPaolo next spoke to DiNicola on September 6, 1979 at Wilson Junior High School, where DiNicola was working on a job for McCreary Roofing. At that time DiNicola was again asked if there were any additional details that he could remember about the night of the fire. DiNicola stated that his memory from that night was somewhat "foggy," and that he could not recall what had taken place. He then inquired if the officers had determined whether the stereo was the cause of the fire. DiPaolo responded that the fire had not been electrical. According to the police report, DiNicola then remarked, "You know[,] arson is tough to prove, and in the back of your mind you might know who did it, but you can't prove it." (Def.'s App. Vol. V at 2062a.) It appears that DiPaolo found this remark significant, because he pointed out in the police report that no mention had been made to DiNicola about arson being the cause of the fire. (Id.) During this meeting, DiPaolo asked whether DiNicola would be willing to submit to hypnosis with the hope that it would aid his recollection of events. DiNicola agreed and commented that he wanted to find out what had actually happened that night. DiNicola also agreed to submit to a polygraph test.
Meanwhile, that same day Detective Gunter and Troopers Bellotti and May visited Sweet at St. Vincent's Health Center in Erie, where she had been taken for treatment. After reading Sweet her Miranda rights, Gunter and the state troopers took a tape recorded statement from her concerning the events that transpired on the night of August 30, 1979. Although Sweet could not recall all of the details of that evening, she did essentially corroborate Jefferson's statement about inviting the two men into her apartment, *643 smoking marijuana, allowing DiNicola to take a bath in her tub, engaging in sex with Jefferson, and being in bed with Jefferson at the time the fire broke out. (See generally Pl.'s App., Ex. B.)
Sweet recalled that, as she drove up to her house on the evening of August 30, 1979 with her children, she spotted DiNicola and Jefferson outside together smoking marijuana and drinking beer. She explained that she had previously had an argument with Jefferson about where he was parking his truck and, feeling badly about the argument, she sought to smooth things over and make amends. As Sweet approached Jefferson and DiNicola and began talking to them, they offered her some marijuana, which she tried. Sweet then asked if one of them would help her with a case of beer that she had just purchased. DiNicola retrieved the case of beer from the trunk of Sweet's car and carried it into her apartment. Jefferson also was invited into the apartment. Once inside, Sweet offered them each a beer. Sweet had only known Jefferson for a few days and had never before met DiNicola, whom she described to the police as a "weird person." Once inside, Jefferson, DiNicola and Sweet all sat around her kitchen drinking beer. At some point, Jefferson told Sweet that he had some marijuana for her to try. Sweet remembered telling Jefferson to go and get the marijuana while she put her children to bed. After Jefferson came back downstairs, they smoked the marijuana, which Sweet described as very strong. Sweet recalled asking "what about Louie?" and Jefferson replied that DiNicola had "been at it all day."
Sweet corroborated the fact that, while they were all in the kitchen, she received a telephone call from a friend in Texas. She remembered talking to him from approximately 10:00 to 10:30 p.m. During this time, she remembered sensing "commotion" in the kitchen somebody left and reentered the apartment twice. Sweet also remembered being concerned that she had left her purse in the kitchen and that the purse contained several hundred dollars as well as her wallet and car keys. She recalled going into the kitchen, grabbing her purse and bringing the purse into the living room while on the telephone.
Sweet verified that, after she got off the telephone, DiNicola asked permission to take a bath in her bathtub. She consented. Sweet and Jefferson then proceeded into the living room and listened to music on her stereo. Sweet informed the officers that, during this time, she had candles burning; however, she strongly denied that these could have been a cause of the fire. Sweet explained that the candles were "dripless" candles, which were positioned in holders extending out from the wall. She explained that she had already partially burned the candles down the day before. Sweet also had other candles enclosed in glass cases which she felt were safe and could not have caused a fire. She recalled that she had a candle lit near the stereo in the living room; however, she claimed that this candle would not burn right and she did not believe it was even still lit by the time that she and Jefferson went into the living room to listen to music. She thought she recalled that the candle had been lit and had gone out a short time later. Sweet remembered being very high from the marijuana during this time when she was alone with Jefferson.
Sweet also recalled knocking on the bathroom door while DiNicola was taking a bath, and asking him to hurry up because she had to use the toilet. DiNicola told her to come in and stated that he would not look at her while she was in there. She then entered the bathroom and recalled DiNicola sticking his head out, with soap all over his face and saying, "See ... I promise, I won't look." Sweet then asked DiNicola to hurry up so that she could take a shower.
After leaving the bathroom, Sweet saw Jefferson standing at the corner of her bedroom. She and Jefferson entered her bedroom and began having sex with the bedroom door open. Shortly thereafter, Sweet recalled DiNicola coming out of the bathroom and passing by her bedroom door. She remembered hearing DiNicola "fumbling around" and asked Jefferson what DiNicola was doing. Jefferson replied, "Don't worry about him. He's okay. He's just drunk. He's just smashed. He'll sit down." Sweet *644 then expressed concern about DiNicola getting into her stereo. Jefferson again assured Sweet that DiNicola would be alright. Sweet recalled hearing "this racket going on ... like there's this fumbling around, and it was bugging me." She stated that the next thing she recalled was smelling smoke and seeing Jefferson jump up from the bed. Sweet recalled that she saw smoke everywhere. She claimed that she ran into the kitchen and saw smoke coming from the living room. She then ran into the dining room (or den area), and saw that smoke was swirling and rolling. She saw that the living room was in flames, "clear to the ceiling." Sweet recalled that she ran outside and began screaming for someone to save her children.
Insofar as DiNicola's actions were concerned, Sweet recalled hearing him "running around" the apartment prior to the time that she first noticed the smoke. She recalled DiNicola saying, "Come on, let's get out of here." Sweet commented to the officers that she had felt there was something strange about DiNicola. According to the transcript of the interview, Sweet remarked that:
there was something about [DiNicola] because I remember I was ... when Mike and I were talking alone I was asking about Louie, you know, I said, "he's a weird dude." [Jefferson] says, "yeah, he's been taking stuff all day and he's been smoking all day and he's just pretty screwed up," and I said, "Oh, is that it?" And [Jefferson] said, "Well, he's kind of strange too, but he's my friend."
(Pl.'s App., Ex. E at 7.)
On September 10, 1979, four days after the interview with Sweet, DiNicola was escorted by DiPaolo and Gunter to the office of Defendant Vorsheck. (See Def.s' App., Vol. V. at 2067a et seq.) At deposition, DiNicola noted that the purpose for his going to see Vorsheck was to find out whether under hypnosis he could recall seeing another individual (presumably, the perpetrator) run out of Sweet's apartment ahead of himself on the night of the fire. Before entering Vorsheck's office, DiNicola was given his Miranda rights, which he verbally waived.
Gunter testified at deposition that, at one point early in the meeting, DiPaolo and Vorsheck briefly stepped into another room while DiNicola remained alone in the waiting area with Gunter. During DiPaolo's brief absence, DiNicola allegedly turned to Gunter and stated, "If it turns out I did this, I want the firing squad." Gunter testified that DiNicola then struck a "military pose" and mimicked "spraying the wall with a machine gun, including the at-at-at noises." (Def.s' App., Vol. III at 1158a.) This incident is also noted in the officers' police report. (Def.s' App., Vol. V at 2067a.)
What happened next is a matter of somewhat differing accounts. Gunter and DiPaolo each maintain that they remained downstairs together in the waiting area to Vorsheck's office while Vorsheck and DiNicola proceeded upstairs together to attempt hypnosis. Both officers testified that, at some point, Vorsheck came downstairs where they were waiting and related that the session was not going well and that DiNicola was "fighting" the hypnosis. Vorsheck then returned back upstairs to make another (apparently unsuccessful) attempt at hypnotizing DiNicola. However, DiNicola claimed at deposition that DiPaolo accompanied him and Vorsheck upstairs and remained in the same room until the attempted hypnosis was aborted. In any event, however, it is undisputed that Vorsheck was never able to achieve a hypnotic regression. DiNicola admitted at deposition that he thought he recalled Vorsheck telling him "you're not being cooperative."
It is also undisputed that, after the aborted attempt at hypnosis, Vorsheck and DiNicola proceeded downstairs into the waiting room area of Vorsheck's office. At some point, then Assistant District Attorney Shad Connelly arrived at the office and remained in the waiting area where the others were gathered. According to Gunter, a casual conversation ensued during which Vorsheck asked DiNicola whether he had ever been involved in a fire prior to the one at Sweet's apartment. DiNicola then volunteered that he had prior experience burning down sections of his barn by way of controlled fire. He spoke of starting a field fire on his farm. He also spoke of the fact that Indians had used controlled fires to burn out sections of forests. According to Gunter, DiNicola went on *645 at some length talking about fires, jumping from one fire subject to another, without any prodding or encouragement by the police. He spoke of a prior occasion burning a pile of manure, explaining how it fascinated him that the pile would burn very slowly and the fire would apparently die, then rekindle and eventually consume the entire pile. According to Gunter, DiNicola started "rambling" about being in Vietnam and how when the "Ho Chi's catch fire, ... you run for your life and dive in ditches." Gunter recalled that DiNicola seemed to have a fascination with fires. DiPaolo in his deposition described DiNicola as "excited" while carrying on this discourse about fires. In their police report, DiPaolo and Gunter recounted this exchange thus:
It seemed that once DiNicola started talking about this area of fires he became very involved in it. Then it got to the point where he realized what he was doing, that he was talking about it and making us know that he knew a lot [sic] about fires and he stated "you really think that I burned those kids up". Dr. Horshak [sic] stated at this time "nobody stated that you did". Then all of a sudden the subject of fire was gone and he wouldn't talk about it any more.
(Def.'s App., Vol. V at 2067a.)
DiNicola does not dispute that this conversation occurred, but he characterizes the context in which it occurred somewhat differently. He claims that the conversation took place only between himself and Gunter. He claims that Gunter, being a former member of the military (like DiNicola), asked DiNicola if he had ever been involved in fires before. DiNicola then related his experience of seeing bombings in the Vietnam War and his experience of burning the remains of an old barn on his property.
In any event, after this episode at Vorsheck's office, both DiPaolo and Gunter were focussing on DiNicola as a prime suspect in the fire. As reflected in a police report dated September 13, 1979, the detectives found it significant that certain of DiNicola's statements appeared to be untrue. (Def.s' App., Vol. V at 2068a.) For example, DiNicola had stated that, upon discovering the fire, he had run into Sweet's bathroom due to his lack of familiarity with the apartment, then ran out of the house without any shoes on. However, Jefferson had stated that he asked DiNicola to kick down the door to the upstairs apartment because he saw that DiNicola had sneakers on. Cora Jefferson had verified that DiNicola did, in fact, bring her out of the burning house. Thus, there was a discrepancy in the facts in terms of what, if anything, DiNicola was wearing on his feet at the time of the fire.
Seeking to obtain more information from Jefferson, DiPaolo and Gunter requested that he undergo a polygraph examination at the Erie police station. The officers apparently suspected that DiNicola might have talked to Jefferson about the night of the fire, since the two men were friends and co-workers. Jefferson did submit to a polygraph examination on September 12, 1979. A police report indicates that, about half-way through the examination, Jefferson got upset about some of the questions he was asked and refused to continue. (Def.s' App., Vol. V at 2068a.) However, it was noted that during the course of the polygraph exam Jefferson had tested deceptive to two questions: "Do you know anything about the fire?" and "Do you know who possibly might have been responsible for the fire?" (Id.)
Following the polygraph, Jefferson was given his Miranda rights and interrogated. A police report indicates that Jefferson denied any involvement in the fire or any knowledge concerning it. He stated, however, that DiNicola had advised him the previous morning "just to tell the police that the f___ place was unfit to live." (Def.'s App. Vol. V at 2069a.) Jefferson also related that DiNicola talked about fires and barns all the time and had burned his own barn down. The officers asked Jefferson again about his recollection as to what, if anything, DiNicola was wearing on his feet at the time of the fire. Jefferson remained steadfast in insisting that DiNicola had been wearing something on his feet. He specifically remembered that this was the reason he had directed DiNicola to kick in the door to his mother's apartment.
*646 While under interrogation, Jefferson again went over the events in Sweet's apartment prior to the fire. He recalled that he, Sweet, and DiNicola had all smoked marijuana that evening and were "a little high." According to the police report, Jefferson told the officers that "they" (presumably he and DiNicola) had been grabbing Sweet and kissing her. Jefferson corroborated Sweet's previous recollection of going into the bathroom while DiNicola was bathing. He recounted going into Sweet's bedroom and having sex with her, after which he had dozed off to sleep. Jefferson claimed that Sweet woke him up, asking "What the hell is all that noise?," to which he replied that it was "probably [DiNicola] getting sick." Jefferson claimed to have seen DiNicola walking or running in a position bent over as if he was going to vomit. He described DiNicola as appearing "like a mad-man," ranting and raving and knocking things over, appearing as if he was running from something, making noises. In contrast to his original statement, Jefferson now denied that DiNicola had ever yelled "fire, let's get out," or anything of that nature. He insisted that what woke him and Sweet up was the sound of DiNicola "banging into everything" in the apartment. By the time he and Sweet realized that there was a fire in the house, they had to run out because the apartment was engulfed in flames and it was too late to get the children. Jefferson told the officers that, after he had exited the house and things had calmed down, "he thought in his own mind that it appeared as if DiNicola had been up for awhile and had not been sleeping." He also recalled that DiNicola had been "too cool" in terms of not panicking over the fire. (Def.s' App, Vol. V at 2069a.)
During the interrogation, the issue was raised whether Jefferson knew something more than he was telling the police. Jefferson reportedly remarked, "You know Louie's Italian and he's got a lot of relatives." DiPaolo and Gunter apparently took this as an indication that Jefferson had more information but was afraid to talk. (Def.s' App., Vol. V at 2070a.) Their report indicates that the detectives "hammered" him on that point, but Jefferson denied any additional knowledge about the fire.
On September 17, 1979, DiPaolo and Gunter returned to the office of Defendant Vorsheck with Deborah Sweet, who had agreed to undergo hypnosis in an effort to assist the investigation. What occurred during this hypnotic session is a matter of some disagreement between the parties. However, it is undisputed that Sweet was successfully placed in a hypnotic regression and, while under hypnosis, gave a more detailed account of the night of the fire.[9] (See generally Pl.'s App., Ex. R.) In this account, Sweet related a number of facts that incriminated DiNicola in the fire. For example, Sweet recalled an incident earlier in the evening when DiNicola had made a "pass" at her, which she rejected thus buttressing a possible motive for starting the fire. She also specifically remembered hearing DiNicola leave the house during the time that she was in bed with Jefferson, and recalled that the door had not locked behind him. This fact was consistent with the officers' theory that DiNicola left the house to obtain the accelerant while Jefferson and Sweet were in bed together. Sweet further recalled having some concern while in bed with Jefferson that DiNicola might "bother" her daughter. Finally, she recalled coming out of her bedroom after the fire started and seeing DiNicola standing over the fire and staring at it.[10]
Meanwhile, DiPaolo and Gunter engaged in efforts to locate Pete Moore, the former boyfriend of Cora Jefferson. A police report indicates that Moore was located on September 20, 1979 and, after receiving Miranda *647 warnings, gave a statement to the police. (See Def.s' App., Vol. V at 2036a, 2083a.) Moore admitted having made threatening statements to Cora Jefferson in the past, but stated that he still loved Cora and would never do anything to harm her. In his statement, Moore claimed to have spent the evening of August 30, 1979 with a companion attending various bars and ultimately spending the night at his companion's house in McKean, Pennsylvania. Moore agreed to take a lie detector test, which was performed on October 1. According to Detective Robert Johns, who performed the test, Moore passed the polygraph without any signs of deception. A police report generated by DiPaolo and Gunter on October 3, 1979 indicates that they felt Moore at that point had been cleared as a possible suspect. (Def.s' App., Vol. V at 2083a.)
DiNicola had likewise been scheduled to take a polygraph examination, which was administered by Detective Johns on October 2, 1979.[11] A police report notes Detective Johns's belief that DiNicola had deliberately undermined the polygraph results by moving around in his chair and coughing during the interview. In addition, Detective Johns felt that DiNicola had tested "deceptive" in response to two questions: "What do you know about the fire?" and "Did you start the fire?"[12] (Def.'s App., Vol. V at 2083a.)
Following the polygraph, DiNicola was again given his Miranda rights and was interrogated by DiPaolo and Gunter. (See generally Def.s' App., Vol. V at 2082a, 2084a et seq.) Then Assistant District Attorney Shad Connelly was also present. According to the officers' report, DiNicola began talking like a "rav[ing] maniac," stating that he thought the fire was an electrical fire and that DiPaolo and Gunter just wanted to stick a charge on someone, that the house was not fit to live in, that there was "no way" this fire was an arson and that the whole thing was just "an insurance job." (Def.s' App., Vol. V at 2082a, 2084a.) The officers then asked DiNicola about Sweet knocking on the bathroom door while he was bathing. He responded that this incident never happened and that the police were "crazy." He denied ever leaving Sweet's apartment after his bath and specifically denied starting the fire. (Id.) The report also recounts that DiNicola began screaming that the police thought he is a "kid killer" and that they were "nuts." (Id.) DiNicola then asked ADA Connelly what he thought. Connelly replied that he thought DiNicola had started the fire.[13] DiNicola responded that "they" were all "f_____ toads," and were crazy. Upon being informed that he was free to leave, DiNicola departed the police station. (Id. at 2082a.)
On January 30, 1979, DiPaolo and Gunter met with Assistant District Attorneys Shad Connelly and Michael Cauley and Captain Ruffo of the Erie Police Department. (Def.s' App., Vol. V at 2091a.) After they reviewed all of the police reports in the case, it was agreed that DiNicola would be charged for the arson and homicides. Subsequently, a conflict arose which ultimately disqualified the entire Erie District Attorney's office from further involvement in the case and resulted in further delays. Attorney Michael Fetzner was later appointed as special prosecutor. Mr. Fetzner directed that certain actions be taken prior to the filing of charges against DiNicola. Among other things. Fetzner directed that the Erie police; (i) check with the gas company for the possibility of a gas leak at Sweet's residence; (ii) contact the owner of Sweet's apartment relative to any prior fires that may have occurred at the premises; (iii) check Sweet's mental history for incidents of prior mental *648 health treatment; and (iv) obtain a statement from Cynthia Pryber, Pete Moore's alleged companion on the night of the fire. (Def.s' App., Vol. V at 2092a.)
All of the foregoing requests were fulfilled by the police. (See Def.s' App., Vol. V at 2093a et seq.) The owner of Sweet's apartment house, Charles Scalise, was contacted regarding the issue of prior fires at 622 West 16th Street. It was determined that a fire had previously occurred at the house in 1976 as the result of the second floor tenant smoking in bed. The renovation of the house had been paid for by insurance. At the time of the fire on August 30-31, 1979, the house had been insured for approximately $23,000.00. Upon contacting National Fuel Gas company, the police were advised that no leak was detected in the gas line leading to the house. However, the inside line and appliances could not be tested due to fire damage. In addition, the officers investigated Sweet's mental health history and learned that her hospitalization at St. Vincent's Health Center following the fire was the first time she had ever received mental health treatment. Finally, on February 11, 1980, the police took a statement from Cynthia Pryber. Ms. Pryber stated that she was with Pete Moore from 4:30 p.m. on August 30, 1979 until about 9:30 a.m. the following morning. During that time, Pryber and Moore were reportedly together at the K & Z tavern, then subsequently the McKean Tavern, and then finally Pryber's home in McKean. (Def.s' App., Vol. V at 2041a-42a.) Following DiNicola's arrest, Pryber's brother corroborated the fact that the couple were at Pryber's house at least between the hours of 11:00 p.m. to 1:00 am on the night of the fire. (Id. at 2028a-29a.)
On March 26, 1980 DiNicola was arrested and charged with arson and three counts of murder in the second degree.
(iii) The Issue of Probable Cause
As discussed supra, probable cause exists when the "facts and circumstances are `sufficient to warrant a prudent [person] in believing that the [suspect] had committed ... an offense.'" Sharrar, 128 F.3d at 817-18 (quoting Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Based on an extensive review of the record, including all of the in-court testimony, depositions and reports of state and local law enforcement agents documenting their investigation, the Court concludes that no genuine issue of fact exists as to probable cause because, as a matter of law, DiPaolo and Gunter had probable cause to believe that DiNicola committed the offenses for which he was arrested and charged.
By the time that DiNicola was arrested and charged in March 1980, the investigation had been ongoing for over six months. Dozens of witness interviews had been conducted, as is documented in the criminal investigation file and, in particular, multiple statements had been taken by the key witnesses. The state fire marshals, after conducting an investigation into the cause and origin of the fire, had ruled the fire an arson. There was evidence that the perpetrator had used a flammable liquid subsequently identified as stoddard solvent. This effectively ruled out the possibility that the fire had been started by accidental means or that it was an electrical fire, notwithstanding DiNicola's protestations to the contrary.[14] The accelerant used in the fire had been identified as one of the solvents used by and available at the McCreary Roofing Company, where both Jefferson and DiNicola worked. It had also been established that Stoddard Solvent was sold only in 55 gallon drums to commercial establishments.
In addition, multiple statements obtained from Jefferson, Sweet and DiNicola all corroborated the fact that DiNicola was the only one of the three adults in Sweet's apartment unaccounted for at the time the fire broke out and, thus, the only one of the three with the apparent opportunity to start the fire. Especially noteworthy is the physical layout of Sweet's apartment which, when considered in light of the point of origin of the fire, supports the officers' suspicion that DiNicola was the perpetrator. Having seen Sweet's *649 apartment first hand, DiPaolo and Gunter were aware that there was only one operational entrance and exit, which was located at the north end of the apartment off of the kitchen.[15] They were also aware that DiNicola claimed to have fallen asleep in the living room, which was located at the opposite end of the apartment, at the southwest corner of the building. The officers were further aware that accelerant had been spread both in the den and around the stereo in the living room. The fire marshals' testimony and reports establish that they believed the fire had started in the den and proceeded into the living room area. DiNicola had claimed that he was asleep in the living room when he awoke to the sound of the fire, and then fled the house. In order to believe DiNicola's account, one would have to accept that the perpetrator entered the house, passed by Sweet's open bedroom door without being detected either by Sweet or Jefferson, proceeded through the den to the living room the very room in which DiNicola claimed to be sleeping sprinkled accelerant over the stereo in that room, and then proceeded back through the apartment, again without being detected.[16] One also must accept that, although DiNicola never heard the intruder in the very room where he slept, he managed to awake to the fire in time to make a narrow escape out of an apartment with which he lacked familiarity, despite his reportedly intoxicated state and the presence of thick smoke in the house. Indeed, not only did he escape unharmed from the house, but he was the first one out. By all accounts, the fire was extremely fast moving and consumed the entire house within minuteseven seconds, according to two witnesses. (Def.s' App., Vol. V at 2055a.) Thus, DiNicola would have to have awoken just moments after the fire was started. And, moreover, he would have to have passed through the doorway from the living room into the den an area identified by the Pennsylvania State Police as one of heavy burning, and also traverse the den area, which the fire marshals located as the point of origin. Given these obstacles, the window of opportunity for DiNicola to make a safe exit from the apartment was narrow indeed, assuming his version of events. At the same time, it is evident that Sweet's children, who were presumably more familiar with the apartment, and whose rooms were not found to contain traces of accelerant, could not manage to escape in time to save themselves. In the face of such evidence, prudent police officers would have been justified in finding DiNicola's account somewhat dubious.
At the same time, DiPaolo and Gunter had information from Sweet's original (September 6, 1979) statement which suggested that DiNicola had been up and about in the apartment making "a racket" while she and Jefferson were in bed together. Jefferson corroborated the fact that he and Sweet had heard DiNicola moving about in the apartment and "banging into everything." (Def.s' App., Vol. V at 2069a.) This information placed DiNicola in the apartment and moving about prior to the outbreak of the fire. It is plausibly consistent with the officers' theory that, while Sweet and Jefferson were in bed together, DiNicola had obtained the solvent and was spreading it about the apartment. Moreover, DiNicola's deposition testimony suggests that the officers questioned him about whether he had seen anyone leaving the apartment ahead of himself. Thus, they *650 apparently pursued the theory that another individual other than DiNicola might have started the fire. However, DiNicola consistently denied ever seeing an intruder in the apartment even though, according to his account, he would have had to have awoken just moments after the fire was ignited.
Apart from the issue of opportunity, there was evidence to suggest that DiNicola had knowledge concerning fires. As noted above, DiNicola had made known his familiarity with controlled fires during his September 10, 1979 encounter with DiPaolo and Gunter at Vorsheck's office. The police obviously found DiNicola's comments and his demeanor significant. Gunter, for example, testified at deposition that DiNicola seemed to have a "fascination" with the subject of fire, and it was this exchange at Vorsheck's office that led Gunter to believe that DiNicola actually "was capable of doing what was done."
In addition, the police were aware of several other statements by DiNicola that were, at the least, suspicious. They were aware, for example, of DiNicola's suggestion that the fire was electrical and that the stereo was the source. Subsequent investigation by the state fire marshals revealed that the stereo area had been doused with stoddard solvent. DiNicola's focus on the stereo as a possible source of the fire is somewhat significant in light of the fire marshals' finding that the fire began in the den and progressed into the living room. According to the fire marshals' theory, by the time DiNicola awoke to see the stereo and east wall of the living room in flames, the den would already have been engulfed in flames. In light of these facts, prudent police officers in the position of DiPaolo and Gunter could reasonably have viewed DiNicola's suggestion as an attempt to divert their attention from a possible arson and mislead them into believing that the fire was electrical.
DiNicola had also remarked that "arson is hard to prove" and that the police might think they knew in the back of their minds who had committed it and yet not be able to prove it. This unsolicited statement also could reasonably be viewed as suspicious, if not incriminating. Indeed, DiPaolo's police report reflects the fact that he found this statement significant, especially in light of the fact that no mention had been made to DiNicola of the fire being an arson.[17] In addition, DiNicola had remarked to Gunter while at Vorsheck's office, "If it turns out I did it, I want the firing squad." Once again, this statement could reasonably be viewed as inculpatory, inasmuch as it suggests the possibility that DiNicola set the fire, but blocked it out of his mind.
It is also apparent from the record that the police began to suspect that DiNicola was being untruthful about certain key facts. Chiefly, they were aware from Michael Jefferson that Jefferson specifically recalled DiNicola wearing something on his feet. The police could also consider DiNicola's own statement in his August 31, 1979 interview that, in attempting to exit the house, he kicked in a door which he thought was an exit, only to discover that he had kicked in the bathroom door. These facts tended to contradict DiNicola's contention that he had run out of the house with nothing on his feet after awakening to the fire. The fact that DiNicola may have been wearing something on his feet at the time of the fire was a fact of some significance to the officers because it was consistent with their theory that DiNicola had left the house and returned with the accelerant while Jefferson and Sweet were together in Sweet's bedroom. It would also contradict DiNicola's account that he was asleep just prior to the outbreak of the fire and, upon awakening, immediately ran out of the house without even putting shoes on.
*651 The police also had a statement from Michael Jefferson, taken on September 12, 1979, in which Jefferson recalled being outside after the firefighters had arrived. According to the police report, Jefferson stated that he had found DiNicola to be "too calm" in regards to the fire and had the impression that DiNicola had been up for awhile prior to the fire. Jefferson's impression is inconsistent with DiNicola's claim that he was awakened by the sound of the fire and immediately ran out of the house.
In addition, Jefferson and Sweet agreed that Sweet had entered the bathroom while DiNicola was in there bathing. DiNicola denied this encounter. This fact was potentially significant in that the officers entertained the theory that DiNicola might have been motivated to start the fire by his sense of sexual rejection and a desire to have revenge against Sweet. DiNicola's denial of the bathroom incident could reasonably be viewed as an attempt to deny an intimate contact with Sweet.
DiPaolo and Gunter were further aware that DiNicola had submitted to a polygraph examination and that, in the opinion of Detective Johns, DiNicola had intentionally undermined the results. This information, which the officers had no apparent basis to question, could be interpreted as consciousness of guilt. Further, the examiner had informed DiPaolo and Gunter that DiNicola tested deceptive to two questions: "What do you know about the fire?" and "Did you start the fire?" Many circuit courts of appeals have held that officers may utilize evidence of deceptive polygraph results in establishing probable cause to effectuate an arrest. See Craig v. Singletary, 127 F.3d 1030, 1046 (11th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1323, 140 L.Ed.2d 486, 1998 WL 73239 (1998); Johnson v. Schneiderheinz, 102 F.3d 340, 342 (8th Cir.1996); Booker v. Ward, 94 F.3d 1052, 1058 (7th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 952, 136 L.Ed.2d 840 (1997); Prokey v. Watkins, 942 F.2d 67, 73 (1st Cir.1991); Marx v. Gumbinner, 905 F.2d 1503, 1507 (11th Cir.1990); Bennett v. City of Grand Prairie, Texas, 883 F.2d 400, 405-06 (5th Cir.1989). The officers were also aware that Michael Jefferson, a friend of DiNicola, had tested deceptive to two questions: "Do you know anything about the fire?" or "Do you know who possibly might have been responsible for the fire?" They could thus reasonably infer (as they apparently did) that Jefferson had additional information concerning the fire which he was not disclosing. Indeed, when the officers questioned Jefferson about this possibility, Jefferson remarked, "you know[,] Louie's Italian and he's got a lot of relatives." The officers interpreted this to mean that Jefferson might have information inculpatory of DiNicola but was afraid to talk.
Finally, the police reports indicate that DiPaolo and Gunter had effectively ruled out Pete Moore as a suspect in setting the fire, due to his apparently solid alibi and the fact that he had reportedly passed a polygraph exam. Also excluded as a possible suspect was Glen Martin, the person with whom Sweet had talked on the telephone on the night of the fire. It is uncontradicted on this record that Martin was in Texas at the time of the fire.[18] In light of these facts, we think that DiPaolo and Gunter had adequate probable cause as a matter of law to believe that DiNicola had started the fire. Stated differently, no reasonable jury could conclude in light of these facts that DiPaolo and Gunter lacked probable cause to arrest and charge DiNicola.
In arriving at this conclusion, the Court is fully aware that there are certain gaps in the investigation that DiPaolo and Gunter were *652 never able to completely resolve. For example, while the evidence suggested several possibilities as to a motive or reason for DiNicola starting the fire, the officers were never able to conclusively resolve this issue. One possible theory held by DiPaolo was that DiNicola started the fire in order to conceal an assault on Sweet's daughter. DiPaolo claims to have developed this theory as a result of his conversations with the state police fire marshals. Specifically, DiPaolo recalled being informed that Alisa Minton's carbon monoxide level was 45%, while the carbon monoxide levels of the other two victims were each 70 percent.[19] In addition, DiPaolo recalled being informed that Alisa's body had been found on her bed with the sheets beneath her still white. Conversely, the body of her younger brother had been discovered at the foot of his bedroom door. DiPaolo felt these facts suggested that Alisa had never moved from her bed during the course of the fire. He therefore formed the impression that "something was done to the little girl." However, an initial autopsy performed shortly after the fire occurred revealed no evidence of a vaginal assault on Alisa Minton.
Another possible theory (and one specifically entertained by Gunter) was that DiNicola may have started the fire as an act of revenge in retaliation for feeling sexually rejected by Sweet. The strongest evidence of a rebuffed sexual advance by DiNicola comes from Sweet's alleged statement of September 14, 1979 and her hypnotically induced statement of September 17, 1979 both of which (as explained infra) the Court will disregard for purposes of its "probable cause" analysis. Even absent this evidence, however, there is sufficient circumstantial evidence from which a motive of revenge could be established. For example, a police report of Jefferson's September 12, 1979 interview with DiPaolo and Gunter reflects Jefferson's statement that "they" presumably DiNicola and Jefferson were "grabbing and kissing" Sweet on the night of the fire. (Def.s' App., Vol. V at 2069a.) Another report dated April 8, 1980 summarizes an interview with Jefferson held on October 6, 1979, during which Jefferson reportedly remembered that Sweet and DiNicola were "mugging it up in the living room" on the night of the fire. (Id. at 2143a.) This constitutes at least some evidence that DiNicola had made advances at Sweet during the course of the evening. In DiNicola's first statement to the police on August 31, 1979, he admitted coming out of the bathroom after finishing his bath and noticing that Sweet and Jefferson were in her bedroom together. It is undisputed that Sweet and Jefferson had engaged in sexual intercourse while the door to her bedroom was open. Based on this evidence, it would not be objectively unreasonable for the officers to have pursued a theory of sexual rejection as a possible motive.[20]
Even absent a clear motive, however, the case against DiNicola did not suffer from a lack of probable cause. The officers knew that Sweet, Jefferson and DiNicola had been drinking and smoking marijuana on the evening of the fire. According to Sweet's statement of September 6, 1979, Jefferson had commented that DiNicola was "messed up" and "had been at it all day." It would not be objectively unreasonable for the police officers to believe that DiNicola had committed a random and bizarre act of violence due to the influence of alcohol and drugs, coupled with his perceived "fascination" with fires. And, if the officers lacked any clear motive on the part of DiNicola, they certainly lacked any solid leads as to any other possible suspects who might have had a stronger motive to start the fire. As we previously observed, DiPaolo and Gunter had effectively ruled out Pete Moore and a number of other individuals as possible suspects.
*653 The Court also acknowledges that there was no physical evidence tying DiNicola to Sweet's car, despite the officers' belief that DiNicola might have taken Sweet's car to the McCreary Roofing Company to obtain the solvent. Nevertheless, the absence of physical evidence tying DiNicola to Sweet's car does not conclusively preclude the possibility of his having obtained accelerant by other means. The officers were aware that the accelerant used in the fire was identified as "stoddard solvent." They were aware that this substance was kept on hand at the McCreary Roofing Company, six blocks away, where both Jefferson and DiNicola worked. Despite the officers' inability to pinpoint the immediate source of the accelerant, there was sufficient evidence on the whole to warrant a prudent belief that DiNicola had set the fire. In fact, we do not think a contrary finding (that is, a lack of probable cause) would be reasonable on this record.
(iv) Plaintiff's Arguments Regarding Probable Cause
Prior to arresting DiNicola, DiPaolo and Gunter had obtained an arrest warrant by submitting to the district justice an affidavit in support of a finding of probable cause (hereinafter, the "Affidavit of Probable Cause" or "Affidavit"). This Affidavit of Probable Cause has been a prime focus of attack by DiNicola. He contends that DiPaolo and Gunter are not entitled to summary judgment because genuine issues of material fact exist as to whether the Affidavit of Probable Cause contained false and misleading information. DiNicola contends that, if the false and misleading information is properly redacted (or otherwise made accurate), the Affidavit does not establish probable cause for his arrest and prosecution.
We think this argument misses the mark in that it focuses only on the information contained in the officers' Affidavit, as opposed to the totality of information known to them. Plaintiff's argument appears to be premised on the assumption that an arrest warrant was required in order to render his arrest and detention lawful. We have previously concluded, however, that no warrant was technically necessary for Fourth Amendment purposes because it is uncontroverted that the officers' entry into DiNicola's home on the day of his arrest was consensual. Accordingly, we view DiNicola's arrest as a warrantless arrest which was lawful because, on the record as a whole, there was probable cause as a matter of law to support it. And, because we conclude that there was probable cause as a matter of law, even independent of the "false and misleading" information upon which the officers allegedly relied, it follows that the allegedly "false and misleading" information in the officers' Affidavit could not have been material to DiNicola's arrest and prosecution.
Although we discuss Plaintiff's objections to the Affidavit in Part B, infra, we highlight here some of his major arguments about the evidence as it relates to probable cause. Chiefly, DiNicola contends that Sweet's hypnosis was deliberately undertaken with the purpose and effect of implanting a new, false memory implicating him as the perpetrator of the fire. He maintains that the hypnotic regression was highly suggestive and that it irreparably tainted Sweet's recollection such that her statement under hypnosis, and memory thereafter, were rendered unreliable. For present purposes we will allow Plaintiff the benefit of the doubt and assume that Sweet's hypnotically induced statement was indeed tainted and, therefore, of dubious reliability. Nevertheless, even disregarding that statement in its entirety, we would find that probable cause exists as a matter of law on this record.
Plaintiff claims that probable cause cannot be established without several evidentiary facts contained in Sweet's hypnotic statement: i.e., Sweet's specific recollection of hearing DiNicola leave her apartment, her recollection of being awakened by the sound of DiNicola moving around in the apartment, and her recollection of seeing DiNicola standing in the doorway to the den area staring at the fire. Unlike Plaintiff, we do not view Sweet's hypnotic statement as essential to a finding of probable cause. The mere fact that Sweet did not specifically recall hearing DiNicola leave her apartment during her September 6, 1979 interview does not, as a *654 factual matter, preclude the possibility of his having done so.[21] And, although Sweet in her September 6, 1979 statement did not specifically recount awakening to the sound of DiNicola moving about in her apartment, she did recount (i) being in bed with Jefferson, (ii) hearing DiNicola moving about and causing a "racket" in her apartment prior to the fire and (iii) being alerted to the fire and seeing DiNicola running around the apartment. Further, the fact that Sweet in her September 6 statement did not recall seeing DiNicola standing over the fire does not significantly undermine a finding of probable cause. Based on the evidence outlined above, there was sufficient circumstantial evidence from which reasonably prudent officers could have concluded that DiNicola had the knowledge and opportunity to start the fire.
Plaintiff also suggests that the contents of Sweet's September 6, 1979 statement undermine a finding of probable cause in that the statement is "exculpatory," "entirely benign as to Plaintiff" and "entirely inconsistent with her statements made under hypnosis." (Pl.'s Br. at 6, 9.) Having carefully reviewed both Sweet's September 6 and September 17 statements, we cannot agree with this characterization of the evidence. Nevertheless, we consider the September 6 statement (such as it is) for purposes of our probable cause analysis. We further consider the fact that Sweet's memory was impaired to some extent due to her intoxication and that many details of the night eluded her in her September 6 statement. Taking these factors into account. Sweet's September 6 statement nonetheless established that she and Jefferson were accounted for at the time the fire broke out, whereas DiNicola was not; that she and Jefferson heard DiNicola "fumbling around" in the apartment and making a "racket" prior to the outbreak of the fire; that she, Jefferson and DiNicola had all smoked marijuana that evening; and that DiNicola was described by Jefferson as having "been taking stuff all day" and being "pretty screwed up." In addition, Sweet in her September 6 statement described DiNicola as a "weird person," and clearly indicated that she had not trusted him being around her stereo or her purse on the night of the fire. Thus, we do not agree that this statement was entirely "benign" as to DiNicola or otherwise exculpatory. And, although Plaintiff characterizes Sweet's September 6 statement as an "inaccurate" account, we are unaware (and Plaintiff does not specify) in what regard the statement can be considered inaccurate. In sum, our reading of Sweet's September 6, 1979 statement is consistent with a finding that the officers had probable cause to believe DiNicola had set the fire.
Plaintiff also suggests that Jefferson's accounts of the evening contradicted Sweet's in two respects: "Jefferson had excluded the possibility that plaintiff left the residence prior to the fire or that he was discovered standing and staring at the fire." (Pl.'s Br. in Opp. at 14.) Having carefully reviewed the record in this regard, we do not agree that Jefferson's statements excluded the possibility that DiNicola left the residence prior to the fire. Indeed, in his various statements to the police, Jefferson represented that he had dozed off prior to the fire and woke up after it had been started. It is hard to understand how Jefferson's account precludes the possibility of DiNicola having left the apartment when, undisputedly, Jefferson had fallen asleep for a period of time prior to *655 the fire.[22] And, insofar as Jefferson's account contradicted Sweet's hypnotic recollection of seeing DiNicola standing and staring at the fire, this discrepancy is irrelevant for present purposes. As previously indicated, the Court has discounted Sweet's hypnotically induced statement in its entirety for purposes of its probable cause analysis. In short, having carefully reviewed the statements of Jefferson as well as the September 6, 1979 statement of Sweet, the Court remains unpersuaded that the record could reasonably support a finding of no probable cause.[23]
DiNicola next suggests that DiPaolo and Gunter failed to conduct an adequate investigation into the possibilities that either (a) the fire was accidental, or (b) another individual was responsible for starting it. With regard to the first point, the record here would not support a conclusion that the officers failed to adequately exclude the possibility of an accidental fire. It is undisputed that the state police fire marshals ruled the fire an arson and found direct physical evidence that an accelerant had been used in the fire. It was also undisputed that the fire originated inside Sweet's apartment, as opposed to outside the house near, e.g. the electrical box. Following DiNicola's suggestion, DiPaolo and Gunter asked the fire marshals to inspect the area in the living room around the stereo. There, they found no evidence of an electrical fire, but did find evidence that accelerant had been poured on the stereo cabinet. DiPaolo and Gunter also looked into the possibility of a gas leak, but there was no evidence to suggest that this was in fact the cause of the fire. Plaintiff does not point to any evidence that would seriously indicate a possibility that the fire was accidental.[24]
Plaintiff also accuses DiPaolo and Gunter of concealing evidence that several witnesses allegedly observed another man running from the scene of the fire. The Court has thoroughly reviewed the evidence pertaining to this allegation and finds that, when viewed in the context of the entire record, it does not give rise to a material issue of fact on the issue of probable cause. Plaintiff relies in part on evidence from an in-camera hearing that was held before Judge Robert Walker on February 18, 1993 in connection with Plaintiff's second criminal trial. At the hearing, the prosecutors advised Judge Walker that then special prosecutor Ernest DiSantis had had a recent conversation with Gunter about the investigation of the fire. As paraphrased by the prosecutor, Gunter had remarked:
that during the early part of the investigation in August of 1979, shortly after the *656 deaths of the three victims involved, an investigation was done in the neighborhood of the victim's house.
And, a person or persons were interviewed across the street from the victim's house, and one of the persons interviewed believed that they had seen sparks or something coming out the side of the house, possibly near the electric box.
And also, this person or persons disclosed that they believe they saw a tall thin person outside of the house at some time before, after or simultaneously with the electric sparks.
Detective Gunter was discussing this and questioned whether or not that had ever appeared in the police reports that had been compiled in this case....
(Def.'s App., Vol. VIII at 3784a-85a.) Upon further discussion with the prosecutors, Gunter believed that the witness in question may have been a neighbor by the name of Charles Mello. Although the criminal investigation file contains a report of the officers' interview with Mr. Mello, there is no mention in the report about sparks near an electrical box or a tall, thin person outside of Sweet's apartment. In any event, however, the transcript of the hearing before Judge Walker indicates that Gunter felt this account of a man near the electrical box was probably "bad information." (Def.s' App., Vol. VIII at 3786a.) This conclusion would appear to be supported by the fire marshals' undisputed determination that the blaze originated inside Sweet's apartment and was incendiary, as opposed to electrical, in nature. For the reasons previously discussed, the record shows that DiPaolo and Gunter adequately ruled out the possibility of an electrical fire in the course of their investigation, and any inference to the contrary is not reasonably supportable on this record. Consequently, the evidence on which Plaintiff relies does not in any way alter our conclusion that the officers' had probable cause to believe DiNicola had set the fire.[25]
Plaintiff has also presented an affidavit from one Rose Martin (nee Rose Jaraczewski) in which Mrs. Martin states that she and her husband (then boyfriend) had observed a tall man with dark hair running from the north side of Sweet's house in a southerly direction carrying "what appeared to be a gas can" shortly before the fire broke out. (Pl.'s App. Vol. III, tab S, Martin Aff. at ¶ 4.) Mrs. Martin further states that, on the second day after the fire, two plainclothes police officers came to see her. She allegedly told them what she had seen and then sent the officers to talk with her boyfriend. (Id. at ¶ 5.) Plaintiff also has submitted a copy of DiPaolo's rough notes from various interviews. These notes contain a notation that "Rosemary" and "Rick Martin" were in a car from approximately 11:00 p.m. to 1:00 a.m. There is a further notation below their names: "Dark blue shirt w/m 20s? Rolling around in grass." (Pl.'s App. Vol. III, Ex. T.) Finally, Plaintiff points to the officers' police reports indicating that two witnesses had heard Pete Moore make threatening statements to Cora Jefferson due to his jealously over Cora's new boyfriend, Eugene Pitts.[26] Based upon this collective evidence, Plaintiff contends that there is a material issue of fact as to whether DiPaolo and Gunter knew "that others had a stronger motive, superior access and greater opportunity to start the fire." (Pl.'s Br. in Opp. at 15.)
When this evidence is viewed in the light most favorable to Plaintiff, it supports an *657 inference that at least one witness to the fire believed she saw a man running from the vicinity of Sweet's apartment at or shortly before the time of the fire carrying something that appeared to look like a gas can.[27] Nevertheless, the significance of this evidence must be considered in light of the entire record, as viewed by an objectively prudent person. DiPaolo and Gunter were aware of DiNicola's presence in the apartment, and especially his close proximity (both spatially and temporally) to the fire. They were aware of several arguably suspicious statements that he had made over the course of several interviews, including statements revealing his knowledge about fires. Certain portions of his factual account appeared to be contradicted and therefore specious. The officers were also aware that DiNicola had reportedly failed and/or undermined his polygraph exam. And, further, they knew that he had some access to the type of commercial solvent utilized in the fire. At the same time, DiPaolo and Gunter had investigated a number of leads as to other possible suspects, most notably Pete Moore, none of which pointed obviously to any individual other than DiNicola. In sum, the probative value of Mrs. Martin's statement, like any other piece of evidence, necessarily depends on the degree to which it tends to be corroborated by other reliable evidence in the record. We have already discussed the physical implausibility (though not impossibility) of another individual gaining entry to Sweet's apartment, spreading solvent about the apartment, and escaping undetected. Likewise, we have noted the extreme fortuity of DiNicola's own escape under such circumstances. When all of these factors are considered, coupled with Mrs. Martin's apparent lack of certainty as to what the alleged fleeing man was actually carrying, we are unpersuaded that this information creates a material issue of fact on the issue of probable cause.[28] In short, the record as a whole does not support Plaintiff's assertion that there were other plausible suspects with a "stronger motive, superior access and greater opportunity to start the fire."
To the extent, then, that Plaintiff's Fourth Amendment claim is premised upon the contention that DiPaolo and Gunter undertook a constitutionally deficient investigation, we find the evidence insufficient to support this claim. Plaintiff refers the Court to several cases in support of the proposition that "officers have a duty to investigate particularly where ... probable cause is lacking and other exculpatory evidence is readily available." (Pl.'s Br. in Opp. at 17-18.) See Clipper v. Takoma Park, Md., 876 F.2d 17, 19-20 (4th Cir.1989) (probable cause did not exist for arrest of suspect in bank robbery case where officer failed to interview individuals called to his attention by suspect who would have established alibi, principal investigating officer testified that another officer who had been on scene told him he was not sure that suspect was robber, and police did not look at surveillance film from bank), reh'g denied, 898 F.2d 18 (4th Cir.1989); Sevigny v. Dicksey, 846 F.2d 953, 957-58 (4th Cir. 1988) (officer did not have a reasonable basis for warrantless arrest of mother for damage to property under the theory that mother herself had run car into garage, which was inconsistent with mother's statement that her child had done so, where officer failed to avail himself of readily available information, such as making rudimentary inquiries of neighbors then on the scene who would have verified mother's assertion that her child, not she, had done the property damage); BeVier v. Hucal, 806 F.2d 123, 126-27 (7th Cir.1986) (where police had arrested parents for child neglect under Illinois law, which required a showing of knowing or willful neglect by the parent, officers acted unreasonably in failing to question parents, babysitter, or any other witnesses at the scene of arrest, even though this information would readily have provided evidence as to parents knowledge); Moore v. *658 The Marketplace Restaurant, 754 F.2d 1336, 1345 (7th Cir.1985) (police did not have probable cause to arrest plaintiffs for allegedly failing to pay their check at restaurant where plaintiffs were arrested at home immediately upon admitting that they had been at the restaurant that evening; police had failed to ask any further questions of the plaintiffs even though plaintiffs were not fleeing the scene, were not dangerous, and no serious crime had taken place).
The Court has reviewed these cases and finds them to be factually distinguishable in material respect from the circumstances here. Unlike the cases cited by DiNicola, probable cause was not lacking on this record. The Seventh Circuit, which decided BeVier and Moore, has held that there is no general duty on the part of a police officer to investigate further after acquiring information sufficient to establish probable cause. See Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437-42 (7th Cir.1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987). See also Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir.1995) (for purposes of assessing whether officers had "probable cause" court focuses on the information that officers had available to them at the time of their alleged unlawful conduct, "not on whether the information resulted from exemplary police work.").
Finally, Plaintiff asserts that DiPaolo and Gunter deliberately procured false testimony from Edwards to buttress their case in the second criminal trial. It goes without saying that, since Edwards's testimony was not available at the time of DiNicola's arrest, it is immaterial to his false arrest claim. Insofar as Plaintiff's malicious prosecution claim is concerned, the evidence presented by Edwards merely supplemented the case against him and was not critical in order to establish probable cause for his continued prosecution. Therefore, we may discount Edwards's statements in their entirety without altering our conclusion that DiPaolo and Gunter had probable cause to support their conduct.
Based on the information available to DiPaolo and Gunter over the course of their investigation, we find that they had probable cause as a matter of law to support their arrest of DiNicola and the institution of criminal charges against him. We arrive at this conclusion independently of Sweet's hypnotically induced statement of September 17, 1979 and specifically taking into account her September 6, 1979 statement, the statements of Michael Jefferson, and the information about alleged sightings of another man at the scene of the fire. Because the record here would not reasonably support a finding that DiPaolo and Gunter lacked probable cause, Plaintiff's false arrest, false imprisonment, and malicious prosecution claims cannot survive summary judgment.
B.
In the alternative, the Court concludes that DiPaolo and Gunter would be entitled to summary judgment under the doctrine of qualified immunity. Pursuant to the Supreme Court's ruling in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), government officials performing discretionary functions are generally shielded from liability for civil damages to the extent that their conduct does not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known. Id., 457 U.S. at 818, 102 S.Ct. 2727 (citations omitted). We assume that, during the relevant time frame here, it was clearly unconstitutional to effectuate an arrest or institute criminal proceedings in the absence of probable cause to believe the accused had committed a crime. Nevertheless, qualified immunity would protect DiPaolo and Gunter from liability unless "`on an objective basis, it is obvious that no reasonably competent officer would have concluded that' probable cause existed" for DiNicola's arrest and prosecution. Radich v. Goode, 886 F.2d 1391, 1395 (3d Cir.1989) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The Court finds, based upon the evidence previously outlined, that DiPaolo and Gunter had sufficient evidence inculpatory of DiNicola such that reasonably competent officers in their position could well have believed that probable cause existed for the arrest and prosecution.
Plaintiff contends that the doctrine of qualified immunity is inapplicable where *659 officers have procured a warrant through false and misleading information. We have previously opined that, due to the officers' consensual entry into DiNicola's house on the morning of his arrest, no warrant was technically required. We now specifically conclude that, even if a warrant was required to effectuate a lawful arrest of DiNicola, DiPaolo and Gunter would be entitled to qualified immunity because reasonably well-trained officers in their position could have believed that the Affidavit of Probable Cause was not materially misleading and that it adequately supported a showing of probable cause.[29]
The Affidavit of Probable Cause, in its entirety, states as follows:
[1] On August 31, 1979 at 10:30 A.M. Erie Fire Department Fire Marshall [sic], John Kucinski, who is known to me and whose reliability 1 preseume [sic] because of his position, informed me that on August 31, 1979, at 622 West 16th Street, the following people, Alisa Nadine Minton, date of birth 9/23/70; David Geoffrey Sweet, date of birth 12/24/74; and Francis Eugene Pitts, Jr., date of birth 3/14/36, perished in a fire which had occurred at that location.
[2] On September 1, 1979, Erie County Coroner Merle Wood, who is known to me and whose reliability 1 presume because of his position, informed me that Pathologist Henry Lara, M.D., determined after autopsy that the said Alisa Nadine Minton died as a result of severe burns and smoke inhalation, and the said David Geoffrey Sweet died as the result of severe burns and smoke inhalation. The said Coroner Wood further stated to me that Pathologist Dr. Eisenberg, M.D., determined after autopsy that Francis Eugene Pitts, Jr., died of severe burns and smoke inhalation.
[3] On August 31, 1979, your affiant was told by State Police Fire Marshall Rodger [sic] C. Bellotti, who is known to me and whose reliability 1 presume because of his position as a State Police Officer, that he had investigated the fire and determined from the burn pattern observed that a flammable liquid had been applied to the flooring in the living room and den areas at 622 West 16th Street, and that therefore the fire at that location was of an incendiary origin.
[4] Your affiant personally witnessed on August 31, 1979 and September 5, 1979 Troopers Bellotti and May, of the Pennsylvania State Police, remove flooring samples of the living room and den areas of 622 West 16th Street.
[5] Your affiant was advised by the said Troopers that the said flooring samples were turned over to Criminalist Anthony M. Balut of the Pennsylvania Police Crime Lab.
[6] Your affiant's police investigation revealed that Stoddard Solvent is sold by United Refining Company to commercial establishments only, and only in 55 gallon quantities.
[7] On or about September 8, 1979, Detective Don Gunter, EPD, spoke with Mr. McCreary of McCreary Roofing Company, 1909 Chestnut Street. Mr. McCreary advised your affiant at that time that his company used Stoddard Solvent in its operations and was using it on the date of the fire and prior thereto.
[8] Your affiant was advised by Fire Marshall [sic] John Kucinski that he obtained samples of said solvent from McCreary Roofing Company and took it on September 6, 1979 to the Pennsylvania State Police Laboratory for comparison by Criminalist Balut with the above mentioned flooring samples which had been secured from the residence at 622 West 16th Street.
[9] Your affiant was advised by State Police Criminalist Anthony M. Balut on *660 September 7, 1979 that he had analyzed samples of flooring from the areas of the den and living room at 622 West 16th Street and compared them with solvent samples from McCreary Roofing Company, provided him by Kucinski on September 6, 1979, and had determined that the floor samples contained hydrocarbons identical to Stoddard Solvent, a combustible liquid. Your affiant has personal familiarity with the reputation of Criminalist Balut as an expert and his reliability as a member of the State Police is presumed by your affiant.
[10] On or about September 8, 1979, your affiant was advised by Mr. McCreary that the defendant, Louis DiNicola, was employed by McCreary Roofing on the date of the fire and prior thereto and did have access to Stoddard Solvent as a consequence of his employment there.
[11] Your affiant first spoke with Michael Jefferson at the scene of the fire at 622 West 16th Street on August 31, 1979 at approximately 11:00 A.M. The said Michael Jefferson stated to your affiant that he was present at 622 West 16th Street at the time the fire erupted at approximately 12:00 midnight on August 30, 1979.
[12] Your affiant first spoke with Louis DiNicola on August 31, 1979 at approximately 1:30 P.M. at DiNicola's job site in the 1600 block of East 12th Street. DiNicola stated to your affiant that he was present at 622 West 16th Street at the time the fire erupted at approximately 12:00 midnight on August 30, 1979. DiNicola further stated to your affiant that he was asleep in the southwest living room when the fire broke out.
[13] Your affiant first spoke with Deborah Sweet on September 6, 1979. She stated to your affiant that she was present at 622 West 16th Street at the time the fire erupted at approximately 12:00 midnight on August 30, 1979. She further stated that she was asleep in the northwest bedroom with Michael Jefferson when the fire broke out.
[14] At the time your affiant spoke with Michael Jefferson on August 31, 1979, the said Michael Jefferson stated to him that he was asleep in the northwest bedroom with Deborah Sweet when the fire broke out.
[15] On September 6, 1979, Deborah Sweet stated to your affiant that at approximately 11:00 P.M., just prior to the fire, she heard Louis DiNicola leave the residence and then she fell asleep. She further stated she later awoke, heard someone in the den area, smelled smoke, got up and saw Louis DiNicola in the doorway to the den facing the den, and the den and living room area were in flames.
[16] Deborah Sweet, who was present at the time of the fire, is the mother of the two children who were victims in the fire, and was the renter of the premises where the fire occurred. Your affiant knows of no motive or reason for her to participate in this crime or give false testimony in this matter.
[17] Michael Jefferson resided upstairs in the residence at 622 West 16th Street with his mother, and his statements have been independently corroborated by Deborah Sweet. Your affiant knows of no motive or reason for him to participate in this crime or give false testimony on this matter.
[18] Both Deborah Sweet and Michael Jefferson have independently and separately given statements to your affiant. The statements they gave to your affiant are substantially similar and each corroborates and substantiates the other, particularly in terms of who was present, where the parties were located, and what occurred prior to and during the fire.
[19] All of the facts set forth herein were obtained by your affiant through personal interviews, official reports, and personal observations made by him during the course of his investigation to this offense.
[20] Based upon your affiant's investigation of this incident, your affiant believes that Louis DiNicola did have the opportunity as well as the ability to commit the crimes with which he has been charged, and that from the facts set forth herein was in fact the only one who could have committed the said crimes, and that the evidence as set forth herein is reliable, *661 credible and sufficient to establish probable cause for the issuance of the warrant requested.
[Sworn to and Signed by DiPaolo and Gunter]
(Pl.'s App, Ex. A.)
DiNicola's objections to the Affidavit focus on Paragraphs 15 through 18 and Paragraph 20. Specifically, he contends that DiPaolo and Gunter materially tainted the Affidavit in the following manner:
(1) the defendants deliberately and intentionally suppressed and withheld evidence that Deborah Sweet had on September 6, 1979 given a statement ... to the police which was exculpatory as to the plaintiff and which was entirely inconsistent with her statements made under hypnosis on September 17, 1979;
(2) the defendants misrepresented that the supposed inculpatory statements of Sweet were given on September 6;
(3) the defendants subjected Sweet to a highly suggestive and improper hypnosis procedure which caused her to adopt false memories of the events in question;
(4) the defendants concealed both the fact of the hypnosis and the improper hypnotic procedure in which they and their agents engaged;[30]
(5) the defendants falsely stated that they had no reason to believe that Sweet was being dishonest, when they had full and sufficient reason to know that she had given exculpatory information as to the plaintiff and that she had been subjected to suggestive hypnosis designed to create a false memory;
(6) the defendants falsely stated that another witness, Michael Jefferson, had corroborated Sweet when in fact his statements did not corroborate any factual assertion tying plaintiff to the fire;
(7) the defendants falsely stated that the plaintiff was the only one who could have committed the crime while concealing for fourteen years the fact that no less than four witnesses observed another man running from the scene of the fire.
* * * * * *
(Pl.'s Br. in Opp. to Summ. Judg. at 6-7.)
In the context of officers seeking an arrest warrant, qualified immunity applies unless "the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). In cases where it is alleged that an arrest or prosecution was procured through false and misleading information, it is the plaintiff's burden to satisfy the two-part test set forth in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), viz.:
*662 (1) that the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions are material, or necessary, to the finding of probable cause.
Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.1997) (addressing Fourth Amendment claim premised on allegedly unconstitutional search). See also Whitmore v. Smith, No. Civ. A. 96-2745, 1997 WL 438441 at *6 (E.D.Pa. July 30, 1997) (§ 1983 claim premised upon alleged unlawful arrest and prosecution). Unless the Plaintiff adduces sufficient evidence to establish both prongs, there is no constitutional violation at all and, hence, no need to address qualified immunity. Sherwood, 113 F.3d at 402. Even assuming that both prongs can be satisfied on the record, though, the question becomes whether it would necessarily have been clear to reasonably well-trained officers that the Affidavit could not pass constitutional muster.
(i) The Alleged "Falsehoods"
We will first address those aspects of Plaintiff's objections that bear on the issue of falsehoods in the Affidavit. Plaintiff objects that Defendants suppressed evidence that Sweet had given a statement on September 6, 1979 that was "exculpatory" as to Plaintiff and "entirely inconsistent" with her statements made under hypnosis on September 17, 1979. To the extent that Plaintiff characterizes Sweet's September 6, 1979 statement as "exculpatory," "entirely benign," "inaccurate" or "entirely inconsistent" with her hypnotically induced statement, the Court cannot entirely agree with this characterization. Accordingly, DiPaolo and Gunter were not constitutionally required to include such language in their Affidavit and the omission of such representations does not constitute a falsehood. We also cannot agree with Plaintiff's suggestion in his brief that Sweet had "virtually no recall" of the night of the fire, prior to hypnosis. While it is true that certain details of the night eluded her during her September 6 interview, that account speaks for itself and is in actuality fairly detailed and illuminating and, to a large extent, corroborated by Jefferson's account. Thus, DiPaolo and Gunter were not constitutionally required to state in their Affidavit that Sweet had "virtually no recall" of the night of the fire and the omission of this representation similarly did not constitute a falsehood. Nevertheless, for purposes of our materiality analysis, infra, we will assume that a fair representation of the contents of the September 6, 1979 statement (such as they are) had been supplied in the Affidavit and made known to the reviewing district justice. Further, we will assume that the Affidavit had accurately revealed the fact that Sweet's statement of September 17 was given under hypnosis.
Plaintiff objects that the Affidavit incorrectly attributes contents of her September 17 hypnotic statement to the statement given on September 6, 1979. We will assume that this misstatement is corrected by revealing the fact that Sweet gave two different statements, one on September 6 and one under hypnotic regression on September 17. Further we will assume that the Affidavit had accurately reflected the discrepancies in the statements, including the fact that Sweet's September 6 statement did not contain a specific recollection of hearing DiNicola leave the apartment or the discovery of him standing and staring at the fire.
Plaintiff objects that DiPaolo and Gunter concealed in their Affidavit both the fact of hypnosis "and the improper hypnotic procedure in which they and their agents engaged." After careful review of the record, we do not believe that it supports a reasonable inference that DiPaolo and Gunter themselves participated in the hypnosis of Sweet or specifically directed the manner in which it was undertaken by Vorsheck. Thus, we do not consider the Affidavit false for failing to suggest that Vorsheck performed a suggestive hypnotic regression at the direction of DiPaolo and Gunter or with their participation.[31] Nevertheless, we will assume that the Affidavit should have revealed at least the fact of Sweet's hypnosis, such *663 that a reviewing magistrate would have been on notice of the arguable lack of reliability of her hypnotic regression.
Plaintiff next objects to the officers' representation in the Affidavit that they had no reason to believe that Sweet was being "dishonest" in her account of the night of the fire. He characterizes this representation as false, since DiPaolo and Gunter knew that Sweet's September 6 statement had been "exculpatory" and that her September 17 statement was the product of a suggestive hypnotic regression. Again, although we do not think the officers' failure to describe the September 6 statement as "exculpatory" was a falsehood by omission, we will presume that the fair contents of that statement had been disclosed to the reviewing district justice. Further, we do not consider the representation about Sweet's lack of dishonesty to be a falsehood, insofar as it relates to Sweet's non-hypnotic statement of September 6. Nevertheless, we will presume, as noted above, that the Affidavit disclosed the fact that Sweet's statement of September 17 was given under hypnosis such that a reviewing magistrate would be on notice of its potential lack of reliability.
Plaintiff further objects to the officers' representation that Jefferson had corroborated Sweet's statement when in fact his statements did not tie DiNicola directly to the fire. Paragraph 18 of the Affidavit states: "Both Deborah Sweet and Michael Jefferson have independently and separately given statements to your affiant. The statements they gave to your affiant are substantially similar and each corroborates and substantiates the other, particularly in terms of who was present, where the parties were located, and what occurred prior to and during the fire." (See Pl.'s App., Ex. A at ¶ 18.) Having carefully reviewed the statements of Jefferson and Sweet in some detail, the Court cannot say that Paragraph 18 constitutes a misrepresentation or falsehood because, in fact, Jefferson's and Sweet's statements did essentially corroborate one another, especially in terms of who was present and where they were located at the time of the fire. Nevertheless, we assume that the Affidavit accurately reflected the fact that Jefferson's statements did not tie DiNicola directly to the fire in the sense of personally witnessing him setting it or hovering over it.
Finally, DiNicola objects that DiPaolo and Gunter "falsely stated that the plaintiff was the only one who could have committed the crime while concealing for fourteen years the fact that no less than four witnesses observed another man running from the scene of the fire." (Pl.'s Br. in Opp. at 7.) Having undertaken an extensive review of the record on this point, this Court is not convinced that the officers' representation in Paragraph 20 can properly be considered a falsehood, either by commission or omission. For one, the representation on its face bespeaks an element of professional judgment on the part of the officers, based on everything they knew about the case. We have previously discussed the investigation in detail, including the evidence concerning statements of alleged sightings of another man at the scene of the fire. We have specifically found that this evidence does not reasonably support Plaintiff's assertion that "others had stronger motive, superior access and greater opportunity [than DiNicola] to start the fire." (Pl.'s Br. in Opp. at 15.) (Nor, incidentally, does it appear to be established of record that, in fact, four persons saw another man running from the scene of the fire or that the accounts were sufficiently alike to suggest that the witnesses all saw the same thing.) In sum, we do not consider the officers' representation to be a falsehood based on our extensive review of the record as a whole. At the very least, we think that reasonably competent officers in the position of DiPaolo and Gunter could have believed the representation in Paragraph 20 to be accurate, fair and truthful. Courts have recognized that, based on feasibility constraints and, based on the fact that the standard of establishing "probable cause" is lower than that required at trial to establish guilt "beyond a reasonable doubt," an affiant is not required to include in an affidavit of probable cause every piece of information gathered in the course of an investigation that might prove exculpatory. See Mays v. City of Dayton, 134 F.3d 809, 815-1 (6th Cir.1998) (rejecting inference that due process protections provided to defendants prior to trial under Brady *664 applies to the warrant process under the guise of Franks, thereby entitled subject of a search warrant to disclosure of all potentially exculpatory information), reh'g and petition for reh'g en banc denied; United States v. Colkley, 899 F.2d 297, 302-03 (4th Cir.1990) ("[A] requirement that all potentially exculpatory evidence be included in an affidavit would severely disrupt the warrant process. The rule would place an extraordinary burden on law enforcement officers, who might have to follow up and include in a warrant affidavit every hunch and detail of an investigation in the futile attempt to prove the negative proposition that no potentially exculpatory evidence had been excluded."). In sum, then, we do not consider the representation in Paragraph 20 of the Affidavit to be a falsehood, nor do we think that reasonably well-trained officers in the Defendants' position would have considered it such.
(ii) Materiality
We next consider whether any of the alleged false omissions or misrepresentations in the Defendants' Affidavit were material. Falsehoods are deemed to be material to a finding of probable cause only if the affidavit, "with the ... false material set to one side ... is insufficient to establish probable cause." Sherwood, 113 F.3d at 399 (quoting Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). In assessing the materiality of allegedly false information in an officer's affidavit, courts undertake the process of mentally excising the affirmative misrepresentations and supplying any information that was improperly omitted. The court then considers whether the affidavit, as corrected, establishes probable cause. Sherwood, 113 F.3d at 399-400.
For purposes of this exercise, we will assume that the Affidavit accurately reflected the contents of Sweet's September 6, 1979 statement, including the fact that Sweet was intoxicated on the night of the fire and could not remember certain details of that evening. Further, we will assume that the circumstances of Sweet's hypnotic statement had been disclosed such that a reviewing magistrate would have been on notice of its arguable lack of reliability. This, in effect, requires us to hypothetically disregard the assertions in Paragraph 15 of the Affidavit that Sweet a) heard DiNicola leave the apartment, and b) saw him standing and staring at the fire. We will also assume that the affidavit reflects the fair substance of Jefferson's account, including the fact that Jefferson did not witness him setting or standing over the fire.
Taking all of these hypothetical amendments into account, the Affidavit would nevertheless establish that the fire was incendiary in nature and had originated inside the house; that flammable liquid had been poured in the living room and den areas as a means of igniting the fire; that the solvent identified as the accelerant was available only commercially in 55 gallon drums; that DiNicola had access to the type of solvent used in the fire by virtue of his employment at McCreary Roofing Company; that DiNicola was present inside the house at the time the fire was set with knowledge of the danger posed to other individuals; that he was known to be in a location in the apartment where he could have set the fire; that he had been heard making noise in the apartment prior to the outbreak of the fire; that Sweet and Jefferson had fallen asleep in the same bedroom for some period of time prior to the outbreak of the fire; that the other occupants of the house were sufficiently accounted for so as to exclude them as suspects; and that three people died as a result of the fire. In addition, the Affidavit represented that the officers believed DiNicola had the opportunity and ability to set the fire and that, in their view, he was the only one who could have done it.
Viewing the "corrected" Affidavit in this light, the Court concludes that reasonably well-trained officers in the position of DiPaolo and Gunter could have believed that the Affidavit nevertheless established probable cause. Otherwise stated, reasonably competent officers in Defendants' position could have well believed that any misrepresentations and/or omissions in the Affidavit were not material to a finding of probable cause and that the Affidavit was therefore constitutionally sound. See Malley v. Briggs, 475 U.S. at 344-45, 106 S.Ct. 1092 (qualified *665 immunity applies unless it would have been clear to reasonably well-trained officers in the defendants' position that the affidavit failed to establish probable cause and that they should not have applied for the warrant under the circumstances).
Based on the foregoing, we find that DiPaolo and Gunter are entitled to qualified immunity from any liability under 42 U.S.C. § 1983 stemming from their involvement in the arrest and prosecution of DiNicola. Accordingly, summary judgment will be entered in their favor.
C.
We next address Plaintiff's § 1983 claims against Defendants Vorsheck and Edwards. To reiterate, under § 1983 DiNicola is required to show both a violation of his federal rights by these Defendants and that they committed the violation while acting under color of state law. Kneipp v. Tedder, 95 F.3d at 1204. Plaintiff seeks to tie Vorsheck into his Fourth Amendment claims under the theory that Vorsheck conspired with DiPaolo and Gunter to conduct a highly suggestive hypnosis of Sweet. The purpose and effect of this hypnosis, he claims, was to "conceal[ ] and forever destroy[ ] her exculpatory pre-hypnotic memory and replac[e] it with a hypnotically induced memory that caused her to become convinced that plaintiff set the fire." (Pl.'s Br. in Opp. at 1-2.) Essentially, Plaintiff theorizes that Vorsheck acted with DiPaolo and Gunter to intentionally alter Sweet's memory in order to create incriminatory evidence against him. Plaintiff's claims against Edwards are premised on the theory that Edwards conspired with DiPaolo and Gunter to provide false testimony against Plaintiff in his second criminal trial.
In light of our prior conclusion that DiPaolo and Gunter had probable cause as a matter of law to effectuate DiNicola's arrest and prosecution, even independent of the evidence obtained from Edwards or from Sweet's hypnosis, these claims cannot survive summary judgment. We have already concluded that the existence of probable cause as a matter of law defeats Plaintiff's federal false arrest, false imprisonment and malicious prosecution claims. Thus, there is no basis for establishing that either Vorsheck or Edwards violated Plaintiff's Fourth Amendment rights.
Alternatively, we conclude that the claims against Vorsheck and Edwards fail because there is insufficient evidence to establish that either one acted "under color of state law." It is this latter point which we now address in more detail.
1. The Claims Against Vorsheck
For purposes of § 1983, the "under color of state law" requirement has been treated as identical to the "state action" requirement under Fourteenth Amendment jurisprudence. See United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966) (quoted in Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) and Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)). In determining whether this standard is met, we essentially must inquire whether "there is a sufficiently close nexus between the State and the challenged action of [Defendants] so that the action of the latter may be fairly treated as that of the State itself." Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir.1995) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)), cert. denied, 516 U.S. 858, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995).
Plaintiff contends that Vorsheck meets the state action requirement under one of two theories. He first claims that Vorsheck, in conducting the hypnosis of Deborah Sweet as well as his own attempted hypnosis and questioning, was conducting a "public function." See Mark, 51 F.3d at 1142 (under the "public function" analysis, inquiry is whether "the private entity has exercised powers that are traditionally the exclusive prerogative of the state.") (citing Blum, 457 U.S. at 1004-05, 102 S.Ct. 2777). Alternatively, DiNicola alleges that Vorsheck "has acted with the help of or in concert with state officials." Id. (quoting McKeesport Hosp. v. Accreditation Council for Graduate Med. Ed., 24 F.3d 519, 524 (3d Cir.1994)). This latter theory is premised upon the following central allegations:
*666 a. that the police gave information to Vorsheck prior to Adams's hypnosis (First Amended Complaint ("FAC") ¶ 20) and instructed Vorsheck that DiNicola was the principal suspect and that the purpose of the hypnosis was to develop evidence against him (FAC at ¶ 21);
b. that the police participated and assisted in conducting the hypnosis (FAC ¶¶ 20-21);
c. that the hypnosis session was highly suggestive, involving the use of leading questions at the direction of the police, and was otherwise conducted in a manner contrary to generally accepted standards for the hypnosis of witnesses for forensic purposes (FAC ¶ 21);
d. that, as a result of the hypnosis, Adams adopted a new and false memory which was the product of the improper hypnosis (FAC ¶ 22);
e. that there was a plan and agreement among the Defendants to bring false criminal charges against DiNicola (FAC ¶ 22); and
f. that, in furtherance of the plan and agreement, the Defendants deliberately concealed the September 6, 1979 hospital interview of Adams which was inconsistent with the hypnotically induced statements secured on September 17, 1979 (FAC ¶ 22).
Vorsheck contends that, based on the doctrine of collateral estoppel, state action on his part cannot be established as a matter of law. Specifically, he relies on the September 24, 1984 opinion of the Hon. Fred B. Anthony, Erie County Court of Common Pleas, in which a judicial finding was made that Vorsheck acted independently of the police in conducting the hypnotic regression of Sweet. Vorsheck claims that this ruling precludes Plaintiff from establishing state action under either the conspiracy or public function theories.
Pursuant to 28 U.S.C. § 1738,[32] we are required to give the same preclusive effect to state court judgments as would be given by courts of the state from which the judgment originated. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir.1993). Pennsylvania courts apply the doctrine of collateral estoppel when five elements are met:
(1) the issue decided in the prior action is identical to the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior action; (4) the party ... against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment.
Faison v. Sex Crimes Unit of Philadelphia, 845 F.Supp. 1079, 1085-86 (E.D.Pa.1994) (citing City of Pittsburgh v. Zoning Bd. of Adjustment, 522 Pa. 44, 559 A.2d 896, 901 (1989)). It would appear that the only element of collateral estoppel which is arguably disputed here is that of "identity of issues." The Court will therefore focus on that particular requirement.
Following the vacation of Plaintiff's criminal conviction in 1983, the circumstances of Sweet's hypnosis came to light, resulting in additional pretrial proceedings in state court relative to Plaintiff's second criminal trial. Based in large part upon the uncovering of Sweet's hypnosis, DiNicola filed a motion to dismiss the criminal charges against him and/or to exclude the testimony of Deborah Sweet altogether in his second criminal trial. The Erie County Court of Common Pleas, Hon. Fred B. Anthony, held several days of evidentiary hearings on the motion during the months of June-August, 1984. Among other things, DiNicola argued that the hypnosis used on Ms. Sweet was so suggestive that it completely contaminated any recollection that Ms. Sweet may have had of the fire, whether pre- or post-hypnotic memories. While the state court agreed that Ms. Sweet's hypnotically induced memories were *667 unreliable, and therefore inadmissible, it declined to suppress certain portions of her testimony that were clearly made prior to hypnosis. The court acknowledged that the issue of whether Ms. Sweet's pre-hypnotically induced testimony would be admissible was controlled by Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (Pa.1984), wherein the Pennsylvania Supreme Court established the following standard:
whenever a person previously hypnotized is offered as a witness, the offering party must so advise the court, and show that the testimony to be presented was established and existed previous to any hypnotic process; [ ] that the person conducting the hypnotic session must be trained in the process and is neutral of any connection with the issue or the parties; and, the trial judge shall instruct the jury that the testimony of a witness previously hypnotized should be carefully scrutinized and received with caution.
476 A.2d at 1308 (internal footnote omitted) (emphasis supplied).
Insofar as the neutrality of Vorsheck was concerned, Judge Anthony found, in relevant part, as follows:
The fourth guideline [of Smoyer] requires that the hypnotist be "neutral of any connection with the issue or the parties". Smoyer, 476 A.2d at 1308. The court in Smoyer does not define these terms. In our research, we find that the term "neutral of any connection with ... the parties" appears to be simply a variation of one of Dr. Orne's safeguards. One of his safeguards specified that the hypnotist "should be an independent professional not responsible to the prosecution or investigators." ...
Applying this standard, we find that Mr. Vorsheck was not under contract with nor was he an employee of any police or law enforcement agency. Of the thousands of hypnotisms that Mr. Vorsheck performed, only about thirty or fifty hypnotisms were performed for various police agencies between 1975 and 1979. Furthermore, of that number only about six or eight were performed for the City of Erie Police Department. As such, the services that Mr. Vorsheck performed for the various law enforcement agencies were but a minuscule part of his practice, and do not give him the type of interest in the outcome of the hypnosis that would effect [sic] his neutrality.
The term neutral of the issues appears to this Court to mean that the hypnotist must not have any connection with the event under investigation nor any substantial knowledge of the surrounding circumstances.
* * * * * *
In this case, Mr. Vorsheck did have some knowledge of the surrounding circumstances. The defendant had been brought to him about being hypnotized [] on September 10, 1979. So, Mr. Vorsheck did have some idea that the defendant was connected with the fire.
Mr. Vorsheck claims that he cannot remember being told that the defendant was a suspect in the arson/murder. However in the Sweet regression, Mr. Vorsheck appeared to be centering on the defendant. He asked what the defendant was wearing... but never asked what Michael Jefferson was wearing, even though Mr. Jefferson was also with Ms. Sweet on the night of the fire.
Mr. Vorsheck also seemed to be very concerned with what type of shoes or footwear that the defendant was wearing ... He also brought up the subject whether Mr. Jefferson or the defendant made a pass at Ms. Sweet.... Both of these areas of questioning indicate that Mr. Vorsheck had more than a modicum of knowledge about the circumstances of the fire.
These incidents, however, are isolated and are not part of an overall pattern of questioning. We do not find these instances to be so overwhelming to lead us to conclude that Mr. Vorsheck possessed such a degree of information as to foreclose him from being neutral to the issues.
(Mem. Op. dated 9/24/84 at 8, Def.'s App. of Evid. Materials in Supp. of the Mot. to Dismiss Complaint under Rule 12(b) [Doc. No. 17] at Ex. 10, p. 000500-502 (internal citations *668 and footnote omitted).) In a footnote, Judge Anthony further stated the following:
The defendant also presented the testimony of Thomas A. Martin, a friend of Ms. Sweet. He testified that he saw Detectives DiPaolo and Gunter come down from the upper floor of the Erie Institute of Hypnosis while Ms. Sweet was in an upper room being hypnotized. However, there were [sic] more than one room upstairs and Mr. Martin could not say where Ms. Sweet was being hypnotized. Further, both Mr. Vorsheck and Detective DiPaolo testified that DiPaolo and Gunter were not present in the room where the hypnosis occurred. Therefore, Mr. Martin's testimony is not sufficient to effect [sic] our finding that Mr. Vorsheck was neutral of the issues.
Id. On cross-appeal by both parties, the Pennsylvania Superior Court affirmed Judge Anthony's ruling. See Commonwealth v. DiNicola, 348 Pa.Super. 405, 502 A.2d 606 (Pa.Super.1985), allocatur denied, 516 Pa. 616, 531 A.2d 1118 (Pa.1987), and cert. denied, 484 U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 768 (1988).
Defendant Vorsheck argues that the foregoing ruling by Judge Anthony is binding on this Court and precludes Plaintiff from attempting to reassert Vorsheck's complicity with the police for purposes of establishing state action. We are inclined to agree. As is evident from the foregoing excerpts, DiNicola in the suppression hearing before Judge Anthony raised essentially the same arguments as are being raised here relative to Vorsheck's alleged lack of independence. Moreover, DiNicola now relies chiefly on the same evidence that was brought to the attention of Judge Anthony in challenging Vorsheck's neutrality i.e. evidence from Thomas Martin that supposedly establishes DiPaolo's and Gunter's presence on the second floor where Sweet was being hypnotized, and examination of the transcript from Sweet's hypnosis which supposedly reveals Vorsheck's intimate knowledge of the details of the investigation.[33] Nevertheless, Judge Anthony specifically found that Vorsheck acted as a neutral professional in conducting the hypnosis of Sweet, both in terms of his relationship with the Erie police and in terms of his familiarity with the factual issues in the case. Indeed, Judge Anthony implicitly found that Vorsheck satisfied one of the specific safeguards annunciated by Dr. Orne, DiNicola's expert witness at the suppression hearing, namely, that the hypnotist be "an independent professional not responsible to the prosecution or investigators." (Mem. Op. at 7, Def.'s App. Ex. 10 at 000500.) We acknowledge that Judge Anthony's analysis was framed in terms of whether the element of neutrality under Smoyer was met. Nevertheless, we do not see how Judge Anthony's ruling can be reconciled with a finding that Vorsheck conspired with the Erie Police to deprive DiNicola of his constitutional rights.
Nor can Judge Anthony's ruling be reconciled with a finding of state action under the public function analysis. Central to such a theory is Plaintiff's assertion that Vorsheck knowing the importance of independence in conducting hypnosis nevertheless abandoned all pretense of independence and became, at the behest of DiPaolo and Gunter, a surrogate police investigator. Stated differently, Plaintiff seems to allege that DiPaolo and Gunter enlisted Vorsheck to act as their agent in hypnotizing Sweet. However, this theory cannot be maintained in light of Judge Anthony's finding that Vorsheck conducted his hypnosis in a neutral fashion and that Vorsheck was not responsible to either the police or the prosecution. Adopting Plaintiff's theory in the context of this case (and in light of Judge Anthony's findings) would result in essentially a per se ruling that, any time a professional hypnotist conducts regression on a key witness, the hypnotist acts as an arm of the police, regardless whether or not the hypnotist acted as an independent professional. This Court is unwilling to extend the doctrine of state action that far.
*669 Because Plaintiff cannot establish that Vorsheck acted "under color of state law," Plaintiff's § 1983 claims against him fail as a matter of law. Moreover, because Plaintiff cannot establish on this record that Vorsheck acted in concert with, or at the direction of, the Erie Police Department, there is no evidence from which a reasonable conclusion could be drawn that Vorsheck was responsible in any way for the filing of criminal charges against DiNicola or for his arrest even assuming no probable cause existed. Accordingly, Vorsheck is entitled to summary judgment on all of Plaintiff's Fourth Amendment claims, as well as his state law malicious prosecution claim.
2. The Claims Against Edwards
We next consider whether Edwards can be considered a state actor for purposes of § 1983. Plaintiff alleges that DiPaolo and Gunter actively recruited jailhouse informants, including Edwards, to give incriminating information against him with reckless indifference as to the truth or falsity of the information provided. Specifically he claims that, at the time of his second criminal trial, the prosecution pursued a theory that Plaintiff had set the fire in order to conceal an assault on Sweet's daughter. According to Plaintiff, Edwards was recruited by DiPaolo and Gunter to falsely attribute to him this new uncharged crime of assault, thereby buttressing the prosecution's motive theory.
In our Memorandum Opinion of January 9, 1996, the Court noted that the doctrine of witness immunity under Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), protected Edwards from any liability stemming from testimony provided in court or during court-related proceedings. (1/9/96 Mem. Op. at 20, n.5.) The Court therefore considers Plaintiff's allegations only insofar as they relate to out-of-court statements made by Edwards that were utilized as a basis for Plaintiff's continued prosecution.
Viewing the evidence of record in the light most favorable to DiNicola, we conclude that there is insufficient evidence from which a trier of fact could reasonably infer that Edwards acted under color of state law in providing his out-of-court statements against DiNicola. The Court has carefully reviewed the testimony concerning Edwards's involvement in the criminal case against DiNicola. Among other things, we have examined the parties' depositions, DiPaolo's testimony from the state court hearings held on August 30, 1984 and September 19, 1984, DiPaolo's testimony from Plaintiff's criminal trial in 1994, and Edwards's testimony from the 1994 criminal trial.
The evidence, when fairly construed in the light most favorable to DiNicola, shows that DiPaolo first came into contact with Edwards on June 24, 1983. On that date, DiPaolo was present in the Butler County District Attorney's office at the invitation of Millcreek police officers relative to a completely different criminal investigation. Toward the end of Edwards's interview with the police, Edwards, having recognized DiPaolo's name, commented that he knew DiNicola from the Western Penitentiary and that DiNicola had spoken of DiPaolo. At that time, both Edwards and DiNicola were incarcerated at Western Penitentiary in Pennsylvania. At a suppression hearing held on August 30, 1984, DiPaolo described the encounter as follows:
... as we were leaving the District Attorney's office in Butler, Mr. Edwards at that time asked me what my name was again. I explained to him my name was DiPaolo and that I was from Erie. At that time, he stated to me that there was a friend of mine that was in Western that talks about me all the time because I was the [_____] that put him away. At that time, he mentioned the name Louis DiNicola. He further stated that Mr. DiNicola is quite a character, that he is waiting any day for his new trial, that he is going to be granted that he feels that he is going to beat it when it comes back up for Court. That was the extent of the conversation with myself and Mr. Edwards.
(Def.'s App. Vol. VII, at 3589a.) No further questioning occurred and DiPaolo did not attempt to persuade Edwards to acquire more information on DiNicola. It is undisputed that, at the time of this conversation, *670 DiNicola's conviction was on appeal but not yet been overturned.
In December 1983, the Pennsylvania Supreme Court vacated DiNicola's conviction and granted him a new trial. See Commonwealth v. DiNicola, 503 Pa. 90, 468 A.2d 1078 (Pa.1983). Following this development, DiPaolo contacted Edwards's wife for the purpose of establishing a meeting with Edwards and discussing any information that Edwards might have relative to DiNicola's case. DiPaolo arranged an interview, which was held on February 13, 1984 at the Allegheny County Police Department in Pittsburgh. During the meeting, Edwards gave a signed, written statement concerning certain inculpatory remarks that DiNicola had allegedly made concerning the fire. (See Def.'s App. Vol. III, at 1314a.) Edwards claimed that DiNicola had made these remarks in May 1983, and that he and DiNicola had engaged in many other conversations since that time. At one point, Edwards alleged that DiNicola had mentioned the name of a solvent that was used to start the fire. Edwards offered that he might be able to find out the name of the solvent from DiNicola. Edwards was advised that, if he was going to ask DiNicola any questions, he should first read DiNicola his Miranda rights.[34] However, Edwards was not requested to provide any further information. Nor was Edwards promised any reward or benefit for the information he had provided. Edwards did state, however, that if he were ever called to testify against DiNicola, he would need to be transferred to a different prison in order to ensure his personal safety.
Following this meeting, DiPaolo did not have further contact with Edwards until August 30, 1984.[35] On that date, Edwards was brought to Erie, apparently for the purpose of testifying in a suppression hearing. While in the Erie County District Attorney's office, Edwards provided additional inculpatory information against DiNicola which supplied a possible motive for DiNicola to start the fire. In particular, Edwards alleged that DiNicola had made a statement expressing remorse about the children's death, and explaining that he had been in a situation where he had to start the fire because of "the act" he had committed on one of the children. DiPaolo recorded the substance of this interview in a police report dated August 30, 1984. (See Def.'s App, Vol. V at 2183a.) The report notes that this second alleged conversation, like the earlier one, was initiated by DiNicola. (Id.) During the course of this August 30, 1984 interview, there was no mention by Edwards as to whether he hoped to gain anything from providing this information.
The Court finds, based on the foregoing information, that Defendant Edwards is entitled to summary judgment on Plaintiff's federal claims because there is insufficient evidence from which to conclude that Edwards acted under color of state law. There is no evidence that DiPaolo or Gunter ever directed Edwards to obtain information on their behalf, or supervised his conduct in any way. There is no evidence that Edwards acted as a paid informant in DiNicola's case or received remuneration for his statements. In fact, there is no evidence that Edwards ever received any tangible benefit or any promise of a benefit as consideration for the information he provided. In sum, the record does not lend itself to any reasonable inference that Edwards conspired with DiPaolo and Gunter to provide false information or otherwise acted at their direction or on their behalf.
Plaintiff has cited several circumstantial factors which he claims raise a genuine issue of fact as to Edwards's status as a *671 state actor. He notes that Edwards, while incarcerated at Western Penitentiary, had supplied information to prison officials on numerous occasions concerning matters of internal prison security. (Pl.'s Ex. V at 69.) This is of little moment, however, because there is no evidence that DiPaolo and/or Gunter were aware of this fact. Plaintiff also asserts that, four months after providing his signed statement of February 13, 1984, Edwards was transferred to the Mercer County Correctional Facility where he would be closer to his family. Plaintiff hypothesizes that this transfer was "no doubt" in consideration for his cooperation in the DiNicola case. However, this assertion does not inferentially establish a nexus between Edwards's conduct and the conduct of DiPaolo and Gunter. Moreover, the evidence which Plaintiff cites in support of this supposed transfer is an order from the Butler County Court of Common Pleas dated June 26, 1984, which simply directs that Edward be released to the custody of the Erie County Sheriff for purposes of testifying in a trial in Erie County. (Def.'s App. Vol. III, at 1512a.) It is not clear to the Court how this order demonstrates that Edwards received preferential treatment as consideration for his statements against DiNicola. It is not even clear how this document demonstrates that Edwards was transferred to Mercer County, since the order itself only releases Edwards to the custody of the Erie County Sheriff.
Plaintiff also makes much of the fact that, in his second criminal trial, Edwards testified that the second alleged confession by DiNicola i.e. the alleged confession about having committed "an act" upon one of the children was made in March, April or May of 1984. (Def.'s App., Vol. IX at 4498a-4499a.) It is not disputed that Plaintiff was discharged from Western Penitentiary on February 17, 1984, thus making it impossible for DiNicola to have given this alleged confession on the dates assigned by Edwards. Nevertheless, when put into perspective, this discrepancy is not significant and does not reasonably establish the inference that DiPaolo and Gunter recruited Edwards to give false information. There is no record evidence showing that Edwards, prior to testifying at the 1994 criminal retrial, had attributed DiNicola's "second" confession to the March-May 1984 time-frame. Instead, Edwards had previously claimed only that DiNicola made the second inculpatory statement shortly after Edwards's return from his February 13, 1994 meeting with DiPaolo, sometime near the end of DiNicola's incarceration at Western Penitentiary. Thus, the fact that DiPaolo did not double check to see whether DiNicola was still incarcerated in March or May 1984 is not significant because DiPaolo would not have had any reason to do so. He was aware that Edwards and DiNicola were both incarcerated at Western Penitentiary during that general time period. Plaintiff also asserts that Edwards had a reputation for dishonesty and that DiPaolo displayed reckless indifference to the truth in relying on Edwards's statements. However, even assuming for the moment that DiPaolo failed to sufficiently corroborate Edwards's statements about DiNicola, this would not establish that Edwards's statements were made at DiPaolo's behest or direction. In other words, the fact that DiNicola may have failed to independently corroborate Edwards's account of DiNicola's alleged confessions does not establish that Edwards was a state actor for purposes of § 1983.
In essence, Plaintiff's complaint against Edwards is not that Edwards unlawfully procured a confession at the direction of the police (since he denies ever making these alleged "confessions"). Rather, his claim is that Edwards conspired with Gunter and DiPaolo to attribute false confessions to DiNicola. None of the evidence relied upon by Plaintiff tends to prove this proposition. The Court finds that Plaintiff has failed to adduce evidence sufficient to establish that Edwards acted under color of state law. Accordingly, Plaintiff's § 1983 claims against Edwards cannot survive summary judgment.
D.
Finally, we turn briefly to Plaintiff's § 1983 claim against the City of Erie. It is now well established that municipalities may be liable under § 1983 for the violation of an individual's constitutional rights if the alleged transgression implements or executes *672 a policy officially adopted by the governing body or informally adopted by custom. Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Where the alleged policy or custom is a failure on the part of the municipality to adequately train, supervise or discipline its police officers, liability may be established only where the city's failure "amounts to deliberate indifference to the rights of persons with whom the police come into contact." See City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Beck v. City of Pittsburgh, 89 F.3d 966, 971-72 (3d Cir.1996) (citing cases). Based on the Court's ruling that the conduct of DiPaolo and Gunter did not violate Plaintiff's constitutional rights, there is no viable claim under § 1983 against the City of Erie. The Court will therefore grant the City's motion for summary judgment.
2. Plaintiff's Malicious Prosecution Claim Under Pennsylvania Law
Plaintiff's only remaining cause of action is his common law claim for malicious prosecution. Under Pennsylvania law, an essential element of this tort is the lack of probable cause to support the plaintiff's prosecution. Strickland v. University of Scranton, 700 A.2d 979, 984 (Pa.Super.1997) (To establish a successful claim of malicious prosecution under Pennsylvania law, a plaintiff must show that the defendant "instituted proceedings without probable cause, with malice, and that the proceedings were terminated in favor of the plaintiff.") (citation omitted). In the context of this tort, probable cause "does not require proof beyond a reasonable doubt, but rather, is defined as `a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that a party is guilty of the offense.'" Id. (citing Cosmas v. Bloomingdales Bros., Inc., 442 Pa.Super. 476, 660 A.2d 83, 86 (Pa.Super.1985)). Based on our review of the evidence, as set forth supra at Sec. III(1)(A), we conclude that Plaintiff's claim cannot survive summary judgment because, as a matter of law, the Defendants had probable cause to initiate criminal proceedings against DiNicola.[36] Insofar as Plaintiff's state claim is asserted against Vorsheck and/or Edwards, we separately conclude, based on an extensive review of the record, that there is insufficient evidence as a matter of law to establish their responsibility for Plaintiff's criminal prosecution.
Accordingly, judgment will be entered in favor of Defendants on Plaintiff's claim of malicious prosecution under Pennsylvania law.
IV. CONCLUSION
Based upon the foregoing analysis, the Court will enter summary judgment on behalf of all Defendants in this action.
*673 APPENDIX
NOTES
[1] Although the Pennsylvania Supreme Court rejected DiNicola's claim on appeal that the evidence at trial was insufficient to support the verdict, the court vacated his conviction and granted a new trial on the ground that the trial court had committed prejudicial error by admitting certain hearsay testimony i.e., testimony that an assistant district attorney had opined, in the presence of DiNicola, that DiNicola was the perpetrator of the fire. See Commonwealth v. DiNicola, 503 Pa. 90, 468 A.2d 1078, 1081-82 (Pa.1983).
[2] Plaintiff's second count originally asserted additional state law claims for false arrest, false imprisonment, spoliation of evidence, intentional infliction of emotional distress, defamation, abuse of process, willful misconduct, prima facie tort, conspiracy tort, negligence and gross negligence. By memorandum opinion dated January 10, 1996, this Court dismissed all of Plaintiff's state law claims, with the exception of his claim for malicious prosecution.
[3] Plaintiff also seeks an award of attorneys' fees pursuant to 42 U.S.C.A. § 1988 (West 1994 and 1997 Supp.).
[4] We note that Payton has been given retroactive effect as to arrests occurring before that decision was handed down. See United States v. Johnson, 457 U.S. 537, 562-63, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); Sager, 743 F.2d at 1263.
[5] During a suppression hearing held on September 5, 1980 before the Court of Common Pleas, DiPaolo was questioned regarding the circumstances of the arrest. DiPaolo testified that, on the morning of March 26, 1980, he and Gunter went to DiNicola's home, explained that they wanted to talk to him, and were "invited" into the house by DiNicola. (Def.'s App., Vol. VI at 2754a-2756a.) The police report similarly indicates that DiPaolo and Gunter were "let into the house by DiNicola." (Def.'s App. Vol. V at 2179a.) Once inside, the officers attempted to persuade DiNicola to accompany them to the police station for further questioning. When DiNicola declined, they presented their warrant and arrested him. (Id.) DiNicola's attorney conceded during a telephonic conference held on January 16, 1998 that the officers' entry into the home was consensual. (See Doc. No. 145, at p. 6.) We therefore consider the issue of consensual entry to be conclusively established on this record.
[6] The following facts appear to be undisputed on this record.
[7] Unless otherwise indicated, the following facts are undisputed on the record. Where a factual dispute exists, we construe the evidence (and any reasonable inferences arising therefrom) in the light most favorable to DiNicola, the non-movant.
In general, the evidence outlining the officers' criminal investigation can be found at Def.s' App., Vol. V [Doc. No. 93] at 2004a-2183a. The Court has also examined the depositions and trial testimony of the various state and local law enforcement agents, as it bears on the information known by DiPaolo and Gunter during the course of their investigation.
[8] Given the significance of the layout of Sweet's apartment, the Court has attached as Appendix 1 to this opinion a rough diagram of the floor plan as recorded by Trooper Bellotti. (The diagram is contained in the record at Def.'s App. Vol. V [Doc. No. 93], p. 2170a.) We note that, while the exact dimensions of the apartment may not be accurately reflected, the general floor plan is not in dispute and is sufficiently depicted in the diagram for present purposes.
[9] As explained in more detail below, we do not rely on the evidence taken from Sweet's hypnotic regression in making our probable cause analysis.
[10] We also note that there is some evidence that Sweet was also interviewed at the Erie Police Station on September 14, 1979, prior to her hypnotic session with Vorsheck. According to a police report dated September 14, 1979, Sweet gave essentially the same incriminating facts during this interview.
Plaintiff, however, has challenged this evidence on the ground that there is a genuine issue of fact as to whether the interview actually occurred. For purposes of this opinion, we will adopt the Plaintiff's view and discount this evidence.
[11] Prior to the examination, DiNicola was read his Miranda rights, which he waived.
[12] During an in-chambers conference on January 20, 1998, Plaintiff's attorney indicated his client's disagreement with the representation that he failed any part of his polygraph exam. (See Doc. No. 146 at pp. 5-8.) However, we are unable to locate any evidence on this record (apart from counsel's arguments) indicating that Detective Johns's opinion was ill-founded or otherwise suspect. And, in any event, it is undisputed that DiPaolo and Gunter were not present for the polygraph examination. Nothing in this record suggests that they had any apparent basis upon which to question Detective Johns's representations.
[13] It was the admission of this statement into evidence at DiNicola's first criminal trial that ultimately led the Pennsylvania Supreme Court to overturn his conviction.
[14] Notably, even at his deposition DiNicola continued to insist that the fire had not been incendiary in nature.
[15] There was also an entrance at the southeast corner of the apartment which had been boarded shut at the time of the fire. (Def.s' App., Vol. VI at 2562a-63a.)
[16] We note that this arguable implausibility was an evidentiary factor that the Pennsylvania Supreme Court viewed as supportive of DiNicola's conviction in the first criminal trial:
Evidence of DiNicola's culpability includes the following:
* * * * * *
(4) DiNicola's suggestion that an unknown intruder could have started the fire would require that the jury believe the intruder, without being detected, splashed an accelerant in two rooms, including the room measured 12' × 11', where DiNicola told the police he was sleeping on a couch, and ran from the house without being heard.
Commonwealth v. DiNicola, 468 A.2d at 1080 (rejecting contention that evidence did not support conviction but vacating conviction on other grounds).
[17] The record contains some suggestion that contemporaneous news accounts of the fire may have raised the issue of arson or, alternatively, that the issue might have been raised during DiNicola's walk through Sweet's apartment with DiPaolo and Gunter on September 1, 1979. Suffice to say that DiNicola's deposition testimony is unenlightening on this point and there is no evidence of record demonstrating the officers' awareness that, in fact, DiNicola had come to know of the incendiary nature of the fire through these other sources. In short, the Court finds nothing in the record to undermine its conclusion that DiNicola's "arson" statement could reasonably be viewed by the officers as suspicious.
[18] Indeed, a review of the criminal file indicates that, even after DiNicola's arrest, DiPaolo and Gunter took steps to investigate and rule out a number of leads as to other possible suspects. For example, the officers investigated and ruled out a lead that an individual by the name of Joseph Bryan had caused the fire by lighting a stick of dynamite under Sweet's house. (See Def.s' App., Vol. V at 2022a, 2152a.) They also investigated a lead (developed by friends of DiNicola) that one Thomas Evans had been responsible for the fire. (Id. at 2115a-17a.) Evans was questioned by the officers and eventually submitted to a polygraph examination, which he reportedly passed. (Id. at 2137a.) DiPaolo and Gunter even looked into alleged reports implicating Sweet herself in the fire. (See id. at 2043a et seq.) Finally, they continued to investigate Pete Moore based on information provided by friends of DiNicola (Id. at 2135a-36a.)
[19] The Court acknowledges that there is some confusion in the record as to whether Pitt's CO level was in fact 70% or in instead somewhere in the vicinity of 35%.
[20] The Court is aware of evidence that Jefferson referred to Sweet as a "party girl" and, at one point, opined to the officers that DiNicola could have "had" Sweet if he had wanted. This evidence, however, does not render the "revenge" theory unreasonable, nor does it otherwise affect this Court's assessment of probable cause. The officers had reason to discount Jefferson's comments in light of Jefferson's friendship with DiNicola and his apparent unwillingness to incriminate DiNicola for fear of retaliation.
[21] Although Sweet's September 6, 1979 statement is not entirely clear on the point, there is evidence of record to suggest that both Sweet and Jefferson fell asleep briefly prior to the outbreak of the fire. Jefferson's statement of September 12, 1979 suggests that he and Sweet were both awakened by DiNicola "banging into everything" in the apartment. Further, while Sweet's September 6 statement does not specifically recount that she fell asleep, there appears to be a time lag not accounted for in her statement. A fair reading of her statement is not inconsistent with the possibility that she fell asleep for some period of time. ("I just hear this racket going on, you know, like there's this fumbling around, and it was bugging me. Next thing I know I smelled smoke and Mike jumped up, I don't even know if he ever finished making love to me. Mike jumped up. I smelled smoke, thought I smelled smoke ... Sat up and it was like, Oh my God ...") (Pl.'s Ex. E at 17.) Plaintiff himself interprets Sweet's September 6 statement as establishing "Sweet's recollection that she, plaintiff and Jefferson evacuated the building after being awakened by the fire." (Pl.'s Br. at 11.)
[22] In making the claim that Jefferson's statement "excluded the possibility that plaintiff left the residence prior to the fire," DiNicola cites to the record at Def.s' App., Vol. V, 2053a (Bates No. 000768a). (Pl.'s Br. in Opp. at 14.) The Court has reviewed that citation and finds nothing therein which supports DiNicola's representation. Further, based on its own independent review of the record, the Court is unaware of any statement by Jefferson which definitively precludes the possibility that DiNicola left and returned to Sweet's apartment on the night of the fire.
[23] DiNicola notes Jefferson's testimony at his first criminal trial that "you people got the wrong guy." (Pl.'s Br. in Opp. at 14, citing Def.s' App. 4045a.) This comment is obviously irrelevant to the issue of Plaintiff's arrest, since it was not made until months after the arrest. Further, we do not consider the statement to be terribly significant in terms of undermining probable cause for DiNicola's on-going prosecution. First, nothing in the criminal investigation file suggests that Jefferson actually witnessed the fire or saw the perpetrator first hand. Second, to the extent that Jefferson made any comments exculpatory of DiNicola, DiPaolo and Gunter had reason to discount them in light of Jefferson's friendship with DiNicola and his apparent unwillingness to incriminate DiNicola for fear of retaliation.
[24] In adjudicating DiNicola's appeal from his 1980 conviction, the Pennsylvania Supreme Court found that the evidence at trial was sufficient to establish that the fire was of incendiary origin:
[Two Pennsylvania State Police Fire Marshals] testified ... that their investigation ruled out an electrical origin for the fire, and it was stipulated that there was no gas leak. Although DiNicola argues that lighted candles which were burning may have started the fire, such an origin would not explain the fire marshals' finding that an accelerant was used to kindle the fire. Thus, there was clearly sufficient evidence upon which the jury could have determined that the fire was of incendiary origin.
Commonwealth v. DiNicola, 468 A.2d at 1080 (reversing conviction on other grounds).
[25] We also note that the criminal file contains a signed statement from Mr. Mello as to the events he witnessed on the night of the fire. Although barely legible, the statement (as best we can tell) does not mention a sighting of a man near the electrical box at Sweet's apartment. (See Def.s' App., Vol. V at 2025a-26a.)
[26] Plaintiff represents that two witnesses observed Pete Moore "threaten to burn the house down because he was jealous of Cora Jefferson's plans to marry Eugene Pitt." (Pl.'s Br. in Opp. at 19, citing to the record at Def.'s App. Vol. V, 2054a, Bates No. 000769.) The Court has reviewed this citation and notes that it contains the officers' report of interview witnesses with Evelyn Wyncoop and Judith Pristello, both of whom had previously heard Pete Moore threaten to prevent Cora Jefferson's wedding to Eugene Pitts. (The Court has previously discussed these reports in Part A, section (ii), outlining the evidence in the criminal investigation file.) Notably, however, there is no mention whatsoever of Moore threatening to "burn the house down." (See Def.'s App. Vol. V at 2054a, Bates No. 000769.)
[27] Despite Mrs. Martin's representation that her husband also witnessed a man fleeing the scene of the fire, we note that Mr. Martin has not presented any affidavit attesting to this fact.
[28] We also note incidentally that DiPaolo's contemporaneous investigation notes reflect information about a young man rolling around in the grass. This information does not correspond to or corroborate Mrs. Martin's professed sighting as set forth in her affidavit, which she generated almost eighteen years after the fire.
[29] This inquiry differs slightly from the analysis undertaken in Part A, supra. Under Part A, the Court treated DiNicola's arrest as a warrantless arrest and considered the probable cause inquiry in light of the totality of evidence known by DiPaolo and Gunter, whether or not that evidence was ultimately included in the officers' Affidavit of Probable Cause. For purposes of the present analysis, we assume that a warrant was required and, accordingly, we consider only that evidence which relates to the information set forth in the officers' Affidavit. Thus, we do not consider, e.g., DiNicola's arguably incriminating remarks or the results of his polygraph examination.
[30] It appears, based on oral argument and a review of Plaintiff's brief, that Plaintiff is asserting a separate Fourteenth Amendment due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) based upon the Defendants' alleged purposeful concealment of the circumstances of Sweet's hypnosis. To the extent such a claim is being advanced, it cannot survive summary judgment. Police officers satisfy their constitutional obligations under Brady when potential "Brady" material is disclosed to the prosecutor; it is not incumbent upon police officers to disclose potential exculpatory information to the defendant directly. See McMillian v. Johnson, 88 F.3d 1554, 1567 (11th Cir.1996); Walker v. City of New York, 974 F.2d 293, 299 (2d Cir.1992), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993); Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir.1988). Here, the record clearly establishes that the prosecutors in Plaintiff's first criminal trial were aware of Sweet's hypnosis on September 17, 1979, as well as her pre-hypnotic statement given on September 6, 1979. Plaintiff objects that, while the prosecutors were aware of Sweet's hypnosis, they could not have appreciated the suggestive nature of the regression because it is not clear that the prosecutors listened to the tapes of Sweet's September 6 interview and because a transcript of the hypnotic regression was not produced to them until after DiNicola's arrest. Nevertheless, we do not think that the Fourteenth Amendment places the burden of such disclosure on the officers. It stands to reason that the audio tapes from Sweet's hypnotic regression must have been preserved, and therefore available to the prosecution, at least up until the time of their transcription. We are unaware of any reason why the audio tapes from Sweet's September 6 hospital interview would not have similarly been available to the prosecutors. And the record does not suggest that the existence of these materials was ever concealed from the prosecutors. Having made the prosecution aware of Sweet's hypnotic session, Brady required no more.
[31] And, for reasons explained below, the Court finds that it is conclusively bound by a prior determination that Vorsheck acted independent of the police in conducting the hypnosis.
[32] Section 1738 provides that: "[J]udicial proceedings [of any court of any State] ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State." 28 U.S.C. § 1738.
[33] To the extent that Plaintiff now relies on facts outside the scope of evidence presented to Judge Anthony, no showing has been made that such evidence is new and/or material evidence that was not previously available.
[34] There appears to be some contradiction in the record regarding this point. DiPaolo testified at a 1984 suppression hearing that Gunter was present on February 13, 1984 and that it was Gunter who made the remark about providing Miranda warnings. However, at his deposition taken in 1997 in connection with this lawsuit, Gunter could not recall having met Edwards.
[35] The record shows, however, that shortly after the February 13, 1984 interview with Edwards, DiPaolo was contacted by Edwards's wife. The contact resulted from the fact that Edwards had been taken to the Allegheny County Jail following his interview with DiPaolo, and had been detained there for a period of time. Edwards's wife contacted DiPaolo in an effort to have Edwards taken back to Western Penitentiary, where he was supposed to be incarcerated. DiPaolo did apparently contact the proper authorities to arrange for Edwards's return to his proper location at Western Penitentiary.
[36] Based on our review of Pennsylvania law, it is not clear whether the results of the various polygraph tests may be considered in determining the existence of probable cause for purposes of Plaintiff's state law claim. However, the Court concludes that, even absent such evidence, the record establishes the existence of probable cause as a matter of law.
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996 F.2d 1224
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.Randolph A. HARO, Petitioner-Appellant,v.Robert BORG, Warden, Respondent-Appellee.
No. 93-55125.
United States Court of Appeals, Ninth Circuit.
Submitted June 21, 1993.*Decided June 29, 1993.
Before: CANBY, FERNANDEZ, and T.G. NELSON, Circuit Judges.
1
MEMORANDUM**
2
Randolph A. Haro, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition for habeas corpus relief. Haro alleges that his conviction for first degree murder is invalid, because his trial counsel was ineffective. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, Thomas . Lewis, 945 F.2d 1119, 1122, (9th Cir.1991), and we affirm.
3
We have rejected a per se rule that representation by a lawyer suspended from practice by a state bar automatically results in the denial of the Sixth Amendment right to counsel. United States v. Hoffman, 733 F.2d 596, 600-01 (9th Cir.), cert. denied, 469 U.S. 1039 (1984).
4
To make out a claim for ineffective assistance of counsel, a petitioner must demonstrate that counsel's actions were deficient and that the deficiency prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687-90 (1984); Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir.1992). To demonstrate counsel's deficiency, the petitioner must show that counsel's actions were "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690; Hendricks, 974 F.2d at 1109. To establish prejudice, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; Hendricks, 974 F.2d at 1109.
5
"The fact that an attorney is suspended or disbarred does not, without more, rise to the constitutional significance of ineffective assistance of counsel under the Sixth Amendment." United States v. Mouzin, 785 F.2d 682, 696-97 (9th Cir.), cert. denied, 479 U.S. 985 (1986). In order to raise an ineffective assistance of counsel claim on the basis that the attorney had been disbarred or suspended, a petitioner must point to specific conduct which prejudiced him. Id. at 697.
6
Haro alleges that he was denied his Sixth Amendment right to counsel because his counsel had been suspended from membership in the State Bar of California. This, however, does not automatically result in a denial of the Sixth Amendment right to counsel. See Hoffman, 733 F.2d at 600-01.
7
To the extent that Haro is alleging ineffective assistance of counsel, we note that his petition fails to indicate how he was prejudiced by his counsel's actions. Moreover, on appeal, Haro concedes that his counsel's actions did not prejudice his trial. Therefore, Haro's trial assistance was not rendered ineffective because his counsel was suspended by the State Bar of California. Mouzin, 785 F.2d 696-97.
8
Haro also alleges that his trial counsel was unable or unwilling to communicate with him before his trial. Haro, however, has failed to demonstrate that his counsel's actions were deficient or that they prejudiced his trial. See Strickland, 466 U.S. at 687-90; Hendricks, 974 F.2d at 1109.
9
On appeal, Haro argues that the fact that his trial counsel was suspended from practice violated his rights under California law. Claims solely based on errors of state law are not cognizable in a habeas petition. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 112 S.Ct. 475, 480 (1991).
10
Accordingly, the district court properly dismissed Haro's petition for writ of habeas corpus.
AFFIRMED.1
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, we deny Haro's request for oral argument
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
On 6 May 1993, Haro filed a motion to remand his case to the district court. Haro alleges that the Los Angeles County Jail has a policy which prohibits suspended or disbarred attorneys from visiting their clients. Haro, however, fails to demonstrate that his counsel's actions were deficient or how he was prejudiced. See Strickland, 466 U.S. at 687-90; Hendricks, 974 F.2d at 1109. Therefore, Haro's motion is denied
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552 P.2d 1157 (1976)
Donald Lee WRIGHT, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-76-339.
Court of Criminal Appeals of Oklahoma.
July 26, 1976.
David R. Poplin, Poplin & Blevins, Pryor, for appellant.
Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., for appellee.
*1158 OPINION
BRETT, Presiding Judge:
Appellant, Donald Lee Wright, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Mayes County, Case No. CRF-75-103, for the offense of Burglary in the Second Degree, in violation of 21 O.S. 1971, § 1435. His punishment was fixed at a term of six (6) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.
Due to the nature of the assignment of error of the defendant it is not necessary to recite all the facts.
In his sole assignment of error the defendant asserts that the trial court erred in overruling his motion to suppress evidence obtained pursuant to an illegal search and seizure. In this regard the defendant contends that the affidavits for two search warrants were constitutionally insufficient to provide probable cause for the issuance of the search warrants.
Before we consider this assignment of error it is beneficial to set out the affidavits which are being contested. Two automobiles allegedly containing fruits of the burglary were seized and impounded on the day the defendant was arrested. On the next day, two search warrants were issued, one for each automobile. The affidavits for the search of the two automobiles contain the same language except for the identity of the vehicles. Upon execution of the search warrants, various items sought were found in the trunk of the 1971 Plymouth, which was registered to the wife of the defendant. Nothing was seized in the search of the 1971 Chrysler. The affidavits, in pertinent part, are as follows:
"Affiant states that he is one of the peace officers who investigated the theft of said property and that he has traced said property to the above described vehicle, and/or house, building or premises.
"Affiant further states that Glenn E. Moots and Judy Moots suffered a burglary on June 2, 1975, at approximately 10:30 a.m. at 212 South Elliott in Pryor, Oklahoma; at the time of the burglary a witness, Anne Bostich (sic) saw a white male sitting in an automobile parked directly behind the residence of Glenn E. and Judy Moots at approximately 10:30 a. m. on June 2, 1975, Mrs. Bostich (sic) observed the white male leave the automobile and go directly to the residence with nothing in his hands, and return from the residence with a large brown Doctor's type bag with coat draped over his arm and the bag. One of the items taken in the burglary was a brown doctor's type bag. The victim Glenn E. Moots is a practicing physician in the City of Pryor, Oklahoma; Mrs. Bostich (sic) had occasion to write down the tag number of the automobile which she described as a dark car with tag # CZ-1398; Mrs. Bostich (sic) further viewed a lineup at approximately 10:00 p.m. on June 2, 1975, at Pryor, Oklahoma, and identified Donald Lee Wright as being the white male who she saw at the Moots residence this same day; in the investigation of this burglary other witnesses stated that during the time that Mrs. Bostich (sic) was observing Donald Lee Wright a brown automobile circled the block for approximately 30 minutes.
"Affiant further states that Orlin White an investigator for the District Attorney's Office in Wagoner, Oklahoma, followed a dark brown automobile from Wagoner, Oklahoma, bearing license #CZ 1397 to an apartment located approximately at 26 Street South and 87th Street East in the City and County of Tulsa, Oklahoma; Curtis Hanks, a police officer for the City of Tulsa, Oklahoma, was assigned to aid Orlin White at the above described apartment complex; Officer Hanks observed two automobiles parked at said apartment complex, *1159 one being a 1973 Chrysler automobile black in color bearing license # CZ-1398, and a brown 1971 Plymouth bearing license #CZ 1397 parked together; that officer Hanks and Orlin White observed Donald Lee Wright come from the apartment complex with a white female at approximately 2:20 P.M. on June 2, 1975, and observed Donald Lee Wright get into the brown 1971 Plymouth and the white female get into the black Chrysler automobile; both automobiles left the scene and were followed by Officer Hanks and Orlin White; as the automobiles were being followed, Officer Hanks received a dispatch over his police radio that a felony warrant for Donald Lee Wright had been issued in Pryor, Oklahoma this date of June 2, 1975, for the burglary of Glenn E. Moots residence in Pryor, Oklahoma on June 2, 1975, at this time the Plymouth automobile that Donald Lee Wright was driving was stopped by Officer Hanks at approximately Garnett Street and the Broken Arrow Expressway in Tulsa County, Oklahoma, at the time the officers were following the automobiles one automobile, the 1973 Chrysler, turned off to another street before the officers stopped Donald Lee Wright driving the Plymouth automobile. Donald Lee Wright was arrested for the burglary and transported to the Tulsa Police Department and while awaiting the arrival of a Wrecker, Officer Hanks observed the 1973 black Chrysler come to the scene of the arrest of Donald Lee Wright. The Chrysler was still being driven by the white female; the black Chrysler was the same automobile which was previously identified by Mrs. Bostich (sic) by Tag Number as being the one she saw at the residence of Glenn E. Moots at the time of the burglary, and the black Chrysler was thereupon seized and towed to the Al Storey Wrecker Service in Tulsa, Oklahoma."
Defendant's first proposition under this assignment of error is that the affidavits failed to recite certain necessary information concerning a citizen informant. In Guthrey v. State, Okl.Cr., 507 P.2d 556 (1973), in regard to citizen informants, it is stated that an affidavit should reflect that the informant enjoyed a good reputation in the community; that he had no prior criminal record; and that he was gainfully employed and other details within the knowledge of the affiant that the informant is reliable. Defendant asserts that this case is applicable in regard to Anne Bostick, named in the affidavit as having observed a black car in the area of the burglarized home and having observed the defendant in the same area.
However, because the informant, Anne Bostick, was identified in the affidavit the applicable authority is that found in Luker v. State, Okl.Cr., 504 P.2d 1238 (1973), where this Court decided that when an affidavit for a search warrant is based upon specified factual information given by a named and known informant, and not the tip of an undisclosed informant, it is not necessary that the affidavit set forth details to indicate the named informant's reliability and the credibility of his information.
The defendant's second proposition is in relation to the affidavit's reference to the factual information provided by Anne Bostick. Transcripts of the proceedings in which Mrs. Bostick testified reveal that she did not see the defendant sitting in an automobile parked directly behind the Moot's residence, nor did she observe the defendant leave the automobile and go to the residence, as stated in the affidavits. Her testimony reveals that she did observe a 1973 Chrysler parked near a public park shelter one and a half blocks from the Moots' residence, and she did observe the defendant walking on the same street where the Moots' home is located, carrying an orange-colored bag. Based upon these *1160 discrepancies, the defendant claims that the affidavits materially misrepresented the facts provided by Anne Bostick, and that if the conflicting statements were deleted from the affidavits they would be wholly insufficient to establish probable cause for the warrants.
In United States v. Thomas, 489 F.2d 664, 669 (5th Cir.1973), it was held that:
"... affidavits containing misrepresentations are invalid if the error (1) was committed with an intent to deceive the magistrate, whether or not the error is material to the showing of probable cause; or (2) made non-intentionally, but the erroneous statement is material to the establishment of probable cause for the search."
There is no claim that the erroneous statements were made with an intent to deceive the magistrate, therefore, we look to whether they are material to the establishment of probable cause for the issuance of the search warrants.
There is no doubt that the affidavits erroneously state the location of the automobile observed by Anne Bostick or that they erroneously state she observed the defendant leave the automobile and go directly to the Moots' residence and return therefrom. However, we are not persuaded that these erroneous statements are material to the establishment of probable cause. In order to connect the defendant, and the two automobiles to be searched, with the burglary there was the necessity of some showing that the defendant and the automobiles were in the vicinity of the Moots' home. It can be observed from comparing the affidavits to the evidence adduced at trial that there are factually correct statements in the affidavits that Anne Bostick recorded the license tag number of the 1973 Chrysler, that she attended a lineup on the same day of the burglary and identified the defendant, and that other witnesses had observed a brown automobile, later identified in the affidavits as the 1971 Plymouth in the area. Mrs. Bostick, according to her testimony, drove up to the parked 1973 Chrysler and wrote the license tag number on a child's coloring book, which was introduced into evidence. She also testified as to the lineup which she attended. Wiley Backwater, Chief of the Pryor Police Department, testified that he learned from other witnesses that a brown Plymouth had been seen in the area near the Moots' residence. Taking into account these factually correct statements, and coupling them with other information in the affidavit which described the investigation leading to the arrest of the defendant and the seizure of the 1971 Plymouth and the 1973 Chrysler, we cannot say that erroneous statements materially affected the establishment of probable cause. Nor can we say that if the erroneous statements were deleted from the affidavits that the affidavits would not be sufficient to establish probable cause. Therefore, we conclude that the affidavits are not insufficient in this regard as contended by the defendant.
Defendant's third proposition is that the affidavits were constitutionally insufficient in that they failed to recite enough of the underlying facts and circumstances to enable the magistrate to independently judge the validity of the conclusion that the contraband was where the affidavits claimed it to be. In Leonard v. State, Okl.Cr., 453 P.2d 257 (1969), this Court in the first paragraph of the Syllabus stated:
"In order to meet constitutional standards required by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, an affidavit for a search warrant must contain information sufficient to comply with one of the following requirements, either
(a) Under oath, the officer (sic) must swear that he has personally observed contraband, or articles to be seized, upon certain described premises, detailing to such a degree the minute particulars of these observations sufficient to support an arrest without a warrant, or to *1161 show the probability that contraband, or items used in the commission of crime, or fruits of crime are on the described premises; . .."
We need only refer to the first requirement in this case because, as discussed in the first proposition, we have a named and known informant, and the other two requirements as set forth in Leonard, supra, refer to undisclosed informants.
In regard to the above requirement we observe the affiant states that he investigated the burglary and traced the property to be seized to the vehicles named in the affidavits. J.B. Hamby and Curtis Hanks are listed as the affiants. Their testimony, from the trial and the hearing on the motion to dismiss, reveals that individually and collectively they were involved in investigating the burglary, and in seizing and impounding the two vehicles. Therefore, we are of the opinion that the affidavits meet the requirement of the Leonard case in showing the probabilty that fruits of the crime were located in the two vehicles.
In his last proposition the defendant presents an ancillary issue that the search warrants were not returned or filed in accordance with the Oklahoma Statutes 22 O.S. 1971, § 1225 and 22 O.S. 1971, § 1224.2 However, it is settled law that defects in the return and filing of a search warrant are administerial and are not grounds for invalidating the search. See United States v. Neal, 500 F.2d 305 (10th Cir.1974) and McMillon v. State, 95 Okl. Cr. 409, 247 P.2d 295 (1952).
In light of our disposition of the four propositions of this assignment of error, we conclude that the trial court did not err in overruling defendant's motion to suppress and in admitting evidence obtained pursuant to the search warrant.
For the reasons set out above, it is the opinion of this Court that the judgment and sentence appealed from be, and the same is, hereby, AFFIRMED.
BUSSEY and BLISS, JJ., concur.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORI BELTRAN; ROBERT BELTRAN;
COBY BELTRAN, by and through his
Guardian Ad Litem Lori Beltran,
Plaintiffs-Appellants,
v.
SANTA CLARA COUNTY; MELISSA No. 05-16976
SUAREZ, individually and as an
employee of the County of Santa D.C. No.
CV-03-03767-RMW
Clara; JENNIFER HUBBS,
OPINION
individually and as an employee
of the County of Santa Clara;
EMILY TJHIN, individually and as
an employee of the County of
Santa Clara,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
April 17, 2007—San Francisco, California
Filed June 25, 2007
Before: Warren J. Ferguson, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt;
Concurrence by Judge Reinhardt;
Partial Concurrence and Partial Dissent by Judge Ferguson
7565
7568 BELTRAN v. SANTA CLARA COUNTY
COUNSEL
Robert R. Powell, Law Offices of Robert R. Powell, San Jose,
California, for the plaintiffs-appellants.
Ann Miller Ravel and Melissa Kiniyalocts, Office of the
County Counsel, San Jose, California, for the defendants-
appellees.
OPINION
REINHARDT, Circuit Judge:
This case raises the question whether social workers are
entitled to absolute immunity for verified statements in peti-
BELTRAN v. SANTA CLARA COUNTY 7569
tions filed with a dependency court. We hold that they are,
both with respect to dependency petitions and custody peti-
tions, as well as the statement of facts submitted therewith.
FACTUAL AND PROCEDURAL BACKGROUND1
Since his premature birth on June 5, 1998, Coby Beltran
(“Coby”) has suffered from numerous medical maladies,
including an undiagnosed and unsuccessfully treated bowel
motility problem. Coby’s gastrointestinal problems led to
occasions where his Body Mass Index fell below the fifth per-
centile, putting him at risk of significant long-term damage.
During the first four years of Coby’s life, Child Protective
Services Department of the Social Services Agency of Santa
Clara County (“the Department”) received four separate refer-
rals based on claims that Coby’s mother suffered from Mun-
chausen Syndrome by Proxy, a condition in which a parent
(generally the mother) takes affirmative steps to keep her
child ill in order to gain medical attention. Social workers
investigated each referral and, each time, deemed the referral
“unfounded.”
This case involves the results of a fifth referral of suspected
abuse based on Munchausen Syndrome by Proxy received, in
July 2002, from one of Coby’s doctors. Melissa Suarez
(“Suarez”), a case worker employed by the Department,
investigated this referral. On August 12, 2002, following the
investigation, Suarez’s supervisor, Emily Tjhin (“Tjhin”),
signed and filed a dependency petition pursuant to California
Welfare and Institutions Code § 300, seeking to have Coby
made subject to the jurisdiction of the juvenile court. The
dependency petition included a three-page statement of facts
that described the findings of Suarez’s investigation. The Bel-
1
Because this case is before the panel on a 12(b)(6) motion, we must
take all factual allegations in the complaint as true, construing them in the
light most favorable to the moving party. Grosso v. Miramax Film Corp.,
400 F.3d 658 (9th Cir. 2005).
7570 BELTRAN v. SANTA CLARA COUNTY
trans assert that much of this information is untrue and that
Suarez and Tjhin deliberately fabricated evidence and sup-
pressed information favorable to the Beltrans.
Suarez also signed and filed an Application and Custody
Petition in Support of Protective Custody Warrant (“custody
petition”) pursuant to California Welfare and Institutions
Code § 340, requesting permission to remove Coby from his
home pending the conclusion of the dependency proceedings.
The custody petition incorporated the dependency petition by
reference. A Protective Custody Warrant was issued by the
court that same day. Two days later, on August 14, 2002,
Coby was removed from his parents’ custody pursuant to the
warrant and placed in a children’s shelter. On August 19,
2002, an initial detention hearing was held and the court
found that Coby should be detained and temporarily placed
under the care and supervision of the Department of Family
and Children’s Services. However, on September 16, 2002,
after a full hearing, the dependency petition was denied and
Coby was returned to his parents by order of the juvenile
court.
The Beltrans brought suit against Suarez and Tjhin under
42 U.S.C. § 1983 for their actions in connection with the tem-
porary removal of Coby from their custody and the attempt to
place him under the care and supervision of the state agency,
alleging violations of their rights of family association, pri-
vacy, and freedom from unreasonable seizure. The district
court concluded that Tjhin and Suarez were entitled to abso-
lute immunity for their actions in connection with the signing
and filing of the custody and dependency petitions, and dis-
missed the federal law claims that arose out of those actions.2
2
In district court, the Beltrans also alleged that various constitutional
violations occurred while Coby was in custody. Those violations are not
at issue on this appeal. Accordingly, defendants’ motion to strike pages 14
through 21 of appellants’ opening brief relating to these later violations is
granted.
BELTRAN v. SANTA CLARA COUNTY 7571
ANALYSIS
[1] The touchstone of the absolute immunity analysis is the
“nature of the function performed, not the identity of the actor
who performed it.” Kalina v. Fletcher, 522 U.S. 118, 127
(1997). Courts grant absolute immunity from liability for suits
arising out of the performance of functions that are necessary
to the judicial process. Miller v. Gammie, 335 F.3d 889, 896
(9th Cir. 2003) (en banc) (citing Imbler v. Pachtman, 424
U.S. 409, 430 (1976)). At early common law, this included
most actions of judges, grand jurors, and prosecutors. Imbler,
424 U.S. at 422-24. Witnesses testifying in court received
absolute immunity, but “complaining witnesses,” those swear-
ing to the facts in the initial complaint, did not. Kalina, 522
U.S. at 130-31; Burns v. Reed, 500 U.S. 478, 489-90 (1991).
Absolute immunity has been extended to the actions of other
state actors when they engage in functions that are quasi-
prosecutorial or quasi-judicial. Antoine v. Bryers & Anderson,
Inc., 508 U.S. 429, 435-36 (1993); see also Miller, 335 F.3d
at 897. However, the Court has not recognized absolute
immunity for acts that are “further removed from the judicial
phase of proceedings than the act of a prosecutor in seeking
an indictment.” Kalina, 522 U.S. at 128 (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). In this circuit, we have
determined that under this framework social workers are enti-
tled to absolute immunity for their “actions in investigating
and presenting evidence to the dependency court.” Doe v.
Lebbos, 348 F.3d 820, 825 (9th Cir. 2003).
On appeal, plaintiffs argue, first, that Tjhin is not eligible
for absolute immunity for swearing to the facts in the depen-
dency petition because when she did so she was acting as a
complaining witness, not entitled to immunity. See Kalina,
522 U.S. at 129. Second, they argue that Suarez is not entitled
to absolute immunity for filing the custody petition, because
this action is analogous to that of a police officer filing an
arrest warrant, for which only qualified immunity is available.
See Malley, 475 U.S. at 343.
7572 BELTRAN v. SANTA CLARA COUNTY
Here, as in Lebbos, plaintiffs complain that the social work-
ers failed to properly investigate the case prior to filing the
petitions and that they deliberately fabricated evidence pre-
sented to the dependency court. Lebbos extends absolute
immunity to the failure to investigate possible exculpatory
evidence and to the fabrication of evidence in dependency
petitions. Lebbos, 348 F.3d at 826. Immunity exists because
the social workers “engaged in these actions as part of [their]
initiation and pursuit of child dependency proceedings” and,
therefore, they “had the ‘requisite connection to the judicial
process’ to be protected by absolute immunity.” Id. (quoting
Miller, 335 F.3d at 896). Thus, under Lebbos, the defendants
are entitled to absolute immunity.
Plaintiffs urge us to distinguish Lebbos because Tjhin filed
the dependency petition under penalty of perjury, and Lebbos
fails to specify that the social worker did so in that case.
Plaintiffs argue that it is the act of verifying the petition that
makes the social worker like a complaining witness. How-
ever, the social worker in Lebbos undoubtedly verified the
statements in her dependency petition as California law
requires that dependency petitions be presented by a social
worker, that they include a statement of facts, and that they
“shall be verified.” CAL. WELF. & INST. CODE §§ 325, 332.
[2] Even if the Lebbos social worker did not do so, Lebbos
holds that social workers are immune for their “actions in
investigating and presenting evidence to the dependency
court,” which must realistically under the California proce-
dure include verifying the petition. Lebbos, 345 F.3d at 825.
The social worker’s responsibility to investigate the complaint
puts her in a different position vis-a-vis the legal proceeding
than the prosecutor in Kalina who, by verifying a petition,
“performed an act that any competent witness might have per-
formed.” Kalina, 522 U.S. at 129-30. Only a social worker
who performed or supervised the investigation can verify the
information presented to the court regarding that investiga-
tion. No one else can report both the opinions of those who
BELTRAN v. SANTA CLARA COUNTY 7573
interact with the family and the results of the investigation,
which include the investigator’s observations of the home and
the family interactions, and the Department’s assessment of
the relative credibility of the parties. In verifying a petition
with this information, the social worker or her supervisor does
not take a “shortcut,” as the dissent argues. Dis. op. at 7585.
She provides the court with valuable information not other-
wise available and verifies that information, which, by law,
must be verified. Moreover, rather than acting in a way that
is inconsistent with “the ethics of [her] profession,” as the
prosecutor did in Kalina, she is performing her responsibili-
ties as defined by California law. Kalina, 522 U.S. at 129-30.
It would defy reason to hold that a social worker is immune
for investigating the case, preparing and filing the petition,
and presenting evidence to the court, but not for signing and
verifying the petition that she is required to prepare and pres-
ent and that describes the investigation she is required to per-
form or supervise. Like all of these other acts, signing and
verifying the petition is “part of [the] initiation and pursuit of
child dependency proceedings.” Lebbos, 345 F.3d at 825.
Such acts are even more closely connected to the prosecution
of the case than the investigation, since the petition is actually
presented to the court. Accordingly, plaintiffs’ attempts to dis-
tinguish Lebbos on these grounds must fail.
[3] Plaintiffs also argue that even if absolute immunity is
applicable to the acts of signing and verifying dependency
petitions, social workers should not be absolutely immune for
similar acts with respect to custody petitions. They contend
that filing the latter form of petition is analogous to filing a
motion for an arrest warrant and, as such, is “further removed
from the judicial phase of . . . proceedings.” Kalina, 522 U.S.
at 128 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
This argument is likewise unavailing. We have already held
that social workers are entitled to absolute immunity for filing
custody petitions. Coverdell v. Dep’t of Soc. & Health Servs.,
834 F.2d 758, 764 (9th Cir 1987). Although the Supreme
Court has discussed absolute immunity since Coverdell was
7574 BELTRAN v. SANTA CLARA COUNTY
decided, and Coverdell was limited in part by Miller, 335
F.3d 889, the rationale of Lebbos makes clear that in this cir-
cuit Coverdell’s holding on this point is still good law. Like
filing a dependency petition, filing a custody petition is “part
of [the] initiation and pursuit of child dependency proceed-
ings.” Lebbos, 348 F.3d at 826. This close relationship to the
prosecution of the case is similar to that which exists when
prosecutors file petitions for arrest warrants, an act for which
absolute immunity is afforded. See Kalina, 522 U.S. at 129.
Indeed, the act of a social worker of filing a custody petition
is more integrally associated with the prosecution of the case
than the act of a prosecutor in filing an arrest warrant. A cus-
tody petition cannot be filed without a dependency petition
and rests on the same facts as the dependency petition. Also,
like the dependency petition, it is filed with the dependency
court in order to protect the child. Thus, it serves the same
goal as the dependency petition and is part of the same judi-
cial proceeding. Accordingly, we hold that, under Lebbos,
social workers have absolute immunity for preparing and fil-
ing custody petitions, just as they do for preparing and filing
dependency petitions. We also hold that, in light of the rela-
tionship we have just described between the two types of peti-
tions, the acts of signing and verifying custody petitions are
covered by absolute immunity for the same reasons that sign-
ing and verifying dependency petitions are.
[4] Plaintiffs further contend that the California legislature
has rejected absolute immunity for social workers’ submis-
sion of facts to the dependency court, and that we are bound
by California law. California Government Code § 820.21 pur-
ports to strip social workers of absolute immunity from liabil-
ity for perjury, fabrication of evidence, and failure to disclose
exculpatory evidence if committed with malice.3 Although
3
The statute states:
Notwithstanding any other provision of the law, the civil immu-
nity of juvenile court social workers, child protection workers,
BELTRAN v. SANTA CLARA COUNTY 7575
this Act eliminates immunity under state law, immunity for
§ 1983 purposes is set by federal law and cannot be overrid-
den by state legislatures. Wallis v. Spencer, 202 F.3d 1126,
1144 (9th Cir. 2000). Courts considering social workers’
immunity under federal law after the passage of § 820.21,
including the Lebbos court, have, accordingly, universally
ignored the statute. See, e.g., Lebbos, 348 F.3d 820; Miller,
335 F.3d 889; Mabe v. San Bernardino County Dep’t of Pub.
Soc. Servs., 237 F.3d 1101, 1109 (9th Cir. 2001).
In holding that the social workers are immune for their
actions in this case, we are not granting social workers abso-
lute immunity for “everything they do,” as the plaintiffs
argue. Rather, we follow Lebbos in recognizing a distinction
between the initiation and pursuit of dependency proceedings
and other discretionary decisions and recommendations.
Nothing in this decision undermines our holdings in Lebbos
and in Wallis, that social workers are not entitled to absolute
immunity for their actions relating to the maintenance and
care of children in state custody. Consistent with these cases,
we afford absolute immunity to social workers only for those
actions that are closely connected to the judicial process.
and other public employees authorized to initiate or conduct
investigations or proceedings pursuant to Chapter 2 (commencing
with Section 200) of Part 1 of Division 2 of the Welfare and
Institutions Code shall not extend to any of the following, if com-
mitted with malice:
(1) Perjury.
(2) Fabrication of evidence.
(3) Failure to disclose known exculpatory evidence.
(4) Obtaining testimony by duress, as defined in Section 1569 of
the Civil Code, fraud, as defined in either Section 1572 or Sec-
tion 1573 of the Civil Code, or undue influence, as defined in
Section 1575 of the Civil Code.
CAL. GOV’T CODE § 820.21(a).
7576 BELTRAN v. SANTA CLARA COUNTY
CONCLUSION
[5] We are bound by Lebbos and, accordingly, affirm the
district court’s grant of summary judgment on grounds of
absolute immunity as to both Suarez and Tjhin for their
actions in preparing, verifying, and filing the dependency and
custody petitions.
AFFIRMED.
REINHARDT, Circuit Judge, specially concurring, joined by
M. SMITH, Circuit Judge:
Doe v. Lebbos is binding law in this circuit. We are
required to follow it, and we do so. However, I write this sep-
arate concurrence to express my serious doubts as to the cor-
rectness of its holding that social workers are entitled to
absolute immunity for investigating dependency petitions.
We are required to evaluate absolute immunity claims by
analogy to the functions to which absolute immunity applied
at the time that 42 U.S.C. § 1983 was enacted. Kalina v.
Fletcher, 522 U.S. 118, 123-24 (1997). “[B]eyond those func-
tions historically recognized as absolutely immune at com-
mon law, qualified and only qualified immunity exists.”
Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003) (en
banc). For this reason, the Supreme Court has held that a
prosecutor is not entitled to absolute immunity for investigat-
ing or certifying a statement of facts in support of an arrest
warrant. Kalina, 522 U.S. at 129. The court explained that
“[w]hen a prosecutor performs the investigative functions
normally performed by a detective or police officer, it is nei-
ther appropriate nor justifiable that, for the same act, immu-
nity should protect the one and not the other.” Kalina, 522
U.S. at 126 (quoting Hampton v. Chicago, 484 F.2d 602, 608
(7th Cir. 1973), cert. denied, 415 U.S. 917 (1974)). I am
BELTRAN v. SANTA CLARA COUNTY 7577
aware of no rule in existence in 1871 giving any official abso-
lute immunity for any investigations, whether conducted in
preparation for a judicial proceeding or otherwise.
Nevertheless, Lebbos held that a social worker is entitled to
absolute immunity for her actions in investigating a complaint
—actions that, had they been performed by a detective, a
police officer, or a prosecutor, would not warrant absolute
immunity. In doing so, Lebbos granted absolute immunity to
social workers for the performance of a function to which
absolute immunity did not apply at common law. This is in
apparent contravention of the rule that it is “the nature of the
function performed, not the identity of the actor who per-
formed it” that matters for absolute immunity purposes.
Kalina, 522 U.S. at 127 (quoting Forrester v. White, 484 U.S.
219, 229 (1988)). Accordingly, I find Lebbos extremely diffi-
cult to reconcile with the established law of absolute immu-
nity.
FERGUSON, Circuit Judge, dissenting in part and specially
concurring in part:
Social worker Tjhin personally verified the factual allega-
tions contained in the dependency petition; in so doing, she
functioned as the sole complaining witness. See Kalina v.
Fletcher, 522 U.S. 118, 130-31 (1997) (ruling that certifying
truth of facts constitutes functioning as complaining witness).
The parents of Coby Beltran (“Coby”) assert that, in the veri-
fication to which Tjhin swore under penalty of perjury, she
made fraudulent allegations concerning the care the Beltrans
gave their son. The Supreme Court has consistently denied
absolute immunity to complaining witnesses making false
allegations. See, e.g., id. at 127 n.14 (quoting Malley v.
Briggs, 475 U.S. 335, 340-41 (1986)). The majority’s deci-
sion to grant immunity for this alleged fraud expands the doc-
trine of absolute immunity “beyond those functions
7578 BELTRAN v. SANTA CLARA COUNTY
historically recognized as absolutely immune at common
law.” Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003)
(en banc). I respectfully dissent.
I.
On August 12, 2002, social worker Emily Tjhin (“Tjhin”),
an employee of the Santa Clara County Social Services
Agency, Department of Family and Children’s Services,
signed and filed a dependency petition (“petition”), seeking to
have Coby made subject to the jurisdiction of the juvenile
court. The petition stated, inter alia, “Petitioner requests that
the court find these allegations to be true. I declare under pen-
alty of perjury under the laws of the State of California that
the foregoing and all attachments are true and correct.” The
petition included numerous allegations not known personally
by Tjhin but allegedly based on information provided by vari-
ous named and unnamed doctors. The petition also included
a few allegations not attributed to any source.
On the same day, another employee of the same agency,
social worker Melissa Suarez (“Suarez”), filed an Application
and Declaration in Support (“warrant application”), request-
ing that the juvenile court issue a warrant for the protective
custody of Coby, pursuant to Cal. Welf. & Inst. Code § 340.
The warrant application did not allege any additional facts but
referenced the petition filed by Tjhin. Although the requested
warrant was initially issued, the juvenile court later deter-
mined that Tjhin’s petition was without merit and ordered that
the child be returned to his parents.
II.
“The presumption is that qualified rather than absolute
immunity is sufficient to protect government officials in the
exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486-87
(1991). Even when government officers might deserve some
measure of immunity, the Supreme Court has “consistently
BELTRAN v. SANTA CLARA COUNTY 7579
‘emphasized that the official seeking absolute immunity bears
the burden of showing that such immunity is justified for the
function in question.’ ” Antoine v. Byers & Anderson, 508
U.S. 429, 432 n.4 (1993) (quoting Burns, 500 U.S. at 486).
Although absolute immunity must be granted in a narrow cat-
egory of cases to protect the judicial process, it “leave[s] the
genuinely wronged [individual] without civil redress against
a [government official] whose malicious or dishonest action
deprives him of liberty.” Imbler v. Pachtman, 424 U.S. 409,
427 (1976). Therefore, the Supreme Court has repeatedly cau-
tioned, “We have been quite sparing in our recognition of
absolute immunity, and have refused to extend it any further
than its justification would warrant.” Antoine, 508 U.S. at 432
n.4 (quoting Burns, 500 U.S. at 487).
Absolute immunity against § 1983 suits is restricted “to
functions that enjoyed absolute immunity at common law in
1871.” Miller, 335 F.3d at 898. Prosecutors enjoyed absolute
immunity at common law with respect to “initiating a prose-
cution . . . and presenting the State’s case.” Imbler, 424 U.S.
at 431. Therefore, by analogy, Meyers v. Contra Costa
County Dep’t of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir.
1987), extended absolute immunity to social workers per-
forming prosecutorial functions. Other cases in this circuit
then further extended immunity for social workers. See, e.g.,
Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989); Coverdell v.
Dep’t of Soc. & Health Servs., 834 F.2d 758 (9th Cir. 1987).
However, based on subsequent Supreme Court guidance,
we later issued an en banc decision sharply limiting our prece-
dent. We ruled that the “scope of absolute immunity for social
workers is extremely narrow.” Miller, 335 F.3d at 892, 898.
We stated, “We must now recognize that beyond those func-
tions historically recognized as absolutely immune at com-
mon law, qualified and only qualified immunity exists.” Id. at
897. We overturned our previous social worker cases that
conflicted with Kalina, 522 U.S. 118, and Antoine, 508 U.S.
429, though we upheld Meyers, 812 F.2d 1154, because it
7580 BELTRAN v. SANTA CLARA COUNTY
“recognized absolute immunity for social workers only for the
discretionary, quasi-prosecutorial decisions to institute court
dependency proceedings.” Miller, 335 F.3d at 892, 898
(emphasis added). Finally, we clarified the source of social
workers’ and prosecutors’ immunity: it “is only the specific
function performed, and not the role or title of the official,
that is the touchstone of absolute immunity.” Id. at 897 (citing
Kalina, 522 U.S. at 127) (emphasis added).
III.
Complaining witnesses were not absolutely immune at
common law. Kalina, 522 U.S. at 127 n.14 (quotation omit-
ted). As the majority recognizes, that remains the rule today:
“Witnesses testifying in court receive[ ] absolute immunity,
but ‘complaining witnesses,’ those swearing to the facts in
[an] initial complaint, d[o] not.” Maj. op. at 7571 (citing
Kalina, 522 U.S. at 130-31). In Kalina, the most recent
Supreme Court case to address the scope of prosecutors’
absolute immunity, the Court ruled that absolute immunity
was not available to a prosecutor where she swore to the truth
of the facts supporting her motion for an arrest warrant. 522
U.S. at 129-31. Although a prosecutor has absolute immunity
“for preparing and filing charging documents” that initiate a
proceeding, that immunity does not extend where she is “per-
sonally attesting to the truth of evidence in support of charg-
ing documents.” Genzler v. Longanbach, 410 F.3d 630, 637
(9th Cir. 2005) (citing Kalina, 522 U.S. at 130).
Since Kalina, the Ninth Circuit has repeatedly held that
prosecutors are not entitled to absolute immunity when they
swear to facts underlying a charging document. See Genzler,
410 F.3d at 637; Milstein v. Cooley, 257 F.3d 1004, 1010 (9th
Cir. 2001); Morley v. Walker, 175 F.3d 756, 760 (9th Cir.
1999). “[I]n personally attesting, ‘[the prosecutor in Kalina]
performed an act that any competent witness might have per-
formed,’ and was thus not entitled to absolute immunity.”
Milstein, 257 F.3d at 1010 (quoting Kalina, 522 U.S. at 129-
BELTRAN v. SANTA CLARA COUNTY 7581
30); see id. (quoting Kalina, 522 U.S. at 131) (“[T]he only
function that [the prosecutor] performs in giving sworn testi-
mony is that of a witness.”); Morley, 175 F.3d at 760 (where
prosecutor signs and submits affidavit in support of arrest
warrant, he acts as a witness,“[l]ike the prosecutor in Kalina,”
and is not entitled to absolute immunity); see also Malley, 475
U.S. at 340-41 (like complaining witness, police officer
swearing to affidavit in support of warrant not afforded abso-
lute immunity). The function of social worker Tjhin, person-
ally verifying the factual allegations in the dependency
petition, is indistinguishable from that of the prosecutor in
Kalina, personally certifying the factual allegations in support
of her filing papers. Kalina dictates that absolute immunity
cannot shield Tjhin’s allegedly fraudulent statements.
IV.
Contrary to the majority’s view, maj. op. at 7573, present-
ing testimonial evidence is distinct from personally swearing
to the truth of that evidence. Kalina, 522 U.S. at 129-30.
Where the petitioner does not allege that the prosecutor per-
sonally swore to the facts, absolute immunity may be appro-
priate. See Burns, 500 U.S. at 491; Imbler, 424 U.S. at 430;
Milstein, 257 F.3d at 1012. But in Doe v. Lebbos, 348 F.3d
820, 825 (9th Cir. 2003), cited by the majority, there was no
argument that the social worker actually swore to the facts
contained in the dependency petition.1 Kalina and all of this
circuit’s cases since Lebbos demand that the function of pre-
senting evidence be distinguished from submitting one’s own
testimony. See Kalina, 522 U.S. at 129-30, Genzler, 410 F.3d
at 637; Milstein, 257 F.3d at 1010-11, 1012; Morley, 175 F.3d
at 760.
The majority asserts that a “realistic” interpretation of Cali-
1
The majority decides that “the social worker in Lebbos undoubtedly
verified the statements in her dependency petition,” maj. op. at 7572, but
the Lebbos opinion provides no basis for this conclusion.
7582 BELTRAN v. SANTA CLARA COUNTY
fornia law nonetheless requires a grant of absolute immunity
for social workers personally swearing to facts underlying a
dependency petition. Maj. op. at 7572. On the contrary, Cali-
fornia law expressly dictates that no immunity lies where a
social worker has maliciously engaged in perjury. Cal. Gov’t
Code § 820.21(a). The California legislature apparently did
not believe it “would defy reason,” maj. op. at 7573, to find
a social worker liable for malicious, false testimony despite
any immunity for the initiation of proceedings, related investi-
gations, or presentation of evidence to the court.2
The majority claims that swearing to facts in support of a
petition must be immune because “signing and verifying the
petition is part of the initiation and pursuit of child depen-
dency proceedings.” Maj. op. at 7573 (quotation and internal
punctuation omitted). But the Supreme Court specifically
rejected this “packaged” approach to absolute immunity in
Kalina, 522 U.S. at 129-30. When the petitioner in Kalina
2
The State of California has decided that when the most cherished of
human relationships is involved—the relationship between parents and
their children—any immunity for social workers who interfere with such
bonds shall be limited:
Notwithstanding any other provision of the law, the civil immu-
nity of juvenile court social workers, child protection workers,
and other public employees authorized to initiate or conduct
investigations or proceedings pursuant to Chapter 2 (commencing
with Section 200) of Part 1 of Division 2 of the Welfare and
Institutions Code shall not extend to any of the following, if com-
mitted with malice:
(1) Perjury.
(2) Fabrication of evidence.
(3) Failure to disclose known exculpatory evidence.
(4) Obtaining testimony by duress, as defined in Section 1569 of
the Civil Code, fraud, as defined in either Section 1572 or Sec-
tion 1573 of the Civil Code, or undue influence, as defined in
Section 1575 of the Civil Code.
Cal. Gov’t Code § 820.21(a) (emphasis added).
BELTRAN v. SANTA CLARA COUNTY 7583
argued that executing the certificate “summariz[ing] the evi-
dence supporting the charge,” id. at 121, was “integral to the
initiation of the proceeding,” id. at 130, the Court disagreed:
That characterization is appropriate for her drafting
of the certification, her determination that the evi-
dence was sufficiently strong to justify a probable-
cause finding, her decision to file charges, and her
presentation of the information and the motion to the
court. Each of those matters involved the exercise of
professional judgment; indeed even the selection of
the particular facts to include in the certification to
provide the evidentiary support for the finding of
probable cause required the exercise of judgment of
the advocate. But that judgment could not affect the
truth or falsity of the factual statements themselves.
Testifying about facts is the function of the witness
....
Id. at 130-31.
The majority may find the distinction between prosecu-
torial and testimonial functions to be impractical, but this dis-
tinction was expressly endorsed, and indeed has been
mandated, by the Supreme Court. Id. at 129 (“[P]etitioner’s
activities in connection with the preparation and filing of two
of the three charging documents—the information and the
motion for an arrest warrant—are protected by absolute
immunity. . . . The critical question, however, is whether she
was acting as a complaining witness rather than a lawyer
when she executed the certification under ‘penalty of perju-
ry.’ ”).
V.
The majority also asserts that the social worker’s act of
swearing to the facts underlying the petition must be abso-
lutely protected because California law requires social work-
7584 BELTRAN v. SANTA CLARA COUNTY
ers to file verified petitions. Maj. op. at 7572. This argument,
too, was expressly rejected by the Supreme Court. Kalina,
522 U.S. at 129-30; see also Miller, 335 F.3d at 897 (citing
Antoine, 508 U.S. at 435-36) (“Even actions taken with court
approval or under a court’s direction are not in and of them-
selves entitled to quasi-judicial, absolute immunity.”).
In Kalina, the Supreme Court found unsatisfactory the
prosecutor’s assertion that she had executed the certification
only because Washington State law required an arrest warrant
application to be supported by sworn testimony establishing
the grounds for it. 522 U.S. at 129-30. The Court explained
that, regardless of Washington’s requirement of certification
in support of an application, no law required the prosecutor
herself to make the certification; rather, “petitioner performed
an act that any competent witness might have performed.” Id.
at 129-30.
Similarly, although the majority is correct that California
requires that dependency petitions “be verified,” maj. op. at
7572 (quoting Cal. Welf. & Inst. Code §§ 523, 332), the
majority can cite no statutory or other authority requiring that
the social worker make the verification. See id.; Kalina, 522
U.S. at 130 (finding no absolute immunity “[e]ven if she may
have been following a practice that was routinely employed
by her colleagues”). This case in particular demonstrates that
the social worker cannot be obligated to swear personally to
the underlying allegations. This case involves allegations of
medical neglect, so the social worker cannot possibly verify
personally the truth of the medical opinions upon which she
bases the petition: she lacks the personal knowledge and the
expertise. The appropriate course of conduct would have been
to attach sworn affidavits from medical professionals who
were qualified to testify as to their observations. See Cal.
Welf. & Inst. Code § 332(f) (petition must contain “concise
statement of facts, separately stated”). Submitting a petition
with such supporting statements would have constituted func-
tioning in a prosecutorial role and presenting evidence, and
BELTRAN v. SANTA CLARA COUNTY 7585
such action would have been entitled to absolute immunity.
Here, however, the social worker took a shortcut, choosing to
draft her version of the factual allegations in support of the
petition and to personally swear, under penalty of perjury, to
the truth and accuracy of all such allegations. She cannot be
absolutely immune for such conduct.
VI.
The majority also attempts to distinguish Kalina on the
basis that, unlike prosecutors, social workers are required by
California law to conduct investigations. Maj. op. at 7572.
First, as the majority acknowledges, maj. op. at 7571, it is the
function, not the title, that determines an actor’s immunity,
and it is not the social worker’s investigation function at issue
in this case but the function of swearing to facts underlying
the petition. Second, the majority’s logic implies that social
workers receive greater immunity than prosecutors. See maj.
op. at 7572-73, 7574-75. This implication defies Supreme
Court and Ninth Circuit precedent.
Social workers’ functions are granted immunity only to the
extent that they are analogous to prosecutorial functions
immune at common law. See, e.g., Miller, 335 F.3d at 892
(“We must now recognize that beyond those functions histori-
cally recognized as absolutely immune at common law, quali-
fied and only qualified immunity exists.”); Safouane v. Fleck,
No. 05-35394, 2007 WL 1031460, *6 (9th Cir. March 30,
2007) (mem.) (citation omitted) (“[I]n Miller, we held that
[prior Ninth Circuit precedent] had been overruled by subse-
quent Supreme Court decisions to the extent it granted abso-
lute prosecutorial immunity to social workers for duties
beyond which prosecutors were rendered immune at common
law.”). Social workers did not exist at common law; their
immunity derives only from the analogy between their activi-
ties and prosecutorial functions. Meyers, 812 F.2d at 1157
(first recognizing social workers’ immunity based on prosecu-
torial analogy). Because social workers’ immunity today is
7586 BELTRAN v. SANTA CLARA COUNTY
derivative of prosecutors’ immunity at common law, the for-
mer cannot exceed the scope of the latter. See Antoine, 508
U.S. at 434 (finding no absolute immunity for court reporters,
whose function did not exist at common law, as analogy to
judicial function was inapposite). For the majority to expand
absolute immunity for social workers by highlighting differ-
ences between prosecutors and social workers is to stand the
doctrine of absolute immunity on its head.3
VII.
I would not extend absolute immunity to social workers
functioning as complaining witnesses. I therefore respectfully
dissent from the majority’s decision granting absolute immu-
nity for social worker Tjhin.
VIII.
I do not dissent from the majority’s holding that social
worker Suarez benefits from absolute immunity, because I
believe that ruling conforms with Kalina, 522 U.S. at 129
3
The majority relies heavily on Lebbos, see maj. op. at 7576, but that
decision did not address immunity for social workers functioning as com-
plaining witnesses. I admire and empathize with the majority judges on the
panel, and I recognize the requirement that we follow Ninth Circuit rulings
no matter how wrong those rulings are, see concur. op. at 7576, but I sim-
ply do not believe that Lebbos—which happens to have been decided just
a few months after Miller—mandates the result reached by the majority.
As an aside, I agree with the reasoning of the concurrence, see concur.
op. at 7576-77, and believe that Lebbos is an aberration inconsistent with
all relevant rulings issued before and after. Compare Lebbos, 348 F.3d at
823, 825 (absolute immunity for investigation and fabrication of evi-
dence), with Kalina, 522 U.S. at 126 (no absolute immunity for investiga-
tive function); Buckley v. Fitzsimmons, 509 U.S. 259, 272-76 (1993) (no
absolute immunity for investigation, nor for fabrication of evidence); Mil-
stein, 257 F.3d at 1010, 1011 (same); see also Miller, 335 F.3d at 898 (cit-
ing with approval cases finding no absolute immunity applied to
“investigating whether a removal petition should be filed” nor to “seeking
a protective custody order that did not initiate court proceedings.”).
BELTRAN v. SANTA CLARA COUNTY 7587
(“activities in connection with the preparation and filing of
. . . the motion for an arrest warrant are protected by absolute
immunity”) (internal punctuation omitted). However, I cannot
agree with the majority’s reasoning.
Both the Supreme Court and this court’s en banc decision
in Miller rejected the majority’s approach of focusing on a
“close[ ] connect[ion] to the judicial process.” Compare maj.
op. at 7575, with Miller, 335 F.3d at 897 (“The relation of the
action to a judicial proceeding, the test we formulated in Bab-
cock, is no longer a relevant standard.”). The Supreme Court
emphasized that immunity for a particular action depends on
analytic comparability to a judicial function, not merely con-
nection to a judicial proceeding. Compare maj. op. at 7573,
7574 (relying on “close relationship” between social workers’
activities and “prosecution of the case”), with Kalina, 522
U.S. at 129, 131 (ruling that prosecutor’s act of swearing to
certification was not immune, although closely connected to
prosecution and although filing was conducted simultaneously
with filing of two other charging documents), and Antoine,
508 U.S. at 435, 436 (rejecting argument “that absolute
immunity be extended to court reporters because they are
‘part of the judicial function,’ ” and explaining, “When judi-
cial immunity is extended to officials other than judges, it is
because their judgments are ‘functionally comparable’ to
those of judges . . . .”) (punctuation partially omitted and cita-
tion omitted).
Additionally, Miller abrogated Coverdell, 834 F.2d 758,
upon which the majority relies. See maj. op. at 7574 (citing
Coverdell, 834 F.2d at 764); compare Coverdell, 834 F.2d at
764 (granting immunity for social worker filing custody peti-
tion “[b]ecause [her] actions in seeking and obtaining a court
order were within the scope of her statutory authority as a
quasi-prosecutor”), and id. at 765 (granting absolute immu-
nity for execution of court order), with Miller, 335 F.3d at 897
(“Official performing the duties of advocate or judge may
enjoy absolute immunity for some functions traditionally per-
7588 BELTRAN v. SANTA CLARA COUNTY
formed at common law, but that protection does not extend to
many of their other functions.”), and id. (citation omitted)
(“Even actions taken with court approval or under a court’s
direction are not in and of themselves entitled to quasi-
judicial, absolute immunity.”); see also Antoine, 508 U.S. at
436 (declining to extend absolute immunity to court reporters,
who conduct activities “required by statute”).
As discussed above, supra p. 7579-80, in Miller, we over-
ruled our previous cases that had improperly expanded the
scope of absolute immunity for social workers. 335 F.3d at
892 (“Supreme Court decisions have taken an approach that
is fundamentally inconsistent with the reasoning of our earlier
circuit authority . . . .”). To the extent that the majority relies
on Coverdell, it relies on overruled jurisprudence.
IX.
For the above reasons, I respectfully dissent.
| {
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898 A.2d 472 (2006)
392 Md. 601
Leland BRENDSEL, et al.
v.
WINCHESTER CONSTRUCTION COMPANY, INC.
No. 66, September Term, 2005.
Court of Appeals of Maryland.
May 10, 2006.
*473 Lawrence S. Greenwald (Lawrence P. Fletcher-Hill and Catherine A. Bledsoe of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, Baltimore), on brief, for petitioners.
Robert M. Wright (William P. Pearce of Whiteford, Taylor & Preston, Baltimore), on brief, for respondent.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, and GREENE, JJ.
WILNER, J.
We shall resolve here the dilemma faced by a contractor who (1) is operating under a construction contract that requires disputes arising out of or relating to the contract to be submitted to binding arbitration, but (2) also may be entitled to a mechanics' lien, pursuant to Maryland Code, title 9, subtitle 1 of the Real Property Article (RP), for work done or materials furnished under the contract. Can the contractor seek to assure the prospect of ultimate payment by obtaining a provisional interlocutory lien on the property without giving up its contractual right to have the merits of its claim determined through arbitration? We shall conclude that the contractor does not waive its right to compel arbitration of an arbitrable dispute merely by seeking and obtaining an interlocutory mechanics' lien.
BACKGROUND
In November, 1999, respondent Winchester Construction Company and petitioner Diane Brendsel entered into a contract for the renovation of Wye Hall, a historic plantation house in Queen Anne's County owned by Ms. Brendsel and her husband Leland.[1] The contract was a "cost of the work plus a fee" contract; it called for Winchester to be reimbursed for the costs necessarily incurred in the proper performance of the work and to receive a contractor's fee of 10% of that cost for overhead and an additional 10% for profit. The contract was a standard Abbreviated Form of Agreement Between Owner and Contractor, coupled with attached General Conditions, drafted by the American Institute of Architects (AIA Document A117 (1987 Ed.)). Among other things, the contract specified those costs which would be reimbursed and those which would not, required Winchester to keep detailed accounting *474 records, and provided for progress payments and final payment.
Article 15 of the General Conditions dealt with administration of the contract. It authorized the architect, as the owner's representative, to review and certify amounts due to the contractor, interpret and decide matters concerning performance, make initial decisions on all claims, disputes, or other matters in question, reject work that did not conform to the contract documents, and review and take action on submittals by the contractor. Although the contract identified Good Architecture as the architect, it appears that, at some point, the Brendsels also employed Gipe Associates, Inc., consulting engineers, as an additional owner's agent.
Section 15.8 of the General Conditions called for all claims or disputes between the contractor and the owner arising out of or relating to the contract documents or the breach thereof to be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (AAA) currently in effect, unless the parties agreed otherwise, subject to initial presentation of the claim or dispute to the architect. The provision required that notice of a demand for arbitration be filed with the other party and with the AAA "within a reasonable time after the dispute has arisen."
The renovation work proceeded from September, 1999 through June 3, 2003. On August 1, 2002, Winchester and Ms. Brendsel signed a Memorandum of Understanding (MOU) that made a number of changes in the contract. Most of the MOU dealt with procedures respecting applications for payment. In that regard, ¶ 6 provided:
"Prior to making the final payment under the Contract, Winchester will submit its final accounting of all costs and fee charged to Brendsel under the Contract so that Brendsel's accountants can review the information. This review will be made in 45 days, and Brendsel will pay either the requested amount or the lesser amount substantiated by the accountants within seven days after the accountants' review. If Winchester disagrees with the amount that Brendsel has paid, the matter can be resolved by negotiation or arbitration."
Paragraph 9 deleted ¶¶ 15.1 through 15.7 of the General Conditions, dealing with the duties of the architect, to reflect the fact that the architect had not, in fact, been involved in contract administration. That role, apparently, had been assumed by Gipe Associates. Paragraph 12 of the MOU permitted Brendsel to terminate the contract at any time for her convenience and without cause but specified that, upon such termination, Winchester would be paid for work done to the date of termination subject to appropriate offsets.
The MOU expressed the intent of the parties to execute a formal amendment to the contract reflecting the terms of the MOU and charged Ms. Brendsel with preparing such an agreement. It does not appear that any such agreement was ever prepared or signed. Both sides have treated the MOU as an effective agreement, however.
Disputes continued to surface. On January 28, 2003, an agreement was reached with respect to pending claims. Winchester was advised that Gipe had been designated as construction manager and owner's agent on the project. The parties agreed that Winchester's fee would be reduced from 20% (10% overhead and 10% profit) to 10%, and that the retainage would be reduced from 10% to 5%.
On May 23, 2003, Ms. Brendsel terminated the agreement and directed Winchester *475 to remove its personnel and equipment from the jobsite by May 30. Winchester regarded the termination as one for convenience pursuant to ¶ 12 of the MOU. In her brief, Ms. Brendsel notes that the term "convenience" does not appear in the letter of termination, which is true, but she does not contend that the termination was for any other reason. The letter stated that payment of a final invoice would be made after review of the final accounting, as provided by ¶ 6 of the MOU.
Winchester submitted applications for payment in June and July and a final application on August 13, 2003, showing a gross balance due of $815,877. Brendsel's initial response was to obtain new counsel who, in September, wrote to counsel for Winchester asking for certain additional information and documents and suggesting a meeting to resolve any matters in dispute. At that point, it was not clear that there was any dispute; counsel was collecting information and presumably Brendsel's accountants were reviewing the pending applications for payment. In his letter of September 30, 2003, counsel enclosed a Tolling Agreement that tolled and suspended "[a]ll deadlines provided in either the Agreement or the MOU, as well as any statutory or common law limitation and common law laches ... until five (5) business days after written notice of either party's withdrawal from this Tolling Agreement is delivered to the other party." Through counsel, Winchester signed the Tolling Agreement.
RP § 9-105 requires that a petition to establish a mechanics' lien be filed within 180 days "after the work has been finished or the materials furnished." The work was completed, at the latest, by June 3, 2003. Discussions continued throughout the Fall of 2003, without resulting in either an acceptance of Winchester's claim and payment or a rejection of the claim. Concerned that the statutory time for filing a petition for mechanics' lien was (1) getting close, and (2) might be regarded as jurisdictional or preclusive in nature, rather than as a mere statute of limitations that could be waived or tolled by agreement of the parties, counsel for Winchester, on November 14, 2003, filed a petition in the Circuit Court for Queen Anne's County to establish a mechanic's lien. The petition alleged that Winchester furnished work, labor, and materials from September, 1999, through June 3, 2003, and that $815,877 remained due and payable.
Winchester obviously regarded the petition as a protective measure; counsel continued to send both provisional lien releases and additional documents to counsel for Brendsel, and negotiations continued. At that point, Brendsel was still seeking additional information and it was as yet unclear whether, or to what extent, the application for final payment would ultimately be rejected. Not until December 10, 2003, did Brendsel, through a letter from counsel, reject in full Winchester's claim. The letter acknowledged a net balance owing under the contract of $604,565 but claimed credits against that balance of $871,872 for overcharges and construction defects, leaving a net balance due to Brendsel. Rather than "initiating an action on behalf of Ms. Brendsel," however, counsel suggested a meeting to resolve the matter. Counsel for Winchester responded, questioning some assertions, denying others, and indicating that he needed more time to respond in full.
In the meanwhile, on December 11, the court filed a memorandum requesting that Winchester supplement its petition with, or explain the absence of, an allegation that the improvement of Brendsel's property represented at least 15% of the value of the property and that it furnish statements *476 of the nature and kind of work done or materials provided. Where the work involves improvements to a building (as opposed to the erection of a new building), RP § 9-102 permits a mechanics' lien only if the building is improved to the extent of 15% of its value, and RP § 9-105(a) and Md. Rule 12-302(b) require the petition to allege the kind of work done or the kind and amount of materials furnished.
Faced with the court's request and Brendsel's clear rejection of Winchester's claim, Winchester, on January 9, 2004, filed an amended petition to establish and enforce a mechanics' lien. The amended petition added the averments requested by the court, and, in addition to requesting the establishment of a lien, asked for "a stay of proceedings after an interlocutory lien is established pending the outcome of an arbitration proceeding between the parties hereto." On January 30, the court directed Brendsel to show cause on or before March 8, why a lien should not be granted.
Brendsel responded with an answer denying that any amount was due to Winchester and a two-count counterclaim seeking damages of "at least $1,000,000." Tracking the allegations in her December 10 letter, Brendsel claimed both overcharging and defective work on Winchester's part.
Neither the amended complaint nor the counterclaim sufficed to terminate discussions and negotiations between counsel. Letters were exchanged, and, on February 11, 2004, counsel met. On March 5, contemporaneously with Brendsel's answer and counterclaim, the parties filed a consent motion to postpone the scheduled hearing on Winchester's request for an interlocutory mechanics' lien. The motion noted that, with the ability to conduct some limited discovery, planned to be completed by June 15, 2004, certain issues regarding charges for work done by subcontractors might be resolved. Brendsel agreed not to object to an interlocutory lien being established in the amount of $815,877 during the discovery period, and the parties expressly agreed "that neither this Consent Motion nor their activities during the Discovery Period, nor the issuance of the interlocutory lien order proposed hereunder, shall prohibit or waive any party's right to proceed in arbitration, or to object thereto, to the same extent as if this Motion had not been filed and the actions proposed hereunder had not been taken."
Upon that consent motion, the court, on March 8, 2004, entered an interlocutory mechanics' lien in favor of Winchester in the amount of $815,877 and declared that neither the consent motion, discovery conducted during the discovery period, nor that order would prohibit or waive the right of any party to proceed in arbitration, or object thereto. The same day, Brendsel filed an amended answer and counterclaim. Winchester answered the counterclaim, asserting among other defenses, that the counterclaim was subject to arbitration.
During the discovery period allowed in the consent motion and order, Brendsel took the deposition of two subcontractors but conducted no other discovery. It does not appear that Winchester conducted any discovery. On June 16, 2004the day after the discovery period endedBrendsel filed a motion for partial summary judgment as to liability under her counterclaim for over-charging. Winchester responded with a petition to compel arbitration and stay all further judicial proceedings, contending that, through its motion for partial summary judgment, Brendsel was seeing a ruling on the merits of its counterclaim, which was subject to arbitration. On July 6, Brendsel filed an opposition to the petition *477 to compel arbitration, averring that Winchester had waived its right to arbitration by seeking a mechanics' lien and failing to provide written notice of a demand for arbitration within a reasonable time after the dispute had arisen.
Following a hearing two weeks later, the court granted the petition to compel arbitration, ruling that, under the totality of the circumstances, Winchester had not waived its right to arbitration. The order compelled arbitration of "all the disputes between [the parties] in connection with this Mechanics' Lien action including the Counter-Claim filed herein" and stayed all proceedings in the matter "pending the outcome of the arbitration proceeding." Brendsel noted an appeal, the Court of Special Appeals affirmed the judgment (Brendsel v. Winchester, 162 Md.App. 558, 875 A.2d 789 (2005)), and we granted certiorari to consider the issue noted. We shall affirm.
DISCUSSION
There is no dispute that ¶ 15.8 of the General Conditions created a valid agreement to submit the claims made by both Winchester and Brendsel to arbitration, and that such an agreement is enforceable under both the Federal Arbitration Act (U.S.Code, title 9) and the Maryland Uniform Arbitration Act (Maryland Code, title 3, subtitle 2 of the Cts. & Jud. Proc. Article) (CJP). Because there is no significant difference between the two statutes relevant to this case, we shall, for convenience, apply the State law. CJP, § 3-207 provides that, if a party to an enforceable arbitration agreement refuses to arbitrate, the other party may file a petition in a circuit court to order arbitration. If the opposing party denies the existence of an arbitration agreement, the court shall proceed expeditiously to determine if the agreement exists, and if the court finds that the agreement does exist, "it shall order arbitration." Section 3-209 requires further that a court stay any action or proceeding involving an issue subject to arbitration if a petition or order to arbitrate has been filed. If the issue subject to arbitration is severable, the court may order the stay with respect only to that issue.
The only defense to Winchester's petition to compel arbitration offered to this Court is that, by seeking an interlocutory mechanics' lien and answering Brendsel's counterclaim, Winchester waived its right to arbitrate the dispute arising from the contract documents. Brendsel asks us to adopt a per se rule that the mere seeking of an interlocutory lien constitutes a waiver of arbitration without regard to any other fact or circumstance and without regard to Winchester's actual intent. Along with most courts that have been so importuned, we shall decline that request.
We have long recognized that, because the right to arbitration pursuant to the Federal or Uniform Arbitration Act arises from contract, it may be waived like most other contractual rights. We have also made clear, however, specifically with respect to waiver of a contractual right to arbitrate disputes, that waiver "involves a matter of intent that ordinarily turns on the factual circumstances of each case" and that the intention to waive "must be clearly established and will not be inferred from equivocal acts or language." Gold Coast Mall v. Larmar Corp., 298 Md. 96, 109, 468 A.2d 91, 98 (1983); Chas. J. Frank, Inc. v. Assoc. Jewish Ch., 294 Md. 443, 449, 450 A.2d 1304, 1306-07 (1982). See also Questar v. Pillar, 388 Md. 675, 687, 882 A.2d 288, 294-95 (2005); Canaras v. Lift Truck Services, Inc., 272 Md. 337, *478 360-61, 322 A.2d 866, 878-79 (1974); Bar-Gale Indus. v. Robert Realty, 275 Md. 638, 643-44, 343 A.2d 529, 533 (1975).
We have not previously dealt directly with the precise issue now before us, although in Frederick Contr. v. Bel Pre Med., 274 Md. 307, 334 A.2d 526 (1975) and Walther v. Sovereign Bank, 386 Md. 412, 872 A.2d 735 (2005), we made pronouncements that clearly lead to our holding here. In Frederick Contr., we held that an owner did not waive its right to arbitrate a contractor's claim against it by failing to demand arbitration prior to the contractor, under an earlier version of our mechanics' lien law, obtaining a provisional mechanics' lien. We concluded that the demand was timely and that further judicial proceedings to foreclose the lien were to be stayed pending the arbitration.[2]
In Walther, second mortgage borrowers filed a class action lawsuit against their mortgagor claiming violations of Maryland's Secondary Mortgage Loan Law. The mortgage contained an arbitration clause, and the mortgagor's assignee filed a petition to compel arbitration and to dismiss the class action suit. The defendant averred as well that, in a disclosure agreement, the plaintiffs had waived their right to a class action suit and a jury trial. In response, the plaintiffs claimed, among other things, that, by raising the waiver issues, the defendant had sought a ruling on the merits and had thereby waived its right to arbitration. The Circuit Court rejected that defense and entered an order compelling arbitration, which we affirmed.
In doing so, we observed:
"[T]he circuit court's . . . order included no final judgment on any issue that *479 might be subject to arbitration. Thus, Sovereign Bank attained no determination on any of the issues in dispute. Sovereign Bank's actions did not constitute a repudiation of the Disclosure Agreement's arbitration provision but, in light of the fact that petitioners seemed intent to avoid arbitration, rather amount to a continued affirmative step in further pursuit of an adjudication by arbitration of the parties' dispute. Accordingly, the results of Sovereign Bank's petition was neither a waiver of the right to arbitration nor of any of the issues that might be subject to arbitration."
Id. at 449, 872 A.2d at 757. We anticipated in Walther one aspect of the issue now before uswhether "where (1) one party to an agreement containing a valid arbitration clause reserves the right to seek a judicial remedy that only a court can provide, such as foreclosure or a mechanics' lien, (2) the party opts for that remedy, (3) a contract defense is asserted by the other party to liability, and (4) that party demands arbitration of the dispute, the court, on motion and pursuant to §§ 3-207 and 3-209 of the Courts and Judicial Proceedings Article or the counterpart provisions in the Federal Arbitration Act, would be required to stay the judicial proceedings and direct that dispute to be resolved in arbitration." Id. at 449-50, n. 13, 872 A.2d at 757-58, n. 13. We found it unnecessary to resolve that issue in Walther.
To implement our general view that an intention to waive arbitration is not to be inferred from ambiguous conduct, but must be clear and unequivocal, we need to examine the nature and role of mechanics' liens and the manner in which they may be obtained. Until our decision in Barry Properties v. Fick Bros., 277 Md. 15, 353 A.2d 222 (1976), a mechanics' lien was created and attached to the property automatically, as soon as work was performed or materials were supplied, and it lasted, even without the filing of a claim, until the expiration of 180 days after the work was finished or the materials were furnished. Id. at 19, 353 A.2d at 225-26; see also RP (1974) § 9-105(e). To maintain the lien thereafter, the contractor had to file a claim with the clerk of the Circuit Court, who would then list the claim on a special mechanics' lien docket. RP § 9-105(a) and (b). The extended lien would expire one year from the date the claim was filed unless, during that period, either the claimant sued to enforce it or the owner or other interested person sued to compel the claimant to prove its validity. RP § 9-106. It was in that proceeding that the court would determine the validity of the claim, if it was contested.
That was the legal construct when Frederick Contr. v. Bel Pre Med., supra, was decided. In that case, the contractor filed its claim and promptly filed a complaint to enforce it, thereby triggering the adjudicatory proceeding. The owner's demand for arbitration, filed after the complaint to enforce the lien but before any proceeding on that complaint, was held not to be waived because it was not filed prior to the contractor's complaint to enforce its lien.
In Barry Properties, based on four thenrecent Supreme Court decisions striking down on due process grounds laws that allowed the imposition of a lien against property without an opportunity for a prior hearing, we held that the existing mechanics' lien law was unconstitutional. We concluded that, because the law allowed prejudgment seizures without notice, a prior hearing, or other sufficient safeguards, it was incompatible with the due process clauses of the Fourteenth Amendment and what is now Art. 24 of the Md. Declaration of Rights.
*480 The Legislature responded immediately by revising the law to provide a bifurcated approach that satisfied the Court's due process concern but did not require full litigation of a contractor's claim in order to obtain a provisional lien. No longer does a lien arise automatically from the doing of the work or provision of materials, without notice or opportunity for a hearing, but a contractor can obtain an interlocutory lien without having to litigate in full the merits of its claim. To obtain a lien, the contractor must file a petition in the Circuit Court within 180 days after the work was finished or the materials furnished. RP § 9-105. If, from the petition and any exhibits attached to it, the court concludes that there is a reasonable ground for the lien to attach, it enters an order directing the owner to file an answer showing cause why the lien should not attach, and setting a date for a hearing. That is what the court did in this case. Based on the owner's response (or failure to respond), RP § 9-106 and Md. Rule 12-304 give the court three options:
(1) if the evidence before the court shows that there is no genuine dispute of material fact and that a lien should attach as a matter of law, it shall enter a final order establishing the lien in the amount not in dispute;[3]
(2) if the evidence shows that there is no genuine dispute of material fact and that the petitioner has failed as a matter of law to establish its right to a lien, it shall enter a final order denying the lien;
(3) if the court determines that the lien should not attach (or not attach in the amount claimed) as a matter of law but that there is probable cause to believe that the petitioner is entitled to a lien, the court shall enter an interlocutory order that (i) establishes the lien, (ii) describes the boundaries of the land and buildings to which it attaches, (iii) states the amount of the claim for which probable cause is found, (iv) specifies the amount of bond that the owner may file to have the lien released, (v) may require the claimant to file a bond and, if so, sets the amount, and (vi) assigns a date for trial of all matters at issue in the action.
This construct can create the basis for a waiver. If, pursuant to a contractor's petition and an owner's response, neither side seeking to have the matter resolved by arbitration, the court proceeds to determine as a matter of law either that the contractor is entitled to a final lien or that it is not entitled to a lien, both sides would be bound by that determination and could not later complain that there was an arbitrable dispute. Similarly if, in lieu of ruling one way or the other as a matter of law, the court sets the matter for trial and the parties proceed with trial or with significant preparation for trial, they would be deemed to have waived any right to arbitration and would be bound by the ultimate judicial determination. When the parties and the court do not proceed to that point, however, and the contractor makes clear that it is merely seeking an interlocutory lien and desires to have any dispute as to the merits of the claim reserved for resolution through arbitration, it does not, through that limited action alone, waive its right to arbitration. In that situation, which is the one now before us, the court is not being asked to resolve the merits of the claim. An interlocutory lien is imposed only when there are issues of fact in dispute that cannot and are not resolved at that stage of the proceeding.
Viewed in that context, an interlocutory mechanics' lien is in the nature of a *481 provisional remedy, not much different than an interlocutory injunction or attachment sought to maintain the status quo so that the arbitration proceeding can have meaning and relevance, and the predominant view throughout the country is that the availability of such remedies by a court is permitted by the Federal and Uniform Arbitration Acts and is not inconsistent with the right to enforce an arbitration agreement. See Salvucci v. Sheehan, 349 Mass. 659, 212 N.E.2d 243 (1965); Teradyne Inc. v. Mostek Corp., 797 F.2d 43 (1st Cir.1986); Blumenthal v. Merrill Lynch, 910 F.2d 1049 (2nd Cir.1990); Merrill Lynch, Pierce, Fenner & Smith v. Bradley, 756 F.2d 1048 (4th Cir.1985); RGI, Inc. v. Tucker & Associates, Inc., 858 F.2d 227 (5th Cir.1988); Merrill Lynch, Pierce, Fenner & Smith v. Salvano, 999 F.2d 211 (7th Cir.1993); Merrill Lynch, Pierce, Fenner & Smith v. Dutton, 844 F.2d 726 (10th Cir.1988).
The focus of those cases was on preserving the status quopreventing one party from taking some action that could effectively frustrate the arbitration proceeding. That is the focus here as well.[4] Often, the only security that a contractor has for enforcing an arbitral award and collecting what the arbitrator declares is owed is the mechanics' lien. As the Court of Special Appeals pointed out in Caretti, Inc. v. Colonnade Ltd., 104 Md.App. 131, 137, 655 A.2d 64, 67 (1995), cert. denied, 339 Md. 641, 664 A.2d 885 (1995), "to defer consideration of even an interlocutory order establishing a lien could ... leave the claimant unprotected for a considerable period of time." Other creditors can easily jump in with judgments or other liens that would achieve priority over any lien that the claimant may ultimately obtain and leave the claimant out in the cold.[5] For a classic example of that, see Residential Indus. Loan Co. v. Weinberg, 279 Md. 483, 369 A.2d 563 (1977). The Caretti court found no impediment to the court's "proceeding under Real Prop. art., § 9-106(b)(3) to hold a probable cause hearing, upon a finding of probable causewhich is far less than adjudicating the merits of the disputefrom establishing an interlocutory lien, and then staying trial on the *482 merits in favor of arbitration." Id. at 138, 655 A.2d at 67.
That appears to be the general view, and, indeed, a contrary view would be inconsistent with the legislative direction in RP § 9-112 that the mechanics' lien law "is remedial and shall be construed to give effect to its purpose." In Newman v. Valleywood Associates, Inc., 874 A.2d 1286 (R.I.2005), the Rhode Island court, citing Caretti in its discussion, held flatly that "a party does not waive its right to arbitrate a contractual dispute, as a matter of law, by filing a notice of intention to claim a mechanic's lien" and that "a party may proceed to arbitration after first encumbering the subject real estate with a mechanic's lien." Id. at 1290. The court pointed out that in Rhode Island, as in Maryland, waiver of arbitration is to be determined by the facts of the case, and, to hold that the mere filing of a claim for mechanics' lien constitutes an automatic waiver would be inconsistent with that approach. See also La Hood v. Central Illinois Const. Inc., 335 Ill.App.3d 363, 269 Ill.Dec. 788, 781 N.E.2d 585 (2002); H.R.H. Prince, Ltc. v. Batson-Cook Co., 161 Ga.App. 219, 291 S.E.2d 249 (Ga.App. 1982); EFC Develop. Corp. v. F.F. Baugh Plumbing & H., Inc., 24 Ariz.App. 566, 540 P.2d 185 (1975). In one State where the court reached a different conclusion, the Legislature promptly overruled the decision by statute. See Young v. Crescent Development Co., 240 N.Y. 244, 148 N.E. 510 (1925) and Askovitz v. Gabay, 229 A.D. 258, 241 N.Y.S. 394 (1930).
The general rule is well-stated in Maurice T. Brunner, Filing of Mechanic's Lien or Proceeding for its Enforcement as Affecting Right to Arbitration, 73 A.L.R.3d 1066 (1976). The annotator points out that, while acts "inconsistent with an agreement to submit a controversy to arbitration may constitute a repudiation, a breach, or waiver of the right to arbitrate," waiver "is usually a question of fact dependent upon the intention of the party claimed to have waived his right." Id. at 1068. That is the established Maryland view. Thus, he continues, "[i]t has been held that the mere filing of a mechanic's lien does not in itself constitute a waiver or abandonment of rights under an arbitration clause in a construction contract unless the lienor manifests an intent to waive or abandon his rights, and the existence of such an intent depends upon the particular facts of a given case." Id.
The record in this case not only supports the Circuit Court's conclusion that there was no intent to waive arbitration on Winchester's part but comes close to making any contrary finding one that would be clearly erroneous. Winchester filed its initial petition out of concern that failure to do so within the statutory time requirement might be regarded as preclusive, notwithstanding the Tolling Agreement. This Court has not ruled on that issue, but there is language in some of our older cases, construing the earlier version of the mechanics' lien law, that could justify that concern. Winchester made no effort to have the merits of its claim resolved by the court, but instead continued to negotiate with Brendsel in an effort to resolve any as-yet-undeclared disputes amicably. As noted, Brendsel never responded to the initial petition, which remained dormant. When the court insisted on a supplement to the petition, contemporaneously with Brendsel finally rejecting Winchester's applications for payment and thereby creating for the first time a dispute ripe for adjudication, Winchester amended its petition to make clear that it wanted only an interlocutory lien and to ask specifically that the court stay any further proceedings on the claim in favor of arbitration. It iterated its demand for arbitration in *483 response to Brendsel's motion for summary judgment.
Nothing in this record indicates an intent on Winchester's part to waive arbitration. All of its actions show the contrary. The arbitration clause, § 15.8 of the General Conditions, requires that the arbitration be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, Rule 49(a) of which provides that "[n]o judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party's right to arbitrate."[6] The consent motion itself, signed after the amended petition was filed, makes clear that the delay and the limited discovery insisted upon by Brendsel were not intended to waive Winchester's right to have the dispute submitted to arbitration. Filing an answer to Brendsel's counterclaim in order to forestall the prospect of an order of default being entered on it hardly suffices to overcome Winchester's consistent demand that the dispute be arbitrated in conformance with the contract.
The simple fact is that there is nothing inconsistent between the mere seeking of the protection of an interlocutory mechanics' lien or taking routine and appropriate action to preclude an order of default and an intent on Winchester's part to require that any dispute over the competing claims be submitted to arbitration. It is not an "either/or" situation. The granting of the interlocutory lien, without opposition by Brendsel, did not resolve the dispute. Adjudication of the merits of Winchester's claim through arbitration was in no way compromised by the interlocutory lien. The parties agreed in their contract that all disputes arising from the contract documents were to be adjudicated by an arbitrator. That is what Winchester demanded, and that is what the court was obliged by both Federal and State law to implement and enforce.
JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.
BELL, C.J., dissents.
Dissenting Opinion by BELL, C.J.
I disagree with the majority. The appellants, Leland C. Brendsel and his wife, B. Diane Brendsel, entered into a contract with the appellee, Winchester Construction Company, Inc., pursuant to which the appellee, as "Contractor," undertook the renovation of an historic plantation house, which the appellants owned. In that contract, the parties agreed how, and in what forum, disputes between them with respect to the contract would be handled. Pertinent in that regard, Section 15.8 of the General Conditions of the contract provides:
"All claims or disputes between the Contractor and the Owner arising out of or relating to the Contract documents, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise and subject to an initial presentation of the claim or dispute to the Architect as required under paragraph 15.5."
*484 As that provision evidences, the parties agreed that the preferred, and indeed, exclusive, dispute resolution method was arbitration. See Crown Oil and Wax Co. of Delaware, Inc. v. Glen Const. Co. of Virginia, Inc., 320 Md. 546, 578 A.2d 1184 (1990) (holding that the intention of the parties controls on whether there is an agreement to arbitrate, but, where the parties use a broad, all encompassing clause, it is presumed that they intended all matters to be arbitrated). The contract makes no exceptions to this preference, not even for provisional or ancillary remedies, the purpose of which, ostensibly, are to preserve the status quo in order to avoid the undermining of the parties' preference, to insure, in short, that arbitration will be able to be used meaningfully.[1]
Subject to the execution of the contract, a dispute developed regarding the proper amount of fees and overhead costs to be paid to Winchester. Rather than pursuing arbitration, as the contract required, Winchester filed an action in the Circuit Court for Queen Anne's County to establish a mechanic's lien. It did so, we are told, in the words of the majority opinion, 392 Md. at 606-07, 898 A.2d at 475 (2006), because Winchester was "[c]oncerned that the statutory time for filing a petition for mechanics' lien was (1) getting close, and (2) might be regarded as jurisdictional or preclusive in nature, rather than as a mere statute of limitations that could be waived or tolled by agreement of the parties."[2]Id. Brendsel eventually, through a letter from counsel, rejected in full Winchester's claim for fees and overhead costs. As the majority notes, "[t]he letter acknowledged a net balance owing under the contract of $604,565 but claimed credits against that balance of $871,872 for overcharges and construction defects, leaving a new balance to Brendsel." 392 Md. at 607, 898 A.2d at 475.
On January 9, 2004, Winchester, in an amended petition, filed to enforce the mechanic's lien, and asked for "a stay of proceedings after an interlocutory lien is established pending the outcome of an arbitration proceeding between the parties hereto." 392 Md. at 608, 898 A.2d at 476. On March 5, 2004, a consent motion was filed by both parties, agreeing that with limited discovery, some issues could be *485 resolved. 392 Md. at 608-09, 898 A.2d at 476. On March 8, 2004, an interlocutory lien was entered in favor of Winchester, declaring that neither the consent motion nor anything that was conducted during the discovery period would waive the right to arbitration. 392 Md. at 608-09, 898 A.2d at 476. Brendsel filed an answer and counterclaim. 392 Md. at 608-09, 898 A.2d at 476. Winchester claimed that the counterclaim was also subject to arbitration. 392 Md. at 608-09, 898 A.2d at 476-77. After the discovery period ended, Brendsel filed a motion for partial summary judgment. 392 Md. at 609, 898 A.2d at 476-77. Again, Winchester filed a petition to compel arbitration and to stay all further judicial proceedings, contending that "through its motion for partial summary judgment, Brendsel was seeking a ruling on the merits of its counterclaim, which was subject to arbitration." 392 Md. at 609, 898 A.2d at 476. On July 6, 2004, Brendsel filed an opposition to the petition to compel arbitration, using arguments similar to those argued sub judice. 392 Md. at 609, 898 A.2d at 476-77. The appellants sub judice, in challenging the stay, contend that Winchester, in seeking an interlocutory mechanic's lien, waived its right to arbitrate any disputes arising from the contract. The Majority, like the trial court, rejects the appellants' argument, concluding instead that, by filing a court action to establish an interlocutory mechanic's lien and obtaining one, Winchester did not waive its right to compel arbitration of an arbitrable dispute. 392 Md. at 603-04, 898 A.2d at 473.
I do not understand how the seeking of a mechanic's lien, under these factual circumstances, is not a waiver of the right to arbitration. As I see it, the issue really is one of contract interpretation, to which, as we have so often pointed out, the usual canons of statutory interpretation apply. See Tomran v. Passano, 391 Md. 1, 891 A.2d 336 (2006) ("The cardinal rule of contract interpretation is to give effect to the parties' intentions"). We have to determine the intent of the parties to the contract. Myers v. Kayhoe, 391 Md. 188, 198, 892 A.2d 520, 526 (2006). In seeking that intent, we start with the words of the contract, giving them their usual and ordinary meaning. Myers, 391 Md. at 198, 892 A.2d at 526. If the words used are clear and unambiguous, we give effect to them, as written, Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 251, 768 A.2d 620, 630 (2001), and we will look no further for the parties' intent, nor will we add or delete words to achieve a meaning not otherwise evident from a fair reading of the language used. 363 Md. at 251, 768 A.2d at 630. In that situation, it is irrelevant that the parties, or, as in this case, one of the parties, interpreted the contract differently or thought it meant something else. Dennis v. Fire & Police Employees' Ret. Sys., 390 Md. 639, 656-57, 890 A.2d 737, 747 (2006) ("[T]he clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean").
This is the objective law of contract interpretation and construction, Owens-Illinois, Inc. v. Cook, 386 Md. 468, 496-497, 872 A.2d 969, 985 (2005); General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306, 1310 (1985); Aetna Casualty & Surety Co. v. Insurance Commissioner, 293 Md. 409, 420, 445 A.2d 14, 19 (1982), which we have explained, as follows:
"A court construing an agreement under this test must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, *486 and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unambiguous language of an agreement will not give away [sic] to what the parties thought that the agreement meant or intended it to mean. Consequently, the clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean.... As a result, when the contractual language is clear and unambiguous, and in the absence of fraud, duress, or mistake, parol evidence is not admissible to show the intention of the parties or to vary, alter, or contradict the terms of that contract."
Owens-Illinois, Inc. v. Cook, 386 Md. at 496-497, 872 A.2d at 985, quoting General Motors Acceptance Corp. v. Daniels, 303 Md. at 261, 492 A.2d at 1310. Only when the language of the contract is ambiguous will we look to extraneous sources for the contract's meaning. In that event, the intention of the parties must be established through relevant parol evidence or by strictly construing the clause against its author. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 267, 686 A.2d 298, 304 (1996).
It also is relevant, instructive, even, that the mechanic's lien statute is itself clear and unambiguous with respect, not only to the time requirements that must be met as a condition to obtaining the lien, but, as well, with respect to the property to which it has applicability. Maryland Code (1974, 2003 Replacement Volume) § 9-102(a) of the Real Property Article is relevant to this case. It provides:
"(a) Every building erected and every building repaired, rebuilt, or improved to the extent of 15 percent of its value is subject to establishment of a lien in accordance with this subtitle for the payment of all debts, without regard to the amount, contracted for work done for or about the building and for materials furnished for or about the building, including the drilling and installation of wells to supply water, the construction or installation of any swimming pool or fencing, the sodding, seeding or planting in or about the premises of any shrubs, trees, plants, flowers or nursery products, the grading, filling, landscaping, and paving of the premises, and the leasing of equipment, with or without an operator, for use for or about the building or premises."
So, too, is the fact, undenied by Winchester, that it is an experienced contractor. Therefore, we are justified in assuming that it was either well aware, or chargeable with knowledge, of the mechanic's lien statute, its applicability and, more importantly, the time constraints to which it was subject.
As we have seen, this is a contract for the renovation of an historic plantation. We must presume, there being no contention to the contrary, that it was an arm's length one, entered into voluntarily and that the terms were negotiated, or, at least, not dictated by one party to the other one. Moreover, it involved extensive work to be done by Winchester. Consequently, and this is not disputed, the property that was the subject of the contract was subject to the establishment of a mechanic's lien. Indeed, Winchester's seeking to establish one on the property confirms that this is so. We have also seen that the contract clearly and unambiguously provided for the use of arbitration as the preferred and exclusive dispute resolution *487 method; it requires that "all" covered claims or disputes be "decided by arbitration." Yet the contract into which Winchester voluntarily entered, the contract that provided that arbitration is the exclusive remedy, makes absolutely no reference to the mechanic's lien statute or the appellee's entitlement to utilize it in supplementation of that exclusive remedy. Thus, it is clear beyond cavil that no exception to the exclusive remedy of arbitration was made for mechanic's lien proceedings.
That the parties agreed that arbitration would be their exclusive remedythe only method available for the resolution of claims and disputes arising under or relating to the contractand did not, as certainly they could have done, see Walther v. Sovereign Bank, 386 Md. 412, 418-419, 872 A.2d 735, 739 (2005), preserve their right to resort to supplemental or ancillary relief, statutory or otherwise, leads inexorably to the conclusion that the parties intended that only arbitration would be available and must be used; all other relief, remedies, or dispute resolution methods were excluded. In my view, it is not even arguable that the parties contemplated the hybrid proceedings the majority endorses. It is clear, in any event, that the contract does not support such an approach.
The claim that Winchester has against the appellants arises out of, or relates to, the contract documents or the breach of the contract. It also is the basis for the mechanic's lien that Winchester seeks. Thus, the claim that Winchester would pursue in arbitration is the same claim that underlies its mechanic's lien proceedings and, of course, the property on which the lien would be placed is that out of which the claim itself arises or relates. Because the contract did not except the mechanic's lien proceedings from its coverage, from the claims and disputes to which arbitration must be utilized for resolution, or expressly permit such proceedings as a place-holder, a provision that could have been included if agreed to by the appellants, it follows that Winchester was not authorized to resort to the court. Rather, it was required to initiate and pursue arbitration. By resorting to court in the first instance, even if it was intended to be only for a short time, and in aid of arbitration, when its contract did not authorize it, eschewing, in the process, as an initial matter, the arbitration remedy, Winchester waived its right to arbitration. See NSC Contractors, Inc. v. Borders, 317 Md. 394, 564 A.2d 408 (1989) (holding that by filing a claim for monetary damages seeking final judgment order against architect, contractor of project waived arbitration, provided by contract, of dispute as to proper amount of money withheld); Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 450 A.2d 1304 (1982) (holding that a party waives right to arbitrate an issue by participation in a judicial proceeding, the waiver is limited to those issues raised and/or decided in the judicial proceeding and, absent additional evidence of intent, the waiver does not extend to any unrelated issues arising under the contract); RTKL Assoc., Inc. v. Four Villages Ltd. Partnership, 95 Md. App. 135, 144, 620 A.2d 351, 355 (1993) (holding that a party's pursuit of litigation before seeking to compel arbitration, as previously agreed upon, resulted in a waiver of the right to arbitration).
The majority, like the appellee, relies on Frederick Contractors, Inc. v. Bel Pre Med. Ctr., Inc., 274 Md. 307, 334 A.2d 526 (1975), and Walther v. Sovereign Bank, 386 Md. 412, 872 A.2d 735 (2005). The majority acknowledges, and I agree, that these cases do not address the precise issue this case presents. I go further; these cases are completely inapposite, although, *488 in one particular, Walther actually supports my position.
In Bel Pre Med. Ctr., Inc., as in this case, the parties entered into a contract, pursuant to which Frederick Contractors, Inc. undertook to build an addition to Bel Pre's nursing home and in which they agreed, with exceptions not here relevant, that "[a]ll claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof ... shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise." 274 Md. at 310-311, 334 A.2d at 528. When Frederick did not receive all of the compensation it felt it had earned, it recorded a mechanics' lien in the Circuit Court for Montgomery County, and more than thirty (30) days later, filed in that court a bill of complaint to foreclose the lien. 274 Md. at 309, 334 A.2d at 527-528. Thereafter, almost another thirty (30) days later, Bel Pre moved to strike the mechanic's lien, arguing both that its contract with Frederick required the arbitration of any disputes arising out of the contract and that it had demanded that dispute resolution method. 274 Md. at 309, 334 A.2d at 528. Despite the denial of its motion to strike, Bel Pre persisted in its answer to the Bill to insist that the contract required arbitration, prompting Frederick to seek injunctive relief on the ground that Bel Pre had not timely demanded that the dispute be arbitrated. 274 Md. at 309, 334 A.2d at 528. The trial court granted the relief, permanently enjoining Bel Pre and Frederick from proceeding to arbitration. 274 Md. at 309, 334 A.2d at 528. The Court of Special Appeals vacated the permanent injunction and remanded for the entry of an order compelling arbitration and staying further proceedings in the Circuit Court. Bel Pre Med. Ctr., Inc. v. Frederick Contractors, Inc., 21 Md.App. 307, 330, 320 A.2d 558, 572 (1974).
Although the intermediate appellate court acknowledged what I contend sub judice, that "[W]hen the parties have agreed to submit any and all controversies arising out of the contract to an arbitrator, all issues other than those expressly and specifically excluded must be submitted to arbitration," 21 Md.App. at 327, 320 A.2d at 569-70, because the refusal to arbitrate was based not on a contention that the substantive issues were not arbitrable, but on the contention that arbitration had not timely been made, id. at 322, 320 A.2d at 567, it perceived that "the question of substantive arbitrability [was] not before [it]," even though the contractor filed the mechanics' lien proceedings without first resorting to arbitration. Id. at 322-23, 320 A.2d at 567. Missing from that analysis is any focus on the obligation of the contractor, clearly a party to the arbitration contract, to itself initiate arbitration proceedings, especially given Bel Pre's motion to strike. Also worth noticing is the inconsistency of the approach with the parties' contractual undertakings, holding one party to the terms of its contract, while, presumably precisely because of that fact,[3]*489 excusing the other. At the very least, therefore, the issue the case sub judice presents was not before the Court of Special Appeals in Bel Pre Med. Ctr. for decision, and it certainly did not decide it.
The Court of Appeals focused on the effect of the filing of a demand to arbitrate on earlier filed proceedings to foreclose a mechanics' lien, rather than on the right of Frederick to have filed the mechanics' lien proceedings in the first instance, which was the thrust of Bel Pre's motion to strike. Concluding that "the timeliness of a demand for arbitration is a threshold question", for the court, 274 Md. at 315, 334 A.2d at 531, it perceived "the critical question [to be] what effect the demand for arbitration had upon the pending action." Id. Thus, the Court saw its task as harmonizing the Maryland Arbitration Act with the concept of the mechanics' lien law. 274 Md. at 315, 334 A.2d at 531. It was in this context that the Court stated that "Frederick took timely action to assert its lien," id., and that "an attachment would lie to enforce any award which might be made by arbitrators to whom the controversy was to be submitted for determination after the action had been instituted." Id. at 315, 334 A.2d at 531, citing Shriver v. State ex rel. Devilbiss, 9 G. & J. 1, 9 (Md.1837). Shriver, however, was decided on the basis of two statutes addressing the submission of pending cases to arbitration, and was decided long before the enactment of the Maryland Arbitration Act, codified at Maryland Code (1973, 2002 Replacement Vol., 2005 Supp.) title 3, subtitle 2 of the Courts & Judicial Proceedings Article. Under the Maryland Arbitration Act, executory agreements to arbitrate, previously unfavored when Shriver was decided, see Eisel v. Howell, 220 Md. 584, 587-88, 155 A.2d 509, 511 (1959); Tomlinson v. Dille, 147 Md. 161, 167, 127 A. 746, 748 (1925),[4] became "favored." See Gold Coast Mall, Inc. v. Larmar Corp. 298 Md. 96, 103, 468 A.2d 91, 95 (1983) (noting a legislative policy favoring enforcement of executory agreements to arbitrate); see also Cheek v. United Healthcare of the Mid-Atlantic, Inc., 378 Md. 139, 835 A.2d 656 (2003) (explaining arbitration's favored status); Holmes v. Coverall North America, Inc., 336 Md. 534, 649 A.2d 365 (1994) (observing the Maryland legislative intent to favor arbitration); Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 450 A.2d 1304 (1982) (expressing the legislative policy favoring arbitration). In context, therefore, the statement, on which the majority principally relies, "[w]hile the parties may have bound themselves by the general conditions of the contract to accept the resolution of disputes by arbitration, they in no way limited themselves in the manner by which payment of an award may be enforced" is not surprising.
It is interesting, however, that the authority cited is Maryland Code (1973, 2002 Repl. Volume) § 3-202 of the Courts and Judicial Proceedings Article, which provides:
"An agreement providing for arbitration under the law of the State confers jurisdiction on a court to enforce the agreement and enter judgment on an arbitration award."
Certainly this provision does not suggest, not to mention require, that a party to an *490 arbitration agreement is free to come to court, in contradiction of the express terms of the contract, if that party believes that the failure to do so would, or potentially could, affect the recovery to which the party is due. That eventuality is a matter that could, and should, have been addressed when the parties contracted for the resolution of potential disputes.
In Walther, the arbitration agreement at issue provided:
"BINDING ARBITRATION. The parties agree that any claim, dispute or controversy arising from or relating to this agreement or the relationships which result from this agreement, including the validity of this arbitration clause or the entire agreement, shall be resolved by binding arbitration by and under the Code of Procedure of the National Arbitration Forum in effect at the time the claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16. Judgment upon the award may be entered in any court having jurisdiction. Nothing in this agreement shall be construed to limit the right of any party to 1) foreclose against real or personal property or other security by an exercised power of sale under a security instrument or applicable law, 2) exercise self-help remedies, or 3) obtain provisional or ancillary remedies with regard to such securities, including without limitation, injunctive relief, sequestration, attachment, garnishment, or the appointment of a receiver from a Court having competent jurisdiction before, during or after the pendency of any arbitration. The pursuit of any such remedy shall not constitute a waiver of the right of any party to have all other claims or disputes resolved by arbitration. The parties agree that any dispute subject to arbitration shall not be adjudicated as a class action or consolidated class proceeding. By signing this agreement, the parties acknowledge that they had a right or opportunity to litigate disputes through a court, but that they preferred to resolve any disputes through arbitration. The parties acknowledge that they are waiving their right to jury trial by consenting to binding arbitration."
386 Md. at 418-419, 872 A.2d at 739 (emphasis added). Thus, the parties in that case were explicit in their agreement with regard to what was not covered by the arbitration agreement, exempting those actions or proceedings as to which the court, or another venue, would be appropriate. Consequently, Walther, rather than supporting the majority, provides the answer for how a party with a court remedy that can not be duplicated in arbitration can avoid the dilemma that choosing arbitration and excluding the judicial forum creates. To be sure, the Walther solution may be subject to other challenges, see 386 Md. 412, 450, 872 A.2d 735, 758 (Bell, C.J., dissenting) (critiquing Walther on lack of mutuality grounds), but the availability of the court remedy would not be one of them.
Exempting the initiation, if not the completion, of the mechanics' lien remedy from an arbitration agreement, which does not provide any exception for it, raises fairness concerns. It gives one of the parties to the agreement an advantage for which, as the agreement reflects, the parties did not bargain. Because a plain reading of an arbitration agreement like the one at issue in this case leads necessarily to the conclusion that neither party is entitled to pursue any remedy other than arbitration, reading into the contract the exception for court proceedings in aid of later execution really is a rewriting of the contract, something *491 we are supposed not to do. Worse, however, is that the rewrite is in favor one party to the detriment of the other, simply because there is a statutory remedy which the Legislature enacted for the benefit of that party.
To be sure, mechanics' liens are available for the protection of materialmen, and it also is appropriate that such proceedings be favored. Mechanics' liens are not mandatory, however. A materialman need not use the proceedings; he or she is not required to get a lien or, having filed it, foreclose on it. The materialman could waive entitlement to its advantages. This could, and does, occur by not filing the appropriate papers in a timely manner, or by contract, including arbitration contracts, either by expressly so providing or by using terms inconsistent with the mechanics' lien remedy. That is true of, and is not inconsistent with, the treatment of other favored and even fundamental protections. See Walther, 386 Md. 412, 872 A.2d 735 (holding that although the right to a jury trial is fundamental under the Maryland Declaration of Rights, parties can contractually waive their right to a jury trial, which ordinarily requires that the waiver be "knowing and intelligent"), Twining v. National Mortg. Corp., 268 Md. 549, 302 A.2d 604 (1973) (holding that either party to a contract may waive any of the provisions made for his benefit), Lanahan v. Heaver, 77 Md. 605, 26 A. 866 (1893) (holding that a promise to relinquish the constitutional right to a jury trial is a sufficient consideration for an agreement to submit a civil case to the court). See also ST Systems Corp. v. Maryland Nat. Bank, 112 Md.App. 20, 684 A.2d 32 (1996) (holding that even though the right to a jury trial is fundamental, parties can contractually waive their right to a jury trial), Meyer v. State Farm Fire and Cas. Co., 85 Md.App. 83, 91, 582 A.2d 275, 278 (1990) ("An agreement to arbitrate either future or existing disputes involves more than just the waiver of a right to jury trial, although that is certainly implicit in such an agreement").
NOTES
[1] Leland did not sign the contract, although Winchester later claimed that he ratified it. That is not an issue in this appeal.
[2] The general issue of whether, and to what degree, participation as a party in a judicial proceeding might constitute a waiver of arbitration arose, obliquely, in Chas. J. Frank, supra, but did not need to be addressed. The case involved a contract between an owner and a contractor and a contract between the contractor and a subcontractor, both of which contained an arbitration clause. The subcontractor sued the contractor to recover for extra work on one discrete aspect of the work, and the contractor filed a third party claim against the owner, essentially for indemnity. The owner pled to the third party claim. No one sought arbitration, and eventually the case was settled. Later, the contractor demanded the balance due under the general contract, and, when the owner refused to pay, claiming faulty construction work that had nothing to do with the work at issue in the earlier action by the subcontractor, the contractor filed a demand for arbitration. The owner then filed an action in court to stay the arbitration, claiming that, by participating in the suit by the subcontractor, the contractor had waived its right to arbitration.
In a footnote, we observed that some courts had held that the mere filing of a complaint or answer in court constitutes a waiver of arbitration, while others had held that some greater degree of participation in the judicial proceeding is required for waiver. We found it unnecessary to address that issue, however, holding only that, while participation to the end in litigation with the subcontractor would constitute a waiver of arbitration of the issues raised in that case, such participation was not inconsistent with an intention to enforce the right to arbitrate other issues arising from the contract and did not constitute a waiver as to them. The principle that participation in litigation to the point of trial on the merits will constitute a waiver of arbitration was confirmed in NSC v. Borders, 317 Md. 394, 564 A.2d 408 (1989). See also RTKL v. Four Villages, 95 Md.App. 135, 620 A.2d 351 (1993), cert. denied, 331 Md. 87, 626 A.2d 371 (1993) (defendants waived arbitration by filing cross claims, participating in discovery, and waiting five years to demand arbitration); Commonwealth Equity v. Messick, 152 Md.App. 381, 398-99, 831 A.2d 1144, 1154 (2003), cert. denied, 378 Md. 614, 837 A.2d 926 (2003) (defendants waived arbitration by filing answers, participating in discovery, and waiting until eve of trial to petition for arbitration); Gladwynne Const. v. Baltimore, 147 Md.App. 149, 807 A.2d 1141 (2002); compare Redemptorists v. Coulthard, 145 Md.App. 116, 801 A.2d 1104 (2002) (mere filing of motion to dismiss for lack of jurisdiction not a waiver of arbitration).
[3] If it appears that there is no genuine dispute as to a portion of the claim, the court enters the lien for that portion and the action proceeds on the disputed amount.
[4] The balance of considerations is even more delicate when a temporary restraining order or interlocutory injunction is sought, because the court, in order to grant such relief, must ordinarily find a likelihood of success on the merits, which does require some tentative ruling on the ultimate issues. See LeJeune v. Coin Acceptors, Inc., 381 Md. 288, 300-01, 849 A.2d 451, 458-59 (2004); Fogle v. H & G Restaurant, Inc., 337 Md. 441, 455-56, 654 A.2d 449, 456 (1995). That has not served to preclude such interim and provisional relief, however. In imposing an interlocutory mechanics' lien, the court does not have to go quite that far, but only to determine that the issue cannot be resolved, one way or the other, as a matter of law and that there is probable cause to believe that the petitioner is entitled to a lien. Probable cause is a lesser standard than likelihood of success.
[5] The dilemma presented by Brendsel's approach goes beyond the mere happenstance of other creditors fortuitously obtaining priority. If a contractor is unable even to file a petition for mechanics' lien without losing its agreed-upon right to arbitrate the dispute and is left solely to filing a demand with an arbitration organization or other chosen arbitrator, that non-judicial demand may not serve as lis pendens or otherwise give constructive notice of the dispute, and thus would permit the owner to alienate the property or deliberately place all sorts of encumbrances on it in order to render the contractor's claim worthless. That would hardly be consistent with the long-held view of this and nearly every other court that arbitration is a "favored" form of dispute resolution. Questar v. Pillar, supra, 388 Md. at 684, 882 A.2d at 293, and cases cited there. Contractors would likely be reluctant, indeed, to opt for arbitrationan especially favored remedy in the construction industryif they knew that, by doing so, they would be relinquishing their right to seek a mechanics' lien.
[6] Brendsel contends that Rule 49 does not apply to judicial proceedings instituted prior to the commencement of arbitration. The Rule is not at all clear in that regard, and, whether or not an arbitrator might construe it as Brendsel suggests, it would not be unreasonable for Winchester to construe it otherwise and therefore assume that the arbitration clause itself permits a protective petition seeking an interlocutory mechanic's lien. That would certainly be relevant on the issue of its actual intent.
[1] In this respect, therefore, this case differs drastically from Walther v. Sovereign Bank, 386 Md. 412, 872 A.2d 735 (2005), on which, as we shall see, infra, the majority relies. 392 Md. 601, 610-14, 898 A.2d 472, 477-79 (2006). In that case, recognizing that certain remedies, i.e. injunctions, liens, receivorships, etc., are available only in a court proceeding and that they may be useful, and therefore resort to them is desirable, in certain circumstances, the Bank quite deliberately, and expressly, hedged its bet with respect to the dispute resolution choice, opting to except, in addition to foreclosures and self-help remedies, "provisional or ancillary remedies with regard to such securities, including without limitation, injunctive relief, sequestration, attachment, garnishment, or the appointment of a receiver from a Court having competent jurisdiction before, during or after the pendency of any arbitration." The agreement was clear:
"The pursuit of any such remedy shall not constitute a waiver of the right of any party to have all other claims or disputes resolved by arbitration."
Walther v. Sovereign Bank, 386 Md. 412, 419, 872 A.2d 735, 739 (2005).
[2] There is a temporal element to the Maryland mechanic's lien statute; ordinarily, the right to a mechanic's lien is lost, if not pursued. Maryland Code (1974, 2003 Replacement Volume) § 9-105 of the Real Property Article provides, as relevant:
"(a) In order to establish a lien under this subtitle, a person entitled to a lien shall file proceedings in the circuit court for the county where the land or any part of the land is located within 180 days after the work has been finished or the materials furnished...."
[3] I assume this to be the case because, having acknowledged that "the parties" agreed to arbitration and noting the contractor's failure to initiate such proceedings, the focus shifted immediately to the owner's demand for arbitration "of the issues concerning the amount of money ... due and owing," the timeliness as to which there was some dispute. Bel Pre Med. Ctr., Inc. v. Frederick Contractors, Inc., 21 Md.App. 307, 322, 320 A.2d 558, 567 (1974). Indeed, the court characterized the issue as whether a broad arbitration agreement, as in that case, precluded a court from determining the amount of money due for labor and materials supplied by a contractor to an owner. 21 Md.App. at 314, 320 A.2d at 562.
[4] This is contrasted with the attitude toward suits to enforce arbitration awards, which was to view them as "favored" actions. See Parr Construction Co. v. Pomer, 217 Md. 539, 543, 144 A.2d 69, 72 (1958); Dominion Marble Co. v. Morrow, 130 Md. 255, 260, 100 A. 292, 293 (1917); Lewis v. Burgess, 5 Gill. 129, 131 (1847); Caton v. MacTavish, 10 Gill. & J. 192, 216-217 (1838).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRENDA PARKER GRADY,
Plaintiff-Appellant,
v.
NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION; LYNDO TIPPETT, in
his official capacity as Secretary of
Transportation; CAROL HOWARD, in No. 02-2350
her official capacity as
Commissioner of the Division of
Motor Vehicles; BECKY KEITH, in
her official capacity as Director of
Human Resources,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-02-360-5-H)
Submitted: June 25, 2003
Decided: August 19, 2003
Before NIEMEYER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
2 GRADY v. NORTH CAROLINA DEP’T OF TRANSPORTATION
COUNSEL
Jonathan F. Koffa, Zebulon, North Carolina, for Appellant. Roy Coo-
per, North Carolina Attorney General, Hal F. Askins, Special Deputy
Attorney General, Kimberly D. Potter, Assistant Attorney General,
Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Brenda Parker Grady appeals the district court’s order dismissing
her complaint pursuant to Fed. R. Civ. P. 12(b)(6) against her
employer, the North Carolina Department of Transportation
("Department"), alleging retaliation and civil conspiracy in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A.
§§ 2000e to 2000e-17 (West 1994 & Supp. 2002).
Grady conceded her civil conspiracy claim in the district court and
does not raise it on appeal. Therefore, we affirm the district court’s
dismissal of her civil conspiracy claim.
Grady asserts the dismissal of her retaliation claim was improper
and that the district court converted the Department’s motion to dis-
miss pursuant to Fed. R. Civ. P. 12(b)(6) to a motion for summary
judgment by considering documents outside the pleadings. Generally,
if the district court is presented with materials outside the pleadings
and does not exclude them, "the motion shall be treated as one for
summary judgment . . . and all parties shall be given reasonable
opportunity to present all material made pertinent to such motion by
Rule 56." Fed. R. Civ. P. 12(b); see Gay v. Wall, 761 F.2d 175, 177-
78 (4th Cir. 1985).
GRADY v. NORTH CAROLINA DEP’T OF TRANSPORTATION 3
In ruling upon Grady’s retaliation claim, the district court consid-
ered letters from the Department offering Grady positions within the
Division of Motor Vehicles that the Department attached to its motion
to dismiss. The district court specifically states that "plaintiff had the
option of returning to the Nash County office and refused," a conclu-
sion apparently based upon the Department’s Exhibit 3, which offered
Grady the opportunity to "remain in her current position" with an
adjusted pay and grade level. Based on our review of the record, we
conclude the district court converted the motion to dismiss to a
motion for summary judgment. Because the motion should have been
treated as one for summary judgment, the court should have given the
parties a reasonable opportunity to present all material made pertinent
by Rule 56. See Gay, 761 F.2d at 177.
Accordingly, we vacate the portion of the district court’s order dis-
missing Grady’s retaliation claims under Rule 12(b)(6) and remand
for further proceedings consistent with this opinion. 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 IN PART; VACATED IN PART AND REMANDED
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2 So.3d 263 (2009)
TORBERT
v.
STATE.
No. 1D08-1810.
District Court of Appeal of Florida, First District.
January 26, 2009.
Decision without published opinion. Affirmed.
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1 F.2d 784 (1924)
JADWIN
v.
HOYT.
No. 3366.
Circuit Court of Appeals, Seventh Circuit.
August 15, 1924.
Rehearing Denied October 15, 1924.
William H. Haight, of Chicago, Ill., for plaintiff in error.
L. A. Stebbins, of Chicago, Ill., for defendant in error.
Before ALSCHULER and EVANS, Circuit Judges, and LUSE, District Judge.
LUSE, District Judge.
Plaintiff in error seeks review of a judgment of the lower court, entered after demurrer by defendant in error to the former's replication was sustained, and such demurrer to the amended plea of the defendant in error overruled, upon the omission of plaintiff in error to ask to plead further. The parties will be here designated as they were below and in the case in the municipal court for Cook county, hereinafter mentioned.
The action is one of trespass on the case; plaintiff, Jadwin, seeking damages claimed to result to him from the purchase of stock in the Smith-Form A-Tractor Company. Plaintiff alleges that he was induced to make the purchase by false and fraudulent representations made to him by the defendant, upon which he relied in making the purchase. The question here is whether or not the plaintiff irrevocably elected to pursue an inconsistent remedy, when, prior to the *785 commencement of the action in the court below, he commenced and prosecuted to judgment, in favor of the defendant, an action in assumpsit in the municipal court for Cook county.
The record discloses that the action in the municipal court for Cook county was brought on the theory that plaintiff had purchased the stock from defendant, paid him $20,000 therefor, which the defendant had received; that such purchase was induced by the false and fraudulent representations of the defendant, relied upon by plaintiff, being the same representations which are the foundation for the present action; that the plaintiff had tendered back the stock, demanded his money, and sought in that action to recover the $20,000 paid therefor, with interest. Such action, it appears from defendant's amended plea herein, was based on an alleged disaffirmance and rescission of the contract. It appears, further, from such amended plea, that in the municipal court defendant, by his affidavit of merits, not only denied the fraud, but also denied that plaintiff purchased the stock from defendant, that plaintiff paid defendant, and that defendant had or received the $20,000 or any other sum from plaintiff. It also appears that on the trial the plaintiff testified on his own behalf, and that the defendant and numerous other witnesses on his behalf testified and were examined and cross-examined in the presence of the plaintiff; that on the trial the jury returned a general verdict and answers to certain special questions; that the general verdict was in favor of the plaintiff and against the defendant, but thereafter the municipal court rendered judgment in favor of the defendant upon the special findings; that such final judgment is now in full force and effect, unreversed, unmodified, and unappealed from. As a conclusion to the amended plea the defendant avers that the plaintiff, with full knowledge of all the facts, conclusively and irrevocably elected to rescind the contract of purchase, and not to sue or attempt to recover for any alleged damages by reason of any alleged false or fraudulent representations made in connection with the sale of the stock.
To this amended plea the plaintiff interposed his replication, setting out in full the special questions, with the jury's answers thereto, which were returned by the jury in connection with their general verdict, by which special questions the jury found, among other things: (1) That the defendant was not the actual owner of the Smith-Form A-Tractor stock purchased by the plaintiff; (2) that the money paid by the plaintiff for such stock was never received personally by the defendant; (3) that the Smith-Form A-Tractor Company was the owner of the stock purchased by the plaintiff; (4) that the Smith-Form A-Tractor Company received the money paid by the plaintiff for the stock but that the defendant did not; (5) that the defendant had never appropriated to his own use the money paid for such stock; (6) that the $20,000 paid by plaintiff for the stock was paid by his check, payable to the order of Michaelis & Co., and by them indorsed, delivered, and transmitted to the Smith-Form A-Tractor Company, and by it retained in payment of the stock purchased by plaintiff; also that the general verdict returned by the plaintiff and by the jury was in favor of the plaintiff and against the defendant in the sum of $22,794.94, and that a motion of the defendant for judgment on the special findings of the jury was made, allowed, and judgment entered for the defendant; and that it was not until the motion last mentioned was decided and the case was finally determined in the municipal court of Chicago that plaintiff was fully informed, and it was finally established that the money paid by him to the defendant for such corporate stock had not been personally received by the defendant. To this replication defendant interposed a demurrer, and on motion of plaintiff the demurrer was carried back to the amended plea. The court below overruled the demurrer to the amended plea, and sustained the defendant's demurrer to the plaintiff's replication, and judgment was entered in favor of the defendant.
The two actions, the first in the municipal court, and the second in the court below, were inconsistent; the former being founded on a disaffirmance, the latter on an affirmance of a voidable transaction. United States v. Oregon Lumber Co., 260 U. S. 290, 294, 43 S. Ct. 100, 67 L. Ed. 261. It is undoubtedly the general rule that prosecution of one remedial right to judgment or decree, whether the judgment or decree is for or against plaintiff, is a decisive act, which constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights. 20 C. J. 28. Under this doctrine, defendant's first amended plea would seem to be proof against demurrer, for it discloses that plaintiff had pursued a remedy inconsistent with the one presently invoked, and been defeated.
However, the replication discloses *786 that plaintiff's defeat in the municipal court was due to the special findings of the jury, the substance of which has been stated, and they establish that the stock which plaintiff purchased was not defendant's stock, but stock in and belonging to the Smith-Form A-Tractor Company, that it and not defendant received plaintiff's money therefor, and that defendant had never received same nor any part of it. These findings mean that plaintiff had no right at any time to tender to defendant the stock plaintiff had purchased, for it had never belonged to him; that plaintiff had no right to demand from defendant the return of the purchase money, for defendant had never received it. In other words, plaintiff was defeated solely because he had pursued a remedy which in fact never existed in him. The special findings thus establish that defendant's relationship to the corporate stock, the money, and to plaintiff, was such that as to him alone plaintiff's only remedy, if any he has, is in tort. Neither waiver of the tort, rescission, nor any other act of plaintiff could place defendant under any other responsibility to plaintiff. This, we understand, was the theory upon which the municipal court acted in entering judgment, applying the Illinois law as declared in Arnold v. Dodson, 272 Ill. 377, 381, 112 N. E. 70. See, also, Sim v. Edenborn (C. C.) 163 F. 655.
The replication in the light of the amended plea, therefore, discloses, not only that plaintiff had pursued one of two inconsistent remedies and been defeated, but that he was defeated because he attempted to pursue a remedy which he never had and which had not arisen out of the facts in controversy. Many authorities exist to the effect that in order that the doctrine of election of remedies may be successfully invoked, two or more remedies must have actually arisen from the facts creating the cause of action, from which a choice may be made. Bierce v. Hutchins, 205 U. S. 340, 346, 27 S. Ct. 524, 525 (51 L. Ed. 828). In that case it was said:
"Election is simply, what its name imports, a choice, shown by an overt act, between two inconsistent rights, either of which may be asserted at the will of the chooser alone. * * * The fact that a party, through mistake, attempts to exercise a right to which he is not entitled does not prevent his afterwards exercising one which he had and still has, unless barred by the previous attempt."
Again, it is pithily stated in Barnsdall v. Waltemeyer, 142 F. 415, 73 C. C. A. 515:
"But the fatuous choice of a fancied remedy that never existed, and its futile pursuit until the court adjudges that it never had existence, is no defense to an action to enforce an actual remedy inconsistent with that first invoked through mistake."
In Fuller-Warren Co. v. Harter, 110 Wis. 80, 85 N. W. 698, 53 L. R. A. 603, 84 Am. St. Rep. 867, it was said:
"There must be two * * * remedies or causes of action, in fact, before a choice can be made within the meaning of the rule."
See, also, Doyle v. Hamilton Fish Corporation, 234 F. 47, 51, 148 C. C. A. 63; Drainage District v. Dowd, 132 Ill. App. 499; Whipple v. Stevens, 25 R. I. 563, 57 A. 375; Gould v. Blodgett, 61 N. H. 115; McLaughlin v. Austin, 104 Mich. 491, 62 N. W. 720; Henry v. Herrington, 193 N. Y. 218, 86 N. E. 29, 20 L. R. A. (N. S.) 249; Garrett v. Farwell Co., 199 Ill. 436, 441, 65 N. E. 361.
From these cases and numerous others which might be cited, the rule is deducible that pursuit of a supposed, but actually nonexistent, remedy, is not an election which will bar the later successful prosecution of one actually existing, though inconsistent with the former. And this is generally true, though the first remedy be pursued to defeat by judgment.
But defendant confidently contends that because the defendant, by his affidavit of merits interposed in the action in the municipal court, took issue with plaintiff's claim that the stock was purchased from defendant and the moneys received by him, plaintiff was thereby warned that plaintiff had no such remedy as he there sought, and that by persisting in following that remedy plaintiff made an irrevocable election; and if this be not so, it is claimed then he did so when, after listening to the testimony in the case, including that of defendant and his witnesses, he pursued the action to judgment rather than take a nonsuit before the jury retired.
In these contentions defendant's reliance is upon the case of United States v. Oregon Lumber Co., 260 U. S. 290, 43 S. Ct. 100, 67 L. Ed. 261. In that case, the wrong to be remedied was fraud in securing patents to public lands. The United States had notice of the fraud, which notice started the running of the six-year statute of limitations against a suit in equity. Against an action at law for damages, no *787 limitation ran. After the expiration of the six years from the receipt of notice, the United States commenced its suit in equity to set aside the patents. In their answer the defendants set up the statute of limitations, but nevertheless the United States prosecuted the suit to an adverse decree, same being grounded upon the bar of the statute, the chancellor holding "that the United States had had full knowledge of the matters complained of in its complaint for more than six years before the equity suit was instituted." Later the United States commenced an action at law against some of the same defendants for damages for the same fraud. The former suit in equity and its persistent prosecution to final decree, after the bar of the statute had been pleaded, was set up by the defendants as an irrevocable election of remedies, and the Supreme Court adopted that view.
There are several important points of distinction between that and the case at bar. In the former, the facts originally gave to the United States two inconsistent remedies, while in the latter, as the findings are disclosed by the replication, plaintiff never had the remedy he first sought to enforce. In the former the plaintiff had a choice of remedies, but delayed making its choice until there had arisen a defense to the remedy chosen, aliunde the facts constituting the wrong. Here no such element is present. In the former, the plaintiff persisted in the prosecution of the remedy first chosen, after the statute of limitations had been set up in the answer with full knowledge of the facts underlying the plea. In the case at bar plaintiff pursued his first action after defendant's affidavit of merits had given notice that the stock purchased was not his and he had not received the money, and in fact after he had listened to the testimony of the defendant and his witnesses. The element of "full knowledge" is an important one and stressed in the majority opinion in the Oregon Lumber Company Case.
Defendant's counsel earnestly insist that plaintiff is similarly chargeable with knowledge of these defenses and is similarly culpable in persisting to judgment. But a little reflection leads to a different conclusion. In the Oregon Lumber Company Case, it must be remembered that the statute of limitations began to run only upon receipt of notice of the fraud by the United States. Manifestly the government had peculiar and comprehensively full knowledge of whether, and when, it received such notice, and of the running of the statutory bar, and persistence in pursuing that remedy was thereafter clearly with full knowledge of the facts upon which the plea of the statute was founded and later sustained. The status of its knowledge as full was practically adjudicated in the equity suit. In the instant case there has been no such determination, but, on the contrary, it is fairly to be inferred from the fact that the special questions were submitted to the jury that at the close of all the evidence, due either to dispute in the testimony or because the facts were so ambiguous as to warrant conflicting inferences, there was doubt as to whether or not the stock purchased by plaintiff was defendant's or the tractor company's; whether or not the tractor company or defendant was the ultimate recipient of the purchase money, etc.
Whether this inference be justified or not, it nowhere in this record appears that plaintiff had that full knowledge of all the facts which the government was chargeable with in the Oregon Lumber Company Case. The record does not disclose how much part plaintiff personally took in the transactions with defendant. It may have been much or little. Beyond this he is chargeable at the most with knowledge of the claims of defendant set out in his answer and the testimony which was given on the trial. We are not prepared to hold that failure to give entire credence to either the answer or testimony of an adversary, particularly where the testimony is such as to require submission of the issues to a jury, as here, is the equivalent of full knowledge. The adoption of such a rule in cases such as this, would, in our opinion, not only extend the doctrine of United States v. Oregon Lumber Co., supra, beyond its intended scope, but, in many instances, would penalize an honest mistake by a forfeiture.
Plaintiff's replication alleges that he was not fully informed that the money paid by him for the stock was not personally received by the defendant, until the final determination of the action in the municipal court. Assuming this to be a conclusion, we deem it so supported by the statement of facts with reference to the answers of the jury to the special questions, that it establishes, if proven, both that the plaintiff never had the remedy which he first sought to enforce, and that his prosecution of the first action was not with full knowledge so as to estop him from prosecuting *788 the remedy he actually had. The demurrer to the replication should have been overruled.
The judgment is reversed, and the action remanded for further proceedings.
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270 F.3d 584 (8th Cir. 2001)
IN RE: DELTA ENGINEERING INTERNATIONAL, INC. DEBTORARCHIE HAMILTON; DEBRA HORNING; JOHN BLAND; DOUGLAS SWANSON; JOHN THILL; THOMAS ERNST; BONNIE AMUNDSON; SHIRLEY MCDONOUGH; HARLAND HESS; MIKE JOOSTEN; PAMELA HUMPREYS; DANIEL SWANSON; JEFF RYHN; BRIAN STINE; DONALD LENZ; LESTER JOHNSON; MARK SCHAUT; RICHARD MANN; MARK ANDERSON; LARISA YEROSHEVSKAYA; LORI BRAUN; CHRISTINE LONGWELL; MARK VINCENT ZIMMERMAN; CARL WOODINGTON; TIM LAURO, APPELLANTSv.LAKE ELMO BANK; LYON FINANCIAL SERVICES, INC., ALSO KNOWN AS SPECTRUM COMMERCIAL SERVICES; CLINTON CUTLER; DELTA ENGINEERING INTERNATIONAL; JOHN DOCKEN, APPELLEES
No. 00-4078
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Submitted: October 19, 2001Filed: November 2, 2001
Appeal from the United States Bankruptcy Appellate Panel for the Eighth CircuitBefore McMILLIAN, Beam and Murphy, Circuit Judges.
McMILLIAN, Circuit Judge
1
A group of employees and subcontractors ("appellants") of Delta Engineering International, Inc., ("DEI"), a Chapter 7 debtor in bankruptcy, appeals from a final order entered by the clerk of the court at the direction of the Bankruptcy Appellate Panel ("BAP") for the Eighth Circuit, dismissing their appeal from a final order of the bankruptcy court1 in an adversary proceeding they brought against Lake Elmo Bank, Spectrum Commercial Services, Clinton Cutler, and John Docken.2 In re: Delta Eng'g Int'l, Inc. (Hamilton v. Lake Elmo Bank), No. 00-6109 (B.A.P. 8 th Cir. Nov. 20, 2000) ("BAP order"). For reversal, appellants argue that (1) the BAP erred in holding that it lacked jurisdiction to consider the appeal because the notice of appeal was untimely filed and (2) Rule 8002(a) of the Bankruptcy Rules, limiting the time for filing a notice of appeal to ten days, is unconstitutional under the due process clause of the Fourteenth Amendment. For the reasons stated below, we affirm the order of the BAP.
2
Jurisdiction in the BAP was proper based upon 28 U.S.C. § 158(b), (c). Jurisdiction in this court is proper based upon 28 U.S.C. § 158(d).
3
In the present case, it is undisputed that the bankruptcy court entered its final order on September 15, 2000. On October 16, 2000, appellants personally served a notice of appeal on the bankruptcy court. See Brief for Appellants at 10. Included in the notice of appeal was a "Motion for Leave to File Notice of Appeal Out of Time." In that motion, appellants asserted that the untimeliness of their filing should be excused because, "where the time to file a notice of appeal in every other forum with which plaintiffs' attorney is familiar is 30 or more days, plaintiffs' attorney must be excused for never thinking that a decision as to whether or not to appeal had to be made within such an unreasonably short period of time." See id. at 10-11 (quoting motion).
4
By order dated November 13, 2000, the bankruptcy court, for reasons that are irrelevant to the present appeal,3 denied appellants' motion for leave to file the notice of appeal out of time. The BAP order was entered shortly thereafter. The BAP order explains that the appeal is dismissed for lack of jurisdiction because appellants failed to timely file their notice of appeal. BAP order at 1 (citing Luedtke v. Nationsbanc Mortgage Corp., 215 B.R. 390 (B.A.P. 8th Cir. 1997), and FHC Enterprises, Inc. v. Drevlow, 221 B.R. 767 (B.A.P. 8th Cir. 1998)).
5
Upon review of the record and the parties' arguments in the present appeal, we hold that the BAP did not err in dismissing for lack of jurisdiction appellants' untimely appeal from the bankruptcy court's order of September 15, 2000. Title 28 U.S.C. § 158(c)(2) provides that "[a]n appeal under [28 U.S.C. § 158(a) or (b)] shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules." (Emphasis added.) Rule 8002(a) provides: "The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from."
6
Moreover, appellants cite no authority for the proposition that the ten-day filing requirement in Rule 8002(a) violates the due process clause of the Fourteenth Amendment, and we are not aware of any.
7
The order of the BAP is affirmed. See 8th Cir. R. 47B.
NOTES:
1
The Honorable Gregory F. Kishel, United States Bankruptcy Judge for the District of Minnesota.
2
In re: Delta Engineering Int'l, Inc. (Hamilton v. Lake Elmo Bank), No. 97-34671 (Bankr. D. Minn. Nov. 20, 2000).
3
The reasons for the denial of the motion are irrelevant because appellants did not appeal the bankruptcy court's order of November 13, 2000.
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469 F.2d 634
Kenneth CHAPMAN, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 72-1920 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Oct. 31, 1972.
John C. Pennington, Atlanta, Ga. (Court-appointed), for petitioner-appellant.
William J. Schloth, U. S. Atty., Ronald T. Knight, Asst. U. S. Atty., Macon, Ga., for respondent-appellee.
Before WISDOM, GODBOLD and RONEY, Circuit Judges.
WISDOM, Circuit Judge:
1
This is an appeal from the district court's denial of a motion under 28 U.S. C. Sec. 2255 to have the appellant's conviction and sentence vacated, appeal rights reopened, and counsel appointed to perfect an appeal in forma pauperis. We reverse.
2
The appellant, Kenneth Chapman, was convicted under 18 U.S.C. Sec. 2113(a) for attempted entry into a bank with intent to commit a felony and was sentenced on November 16, 1966, to serve a term of ten years. His retained attorney filed a timely notice of appeal. He asserts that several months later he wrote his attorney to inquire about his appeal and to inform his attorney of his inability to raise the balance owed on attorney's fees. That letter remained unanswered. The lawyer later abandoned the appeal, but did not communicate with Chapman again. Since he took no further action, the Court of Appeals dismissed the appeal on June 7, 1967. For a period of more than four years the appellant did not inform either the district court or this Court that he was indigent and without counsel to perfect an appeal. Finally, the appellant filed a motion under section 2255 to have his conviction and sentence vacated, appeal rights reopened, and counsel appointed to perfect an appeal in forma pauperis. On February 9, 1971, the district court denied relief without a hearing. Because of the difficulty and importance of the issues involved, we granted leave to appeal in forma pauperis and appointed counsel to assist the appellant.
3
Chapman's main contention is that the alleged failure of counsel to perfect an appeal constituted a denial of the right to appeal and the right to the effective assistance of counsel as guaranteed by the Sixth Amendment. We agree.
4
At the outset, we note that an appeal from a district court's judgment of conviction in a criminal case is a matter of right. Coppedge v. United States, 1962, 369 U.S. 438, 82 S.Ct. 917, 8 L. Ed.2d 21; Arrastia v. United States, 5 Cir. 1972, 455 F.2d 736; Brewen v. United States, 5 Cir. 1967, 375 F.2d 285. Abridgement of this right is incompatible with the most basic concept of due process. Nance v. United States, 7 Cir. 1970, 422 F.2d 590. Furthermore, we have held that the failure of privatelyretained counsel to perfect an appeal, when requested to do so, amounts to such a dereliction of duty as to deprive the defendant of both the effective aid of counsel at a critical stage of the proceedings and the right to appeal. Atilus v. United States, 5 Cir. 1969, 406 F.2d 694. In Atilus, we observed that if privately-retained counsel continues to represent his client until the appeal stage of the proceedings arrives, "he can't be permitted simply to bow out without notice either to the court or client and frustrate forever the right of the client to protect his vital interests." Id. at 696. Similarly, in Woodall v. Neil, 6 Cir. 1971, 444 F.2d 92, counsel filed a timely notice of appeal but then failed to take any further action. The court held that counsel's abandonment of the appeal, without notice and without the defendant's consent, deprived the defendant of the right to counsel and the right to appeal.
5
These precedents are clearly applicable to the instant case in which the appellant alleges that his lawyer abandoned the appeal without notice to either the appellant or the court. The district court concluded, however, that the appellant had waived any objection to his counsel's actions because he "slept on his rights for four years without informing the courts of his problem." The district court, not without reason, concluded that the appellant's nonpayment of attorney's fees coupled with the fact that the letter to his counsel remained unanswered gave the appellant notice that his counsel had abandoned the case. Chapman's failure to notify the court of this fact therefore precluded any finding that he was denied the effective assistance of counsel.
6
We agree with the district court that there is a duty imposed on defendants to notify the courts of an inadequacy in the assistance of counsel and that the judiciary is not required to monitor all cases to insure that counsel are using due diligence in prosecuting their clients' appeals. This is not the issue in the present case, however. Chapman alleges that he was ignorant of his rights once his lawyer abandoned him and that neither his lawyer nor the trial judge advised him of his rights. The district court did not conduct an evidentiary hearing to determine the truth of the allegations or whether there was an intelligent and voluntary waiver. Instead, the district court assumed a waiver because of the appellant's inaction for such a long period of time. It must be admitted, of course, that the passage of four years before Chapman advised the courts of his problem makes his position inherently suspect. Extended, unexplained silence may in certain circumstances amount to abandonment of one's rights. Nevertheless, this Court's policy has been strongly in favor of the position that a waiver will not be assumed unless the facts clearly support such an assumption. McKinney v. United States, 5 Cir. 1968, 403 F.2d 57. We are reluctant to construct an exception to this rule in the present circumstances in the absence of an evidentiary hearing. We conclude, therefore, that it was error for the district court to deny the appellant's motion without an evidentiary hearing. Nothing in this opinion should be taken as expression of view on the merits of the appellant's first contention.
7
The appellant's second contention is that the trial court failed to advise the appellant of his rights in accordance with the requirements of Rule 32(a)(2) of the Federal Rules of Criminal Procedure. Rule 32(a)(2) provides:
8
Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. If the defendant so requests, the clerk of the court shall prepare and file forthwith a Notice of Appeal on behalf of the defendant.
9
The record in the present case shows that the trial judge did not advise the appellant of these rights. The appellant argues that this omission alone is sufficient to require the granting of the relief requested, citing Kirk v. United States, 7 Cir. 1971, 447 F.2d 749. In Kirk, as here, counsel abandoned the case after filing a notice of appeal. The Seventh Circuit held that it would be presumed, without an evidentiary hearing, that the trial court's failure to advise the defendant as required by Rule 32(a)(2) was the cause of the defendant's failure to perfect his appeal. The Government, in contrast, urges us to reject Kirk and to hold that the trial court's omission was at most harmless error since the appellant's counsel had already filed a notice of appeal. The Government, though, misses the point when it argues that the filing of the notice of appeal makes unnecessary notification under Rule 32(a)(2). Rule 32(a)(2) does not merely inform a defendant of his right to appeal; it also tells him that he has a right to appointed counsel if he cannot afford retained counsel for the appeal. The appellant could conceivably have been aware of his right to an appeal and yet have waived it because he could not afford retained counsel. A proper and complete notification under Rule 32(a)(2), however, would have prevented such a waiver.
10
Both the appellant and the Government ask us to assume too much.
11
This is not a case in which it was apparent that Chapman would be unrepresented on appeal and was therefore primarily dependent on the trial court for advice as to his rights. Rodriquez v. United States, 1969, 395 U.S. 327, 89 S. Ct. 1715, 23 L.Ed.2d 340. Instead, Chapman had the assistance of counsel who filed a timely notice of appeal. In these circumstances, the retained lawyer may well have informed Chapman fully as to his rights, including the right to have appointed counsel on appeal. These questions, however, cannot be resolved by speculation.
12
We reverse and remand to the district court for an evidentiary hearing on the issues raised in the appellant's motion.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4757
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY DEMPS KING, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:11-cr-00191-D-1)
Submitted: July 8, 2013 Decided: August 5, 2013
Before KING and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Joshua L. Rogers, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Demps King, Jr., appeals his conviction for
knowingly possessing a firearm after having been convicted of a
felony in violation of 18 U.S.C. § 922(g)(1). King claims the
evidence is insufficient to support the jury’s verdict. For the
reasons that follow, we affirm.
I.
A.
In the early morning hours of February 9, 2011, the
Fayetteville, North Carolina, Police Department received a call
for service regarding shots fired in the parking lot at a local
club. 1 Officers were told that the suspect vehicle was a black
sport utility vehicle, possibly a Ford Expedition, with one
headlight out. While en route to the call, Officer John Carro
observed a vehicle matching that description with one headlight
out in the parking lot of a gas station. Carro continued
traveling down the road so as to not alert the occupants of the
vehicle that he had noticed them. Carro radioed for backup
before he turned around to approach the vehicle. Detective
1
Because the district court returned a guilty verdict, we review
the evidence in the light most favorable to the Government. See
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en
banc).
2
Michael Ballard and Officer Jerrod Belanger responded to the
call for backup. The vehicle left the gas station and Carro
fell in behind it before initiating a traffic stop.
Carro opened, but stayed behind, the door of his patrol
car. He used the car’s public announcement system to order the
occupants out of the vehicle. The driver indicated that the
door of the vehicle would not open. Carro repeated his command,
but none of the four occupants complied.
By that time, Sergeant Dale Autry, II, arrived on scene
and, with Ballard and Belanger, approached the passenger side of
the vehicle. Belanger swung wide to the right to obtain a
better view of the inside of the vehicle. Both the front and
rear passenger windows were rolled down. Belanger saw King
reclined in the front passenger seat, and looking back into the
vehicle. Belanger ordered King to keep his hands where he could
see them. Ballard opened the rear passenger door and ordered
the right-rear passenger out and onto the ground. Autry then
approached the front passenger seat and ordered King out of the
vehicle. Autry was able to grab King’s right hand but was
unable to secure King’s left hand.
Before Autry was able to secure King, Belanger saw King
retrieve a firearm from his lap, grab the firearm by the barrel,
and reach backward between the two front seats. Autry saw some
type of object in King’s left hand and also saw King place
3
something underneath the left rear seat of the vehicle, but was
not sure what the object was. Ballard, who was attempting to
secure the right rear passenger on the ground next to the
vehicle, saw King’s left arm between the two front seats, but
saw nothing in King’s left hand. Ballard grabbed King’s left
arm and Autry then removed King from the vehicle.
Ballard walked around to the driver’s side of the vehicle
and looked at the backseat floorboard where he had observed King
reach. He discovered a .38 caliber Smith & Wesson revolver on
the floorboard just in front of the left rear passenger seat of
the vehicle. Autry asked for a crime scene technician to
respond to their location to test all of the occupants’ hands
for gunshot residue (GSR). Three of the four occupants in the
vehicle were tested for GSR on scene and all three tested
negative. King, however, resisted any attempt to test him on
scene, but he was ultimately tested at the police station, where
officers found gunshot residue on his hands.
B.
The grand jury returned a two-count indictment alleging
that King possessed a firearm and that he possessed ammunition,
4
in each instance after having been convicted of a felony. 2 After
a four-day trial, the jury acquitted King on the possession of
ammunition by a felon charge but convicted him of possession of
a firearm by a felon. This appeal followed.
II.
A.
The sole issue before us is whether the district court
erred in denying King’s motion for judgment of acquittal. King
contends that the evidence presented at trial was insufficient
to allow the jury to find him guilty beyond a reasonable doubt.
This presents a question of law which we review de novo. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
King’s conviction can stand only if “there is substantial
evidence, taking the view most favorable to the Government,” to
support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
“[S]ubstantial evidence consists of evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. King, 628 F.3d 693, 700 (4th Cir.
2011)(internal quotations omitted). We can reverse a conviction
2
The ammunition charge stems from an event unrelated to the one
before us.
5
based upon insufficiency of the evidence only when the
“prosecution’s failure is clear.” United States v. Moye, 454
F.3d 390, 394 (4th Cir. 2006) (en banc) (citing United States v.
Jones, 735 F.2d 785, 791 (4th Cir. 1984)). We must “also assume
that the jury resolved all contradictions in the testimony in
favor of the government.” Id. (citing United States v. Sun, 278
F.3d 302, 313 (4th Cir. 2002)). Lastly, when the evidence tends
to support differing reasonable interpretations, the
determination of which interpretation to accept is properly
within the purview of the jury. United States v. Wilson, 118
F.3d 228, 234 (4th Cir. 1997).
B.
King’s sole argument is that there was insufficient
evidence for the jury to find that he possessed the firearm. He
contends that the officer who observed the firearm in King’s
hand--Officer Belanger--was too far away and had an obstructed
view of the car. Additionally, King relies on the fact that the
officer who was closest to him--Detective Ballard--saw nothing
in King’s hand and that he believed King was reaching for
something in the backseat floorboard.
King also contends that the results of the GSR test showing
the presence of gunshot residue on King’s hands could have been
produced by transfer either (1) from the officers who arrested
6
him, (2) from the patrol car used to transport him to the police
station, or (3) from the holding cell in which he was placed
upon arriving at the police station.
The government responds that the jury could reasonably
conclude that King actually possessed the firearm by holding it
in his left hand and placing it on the backseat floorboard.
First, says the government, Officer Belanger observed King
holding the firearm by the barrel, reaching through the center
console area of the car, and placing the firearm in the backseat
floorboard. Second, Sergeant Autry saw King with “something in
his left hand” and that King was “putting something underneath
the back seat . . . an object of some sort.” Third, Detective
Ballard observed a firearm in the backseat floorboard where King
was reaching after King was secured by Sergeant Autry and
Officer Belanger. Finally, the GSR test showed that King had
gun shot residue on his hands.
We agree with the government. The totality of the evidence
the government produced at trial (which we have summarized
above), viewed in the light most favorable to the government,
was more than sufficient to support the jury’s verdict. The
jury was also entitled to reject King’s arguments regarding the
alleged contradictions in the evidence. Sun, 278 F.3d at 313.
King relies upon United States v. Blue, 957 F.2d 106 (4th
Cir. 1992), in arguing that his conviction should not stand. In
7
Blue, an officer stopped a vehicle for an alleged seat belt
violation. Id. at 107. As the officer approached the vehicle,
he observed Blue--a passenger--“dip” his shoulder as if he were
reaching under his seat. Id. The officer obtained consent to
search the vehicle and found a firearm underneath the passenger
seat. Id. Blue was charged with possession of a firearm by
felon. Id. The government proceeded on a constructive
possession theory and relied solely upon two pieces of evidence:
(1) Blue “dipping” his shoulder as the officer approached the
vehicle; and (2) the officer’s subsequent discovery of a firearm
under the passenger seat. Id. at 107-08.
We reversed Blue’s conviction, ruling that in order “[t]o
uphold a finding of constructive possession, . . . more evidence
of dominion and control” was required. Id. at 108. We
concluded that “the government introduced no evidence
demonstrating that Blue owned the gun or testimony that Blue had
been seen with the gun.” Id. We also noted that the government
failed to show “that Blue had ever been in [the car in which the
gun was found] before.” Id.
King’s reliance upon Blue is misplaced for the simple
reason that Officer Belanger actually saw King with a firearm in
his hand. Additionally, the evidence at trial showed that King
frequently used the vehicle in which police found the gun, as it
8
belonged to King’s mother. Blue, therefore, is of no help to
King.
We affirm the district court’s judgment. 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
9
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379 P.2d 765 (1963)
71 N.M. 468
Rudolph L. BACA, Administrator of the Estate of Bruce Baca, an infant, deceased, Plaintiff-Appellant,
v.
Adiel S. BACA and Margaret Baca, his wife, Defendants-Appellees.
No. 7027.
Supreme Court of New Mexico.
March 13, 1963.
Smith, Kiker & Kitts, Richard E. Ransom, Albuquerque, for appellant.
Iden & Johnson, James T. Paulantis, Albuquerque, for appellees.
NOBLE, Justice.
Action was brought against defendants by the administrator of the estate of Bruce Baca, an infant, for the wrongful death of *766 the infant caused by the alleged negligent operation of an automobile by the defendant Margaret Baca. Appeal was taken from a judgment following a jury verdict finding the issues in favor of defendants.
Bruce Baca, age three years and three months, the son of Rudolph L. and Urcy Baca, was playing across the street from the Baca home at about 4:50 p.m. on July 2, 1959. Mr. Baca was not at home at the time. Upon being told by older children that Bruce was across the street, Mrs. Baca went immediately to the curb, and seeing no cars approaching, called to Bruce to come across the street. He continued looking at a culvert with a companion for some moments and when he did start across the street, his mother saw defendant's car approaching, motioned to him to go back and called "go back, there's a car coming." The child continued running across the street and was struck and killed by the car driven by defendant Margaret Baca. The two Baca families are not related.
Defendants plead, as a second defense, the contributory negligence of Urcy Baca, mother of the child, and that she was agent of the community of her husband and herself, and that the negligence of the wife is imputed to the husband.
Plaintiff urges error in the denial of his motion to strike the second defense (contributory negligence of the child's mother), made both at a pre-trial hearing and at the conclusion of all the evidence. An instruction directing the jury to find for defendants if the jury found that the child's mother was guilty of negligence proximately contributing to the death is also asserted as error. These two claimed errors present the same legal question and will be considered together.
The first question posed is whether under the New Mexico wrongful death statute the contributory negligence of a person who will ultimately receive the benefit of a recovery bars the right of recovery in whole or in part. The precise question is one of first impression in this jurisdiction and the courts of other states are not in accord, the reasons for divergence of opinion being largely the difference in a construction of the various state statutes. This is illustrated by the following from Restatement, Torts, § 493:
"The effect of the contributory negligence of a beneficiary under a death statute depends upon the provisions of the statute."
Section 22-20-1, N.M.S.A. 1953 reads:
"Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured."
Section 22-20-3, N.M.S.A. 1953, provides that actions for wrongful death, other than by a public conveyance, shall be brought by and in the name of the personal representative; that the proceeds of any judgment shall not be liable for any debt of the decedent; and, specifies the beneficiaries or persons to whom the proceeds of such recovery shall be distributed. In the case of an unmarried and childless minor, the surviving father and mother "shall have an equal interest in the judgment."
Comment (a) under the Restatement rule, Torts, § 493, illustrates the purpose of the three usual and different types of statute, and states the majority rule in each such type of statute:
"The purpose of the more usual form of statute is to compensate the survivors for the benefits which they would have derived from the earning power of the decedent had his life not been cut short. The sum recovered is distributed *767 in various ways by the various statutes among the survivors who, had the decedent lived, would have benefited by his earning power. Where the statute is of this type, the fact that a beneficiary is himself guilty of negligence which contributed to the death of the decedent does not prevent recovery unless he is the sole beneficiary. It does, however, affect the amount recoverable. If one of the beneficiaries is guilty of contributory negligence he is not allowed to benefit by the statute. The amount which he would have received had he not been negligent is deducted from the amount recoverable by the survivors as a group; the rest being distributed among the survivors as though the negligent beneficiary did not exist.
"There is another type of death statute under which the amount recoverable is fixed, not by the benefit which the survivors would have derived from the continued life of the decedent, but by the gravity of the defendant's fault. Under such a statute, the contributory negligence of one of the beneficiaries neither prevents the maintenance of the action nor affects the amount recoverable. Its effect is to eliminate the negligent beneficiary from the group among which the amount recovered is to be divided; such amount being divided among the innocent beneficiaries as though the negligent beneficiary did not exist.
"There is a third type of death statute in which the amount recovered is treated as if it were an asset of the decedent and is distributed under special statutory provisions pertaining to that fund only. Under this type of statute, the negligence of a beneficiary has no effect in determining either the amount recoverable or the persons among whom the proceeds of the judgment are to be divided."
The first two examples under the restatement rule are grounded upon the principle that one should not be permitted to benefit by his own wrong. Application of that principle has led the great majority of courts to hold that the contributory negligence of a beneficiary bars the right of recovery under a wrongful death statute at least as to the beneficiary whose negligence proximately contributed to the death. 23 A.L.R. 670; 69 A.L.R. 478; 2 A.L.R.2d 785, 786.
We then turn to our own statute and examine its purpose. Sec. 22-20-3, N.M.S.A. 1953, provides that the jury may award such damages:
"* * * compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment * * * and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default."
It appears to be the general rule, as argued by plaintiff, that a beneficiary under the usual survival statute is not barred from participating in a recovery for wrongful death because of the contributory negligence of such beneficiary. Those decisions, however, are based upon a statute providing for the usual and normal type of survival action, where it must be brought by the personal representative who stands in the place of the injured person; represents the estate; and, the beneficiaries take as distributees of the estate, not in their capacity as statutory beneficiaries. The reasoning upon which these decisions permit a negligent beneficiary to share in the recovery is stated thus in the annotator's language, 2 A.L.R.2d at page 811:
"* * * Under this type of statute the cause of action prosecuted by the personal representative is not a new cause of action but a continuation of the cause of action which existed in the injured person during his lifetime, and the recovery goes to the distributees of the estate not as statutory beneficiaries but as distributees under the statute *768 of descent and distribution the same as any other asset of the estate and subject to the payment of debts and administration expenses." (Emphasis ours.)
These decisions, taking the view that the contributory negligence of a beneficiary does not bar recovery, are based on the reasoning that the action is a survival statute and upon death of the injured person the action becomes the property of his personal representative and of his estate, and the beneficiaries take as distributees of the estate, not as statutory beneficiaries. Those decisions, of course, are based upon the legal theory that the personal representative stands in the place of the injured person and that no defense is available against him that would not have been available against the injured person had death not ensued, and that the beneficiaries take as distributees of the estate not as statutory beneficiaries.
The rule appears, on the contrary, to be equally general that the mere fact that the action is brought by or in the name of a personal representative, where it is actually for the benefit of the statutory beneficiaries, not the estate, does not prevent contributory negligence of a beneficiary from barring recovery. The following appears in 2 A.L.R.2d at pages 791-792:
"Most of the modern cases, however, have expressly or impliedly repudiated any distinction based upon the fact the suit was by the parent or other beneficiary in his capacity as administrator of the estate of the person killed, or by a third person as the administrator of the estate, and have taken the view that irrespective of whose name the action is brought in (whether directly in the name of the beneficiary or beneficiaries and for his or their benefit, or in the name of the personal representative) the action is for the benefit, not of the estate, but of the statutory beneficiaries (unless this theory is expressly refuted by the terms of the statute); and that consequently the contributory negligence of the sole beneficiary or beneficiaries is a good defense to any recovery, or that the contributory negligence of one of several beneficiaries defeats the right of recovery to the extent of his share in the right of recovery. * * *"
The Arizona Court in Town of Flagstaff v. Gomez, 23 Ariz. 184, 202 P. 401, 23 A.L.R. 661 said that the negligence of a third person should not be permitted to defeat an action for the benefit of the child, nor one in behalf of his estate. But the court said the reason for the rule fails where the action "though nominally for the benefit of the estate is in reality in the interests of the beneficiary." The reasoning was explained thus:
"* * * If such beneficiary were suing for an injury to himself, he could not recover if he contributed to it, and there is no reason why the same rule should not prevail when the action is based upon an injury to another to which he contributed and he alone will reap whatever harvest is gathered from a termination of the suit in favor of the estate. * * *"
See, also, cases listed 2 A.L.R.2d 789, 790 and 792 et seq.; Missouri, K. & T. Ry. v. Perino, 89 Okl. 136, 214 P. 907.
The right to recover damages for the wrongful death of a person is entirely statutory. We then turn to the construction placed on our statute to determine the rights of the beneficiaries thereunder. While the wrongful death act was said in Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540; State ex rel. De Moss v. District Court, 55 N.M. 135, 227 P.2d 937, 938; Natseway v. Jojola, 56 N.M. 793, 251 P.2d 274; and Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149 to be a survival statute, it has actually been held to be one in survival only in the sense that the cause of action accrues at the date of the injury and does not create a new cause of action upon the death of the injured person. The problem here present, where the recovery is not for the benefit of the estate, although brought by the personal representative, *769 but is for the benefit of certain named beneficiaries, injects a consideration not present in the usual survival statute.
While the 1961 amendment does not affect our decision in this case, having been adopted subsequent to the happening of the accident, we note that the legislature, by Ch. 202, New Mexico Session Laws, 1961, amended the statute to provide that the cause of action for a wrongful death accrues at the time of death, thereby suggesting the possibility that the legislature considered the statute as not being one of survival. It is not necessary for us here to determine the effect of the amendment.
The action is required to be brought in the name of the personal representative of the deceased, but the status of such personal representative was discussed at some length in Henkel v. Hood, 49 N.M. 45, 156 P.2d 790, where it was said the character of a personal representative under our wrongful death statute is entirely foreign to and unconnected with that of an estate administrator. It was there said:
"The suit, under this act, clearly, has no relation to the estate. It is incidental that a `personal representative' (usually defined to be an executor or administrator, in one of the classes) is named to bring suit. It is not because this would fall within his duties as such, but because someone must be named and our Legislature has fixed upon such a person as the one to sue."
That our statute differs from those true survival statutes where contributory negligence of a distributee is said not to prevent recovery for a wrongful death is clearly shown in Wilson v. Pollard, 190 Ga. 74, 8 S.E.2d 380, 382, quoted with approval in Henkel v. Hood, supra, as follows:
"The sole purpose of the legislature in using the words `administrator or executor' is to designate an agency for the prosecution of the suit thereby provided for. Manifestly there is no intention to involve the estate represented by such administrator or executor in the suit provided for in this section. Any recovery in such a suit is the property of the relative for whose benefit the suit is brought, and it at no time constitutes a part of the estate of the decedent. * * *" (Emphasis ours.)
The following from 16 Am.Jur. 186, § 266, was quoted with approval in Henkel as a correct statement of the definition and application of the personal representative provided for by our wrongful death statute:
"`Sec. 266. Capacity in Which Personal Representative Brings Action. In actions in the name of a personal representative under statutes requiring him to bring the action for the benefit of certain persons, he is a mere nominal party, having no interest in the case for himself or the estate he represents. He does not act in his capacity as executor or administrator, or representative of the decedent's estate, but sues as a trustee on behalf of the particular persons designated in the act, * * *' (Emphasis ours.)"
It was further said that under our act:
"Thus, the personal representative who makes a recovery under the Act, * * * serves as a trustee, a `statutory trustee', for discoverable and identifiable beneficiaries in the line of named kinship or descent. * * *"
In Trefzer v. Stiles, 56 N.M. 296, 243 P.2d 605, it was said:
"In New Mexico the amount recovered under the wrongful death statute, * * * under which this action was brought, never becomes a part of the assets of the community or of the decedent's estate."
The distinction between the action in New Mexico by a personal representative who sues and acts as trustee on behalf of particular statutory beneficiaries, and who has no interest in the cause of action or recovery as the representative of the decedent or his estate, and where the statutory beneficiaries under the facts here have "an equal interest in the judgment," and the *770 ordinary survival action where the action is by the personal representative in his capacity as such and representing the decedent and his estate, and where the statutory beneficiaries have no interest in a recovery or judgment as such, but only take as distributees of the estate is manifest.
Kuehn v. Jenkins, 251 Iowa 718, 100 N.W. 2d 610 and the other cases relied upon by plaintiff are clearly distinguishable because they are based upon statutes where the cause of action is the property of the administrator or executor as such, for the benefit of the estate, and under which the beneficiaries take only as distributees of the estate.
Under the construction we place on our statute where the personal representative brings the action for the benefit of the statutory beneficiaries, not of the estate, and the statutory beneficiaries are entitled to the recovery, not as distributees of the estate, the contributory negligence of one of several beneficiaries defeats the right of recovery to the extent of his share in the judgment. 2 A.L.R.2d 792 et seq., and cases there collected.
The challenged instruction charged the jury that even though they found the defendant negligent they must nevertheless return a verdict for defendant if they determined that Urcy Baca, mother of the child, was contributorily negligent. The effect of the instruction was to charge the jury that the contributory negligence of the child's mother, if any, would be imputed as a matter of law to her husband and prevent any recovery by him. The question is presented whether a non-negligent husband is barred from recovery (1) by imputing to him his wife's contributory negligence, or (2) our community property *771 statutes require application of the doctrine of imputed negligence of one spouse to the other.
The principle applicable to the imputation of the negligence of one spouse to the other for injury of a minor child was discussed in MacDonald v. O'Reilly, 45 Or. 589, 78 P. 753, 754, where it was said:
"* * * But the contributory negligence which will bar a recovery must be that of the person from whom the cause of action is derived, or the beneficiary, or someone standing in such a relation to the beneficiary that the maxim, `Qui facit per alium facit per se' may be invoked. * * * A wife does not, from the mere marital relation, however, occupy such a position in the care and custody of a minor child. * * * A mother is not the agent of the father in the care of the children, any more than the father is the agent of the mother. They are both equal before the law. The common interest or common duty of the parents toward the children will not of itself make one the agent of the other, or responsible for that other's negligence. Such seems to be the result of the decided cases in states where the doctrine of imputed negligence is not recognized."
See, also, Atlanta & C. Air-Line Ry. v. Gravitt, 93 Ga. 369, 20 S.E. 550, 556, 26 L.R.A. 553, 44 Am.St.Rep. 145; Louisville, N.A. & C. Ry. v. Creek, 130 Ind. 139, 29 N.E. 481, 482, 14 L.R.A. 733; Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460, Ann.Cas. 1914B, 29; Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38, 23 S.W.2d 102, 69 A.L.R. 470. The marital relation alone is not sufficient and no evidence has been pointed out to us disclosing that the husband and wife, in this case, stood in such relation that the maxim qui facit per alium facit per se is applicable. Los Angeles & S.L.R.R. v. Umbaugh, 61 Nev. 214, 123 P.2d 224.
Defendants contend that any distribution to either spouse, resulting from a recovery under the statute, would be the community property of the husband and wife, and it is argued that if one member of the community is negligent, the rule of imputable negligence should be applied.
This court said in Soto v. Vandeventer, 56 N.M. 483, 245 P.2d 826, 35 A.L.R.2d 1190 that the New Mexico community property statutes are almost identical with those of Nevada. In that case we followed the Nevada court in Fredrickson & Watson Const. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627 in its construction that a wife's cause of action for personal injuries to herself is not an asset of the community, and declined to follow the other community property states all holding to the contrary. Nevada has determined in Los Angeles & S.L.R.R. v. Umbaugh, supra, that the proceeds from a recovery for the wrongful death of a child by one spouse do not come within the meaning of the word "acquired" as used in the statute defining community property as construed by Fredrickson & Watson Const. Co. v. Boyd, supra, and that the contributory negligence of one spouse, if any, is not to be imputed to the other so as to bar a recovery by the spouse who was not negligent.
The applicable portion of § 22-20-3, N.M.S.A. 1953, providing for distribution of the proceeds of any recovery reads:
"* * * if such deceased be a minor, childless and unmarried, then to the father and mother, who shall have an equal interest in the judgment, or if either of them be dead, then to the survivor; * * *."
We are of the opinion that the right of action given the husband or wife to have an action brought for the wrongful death of a child is not a community right, and that the proceeds from any recovery are not community property, as it was defined by this court in Soto v. Vandeventer, supra.
It follows that the instruction complained of was erroneous and that the contributory negligence of one spouse, if any, is not to be imputed to the other spouse.
The trial court instructed on unavoidable accident. No complaint is made of the form of the instructions, but plaintiff asserts that it was error to give an instruction at all on unavoidable accident. As we view it, the situation in the instant case is similar to that in Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028, in which we said:
"We believe that in a case where the issues of negligence, contributory negligence and unavoidable accident are present, and the evidence being in conflict as to the issue of negligence and contributory negligence, the jury may conceivably find, with evidentiary support, that neither the appellant nor the appellee were negligent. There being questions present for the jury to decide as to whether appellee or appellant were negligent, or whether both or neither were negligent, we believe that in such a case, an unavoidable accident instruction is appropriate."
All of the questions present in Lucero are present here. In addition, exhibits in evidence show weeds or shrubs at or near the curb near the place where the child approached the curb which may have obstructed defendant's view if she had been looking at that spot. Plaintiff says the fatal accident occurred about six feet in the street from the curb. There is evidence that the child was running. Whether the defendant could, with reasonable care, have avoided the accident if she had seen the child immediately after he passed the weeds or shrubs at the curb is a question on which reasonable minds might differ and was one for the jury. We cannot agree with plaintiff.
Finally, plaintiff complains and charges error in the giving of instructions Nos. 7 and 16 as presenting a false issue. Instruction No. 7, complained of, charged the jury that the claim of contributory negligence placed on defendant the burden of proving such negligence by a preponderance of the evidence. We do not agree that it presented a false issue. We think the instruction might have been more clearly worded, but no objection is made to the wording of the instruction. We find no error in instruction No. 16.
We have examined the decisions cited and relied upon by plaintiff and find them *772 either distinguishable upon their facts or not controlling under the facts of the instant case.
Other questions argued have either been determined by what we have said, are unnecessary to decide, or found to be without merit.
The judgment will be reversed and the cause remanded with instructions to vacate the judgment and verdict upon which it is based and to grant a new trial and proceed in a manner not inconsistent with what has been said.
It Is So Ordered.
CARMODY and MOISE, JJ., concur.
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OSCN Found Document:STATE ex rel. OKLAHOMA BAR ASSOCIATION v. DICKSON
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STATE ex rel. OKLAHOMA BAR ASSOCIATION v. DICKSON2016 OK 81Case Number: SCBD-6375Decided: 06/28/2016THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2016 OK 81, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,
v.
KATHRYN KIMBERLEE DICKSON, Respondent.
¶0 ORDER APPROVING RESIGNATION FROM OKLAHOMA BAR
ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS
¶1 Before this Court is the affidavit of the respondent, Kathryn Kimberlee Dickson, filed pursuant to Rule 8.1 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch. 1, app. 1-A, requesting that she be allowed to resign her membership in the Oklahoma Bar Association (OBA) and relinquish her right to practice law. The OBA moves that this Court approve this resignation.
¶2 The respondent was admitted to membership in the Oklahoma Bar Association on October 6, 1983. On March 28, 2016, she submitted her affidavit of resignation pending investigation of a disciplinary proceeding.
¶3 The Record submitted by the Oklahoma Bar Association reveals that The District Attorney for Tulsa County charged the respondent with the crime of Financial Exploitation of an Elderly Person, a felony. Count 1 alleged that between June 2013, and January 2014, the respondent financially exploited her mother, born April 3, 1938, by writing checks from her mother's bank accounts and using her mother's credit cards without permission. An affidavit from a Tulsa Police Department detective alleged that the amount taken by the respondent was $63,985.44. The allegation would constitute violations of Rule 1.3, RGDP, 5 O.S.2011, ch. 1, app. 1-A, Discipline for Acts Contrary to Prescribed Standards of Conduct; and Rules 8.4(b) and 8.4(c) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011 ch. 1, app. 3-A, (Amended by order of the Supreme Court, 2007 OK 22; effective January 1, 2008) Misconduct, which includes committing a criminal act that reflects adversely on the lawyer's honesty, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
¶4 The respondent acknowledges that she is aware that a Notice of Felony Plea of Guilty and Deferment is currently pending before this Court in State ex rel. Oklahoma Bar Ass'n v. Kathryn Kimberlee Dickson, OBAD 2091, SCBD 6375, and that these proceedings were filed pursuant to Rule 7 of the RGDP. The respondent entered a plea of guilty to the charge on March 14, 2016. On that date, she received a six years and six months deferred sentence, was placed on supervised probation for two years, and ordered to make restitution of $15,700.00. The trial court also ordered her to pay court costs, victim's compensation assessment, and any applicable fines.
¶5 The respondent's affidavit regarding her resignation pending disciplinary proceedings states:
a. Her resignation is freely and voluntarily given without coercion or duress, and she is aware of the consequences of submitting her resignation;
b. She is aware of the grievance, OBAD 2091, filed against her, that the OBA has the burden of proving the allegations against her, and that approval of her resignation is discretionary with this Court;
c. She is familiar with and agrees to comply with Rule 9.1 of the RGDP and acknowledges and agrees, as a prerequisite to reinstatement, to comply with Rule 11 of the RGDP and that she will make no application for reinstatement prior to the expiration of five (5) years from the effective date of the order approving this Resignation Pending Disciplinary Proceedings;
d. She acknowledges that the Client Security Fund may receive claims from her former clients and agrees to reimburse the Fund for the principal amounts and statutory interest for claims which it approves and pays as a prerequisite to her reinstatement to the practice of law;
e. She acknowledges that the OBA has incurred costs in the investigation of the disciplinary proceeding against her but that the OBA will recommend that the imposition of costs against her be waived; and
f. She has surrendered his OBA membership card to the Office of the General Counsel.
¶6 Pursuant to Rules 8.1 and 8.2 of the RGDP, this Court finds:
a. The respondent's resignation from the OBA is freely and voluntarily tendered without coercion or duress, and she is fully aware of the consequences of submitting her resignation;
b. The respondent is subject to discipline by this Court under Rule 6 of the RGDP and has knowingly waived her right to appear before this Court to show cause why she should not be disciplined;
c. The respondent's resignation pending disciplinary proceedings is in compliance with all the requirements set forth in Rule 8.1 of the RGDP and should be accepted;
d. The OBA has not sought payment of the costs incurred in the investigation of this matter; and
e. The respondent's OBA number is 10456 and her official roster address, as shown by OBA records, is Kathryn Kimberlee Dickson, 512 S. Wheeling, Tulsa, Oklahoma 74104.
¶7 IT IS THEREFORE ORDERED that the OBA's application is approved and the respondent's resignation is accepted and effective upon the filing of this order in the Office of the Clerk of the Appellate Courts.
¶8 IT IS FURTHER ORDERED that the respondent's name be stricken from the Roll of Attorneys and that she make no application for reinstatement to membership in the Oklahoma Bar Association prior to the expiration of five years from the effective date of this order. See RGDP, Rules 8.2 and 11.1.
¶9 IT IS FURTHER ORDERED that the respondent shall notify all of her clients having legal business pending with her of her inability to represent them and of the necessity for promptly retaining new counsel by certified mail within twenty days pursuant to Rule 9.1 of the RGDP. The respondent is also ordered to return all client files and refund unearned fees. As a condition of reinstatement, the respondent shall reimburse the Client Security Fund for any monies expended because of her malfeasance or nonfeasance. See RGDP, Rule 11.1(b).
¶10 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 27th day of JUNE, 2016.
/s/Vice Chief Justice
ALL JUSTICES CONCUR
Citationizer© Summary of Documents Citing This Document
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None Found.
Citationizer: Table of Authority
Cite
Name
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Oklahoma Supreme Court Cases
CiteNameLevel
2007 OK 22, 171 P.3d 780, IN RE: APPLICATION OF THE OBA TO AMEND THE RULES OF PROFESSIONAL CONDUCTCited
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ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
The Boeing Company ) ASBCA No. 60099
)
Under Contract No. FA8107-06-C-0001 )
APPEARANCES FOR THE APPELLANT: Karen L. Manos, Esq.
Erin N. Rankin, Esq.
Dhananjay S. Manthripragada, Esq.
Gibson, Dunn & Crutcher LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Carol L. Matsunaga, Esq.
Arthur M. Taylor, Esq.
Trial Attorneys
Defense Contract Management Agency
Carson, CA
ORDER OF DISMISSAL
The dispute has been settled. The appeal is dismissed with prejudice.
Dated: 1 March 2017
DAYID D' ALESSANDRIS
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the
Armed Services Board of Contract Appeals in ASBCA No. 60099, Appeal of The
Boeing Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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102 Wis.2d 539 (1981)
307 N.W.2d 881
IN the MATTER OF the GUARDIANSHIP OF Joan I. EBERHARDY, Incompetent:
Quintin EBERHARDY and Mary Eberhardy, guardians, Appellants-Petitioners,[]
v.
CIRCUIT COURT FOR WOOD COUNTY, the Hon. Dennis D. Conway, presiding, Respondent.
No. 78-661.
Supreme Court of Wisconsin.
Argued January 5, 1981.
Decided June 30, 1981.
*541 For the petitioners there were briefs (in this court) by Edward F. Zappen and Zappen, Meissner, Oestreicher, Craig & Hayden, and William J. Dehn, guardian ad litem, with oral argument by Edward F. Zappen and William J. Dehn, all of Marshfield.
For the respondent the cause was argued by Donald P. Johns, assistant attorney general, with whom on the brief (in court of appeals) were Bronson C. La Follette, attorney general, and George B. Schwahn, assistant attorney general.
HEFFERNAN, J.
This is a review of a court of appeals decision[1] affirming an order of the circuit court for Wood county which dismissed the guardians' petition seeking the court's approval for their consent to the surgical sterilization of a severely retarded adult daughter.
[1]
The question in this case is whether the circuit court has jurisdiction to authorize the duly appointed guardians of an adult mentally retarded female ward to give their consent to surgical procedures which will result in *542 the permanent sterilization of the ward when such sterilization is for contraceptive and therapeutic purposes, and whether, if the court has jurisdiction, it is appropriate for the court to exercise it for this purpose. We conclude that the requested action falls within the plenary constitutional jurisdiction of the circuit court; but we also conclude that, because of the complexities of the public policy considerations involved, opportunity should be given to the legislature to conduct appropriate hearings and to undertake factfinding which could lead to the declaration of public policy and legislative guidelines for the exercise of the court's plenary jurisdiction.
Accordingly, we affirm the decision of the court of appeals which upheld the circuit court's judgment declining to permit the guardians to give consent to the ward's sterilization.
Quintin and Mary Eberhardy, as parents and guardians, petitioned the circuit court for Wood county for authority to consent to the surgical sterilization of Joan, their twenty-two-year-old mentally retarded daughter. This petition was precipitated by Joan's attendance at St. Coletta's summer camp conducted for mentally retarded persons of both sexes and of all ages. Following return from this camp, Joan missed her menstrual periods for three months. Although the record is not clear, apparently there was some reason for her parents to believe that Joan had sexual contact with a male camper. Her menses thereafter resumed, but nevertheless the Eberhardys were deeply concerned over the harmful effect that a possible pregnancy would have upon Joan's physical and mental health.
The Eberhardys received counseling from Dr. Thomas Rice of the Marshfield Clinic, and also from Dr. Louis J. Ptacek, a pediatric neurologist at the Clinic. Both of these physicians had known and treated Joan for many years. Dr. Ptacek recommended that, because of Joan's *543 developmental disability and because of her low intellectual endowment, she be sterilized by a tubal ligation procedure. Dr. Ptacek concluded that, because Joan was again intending to go to the camp, something should be done to prevent the possibility of her becoming pregnant. He felt that she would be unable to care for a child and the chances of a child being severely handicapped were considerable.[2] Nevertheless, Dr. Rice originally considered that the placement of an IUD (intrauterine device) would be appropriate, and the fitting of an IUD was contemplated and a consent was given by Mary Eberhardy for that procedure. Subsequently, Joan's mother reconsidered her decision to prevent pregnancy by having Joan use an IUD and instead sought court approval of sterilization by tubal ligation.
Dr. Rice submitted the question of the propriety of sterilizing Joan to the medical ethics committee of St. Joseph's Hospital. The ethics committee gave its approval. On June 21, 1978, the Eberhardys were appointed guardians of Joan's person and estate; and on July 27 of the same year, they petitioned the circuit court for authorization to sign a medical consent to her sterilization.
Attorney William Dehn was appointed Joan's guardian ad litem. A notice of hearing was served upon Joan personally. At the hearing, the medical record of Joan was introduced, which traced her mental and physical development from the age of two weeks until the time just prior to the hearing. So far as the medical record reveals, the first characterization of Joan as mentally retarded appears to have been when she was about six *544 years old.[3] The record also appears to indicate that in her early childhood she sat up, spoke, and walked at a normal age. An examination when she was fifteen indicated that her reading ability was comparable to the performance of a second grader, and she was able to spell at the performance level of a second or third-grade pupil. She was able to count objects correctly and to give the names of any numerals presented to her. Her addition and subtraction skills were, however, markedly below normal. Although she could respond to questions in short, well-articulated sentences, her communications skills were considered to be substantially subnormal. At the age of fifteen, the neurological evaluation characterized her as being of moderate mental retardation.
A perusal of the entire medical record might lead to the conclusion that Joan's mental ability regressed between the time of this psychological examination in 1971 and the time the petition for sterilization was heard in September of 1978. There is no doubt, from the medical record, that appropriate and careful medical and psychological testing after the age of six consistently showed her to be substantially retarded.
The evidence adduced at hearing was consistent with the medical record. Her father testified that, although Joan, now twenty-two years old, was able to feed herself, she was unable to cut her food, and she could not properly dress herself. Although she could bathe herself, she could not safely regulate the temperature of her bath. If left by herself, she was unable to find her way home. Accordingly, she was never left alone. Eberhardy stated that he had consulted with physicians and that they favored sterilization to prevent the trauma of *545 a pregnancy. He was satisfied that Joan could not care for a child, and he concluded that it would be in Joan's best interest if she were sterilized. He said he was sixty-five and that his wife was sixty-two. He said he did not know who would be able to take care of things if they were not there to attend to Joan.
Joan's mother confirmed her husband's testimony and stated that Joan had little judgmental ability, was unaware of the dangers of moving traffic, and was incapable of explaining the nature of any pain or discomfort, and concluded that this would be a problem in the event of Joan's pregnancy.
Dr. Ptacek also testified. He stated that, at the time of the hearing, Joan was physically well and moderately severely retarded. He explained this to mean that she had a mental age of two to three years and that her capabilities in the area of judgment, decision, memory, or communication were very slight. He stated that Joan had the same sexual proclivities as a normal person and possibly could become pregnant if not under total and complete supervision at all times. He said that she was an extremely lovable and happy person, was friendly, but had such extremely low mental endowments that she would not be able to resist sexual advance. He stated that she would not be able to care for herself nutritionally if she became pregnant, that labor and delivery would be physically and psychologically traumatic, and that she could not possibly care for a child adequately. He felt tubal ligation would be in Joan's best interests. He said there was no possibility of Joan's condition improving and that, in all likelihood, there would be further deterioration.
Following the hearing, the court directed that further physical and psychiatric examinations be made. Dr. Ptacek in his report reiterated the statements made at the hearing. A psychiatrist also reported that Joan was *546 retarded to the extent that she could not understand the implications of sexual behavior, that she could easily be sexually exploited, and that her pregnancy would be tragic. He found no psychiatric counter-indication to tubal ligation, and in fact would encourage it.
The attorneys for the guardian-parents urged, on the basis of the reports and facts adduced at the hearing, that the evidence showed clearly and without contradiction that sterilization was in the best interests of Joan.
The guardian ad litem in a detailed, well-reasoned report argued that the circuit court had the authority and the jurisdiction to authorize the guardian-parents to give their consent to the sterilization proceedings. He also argued that the right to bear children or not to was a fundamental civil right and that to deprive Joan of treatment necessary to her well being guaranteed to others because she was incompetent to give consent would raise a question of the denial of the equal protection of the law.
The circuit judge, however, for reasons that were not explained, concluded that the benefit to Joan that would inure from sterilization was "questionable."
As the record shows, Joan did not testify, nor is there anything in the record to show that she was ever asked or consulted about the proposed surgical procedures. The court found, however, that she would not understand the nature of the operation nor have the capacity to consent. The trial judge stated that:
"[I]f the court has the authority to authorize the sterilization . . . Joan Eberhardy, given the facts stated . . . is a proper subject for sterilization. Her inability to care for herself and the medical testimony of her inability to care for a child are sufficient to convince the court on that point."
Although the trial judge failed to use the terminology that sterilization would be in Joan's "best interests," such is the tenor of his decision. He, however, denied the *547 petition because of the total absence of any statutory authority to authorize sterilization. He observed that the only sterilization statute which had ever existed in Wisconsin authorized the sterilization of persons confined to institutions and then only following the administrative procedures by the Department of Health and Social Services. Moreover, this sole legislative sanction for sterilization had been repealed in 1977. He also concluded that the authority given to a guardian of a person "to secure necessary care, services or appropriate protective placement on behalf of the ward" (sec. 880.38 (2), Stats.) did not authorize sterilization. He did not assert that the court lacked "jurisdiction" to act, only that he found no authorization in the statutes. He emphasized that the right to bear children is a basic right, which cannot be denied without a compelling reason. He found that the statutes did not set forth any compelling reason or public policy declaration that would authorize the court to act on the petition; and, accordingly, it was dismissed.
Upon appeal by the Eberhardys as guardians, the court of appeals affirmed the order of dismissal, concluding that neither the statutes nor the constitution authorized or conferred jurisdiction upon Wisconsin courts to authorize a consent to the sterilization of incompetent persons.
Because this case is one of initial impression in this state and because of its possible potential social and legal consequences, we have granted the petition of Joan's parents and the petition of the guardian ad litem to review the decision of the court of appeals.
The trial court appeared to equate its lack of statutory authority with lack of jurisdiction, and the court of appeals specifically found that the proposed sterilization order was beyond the jurisdiction of the circuit *548 court. Accordingly, it is essential that we consider that question first.
After taking evidence and evaluating the arguments of the guardian ad litem, the trial court concluded that it was "without power to approve the operation and that there is no such power in this court." The court of appeals, in affirming the circuit court's order, expressly stated:
"[U]nless and until the legislature confers express power on Wisconsin courts to authorize the sterilization of incompetent persons under stated circumstances, the courts are without jurisdiction to consider the same." 97 Wis.2d at 668.
This view of jurisdiction, founded solely upon statutory authorization, is too narrow and does not comport with the precedents of this court. We conclude that, under the Constitution of the State of Wisconsin, the circuit court had the jurisdiction to approve of the proposed tubal ligation; and, additionally, we conclude that the statutes acknowledge the plenary jurisdiction of Wisconsin circuit courts. The Wisconsin Constitution, art. VII, sec. 8, declares:
"Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state . . . ."
[2]
This grant of jurisdiction is extremely broad. In State ex rel. Attorney General v. Portage City Water Co., 107 Wis. 441, 447, 83 N.W. 697 (1900), this court said:
"The scope of this general grant of authority was said in Putnam v. Sweet, 2 Pin. 302, and also in Att'y Gen. v. Railroad Cos., 35 Wis. 531, to include greater power than was probably ever before, in a free government, delegated to any one tribunal, the united powers of the English kings bench, common pleas, exchequer, *549 and chancery." See also State ex rel. Pierce v. Kundert, 4 Wis.2d 392, 394, 90 N.W.2d 628 (1958).
Justice Roujet D. Marshall in his monumental opinion, Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909 (1904), said:
". . . standing where we will and looking where we may, judicial power is present to prevent and redress wrongs. We take a view to the very horizon of our mental perception within the scope of human capacity to violate obligations other than those of a purely moral nature, and the jurisdiction of our circuit courts, except as specially restricted by statute within legislative power to do so or by the constitution itself those exceptions not, however, affecting the matter in hand is found to occupy the whole field with instrumentalities designed, and as well adapted as human wisdom has been capable of making them, to execute its function to completeness . . . . How vast that is in its chancery field can best be appreciated by applying thereto the standard of measurement which the distinguished men who have been significant in the development of our system have taught us must be used to span it: `Equity will not suffer a wrong to go without a remedy.' . . .
"In the foregoing the term `jurisdiction' is used in its broad, general sense, that of judicial power. A court may have jurisdiction of a particular subject matter, but by settled judicial policy ought not to exercise it. . . .
". . .
"The circuit courts of this state have, under the constitution, succeeded to all the jurisdiction formerly exercised by courts of law and courts of chancery as well . . . ." pp. 227-31)
[3]
The circuit courts of Wisconsin are constitutional courts and, unlike special courts which may be created from time to time by the legislature, under art. VII, sec. 2, are courts of plenary jurisdiction. They "do not depend solely upon statute for their powers." Stevenson v. Milwaukee County, 140 Wis. 14, 17, 121 N.W. 654 *550 (1907). Unlike the relationship between the Congress and the federal courts, under which the Congress may grant or withhold jurisdiction as it pleases, in Wisconsin the jurisdiction and the power of the circuit court is conferred not by act of the legislature, but by the Constitution itself. Jelke Co. v. Beck, 208 Wis. 650, 660, 242 N.W. 576 (1932). Circuit court jurisdiction is general and extends to all matters civil and criminal. Mack v. State, 93 Wis.2d 287, 294, 286 N.W.2d 563 (1980); State ex rel. First National Bank v. M & I People's Bank of Coloma, 95 Wis.2d 303, 308 n. 4, 290 N.W.2d 321 (1980).
[4, 5]
The language of art. VII, sec. 8, as it now appears in the constitution is that adopted by the amendment of April 1977. That language provides that the jurisdiction of the circuit court shall extend to all matters within the state "[e]xcept as otherwise provided by law." Prior to that amendment, the limitation granted jurisdiction "not excepted in this constitution, and not hereafter prohibited by law." This change, however, is not substantive. It has previously been pointed out that this language only allows for a legislative reallocation of jurisdiction from the circuit court to another court. It does not permit the legislature to divest the constitutional grant of jurisdiction from the unified court system; and under the unified system created by the amendment of 1977, original jurisdiction is vested wholly in the circuit court.[4] Under the superintending powers of the supreme court, the practical exercise of that power may be allocated to different branches of the circuit court. This allocation, however, does not affect the jurisdiction of any of the circuit courts. The legislative allocation of jurisdiction under the constitution as it existed *551 prior to 1977 was discussed in Hallows & DeWitt, The Need for Court Organization, 1954 Wis. Law Rev. 377, 387 n. 54. It was pointed out therein that the legislative authority to reallocate judicial power and to transfer it from one court to another could not abrogate the court system's powers. Rather, as was said in State v. Wimberly, 55 Wis.2d 437, 441, 198 N.W.2d 360 (1972), quoting Callanan v. Judd, 23 Wis. 343 (1868), the language was designed:
". . . to enable the legislature to distribute the jurisdiction in both matters at law and in equity, as between the circuit courts and the other courts in the state . . . ."
[6]
Because the jurisdiction conferred by the constitution in 1977 upon circuit courts is plenary in respect to all matters at law or in chancery, jurisdiction, in the sense of judicial power to act, is not dependent upon legislative authorization.[5] Circuit courts of the State of Wisconsin have the constitutional jurisdiction to consider and rule on petitions for sterilization of incompetents.
The State of Washington recently confronted a similar problem, In the Matter of the Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635 (1980). The State of Washington's constitution, like Wisconsin's, grants original jurisdiction to its trial courts in all cases in which the jurisdiction is not vested by the constitution in some other court. There is no legislative authorization for the trial courts of Washington to entertain and rule on petitions for sterilization of incompetents. Nevertheless, the Supreme Court of Washington held:
*552 "Under this broad grant of jurisdiction the superior court may entertain and act upon a petition from the parent or guardian of a mentally incompetent person for a medical procedure such as sterilization. No statutory authorization is required. . . .
"We therefore hold that Washington Const. art. 4, sec. 6 gives the superior courts of this state the jurisdiction to entertain and act upon a request for an order authorizing sterilization of a mentally incompetent person." Hayes, supra, 608 P.2d at 638-39.
The Wisconsin statutes specifically acknowledge the broad constitutional grant of jurisdiction to the Wisconsin court system. Although sec. 801.04, Stats., recites that a court may entertain a civil action only when it has the power to hear the kind of action brought, it refers to this power as "jurisdiction of the subject matter" and further recites:
"Jurisdiction of the subject matter is conferred by the constitution and statutes of this state and by statutes of the United States . . . ."
It is apparent, therefore, that the legislature has specifically acknowledged the grant of subject matter jurisdiction to the Wisconsin courts by the Constitution. The general jurisdictional statute referring to circuit courts, sec. 753.03, Stats., recognizes the allocative powers of the legislature to distribute constitutionally granted jurisdiction to various courts of the state, but acknowledges, "The circuit courts have the general jurisdiction prescribed for them by the constitution . . ." That section further provides that:
"The circuit courts have power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court; and they have all the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration *553 of justice . . . subject to review by the court of appeals or the supreme court as provided by law."
It is thus apparent that the legislature by this statute has given express and broad recognition to the fact that the basis of circuit court jurisdiction is constitutional; and, because the circuit court is the only trial court recognized by the constitution, its jurisdiction is all-encompassing, subject only to the appellate and supervisory powers reserved by the constitution to the court of appeals and the supreme court. We have previously described this statute as the legislative acknowledgment of the broad constitutional jurisdiction of the circuit court. See State ex rel. Di Salvo v. Washington County Court, 79 Wis.2d 27, 37, 255 N.W.2d 459 (1977).
The recent United States Supreme Court case of Stump v. Sparkman, 435 U.S. 349 (1978), reh. den. 436 U.S. 951 (1978), dealt with the question of whether an Indiana judge was immune from damages under the Federal Civil Rights Act in a suit brought by a retarded woman whose sterilization the judge had ordered upon a mother's petition when the plaintiff was a minor. The United States Supreme Court held that the judge was immune from liability. It did so on the basis of an Indiana statute similar to sec. 753.03, Stats., which conferred upon the Indiana circuit court original jurisdiction "in all cases at law and in equity whatsoever." (p. 357)
While the Sparkman record is replete with evidence of abuse of power by the judge of the Indiana court because no notice had been given to the minor and, in fact, it reveals that she was fraudulently induced to undergo the sterilization when it was represented to her that she was to have an appendectomy, the Supreme Court's decision clearly stands for the proposition that a state trial court which is vested with statutory jurisdiction "in all cases *554 at law and in equity" acts within its jurisdiction when it orders the sterilization. It is noteworthy, moreover, that jurisdiction in Sparkman was upheld although the only statutory reference to sterilization was in respect to the sterilization of institutionalized persons under special circumstances, and although the Supreme Court concluded that the Indiana court acted erroneously in ordering the sterilization and in its failure to require minimum standards of fairness and due process.
As the court of appeals appropriately recognized, Sparkman is not controlling on Wisconsin courts, because the issue in Sparkman was judicial immunity, where for policy reasons a judge's authority traditionally has been construed broadly. Also, the United States Supreme Court's interpretation of another state's law does not bind this court in respect to interpreting its own law. Nevertheless, the essential reasoning of the United States Supreme Court that a broad statutory grant of jurisdiction is sufficient to support jurisdiction to consider sterilization petitions is persuasive. In Wisconsin there is, in addition to and even more fundamental than the broad statutory acknowledgment of circuit court jurisdiction, the express and plenary grant of jurisdiction by the constitution.
The Supreme Court in Sparkman also considered the question whether the express statutory authorization for the sterilization of certain institutionalized persons was tantamount to a legislative restriction or a definition of the limits on the otherwise full grant of jurisdiction conferred elsewhere in the Indiana statutes. It held it was not.
A similar issue is posed in the instant case and arises out of heretofore existing statutory policy authorizing the sterilization of some of the institutionalized mentally retarded. The Wisconsin statute was originally enacted as ch. 693 of the Laws of 1913, and (after being *555 renumbered to sec. 46.12, Stats., by ch. 328, sec. 19, Laws of 1919) it remained a part of the Wisconsin statutory law, largely unchanged, until repealed by ch. 428, sec. 4, Laws of 1977.[6] As an argument against the authority of the Wisconsin circuit court to permit a consent to the sterilization of an incompetent, it is urged that the Wisconsin statute passed in 1913 constituted a public-policy declaration that certain types of persons could be ordered sterilized and that, when that statute was repealed *556 in 1977, the proper interpretation to be placed upon that repealer was that it was a public-policy declaration that no persons were to be sterilized.
The history of the 1913 legislation on the question of sterilization leads us to the conclusion that it is irrelevant to the problem posed by this case. The 1913 statute came as a consequence of a flurry of academic and social activity founded upon the theory that problems which society had with the mentally ill, the retarded, the epileptic, the criminal, and the pauper could be eliminated by the sterilization of persons so characterized.
A reading of the literature advocating such eugenic sterilization indicates that it was founded upon the rearticulation of the Mendelian theories of inheritance, coupled with the development of simple, surgical techniques for sterilization. See, e.g., Ferster, Eliminating the Unfit Is Sterilization the Answer? 27 Ohio St. L. J. 591, 591-94 (1966). During this period, well informed, humane, and progressive social reformers advocated eugenic sterilization in such laudatory terms that it was conceived by many to be a panacea for most of the troubles that had been created by "misfits" in our society. This is not an appropriate place to evaluate the correctness of those theories, nor is a court a properly equipped forum either from the viewpoint of scientific expertise or complete awareness of public-policy considerations to make such an evaluation. Suffice it to say, the initial enthusiasm for laws requiring eugenic sterilization has waned, and many of them have been repealed.
The Wisconsin law as enacted in 1913 related "to the prevention of criminality, insanity, feeble-mindedness and epilepsy."[7] The provision, as it appeared in the statutes, *557 bore the less grandiose title of "Sterilization of defectives." Sec. 46.12, Stats. 1975. The 1913 statute applied only to criminal, insane, feeble-minded, and epileptic persons who were confined to a public institution; and, even though there were large numbers of noninstitutionalized persons who fitted into the categories which were subject to sterilization, the law was not applicable to them.
It is noteworthy also that the legislative authorization was given to the State Board of Control (later the Department of Health and Social Services), which was given the power to appoint a surgeon and an alienist to periodically examine institutionalized persons. Under the law, if there were unanimous agreement by the examining physicians and the superintendent of the inmate's institution, the State Board of Control could order an operation for the prevention of procreation.
From the time of its enactment in 1913 to the time of its repeal in 1977, the statute remained virtually unchanged. However, epileptics were deleted from the sweep of the statute by chs. 457 and 534 of the Laws of 1955. The Wisconsin eugenic sterilization statute was one of the first enacted, but because of questions in respect to the constitutionality of compulsory sterilization statutes, many state legislatures withheld their approval until the landmark case of Buck v. Bell, 274 U.S. 200 (1927). In that opinion, Justice Holmes stated:
"We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad *558 enough to cover cutting the Fallopian tubes. . . . Three generations of imbeciles are enough." (p. 207)[8]
Within ten years of Buck v. Bell, 20 states passed eugenic sterilization statutes. Buck v. Bell represented the high point of enthusiasm for eugenic sterilization.
Both the scientific validity of eugenic sterilization and the constitutionality of such laws have been called into question in recent years. The scientific aspects are discussed generally in Ferster, Eliminating the Unfit Is Sterilization the Answer? 27 Ohio St. L. J. 591, 602-04; Bligh, Sterilization and Mental Retardation, 51 A.B.A. Journal 1059 (1965); and Note, Eugenic Sterilization a Scientific Analysis, 46 Denver L. J. 631 (1969). And from a constitutional viewpoint, in 1942, in Skinner v. Oklahoma, 316 U.S. 535 (1942), the United States Supreme Court recognized procreative decisional choices as being encompassed within a fundamental constitutional right. See also Developments in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1159, 1296-1308 (1980); Comment, Eugenic Sterilization Statutes: A Constitutional Re-Evaluation, 14 J. Fam. L. 280 (1975).
It should be emphasized, however, that the sterilization sought by the Eberhardys for their daughter, Joan, was not for eugenic purposes, but was rather for contraceptive and therapeutic purposes to protect the physical and mental well being of Joan. The only reference to the question of hereditary defectives in the record is the statement of Dr. Ptacek that there was a 25 percent chance that any child of Joan's would be mentally retarded.[9]*559 This statement, however, is irrelevant, because there was no assertion the purpose of the proposed sterilization was to avoid the birth of a defective child. It was sought only to accommodate the best interests of Joan herself, and no societal benefits were urged.
The only public-policy meaning that can be ascribed to the repeal of the eugenic sterilization law passed in 1913 is immaterial to Joan's situation. All that can be concluded from its repeal is that the legislature became disenchanted with either the efficacy of eugenic sterilization of institutionalized persons or became concerned with the constitutionality of mandatory sterilization without due-process procedures and the consent of the person to be sterilized.[10]
*560 The 1913 legislation was, moreover, a grant of power to a state administrative agency, the Board of Control. It did not purport to either limit, expand, or re-allocate a circuit court's common law jurisdiction. The repeal of the statute left court jurisdiction untouched. It withdrew from an administrative agency the power previously conferred.
[7]
The repeal of the mandatory eugenic sterilization law is irrelevant to public policy or the court's jurisdiction in respect to nonmandatory therapeutic or contraceptive sterilization procedures of uninstitutionalized incompetent persons. We conclude, therefore, that the legislative history of the 1913 sterilization law neither sanctions nor precludes sterilization under the circumstances posed in this case.[11]
Our history shows that the Attorney General, in formal opinions during the life of the eugenic sterilization *561 law, ruled frequently on the question of whether voluntary and consented-to therapeutic or contraceptive sterilizations could be performed without violating the laws of criminal mayhem. Originally the Attorney General ruled that sterilizations performed on noninstitutionalized incompetent persons under the administrative authority of the superintendent of the Wisconsin State Hospital would violate the criminal laws. 17 Op. Atty. Gen. 524 (1928). The attorney general handed down a similarly restrictive ruling in 1932 in 21 Op. Atty. Gen. 940 (1932), stating that a competent adult's purported consent to contraceptive sterilization might not immunize the performing physician from criminal liability. However, six years later, the attorney general, in a formal opinion, concluded that a voluntary vasectomy of a competent noninstitutionalized person when such vasectomy was necessary to preserve health would not constitute criminal mayhem. 27 Op. Atty. Gen. 416 (1938), and in 1968, in 57 Op. Atty. Gen. 191, the attorney general concluded that a contraceptive sterilization performed by a physician at a voluntary and rational request of a patient did not constitute mayhem or any other crime.
Thus, by 1968, it had been determined by the Attorney General that neither therapeutic nor contraceptive sterilizations when voluntarily consented to implicated any aspect of the criminal law. They were personal decisional choices.
Although this court has never had occasion to rule on the subjects decided by the Attorney General, the position of that office is consistent with that of the United States Supreme Court in its recognition of the fundamental decisional right of a citizen to procreate or not. Skinner v. Oklahoma, supra, struck down an Oklahoma statute on equal-protection grounds, because it authorized the sterilization of some criminals but not other criminals. Justice Douglas, speaking for the court in that case, said, "Marriage and procreation are fundamental *562 to the very existence and survival of the race." 316 U.S. at 541.
Later, in Griswold v. Connecticut, 381 U.S. 479 (1965), the court struck down a Connecticut statute which criminalized the use of contraceptives. This law was challenged by a married couple, and the court held that the Connecticut statute infringed the fundamental right of marital privacy. In 1972, in Eisenstadt v. Baird, 405 U.S. 438 (1972), it was held that the rationale of Griswold extended to unmarried persons and that contrary state laws violated equal protection guarantees. The court held:
"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (p. 453)
In Carey v. Population Services International, 431 U.S. 678 (1977), Justice Brennan, again invoking the right of personal privacy without unjustified governmental interference, stated:
"The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. . . . regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests." (pp. 685-86)
What emerges from these cases is consistent with the opinions of the Wisconsin Attorney General that sterilization implicates a protected personal procreative decisional choice.
While the United States Supreme Court has never specifically addressed sterilization except in equal-protection terms, the rationale of the cases referred to and the conclusion that the right to procreate or to prevent *563 procreation is a protected, fundamental personal decisional choice appears to be clearly relevant to the case before us.[12] Starting with the explicit ruling of the Attorney General of the State of Wisconsin that no criminal law of the State of Wisconsin is violated and the implicit assumption of the United States Supreme Court that sterilization sought by a competent person for a therapeutic or contraceptive purpose is probably within the ambit of a protected constitutional right when the subject can give a voluntary and informed consent, the question posed is whether this court has a constitutional duty to authorize a guardian of an incompetent to consent to the sterilization of the incompetent when sterilization is for a therapeutic or contraceptive purpose and is in the best interests of the ward. If a competent person has the right to sterilization, can that right be withheld from an incompetent?
The New Jersey Supreme Court very recently answered "no" to that question. In re Grady, 85 N.J. 235, 426 A.2d 467 (1981). In reaching that conclusion, the New Jersey Supreme Court considered the requested sterilization of a nineteen-year-old mentally-impaired woman seriously afflicted with Down's Syndrome. The facts considered by the New Jersey court are strikingly similar to those presented in the Wisconsin circuit court in regard to Joan. The New Jersey court stated:
"Lee Ann Grady has the same constitutional right of privacy as anyone else to choose whether or not to undergo sterilization. Unfortunately, she lacks the ability to make that choice for herself. We do not pretend that the choice of her parents, her guardian ad litem, or a *564 court is her own choice. But it is a genuine choice nevertheless one designed to further the same interests she might pursue had she the ability to decide herself." 426 A.2d at 480.
The jurisprudential background upon which the New Jersey court decided Grady is substantially different than that in which we view the present case. Although the New Jersey court went through a careful analysis to determine whether the sterilization of Lee Ann Grady was in her best interests, its decision was substantially based upon the case of In re Quinlan, 70 N.J. 10, 355 A. 2d 647, cert. den. 429 U.S. 922 (1976), decided five years earlier. In Quinlan, the New Jersey court authorized the substituted consent by the parents of a comatose twenty-two-year-old woman to discontinue use of extraordinary artificial life support apparatus. In Grady, referring to Quinlan, the New Jersey court said:
"We exercised our equitable powers there although we believed that our decision would probably lead to the natural death of the patient. Our decision took into consideration the interests of the public and the belief of our society in the supreme value of life. We were well aware of the risks of exercising powers directly affecting the opportunity of another human to live or die. But ultimately we decided that the patient's constitutional right of privacy outweighed the public interest in preserving her life and presented a compelling case for judicial intervention. Similar compelling considerations exist in the present case [for the sterilization of Lee Ann Grady]." 426 A.2d at 480.
Having made the decision in Quinlan to allow the woman in that case to "choose" to die as the exercise of her right of privacy, it was a short leap indeed for the New Jersey Supreme Court to authorize the sterilization of Lee Ann Grady on the same constitutional ground. Our jurisprudence, however, reveals a substantial void *565 in respect to cases of this kind.[13] We do not fault the New Jersey court for either of its decisions on either humanitarian or jurisprudential grounds. Both opinions are carefully reasoned and are rationally justifiable. But we find it somewhat too facile when discussing the right of privacy, which by definition necessarily refers to the person involved, to find that there is a genuine *566 choice when that choice cannot be personally exercisable. It is indeed true that in Grady there was a decision, but it was not the decision of Lee Ann Grady pursuant to her right of privacy. We believe it somewhat inconsistent for the New Jersey court to equate in a single breath "the choice made in her behalf" and "providing her with a choice." 426 A.2d at 481.
The fault we find in the New Jersey case is the ratio decidendi of first concluding, correctly we believe, that the right to sterilization is a personal choice, but then equating a decision made by others with the choice of the person to be sterilized. It clearly is not a personal choice, and no amount of legal legerdemain can make it so. That, however, does not mean we conclude that, in either the circumstances presented in Grady or presented in this case involving Joan Eberhardy, there cannot be some well thought out procedure by which the decision to sterilize can be made and implemented.
We conclude that the question is not choice because it is sophistry to refer to it as such, but rather the question is whether there is a method by which others, acting in behalf of the person's best interests and in the interests, such as they may be, of the state, can exercise the decision. Any governmentally sanctioned (or ordered) procedure to sterilize a person who is incapable of giving consent must be denominated for what it is, that is, the state's intrusion into the determination of whether or not a person who makes no choice shall be allowed to procreate. The public policy of the state is inevitably involved. If this court were to conclude that, under the facts of this case, Joan Eberhardy should be sterilized, we would be deciding more than the best interests of a particular person in a particular situation. We would be deciding that it is appropriate and not contrary to public policy to order the sterilization of a person when a court decides it is in the best interests of that person to do so.
*567 This case was taken on review for the specific purpose of determining whether the courts of Wisconsin had jurisdiction to authorize sterilizations of incompetents who could not give their consent. But our conclusion that the circuit court has jurisdiction is not dispositive of whether that jurisdiction should be exercised in the unguided discretion of the judge. As Justice Marshall said in Harrigan v. Gilchrist, supra, 121 Wis. at 227-28, "A court may have jurisdiction of a particular subject matter, but by settled judicial policy ought not to exercise it."
Under the present state of the law, the only guideline available to circuit courts faced with this problem appears to be the "best interests" of the person to be sterilized. This is a test that has been used for a number of years in this jurisdiction and elsewhere in the determination of the custody of children and their placement in some circumstances placement in a controlled environment. See, e.g., sec. 48.01(2), Stats. No one who has dealt with this standard has expressed complete satisfaction with it.[14] It is not an objective test, and it is not intended to be. The substantial workability of the test rests upon the informed factfinding and the wise exercise of discretion by trial courts engendered by long experience with the standard. Importantly, however, most determinations made in the best interests of a child or of an incompetent person are not irreversible; and although a wrong decision may be damaging indeed, there is an opportunity for a certain amount of empiricism in the correction of errors of discretion. Errors of judgment or revisions of decisions by courts and social workers can, in part at least, be rectified when new facts or second thoughts prevail. And, of course, alleged errors of discretion in exercising the "best interest" standard are subject to appellate review. Sterilization as it *568 is now understood by medical science is, however, substantially irreversible. A recent report stated:
"Though it is now possible to `reverse' (surgically restore continuity in) as many as 70% of vasectomies and 30% of tubal ligations, whether full-term pregnancy will routinely result from such restorations remains to be documented. In other words, persons undergoing these procedures should regard them as being permanent and should not expect reversibility." G. T. Johnson and S. E. Goldfinger, The Harvard Medical School Health Letter Book 188 (1981).
A similar conclusion is reached by R. Shane and C. Powerstein in Fertility Control, Biologic and Behavioral Aspects 115 (1980).
Thus, the tubal ligation of Joan Eberhardy or any other woman pursuant to an order in the exercise of judicial discretion must be considered irreversible. The judicial process could afford no method for correcting an error in the exercise of this discretion. The vague, although frequently useful, "best interest" analysis appears to be inadequate unless there is an authoritative declaration of public policy to guide the exercise of that irreversible discretionary act.[15]
*569 In the instant case, scant consideration was given to the possibilities of contraception by means short of sterilization. Although the medical records show that the placement of an IUD was considered, the court record fails to show whether or not this method of contraception was practicable under the circumstances. Moreover, recent publications indicate continued research in contraceptive technology. The possibility that some new or improved method, perhaps suitable for use by retarded persons, might shortly become available without the drawbacks of irreversibility, militates for restraint. See Journal of the American Medical Association, April 25, 1980, Vol. 243, No. 16, p. 1617. Such alternative less intrusive methods of alleviating Joan's plight might, as a matter of public policy, require exploration in depth before the alternative of sterilization is ordered.
What these facts demonstrate is that courts, even by taking judicial notice of medical treatises, know very little of the techniques or efficacy of contraceptive methods or of thwarting the ability to procreate by methods short of sterilization. While courts are always dependent upon the opinions of expert witnesses, it would appear that the exercise of judicial discretion unguided by well thought-out policy determinations reflecting the interest of society, as well as of the person to be sterilized, are hazardous indeed. Moreover, all seriously mentally retarded persons may not ipso facto be incapable of giving birth without serious trauma, and some may be good parents. Also, there has been a discernible and laudable tendency to "mainstream" the developmentally disabled and retarded. A properly thought out public policy on sterilization or alternative contraceptive methods could well facilitate the entry of these persons into a more nearly normal relationship with society. But again this is a problem that ought to be addressed by the legislature on the basis of factfinding and the opinions of experts.
*570 Court cases, at least until their precedential effects are felt by the public, are little noticed, even by those who are potentially concerned. Although the case of Joan Eberhardy ran the gamut of three levels of court proceedings, none of the numerous groups that represent the interests of retarded or incompetent persons appeared or filed amicus briefs to assist the court. Although the record was well handled by the trial court, and the guardian ad litem and the attorney for the guardians gave cogent reasons why sterilization should be allowed, no one played the "devil's advocate" to inform the court why sterilization might be improper in respect to Joan Eberhardy and, particularly, in respect to retarded persons generally, or at least in respect to some who fall within that class.
This case demonstrates that a court is not an appropriate forum for making policy in such a sensitive area. Moreover, irrespective of how well tried a case may be and we consider the instant one to have been well presented and carefully considered there are inherent limitations in the factual posture of any case which make the extrapolation of judicially made policy to an entire area of such a sensitive nature as this risky indeed. The legislature is far better able, by the hearing process, to consider a broad range of possible factual situations.[16] It can marshal informed persons to give an in-depth study to the entire problem and can secure the advice of *571 experts in the field of psychology, psychiatry, sociology, and medicine, as well as in the field of law, to explore the ramifications of the adoption of a general public policy which will give specific imprimatur to the courts to order sterilization in well defined circumstances.
Justice Frankfurter in Sherrer v. Sherrer, 334 U.S. 343, 365 (1948) (dissenting opinion), said:
"Courts are not equipped to pursue the paths for discovering wise policy. A court is confined within the bounds of a particular record, and it cannot even shape the record. Only fragments of a social problem are seen through the narrow windows of a litigation. Had we innate or acquired understanding of a social problem in its entirety, we would not have at our disposal adequate means for constructive solution. The answer to so tangled a problem . . . is not to be achieved by . . . judicial resources . . ."
As stated before, the question before this court is not one of power. Rather, it is the prudential use of power the exercise of judicial restraint. Although Benjamin Cardozo was considered a judicial activist and believed it important for courts to blaze trails where necessary to protect human rights, nevertheless he said:
"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to `the primordial necessity of order in the social life.' Wide enough in all conscience is the field of discretion that remains." Cardozo, The Method of Sociology. The Judge as a Legislator, The Nature of the Judicial Process, p. 141.
Elsewhere in the same essay, he said, speaking of judges:
*572 "They have the power, though not the right, to travel beyond the walls of the interstices [of statutes], the bounds set to judicial innovation by precedent and custom." Id. at 129.
Having said that prudence counsels caution in the exercise of unquestioned jurisdiction in this troublesome area, the question remains whether a court, which has the obligations under a constitution which mandates the personal right to free choice of whether to procreate or not and which requires equal protection, can properly decline to exercise its jurisdiction. We believe it can and should.
We are dealing with a special class of persons the severely mentally retarded who cannot, on an informed and voluntary basis, give their consent to an irreversible procedure. And the irrevocability of sterilization in itself places it in a different classification from usual situations where the United States Supreme Court has considered the choice to procreate or not. The choices thus far considered by the Supreme Court are not irreversible, for they involve only a decision affecting a present choice. They do not preclude a different choice at a later time. Sterilization does. The question is, therefore, one of both substantive due process and of classification.
The United States Supreme Court has recognized that, although in many areas minors have the same constitutional rights as adults, because they are a class of special concern to the state, the uninhibited exercise of those rights may be hedged about with restrictions that reflect the public policy of protecting persons of a distinct class. For example, the United States Supreme Court in Bellotti v. Baird, 443 U.S. 622 (1979), recognized that the decisional choice of abortion which it had previously recognized for adults (and had held that, as to *573 minors, the choice could not be flatly proscribed by an absolute state or third-party veto, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)) could nonetheless be circumscribed by appropriate action requiring a special showing of maturity or "best interests" to make such an important decision without parental involvement, and that such a requirement could be imposed by legislative action. It has also been made clear that a state may constitutionally require a physician to notify, if possible, an unemancipated, dependent, and non-mature minor's parents before consenting to perform an abortion. H. L. v. Matheson, ___ U.S. ___, 101 S. Ct. 1164, 67 L. Ed. 2d 388 (1981). Such a law serves, among other state interests, the "important" one of "protecting adolescents."
The mentally retarded, like minors, would appear to fall within a class subject to the special protections of the state. Many (though doubtless, not all) of the mentally retarded are not competent to exercise a free choice. While the Constitution would generally mandate a free choice for sui juris adults, a free choice is an empty option for those who cannot exercise it. Moreover, it is by no means certain who should speak for the best interests of the retarded, and those who purport to may have conflicting interests which may well skew the decisions of even the best intentioned. Those who normally would speak for the incompetent parents, guardians, or even social workers may in actuality speak, consciously or unconsciously, in their own interests: Diminished worry, convenience, a wish to be relieved of responsibility for close supervision, or frustration at their inability to deal with a most difficult problem. These very considerations may be, indeed, in the interests of the incompetent, but are not necessarily so. See Meisel, The "Exceptions" to the Informed Consent Doctrine: Striking a Balance Between Competing Values in *574 Medical Decisionmaking, 1979 Wis. L. Rev. 413, 473, 478-81.
[8]
It is clear then that incompetents must be considered, for the purpose of sterilization, a distinct class to whom the state owes a special concern. The state's interest in affording them protection is great indeed.[17] Because of this special interest and the factor of irreversibility, it is necessary that standards of statewide application reflective of public policy as to both individual and societal interests be adopted. In cases considering sterilization there is little leeway for the development of common law standards based upon the usual judicial procedure of incrementally and eventually developing what is appropriate as a statewide standard. Such an approach would no doubt be even more violative of the interests of incompetents than to set guidelines for discretion based on *575 judicial fiat which, as we have pointed out, would be based on too narrow an opportunity to appreciate the broad social implications of the consequences of sterilization.
Restraint is appropriate even in the instant case. While the record amply demonstrates the undesirable consequences of Joan's pregnancy, this consequence is contingent, not certain. The inevitability of the consequences of not acting judicially in this case does not approach the degree that might force a choice if the question were one of invoking state power to order treatment for one who would die without it. The problem of Joan's pregnancy is at the most a probability, while state action to authorize sterilization constitutes an irreversible certainty. It would permanently and irrevocably deprive Joan of her procreative capability. If we view the record most favorably to the relief sought, it is apparent that, for Joan, sterilization would not, in all probability, constitute a burden in fact. But as a matter of law in a situation such as this, a greater burden is inflicted by a judicial decision to act than a decision to withhold action for the present. We would recoil from a generalized rule of law that it is in the best interests of any mentally incompetent to be sterilized. Because we speak precedentially for the entire state, a decision of this court to authorize consent to sterilization is likely to be taken as an enunciation of a generalized rule: It is within the discretion of the trial judge to order sterilization if there is a finding that it is in the best interests of the incompetent. Alternatively, we could establish guidelines that are so restrictive as to substantially eliminate the right of sterilization in most cases, even where appropriate, or guidelines that would be so generalized that they would not reflect adequately social and medical knowledge, and would not reflect a considered and well defined public policy. We reject these alternatives.
*576 [9]
We accordingly conclude that it would be inappropriate to either permit the sterilization of Joan Eberhardy where there has been no determination by the legislature of the state's public policy defining what is in Joan's (and others') best interests, or to attempt to set forth at length guidelines when we know that a court is not the preferred branch of government to enunciate general rules of public policy. This task should initially be the legislature's.
We have frequently recognized that we may have jurisdiction to act but nevertheless refrain from doing so. Recently, in Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974), we concluded that, as a result of our common law and constitutional authority, we could probably recognize the tort of wrongful birth, but we said in deciding to not recognize the tort:
"[It] would have vast social ramifications and the creation of such a cause of action is the type of public policy decision that should be made by the people of this state or their elected legislative representatives." (pp. 317-18)
Even in respect to a modification of the rules of comparative negligence, this court refrained from exercising its clear common law authority in order to give the legislature an opportunity to consider the problem. Reiter v. Dyken, 95 Wis.2d 461, 290 N.W.2d 510 (1980); Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Const. Corp., 96 Wis.2d 314, 291 N.W.2d 825 (1980).
The social and personal ramifications of authorizing judicial approval of sterilization of incompetents would appear to be considerably more "vast" and sensitive than the recognition of a new tort.
Some state supreme courts have promulgated standards to be used by trial courts in considering petitions for the sterilization of incompetents. In re Grady, 85 *577 N.J. 235, 426 A.2d 467 (1981); Matter of Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635, 639-42 (1980); In re Penny N., 414 A.2d 541 (N.H. 1980). These guidelines appear to be useful aids to the exercise of judicial discretion, but they reflect, accurately, we assume, the public policy of those states and not of Wisconsin. As we pointed out in discussing Grady, supra, the New Jersey Supreme Court, wrote not on a clean slate, as we would be required to do, but after considerable experience with similar problems.
Although the courts of this state have plenary jurisdiction, prudence requires that we refuse to permit its exercise in this case.
The point was well expressed in dissent by Justice Stafford of the Washington Supreme Court in Guardianship of Hayes, supra, a case which authorized state courts to consent to the performance of sterilization of incompetents. He said:
"Possession of such power, however, neither requires that it be exercised nor necessarily supports the wisdom of its exercise under all circumstances.
"In this case we are concerned with the permanent and irreversible loss of a fundamental personal right. Those who seek to invade this right do so in the name of `social need', `social good' and even `personal well-being' . . . . In my view, however, there are not only deep-seated medical, sociological, personal and legal issues, but a fundamental issue of public policy involved. What power, then, should society have in this regard; what personal rights should be protected from society; to what extent should they be protected; and in what manner?
"It seems to me that having clearly declared the judiciary's power to act, wisdom dictates we should defer articulation of this complex public policy to the legislature. Such deferral, done with a clear declaration of judicial power, is not an abdication of that power. Rather, it is a recognition that the declared power can be rationally coupled with a conscious choice not to exercise it."
*578 [10]
Because we conclude it inappropriate under the present circumstances for circuit courts to exercise their jurisdiction, we direct them, pursuant to our supervisory authority, to refrain from ordering the sterilization of incompetents or of others who are unable to give an informed and voluntary consent to the procedure.
Because we so direct, however, it should not be concluded that this court abrogates its own authority and jurisdiction to act on this subject at a future time if it becomes apparent that the legislature is unable or unwilling to act. Unlike sterilization procedures, our decisions are reversible. In an appropriate case at an appropriate time, this court, if it becomes necessary, could permit the invocation of its original jurisdiction for the further consideration and resolution of this problem. Although the judicial system is not well adapted to the task of examining and evaluating social and medical facts from the viewpoint of public policy, it occasionally becomes necessary to do so. It is not powerless in that respect. By remand to a referee for factfinding, by the process of taking judicial notice of important facts of a legislative nature, and by the exercise of its own discretion (or referral to a trial court for such exercise, which could then be scrutinized on appellate review), the problem posed in this case could be addressed.
The preferred forum, however, is the legislature, and it is there that the public policy issues which arise in a case of this nature should be determined.
We hold that the circuit courts of the State of Wisconsin have constitutional and statutory jurisdiction to consider and decide petitions seeking court authorization for a guardian to give consent to the sterilization of an incompetent ward; but pursuant to our supervisory authority we direct such jurisdiction shall not be exercised *579 until the state's policy to do so is set forth by appropriate legislation or until further order of this court.
By the Court. Decision affirmed.
COFFEY, J. (concurring).
An attack on an opinion as comprehensive and well-written as that of the majority should not be lightly undertaken. Nevertheless, I am compelled to write separately because I disagree with several assertions as to the power of circuit courts under the Wisconsin constitution. The circuit court dismissed the petition in this case on the ground that authority to order or approve the sterilization of an incompetent could not be exercised unless granted by statute. The court of appeals, in a well-reasoned opinion, affirmed. The majority states that the jurisdictional view of the circuit court and the court of appeals, being founded solely upon statutory authorization, "is too narrow and does not comport with the precedents of this court." Supra, p. 548. I believe it is the opinion of the majority which does not comport with our precedents.
I disagree with the holding of the majority that the jurisdiction of the circuit court to order sterilization of an incompetent need not be conferred by the legislature because it exists under the Wisconsin constitution. I do not question that the constitution grants jurisdiction to the circuit court in civil cases as that jurisdiction was exercised by courts at law or in equity at the time the constitution was adopted. However, the courts of law and equity did not exercise power over all legal relationships. In Adoption of Tschudy, 267 Wis. 272, 65 N.W.2d 17 (1954), the court stated:
"Although adoption is a practice of very great antiquity, it was not known in the common law of England and it exists in the United States only by virtue of statutes. . . . In Wisconsin, adoption proceedings are statutory. [Citations omitted]." Id. at 281.
*580 In In re Grbic, 170 Wis. 201, 174 N.W. 546 (1919), the court quoted the following statement from Barker v. Dayton, 28 Wis. 367 (1871):
"It is an undoubted general principle of the law of divorce in this country, that the courts, either of law or equity, possess no powers except such as are conferred by statute; and that, to justify any act or proceeding in a case of divorce, whether it be such as pertains to the ground or cause of action itself, to the process, pleadings or practice in it, or to the mode of enforcing the judgment or decree, authority therefor must be found in the statute, and cannot be looked for elsewhere, or otherwise asserted or exercised." Id. at 379.
Seven years ago, this court, in In re Guardianship of Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975), held that a personal decision to consent to the surgical removal and transplantation of a kidney could not be made for an incompetent under the doctrine of substituted judgment without legislative authorization. Pescinski clearly established that a court has no inherent power to make a personal decision for an incompetent. The jurisdiction to do so depends upon an act of the legislature and not the findings of an individual judge. The majority decision disavows Pescinski insofar as it may be read as a ruling of want of jurisdiction. This amounts to overruling the case, because want of jurisdiction was the ground of decision. Judicial restraint requires that we observe the limitations of judicial power, and defer to the legislature, as to those matters which were not the traditional subjects of suits at law or in equity. If we do not, we are endorsing government by judicial fiat, not by law.
What I have said thus far goes to the power of the circuit court to act, which is a form of jurisdiction over the subject matter of the suit, particularly when the only relief which is sought or could be granted on the facts *581 asserted in the petition is the ordering or approval of a surgical procedure on the body of a living person. In addition to the jurisdiction of the subject matter discussed in sec. 801.04(1), Stats., there is the question of the exercise of the court's jurisdiction, either by personal jurisdiction or jurisdiction in rem or quasi in rem. These jurisdictional requirements are treated in sec. 801.04(2) and (3). The grounds for exercising personal jurisdiction are stated in sec. 801.05. Only two subsections of the statute need be examined. Sub. (2) allows the exercise of jurisdiction where there are statutes which specifically confer grounds for the exercise of personal jurisdiction over the defendant. No such statute exists in this case. Sub. (1) permits exercise of personal jurisdiction "against a defendant." But the theory of the case at bar is not a proceeding against anyone. There was no named defendant. The caption of the case makes clear that the proceeding is quasi in rem because it states, "In the Matter of the Guardianship of Joan I. Eberhardy, Incompetent." Sec. 801.04(3), provides as follows:
"A court of this state having jurisdiction of the subject matter may render a judgment in rem or quasi in rem upon a status or upon a property or other thing pursuant to s. 801.07, and the judgment in such action may affect the interests in the status, property or thing of all persons served pursuant to s. 801.12 with a summons and complaint or notice of object of action as the case requires."
What is the status, property or thing upon which a judgment may be rendered in this case? Apparently the majority is willing to say that the body of a living person falls in that category. I am not.
While holding that the circuit court has the power to authorize or order sterilization of an incompetent without that person's consent, the majority also holds that such power should not be exercised without the prior approval *582 of this court. I agree with the second point whole-heartedly.
Compulsory sterilization involves termination of the constitutionally protected fundamental right to bear children.
"If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
The physicial integrity of the human body is a fundamental constitutional right. The courts exist to protect such rights from unwarranted intrusion by the other branches of government, not to facilitate, authorize or direct such intrusion.
I conclude that the power of government to order sterilization of an alleged mentally deficient person, if such power exists, is an administrative power. The initial decision whether to grant it is for the legislature. However, because the power is administrative and legislative in character, relating to the public interest as perceived by those exercising it, it may not be delegated to or exercised by a court. In explaining what constitutes an invalid delegation to the judiciary, this court has said in an annexation case:
"What is `desirable' or `advisable' or `ought to be' is a question of policy, not a question of fact. What is `necessary' or what is `in the best interest' is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations and reasons why there should or should not be an annexation. This is the general and universal rule which sharply draws the differentiating line between legislative power and judicial power and by which the validity of the delegation of functions to the judiciary by the legislature is determined." In re City of Beloit, 37 Wis.2d 637, 644, 155 N.W.2d 633 (1968).
*583 There is no claim in this case that the legislature has delegated the power to order sterilization to the judiciary. In fact, the legislature has determined as a matter of policy that the power of the state is not to be used to compel sterilization. In 1977, the legislature repealed sec. 46.12, Stats. The repealed statute allowed the Department of Health and Social Services to authorize sterilization of criminal, mentally ill or mentally deficient inmates of state and county institutions, upon the finding of a surgeon, a psychiatrist and the superintendent of the institution that "procreation is inadvisable," after examination into the "physical and mental" condition of the inmates.
If the young woman in this case had been subject to the repealed statute, she could have been sterilized pursuant to administrative decree. Even the repealed statute did not grant power to a judge to take this action. Applying the Beloit rule to sterilization, I would hold that whether procreation by a person is "advisable," involving moral and ethical rather than purely legal and factual considerations, is an exercise of the legislative police power rather than the judicial power.
There is no compelling state interest to be served by conferring the power on a court to authorize the sterilization of an incompetent person. The argument advanced in support of compulsory sterilization laws at the turn of the century was that the state had an interest in preventing the birth of mentally retarded children. This eugenics argument assumes that mental retardation is hereditary. We now know that many of the mentally retarded have social and cultural, rather than hereditary roots. They are present at higher rates in populations with inadequate nutrition and prenatal care.
The Scandinavian countries were among the first to enact eugenic sterilization laws. Some thought that the enactment of these laws provided progressive and socially *584 responsible legislation. It is ironic to realize in retrospect that the same societies which pioneered the concept of the welfare state insisted on the prerogative of controlling the bodies of their members so as to limit the potential claims upon their generosity. It is a short and logical step from preventing the birth of misfits to permitting only the birth of eugenically superior persons, as determined by the state. Thus, in Nazi Germany, it was required that all children of "mixed" marriages be sterilized. Together with the systematic murder of Jews, this policy insured that only the "master race" would survive.
It is argued that the young retarded woman in the case at bar does not have the capacity to make a decision as to whether to bear children, just as she does not have the capacity to consent to sterilization. However, the decision to become pregnant is seldom made consciously, in a cold and clinical setting. Pregnancy most frequently results from an act of love. No one has suggested that this young woman is incapable of love.
The record in this case suggests that doctors at the Marshfield Clinic are not willing to perform the operation unless they receive judicial approval, notwithstanding that it has been approved by the hospital's ethics committee. Thus, the doctors want insulation from legal liability should their judgment turn out to be in error. The professional ethics of the doctors are their own concern, and that of their colleagues. However, I would agree with the trial court holding that it was without authority in the absence of a statute to insulate the doctors from legal liability, if any, by giving approval for the sterilization procedure. No medical emergency appears from the facts of this case. In fact, pregnancy is only a bare possibility. The trial judge stated that any benefit to the young woman was questionable. Some may sympathize with the parents who are concerned for what they *585 think is the welfare of their daughter, although I find nothing in this record to substantiate their concern. However good their intentions, they are not entitled to seek the rubber stamp of a court in order to carry out their wishes.
The court of appeals carefully considered the same arguments which have been advanced in this court. It determined in a well-written and well-reasoned opinion that in the absence of specific statutory authority, the courts have no inherent power to make the fundamental and irreversible decision to sterilize an incompetent person. The court pointed out that any grant of power to the judiciary would have to be exercised in a standard-less vacuum, or standards would have to be created without the benefit of legislative guidance. I agree that the awesome power to deprive a human being of the fundamental right to bear or beget a child may not be inferred from general constitutional or statutory grants of jurisdiction. Rather, it must be conferred by statutory authority, providing guidelines and adequate legal safeguards determined by the elected representatives of the people to be necessary, after full consideration of the constitutional rights of the individual and the general welfare of society. Such authority should be granted only after a thorough consideration of the moral, medical, psychological and ethical, as well as the legal, implications of sterilization and its aftereffects. The only proper forum for such a grant of authority is the legislature. In State ex rel. Broughton v. Zimmerman, 261 Wis. 398, 52 N.W.2d 903 (1952), Justice Currie stated the classic definition of separation of powers, quoting from Fergus v. Marks, 321 Ill 510, 514, 152 NE 557 (1926):
"The legislative department determines what the law shall be, the executive department executes or administers the law, and the judicial department construes and applies the law."
*586 As I concur, I express great reservation with the following dicta as an invitation to further sterilization litigation:
". . . it should not be concluded that this court abrogates its own authority and jurisdiction to act on this subject at a future time if it becomes apparent that the legislature is unable or unwilling to act. Unlike sterilization procedures, our decisions are reversible. In an appropriate case at an appropriate time, this court, if it becomes necessary, could permit the invocation of its original jurisdiction for the further consideration and resolution of this problem. Although the judicial system is not well adapted to the task of examining and evaluating social and medical facts from the viewpoint of public policy, it occasionally becomes necessary to do so. It is not powerless in that respect. By remand to a referee for factfinding, by the process of taking judicial notice of important facts of a legislative nature, and by the exercise of its own discretion (or referral to a trial court for such exercise, which could then be scrutinized on appellate review), the problem posed in this case could be addressed.
"The preferred forum, however, is the legislature, and it is there that the public policy issues which arise in a case of this nature should be determined.
"We hold that the circuit courts of the State of Wisconsin have constitutional and statutory jurisdiction to consider and decide petitions seeking court authorization for a guardian to give consent to the sterilization of an incompetent ward; but pursuant to our supervisory authority we direct such jurisdiction shall not be exercised until the state's policy to do so is set forth by appropriate legislation or until further order of this court." Supra, at 578-579.
In particular, I take exception to the following language:
"We hold that the circuit courts of the State of Wisconsin have constitutional and statutory jurisdiction to consider and decide petitions seeking court authorization for a guardian to give consent to the sterilization of an *587 incompetent ward; . . . or until further order of this court." (emphasis supplied) Ibid.
Quoting from my dissent in Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980):
"As Chesterfield Smith, the former president of the American Bar Association, said in his Law Day address:
"`. . . courts are being asked today to solve problems for which they are not institutionally equipped, or at least not as well equipped as other areas of government [such as the legislature].
"`. . . As far as possible, judicial forums should be reserved for doing only that which cannot be done elsewhere.
"`The American public perceives the courts as a jack-of-all trades available to furnish the answer to whatever may trouble them. Shall a war be prosecuted or peace made? What is life, or when does death begin? Shall racial integration be achieved by . . . busing of children to far away schools? How shall prisons and mental institutions be operated? Shall nuclear power plants be built, and if so, where? Shall the Concorde fly to these shores? Is affirmative action really inverse discrimination? Shall the snail darter survive? [Should a circuit court determine a question of public policy for the citizens of Wisconsin?]" Id. at 323-24.
Under the radical expansion of judicial power announced by the majority, will our already overburdened judicial system next face the prospect of a new flood of public policy litigation dealing with issues of who is to receive the benefit of a medical breakthrough? Today, the ever expanding field of medical research is almost taxed to the limits of its fiscal capacity in covering the costs of the professional and highly technical services involved in such areas as cancer research and heart, eye, kidney and liver transplants. Will courts order hospitals to expand their facilities so as to accommodate all who need or want the benefits of new treatment and/or surgical procedures, and will doctors be ordered to administer *588 and/or perform them? Will the courts take it upon themselves to choose those persons who will receive the benefit of the various medical research programs and refuse others? And, in the area of organ transplants, will the courts decide not only who will receive organs, but also who will donate? Will judges decide on the basis of their belief as to who will be the most productive members of our society in the future or will other factors such as finances and social or political influence be the basis for decision? Will the courts not be faced if we follow the logical process of reason with the question as to why society should not assume control over the individual and subordinate him or her to its own ideas of what is good for the human race? We are opening the door to a never ending series of problems without a rational, moral or ethical solution.
The author of the dissenting opinion in this case recently expounded Smith's philosophy in State v. Princess Cinema of Milwaukee, 96 Wis.2d 646, 292 N.W.2d 807 (1980), and refused to infringe on the legislative prerogative of enacting statutes to implement public policy, stating:
"`The problems of public policy . . . are for the legislature,' and further, `recognizing that our job is one of interpreting statutes not redrafting [or enacting] them.'" Id. at 661-62.
Further, I believe it is incumbent on this court to delineate the express responsibilities and authority of guardians ad litem in making recommendations to a court for it seems evident from the record that the guardian ad litem was more interested in supporting the position of the parents for their convenience and the doctor involved rather than the poor, unfortunate, retarded adult. A thorough examination of the record reveals that the parental fears of a future pregnancy of this unfortunate young adult, due to her lack of responsibility and/or *589 necessity of constant supervision, were never thoroughly aired before the court. For there was no testimony presented from her adult, natural brother and sister as reflected in the hospital records regarding their strong feelings as to their parents' oversolicitous attitudes for their sister Joan's (retarded adult) needs:
"They [the brother and sister] feel she is grossly overprotected. It is their feeling that if the parents were able to begin a program whereby Joan would learn self-help skills, she would become partially independent. In fact, they would like to seriously consider placing Joan in an institution for perhaps one year with this goal in mind in order that she would be able to return to the community and be more independent than she is at this time."
One of the doctors who recommended the sterilization procedure in a summary fashion disregarded the adult, natural brother's and sister's recommendation as follows:
"In my opinion the parents have done an excellent job of raising this severely disabled child and what is really being talked about today is simply a matter of style. One set of parents prefers to raise their children in a somewhat different way than another set. One can always quibble about the finer point. In the main, however, I honestly do not feel that a more vigorous program designed at making Joan more independent would be at all appreciably more successful than the style in which the Eberhardys have raised Joan."
Another doctor recommending the sterilization wrote:
"It is impossible for her to be supervised at all moments of her life and the possibility that she could become pregnant is real.
"As you well know, mentally retarded persons possess the same sexual drives and passions as do most human beings, however, they lack the personal and moral responsibilities and the knowledge of the consequences of sexual intercourse."
*590 Quoting from another doctor consulted:
"She attends a summer camp for about a month each year and on several occasions persons at this camp have been approached by members of the opposite sex and it is the fear of [the parents] that Joan might well become pregnant. . . . If the ethics committee would give me medical approval in this situation and I could get the proper legal counsel and Judge ______'s approval, hopefully we could proceed with this procedure in the near future since she goes to camp again. . . ."
The record is clear that the guardian ad litem agreed with the parents and the doctors as to the desirability of the sterilization procedure based upon the fear of possible sexual activity in the future due to Joan's lack of judgment and lack of continual supervision and presented no testimony to the court concerning the opposing views of Joan's adult brother and sister in 1971 regarding their sister being grossly overprotected. He did not cross-examine the doctor as to any scientific or medical reference for his opinion that "mentally retarded persons possess the same sexual drive and passions as do most human beings," nor his opinion that "statistically speaking, Joan ______ is most probably capable of reproducing herself." I note the latter fact because the record establishes that the young lady had not undergone a thorough obstetrical or gynecological examination in the immediate or recent past.[1] Further, the record is devoid of any direct testimony that Joan ever participated in any type of sexual activity, and there was no proof in the medical records substantiating or confirming the mother's fears that "Joan might well become pregnant." Neither did the guardian ad litem cross-examine the doctor as to his very *591 definite and firm opinion that the retarded adult had no potential for developing the cognitive and adaptive skills required for successful child bearing. No questions were asked concerning empirical data of the low reproductive rates of mentally retarded persons. No questions were asked about the mortality and morbidity rates associated with sterilization. The guardian ad litem, further, did not question nor develop the report in the hospital record "Joan has developed self-sufficiency in respect to other basic personal skills as hygiene and feeding . . . and has sufficient vocabulary to make her basic needs known and can respond to questions in short, well-articulated sentences." The most obvious deficiency of the case presented by the guardian ad litem is his failure to bring out the fact that the medical opinions as to Joan's condition ranged from "moderate mental retardation" to "moderate severe mental retardation." (Emphasis supplied.) The explanation for this change in opinion may be that Joan's mental faculties were deteriorating from overprotection and lack of independent training in self-help skills. However, that may not be the only explanation. It is for these reasons that I point out the necessity for this court to delineate the responsibilities of the guardian ad litem in a matter such as this. In my view, this record presents problems as to the guardian ad litem's responsibilities to his ward in a true adversary system. The record is devoid of any meaningful cross-examination of either the parent-guardians or the pediatric physician.
It is my belief that this decision is a most difficult one and should never be made by courts alone as it involves a value judgment central to the constituent fabric of our society. We all ought to be involved in making this decision whether we participate as a litigant, judge, attorney, physician or as an American citizen, voting for elective representatives. In an age when the *592 courts are for the first time declaring retarded individuals to be of equal worth with other individuals in our society and under our constitution, mandating equal educational and training opportunities, it seems anomalous that equal justice is being threatened. This is a decision on a subject matter which our society will be grappling with for years to come.
I question the physician's judgment in this case based on the court record presented for review and wonder if it is an attempt to substitute the quality of life ethic for what should be the sanctity of life ethic in medicine. In this case, it is most important to examine the rationalization involved in this medical management decision in order to understand the implications of this recent development in medical ethics and its significance for the profession and society as a whole. The rationale is easy to understand in relation to the new quality of life ethic so eloquently propounded by the social engineers of the Twentieth Century. Two questions are presented: Should a group of doctors whose only basis for this fundamental and irreversible medical, surgical procedure according to this record is the guardian's request based upon a fear that this young retarded adult may in the future have sexual contact with a man in the absence of statutory guidelines and authority be allowed to substitute their judgment for society and assume complete control over the individual and subordinate her to their own ideas of what is good for her well-being? Does any court ever have direct power over the body of a living person in the absence of a showing that the life of the person is in jeopardy requiring medical attention? I think not.
For the foregoing reasons, I would affirm the decision of the court of appeals without modification, but concur in the result of the majority opinion.
*593 DAY, J. (dissenting).
I dissent: The majority is wrong in refusing to permit the circuit court to authorize the sterilization of Joan Eberhardy, even though it admits the circuit court has the power to do so.
Two thousand years ago a judge, clothed with the power and authority to do justice, but sensing the political winds ("willing to content the people" as the ancient word puts it), washed his hands and said to the people: "See ye to it." His act resulted not in justice but in injustice. Today, the majority of this court, in my opinion, withholds justice from Joan Eberhardy. It turns to the legislature, the "representatives of the people," and says in effect, "you see to it." Washing its hands and turning the demand for justice over to the legislature demeans this court, denigrates its role, and makes a mockery of its powers.
The majority cannot be unaware that the legislature will do nothing about this matter. In today's political atmosphere, few, if any, state legislators would sponsor or support sterilization legislation. The legislature would, of necessity, have to deal with the whole gamut of when sterilization could be done. It could not legislate for this young woman alone. Such legislation will not be forthcoming, and for this court to tell this unfortunate woman's parents to turn to the state legislature is to leave them without justice and without hope.
Justice is denied in refusing to permit Joan Eberhardy to have an operation that is the only practical[1] way to prevent her from a possible pregnancy that her physician said would be "tragic."
Let's look at this "child-woman" described by her doctor as "this most unfortunate individual," whose "right to procreate" the majority wishes to protect.
*594 At the time of the hearing in the trial court she was twenty-two years old but had the mental capacity of a two-year old child.
She can't cut her food on the plate.
She often puts clothes on inside out.
She can't find her way home if taken any distance from the house.
She is unaware of the danger from traffic.
The majority opinion says, "although she could bathe herself, she could not safely regulate the temperature of her bath." (Supra, p. 544). But it's worse than that. Her father testified: "She cannot draw her bath. She would step in ice cold water or scalding water. She doesn't know the difference."
She cannot take care of herself during menstruation.
She is sexually mature and ". . . has the same sexual passions as most human beings," according to her doctor. He further stated she could become pregnant "if she were not under complete and total surveillance at all times." She lacks the moral sense or mental capacity to resist sexual exploitation by others.
She would be unable to understand or communicate physical symptoms and pain during pregnancy or delivery and would be totally baffled and noncomprehending as to what was happening to her.
Her father described her potential pregnancy: "It would be something terrible for her for something like that to happen."
Her doctor described a potential pregnancy as "tragic" for her.
Even the majority opinion recognizes that Joan Eberhardy's mental condition had deteriorated during the period 1971 to 1978. (Supra, p. 544). But the decline is not arrested. Dr. Louis J. Ptacek[2] was asked at *595 the hearing by the trial judge if there was "any possibility of improvement in her condition as she grows older?" Dr. Ptacek replied: "None at all, I believe over the years there would be some deterioration." Dr. Ptacek was firm in his recommendation that tubal ligation was in Joan Eberhardy's best interest.
Her parents sought the help of the Wisconsin court system to get authorization for a tubal ligation to prevent this tragedy.
Three doctors, including a psychiatrist, requested it. Her guardian ad litem requested it. The ethics committee of St. Joseph's Hospital approved it.[3]
The trial court said that, ". . . given the facts stated . . . [she] is a proper subject for sterilization."
The Court of Appeals said, ". . . the evidence is undisputed that it [sterilization] will serve her best interests." In the Matter of Guardianship of Eberhardy, 97 Wis.2d 654, 664, 294 N.W.2d 540 (Ct App 1980).
But a majority of this court finds that this pathetic, helpless, vulnerable, "most unfortunate individual" has a "right" to become pregnant! And further, under the superintending powers of this court, the whole judicial machinery will grind to a halt and will refuse to exercise *596 its power in order to guarantee this "right" to her. The court will do so in spite of the fact that those nearest and dearest to her, her parents, and her doctors and her guardian ad litem, all want her to have the operation.
The majority cites from the language of Carey v. Population Services International, 431 U.S. 678, 685 (1977),
"The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices . . ." (Emphasis added.)
The majority opinion of this court then says:
". . . that the right to procreate or to prevent procreation is a protected, fundamental personal decisional choice appears to be clearly relevant to the case before us." (Supra, pp. 562-563.)
But the important words in the Carey quotation are "decision" and "choices." When is Joan Eberhardy's "personal decisional choice" to be exercised by her? The answer is never.
The majority recognizes that there is an area of decisional choice protected by the due process clause of the 14th Amendment. This protection embraces the right of personal decisions in matters of procreation, and includes the right of the individual to decide to procreate or to decide to prevent pregnancy. The right to prevent pregnancy by use of contraceptives is clearly established by the decisions of the United States Supreme Court. The right to prevent pregnancy by sterilization, as the majority concedes, also "implicates a protected personal procreative decisional choice." (Supra, p 562.) This important distinction between the "right to procreate" and the "right to decide" is central to this case. Because that right to decide this issue cannot be exercised by Joan, the *597 majority concludes that it may not be exercised by others for her. What the majority fails to recognize is that its refusal to permit Joan's parents, guardians and physicians to make this decision for her simply decides the question for her in another way and against her best interests. By refusing to authorize a trial court to consent to the operation, the court has effectively made a fundamental personal choice for Joan she will remain susceptible to a "tragic" pregnancy. Because she lacks the mental capacity or moral sense, Joan cannot even choose to abstain from sexual conduct.
The majority opinion goes to great length to analyze the New Jersey Supreme Court's decision in the case of In re Grady, 85 N.J. 235, 426 A.2d 467 (1981), where that court in a well-reasoned opinion, in a fact situation similar to the one here, authorized sterilization of a mentally retarded young woman. The New Jersey court held that an incompetent had the same right as any other person to choose sterilization. The court recognized that the "choice" made by parents, guardian ad litem or a court was not really the incompetent's but said: ". . . it is a genuine choice nevertheless . . . one designed to further the same interests she might pursue had she the ability to decide herself." In re Grady, supra, 426 A.2d at 481.
The majority of this court says:
"The fault we find in the New Jersey case is the ratio decidendi of first concluding, correctly we believe, that the right to sterilization is a personal choice, but then equating a decision made by others with the choice of the person to be sterilized. It clearly is not a personal choice, and no amount of legal legerdemain can make it so." (Supra, p. 566.) (Emphasis added.)
I would add that no amount of "legal legerdemain" can escape the fact that the New Jersey court acted correctly in granting the very relief asked for here and denied by this court. Whether the ratio decidendi is "substituted *598 consent" or "best interest," the result is what is important.
If a person who was incompetent or unconscious due to injury needed an emergency appendectomy, does anyone doubt that a court would authorize the operation? What is the difference to the one needing the operation which ratio decidendi was used? The majority cites In re Guardianship of Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975), in support of its argument against the rationale of the New Jersey court. In Pescinski the majority of this court rejected the concept of "substituted judgment."[4]
The majority then lays before us its view of the issue:
"Any governmentally sanctioned (or ordered) procedure to sterilize a person who is incapable of giving consent must be denominated for what it is, that is, the state's intrusion into the determination of whether or not a person who makes no choice shall be allowed to procreate." (Supra, p. 566.) (Emphasis added.)
It does sound ominous! But we are dealing with Joan Eberhardy, a helpless person. The "intrusion" is really by her parents who have loved, cared for, watched over and worried about her all her life. It is by her doctors who have treated her and are concerned about the harm a pregnancy will cause her. It is by her guardian ad litem who obviously has a keen sense of his role and responsibility. *599 In short, it is by those in the best position to know what is in her best interest. Viewed thus, the "state" acting through the court, is far from an "intruder" but plays the noble role of parens patriae for one who needs its help. I doubt that even the majority seriously believes Joan Eberhardy should be "allowed to procreate." (Supra, p. 566.) Carried to its logical conclusion that position would say that watching over her, "protecting" her, is interfering with her "right to procreate." Merely stating it shows its absurdity.
The majority opinion states that if it permitted the sterilization of Joan Eberhardy it would be setting precedent "that it is appropriate and not contrary to public policy to order the sterilization of a person when a court decides it is in the best interests of that person to do so." (Slip Opinion, p. 566.) And so it should. The question here is really not "ordering," but permitting, an operation that clearly is in the best interest of Joan Eberhardy as all those most closely associated with the case have repeatedly and persistently declared. This court has declared many times what is or is not against public policy. Why not here? The majority's concern for "precedent" is over-apprehensive. The "precedent" that would be established on the facts in this case would be narrow indeed. Future cases will as always be judged on the particular facts as they arise and appropriate guidelines to prevent abuse could be set by this Court.[5]
The majority opinion recognizes that the trial court does have the inherent authority to permit the sterilization of Joan Eberhardy. In light of Stump v. Sparkman, 435 U.S. 349 (1976), no other conclusion could reasonably be drawn.
*600 I think the majority opinion could have been a land-mark decision on the authority of this court to act in the absence of specific statutory authorization. Unfortunately, it is weakened by an unreasonable and unjustifiable retreat with much rhetoric about "judicial restraint" that presents no workable guidelines as to when such restraint should be exercised. The facts in this case are so demanding for action that, because action is denied here, anyone looking for rule or guide can only conclude that if the legislature hasn't specifically granted a particular authority, inherent power should not be relied upon. This of course flies in the face of a long line of cases in which this court has acted in the great common-law tradition and fashioned remedies where facts demanded it.
The majority, to justify this result, explains that this court would be required to write "on a clean slate." (Supra, p. 577.) The "clean slate" results from the want of precedent in this state on the question posed. That other state courts, operating with similar grants of plenary judicial power, have reached the issue, seems to the majority an insufficient "start" to a resolution of the problem. The court draws from the writings of Cardozo, but overlooks his further observations that: "We do not pick our rules of law full-blossomed from the trees" and that a judge's "duty to declare the law in accordance with reason and justice is seen to be a phase of his duty to declare it in accordance with custom." Cardozo, The Nature Of The Judicial Process, at pp. 103 and 107. (New Haven, 1945). Sometimes of course, this search for the law is difficult, but to resort again to Cardozo:
"What really matters to me is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience. . . . This is judicial legislation, and the judge legislates at his peril. Nevertheless, it is the necessity and duty of such legislation that gives to judicial *601 office its highest honor, and no brave and honest judge shirks the duty or fears the peril.
"You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view, it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If they are to fulfill their function as judges, it could hardly be lodged elsewhere." The Nature Of The Judicial Process, supra, at pp. 133-136.
Because I am persuaded that it is this court's duty, I would grant the petition. Unlike the majority, I do not see our task as one of statute writing. Rather, I believe our task under the facts of this case is to authorize the Wood county circuit court to grant the Eberhardy's petition seeking sterilization of this retarded child-woman.
Unlike the legislature which deals with broad issues of social policy,[6] courts deal with individual cases. It is from the resolution of cases that the common law evolves.
The majority opinion goes into considerable detail on the origin, history and demise of Wisconsin's 1913 sterilization statute that was repealed in 1977. The majority concludes that it is "irrelevant to the problems posed by this case." I agree. But it adds proof, if any is needed, that the legislature will not take action to protect the Joan Eberhardys of this state.
This case is ripe for decision. The facts are clear. The court has the authority and should exercise it to permit an operation that is clearly in Joan Eberhardy's best interest.
The court expresses grave concern that the sterilization procedure is "irreversible"[7] and says: "It would permanently *602 and irrevocably deprive Joan of her procreative capability." (Supra, p. 575). But in Joan Eberhardy's case one would hope the operation would be permanent. One can hardly imagine wanting to reverse the procedure so she could become pregnant!
The majority says that "scant consideration was given to the possibilities of contraception by means short of sterilization." (Supra, p. 569.) The fact is her medical advisor did consider them and rejected them.[8] The majority then says, "The possibility that some new or improved method, perhaps suitable for use by retarded persons might shortly become available." (Supra, p. 569.) (Emphasis added.) What has that to do with the case before us? In my opinion, nothing. Under the logic of the majority, no one should be allowed to do anything that could possibly "interfere" with the "right to bear children" when the person in question is incapable of making the choice herself.
Then the majority tells us that among: ". . . seriously mentally retarded persons . . . some may be good parents." (Supra, p 569.) But the medical testimony here was that Joan Eberhardy could not possibly care for a child, so the majority's observation, if true, would have no relevance here.
The majority opinion recognizes that Joan Eberhardy's parents brought this action for the "physical and mental well-being of Joan." (Supra, p. 558.) Then why turn our backs on her? The majority says that "no societal benefits were urged." But isn't society benefited when the mental and physical well-being of the least among us are fostered and protected? We go to great lengths to defend and protect the rights of the most despicable criminal. Shouldn't this unfortunate child-woman share equally in our solicitude?
*603 The majority laments the lack of what it calls a "devil's advocate" at the trial to argue "why sterilization might be improper." (Supra, p. 570.) But that role has been most ably played by the majority in its long opinion. If, as Shakespeare tells us: "The devil can cite Scripture for his purpose,"[9] it is obvious that mere man-made law is likewise readily available.
As authority for its nonaction, the majority has a Wisconsin precedent, "A court may have jurisdiction of a particular subject matter, but by settled judicial policy ought not to exercise it." The quote is from the grand-daddy of long opinions, Harrigan v. Gilchrist, 121 Wis. 127, 227-228, 99 N.W. 909 (1904). At 334 pages, Gilchrist holds the all-time record for judicial verbosity in Wisconsin. It is a veritable gold mine of legalisms. Had the majority mushed on to pages 234-235, it would have found this gem:
"To support the proposition last suggested it is insisted that there are no precedents to be found in the books, of any suit exactly like this, . . . True, the suit is novel in character, but so are the alleged circumstances giving rise thereto. . . . In all situations and under all circumstances, whether new or old, the principles of equity will point the way to justice where legal remedies are infirm. Precedents will be a constant guide, but never a bar. Where a new condition exists, and legal remedies afforded are inadequate or none are afforded at all, the never-failing capacity of equity to adapt itself to all situations will be found equal to the case, extending old principles, if necessary, not adopting new ones, for that purpose. That is a very old doctrine." Harrigan v. Gilchrist, supra, 121 Wis. at 234-235.
The result was that the Gilchrist court decided exercise of jurisdiction was proper despite the novelty of the unprecedented action.
But the majority opinion is not without a sense of humor. "Unlike sterilizations, our decisions are reversible," *604 it quips. Then comes the admonition that if the legislature does not act, this court can "permit the invocation of its original jurisdiction for the further consideration and resolution of this problem" . . . "in an appropriate case at an appropriate time." (Supra, p 578.)
What more "appropriate case" could it want? Where the mental age of the unfortunate is one instead of two? What more "appropriate time" will ever present itself?
The old adage that "Hard cases make bad law" has a corollary "Bad law makes hard cases." And so this decision will make help for the Joan Eberhardys of this state impossible for years to come. It will also adversely affect the exercise of the very power it claims to uphold the power of the court to act in the absence of legislative mandate.
Perhaps people in the position of the Eberhardys, if their circumstances permit, will be able to get help in states where a more enlightened attitude toward their plight prevails.
Maybe someday, even in Wisconsin, those with power to do justice will not ask for the wash basin.
I would reverse.
WILLIAM G. CALLOW, J. (dissenting).
In addressing the matter of whether the court should respond to a petition to authorize the parents and legal guardians of Joan Eberhardy, an incompetent, to consent to her surgical sterilization, the majority opinion "conclude[s] that the question is not choice because it is sophistry to refer to it as such, but rather the question is whether there is a method by which others, acting in behalf of the person's best interests and in the interests, such as they may be, of the state, can exercise the decision." (Supra, p. 566.) The majority denominates any governmentally sanctioned procedure to sterilize as "the state's intrusion into the determination of whether or not a person *605 who makes no choice shall be allowed to procreate." (Supra, p. 566.) The majority correctly found this matter generally within the constitutionally granted plenary jurisdiction of this state's unified court system, but because of what it perceives as complex problems of public policy, the majority concludes it is better to defer to the legislature as the more appropriate forum to provide the answer to the problem. Because the majority declines to permit the trial court to exercise jurisdiction and thereby respond to the Eberhardys' petition, I dissent.
I believe my colleague, Justice Day, is correct in his dissent that legislative action on this issue is unlikely. Apart from any aversion legislators may have to addressing a controversial question, there is the added practical problem of the press of legislative business. The thousands of problems presented to the legislature tax its ability to respond thoughtfully to the multiple problems of society. I have no reason to expect that this problem will receive meaningful consideration expeditiously enough to produce a legislative answer to the question presented by the Joan Eberhardy case. I am prepared to assume that even if legislative action were taken, it would not deny the relief sought on behalf of Joan Eberhardy. Rather, it would establish guidelines and standards for the court to use in rendering a decision to grant or deny the petition for court sanction of the requested sterilization. I do not agree with the majority in its conclusion that because the legislature has greater fact-finding capabilities than this court, it is better able to establish the guidelines and standards within which the trial court must exercise its discretion.
It is evident from reading the majority opinion that, had it concluded that this matter was a proper subject for judicial determination, articulating the factors warranting consideration whenever this question is presented *606 does not need vast scientific and medical input. It is applying the factors in a given case which will require expert testimony and a fact-finding apparatus. I am confident that this court is able, with the assistance provided by the thoughtful work of other courts having also considered the problem, to articulate standards by which the decision to sterilize an incompetent can be made. But neither we nor the legislature will make the decision in a particular case, and we must recognize that the yeoman's task will be in laying the evidence alongside the standards and reaching the final conclusion.
This leads me to believe that the majority's deference to the legislature is not based upon any recognition of that body's superior capabilities to deal with the procedural aspect of this matter. Instead, I believe it is much more fundamental: The very first and most vital issue is not when, how, or by whom such a decision should be made, but whether, in the abstract, it should ever be made. I see nothing about this question which renders it more amenable to legislative than judicial resolution, and as a matter of policy, this court should answer affirmatively that there may be circumstances under the present state of medical knowledge in which it is in the best interests of an incompetent to be surgically sterilized.
The majority, after reference to a number of United States Supreme Court decisions, concludes that the nature of any individual's decision to procreate or not to procreate, as a fundamental and constitutionally protected decisional choice, is "clearly relevant to the case before us." (Supra, p. 563.) I agree. The difficulty is developing a judicial rationale which protects this intensely private and personal right but at the same time accommodates the fact that the individual whose right to choose must be protected is (and will continue to be) incapable of making the choice for herself. The supreme *607 court of the state of New Jersey in In Re Grady, 85 N.J. 235, 426 A.2d 467, 474-75 (1981), recognizing this problem, stated:
"Implicit in both these complementary liberties is the right to make a meaningful choice between them. Yet because of her severe mental impairment, Lee Ann does not have the ability to make a choice between sterilization and procreation, or between sterilization and other methods of contraception a choice which she would presumably make in her `best interests' had she such ability. But her inability should not result in the forfeit of this constitutional interest or of the effective protection of her `best interests.' If the decision whether or not to procreate is `a valuable incident of her right of privacy, as we believe it to be, then it should not be discarded solely on the basis that her condition prevents her conscious exercise of the choice.' Quinlan, supra, at 41, 355 A.2d 647. To preserve that right and the benefits that a meaningful decision would bring to her life, it may be necessary to assert it on her behalf."
What mechanism exists by which a right to choose may be asserted on behalf of one who is incapable of choosing? The New Jersey court concluded that with the proper guidelines the decision could be made by a court. The majority criticizes the Grady court's substituted choice rationale, stating "[w]e believe it somewhat inconsistent for the New Jersey court to equate in a single breath `the choice made in her behalf' and `providing her with a choice.'" (Supra, p. 566.) I am troubled by this superficial criticism, and I believe it is a disservice to the reasoning of the New Jersey court. There is no "legerdemain" in recognizing the stark reality that Lee Ann Grady could not make the choice herself. Nor is there any legerdemain in permitting a trial court, upon a detailed analysis of what is in her best interests, to make a decision on her behalf. This is the substance of the Grady decision. Is it legerdemain to say that this substituted *608 judgment by the trial court provides her with a choice? Even if the New Jersey court seriously contended that the court's choice was Lee Ann's choice, that contention might at worst be considered naive. But it is obvious from reading the entire opinion that the Grady court recognized the result as being exactly as the majority claims it is: "the state's intrusion into the determination of whether or not a person who makes no choice shall be allowed to procreate." (Supra, p. 566.) So what is to be said about the doctrine of substituted judgment? It is not legerdemain, as the majority pejoratively describes it. It is a legal fiction designed to give Lee Ann Grady the benefit of that very precious and protected right to choose and to accord her the dignity as a human being of making the choice "she would presumably make in her `best interests' had she such ability." 462 A.2d at 474. Perhaps this, too, is a naive assumption. But as long as we must wrestle with the notion that even one incapable of choosing has a right to choice, a notion that exists only in the theoretical, not the practical, realm, we must use a ratio decidendi of equivalent ethereality to deal with it.
But as a court dealing with real controversies and, in this case, a child-woman of twenty-two years of age who is faced with a real problem, we cannot permit our obligations to be so easily excused because we cannot resolve what appears to be an insoluble philosophical conundrum. In the final analysis, it is unimportant whether the justification for state intrusion is that the choice is really that of the incompetent merely exercised by a substituted competent entity, or that the choice, as the state's choice, is made in the best interests of the incompetent and, as such, best vindicates her constitutionally protected rights. What is important is that the choice be made. That was the result in the Grady case, as well as in Matter of Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d *609 635 (en banc 1980), and In Re Penny N., 414 A.2d 541 (N.H. 1980). I believe it should be the result here.
Returning to the ultimate question for a moment that being whether, in the abstract, sterilization of an incompetent should ever be authorized it is significant to me that, as pointed out by Justice Day, to answer that question with an unequivocal "no" (the practical effect of the majority decision) is itself to make a personal choice on behalf of the incompetent. Not only does it resolve the question of the incompetent person's choice to procreate or not to procreate in a different but equally substitute manner, that is, the state deciding in favor of procreation, but it does so without any procedural safeguards or any consideration of the incompetent person's best interests. I wonder, should Joan Eberhardy become pregnant while waiting for legislative action, if a court can exercise its jurisdiction to determine whether it is in her best interests to carry the child to term?
From the standpoint of sheer common sense concerning the matter of sterilization, it is far better to fashion a remedy that will permit reasoned results in particular cases according to the needs and interests of the individual incompetent person involved than the nonremedy this court today endorses by judicial default: That Joan Eberhardy, and any other similarly situated incompetent person, cannot be surgically sterilized regardless of whether that decision is in her best interests. For a trial court to authorize this procedure clearly is, as the majority describes, state intrusion into a very personal decision, but I do not find intrusion offensive if failure to intrude produces a harmful, even tragic, result.
Having concluded to this point that there may be instances where surgical sterilization is in the best interests of an incompetent person, I further conclude, as in Grady, Hayes, and Penny N., that the power to authorize such a procedure in a particular case should reside with the *610 trial courts of this state. It cannot be placed exclusively with the parents or legal guardians because the interests of the parents or guardians may not always be consistent with the interests of the incompetent. The trial courts of this state are seasoned decision makers accustomed to applying the "best interests" standard in other circumstances affecting the rights of those who cannot decide for themselves. Moreover, by definition, a trial court is a fact-finding entity, and it has at its disposal, through adversarial processes, amici curiae, independent experts, and guardians ad litem, a considerable capacity to generate evidence bearing upon any given case. Finally, the decision of the trial court is subject to review by appellate courts. An aggrieved party could seek a stay of a sterilization order and appeal.
Despite the majority's dissatisfaction with the "best interests" standard, I believe it is suitably flexible and familiar to trial courts and should be applied to this situation. Therefore, as a general rule, a trial court should be able to authorize the surgical sterilization of an incompetent person only if it finds, by clear and convincing evidence, that such a procedure is in the best interests of the incompetent person. In any proceeding the incompetent must be represented by a guardian ad litem, and the trial court should be encouraged to obtain independent, expert assistance. And in every case, such a decision must be preceded by a finding that the incompetent person lacks the capacity to make a decision in this regard and is not likely to acquire that capacity in the foreseeable future.
In making the determination whether sterilization is in the best interests of the incompetent, the court should consider, among any other factors thought to be relevant, the following factors, which I have drawn from the Grady and Hayes cases:
(1) The physical capability of the incompetent person to procreate.
*611 (2) The likelihood that the person will engage in sexual activity.
(3) Any physical, psychological, or emotional trauma the individual is likely to experience as a result of pregnancy.
(4) Any physical, psychological, or emotional trauma the individual is likely to experience as a result of the sterilization procedure.
(5) The age and present and projected educability of the individual.
(6) The availability, feasibility, or advisability of other means of contraception.
(7) The individual's ability to care for and rear a child.
(8) Insofar as any evidence bearing on these factors comes from the proponents of the sterilization procedure, the extent to which the proponents are or appear to be acting in their own or the general public's interests as opposed to the best interests of the incompetent.
That these factors can be listed in so short a space should not be a sign that the decision itself is to be made lightly or without all due deliberation. The trial court should recognize that there is a heavy presumption against sterilization in every case, and the above-listed factors should be weighed against that presumption. This means that doubts should be resolved against the procedure; that gaps or insufficiencies in the evidence must be presumed to cast doubt upon the appropriateness of the procedure. Only if the trial court, after considering these and other relevant factors in light of the presumption against the procedure, finds by clear and convincing evidence that sterilization is in the incompetent person's best interests, may the court authorize the procedure.
The majority opinion expresses fear that this resolution of the issue in this case would establish precedent that sterilization of any person would be acceptable if in the best interests of the person to be sterilized. Certainly *612 this case could not stand for the proposition that any person is subject to court authorized sterilization; it would only be applicable to those persons who are incompetent to exercise the choice in their own behalf and for whom the court finds that sterilization is in their best interests. But other than making the initial, albeit awesomely weighty, determination that sterilization is a legal alternative, it need not open the floodgates for sterilizations en masse or necessarily raise the spectre of self-appointed advocates of sterilization for the public good or even of self-serving parents or guardians clamoring for court orders. While it is probably unnecessary, I would caution the trial court to recognize that the decision is a most profound one which is, in all likelihood, irreversible.
In sum, I think it is most unfortunate that the majority has chosen to defer to the legislature on this matter. While I agree the case involves a fundamental policy question, these are not strangers to this court. The people of this state have the right to apply to the courts for the protection of their inherent human rights to life, liberty, and the pursuit of happiness and to have their applications for relief adjudicated. The rights of those least able to protect themselves are the rights most in need of judicial attention. Joan Eberhardy should have a judicial determination on this critical issue which can have a profound effect on her ability to live a happy and healthy life.
With the establishment of guidelines to assist the trial court in making this decision, I would reach the policy question the majority avoids, reverse the decision of the court of appeals, and remand the case to the trial court for the exercise of its discretion in accordance with those guidelines.
NOTES
[] Motion for reconsideration denied, without costs, on August 11, 1981.
[1] In the Matter of Guardianship of Eberhardy, 97 Wis.2d 654, 294 N.W.2d 540 (Ct. App. 1980).
[2] Dr. Ptacek predicted that the chances were one out of four that a child born to Joan would be retarded. The record does not otherwise, however, disclose whether Joan's retardation has any genetic or hereditary characteristics.
[3] It is possible, of course, that developmental abnormalities may have been present (and diagnosed) earlier. The medical record, however otherwise fairly extensive in describing the medical care provided for various childhood maladies does not so indicate.
[4] Subject, of course, to appellate jurisdiction and the constitutional authority of the supreme court to exercise original jurisdiction in certain cases. Wis. Const., art. VII, sec. 3(2).
[5] Because the problem does not arise in the context of this case, we do not consider circumstances under which certain conditions precedent must occur prior to the exercise of jurisdiction. See Lees v. ILHR Dept., 49 Wis.2d 491, 497, 182 N.W.2d 245 (1971), and cases cited therein.
[6] In its final version, sec. 46.12, Stats. 1975, provided in its entirety:
"46.12 Sterilization of defectives. (1) The department may appoint a surgeon and a psychiatrist, of recognized ability, as experts, who (in conjunction with the superintendents of the state and county institutions who have charge of criminal, mentally ill and mentally deficient persons) shall examine inmates and patients of such institutions as to their mental and physical condition.
"(2) The department may submit to the experts and to the superintendent the name of inmates or patients they desire examined, and the experts and the superintendent shall meet, take evidence and examine into the mental and physical condition of the named inmates or patients and report thereof to the department.
"(3) If the experts and superintendent unanimously find that procreation is inadvisable the department may authorize an operation for the prevention of procreation.
"(4) Before such operation, the department shall give at least 30 days' notice in writing to the husband or wife, parent or guardian of the inmate or patient, if known, and if unknown, to the person with whom such inmate or patient last resided.
"(5) The experts shall receive as compensation $10 per day and expenses for the days consumed in the performance of their duties.
"(6) The record made upon the examination shall be filed in the department; and semiannually after the operation, the superintendent of the institution where such inmate or patient is confined shall report to the department his condition.
"(7) The department shall state in its biennial report the number of operations performed under this section and the result of the operations."
[7] For an excellent and disturbing account of how and why eugenic sterilization was embraced by Wisconsin Progressives, and a discussion of the legislative history and enactment of sec. 46.12, Stats., see R. Vecoli, Sterilization: A Progressive Measure? in Wisconsin Magazine of History, Spring 1960, p. 190.
[8] Justice Holmes' ringing declaration of confidence in the state of eugenic knowledge as it existed in 1927 has frequently been criticized, particularly when it became known at a later date that the child born to Carrie Buck, the subject of sterilization in Buck v. Bell, had previously given birth to a child who was "very bright." Murdock, Sterilization of the Retarded: A Problem or a Solution? 62 Cal. Law Rev. 917, 921 n. 22 (1974).
[9] The medical record introduced at the hearing does not disclose the etiology of Joan's disability. It characterizes Joan's retardation, at different times in her life, variously in terms such as "non-specific," "due to generalized cerebral dysfunction of uncertain etiology," compatible with "diffuse moderately severe encephalopathy," etc.
[10] An amendment proposed in 1967 would have limited the potential institutionalized subjects to "hereditary mental deficients" (emphasis supplied), deleting the criminal and mentally ill, and would have added other procedural safeguards. The bill died in committee in its house of origin. See No. 873, A. (1967).
By 1964, it appears that the statute was no longer being used by the Department of Health and Social Services. See Fiscal Note to S.B. 761 (1971). Repeal efforts began in 1969 (A.B. 784), were repeated in 1971 (S.B. 761), and succeeded in 1977 (A.B. 898, ch. 428, sec. 4, Laws of 1977).
For a review of sterilizations performed under sec. 46.12, Stats., from 1913 to 1947, see Odegard, Operation of Sterilization Statutes in Wisconsin Outlined, Public Welfare May 1947 (p. 15). For other commentaries on the operation of the law, See Ferster, Eliminating the Unfit, supra, Appendix C at 633; Richmond, Sterilization in Wisconsin, 25 J. Crim. L. & Criminology 586 (1934); Beier, The Operation of the Wisconsin Sterilization Law, Minn. Bd. of Control Q., May 1920, p. 7.
[11] Although we have concluded that the history of the 1913 legislation is irrelevant to the problem in this case, other rejected legislative proposals merit brief comment. Bill No. 682, A. (1935), inter alia, would, as amended, have authorized a spouse, parent, or legal personal guardian of a person who is "in such mental condition that he can not understand the effect of the treatment" to petition the county court for sterilization. The legislation provided that the court "shall" approve the sterilization if certain conditions were met. Under the bill, sterilization was to be appropriate if such a subject were old enough to conceive; had either an inheritable form of feeble-mindedness or "an incurable disease or defect such that pregnancy will probably cause her death or serious permanent illness or injury" (emphasis supplied); and that the sterilization could be performed with safety to the subject. See also Nos. 376, S. (1935) and 437, A. (1937). A somewhat similar bill, No. 436, A. (1939) (as amended), was also rejected. While we should not read much into the legislature's rejection or non-action on a bill, particularly where the legislation contains other provisions which could also explain the bill's demise, it is at least significant that there have been rejections of proposed legislation where a major concern of the legislation was not eugenic but concern for the incompetent's well being.
[12] Discussing the constitutional protection afforded to sterilization decisions of competent persons, see In re Grady, 85 N.J. 235, 426 A.2d 467 (1981), and cases discussed therein; Developments The Family, supra, 93 Harv. L. Rev. at 1307-08; Comment, A Constitutional Evaluation of Statutory and Administrative Impediments to Voluntary Sterilization, 14 J. Fam. L. 67 (1975).
[13] The parties and the courts below referred to the case of In re Guardianship of Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975). The court of appeals, in particular, appears to have read Pescinski as supporting its conclusion that a Wisconsin circuit court is without judicial power to authorize a sterilization such as the one proposed in this case.
In Pescinski, the guardian of an institutionalized schizophrenic petitioned the county court for authorization for the transplant of a kidney to a sister whose kidneys had been removed and whose condition was deteriorating. No other family members were available as donors. No "real" consent for the procedure was obtained from the incompetent prospective donor, nor any from his guardian ad litem. There was "absolutely no evidence . . . that any interests of the ward will be served by the transplant." Id. at 7. This court ruled that, absent real consent by the ward, there was no power in the county court to approve the operation. It stated that, "There is no statutory authority given the county court to authorize a kidney transplant or any other surgical procedure on a living person," and expressly declined to adopt the substituted judgment doctrine in Wisconsin. Id. at 7-8. The last paragraph of the opinion emphasized the importance of not taking advantage of incompetents and stated that, absent "real" consent and in a situation where no benefit to the ward has been shown, the county court (and this court) have no authority to approve the operation.
As our discussion, supra, on the plenary constitutional jurisdiction of Wisconsin circuit courts indicates, Pescinski, despite some of its broad language, should not be read as a ruling of want of jurisdiction. Rather, like the present case, Pescinski represents the exercise of judicial restraint under particular circumstances. Those circumstances included the lack of consent of the guardian ad litem, no showing of benefit to the ward, and an absence of legislative guidance. Pescinski should not be read as a ruling of want of jurisdiction, and, insofar as it may, we disavow that conclusion.
[14] Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973).
[15] For similar reasons, we do not construe sec. 880.38(2), Stats., as providing sufficient guidance. That section provides that, "A guardian of the person shall endeavor to secure necessary care, services or appropriate protective placement on behalf of the ward." A brief review of legislative history shows that this section was enacted as part of legislation establishing protective services for certain disabled and incompetent persons. See ch. 284, sec. 31, Laws of 1973, amended by ch. 393, sec. 39, Laws of 1975. We need not and do not decide the scope of meaning of the terms, "necessary care" and "services," in this case, for such unelaborated terms are clearly inadequate to serve as substantive or procedural safeguards of the many sensitive inquiries which would have to be made before a sterilization could, with propriety, be judicially authorized. Cf., In re Grady, 85 N.J. 235, 426 A.2d 467 (1981); Matter of Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635, 639-42 (1980).
[16] We note, for example, that nowhere in the present litigation is there any reference to the considerations which might be involved in the contraceptive or therapeutic sterilization of male incompetent persons. The limited factual posture of this case dictates this narrowed scope of inquiry. We imply no conclusion as to whether the sterilization of a male incompetent would involve the same or different considerations of public policy, individual rights, and "best interests" assessment as for a female incompetent person. We note only that a wider vision than that available to us in the context of this case would be necessary to address such questions.
[17] Indeed, the only expressed existing public policy on the question does reveal differential treatment, and suggests that the state discourages the sterilization of incompetent persons. Wisconsin, like the federal government, funds voluntary sterilizations of competent adults under the family planning provisions of the Medicaid (medical assistance) program. 4 Wis. Adm. Code ch. HSS, secs. 101.03(170) (p. 25); 104.01(7) (p. 51); 107.06(2) (zk) (p. 229); 107.21(1) (b)3g, (c)4, (2) (pp. 286-89). However, these rules like those of the federal government, 42 C.F.R. secs. 441.250-441.259 (1979) expressly exclude state financial coverage for sterilization of incompetent persons (as well as of persons under age 21 and of institutionalized persons). 4 Wis. Adm. Code ch. HHS secs. 101.03(168), (169) (p. 25); 105.36(1) (d) (p. 170); 107.06(2) (zk) (p. 229); 107.21(3) (p. 289). We recognize that this is an administrative policy judgment rather than a legislative one, and indeed, that it may in reality be a "compelled" policy undertaken by the State Department of Health and Social Services to comply with federal policy in order to ensure federal funding. Nonetheless, it rather clearly connotes the state's concern, as a matter of public policy, over the complex questions of consent and possible abuse which may arise in connection with the sterilization of incompetent persons.
[1] The record only reveals that Joan underwent an obstetrical and gynecological "evaluation" in May of 1977 for the purpose of determining whether she was a suitable candidate for an IUD.
[1] See footnote 3, infra.
[2] Dr. Ptacek, in my opinion, has very impressive credentials. He is board certified in Pediatrics and is a pediatric neurologist. At the trial he testified that he has seen thousands of mentally retarded people. He was medical director at Southern Colony and Training School at Union Grove, Wisconsin, for five years and had responsibility for some 1,800 retarded patients. He said, "For at least twenty-four years I have had the responsibility of the diagnosis and treating of individuals who are retarded."
[3] On May 18, 1978, Thomas J. Rice, M.D., wrote to Raymond E. Burrill, M.D., chairman, ethics committee St. Joseph's Hospital, recommending a tubal ligation for Joan Eberhardy. Among other things, he said: "I considered other methods of protection, however, aside from the I.U.D., I doubt that anything would be of value, and I hesitate to use this in her case."
On May 23, 1978, Dr. Burrill wrote to Dr. Rice: "Joan Eberhardy was approved by the medical ethics committee for sterilization."
Dr. Louis J. Ptacek testified that the ethics committee was made up of ". . . several physicians including a psychiatrist, and I believe people from the hospital administration and from the Diocese of La Crosse."
[4] In that case the guardian of the incompetent consented to a kidney transplant to save the life of the incompetent's sister, a woman thirty-nine years of age with six minor children. The case was decided by this court on March 4, 1975. The sister, Elaine Jeske, died on January 5, 1977. According to her death certificate, the "immediate cause" of death was "intracerebral hemorrhage." Under "conditions contributing to death but not related to cause" was listed "3rd state renal [kidney] disease." Death Certificate #77200078, dated February 14, 1977, Local File No. 78, on file with the Section of Vital Records, Wisconsin Department of Health and Social Services.
[5] See, for example, the sterilization guidelines established by the New Jersey Supreme Court. In re Grady, supra, 426 A.2d at 483 (1981).
[6] As, for instance, when it deals with comprehensive revision of divorce laws or adoption proceedings.
[7] The record includes a letter from Thomas J. Rice, M.D., dated May 21, 1979, in which he proposes use of the "Pomeroy technique" of tubal ligation, which has a sixty to seventy percent chance of successful reversal.
[8] See footnote 3.
[9] "The Merchant Of Venice," Act I, scene 3, line 98.
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7 So.3d 541 (2009)
POTTS
v.
MILLINGTON.
No. 2D09-1175.
District Court of Appeal of Florida, Second District.
April 21, 2009.
Decision without published opinion. App.dismissed.
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198 P.3d 511 (2008)
KELLY
v.
STATE, DEPT. OF SOCIAL AND HEALTH SERVICES.
No. 81639-5.
Supreme Court of Washington, Department I.
December 2, 2008.
Disposition of petition for review. Denied.
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18-2499
Morabito v. State of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 27th day of February, two thousand twenty.
PRESENT:
RALPH K. WINTER,
JOHN M. WALKER, JR.,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
David R. Morabito and Colette M.G. Morabito,
Plaintiffs-Appellants,
v. No. 18-2499
The State of New York, The State of New York
Department of Environmental Conservation,
and Basil Seggos, Acting Commissioner, New
York State Department of Environmental
Conservation,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFFS-APPELLANTS: David R. Morabito, Colette
M.G. Morabito, pro se, East
Rochester, NY.
FOR DEFENDANTS-APPELLEES: Claiborne E. Walthall,
Assistant Attorney General,
Susan L. Taylor, Assistant
Attorney General, Frederick
A. Brodie, Assistant Solicitor
General, Jeffrey W. Lang,
Deputy Solicitor General,
Barbara D. Underwood,
Solicitor General, for Letitia
James, Attorney General of
the State of NY, Albany, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (Telesca, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court dated June 19, 2018, and order dated August 7,
2018, are AFFIRMED.
Appellants David Morabito (an attorney) and Colette Morabito, proceeding pro se,1 appeal
the district court’s judgment dismissing their 42 U.S.C. § 1983 complaint and post-judgment order
denying their motion to vacate the judgment. The Morabitos sued the State of New York, the
New York State Department of Environmental Conservation (“DEC”), and Basil Seggos in his
official capacity (as Commissioner of the DEC), claiming that New York’s regulation banning
high-volume hydraulic fracturing (“HVHF”) violated the Takings and Due Process clauses of the
Constitution. After defendants moved to dismiss the complaint as barred by Eleventh
Amendment immunity, the Morabitos moved to amend. Their proposed amended complaint
attempted to circumvent Eleventh Amendment immunity by suing Seggos in his individual (rather
1
Although it is well-settled that “a court is ordinarily obligated to afford special solicitude to pro
se litigants” based on “[t]he rationale . . . that a pro se litigant generally lacks both legal training
and experience,” “a lawyer representing himself ordinarily receives no such solicitude at all.”
Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010). Because David Morabito is a licensed
attorney, the Morabitos are not entitled to the “special solicitude” afforded to the typical pro se
litigant.
than official) capacity and by seeking injunctive relief under § 1983, in addition to damages. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal, to which we refer only as necessary to explain our decision to affirm.
I. Dismissal
We review de novo a judgment of dismissal entered under either Federal Rules of Civil
Procedure 12(b)(1) or 12(b)(6).2 See Washington v. Barr, 925 F.3d 109, 113 (2d Cir. 2019). In
considering whether a governmental entity is entitled to Eleventh Amendment immunity, we
review a district court’s factual findings for clear error and its legal conclusions de novo. See
Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 134 (2d Cir. 2015).
“The Eleventh Amendment generally bars suits in federal court by private individuals
against non-consenting states.” Id. The Eleventh Amendment also bars damages claims brought
against state agencies and individual state defendants in their official capacities. See Kentucky v.
Graham, 473 U.S. 159, 169 (1985) (state officials in their official capacities); Gorton v. Gettel,
554 F.3d 60, 62 (2d Cir. 2009) (per curiam) (state agencies). It is well settled that § 1983 does
not override Eleventh Amendment immunity. Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d
Cir. 1990). The district court thus correctly held that the Eleventh Amendment barred the
Morabitos’ § 1983 suit against New York (a state), the DEC (a state agency), and Seggos (a state
official) in his official capacity. Although, as discussed below, the Morabitos also challenge the
2
Although the district court characterized its dismissal as falling under Rule 12(b)(6), it is more
appropriately characterized as a dismissal under Rule 12(b)(1), as it was based on sovereign
immunity. See Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990) (explaining the
federal courts “lack jurisdiction” over § 1983 claims that are barred by Eleventh Amendment
immunity (internal quotation marks omitted)).
3
district court’s holdings dismissing their claims against Seggos in his individual capacity and their
request for injunctive relief, they do not challenge the district court’s core holding barring their
other claims under the Eleventh Amendment.
II. Proposed Amendments
We generally review a district court’s denial of leave to amend a complaint for abuse of
discretion. See Grochowski v. Phx. Constr., 318 F.3d 80, 86 (2d Cir. 2003). If a district court
denies leave to amend because the proposed amended complaint does not state a claim upon which
relief can be granted, however, our review is de novo. Anderson News, L.L.C. v. Am. Media, Inc.,
680 F.3d 162, 185–86 (2d Cir. 2012). “While generally leave to amend should be freely granted,
it may be denied when there is a good reason to do so, such as futility, bad faith, or undue delay.”
Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002) (internal citation omitted). The district
court correctly held that the Morabitos’ motion to add claims against Seggos in his individual
capacity and to seek injunctive relief were attempts to circumvent Eleventh Amendment immunity
and therefore that amendment was futile.
First, the district court correctly held that the Morabitos failed to state a claim against
Seggos in his individual capacity under § 1983. “It is well settled that, in order to establish a
defendant’s individual liability in a suit brought under § 1983, a plaintiff must show, inter alia,
the defendant’s personal involvement in the alleged constitutional deprivation.” Grullon v. City
of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). As the district court observed, the Morabitos
failed to allege any personal involvement of Seggos in their alleged constitutional deprivation.
They argue, however, that Seggos is personally involved in the deprivation because, as the present
Commissioner, he is the only person who could modify or abolish the regulation. Although that
4
argument may be sufficient to sustain a claim for prospective relief (theirs fails for a different
reason, discussed below), it is insufficient to sustain a § 1983 damages claim for past alleged
constitutional deprivations that occurred on the watch of a different official. The Morabitos did
not make any allegations that Seggos had any personal involvement in the creation or enforcement
of the operative regulation. Cf. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (holding that,
where a prior official imposed an allegedly unconstitutional special condition of parole, an
allegation that another official not only continued that condition but actively enforced it by
arresting the plaintiff was sufficient to show personal involvement). Nor—to all appearances—
could they, since he assumed the commissioner’s position only after the regulation was adopted.
Second, we see no error in the district court’s ruling that the Morabitos’ motion to add a
request for injunctive relief (as opposed to damages under § 1983) was only a futile attempt to
avoid the Eleventh Amendment bar. If a complaint “alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective,” the Eleventh Amendment does not bar the
proceeding against a state. See Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645
(2002); see also In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) (“[A] plaintiff may
sue a state official acting in his official capacity—notwithstanding the Eleventh Amendment—for
prospective injunctive relief from violations of federal law.” (internal quotation marks omitted)).
But as the district court ruled, the Morabitos’ claim for injunctive relief was precluded by collateral
estoppel. Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must abide by
New York state court judgments, using New York case law to determine the effect of those
judgments. See Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005). “The
doctrine of collateral estoppel precludes a party from relitigating an issue which has previously
5
been decided against him in a proceeding in which he had a fair opportunity to fully litigate the
point.” Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 (1985) (internal quotation marks and
citations omitted). Collateral estoppel applies when “the identical issue necessarily . . . [was]
decided in the prior action and [is] decisive of the present action, and . . . the party to be precluded
from relitigating the issue . . . had a full and fair opportunity to contest the prior determination.”
Id.; see also Vargas v. City of New York, 377 F.3d 200, 205–06 (2d Cir. 2004).
In an Article 78 proceeding that he pursued in May 2015 in state court, David Morabito
urged that the state’s HVHF ban was unconstitutional. This is the same argument underlying his
proposed request for injunctive relief in the present action.3 The New York courts held that David
Morabito lacked standing to challenge the constitutionality of the regulation because he did not
demonstrate his own actual or imminent injury-in-fact. Matter of Morabito v. Martens, Dkt. No.
01-15-ST6838 (N.Y. Sup. Ct. 2016), aff’d, 149 A.D.3d 1316, 1316–17 (N.Y. App. Div. 3d Dep’t
2017), leave to appeal denied, 29 N.Y.3d 916 (2017). The standing issue was fully and fairly
litigated in the state courts and was necessary to the courts’ decisions. Indeed, it was the sole
holding of those courts. See Morabito, 149 A.D.3d at 1317. Further, the Second Circuit has
previously applied collateral estoppel to preclude parties from re-litigating issues of standing that
were already decided in New York state court. See Mrazek v. Suffolk Cty. Bd. of Elections, 630
F.2d 890, 896 n.10 (2d Cir. 1980) (holding that, where the New York courts had decided the issue
of standing, that decision was binding on the federal courts). Thus, the district court owed full
3
As the district court found, Colette Morabito is in privity with her husband David Morabito for
the purpose of collateral estoppel, and is therefore bound by our collateral estoppel ruling against
him. On appeal, the Morabitos do not challenge that finding.
6
faith and credit to the state courts’ standing holding and correctly applied collateral estoppel to bar
the Morabitos’ renewed claim for injunctive relief.
The Morabitos argue that collateral estoppel cannot apply in the federal action because the
state courts never decided the merits of their constitutional claims. This argument falls short. It
appears to confuse the doctrine of collateral estoppel (issue preclusion) with that of res judicata
(claim preclusion); collateral estoppel asks only if the issue (here, standing) was necessarily
decided and does not require the prior court to have determined the merits of the claims. Compare
Kaufman, 65 N.Y.2d at 455 (“[C]ollateral estoppel precludes a party from relitigating an issue
which has previously been decided against him[.]” (emphasis added) (internal quotation marks
omitted)), with Matter of Josey v. Goord, 9 N.Y.3d 386, 389 (2007) (“The doctrine of res judicata
precludes a party from litigating a claim where a judgment on the merits exists from a prior action
between the same parties involving the same subject matter.” (emphasis added) (internal quotation
marks and citation omitted)). Thus, the district court was bound to apply the state court ruling
that the Morabitos did not have standing to seek injunctive relief.
The Morabitos also argue that the state courts’ standing determination was incorrect
because it was based on their failure to apply for an HVHF permit for use on their property. This
argument, however, misconstrues the state court holdings. Those courts ruled that the Morabitos
lacked standing because they had not demonstrated an injury-in-fact for several reasons. These
included but were not limited to their failure to seek a permit. Morabito, 149 A.D.3d at 1317
(“[P]etitioner had not applied for a permit nor offered any proof that he met any of the requirements
to obtain a permit. He offered no proof of any plans to move forward with the process and
conceded that any plans would necessarily involve commitments by oil and gas exploration
7
companies, of which he had none.”). In any event, the Full Faith and Credit Clause precludes this
Court from reexamining the state courts’ standing determination, and the district court did not err
in concluding that it must give the decision binding effect. See Hoblock, 422 F.3d at 93.
Finally, the Morabitos argue that, because they were required—under Williamson County
Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194–96 (1985)—
to first exhaust remedies in state court before bringing a Takings Clause claim in federal court, the
federal court should not apply collateral estoppel to state court rulings on their claims. We are
not persuaded. The Morabitos are correct that the Supreme Court recently overturned the portion
of its Williamson decision that required exhaustion of remedies in state court. Knick v. Twp. of
Scott, 139 S. Ct. 2162, 2177 (2019) (holding, in contrast to Williamson, that a plaintiff asserting a
Takings Clause claim need not seek relief in state courts before bringing a claim in federal court).
That argument is inapposite, however, because the district court did not dismiss their claims for
failure to exhaust state remedies (as in Knick); ultimately, whatever the reason they did so, the fact
is that the Morabitos brought their claims in state court, where they lost. The district court was
required by federal law to apply collateral estoppel to issues decided in those proceedings.
III. Rule 59 and 60 Motions
Finally, the district court did not abuse its discretion in denying the Morabitos’ motion
under Federal Rules of Civil Procedure 59 and 60 for vacatur of the judgment. See Schwartz v.
Liberty Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir. 2008) (Rule 59(e) motion); Transaero, Inc. v. La
Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (Rule 60(b) motion).
“[R]econsideration [of a judgment] will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked. . . .” Shrader v. CSX Transp., Inc., 70
8
F.3d 255, 257 (2d Cir. 1995). Reconsideration is not warranted where the party seeks “solely to
relitigate . . . issue[s] already decided,” id., and reconsideration motions are “a mechanism for
extraordinary judicial relief invoked only if the moving party demonstrates exceptional
circumstances,” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (internal quotation
marks omitted). The Morabitos adduced no new data and pointed to no intervening decisions that
the court overlooked in rendering its first decision. Therefore, we affirm the district court’s order
for substantially the same reasons as were stated by the district court in its thorough Order of
August 7, 2018.
We have considered all of the Morabitos’ remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment and post-judgment order of the district
court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
9
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COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
SUFFOLK,ss. SJG11986
LILIANA MARIBEL RIVERA RECINOS
vs.
MARIA ISABEL RECINOS ESCOBAR
•'t
The judgment of the Probate and Family Court dated March 13, 2015, dismissing the
plaintiff's complaint is reversed. The Probate and Family Court has jurisdiction to entertain the
plaintiff's case, and the plaintiff is dependent on the court for these purposes. The court shall
conduct proceedings forthwith on the plaintiff's complaint and shall act on her requests for relief
expeditiously, such that, if the requested findings are made, she will have time to apply to the
rederal authorities for special immigrantjuvenile status before her twenty-first birthday on
December 5, 2015.
This order serve as the rescript of this court for purposes of Mass. R. A. P. 1 (c), and
will
shall issue to the trial court immediately. Opinion or opinions to follow.
By the Court,
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6646
LAVANZA C. MACK,
Petitioner – Appellant,
v.
STATE OF SOUTH CAROLINA; RAYMOND REED, Warden of the Manning
Correctional Institution,
Respondents – Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:09-cv-00275-TLW)
Submitted: November 18, 2010 Decided: November 30, 2010
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Lavanza C. Mack, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Alphonso Simon, Jr., OFFICE OF THE
ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lavanza C. Mack seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C. § 2254 (2006) petition. The
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. See 28 U.S.C. § 2253(c)(1)
(2006). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85. We have independently reviewed the record and
conclude that Mack has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
2
before the court and argument would not aid the decisional
process.
DISMISSED
3
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Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-14-00649-CR
Alex Rene GONZALES,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR7573
Honorable Maria Teresa Herr, Judge Presiding
BEFORE CHIEF JUSTICE MARION, JUSTICE ANGELINI, AND JUSTICE PULLIAM
In accordance with this court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
SIGNED November 10, 2015.
_____________________________
Karen Angelini, Justice
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08-1683-pr
Goldberg v. Tracy
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 17th day of February, two thousand ten.
PRESENT:
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges,
TIMOTHY C. STANCEU,*
Judge.
___________________________________________________
DARRIN GOLDBERG,
Petitioner-Appellant,
v. 08-1683-pr
FRANK TRACY, Superintendent, Downstate Correctional Facility,
Respondent-Appellee.**
____________________________________________________
*
The Honorable Timothy C. Stanceu, of the United States Court of International Trade,
sitting by designation.
**
The Clerk of the Court is directed to amend the official caption as set forth above.
For Appellant: DARRIN GOLDBERG , pro se, Warwick, NY
For Appellee: DOUGLAS NOLL, Assistant District Attorney (Peter A.
Weinstein, Andrew Fukuda, Assistant District Attorneys, on
the brief), for Kathleen M. Rice, District Attorney, Nassau
County, Mineola, NY
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Weinstein, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be AFFIRMED.
Appellant Darrin Goldberg, pro se, appeals from a judgment of the district court
denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus on the ground that he
received ineffective assistance of trial and appellate counsel. The district court granted a
certificate of appealability on, inter alia, “whether appellate counsel was ineffective in
failing to raise the ‘ill juror’ claim on appeal.” Goldberg v. Tracy, 247 F.R.D. 360, 401
(E.D.N.Y. 2008).1 We subsequently expanded the certificate of appealability to include:
“(1) whether trial counsel failed to advise Appellant about a second plea deal; and (2)
whether trial counsel misrepresented Appellant’s sentence exposure.” We assume the
parties’ familiarity with the underlying facts and the procedural history of the case.
We review de novo the district court’s denial of Goldberg’s petition for a writ of
habeas corpus. See Henry v. Ricks, 578 F.3d 134, 137 (2d Cir. 2000). Such a writ may not
issue for any claim adjudicated on the merits by a state court unless the state court decision
1
The district court, having held an evidentiary hearing at which Goldberg appeared by
telephone, also granted a COA on the following issues: “[W]hether Goldberg had waived his
physical production in court at the evidentiary hearing by failing to object,” and “whether
appellate counsel’s failure to inform petitioner about filing a pro se brief raising the ill juror issue
constituted ineffective assistance of counsel.” Goldberg, 247 F.R.D. at 401. However, Goldberg
failed to raise these issues on appeal, and he has therefore waived them. See Norton v. Sam’s
Club, 145 F.3d 114, 117 (2d Cir. 1998); LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d
Cir. 1995).
2
was “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or
was “based on an unreasonable determination of the facts in light of the evidence
presented” in state court, id. § 2254(d)(2). Moreover, factual determinations made by a
state court are “presumed to be correct,” and that the petitioner bears the burden of
rebutting that presumption by clear and convincing evidence. Id. § 2254(e)(1).
A criminal defendant seeking to overturn his conviction based on ineffective
assistance of counsel “bears a heavy burden.” United States v. Gaskin, 364 F.3d 438, 468
(2d Cir. 2004). To succeed on the ineffective assistance claim in his habeas petition,
Goldberg was required to demonstrate that (1) the performance of his counsel was
objectively unreasonable and (2) there is a reasonable probability that, but for his counsel’s
deficient performance, the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). This standard applies to claims
involving both trial and appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d
Cir. 1994). Upon our review of the state court’s factual findings, as limited by the habeas
statute, we conclude that Goldberg did not meet this burden.
After conducting an evidentiary hearing, the Nassau County Court denied the
motion Goldberg made under New York Criminal Procedure Law § 440.10, in which
Goldberg claimed that his trial counsel was constitutionally ineffective for failing to convey
to him the terms of a second plea offer, failing to advise him about that offer, and failing to
inform him of his maximum sentence exposure.
We conclude that Goldberg did not rebut by clear and convincing evidence the
presumption that the state court correctly found that Goldberg’s trial counsel informed
3
Goldberg of the maximum sentencing exposure. See 28 U.S.C. §§ 2254(d)(2), (e)(1).
Although the reasonableness of the state court finding that Goldberg was informed of and
advised on the second plea offer is perhaps open to question, we need not determine
whether Goldberg has overcome the statutory presumption that the state court’s factual
determination was correct on this issue. Even if we assume that Goldberg’s attorney did
not communicate the plea offer, and therefore the first Strickland prong is met, Pham v.
United States, 317 F.3d 178, 182 (2d Cir. 2003), we find that Goldberg has failed to
demonstrate by clear and convincing evidence that there existed, under the circumstances, a
reasonable probability that he would have accepted the offer had it in fact been made, see
Puglisi v. United States, 586 F.3d 209, 217 (2d Cir. 2009); see also Richard S. v.
Carpinello, 589 F.3d 75, 86 (2d Cir. 2009) (finding that even if evidence identified by the
petitioner “carries some, perhaps even substantial, weight . . . it [may still] fail[] to rebut by
clear and convincing evidence the state courts’ findings”).
With respect to Goldberg’s claim that his appellate counsel was constitutionally
ineffective for failing to raise on appeal an issue involving an “ill juror,” the Appellate
Division denied his application for a writ of error coram nobis on this ground. Goldberg
has failed to demonstrate that this decision was contrary to, or involved an unreasonable
application of, the Supreme Court standards governing such claims. See Strickland, 466
U.S. at 687; Jones v. Barnes, 463 U.S. 745, 754 (1983) (holding that appellate counsel is
not required to raise every possible non-frivolous issue); Mayo, 13 F.3d at 533.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4
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76 P.3d 424 (2003)
206 Ariz. 153
STATE of Arizona, Appellee,
v.
Leroy D. CROPPER, Appellant.
No. CR-00-0544-AP.
Supreme Court of Arizona.
September 5, 2003.
*425 Janet Napolitano, Former Attorney General, Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, and James P. Beene, and John P. Todd, and Bruce M. Ferg Tucson, Assistant Attorneys General, Phoenix, Attorneys for the State of Arizona.
Thomas A. Gorman and David I. Goldberg, Flagstaff, Attorneys for Leroy D. Cropper.
SUPPLEMENTAL OPINION
McGREGOR, Vice Chief Justice.
¶ 1 The only issue before us is whether reversible error occurred when a trial judge sentenced Leroy D. Cropper to death under a procedure that violated the right to a jury trial under the Sixth Amendment to the United States Constitution. See Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002) (Ring II). We have jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) section 13-4031 (2001). Based on our review of the record, we cannot conclude that the Sixth Amendment violation constituted harmless error.
I.
¶ 2 In Ring II, the United States Supreme Court held that Arizona's former capital sentencing scheme violated the Sixth Amendment. Ring II, 536 U.S. at 609, 122 S.Ct. at 2443. The Court declared that "[c]apital defendants, no less than non-capital defendants... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Id. at 589, 122 S.Ct. at 2432. The Court reversed our decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring I), and remanded for further proceedings consistent *426 with its decision. Ring II, 536 U.S. at 609, 122 S.Ct. at 2443.
¶ 3 Following the Supreme Court's Ring II decision, we consolidated all death penalty cases in which this court had not yet issued a direct appeal mandate to determine whether Ring II requires this court to reverse or vacate the defendants' death sentences. In State v. Ring, 204 Ariz. 534, 555 ¶ 53, 65 P.3d 915, 936 (2003) (Ring III), we held that we will examine a death sentence imposed under Arizona's superseded capital sentencing statutes for harmless error.
II.
¶ 4 Cropper pled guilty to first degree murder, dangerous or deadly assault by a prisoner, and three counts of promoting prison contraband for the murder of Arizona Department of Corrections (ADOC) Officer Brent Lumley. Officer Lumley was murdered after he and a fellow corrections officer, Deborah Landsperger, searched Cropper's cell at the Perryville State Prison.[1]
¶ 5 After entering judgment, the trial judge conducted a sentencing hearing to determine whether any aggravating or mitigating circumstances existed. See A.R.S. § 13-703 (Supp.1999), amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1. The judge found three aggravating circumstances and two mitigating circumstances. He found, beyond a reasonable doubt, that Cropper had been convicted of a prior serious offense, A.R.S. section 13-703.F.2 (Supp.2002), that he murdered Officer Lumley in an especially cruel manner, A.R.S. section 13-703.F.6, and that he committed the murder while in the custody of ADOC, A.R.S. section 13-703.F.7.
¶ 6 Cropper presented six mitigating circumstances to the court. The judge accepted two non-statutory mitigators: that Cropper has a strong relationship with certain family members and that he expressed remorse for the killing. He rejected four: that Cropper's capacity to appreciate the wrongfulness of his conduct and his ability to conform his conduct to the requirements of the law were significantly impaired, A.R.S. section 13-703.G.1; that Cropper grew up in a dysfunctional family; that he has a substance abuse problem; and that his psychological background and dysfunctional family contributed to his behavior. The judge concluded that the established mitigating circumstances were not sufficiently substantial to call for leniency and sentenced Cropper to death.
¶ 7 We affirmed Cropper's convictions on direct appeal and ordered supplemental briefing on the issue of whether the Sixth Amendment Ring II error was harmless. Cropper, 205 Ariz. at 186 ¶ 25, 68 P.3d at 412. We will find constitutional error harmless if we conclude, beyond a reasonable doubt, that the error did not contribute to or affect the sentencing outcome. Ring III, 204 Ariz. at 565, ¶¶ 103-04, 65 P.3d at 946. If we conclude that reasonable doubt exists, however, then the error is prejudicial and the case must be remanded for a new sentencing hearing under Arizona's amended capital sentencing statutes. Id. at 565, ¶ 102, 65 P.3d at 946.
III.
A.
¶ 8 Under Arizona law, an aggravating circumstance exists when "[t]he defendant was previously convicted of a serious offense, whether preparatory or completed." A.R.S. § 13-703.F.2. The trial judge found that Cropper had been previously convicted of aggravated assault. Cropper, 205 Ariz. at 183 ¶¶ 11-12, 68 P.3d at 409.
¶ 9 In Ring III, we held "that the Sixth Amendment does not require a jury to determine prior convictions under sections 13-703.F.1 and F.2." 204 Ariz. at 556 ¶ 55, 65 P.3d at 937. Accordingly, we will not disturb the trial judge's finding that the prior serious conviction aggravating circumstance exists.
B.
¶ 10 An aggravating circumstance exists when the defendant commits first degree *427 murder while in the custody of ADOC. A.R.S. § 13-703.F.7. Because Cropper concedes this aggravating circumstance, we recognize it as established.[2]See Ring III, 204 Ariz. at 536 ¶ 93, 65 P.3d at 944.
C.
¶ 11 Another aggravating circumstance exists when "[t]he defendant committed the offense in an especially heinous, cruel or depraved manner." A.R.S. § 13-703.F.6. The State must prove at least one of the three components to establish this aggravator. State v. Jeffers, 135 Ariz. 404, 429, 661 P.2d 1105, 1130 (1983).
¶ 12 The trial judge found that Cropper committed the murder in an especially cruel manner. In State v. Knapp, we defined "cruel" as "disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic." 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977) (quoting Webster's Third New Int'l Dictionary). Physical cruelty exists when "the victim consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur." State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997) (citations omitted).
¶ 13 At the aggravation/mitigation hearing, the State presented testimony from Dr. Philip Keen, Chief Medical Examiner for Maricopa and Yavapai Counties. Dr. Keen testified that Officer Lumley was attacked from behind and stabbed six times. The knife entered his neck and chest; the most critical entry penetrated one of his lungs. According to Dr. Keen, Officer Lumley lived at least five minutes after the stab wounds were inflicted and remained conscious for at least three of those minutes. Dr. Keen further testified that the cuts severed a group of nerves in Lumley's body. The nerve damage, according to Dr. Keen, would have caused suffering. When asked if the injury would have caused a substantial amount of pain, Dr. Keen responded, "There would be some pain. Substantial? Everybody ... has a different pain threshold and so I don't know how to quantitate the individual pain." The defense presented no credible rebuttal evidence.
¶ 14 In State v. Soto-Fong, we clarified the meaning of an especially cruel murder. 187 Ariz. 186, 203-04, 928 P.2d 610, 627-28 (1996). We held that the State had failed to produce sufficient evidence to support the trial court's finding of physical cruelty because the finding was "based on the assumption that a murder is especially cruel whenever the victim remains conscious for some moments after being shot." Id. at 203, 928 P.2d at 627. Although proving the aggravator does not depend on satisfying "a bright-line, arbitrary temporal rule," we cautioned that finding a murder especially cruel within the meaning of section 13-703.F.6 based on such an assumption would frustrate the narrowing purpose of the aggravating circumstance. Id. at 204, 928 P.2d at 628. Instead, we concluded, "where shots, stabbings, or blows are inflicted in quick succession, one of them leading rapidly to unconsciousness, a finding of cruelty, without any additional supporting evidence, is not appropriate." Id.
¶ 15 Our decision in Soto-Fong developed our holding in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983), in which we had distinguished between two groups of cases involving the cruelty aggravator. The first group consisted of two cases in which we sustained an F.6 finding. In Knapp, we upheld the trial court's finding where the "defendant burned to death his two infant daughters." Id. at 51, 659 P.2d at 10, quoted in Soto-Fong, 187 Ariz. at 203, 928 P.2d at 627. Similarly, in State v. Mata, 125 Ariz. 233, 609 P.2d 48 (1980) we upheld the finding where "the killers performed successive rapes and severe beatings on the victim prior to murdering *428 her." Id., quoted in Soto-Fong, 187 Ariz. at 203, 928 P.2d at 627.
¶ 16 The second Gretzler group consisted of three cases in which we reversed or vacated the trial court's finding of especial cruelty because the State failed to sufficiently establish physical suffering. In State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981), and State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980), we overturned the trial judge's finding of cruelty because the evidence of the victim's suffering was inconclusive. Gretzler, 135 Ariz. at 51, 659 P.2d at 10, cited by Soto-Fong, 187 Ariz. at 203, 928 P.2d at 627. In State v. Bishop, 127 Ariz. 531, 622 P.2d 478 (1980), and State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), we held that suffering could not have occurred because the evidence indicated the victims died immediately after the attack. Gretzler, 135 Ariz. at 51, 659 P.2d at 10, cited by Soto-Fong, 187 Ariz. at 203, 928 P.2d at 627.
¶ 17 The manner in which Officer Lumley died is neither as patently cruel as were the deaths in Knappand Mata nor as swift as those in Bishop and Clark. Because Officer Lumley remained conscious for a relatively short time, however, the State bore the burden of providing some additional supporting evidence of cruelty. Soto-Fong, 187 Ariz. at 204, 928 P.2d at 628. On this record, we cannot hold that all reasonable juries would find the especially cruel aggravating circumstance established beyond a reasonable doubt. Cf. State v. Jones, 205 Ariz. 445, 449 ¶ 14, 72 P.3d 1264, 1268 (2003) (holding that a jury could conclude that the victim lost consciousness immediately following the first assault); State v. Cañez, 205 Ariz. 620, 624 ¶ 15, 74 P.3d 932, 936 (2003) (same). Therefore, Cropper is entitled to a jury finding on this aggravating circumstance.
IV.
¶ 18 To sentence a defendant to death, not only must the trier of fact find, beyond a reasonable doubt, the existence of one or more aggravating circumstances, but it also must consider whether any mitigating circumstances are sufficiently substantial to call for leniency. See A.R.S. § 13-703.E (Supp.2002). We may "affirm a capital sentence only if we conclude, beyond a reasonable doubt, that no rational trier of fact would determine that the mitigating circumstances were sufficiently substantial to call for leniency." Ring III, 204 Ariz. at 565 ¶ 104, 65 P.3d at 946.
¶ 19 Cropper offered several mitigating circumstances for the court's consideration. The trial judge found only two mitigators, and he did not find their weight sufficiently substantial to call for leniency.
¶ 20 The defense's main theory in mitigation was that the cell search caused Cropper to relive childhood trauma, thereby forcing him into a dissociative state. According to the defense, Cropper, as a child, was severely abused by his stepmother. Cropper's father often witnessed the abuse and did not intervene on behalf of his son. These past psychological traumatic experiences allegedly matched the cell-search event closely enough to trigger Cropper's reaction and subsequent conduct. Therefore, Cropper became verbally confrontational with Officer Landsperger because he believed that she, like his stepmother, did not respect him and his property. While it was she who allegedly disrespected his property, Cropper held Lumley ultimately responsible because he, like his father, should have intervened.
¶ 21 The defense presented the testimony of three experts, including one neurologist, to support its theory. One of the defense experts, Dr. Susan Parrish, was questioned about Cropper's dissociative state and about why Cropper would attack Officer Lumley rather than Officer Landsperger. Dr. Parrish answered:
Leroy was in a dissociative state and was flashing back to what happened in his childhood. Because it's his father that he has the hatred for. He, he doesn'the does not blame his stepmother. I mean in his, in his view, you know, there's a principle here. This is a man, you know, a father with aan architect father here is standing by and allowing an injustice, that the person doing it is not recognizing because they have their own, own set of problems. So it's the person who allows *429 this to go on and knows that it's wrong that is the focus of his anger.
....
[E]arly on he felt very close to his father. And it's possible that that sense of closeness that his father ... from his standpoint betrayed, is what created the foundation for such hate towards a male authority figure. And, and sort of dismissing the role of the female.
¶ 22 The State presented rebuttal evidence in the form of testimony by psychologist Dr. Jess Miller. Dr. Miller evaluated Cropper and concluded that he did not commit the murders in an "altered state," as theorized by Dr. Parrish. Instead, in Dr. Miller's opinion, Cropper suffers from a sociopathic personality disorder. Dr. Miller concluded that Cropper manipulated the psychological evaluations.
¶ 23 The judge rejected this mitigating circumstance because he failed to find a causal nexus between Cropper's childhood experiences and Officer Lumley's murder. After reviewing the trial record, we cannot conclude, beyond a reasonable doubt, that a jury would do the same. Dr. Parrish testified both that Cropper committed the murder while in a dissociative state and that his childhood trauma caused him to enter that state. Whether or not this theory is credible and, if so, whether a causal nexus exists between Cropper's early life experiences and the murder are questions of facts that require judging the credibility and weight of the defense's mitigation evidence and the State's rebuttal. We cannot conclude, beyond a reasonable doubt, that a jury would not have weighed differently the established mitigating circumstances or found additional mitigating circumstances.
V.
¶ 24 For the foregoing reasons, we vacate Cropper's death sentence and remand for resentencing under A.R.S. sections 13-703 and 13-703.01 (Supp.2002).
CONCURRING: REBECCA WHITE BERCH and MICHAEL D. RYAN, Justices.
Justice HURWITZ took no part in the consideration or decision of this case.
JONES, C.J., concurring in part, dissenting in part:
¶ 25 I concur in the result, but dissent from the majority's conclusion that harmless error analysis is appropriate where sentencing determinations are made by the trial judge in the absence of the jury. The right to trial by an impartial jury is fundamental. The sentencing phase is, of itself, a life or death matter. Where a judge, not a jury, determines all questions pertaining to sentencing, I believe a violation of the Sixth Amendment to the Constitution of the United States has occurred. In the aftermath of the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II), the absence of the jury in the sentencing phase of a capital trial necessarily amounts to structural error. I would remand the case for resentencing, simply on the basis of the Sixth Amendment violation. See State v. Ring, 204 Ariz. 534, 565-67 ¶¶ 105-14, 65 P.3d 915, 946-48 (2003) (Feldman J., concurring in part, dissenting in part) (Ring III).
NOTES
[1] For a more thorough description of the facts, see State v. Cropper, 205 Ariz. 181, 68 P.3d 407 (2003).
[2] Although Cropper concedes that the in-custody aggravating circumstance exists, the F.7 aggravator also can be implicit in a verdict. Cf. Ring III, 204 Ariz. at 561 ¶ 83, 65 P.3d at 942 (holding that the age of the victim aggravating circumstance can be implicit in a jury verdict where the defendant is simultaneously convicted of a relevant-age-dependent crime). When a jury simultaneously convicts a defendant of first degree murder and deadly or dangerous assault by a prisoner, the F.7 aggravator is implicitly established even though the aggravator itself was not found by a jury.
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153 Cal.App.3d 327 (1984)
200 Cal. Rptr. 219
J.T. THORP, INC., et al., Petitioners,
v.
WORKERS' COMPENSATION APPEALS BOARD and WILLIAM B. BUTLER, Respondents.
Docket No. 22964.
Court of Appeals of California, Third District.
March 20, 1984.
*329 COUNSEL
Mullen & Filippi, William J. O'Neil and William J. Armstrong for Petitioners.
David P. Mastagni, Douglas E. Jaffe and Peter O. Slater for Respondents.
*330 OPINION
SIMS, J.
In this case of first impression in the appellate courts, we address the question whether an employee suffering from asbestosis[1] can obtain workers' compensation reimbursement for disease-related medical expenses incurred in the disease's latent stages prior to the onset of any occupational disability. If so, does the pursuit of such a claim by the employee trigger statutes that limit the employer's exposure for medical or disability claims to those filed within five years of the employee's initial diagnosis even if the disease subsequently progresses to serious and disabling stages?
We conclude an employee suffering from asbestosis may obtain reimbursement for predisability medical expenses. Moreover, an award of such expenses does not prohibit the board from awarding additional compensation for medical expenses or for disability manifesting itself more than five years after initial diagnosis or treatment. We therefore affirm the board's decision and award in this case.
In reaching our conclusion, we are called upon to interpret a complex statutory scheme not originally designed to deal with the peculiar problems of asbestosis.[2] Although, as we shall see, workers' compensation statutes have been amended piecemeal over the years in an attempt to deal with the problem of long-term latent disease, these attempts have not produced a wholly coherent matrix of statutes.
*331 Needless to say, we think the problem at hand is correctly solved according to presumptions mandated by law. But we recognize that our synthesis of the applicable workers' compensation statutes leaves this statutory universe with perplexing quarks. Accordingly, we suggest that some statutory cleanup work by the Legislature would be in order.[3]
FACTUAL AND PROCEDURAL BACKGROUND
Evidence and testimony introduced at William Butler's hearing before a worker's compensation judge (hereafter WCJ) revealed the following:
Butler worked for petitioner J.T. Thorp, Inc. as an asbestos mixer-operator in 1945 and 1946. In 1978 Butler suffered from pneumonia and had X-rays taken by lien claimant Permanente Medical Group at Kaiser Hospitals. The X-rays revealed that Butler had asbestosis. X-rays taken in 1980 and 1981 showed that the asbestosis had progressed, but doctors decided against attempting surgery. Butler remains in general good health and bicycles daily. The sole medical opinion concluded that Butler was not disabled as of the time of the opinion, but annual chest X-rays were recommended. Lien claimant Permanente Medical Group presented an itemization of expenses for X-rays and associated services in the amount of $322.40.
Although not entirely clear from the record, it appears that Butler sought in his compensation proceeding to recover disability indemnity as well as reimbursement for medical expenses.[4]
Following the hearing the WCJ issued findings of fact, finding inter alia that: "[¶] 3. It is too early to determine the date of injury, as injury had not yet caused either compensable temporary disability or permanent disability. [¶] 4. It is too early to rate for permanent disability. [¶] 5. Applicant's claim is not barred by the statute of limitations. [¶] 6. Further medical treatment is required to cure and relieve from the effects of said injury. [¶] 7. Applicant has reasonably incurred expense for self-procured medical treatment in the sum of $322.40 by Permanente Medical Group-Kaiser Foundation Hospitals, for which he is entitled to reimbursement, payable directly to Permanente Medical Group." (Italics added.)
*332 The WCJ made an award for "(a) Such further medical treatment as is reasonably required to cure and relieve from the effects of the injury herein" and "(b) Reimbursement of expense of self-procured medical treatment as set forth in Finding No. 7 [for the treatments at Kaiser]."
Petitioners' petition for reconsideration was denied by the board, and this petition followed.
Petitioners contend that: (1) the board acted without or in excess of its powers by failing to determine a "date of injury" for Butler's industrially related asbestosis (Lab. Code, § 5412)[5]; (2) the board's "deferral" of a finding of permanent disability was beyond or in excess of its powers; and (3) the WCJ's decision is not supported by substantial evidence.
DISCUSSION
I
In order to place petitioners' contentions in their proper context, we begin with an overview of the pertinent provisions of California's Workers' Compensation Act (hereafter Act).
A
Compensation may be awarded under the Act for any injury or disease arising out of and in the course of employment. (§§ 3208, 3600; Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 865 [101 Cal. Rptr. 105, 495 P.2d 433]; 2 Witkin, Summary of Cal. Law (8th ed. 1973) Workmen's Compensation, § 112, p. 944.) The Act defines "injury" broadly[6] to include both injuries and diseases; and it separates "injuries" into two categories, "`specific,' occurring as the result of one incident or exposure which causes disability or need for medical treatment," and "`cumulative,' occurring as repetitive mentally or physically traumatic activities extending *333 over a period of time, the combined effect of which causes any disability or need for medical treatment." (§ 3208.1, italics added.)
A compensable injury may render the employer liable for, among other things, the cost of medical treatment (§ 4600; Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 405-406 [71 Cal. Rptr. 678, 445 P.2d 294]; 2 Witkin, op. cit. supra, § 161, p. 986) and indemnity for temporary or permanent disability (§ 4650 et seq.; Herrera v. Workmen's Comp. App. Bd. (1969) 71 Cal.2d 254, 257 [78 Cal. Rptr. 497, 455 P.2d 425]; 2 Witkin, op. cit. supra, § 168, p. 990).
(1) Medical treatment and disability indemnity are separate and distinct elements of compensation which fulfill different, though complementary, legislative goals. Employer liability for medical and surgical services is provided in major part in order to facilitate the worker's speedy recovery and to maximize his productive employment. (Zeeb v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 496, 500 [62 Cal. Rptr. 753, 432 P.2d 361].) (2) Temporary disability indemnity is intended primarily to substitute for the worker's lost wages, in order to maintain a steady stream of income. (See Granado v. Workmen's Comp. App. Bd., supra, 69 Cal.2d at pp. 403-404.) (3) Permanent disability indemnity has a dual function: to compensate both for actual incapacity to work and for physical impairment of the worker's body, which may or may not be incapacitating. (Id., at p. 404.)
Employer liability for medical treatment is provided by section 4600.[7] It is not surprising, in light of the different purposes underlying medical and disability indemnity compensation, that section 4600 imposes no requirement that the employee be disabled in order to qualify for medical treatment compensation. Rather, section 4600 speaks merely in terms of relieving the effects of "the injury," which is broadly defined in section 3208 to include any injury or disease arising out of the employment, whether disabling or not. (See fns. 6 & 7, ante.)
Pursuant to the statute of limitations set forth in section 5405,[8] original proceedings for disability indemnity and medical care may be commenced *334 within one year from: (1) the date of injury; or (2) the expiration of the period covered by the employer's last payment of disability indemnity; or (3) the date of the last furnishing by the employer of medical, surgical or hospital treatment, whichever period is most favorable to the employee. (Cal. Workmen's Compensation Practice, op. cit. supra, § 4.13, p. 101; Colonial Ins. Co. v. Ind. Acc. Com. (1945) 27 Cal.2d 437, 441 [164 P.2d 490]; see also 2 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d ed., 1983 rev.) § 18:02, pp. 18-9 18-10; 2 Witkin, op. cit. supra, §§ 233-235, pp. 1046-1047.)
Section 5404[9] provides that the timely filing of an application with the board for compensation renders the statutes of limitations (§§ 5404-5412) inoperative as to all further claims by the filing party against the named defendants for that injury. (2 Hanna, op. cit. supra, § 18.02, pp. 18-9 18-10.) Section 5404 then provides that once a claim is filed, any further claims against the same defendants "for compensation arising from that injury" are governed by sections 5803 through 5805.[10] (See fn. 9, ante.) "In essence sections 5803-5805 (referred to, as noted, in § 5404) confer continuing jurisdiction to the commission over its orders, decisions and awards which, for good cause shown, the commission can `rescind, alter or amend' or `review, grant or regrant, diminish, increase or terminate' (§ 5803) within *335 five years from date of injury (§ 5804), such changes having the effect of the original order (§ 5805)." (Royal Indem. Co. v. Industrial Acc. Com. (1966) 239 Cal. App.2d 917, 920 [49 Cal. Rptr. 224], italics added; see 2 Hanna, op. cit. supra, § 18.02[2], pp. 18-9 18-10.)
(4) Although sections 5803-5805 appear on their face to confer continuing jurisdiction over all classes of supplemental claims, supplemental claims for "new and further disability" and "vocational rehabilitation benefits" are governed by section 5410,[11] not sections 5803-5805. (See Zurich Ins. Co. v. Workmen's Comp. Appeals Bd. (1973) 9 Cal.3d 848, 854-858 [109 Cal. Rptr. 211, 512 P.2d 843] (conc. opn. of Sullivan, J.).)[12] Under section 5410, an employee who has previously been furnished workers' compensation benefits either voluntarily by the employer or pursuant to a board award is entitled to claim benefits for new and further disability within five years after the "date of injury." (§ 5410; Standard Rectifier Corp. v. Workmen's Comp. App. Bd. (1966) 65 Cal.2d 287, 290 [54 Cal. Rptr. 100, 419 P.2d 164]; cf. Piedemonte v. Western Asbestos et al., supra, 46 Cal.Comp.Cases at p. 483; 1 Hanna, op. cit. supra, § 9.03, p. 9-21.)
In short, once an employee files a claim for compensation against an employer for an "injury," the board's jurisdiction to award additional compensation arising out of the same injury (even if styled "new and further disability") from that employer is limited to five years from the "date of injury." (§§ 5410, 5803-5805; Liberty Mut. Ins. Co. v. Workers' Comp. Appeals Bd. (1981) 118 Cal. App.3d 265, 273 [173 Cal. Rptr. 349].)
*336 (5a) But what is meant by "date of injury?" The term is defined by statute. Labor Code section 5411[13] provides in pertinent part that the "date of injury" for most injuries is "that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed."
For cumulative injuries and occupational diseases this definition is inadequate, however, as there is no single date on which an incident or exposure can be said to have occurred. (See Fruehauf Corp. v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 569, 571 [68 Cal. Rptr. 164, 440 P.2d 236].) Accordingly, the Legislature has provided a second definition of "date of injury," specifically applicable to cumulative injuries and occupational diseases such as asbestosis. Labor Code section 5412 provides that, "The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." (Italics added.) (2 Hanna, op. cit. supra, § 18.03[5], pp. 18-17 18-18; 2 Witkin, op. cit. supra, § 235, pp. 1046-1047.) The term "disability" as used in section 5412 is, of course, to be given the same meaning as elsewhere in the Act (see Estate of Downing (1982) 134 Cal. App.3d 256, 265 [184 Cal. Rptr. 511]), i.e., an impairment of bodily functions which results in the impairment of earnings capacity. (Marsh v. Industrial Acc. Com. (1933) 217 Cal. 338, 344 [18 P.2d 933, 86 A.L.R. 563]; see Associated Indem. Corp. v. Ind. Acc. Com. (1945) 71 Cal. App.2d 820, 824 [163 P.2d 771]; 2 Hanna, op. cit. supra, § 13.01, p. 13-2.)[14] Accordingly, where an employee suffers from a cumulative injury or occupational disease, there is a "date of injury" only at such time as the employee suffers an impairment of bodily functions which results in the impairment of earnings capacity.
(6) With this overview in mind, we turn to petitioners' contention that the board had a duty to set a date of injury.
B
With refreshing candor, petitioners admit that their attempt to make the board set a "date of injury" is designed to trigger the five-year limit on the *337 board's power to award compensation. (§§ 5410, 5804.) Petitioners contend they are legally entitled to have a date of injury set and desire such so that they may rationally plan for their monetary exposure for Butler's disease.
Petitioners' articulated contention is easily disposed of. As we have noted, section 5412 specifies that, in cases of occupational diseases, the "date of injury" occurs only at such time as an employee becomes disabled. The evidence before the board was uncontradicted that Butler was not disabled because he had suffered no impairment of earnings capacity. (See 2 Hanna, op. cit. supra, § 13.01, p. 13-2.) The board's finding of fact number 3 properly states that "It is too early to determine the date of injury, as injury has not yet caused either compensable temporary disability or permanent disability." Since no statutory "date of injury" had occurred in Butler's case, the board had no duty to set it.
We note that Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (1983) 145 Cal. App.3d 480 [193 Cal. Rptr. 471], cited by the board, is not on point. Industrial Indemnity involved the application of section 5500.5 which limits the liability of employers for occupational diseases or cumulative injuries arising from more than one employment. Section 5500.5 provides in pertinent part that liability for such injuries or diseases shall be limited to those employers who employed the employee during the one to four years "immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him to the hazards of such occupational disease or cumulative injury, whichever occurs first." (Italics added.)
In Industrial Indemnity the WCJ did not determine which of several employers should be held liable for the employee's asbestosis but instead deferred a determination of the issue, reasoning that "`[d]epending upon what labor disabling asbestos related condition the applicant may ultimately develop, the last injurious exposure may vary.'" (Id., at p. 484; italics added.) The WCJ was concerned that the latency periods of different asbestos-related diseases were different by a factor of several years, and he wished to defer fixing liability on a particular employer until it became known which, if any, disease(s) the applicant would develop. (Ibid.) The court of appeal held that the WCJ's deferral of employer liability was error, inasmuch as section 5500.5, in the words of the court, "authorizes finding that the last date of occupational exposure to the disease-producing agent asbestos, is the pertinent date of injury for the occupational disease asbestosis, in the absence of evidence that a different period of exposure was exclusively hazardous." (Id., at p. 486; first italics original; second italics added.) Concluding there was no substantial evidence indicating any dispute *338 as to the employee's last date of exposure, the court held deferral of employer liability was error. (Ibid.)
The Industrial Indemnity court's reference to "the pertinent date of injury" (as opposed to period of exposure) was both gratuitous and unfortunate. The statute construed by the court, section 5500.5, itself distinguishes between a "date of injury" and last date of employment in an occupation exposing an employee to hazards: either is sufficient to fix the identity of employers liable for the employee's injury. Consequently, for purposes of section 5500.5, "date of injury" is not the same thing as the last date of exposure.
Nor was "date of injury" at issue in the Industrial Indemnity case. The dispute in the case under section 5500.5 focused exclusively on last date of employment exposing the employee to hazards, not "date of injury." Moreover, the court was not at all concerned with when such exposure would lead to employee disability. (Cf. Smith v. Johns-Manville Products Corp. (1981) 46 Cal.Comp.Cases 557, 562.) In short, nothing in section 5500.5 or in Industrial Indemnity properly suggests that "date of injury" is to be determined other than by reference to when the employee became disabled and was aware of industrial causation as stated in section 5412. The case has no bearing on the questions at hand.[15]
(7a) A question not specifically posed by petitioners,[16] but implicitly necessary to our holding and to a rational resolution of this case, is whether Butler could legally claim compensation for his asbestosis-caused medical expenses incurred prior to the onset of disability and a "date of injury." After all, how can an employee possibly be compensated for an "injury" when there has been no "date of injury?" That question is not so easily answered.
C
An employee suffering from asbestosis faces three hurdles in an attempt to recover pre-disability (and therefore predate-of-injury) medical expenses. The first is that the statute of limitations in section 5405 provides that the period within which to commence proceedings for medical treatment and disability indemnity compensation is one year from the "date of injury," or the last furnishing of benefits. (See Colonial Ins. Co. v. Ind. Acc. Com., *339 supra, 27 Cal.2d at pp. 440-441; see also fn. 8, ante.) A question logically arises, whether, in occupational disease and cumulative injury cases where the employer has furnished no benefits, compensation for medical treatment may be applied for during the disease or injury's early stages, prior to the onset of disability and the statutory "date of injury." (§ 5412.) The question is obviously not entirely free from doubt, inasmuch as the phrase "period within which may be commenced proceedings" in section 5405 connotes a beginning as well as an ending point.[17]
The second hurdle faced by such an employee seeking predisability recovery is dictum in Fruehauf Corp. v. Workmen's Comp. App. Bd., supra, 68 Cal.2d 569, that "The term `injury' means a compensable injury or an incapacity or disability justifying the award of compensation, and it is at the time when disability occurs that the employer's liability becomes fixed and the employee has suffered an injury in a legal sense." (68 Cal.2d at p. 573, italics added.)
The third hurdle is section 3208.1, which defines "cumulative" injury and provides in pertinent part, "The date of a cumulative injury shall be the date determined under Section 5412." (See fn. 6, ante.) As we have seen, section 5412 requires that an employee be disabled in order for a "date of injury" to occur.[18]
We approach the first hurdle: whether Butler's claim was premature under section 5405.
The board addressed the issue of predisability, pre-"date of injury" awards for diagnostic medical expenses in Piedemonte v. Western Asbestos et al., supra, 46 Cal.Comp.Cases 475. There, the WCJ found that the applicant had sustained an industrial injury from asbestosis but had suffered no permanent disability therefrom. (P. 475.) Consequently, relying on section 5412, the WCJ found no "date of injury." (P. 477.)
The board noted the paradox in the WCJ's decision, that there was an injury without a "date of injury." (P. 478.) The board resolved the paradox, however, by noting the limited purposes which the "date of injury" serves in workers' compensation law. The board reasoned that the "date of injury" is used to trigger the running of statutes of limitations and as a point at which to fix disability indemnity rates. The board noted that in the case before it no issue had been raised as to the statute of limitations or as to temporary disability compensation, and that no permanent disability then *340 existed. The board concluded that it was unnecessary to find a "date of injury" at that time. (Ibid.)
(5b) Implicit in the board's analysis in Piedemonte is the simple fact that the "date of injury" is a statutory construct which has no bearing on the fundamental issue of whether a worker has, in fact, suffered an industrial injury. Hanna, in his treatise, makes the point explicitly: "The date of injury and the fact of injury are not equivalent and it is therefore possible for the [board] to find that an employee has sustained a cumulative industrial injury or occupational disease without making a finding as to the date of injury where the injury has caused no temporary or permanent disability, but has resulted in a need for medical treatment." (2 Hanna, op. cit. supra, § 18.03[6], p. 18-21.) We find Piedemonte and Hanna persuasive.
Moreover, Piedemonte and Hanna are consistent with the legislative goals underlying the Act. As we noted in part I-A, ante, section 4600 imposes no requirement that medical treatment compensation be conditioned on the employee's inability to work. (7b) Indeed, the legislative intent to maximize an employee's productive employment suggests that medical treatment should be available, when necessary, before the injury or disease actually forces the worker from the job. Interpreting sections 5405 and 5412 so as to modify section 4600 and thereby deny medical treatment until disability sets in could foolishly deprive the worker of the proverbial ounce of prevention and force upon him (and his employer's insurance carrier) the proverbial pound of cure.
We note, as well, that the purpose of these statutes of limitations (§§ 5405, 5412) is to insure the prompt presentation of compensation claims. (2 Hanna, op. cit. supra, § 18.02, p. 18-9.) Interpreting section 5405 and 5412 to preclude compensation for medical treatment until the onset of disability would in no way further the intent of those sections; instead, it would simply have the perverse and obviously unintended effect of discouraging an employee's timeliness in pursuing medical attention.
Furthermore, we must remember Fruehauf's admonition that the "date of injury" in latent disease cases "must refer to a period of time rather than to a point in time." (Fruehauf Corp. v. Workmens' Comp. App. Bd., supra, 68 Cal.2d at p. 573.) The employee is, in fact, being injured prior to the manifestation of disability. There is no reason why an employee should not be eligible for medical treatment compensation once the industrial injury has commenced and its presence is medically ascertainable.
We therefore construe section 5405 in accordance with its obvious purpose as a statute of limitations. Absent tolling, section 5405 may bar a claim *341 for compensation filed more than one year from "date of injury" as defined in section 5412. However, section 5405 does not preclude the filing of a claim for medical expenses before occurrence of a "date of injury."
We therefore turn to the second hurdle in the way of Butler's predisability recovery: Fruehauf's dictum that "it is at the time when disability occurs that the employer's liability become fixed and the employee has suffered an injury in the legal sense." (Fruehauf Corp. v. Workmen's Comp. App. Bd., supra, 68 Cal.2d at p. 573.)
Viewed in isolation, this passage could cast doubt upon our conclusion that medical treatment is compensable prior to the "date of injury." It could suggest that an employee suffers no legally cognizable harm until he is disabled. Fruehauf, however, was concerned only with the question of whether the one-year statute of limitations began to run before the employee became disabled; the case was not at all concerned with the question now before us.
In Fruehauf the court traced the origin of section 5412 to its decision in Marsh v. Industrial Acc. Com., supra, 217 Cal. 338, decided some 14 years before the enactment of sections 5411 and 5412. (Stats. 1947, ch. 1034, §§ 5, 6, p. 2307.) In Fruehauf, the court explained Marsh as follows: "When latent injuries from accidents do not at first indicate a disability which is compensable, an employee is not to be deprived of compensation for failure to demand his rights under the act before the disability reasonably can be ascertained." (Fruehauf, supra, 68 Cal.2d at p. 573, italics added.)
Fruehauf leaves little doubt that the purpose of section 5412 was to prevent a premature commencement of the statute of limitations, so that it would not expire before the employee was reasonably aware of his or her injury. Moreover, the case emphasized that limitations provisions in the workers' compensation law must be liberally construed in favor of the employee unless otherwise compelled by the language of the statute. (Id., at p. 577.) It would violate the entire spirit of Fruehauf to hold that medical treatment is not compensable until the onset of disability. We conclude Butler should clear the Fruehauf hurdle.
We therefore approach Butler's final obstacle to predisability recovery: the last sentence of section 3208.1, which provides that "The date of a cumulative injury shall be the date determined under Section 5412."
Although section 3208.1 is contained in a "definitional" portion of the code, we discern from its legislative history no intent to define the fact of *342 cumulative injury out of legal cognizance until the arrival of the "date of injury." Rather, the statute's history shows the purpose of the pertinent language in section 3208.1 is simply to provide a single statute of limitations for both occupational diseases and cumulative injuries. To trace that history, we return, once again, to Fruehauf.
Fruehauf itself involved not an "occupational disease" but a latent injury from a series of traumas to the employee's back. (Fruehauf, supra, 68 Cal.2d at p. 571.) At the time, former section 5412, defining "date of injury" for purposes of the statute of limitations, referred only to "occupational diseases" and did not mention "cumulative injuries." (Ibid.) At issue in Fruehauf was whether the Legislature intended the "date of injury" for the employee's cumulative back injury to be determined in the same way as occupational diseases, under former section 5412, or as a single injury under section 5411. (Ibid.; see 2 Hanna, op. cit. supra, § 18.03[6], p. 18-20.) Fruehauf concluded that cumulative injuries should be classified as occupational diseases. (Fruehauf, supra, 68 Cal.2d at p. 576.)
Shortly after Fruehauf, however, the Legislature added section 3208.1 providing in pertinent part "that the date of cumulative injury shall be the date of disability caused thereby." (Stats. 1969, First Ex. Sess. 1968, ch. 4, § 1, p. 31; 2 Hanna, op. cit. supra, § 18.03[6], p. 18-21.) This definition differed from then-section 5412 in that the element of the employee's knowledge of causation by employment was omitted from former section 3208.1. (Ibid.)
In 1973, section 3208.1 was amended to add the "knowledge" element. It did this by deleting the words "of disability caused thereby" and by substituting "determined under Section 5412." (Stats. 1973, ch. 1024, § 1, p. 2032.) Section 5412, however, referred only to "occupational diseases," and not to cumulative injuries, so the same enactment amended section 5412 by adding the words "or cumulative injuries" following "occupational diseases." (Stats. 1973, ch. 1024, § 3, p. 2032.)
Thus, the purpose of the 1973 amendment to section 3208.1 was in effect to restore the rule of Fruehauf, to provide a uniform statute of limitations for cumulative injuries and occupational diseases.[19] We have already concluded *343 that Butler's claim is not precluded by the statutes of limitations set forth in sections 5405 and 5412; accordingly, nothing in section 3208.1 detracts from that conclusion.
(8) Any doubts as to our construction of the statutory scheme are dispelled by our plain statutory duty to construe the Act's provisions liberally with the purpose of extending their benefits for the protection of persons injured in the course of their employment. (§ 3202; see LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234, 241 [193 Cal. Rptr. 547, 666 P.2d 989]; Flores v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 171, 176 [113 Cal. Rptr. 217, 520 P.2d 1033]; 2 Witkin, op. cit. supra, § 6, pp. 855-856.) This duty of liberal construction extends to limitations provisions. (Fruehauf, supra, 68 Cal.2d at p. 577.) (7c) We thus hold an employee may file a claim and receive an award of compensation for medical treatment for an occupational disease prior to the "date of injury," as defined in section 5412.[20]
D
Having concluded that an applicant is entitled to receive compensation in an occupational disease case for medical treatment rendered prior to the "date of injury," we note that an applicant is entitled to have an award amended if further treatment proves necessary. As we explained in part A, ante, a timely application for compensation renders the statutes of limitations, sections 5404-5412, inoperative as to future medical compensation claims, which are then governed by sections 5803-5805. Under sections 5803-5805 an applicant suffering from asbestosis who has received a pre-"date of injury" award for medical treatment may have the award amended to include future similar expenses as they arise, up until five years following the "date of injury." (§§ 5412, 5804; 1 Hanna, op. cit. supra, § 9.02[2][b], *344 p. 9-13; cf. Piedemonte, supra, 46 Cal.Comp.Cases at p. 483.) In practice, as was done in this case, the problem is handled much more simply without any amendments if the initial award for medical expenses is framed in the language of section 4600, for "Medical ... treatment ... which is reasonably required to cure or relieve from the effects of the injury...." (Cf. Piedemonte, supra, at p. 483; see fn. 7, ante.)
Similarly, an applicant who has received a pre-"date of injury" award for medical treatment and subsequently becomes disabled is entitled to seek compensation within five years of "date of injury" "upon the ground that the original injury has caused new... disability...." (§ 5410; see Standard Rectifier Corp. v. Workmen's Comp. App. Bd., supra, 65 Cal.2d at p. 291; Smith v. Johns-Manville Products Corp., supra, 46 Cal.Comp.Cases 557; 1 Hanna, op. cit. supra, § 9.03, p. 9-21.)
II
(9) We next turn to petitioners' contention that the board acted beyond or in excess of its powers by "deferring" a finding of permanent disability. Petitioners claim that "Respondent, [board], should have found that there was no permanent disability. ..." (Italics added.)
This issue arose in Piedemonte, supra, 46 Cal.Comp. Cases 475, where the WCJ had made a finding that the applicant suffered "no permanent disability." (P. 475.) On appeal to the board the applicant argued that "the finding of no permanent disability may forever bar him from claiming workers' compensation benefits if his condition manifests disability only after the period to reopen [§§ 5410, 5804] has expired." (Ibid.) Responding to the applicant's concerns, the board deleted the WCJ's finding of "no permanent disability" and substituted a finding that "Applicant's condition is not yet permanent and stationary." (P. 483.) The board reasoned that with this change, they would not be "deciding" the permanent disability issue at that point, but would merely be "deferring" it until the disability manifested itself. (Pp. 482-483.)[21]
In parts I-A and I-D, ante, we noted the five-year period of sections 5410 and 5804 only begins to run as of a "date of injury," i.e., when disability manifests itself and industrial causation is or should be known (§ 5412). In light of that discussion, Piedemonte's device of "deferring" the disability *345 issue is unnecessary. Under section 5412's definition of "date of injury" it is impossible for the applicant's disabling condition to manifest itself "only after the period to reopen has expired" (Piedemonte, supra, at p. 475), because that manifestation is one of the two triggering events marking the beginning, not the end, of the five-year statutory period.
Indeed, in Smith v. Johns-Manville Products Corp., supra, 46 Cal.Comp.Cases 557, decided one month after Piedemonte, the board addressed what it termed an applicant's "novel contention" that his petition to reopen was not barred by the statute of limitations because it was filed within five years after he became disabled. After reconsidering the issue, the board concluded, evidently for the first time, that "the worker has five years from the concurrence of the date of first compensable disability as a result of an occupational disease and knowledge thereof to file a petition to reopen pursuant to Labor Code sections 5803 and 5804...." (P. 557.) In light of Smith, Piedemonte's concern with avoiding a finding of "no permanent disability" no longer seems appropriate. Indeed, a finding of "no disability," as was made in this case, makes it clear that no "date of injury" has occurred so that the five-year period within which the board can award compensation has not begun to run.
Accordingly, we perceive neither good reason nor statutory authority for the board formally to "defer" the disability issue in asbestosis cases. Rather, the issue should be addressed when it is tendered, and if no disability is present, an appropriate finding of fact should be made. An applicant remains free, of course, to tender the issue of disability anew within the statutory period of section 5410 once disability appears.
As we noted, in this case the WCJ found that the applicant's asbestosis "has not yet caused either compensable temporary disability or permanent disability." Petitioners do not explain how the WCJ's finding differs materially from a finding, in so many words, of "no disability." The WCJ's finding correctly reflected the state of the evidence before it, and it will not be disturbed.
III
Petitioners finally contend that the WCJ's decision is not supported by substantial evidence. Petitioners' only argument is directed to the lack of evidence supporting a "deferral" of a finding of disability, as discussed in part II, ante. Petitioners have not challenged the sufficiency of the evidence supporting the WCJ's findings of fact numbers 6 and 7, that further medical treatment will be required and that the applicant has incurred expenses for self-procured medical treatment. As we explained in part I, ante, statutory *346 entitlement to medical treatment is not conditioned upon a determination that the employee was disabled, but only upon a determination that the injury arose out of and within the scope of the employment. An award of medical treatment compensation prior to the "date of injury" is not precluded by the statutes of limitations. (§§ 5404, 5405, 5412.) Findings of fact numbers 6 and 7 are supported by the record, and they in turn support the board's award. The findings and award will not be disturbed.
DISPOSITION
The board's decision and award are affirmed.
Regan, Acting P.J., and Sparks, J., concurred.
The application of petitioner Insurance Company of North America for a hearing by the Supreme Court was denied June 13, 1984.
NOTES
[1] "`Asbestos' is the generic name given to a group of hydrated silicate minerals that can be separated into relatively soft, silky fibers which have great tensile strength, the quality that makes it as useful in industry as it is harmful to soft internal human tissue. Use of this material in occupational settings has become widespread because of its physical properties which make it ideal for a myriad of uses, primarily as a fireproofing and insulating material. The widespread industrial exposure has led to the recognition in the medical community of a number of asbestos-related diseases including parenchymal asbestosis, pleural asbestosis, pulmonary carcinoma and mesothelioma. The latter is a disease of the mesothelial surface lining (i.e. chest and stomach lining) described by one authority as follows:
"`... It is a diffuse malignancy which spreads across the serous surfaces. Medical studies disagree whether pleural or peritoneal mesothelioma is more prevalent among asbestos workers. Although increasing dyspnea may be the presenting symptom, the onsent [sic] of pleural mesothelioma is insidious and progressive. The same is true of peritoneal mesothelioma except that weight loss is an early symptom.
"`Asbestos is generally acknowledged to be the major cause of mesothelioma but there is doubt whether it is the sole cause. Unfortunately, the dose required to produce a malignancy is comparatively trivial and, because of the 25-40-year latency period, the exposure is sometimes overlooked in an occupational history.' Christopher C. Mansfield, Asbestos: The Cases And The Insurance Problem, (summer 1980) the Forum, American Bar Association, page 864." (Piedemonte v. Western Asbestos et al. (1981) 46 Cal.Comp.Cases 475, 479 (en banc opn.).)
[2] See generally, California Workmen's Compensation Practice (Cont.Ed.Bar 1973) section 1.6, pages 6-7.
[3] For example, Labor Code sections 3208.1 and 5405 could be amended to make clear that they do not prohibit the filing of predisability claims for medical expenses in cumulative injury and occupational disease cases. (See discussion in part I-C, post.)
[4] Butler's application for adjudication of claim contained a series of boxes which were checked off so as to indicate that it was filed because of a "disagreement regarding" liability for temporary and permanent disability indemnity, reimbursement for medical expenses, medical treatment, and "election against single employer during cumulative [sic]."
[5] All further statutory references are to the Labor Code unless otherwise indicated.
[6] Section 3208 provides that "`Injury' includes any injury or disease arising out of the employment, including injuries to artificial members, dentures, hearing aids, eyeglasses and medical braces of all types; provided, however, that eyeglasses and hearing aids will not be replaced, repaired, or otherwise compensated for, unless injury to them is incident to an injury causing disability."
Section 3208.1 provides in its entirety that "An injury may be either: (a) `specific,' occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) `cumulative,' occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative injury shall be the date determined under Section 5412."
[7] Section 4600 provides in pertinent part that "Medical, surgical, chiropractic, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members, which is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer. In the case of his neglect or refusal to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment...."
[8] Section 5405 provides that "The period within which may be commenced proceedings for the collection of the benefits provided by Articles 2 or 3, or both, of Chapter 2 of Part 2 of this division is one year from: [¶] (a) The date of injury; or [¶] (b) The expiration of any period covered by payment under Article 3 of Chapter 2 of Part 2 of this division; or [¶] (c) The date of last furnishing of any benefits provided for in Article 2 of Chapter 2 of Part 2 of this division." See also section 5404, set forth in footnote 9, post.
[9] Section 5404 provides that "Unless compensation is paid within the time limited in this chapter for the institution of proceedings for its collection, the right to institute such proceedings is barred. The timely filing of an application with the appeals board by any party in interest for any part of the compensation defined by Section 3207 renders this chapter inoperative as to all further claims by such party against the defendants therein named for compensation arising from that injury, and the right to present such further claims is governed by Sections 5803 to 5805, inclusive."
[10] Section 5803 provides that "The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division, and the decisions and orders of the rehabilitation unit established under Section 139.5. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor.
"This power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either recurred, increased, diminished, or terminated."
Section 5804 provides that "No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years and any counterpetition seeking other relief filed by the adverse party within 30 days of the original petition raising issues in addition to those raised by such original petition. Provided, however, that after an award has been made finding that there was employment and the time to petition for a rehearing or reconsideration or review has expired or such petition if made has been determined, the appeals board upon a petition to reopen shall not have the power to find that there was no employment."
Section 5805 provides that "Any order, decision, or award rescinding, altering or amending a prior order, decision, or award shall have the effect herein provided for original orders, decisions, and awards."
[11] Section 5410 provides: "Nothing in this chapter shall bar the right of any injured employee to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability or the need for vocational rehabilitation benefits. The jurisdiction of the appeals board in these cases shall be a continuing jurisdiction at all times within this period. This section does not extend the limitation provided in Section 5407."
[12] "`Although long the subject of misunderstanding and controversial litigation, it is now clear that Labor Code section 5410, and not Section 5804, controls the Appeals Board's continuing jurisdiction over new and further disability claims. Section 5410, by its terms, is expressly made paramount to the other sections of the statute of limitations, including Section 5404. Hence, the provision of the latter section that Sections 5803-5805 shall control the right to present further claims after the timely filing of an application, does not apply to supplemental new and further disability claims. The latter are governed by Section 5410, despite the fact that the period within which the Board must act under Section 5803 and 5804 is applicable to all other supplemental claims.' (1 Hanna, op. cit. supra, § 9.03[4], pp. 9-23, 9-24, fns. omitted; see also Broadway-Locust Co. v. Ind. Acc. Com., supra, 92 Cal. App.2d 287, 292-293.)" (Zurich Ins. Co. v. Workmen's Comp. Appeals Bd., supra, 9 Cal.3d at p. 857 (conc. opn. of Sullivan, J.).) In this case we have no occasion to consider whether Butler will need to bring supplemental claims under section 5804 or section 5410, nor do we address possible practical differences in the two statutory procedures. (But see Zurich Ins. Co., supra, at pp. 855-857.)
[13] Labor Code section 5411, contained in the chapter on "limitations of proceedings," provides that "The date of injury, except in cases of occupational disease or cumulative injury, is that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed."
[14] "Disability," as used in the Act, has also been defined as having two elements: (1) the actual incapacity to perform the tasks usually encountered in one's employment and the wage loss resulting therefrom and (2) physical impairment of the body. (Perry v. Workers' Comp. Appeals Bd. (1977) 66 Cal. App.3d 887, 890 [136 Cal. Rptr. 309].)
[15] The WCJ's finding of fact number 8 reflects a proper application of section 5500.5 to determine the years of exposure for which the petitioners are liable.
[16] We readily understand how petitioners could rationally forego any argument that Butler's claim for expenses ($322.40) was premature in the hope of triggering the five-year limit on the board's power to make a disability award.
[17] Here lies our first quark.
[18] Here lies a second quark.
[19] One commentator has suggested that the 1973 amendments to sections 3208.1 and 5412 brought the statutes into literal conformity with their interpretation in Chavez v. Workmen's Comp. Appeals Bd. (1973) 31 Cal. App.3d 5 [106 Cal. Rptr. 853]. (Swezey, Cal. Workmen's Compensation Practice (Cont.Ed.Bar Supp. 1982) §§ 2.14-2.15, p. 16.) Chavez held that an employee who became disabled as a consequence of cumulative injury had to file his claim within a year of the time he knew or reasonably should have known his disability was caused by present or prior employment. (Chavez, supra, 31 Cal. App.3d at pp. 10-11.)
[20] Argonaut Mining Co. v. Ind. Acc. Com. (1951) 104 Cal. App.2d 27 [230 P.2d 637], followed in Dickow v. Workmen's Comp. Appeals Bd. (1973) 34 Cal. App.3d 762 [109 Cal. Rptr. 317], does not alter our conclusion. In Argonaut, the court faced the issue of whether disability compensation in occupational disease cases should be measured by the rates in effect at the date of injury (§ 5412) or at the last date of injurious exposure, often many years previously. The court concluded, quite properly, that the rate should be that in effect at the date of injury. The court reasoned that "When the right [to disability compensation] comes into existence certain rates are applicable. It would seem that these are the rates by which compensation should be payable." (Argonaut, supra, at p. 31.) In reaching its conclusion, however, the court made a sweeping assumption that "all other incidents of the workman's right" also arise only with the onset of disability. (Ibid.) This assumption was obviously dicta, and it is without logical foundation. While the right to disability compensation should arise only with the onset of disability, it does not follow that all other incidents of full compensation should also arise precisely at that time. Rather, the right to medical treatment should arise with its medical necessity, just as disability indemnity arises with its own necessity. Confined to its holding, then, Argonaut does not cast doubt upon our conclusion in this case.
[21] Avoiding a "decision" on the disability issue was thought to be important because without a "decision," the board noted, "The five-year period of Labor Code § 5804 will not preclude determination of the issue at [the time disability manifests itself] because there is no decision to be altered or amended." (Piedemonte, supra, 46 Cal.Comp.Cases at pp. 482-483, italics added.)
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345 F.3d 1280
UNITED STATES of America, Plaintiff-Appellee,v.Roberto Duran SAMANIEGO, Defendant,Luis Gonzalez Baez, Defendant-Appellant.
No. 02-14977 Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
DECIDED: September 19, 2003.
Gordon C. Watt, Miami, FL, for Baez.
Anne R. Schultz, Miami, FL, for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, BIRCH and CARNES, Circuit Judges: CARNES, Circuit Judge:
1
Like the brute Mongo in Mel Brooks's 1974 comedy classic Blazing Saddles, Roberto Duran once knocked out a horse with a single punch.1 That horse, as well as countless human opponents who suffered the same fate in the streets and back alleys of Panama where Duran grew up, are not included in his career total of 104 officially sanctioned boxing wins — 69 of them by knockout — against only 16 losses.
2
Born into poverty, Roberto Duran grew up fighting on the streets where he earned the nickname "Manos de Piedra" — Hands of Stone. He started his professional boxing career at the age of 15 or 16. In 1972, when only 21 years old, Duran won the lightweight championship of the world by knocking out Ken Buchanan in the thirteenth round. As a lightweight, he achieved a near perfect record of 62 wins in 63 contests, which explains why Duran is widely regarded as one of the greatest boxers in that weight category in the history of the sport. He held the lightweight title from 1972 to 1979, when he put it down in order to fight as a welterweight.
3
Duran captured the welterweight championship in 1980 with a fifteen-round decision over Sugar Ray Leonard. Five months later Leonard took that title back from Duran, who conceded the fight in the eighth round by muttering what would become two of the most infamous words in boxing history: "no mas." Like a true champ, however, Duran got up off the mat of that embarrassing defeat to win championships in two more weight classes, defeating Davey Moore in 1983 for the junior middleweight title and then, at age 37, defeating Iran Barkley for the middleweight title in 1989. He was the first boxer to win championships in four different weight classes.
4
Even hands of stone don't last forever, and no one can out box time. The damage done by the pounding Duran had taken in the ring over the years was exacerbated in 2001 by a car crash in Argentina in which he suffered broken ribs and a punctured lung. In February of 2002, at the age of 50, Duran finally hung up his gloves after 34 years of professional boxing.2 He left the ring with his memories and his championship belts, and it is those belts that are at the center of this case. Duran claims that his championship belts were stolen from his house in Panama by his brother-in-law, Bolivar Iglesias, in September of 1993. Ever the fighter, Duran has waged a ten-year battle to regain his belts, which are the physical embodiment of his life's work and a reminder of the glory that once was his. It is late in the last round of that legal fight, which began when Duran filed a criminal complaint against Iglesias in Panama and convinced the FBI to investigate the disappearance of his belts.
5
It is undisputed that Duran's championship belts ultimately came into the hands of Luis Gonzalez Baez, a Miami businessman, and that Baez attempted to sell the belts to undercover FBI agents (who had set up a sting operation) for $200,000. Baez was arrested, but he claimed that the belts had not been stolen. The government confiscated the belts and filed an interpleader action in federal district court to determine whether Duran or Baez is the rightful owner of the belts. The case was tried to a jury, which returned a verdict in favor of Duran. This is Baez's appeal from the judgment the district court entered in accordance with that verdict.
6
Baez's principal contention on appeal is that the district court should not have admitted testimony about a purported apology from Bolivar Iglesias. Over Baez's objection, the district court permitted a number of witnesses, including Duran and some of his family members, to testify that Iglesias apologized in their presence for stealing the belts. Baez contends that testimony is inadmissible hearsay. The district court allowed it on the theory that the out-of-court statement described an existing state of mind or emotion, and for that reason fit within the hearsay exception set out in Federal Rule of Evidence 803(3). We review the district court's evidentiary ruling only for an abuse of discretion, and we will reverse only if Baez convinces us that an erroneous ruling "resulted in a substantial prejudicial effect." Alexander v. Fulton County, Ga., 207 F.3d 1303, 1326 (11th Cir.2000) (citation and internal marks omitted).
7
Rule 803(3) provides that, even though the declarant is not available as a witness, the following is not excluded by the hearsay rule:
8
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
9
Fed.R.Evid. 803(3). The question, as Baez's argument frames it, is whether Iglesias's apology falls within the exclusion from Rule 803(3) admissibility because it is a "statement of memory or belief to prove the fact remembered or believed."
10
An apology is evidence of a then-existing state of mind or emotion: remorse. Iglesias's apology is admissible to prove the truth of the matter asserted — that Iglesias felt remorse at the time he made the apologetic statement. See T. Harris Young & Assoc., Inc. v. Marquette Elec., Inc., 931 F.2d 816, 827-28 (11th Cir. 1991). That is not the problem. The problem is, as we have observed, that "the state-of-mind exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind." United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.1980).3 Consistent with that position, we have explained that the purpose of the exclusion from Rule 803(3) admissibility is "to narrowly limit those admissible statements to declarations of condition — `I'm scared' — and not belief — `I'm scared because [someone] threatened me.'" Id. The testimony admitted in this case was not limited to the fact that Iglesias had expressed remorse, but also included the fact that he said he apologized for and asked forgiveness for having stolen the belts. The testimony most often came in response to questions from Duran's counsel about how the witness knew Iglesias had stolen the belts. What Iglesias said was offered to show not only that he was remorseful, but also that he had stolen the belts. Rule 803(3) expressly prohibits the use of a statement of then-existing state of mind in this way. That prohibition, the committee notes explain, is necessary "to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind." Fed. R.Evid. 803(3) advisory committee's notes.
11
Our conclusion that Iglesias's apology was not properly admitted under Rule 803(3) does not end the matter. Although the district court admitted the statement under Rule 803(3), Duran offered the testimony concerning the apology as a statement against interest by a declarant unavailable at trial, which is admissible under Rule 804(b)(3). The district court did not reach that alternative ground for admissibility, but we do because we will not hold that the district court abused its discretion where it reached the correct result even if it did so for the wrong reason. Close v. United States, 336 F.3d 1283, 1285 n. 1 (11th Cir.2003) ("`[W]e may not reverse a judgment of the district court if it can be affirmed on any ground, regardless of whether those grounds were used by the district court.'") (quoting Magluta v. Samples, 162 F.3d 662, 664 (11th Cir.1998)). The part of Iglesias's apology in which he admitted having stolen Duran's belts is a statement against interest, because it would "subject the declarant to civil or criminal liability" within the meaning of Rule 804(b)(3). For a statement against interest to be admissible under Rule 804, however, the declarant must have been unavailable at the time of the trial within the meaning of Rule 804(a).
12
Iglesias was not present at the trial, but that does not mean he was unavailable for Rule 804 purposes. Subsection (a) of that rule tells us a witness should be considered unavailable in five separate circumstances, only one of which is relevant in this case: The declarant is unavailable if he "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means." Fed.R.Evid. 804(a)(5).
13
Duran could not procure Iglesias's attendance or testimony by process because Iglesias, a citizen of Panama, apparently was living in that country at the time of the trial, and "foreign nationals located outside the United States ... are beyond the subpoena power of the district court." United States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir.1993). Duran did enlist the help of Iglesias's immediate family in an attempt to locate him and persuade him to return to the United States and testify. Iglesias's sister, who is Duran's wife, testified that she and her mother had tried to locate Iglesias on five different occasions, but finding him had proven impossible. Iglesias's mother testified that she had tried to contact him in order to get him to come back and testify but was unable to get Iglesias.
14
Using the efforts of Iglesias's sister and mother, as Duran did, is a reasonable means of attempting to locate Iglesias in Panama and persuade him to travel to the United States to testify. It follows that Duran did establish Iglesias was unavailable to testify under Rule 804(a)(5), so the out-of-court statement Iglesias made was admissible under Rule 804(b)(3) as a statement against interest. The district court did not abuse its discretion in admitting the statement, albeit on the wrong ground.
15
Baez also contends that the district court should not have denied his motion for Federal Rule of Civil Procedure 16(f) sanctions against Duran for violating, on two occasions, the court's order that Duran provide both a witness and exhibit list to Baez. Baez argues that his ability to prepare for trial was compromised by Duran's total disregard of the court's order, and the appropriate sanction should have been dismissal of Duran from the action, striking some of his pleadings, or excluding some witness testimony. He does not specify which pleading or testimony.
16
We review a district court's refusal to impose sanctions under Rule 16(f) only for abuse of discretion. See Brooks v. United States, 837 F.2d 958, 961 (11th Cir.1988); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir.2000). Rule 16(f) provides for sanctions as follows:
17
If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
18
Fed.R.Civ.P. 16(f).
19
Rule 16(f) sanctions were "designed to punish lawyers and parties for conduct which unreasonably delays or otherwise interferes with the expeditious management of trial preparation." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). And district courts have discretion to decide if there is a pattern of delay or a deliberate refusal to comply with court orders or directions that justifies a sanction.
20
We do not believe the district court abused its discretion in denying Baez's motion for sanctions against Duran for filing his pretrial statement three days after it was due. The court acted well within its discretion in concluding that three days was not an "unreasonable delay" and did not interfere with the expeditious resolution of the case. Whether the court properly could have ruled the other way is a question we need not decide. See In re Rasbury, 24 F.3d 159, 168 (11th Cir.1994) (noting that under abuse of discretion standard there are some questions on which the district court might rule either way and be affirmed, as long as the decision is within the "range of choice for the district court").
21
The judgment entered on the jury's verdict stands, and under it Roberto Duran is entitled to regain his championship belts.
22
AFFIRMED.
Notes:
1
As Duran told the story in 1998:
I was 14 or 15 ... in my mother's home town of Guarare.... There was a fiesta. I had $150 in my pocket, which was a lot of money for me, and we were all drinking whiskey. There was a girl sitting next to me, teasing me, and I felt like a big shot. But I was running out of money to buy alcohol when someone said, "You call yourself Manos de Piedra (Hands of Stone), I betcha a bottle of whiskey and $50 you can't knock out that horse." ... My uncle, Socrates Garcia was his name, pulled me aside. "I got a secret," he said. He told me to punch the horse behind the ear and "that horse will go down." He did. But I ripped my hand open. You could see right through to the bone. But I didn't feel any pain. I didn't go to the hospital. I stayed with the girl all night and didn't get one kiss.
Michael Katz, Duran is Still Horsing Around, N.Y. Daily News, June 2, 1998, at 75.
2
The facts about Roberto Duran's career are drawn from HickokSports.com, Sports Biographies,at http://www.hickoksports.com/biograph/duranrob.shtml; Ken Jones, One Moment of Weakness Dogs Duran's Awesome Reputation, The Independent (London), July 25, 2002, at P24; and David A. Avila, Duran Among Sport's All-Time Greats, The Press-Enterprise, Feb. 21, 2002, at D08. All the other facts in this opinion are drawn from the record on appeal.
3
InBonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) we adopted as binding precedent Fifth Circuit decisions issued prior to the close of business on September 30, 1981.
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72 F.Supp.2d 753 (1999)
Sandra HAMPTON, Parent and Next Friend of Ollie Hampton, et al. Plaintiffs,
v.
JEFFERSON COUNTY BOARD OF EDUCATION, et al. Defendants.
No. Civ.A. 3:98CV-262-H.
United States District Court, W.D. Kentucky, at Louisville.
June 10, 1999.
Teddy B. Gordon, Louisville, KY, for plaintiff.
Byron E. Leet, Francis J. Mellen, Jr., Pamela J. Ledford, Wyatt, Tarrant & Combs, Louisville, KY, for Jefferson County Board of Education and Stephen Daeschner, defendants.
Stephen T. Porter, Louisville, KY, Cecil A. Blye, Sr., Louisville, KY, Kevin J. Kijewski, Galen A. Martin, Kentucky Fair Housing Council, Inc., Louisville, KY, William N. Haliday, Louisville, KY, for Intervening plaintiffs.
MEMORANDUM OPINION
HEYBURN, District Judge.
The conclusions that the Court reaches in this Memorandum do not end this case. Nor do they necessarily foreshadow any particular result. However, they set forth a significant and different route to reach a conclusion. The new route should sharpen the debate on the real and important issues which this case raises. It may expose all parties to the consequences and ambiguities of their requests and their arguments. The discussion should remind us that even the scope of fundamental rights such as equal protection depends on a particular mix of history, circumstance, and legal precedent.
Today's decision plays out against the backdrop of a great controversy surrounding *754 the American idea of equality. That controversy extends to the Equal Protection Clause's expression of the idea:
No state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.
The debate arises not because anyone doubts that the right is fundamental. After all, long before 1868 our founders declared that "all men are created equal." Arguments rage on because so many people conceive different definitions of equality. This case will require the Court to explore various different conceptions of equality which for decades have bedeviled ordinary citizens, politicians, sociologists, and, of course, judges.
The Fourteenth Amendment guarantees citizens the right to send their children to public schools free from state-imposed segregation and free from the vestiges of such discrimination. The same amendment protects them unequal treatment as a result of a racial classification. Judge John Minor Wisdom may have best summarized this tension when he wrote:
The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and undo the effects of past discrimination.
United States v. Jefferson County Board of Educ., 372 F.2d 836, 876 (5th Cir.1966).
While this case illustrates the tension between these two seemingly parallel sides of the same right, it will not decide which is more essential. Each is fundamental. When rights conflict, individuals are often unable to enjoy the full benefit of each. Even the less ambiguous rights to free speech and freedom of religion give way in certain circumstances. Understanding and reconciling the two parallel, but sometimes contradictory, elements of equal protection may be the Court's ultimate challenge in this case. However, an essential part of judging is not merely getting the right answer to a legal issue; it is getting to the right question and requiring the combatants to address it. This opinion charts a path for doing so.
I.
SUMMARY
The Court has reached the inexorable conclusion that certain aspects of Judge Gordon's 1975 desegregation decree remain in force and effect. This conclusion may seem surprising. However, a thorough review of this lengthy opinion should convince the reader that the result is imminently sensible.
The Court reached this conclusion because: (1) Judge Gordon never completely dissolved the decree, though he clearly ended his supervision of it and terminated certain portions of it; (2) the Supreme Court has said that ending active supervision of a decree does not necessarily terminate the decree itself; (3) Judge Gordon did not end the Board's obligation to prevent vestiges of discrimination, such as re-emergence of racially identified schools; (4) since 1975 the Board has followed Judge Gordon's essential command; and (5) the continuing decree permits the use of racial composition guidelines, including those in the Board's current Student Assignment Plan, to prevent the re-emergence of racially identifiable schools.
Therefore, because the Board has complied with a continuing court order to prevent the reemergence of racially identifiable schools, it has not violated the Equal Protection Clause.
To obtain relief under their equal protection claim, Plaintiffs or someone must first move to dissolve the remainder of the desegregation decree. To terminate that decree, a moving party must demonstrate that the Board has continued in good faith compliance with its obligations and that it *755 has removed the vestiges of past discrimination to the extent practicable. If any of the parties wish to dissolve the Board's ongoing obligations under the decree, the Court will honor that request and set a hearing to determine whether any such motion is well taken.
This decision alters and clarifies the procedural steps which must occur before the Court can address Plaintiffs' equal protection claim. It does not presage any particular result. If the decree is dissolved, the Court could then consider Plaintiffs' challenge that the Board's current Student Assignment Plan violates the Equal Protection Clause of the Fourteenth Amendment.
II.
THE HISTORY OF SCHOOL DESEGREGATION IN JEFFERSON COUNTY SCHOOLS
This case traces the history of equal protection as applied to the public schools in Jefferson County. A full telling of that story would begin by describing the pain, inhumanity, and social degradation caused by state imposed school segregation. It would describe the individual potential which segregation suppressed; the spirit and determination of those who overcame the obstacles it imposed; and the moral strength of those who fought the legal, social, and political battle against it and other forms of discrimination. It would necessarily describe the confusion and outrage at Judge Gordon's busing order which seemed to tear this community apart as it sent children from their own neighborhoods to places that many of both races had never before seen. Finally, it would describe a school community which in many respects came together for a common purpose and worked at understanding one another well enough to overcome all these traumatic events. In doing so, at the very least, the Jefferson County schools created something positive and workable. The Court necessarily omits but does not forget these events.
It would be convenient if equal protection defined individual rights in precisely the same way regardless of the circumstances. That is not the case. That is why understanding the circumstances is absolutely central to applying equal protection guarantees correctly and fairly. That is why the Court will spend considerable time and effort describing the history of Jefferson County school desegregation as that process evolved, along with equal protection jurisprudence, over the past forty-five years.
There is another reason for recounting the history. Those who have not traveled the full journey may want to understand how we arrived at this point. When Jefferson County schools were last segregated as a matter of law, many of the parents and none of the current students were yet born. So we should never assume too much about the current knowledge of the long struggle to produce a desegregated school system.
Knowing the past will ultimately help us make some common sense about the rules which govern our actions now. The history which the Court now recounts concerns the judicial responses to all of these events.
A.
City and County Desegregation After Brown
The history of desegregation in the City of Louisville and Jefferson County begins, as any history of desegregation must, with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) [Brown I]. Brown established forever the constitutional principle that because "segregation of children in public schools solely on the basis of race ... deprive[s] the *756 children of the minority group of equal educational opportunities ... [state sponsored] [s]eparate educational facilities are inherently unequal" under the Fourteenth Amendment. Id. at 493-95, 74 S.Ct. 686.
To their credit, following the command of Brown, school authorities for the separate education systems in the City of Louisville and Jefferson County took some steps to dismantle their systems of de jure segregation. They proceeded cautiously and achieved mixed results. Nevertheless, the desegregation of local schools moved forward peacefully and deliberately, if not necessarily with speed or completeness.
The City of Louisville schools[1] desegregated student assignments in the 1956 school year by a geographic attendance zone plan drawn to achieve some integration. The City schools also employed a transfer policy.[2] In the 1959 school year, the City initiated a faculty desegregation plan.[3] The City made modest progress in its desegregation efforts. All but one of its seventy-five schools at some time between 1956 and 1972[4] achieved a biracial population.[5]See generally Haycraft v. Board of Educ. of Louisville, No. 7291, Memorandum Opinion and Judgment (W.D.Ky. Mar. 8, 1973), rev'd, 489 F.2d 925 (6th Cir.1973) & 521 F.2d 578 (6th Cir. *757 1975) [hereinafter Haycraft, 1973 Mem. Op.].
The County system included far fewer black students.[6] Desegregation proceeded at a slow pace. Prior to 1956, the County paid to send black high school students to attend Louisville's Central High School. Its black elementary students attended school at Newburg Elementary, a modern twenty-room school building, and in seven other one- to four-room buildings throughout the county. From 1956 to 1963, the County eliminated its all-black schools[7] and assigned black pupils by geographic district.[8] Unlike the City, the County allowed no transfers. Faculty integration did not begin until 1963 and progressed slowly.[9] By 1972, the black student population of the district had increased slightly.[10] The County's integration efforts had met with limited success at the elementary level,[11] with 56% of the black students attending just three[12] of the seventy-four elementary schools all located close to concentrations of black residents. See generally Newburg Area Council, Inc. v. Board of Educ. of Jefferson County, No. 7045, Memorandum Opinion and Judgment (W.D.Ky. Mar. 8, 1973), rev'd, 489 F.2d 925 (6th Cir.1973) & 521 F.2d 578 (6th Cir. 1975) [hereinafter Newburg, 1973 Mem. Op.]
B.
The 1973 Desegregation Lawsuits
In 1972, dissatisfied with the progress of school desegregation, several individuals and groups filed federal lawsuits against both the City and County systems. In Haycraft v. Board of Education of Louisville a suit encouraged by the Kentucky Civil Liberties Union and later joined by the Human Relations Commission and NAACP the plaintiffs contended that the City's transfer and school site selection policies perpetuated segregation, that the district had failed to integrate faculty and staff, and that the geographic, or neighborhood, school assignment system caused racially-identifiable schools. The Haycraft plaintiffs sought broad remedies including interdistrict measures or a merger of the City and County systems along with the small Anchorage Independent School District.
In Newburg Area Council, Inc. v. Board of Education of Jefferson County a suit brought by a community organization in Newburg and joined by the Kentucky Commission on Human Rights the plaintiffs similarly contended that school officials had maintained segregation through student assignment, busing, and school site selection policies. Specifically, the Newburg *758 Area Council plaintiffs attacked the concentration of black elementary students at three schools. They argued that the County had constructed Price and Cane Run schools, drawn boundaries around Newburg Elementary, and adjusted the student census at surrounding white schools all for the purpose of perpetuating nearly segregated schools. Additionally, the plaintiffs challenged the district's efforts to integrate faculty. The Newburg Area Council plaintiffs sought less dramatic remedies focusing mainly on faculty integration and on desegregating the three racially identifiable elementary schools, along with the more drastic remedy of merging the City, the County, and the Anchorage system.
Neither group of plaintiffs ever contended that either the City or County operated educationally unequal schools; instead, they both focused on the racial imbalances in each system as continuing vestiges of de jure segregation. See Haycraft, 1973 Mem.Op. at 4-5; Newburg, 1973 Mem.Op. at 13. In making these arguments, the desegregation plaintiffs relied heavily on the principles developed in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
In Green, the Supreme Court applied the holding of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) [Brown II], and required school systems to dismantle, rather than just discontinue, the practice of segregation. In the opinion's most compelling passage, the Green Court explained:
In the context of the state-imposed segregated pattern of long standing, the fact that [a school district] opened the doors of the former "white" school to Negro children and of the "Negro" school to white children merely begins, not ends, our inquiry whether the [school board] has taken adequate steps to abolish its dual, segregated system. Brown II was a call for the dismantling of the well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.
391 U.S. at 437-38, 88 S.Ct. 1689.
In Swann, the Court elaborated on the question of whether a school district operates "a system without a `white' school and a `Negro' school, but just schools." Green, 391 U.S. at 442, 88 S.Ct. 1689. The Swann Court said that evidence of racial imbalances in a previously segregated district creates a presumption that the district has not eliminated the vestiges of state-imposed segregation. See 402 U.S. at 18, 26, 91 S.Ct. 1267. More specifically, the Court held that when a district's plan includes even a small number of racially identifiable schools, the district bears "the burden of showing that such school assignment are genuinely nondiscriminatory." Id. at 26, 91 S.Ct. 1267. Swann also expressed great concern that school siting and closure decisions, when combined with neighborhood schooling, could "lock the school system into the mold of separation of the races" by "promot[ing] segregated residential patterns." Id. at 21, 91 S.Ct. 1267. Similarly, the Swann Court critiqued even racial-neutral assignment plans in previously segregated systems on the grounds that "such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation." Id. at 28, 91 S.Ct. 1267.
Together, Green and Swann provided the legal basis for the Haycraft and Newburg Area Council complaints. Under *759 Green, the two groups of plaintiffs argued that the Louisville and Jefferson County schools needed to do more than just end the system de jure segregation. Under Swann, the plaintiffs contended that the racially identifiable schools in both systems constituted evidence of the vestiges of the discriminatory system.
C.
Judge Gordon Finds No Vestiges of Past Discrimination and Dismisses Both Cases
Both Haycraft and Newburg Area Council ended up before Judge James F. Gordon of the Western District of Kentucky, who consolidated the actions. In March of 1973, he ruled against the plaintiffs and dismissed both cases. See Haycraft, 1973 Mem.Op. & Newburg, 1973 Mem.Op.[13]
Judge Gordon began by reasoning that the "tip ratio" (perhaps, less euphemistically described as the statistical point at which "white flight" occurs) prevented City officials from doing anything more to achieve integration: "any further efforts ... to achieve greater racial balance will result in a system-wide tilt; thereby leaving the district blacker, and poorer and more segregated." Haycraft, 1973 Mem. Op. at 14-15. He concluded that school closings resulted in more integration or had little effect. See id. at 16-17. He determined that the City had successfully desegregated its faculty and administration. See id. 17-19. On perhaps the most hotly contested subject, attendance zones, Judge Gordon found that the district's boundaries did not perpetuate segregation. See id. at 19-26. He found no gerrymandering or other boundary manipulation. See id. at 24. The attendance areas tracked neighborhood lines; the demographics of each neighborhood shaped the racial composition of the schools. See id. at 19, 26. Judge Gordon attributed the dramatic shifts in racial makeup at certain schools (Male and Shawnee high schools, for instance) to population migration rather than to any City action. See id. at 22-23. The regrettable racial imbalances apparent in school system as of 1972 he suggested had their genesis in "white flight, neighborhood housing patterns and socioeconomic factors; not de jure acts or failures to act." Id. at 30. Judge Gordon praised the "dispatch and diligence" with which the Louisville carried out the intent of Brown I. See id. at 30, 91 S.Ct. 1267.[14]
Judge Gordon understood Swann to require close scrutiny of racially identifiable schools, but he also interpreted Swann to mean that "the existence of some small number of one race or virtually one-race *760 schools within a district is not in and of itself a mark of a system that still practices segregation by law." Id. at 31, 91 S.Ct. 1267. Accordingly, he found the Louisville school system unitary and ruled in favor of the City.
In Newburg Area Council, Judge Gordon determined that County racial imbalances arose due to demographics and the difficulty of integrating a relatively small number of black students who lived in the same neighborhoods. For example, he found that the fluctuations in the size of the Newburg school were produced by changes in the grades assigned to the school to increase integration in the surrounding schools. See Newburg, 1973 Mem.Op. at 17-18. He rejected claims that school site choices and busing rates in the Newburg area actually fostered continued segregation. See id. at 18-20, 24. Finally, Judge Gordon reasoned that the County Board engaged in "vigorous" efforts to desegregate the system's faculty and that it encountered difficulties because of the "reluctance of black teachers to teach in a predominantly all white school system." Id. at 26.
After reiterating his understanding of Swann, Judge Gordon concluded that the County operated a unitary school system. See id. at 32-33, 91 S.Ct. 1267. Only drastic remedial action, such as busing, he found, would improve the level of integration. He rejected that option as being "totally unrealistic" to transport white children into the Newburg area and black children to white schools "in order to achieve some sort of racial balance." Id. at 32-33, 91 S.Ct. 1267. Again, Judge Gordon ruled in favor of the County.
D.
The Sixth Circuit Reverses and Orders School Desegregation
On appeal, the Sixth Circuit reversed, finding vestiges of discrimination in both the City and County schools. See Newburg Area Council, Inc. v. Board of Education of Jefferson County, 489 F.2d 925 (6th Cir.1973). Factually, the appellate court focused on the continuing presence of racially identifiable City and County schools. Legally, the circuit panel expressed a different understanding of Swann than Judge Gordon. The Sixth Circuit explained that Swann tolerated a small number of racially identifiable schools only in the context of an "`otherwise effective plan for dismantlement of the [segregated] school system.'" Id. at 928 (quoting Northcross v. Board of Educ. of Memphis City Schools, 466 F.2d 890, 893 (6th Cir.1972)). In a previously segregated system, the continued presence of racially identifiable schools imposed a burden on a school board to "show that the racial composition of these schools is not the result of past discriminatory action on its part." Id. at 931 (citing Swann, 402 U.S. at 26, 91 S.Ct. 1267). The Sixth Circuit concluded that the City and County simply had failed to adopt effective desegregation plans. See id. at 929, 931.
The Sixth Circuit found overwhelming evidence of racially identifiable schools in the Louisville system: "the evidence indicates that over 80% of the schools in Louisville are racially identifiable." Id. at 930. Five of six academic high schools, nine of thirteen junior highs, and forty of forty-six elementary schools remained racially identifiable. Of the fifty-six pre-Brown schools still operating, thirty-five retained the same racial identity. That statistic alone was enough to decide the case.[15]
The court found the City's desegregation efforts sorely lacking. Demographic changes did not excuse the board from its duty to eliminate the vestiges of segregation. *761 See id. More importantly, the court explained that the "residual effects of past discrimination," id., made it impossible for the City's geographic student assignment plan to work effectively. The neighborhood school plan merely perpetuated the racial identity of many schools. The court, then, reached the inescapable conclusion that the City did not operate a unitary schools system.
While the Jefferson County school system suffered from a much smaller number of racially identifiable schools, the Sixth Circuit found their presence no less dispositive. The court focused upon the continued racial identifiability of Newburg as a vestige of segregation. See id. at 929. The court concluded that, unless the County addressed that problem, it would not eliminate the dual system "root and branch" as Green required. See id. at 928-29. This finding makes tremendous sense given the small proportion of black students in the County system. Though only one pre-Brown school continued its racial identity, that one school accounted for a large fraction of the district's black elementary students. Therefore, it alone played a significant role in the analysis.
More specifically, the court found that the County had neglected opportunities to integrate the Newburg, Cane Run, and Price schools. The Sixth Circuit criticized Judge Gordon for accepting the County's explanation that it sent some of the Newburg community's black children to nearby white schools without having determined why the County did not assign white children to Newburg and Price. See id. at 929. The court condemned the County's "neutrality" as to the emerging racial identifiability of Price and Cane Run. The panel reasoned that since the school district had not yet eliminated its dual system, it faced an affirmative duty to ensure that its actions did not further segregation. See id. Hence, it mandated that the County "had the affirmative responsibility to see that no other school in addition to Newburg would become a racially identifiable black school." Id. The Sixth Circuit directed the district court to hold "proceedings to formulate a desegregation plan for all school districts in Jefferson County." Id. at 932.
E.
City and County School Merger
Upon remand from the Sixth Circuit, Judge Gordon set to work formulating a desegregation plan as directed. During the summer of 1974, he devised Plan X, a desegregation plan that included the merger of the Louisville and Jefferson County systems. All this came to a halt, however, when the Supreme Court granted certiorari and vacated the Sixth Circuit opinion, remanding the case for reconsideration in light of Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I), which limited the federal court's authority to order interdistrict remedies. See Board of Educ. of Louisville v. Haycraft, 418 U.S. 918, 94 S.Ct. 3209, 41 L.Ed.2d 1160 (1974); Board of Educ. of Jefferson County v. Newburg Area Council, Inc., 418 U.S. 918, 94 S.Ct. 3208, 41 L.Ed.2d 1160 (1974). Ironically, the Supreme Court's action came just two days after Gordon issued his desegregation decree.
On reconsideration, the Sixth Circuit determined that Milliken did not prohibit an interdistrict remedy among the school districts of Jefferson County because the local school authorities had ignored and crossed district lines for the purpose and with the effect of causing segregation. See Newburg Area Council, Inc. v. Board of Educ. of Jefferson County, 510 F.2d 1358, 1360-61 (6th Cir.1974). Accordingly, the appellate court reinstated, with slight modifications, its earlier opinion. See id. at 1361.
In an unusual development, as the district court continued the proceedings, the plaintiffs in both Haycraft and Newburg Area Council filed, and the Sixth Circuit granted, a petition for a writ of mandamus *762 directing Judge Gordon to consolidate the cases and issue a desegregation plan effective for the 1975-76 school year. See Newburg Area Council, Inc. v. Gordon, 521 F.2d 578 (6th Cir.1975).
One other crucial development occurred in the same time frame: The Kentucky State Board of Education ordered the merger of the Jefferson County and Louisville school systems effective April 1, 1975. See Cunningham v. Grayson, 541 F.2d 538, 539 (6th Cir.1976). This significant change mooted some of previous litigation and left Judge Gordon with a markedly simpler task in constructing a desegregation plan.
F.
Judge Gordon's 1975 Desegregation Plan
Only thirteen days after the Sixth Circuit's mandamus on July 17, 1975, Judge Gordon brought forth a desegregation decree designed for the start of school the following month. See Newburg Area Council, Inc. v. Board of Education, Nos. 7045 & 7291, Judgment & Findings of Fact and Conclusions of Law (W.D.Ky. July 30, 1975) [hereinafter 1975 Judgment & 1975 Findings, respectively].[16] The plan, which the Court shall refer to as the 1975 Decree, contained nine "integral" operational components: "student assignments; schools to be closed; procedures relating to hardship; method of transportation; assignment of school employees, including teachers, administrators and other certified personnel; human relations programs; transportation schedules; procedures for enforcement and implementation; and monitoring and reporting procedures...." 1975 Judgment at 1. Predictably, five of the nine parts addressed the process of determining which students would attend which schools and how to transport them there.
While the Judgment listed the specific areas detailed by the plan, the Findings reveal a more subtle hierarchical structure. In the top tier of that hierarchy, Judge Gordon prescribed four guiding principles or, in his words, "four factors essential to any plan which would carry out the mandate of the Sixth Circuit." 1975 Findings at 2. These essential factors were stability, equity, predictability, and simplicity. Judge Gordon expanded upon each of these concepts by providing short definitions.
The concept of stability, Judge Gordon explained, required that the plan be capable of extending over a "number of years." Id. He eschewed a plan that would require "constant revision from year to year" because of the accompanying "damage [to] public confidence" and to the "quality of education." Id. By using of racial composition guidelines, with maximum and minimum ratios, he hoped to "insure stability over an extended period." Id. The plan must "treat students within racial categories with equity." Id. To provide greater clarity, Judge Gordon offered that "equity" meant that "[n]o person or student should be required to bear an unreasonable or disproportionate burden in the desegregation of the schools." Id.[17] Racial guidelines formed the most important part of his plan. He set out two separate and *763 specific guidelines which formed the primary operational elements of the desegregation decree.[18] Finally, Judge Gordon specified that the "method for selecting students to be transported for the purpose of this desegregation plan insures that every student, within racial categories, participates as equally as possible." Id. at 3. This final point reiterated and operationalized the concept of equality.
Next, the plan contained detailed requirements for each of the nine integral components. Under the heading of "Student Attendance Areas, School Closings, and Clustering," the desegregation plan described the basic approach to desegregation. See id. at 4-6. While this section of the plan contained such details as a list of schools to close and a method transition from junior high schools to middle schools, its core focused on more general desegregation principles. Interestingly, Judge Gordon began this section of the plan by explaining that school officials would need to adjust the plan to reflect revisions in the demographic data.[19] Next Judge Gordon described the new student attendance areas which involved a clustering system to achieve desegregation by busing students among the various schools in each cluster.[20]See id. at 6.[21]
The next section of the plan, entitled "Student Assignment Methodologies," detailed how school officials would identify students for transport in each school year. See id. 6-11. Here, Judge Gordon described an approach that came to be known as the "alphabet plan." Under this system, whether students attended their "district school" or whether they were bused in each year depended upon the first letter of their last name. The plan included an especially detailed transportation logistics program with provision for monitors on all buses transporting students "for the purpose of desegregation." Id. at 15. Judge Gordon provided special procedures for first graders, exempting them from busing during the first quarter of the school year. See id. 6-7. Eventually, because of the limited availability of buses, Judge Gordon exempted first graders from the plan for the first two years. See Haycraft v. Board of Educ. of Jefferson County, 585 F.2d 803, 804 (6th Cir.1978).
The remainder of Judge Gordon's plan addressed items of great importance at the time, but which may have little role in the current litigation. Judge Gordon required that the school system assign certificated staff "so that the racial composition of a specific school staff [did] not indicate that the individual school was intended exclusively for white students or black students." 1975 Findings at 14. The plan further provided that, in all areas of the system, the racial make-up of the staff (including teachers) should "parallel the *764 racial composition of the staff in the entire system." Id. Several sections of the plan detailed Judge Gordon's power to monitor and enforce the desegregation process through the appointment of a Magistrate or Special Commissioner. Finally, Judge Gordon rounded out the enforcement sections by cautioning the public to follow his orders and by explaining his intent "to guarantee the safety of the children affected by my judgment." Id. at 22.
Judge Gordon's desegregation plan was appealed on multiple fronts. The Sixth Circuit consolidated the various challenges and affirmed Judge Gordon. See Cunningham v. Grayson, 541 F.2d 538 (6th Cir.1976). That opinion provided some crucial guidance on the validity of the racial composition guidelines. The Sixth Circuit explained that the plan permissibly employed flexible ratios, or ranges, based on the racial composition of the student population of the school system. See id. at 542. To have promulgated rigid percentages would have been an abuse of discretion. See id. On the other hand, even with the range of percentages, the district court could not require "year-to-year realignment to correct non-state-action caused divergencies from the racial guidelines." Id. The Cunningham court rejected any contention that the absence of black majority schools under the guidelines posed a constitutional problem.[22] Finally, the court considered and rejected a challenge to the plan on the grounds that it burdened black students disproportionately.[23]
After initial implementation, Judge Gordon modified the desegregation plan a number of times in both large and small ways. One of the district court's adjustments led to yet another round of litigation. In 1976, Judge Gordon ordered the transportation of additional black students to achieve desegregation of the system's elementary schools. The Board objected on the grounds that the district court violated the rule established by Pasadena City Board of Education v. Spangler, 427 U.S. 424, 434-36, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), which prohibited a district court from requiring perpetual readjustment of attendance zones following the district's compliance with the order.[24] Judge Gordon found that Spangler did not apply because the Board had never come into compliance in the first case. The Board appealed and the Sixth Circuit affirmed Judge Gordon. See Haycraft v. *765 Board of Educ. of Jefferson County, 560 F.2d 755, 755-56 (6th Cir.1977).
G.
Judge Gordon Ends Active Supervision of Schools in 1978
Judge Gordon spent three years actively overseeing the 1975 desegregation plan. In the Spring of 1978, he took up the question of closing the case. On June 15, 1978, Judge Gordon removed the consolidated case from the court's active docket and declared the public schools of Jefferson County unitary. See Haycraft v. Board of Education of Jefferson County, Nos. 7045 & 7291, Memorandum Opinion & Final Judgment (W.D.Ky. June 15, 1978) [hereinafter 1978 Mem.Op. & 1978 Final J., respectively]. A central question for this Court is what to make of the 1978 decision.
Judge Gordon began his 1978 opinion by "declaring the complete successful implementation of the Court's desegregation order herein of July 30, 1975, as amended." 1978 Mem.Op. at 1. The Board, he found, had faithfully executed the plan by achieving pupil desegregation, staff desegregation, and compliance with the monitoring process. For example, Judge Gordon effusively praised the Board's good faith efforts to comply with the racial composition guidelines, to meet the court's monitoring requirements, to improve the implementation of the order, and to bring state lawsuits to ensure the success of the desegregation plan. See id. at 4-8. He lauded the Board's efforts to achieve substantial compliance with the racial composition guidelines at every school for at least a substantial period since the imposition of the 1975 Decree. See id. at 9 & 11. He rejected the argument that classroom segregation undermined school integration. Classroom racial composition, he found, depended upon individual student choice rather than state action. See id. 12-16. In the paragraphs on staff desegregation, Judge Gordon found the system in "substantial conformity" with the 1975 order. Id. at 16. Accordingly, Judge Gordon declared that "implementation of [the] amended desegregation order has produced a unitary school system in Jefferson County, Kentucky." Id.
Throughout the opinion, Judge Gordon focused on the crucial importance of the racial composition guidelines, referring to them as the "primary touchstone or determinant," id. at 4, of the desegregation order.[25] He reiterated that the purpose of the desegregation plan was to "radically alter the racial composition of virtually every school in the school system." Id. He described the racial guidelines as central, not only in producing those radical changes, but also in "assaying whether or not the school system, upon implementation of the desegregation plan, had indeed become a unitary school system." Id.
While Judge Gordon explicitly ended some components of the plan and impliedly ended others, he clearly intended to continue some aspects of the order. The opinion is replete with reference to the "continuing nature" of the 1975 Decree, its ongoing "good faith implementation" and about the Board's assuming the "yoke" of responsibility for the ongoing order.
*766 Surveying the entire Memorandum and the Final Judgment, there is no doubt that Judge Gordon closed the door on his "intimate involvement with the administration of the Jefferson County school system. 1978 Mem.Op. at 19.[26] In doing so, he began the process of returning to the Board `the plenary power ... to set educational policy.'" Id. He also left some portions of the desegregation decree in place. Exactly what portions remain and their legal effect are among the important questions which the Court will answer in this Memorandum.
H.
Judge Ballantine Declines Not to Reopen Case in 1985
The final relevant decision came down in 1985. At that time a number of the original plaintiffs petitioned the Court to reopen the case and require the Board to expand its integration efforts. They argued that the Board was not doing enough. Judge Ballantine declined to "restore the case to the active docket for the purpose of modification of the final judgment and desegregation order." Haycraft v. Board of Education of Jefferson County, Nos. 7045 & 7291, Memorandum, at 1 (W.D.Ky. Sept. 24, 1985) [hereinafter 1985 Mem.Op.].
Judge Ballantine began by approvingly tracing the Board's continuing efforts to maintain Judge Gordon's racial balance percentages. See id. at 2-3. He opined that the "original alphabetical assignment of students was at best only temporarily effective." Id. at 2. For example he noted a number of demographic changes that necessitated several innovations enacted by the Board to ensure its compliance with the desegregation order:
Because of changes in the demographic makeup of the community, by 1983 there were a number of schools which no longer met the 1975 guidelines. Thereafter, in 1984, with the assistance and advice of a representative citizens committee and other interested persons and organizations, the school board developed a plan by which students are assigned based on locations of their residence. In order to achieve an appropriate racial balance in each school, the perimeters of each school's attendance zone are, of necessity, somewhat arbitrary, even to the point of gerrymandering. In addition to the redrafting of school zone boundaries, so-called "magnet" schools were established. These innovations resulted in restoring the racial balance mandated by Judge Gordon.
Id. at 3. These modifications apparently did not please at least some of the original desegregation plaintiffs.[27]
Judge Ballantine's refusal to reopen the case rested entirely on Judge Gordon's 1978 decision. He characterized that decision as embodying Judge Gordon's "judgment holding that the dual system had been eliminated" and as demonstrating Judge Gordon's "satisfaction that there remained no vestige of either de facto or de jure segregation in the Jefferson County schools." Id. at 5-6. The judge rejected the motion to reopen the case on the grounds that the plaintiffs introduced no *767 evidence that the Board's actions led to resegregation. See id. at 7. As Judge Ballantine explained: "This Court reads [Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976)] as proscribing judicial intervention for the sake of supervision. The common thread of all the cases cited is that once the constitutional violation has been remedied, absent a showing of it's renascence, the federal courts must not interfere with the traditional functions of the school board." Id. at 8.
Because he ruled in favor of the Board, one might interpret Judge Ballantine decision as an endorsement of the Board's arguments. That was not the case. The Board vigorously argued that Judge Gordon's 1978 finding of unitariness dissolved a preliminary injunction. See generally Defendants' Response to Plaintiffs' Motion to Restore Case to Active Docket for the Purpose of Modification of Final Judgment and Desegregation Order & Defendants' Rebuttal Memorandum, Haycraft v. Board of Education of Jefferson County, Nos. 7045 & 7291, (W.D.Ky. Sept. 24, 1985). Nowhere in his decision did Judge Ballantine address these specific substantive arguments advanced by the Board.
Like his predecessor, Judge Ballantine may have recognized that an element of ambiguity acts powerfully. Each judge skillfully held out the threat or possibility of future intervention to ensure continuation of existing policies. Since the Board continued to follow the essence of the Decree, Judge Ballantine undoubtedly saw no reason to interject himself. Whatever Judge Gordon ordered, Judge Ballantine left unchanged.
Since 1985, the Board has twice changed its assignment plan. In 1991, the Board eliminated the alphabet plan and mandatory busing entirely and instituted a student choice system. See Stipulated Exhibit # 19, Detailed Description of the District's Managed Choice Student Assignment Plan, at 1 (not dated). In 1996, the Board adopted the current plan.
III.
The Current Student Assignment Plan
A lengthy process of expert consultation and public input shaped formulation of the 1996 "managed choice" plan (the "Student Assignment Plan"). See generally Stipulated Exhibit # 14, Consultant's Report on the Current Student Assignment Plan (Oct. 24, 1994); Stipulated Exhibit # 15, Student Assignment Monitoring Committee Presentation (March 11, 1996); Stipulated Exhibit # 16, Student Assignment Plan, Analysis of Community Forum Responses (Apr. 2, 1996); Stipulated Exhibit # 17, Student Assignment Survey, Summary of Findings (July 1996). The present plan is the Board's effort to accommodate a range of competing interests, including allowing parents the opportunity to participate in the selection of their child's school, affording stable and integrated student assignments, and offering specialized programs including magnet schools, optional programs, and career academies. Overall, the plan includes an impressive array of educational opportunities for students of all interests and abilities in facilities throughout the county. See Stipulated Exhibit # 19 at 1.
The present plan begins with four goals:
1. The school district shall maintain educational and financial equity among all school children in the district by providing substantially uniform educational resources to all students in the district regardless of the location of their school, the racial composition of their school, or the type of educational program in which they are enrolled....
2. ... All Jefferson County Public Schools students will perform at higher levels of academic achievement in areas of basic skills and critical thinking skills in a racially integrated learning environment.
*768 3. The school district shall make provisions for staff development which prepares all staff to work successfully with all students regardless of racial, ethnic, and cultural backgrounds....
4. The school district shall maintain and update its current staff integration goals and practices and shall continue to actively seek more African-American teachers, counselors, and administrators.
Stipulated Exhibit # 18, Memo From Superintendent Daeschner, at 5 (Aug. 26, 1996).
As with Judge Gordon's 1975 plan, the 1996 plan revolves around racial composition guidelines. It requires that each school have a black student enrollment at least 15% and no more than 50%.[28]See Stipulated Exhibit # 18 at 5-6; Stipulated Exhibit # 19 at 2. This reflects a range above and below the system-wide average enrollment of approximately 30% black students.[29] The actual process of assigning a student involves the interaction of each student's choice with the racial composition guidelines, and with the space limitations of each school or program.
The racial guidelines influence several points of the student assignment process. First, the guidelines shape attendance boundaries that determine "resides" areas. Each student has a "resides school" serving his or her home address. This school is the default school for assignment purposes. The Board assigns a student to the resides school unless: (1) the student gains admission to another school through the application process, (2) the student has a special programmatic need, (3) the student's resides school is at capacity, or (4) the "student's placement would cause the resides school to be out of compliance with the District's racial composition guidelines." Exhibit # 18 at 8.
At the elementary level, schools are clustered so that the combined attendance zones will produce a student population falling within the racial guidelines. At the secondary level, each school has its own attendance area (except for a small number of magnet schools, such as Central High School, which have no resides areas). If that attendance zone produces racial imbalance, the Board creates a non-contiguous satellite attendance zone to bring students into that school and comply with the guidelines. These satellite zones all fall in predominantly black neighborhoods, causing the transportation of many black students to schools in white neighborhoods. No satellite zones require transportation of white students to schools in predominantly black neighborhoods.
The racial composition guidelines also affect the application process. An elementary student may choose to attend the resides school (unless the racial composition guidelines prevent the student from attending) or may apply for a school in the cluster, for a magnet school or program, or for a transfer to a school in another cluster. Similarly, at the secondary level, an entering ninth grader may apply to any school in the district.[30] Thereafter students no longer enjoy the open enrollment option, but they may continue to apply for magnet schools and other special programs. Students may also request a *769 transfer. Middle school students enjoy a similar range of options. See generally Exhibit # 18.
At all grade levels, however, the district limits student applications in several ways. Many magnet and optional programs have application requirements. These requirements sometimes include academic performance criteria and teacher recommendations. All schools and programs have space limits. And, all schools observe and are ultimately governed by the racial composition guidelines. See generally Exhibit # 18.
When the racial guidelines do come into play in the application process, they work to deny admission based on the student's race. If the school lies near the 15% minimum black enrollment, it could accept black applicants but it would deny admission to a disproportionate number of non-black students. Conversely, if the school approaches the 50% maximum black enrollment, it would deny admission to a disproportionate number of black students. These actions maintain each school within the Board's established racial guidelines and, thus, serve to advance the Board's overall objectives.
IV.
THE BOARD REMAINS BOUND BY SOME ELEMENTS OF THE 1975 DESEGREGATION DECREE
Three distinct questions emerge from this review of the litigation history of desegregation in Louisville and Jefferson County: Did Judge Gordon's finding of unitariness terminate the desegregation decree? Which remedial components of the desegregation order remained in effect after 1978? Does the Board's current student assignment plan comply with the continuing order?
The Court will begin by discussing why Judge Gordon's finding of unitariness and why his decision to withdraw from active supervision of the 1975 Decree did not constitute termination of the Decree. To do so the Court must first examine the Supreme Court's understanding of the term "unitary."
A.
Dowell Explains Provisional Unitariness
Unitariness has multiple meanings. What Judge Gordon may have meant by his use of the term will teach us a lot about the shape of the Decree after 1978. The foremost guidance on the subject of unitariness is Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). Dowell provides some interesting parallels and important insights on many levels. Consequently, it makes some sense to explore the factual background of the case before considering its many lessons. See generally id. at 240-44, 111 S.Ct. 630 (providing a more complete version of the history of desegregation litigation in Oklahoma City).[31]
Desegregation in Oklahoma City began in 1963 when a federal court found the school board operated a dual system. See Dowell v. School Bd. of Oklahoma City Public Schools, 219 F.Supp. 427 (W.D.Okla.1963). Two years later, the court determined that neighborhood zoning efforts failed to remedy segregation. See Dowell v. School Bd. of Oklahoma City Public Schools, 244 F.Supp. 971 (W.D.Okla.1965). Seven years later, the district court imposed a desegregation plan on local school authorities. See Dowell v. Board of Education of Oklahoma City Public School, 338 F.Supp. 1256 (W.D.Okla.), aff'd, 465 F.2d 1012 (10th Cir. 1972).
In 1977, the Oklahoma City school board moved to close the case and the court *770 granted the motion in an unpublished decision. Almost a decade later, in 1985, the original plaintiffs moved to reopen, contending that the board's new student assignment plan returned the district to segregation and that the system had never achieved unitariness. The court concluded that the 1977 decision was res judicata on the question of unitariness and, furthermore, that court-ordered desegregation must end. See Dowell v. School Bd. of Oklahoma City Public Schools, 606 F.Supp. 1548 (W.D.Okla.1985).
On appeal, the Tenth Circuit reversed, explaining that the 1977 decision did not terminate the 1972 desegregation order but, instead, merely ended the district court's active supervision. Accordingly, the appellate court remanded to allow the plaintiffs to challenge the new student assignment plan as violative of the desegregation order. The Tenth Circuit also held that the district court would need to decide whether to lift or modify the order. See Dowell v. School Bd. of Oklahoma City Public Schools, 795 F.2d 1516 (10th Cir. 1986).
On remand, the district court concluded that the board had continued desegregation in good faith even though the original desegregation plan had become somewhat unworkable. The court further found that segregation, if it existed, was caused by private decision-making and economics not linked to prior school segregation. This conclusion led the district court to vacate the desegregation order. See Dowell v. Board of Education of Oklahoma City Public Schools, 677 F.Supp. 1503 (W.D.Okla.1987).
Again, on appeal, the Tenth Circuit reversed and explained that, under United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), the district court should not have lifted the desegregation decree absent a showing of "`grievous wrong evoked by new and unforseen conditions.'" Dowell v. School Bd. of Oklahoma City Public Schools, 890 F.2d 1483, 1490 (10th Cir.1989) (quoting Swift, 286 U.S. at 119, 52 S.Ct. 460). The Tenth Circuit explained that, without the desegregation decree, a number of schools in Oklahoma City would again become racially identifiable one race schools. The appellate court, thus, reasoned that circumstances had not changed sufficiently to permit modifying or lifting the desegregation order. See id. at 1504.
The Supreme Court granted the board's petition for certiorari to resolve conflicts over the meaning of unitariness and over the standards for dissolving desegregation orders. In its opinion, the Supreme Court began by considering the meaning of unitariness. The Court stated simply that the lower courts had "been inconsistent in their use of the term `unitary.'" 498 U.S. at 245, 111 S.Ct. 630. In some cases, a determination of unitary status meant that the school system had "completely remedied all vestiges of past discrimination." Id. According to the Court, when used in this manner, unitariness meant that the school district has met the mandate of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and Green v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). In other cases, however, unitariness has meant no more than a finding that a board operated a "school district that has currently desegregated student assignments, whether or not that status is solely the result of a court-imposed desegregation plan." 498 U.S. at 245, 111 S.Ct. 630. Crucially, the Dowell Court explained that, under this second definition of unitariness, a school district might still suffer from the continuing effects of segregation. In the Court's words, "such a school district could be called unitary and nevertheless still contain vestiges of past discrimination." Id. The Court cautioned that it was a "mistake to treat words such as `dual' and `unitary' as if they were actually found in the Constitution." Id. at 246, 111 S.Ct. 630. The Court doubted the utility of providing precise definitions for the terms. See id. Interestingly, Dowell did not disapprove *771 of either use of the term unitary; instead, it simply noted the different uses and went on to examine the effect of each.
After this analysis, the Supreme Court turned its attention to the effect of the district court's 1977 decision and its finding of unitariness. With a piercingly concise statement, the Court explained that the 1977 decision did not provide conclusive guidance: "The District Court's 1977 order is unclear with respect to what it meant by unitary and the necessary result of that finding." Id. Thus, the Court upheld the Tenth Circuit's conclusion that the district court did not end the desegregation order in 1977 but instead ended only the active intervention of the federal court. The Court rested its conclusion on Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), which held that all parties deserve an unambiguous statement when a court terminates a desegregation order: "If such a decree is to be terminated or dissolved, respondents as well as the school board are entitled to a like statement from the court." 498 U.S. at 246, 111 S.Ct. 630.
Thus, Dowell uncritically describes a form of "provisional" unitariness justifying the withdrawal of federal court supervision, but not constituting a finding on the elimination of all vestiges. Rather than amounting to a corruption of the term unitary, the conclusion that many courts actually intend a provisional finding of unitariness makes tremendous sense. As the Dowell Court powerfully explained, federal courts should respect the important value of local control over education. Accordingly, the courts should make the transition away from federal court supervision as soon as appropriate. The withdrawal of the federal court's active involvement tests a school board's genuine good faith by allowing it to make unsupervised decisions. This in turn helps create an appropriate transition period during which a school board continues to act under the mandate of a desegregation order after a district court has withdrawn its active supervision.
B.
Judge Gordon Did Not Terminate Desegregation Decree.
After considering the foregoing analysis, the Court concludes that Judge Gordon's 1978 decision falls into the category of provisional unitariness.[32] By its very nature, Judge Gordon's Memorandum contained a necessary element of imprecision, which may have been purposeful, creating the ideal tension between the promise of autonomy and the threat of supervision. Remember, Judge Gordon did not have the benefit (or the burden) of the jurisprudence up through Dowell. The clever ambiguity of judges like Gordon and Ballantine, in fact, has helped create the kind of transition Dowell envisioned.
At some points in the opinion, Judge Gordon appears to have stated that the Board had eliminated all vestiges. The opinion is replete with references to either *772 the complete successful implementation of the order or to the school district's compliance with the order. In other places, however, Judge Gordon suggested that problems persist by cautioning the Board that it must continue to comply with the continuing desegregation order.
Judge Gordon did reach clear findings about the Board's good faith. But, by perpetuating the desegregation decree, he left a muddy picture of whether the school system had "completely remedied all vestiges of past discrimination." Dowell, 498 U.S. at 245, 111 S.Ct. 630. Judge Gordon's continuation of the Decree suggested that, although the school system "currently desegregated student assignments," id., the system might appear unitary only because of "a court-imposed desegregation plan," id. Thus, the best the Court can say is that the 1978 decision fits as neatly as possible within the provisional unitariness category.
The precise delineation of Judge Gordon's findings on unitariness do not matter. Functionally, Judge Gordon's finding was clearly one of provisional unitariness ending only the active supervision of desegregation by the district court along with certain specified and unspecified portions of the decree.[33] As the Dowell Court explained, Spangler requires an unambiguous articulation of whether a desegregation decree is terminated or whether it continues. Without a doubt, Judge Gordon stated this fact unambiguously he intended some portions of the decree to continue.
Any number of passages from the opinion amply support this conclusion. For example, in the pupil desegregation portion of the opinion, Judge Gordon stated:
The requirement of the Fourteenth Amendment of the United States Constitution limiting the power of the district courts to redress only unconstitutional state action after a school system has, through remedial action, been made unitary will not impede this Court from enforcing such portions of its desegregation order as are of a continuing nature.
1978 Mem.Op. at 12. Admittedly, this same section causes as much confusion as clarity. While Judge Gordon implied that he would continue to enforce his order, he had just stated in the previous paragraph that the Jefferson County schools had attained "compliance as measured against the `guidelines' for pupil racial composition." Id. He then explained that:
Thus, the Jefferson County school system has now moved to the "post-compliance" state of implementation of the Supreme Court's decision in [Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976)]. Accordingly, the decision in Cunningham v. Grayson, 541 F.2d 538 (6th Cir.1976) now controls the question of the power of this Court to compel year-to-year realignment.
Id. (citation omitted).
An even more convincing statement of Judge Gordon's intent to continue some *773 aspects of the desegregation order appears in the section on monitoring:
The Court has considered the many suggestions for various forms of monitoring of further implementation of the desegregation order and has determined that as the system has now been determined to be a unitary one, it must accept immediately the yoke of monitoring its own activities as they affect the constitutional rights of young people as adjudicated in this action. The school board and its administration are expected by this Court to continue to implement those portions of the desegregation order which are by their nature of a continuing effect.
It is anticipated that the defendants will comply with the desegregation order; otherwise, this Court would not consider withdrawing its active monitoring of the implementation of its desegregation order.
Id. at 18. Thus, Judge Gordon seems to have expressly envisioned that some parts of that order would have a natural continuing effect.
This conclusion is strengthened by the inclusion in the opinion of five "recommendations" for the future "implementation of the Court's desegregation order." Id. at 19-21.[34] These recommendations suggest an understanding between Judge Gordon and the Board: even without his active involvement, the Board would continue to administer the desegregation decree.
Any doubt about status of the desegregation order after the 1978 opinion is entirely removed by a reading of Judge Gordon's conclusion and his Final Judgment. The opinion ends with Judge Gordon's parting advice to Board:
While this Court cannot admonish the present school board too strongly of the necessity of the continuation of the good faith implementation of the desegregation order as amended, it does not anticipate that a reopening of this matter will be necessary.
Id. at 24. This final nicely-turned phrase hangs precariously between threat and promise. Even more importantly, the Final Judgment explicitly provides that the end of active intervention did not terminate the continuing nature of the desegregation decree:
The continuing nature of any previously entered order which is inconsistent with the cessation of active monitoring by this Court of the implementation of its amended desegregation order is hereby terminated. The continuing nature of the orders of this Court in this matter which are not inconsistent with this Court's termination of its jurisdiction for the purpose of monitoring the implementation of its amended desegregation order is in no way affected hereby....
... To aid the Board of Education and its Superintendent in fulfilling their charge of implementing such portions of this Court's amended desegration order as are of a continuing nature, the Superintendent is hereby directed to prepare and submit to the Board in a regularly scheduled meeting in the months of November, 1978, 1979 and 1980 the following data....
1978 Final J. at 1-2.
Never did Judge Gordon directly or unambiguously dissolve the Decree. In the Court's view this was not an oversight. To be sure, Judge Gordon wanted out of the school business. Just as surely he wanted the Board to continue following the basic thrust of his Decree. He surely would have acted had the Board shown the bad judgment not to do so.
*774 The conclusion that the Decree remains alive today may be more than a little surprising to some. However, a comparison of the Haycraft litigation to a typical suit for injunctive relief should lessen that surprise. With a normal, non-desegregation injunction, the court enters a permanent injunction, closes the case, and the injunction lives on. Rarely would a court retain jurisdiction to ensure compliance. Desegregation cases are the exception to the norm. Typically, courts resorted to placing the school system in virtual receivership because they confronted school districts' persistent and active opposition to desegregation.[35] In other words, if the Haycraft litigation had been a typical suit for an injunction, it would surprise no one to learn that the order remained in place after the judge closed the case.
Nothing in Judge Ballantine's 1985 opinion alters this Court's analysis. While Judge Ballantine added some gloss to the 1978 decision by explaining that Judge Gordon held "that the dual system had been eliminated," 1985 Mem.Op. at 5, he did not litigate the issue of unitariness. Nor did he change the shape of the continuing decree. Instead, he seems to have presumed the Board's continued compliance with the desegregation decree. For instance, he mentioned that the Board created new attendance zones "to achieve an appropriate racial balance in each school" as defined by the 1975 guidelines. Id. at 3. Judge Ballantine simply refused to reopen the file. His decision cannot be characterized, therefore, as altering the posture of the case after 1978.[36]
This case differs from Dowell in an important manner. In Dowell there was some dispute over whether the desegregation decree continued or whether the 1977 decision to close the case also lifted the decree. Here, while Judge Gordon was not "crystal clear" about his use of the word "unitary," he did plainly state that appropriate portions the Decree continued in effect. Judges Gordon and Ballantine probably had excellent reasons for never precisely and unambiguously stating that the Decree was dissolved and of no further effect. The Board may have had good reasons for never requesting such a statement. Regardless, the essential fact is that no judge has ended the Decree. This Court concludes, like the Tenth Circuit interpreting the 1977 decision in Dowell, that Judge Gordon ended judicial supervision of the desegregation decree, but did not dissolve the order itself.
C.
The Continuing Decree Requires the Board to Prevent Return of Racially Identifiable Schools
The Court must now determine which portions of Judge Gordon's 1975 Decree remain effective today. Before heading down that road, the Court must add a caveat. If Judge Gordon had precisely detailed the ongoing components of his order, then this case and the 1985 litigation might not ever have arisen. Given the *775 ambiguity of the 1978 decision and given the delicate fact-sensitivity of any desegregation case, the Court does not expect to find and apply any bright-line rules allowing a quick and easy distinction between those aspects of the Decree that terminated and those portions that continued. Rather than finding an answer in precision, the Court anticipates instead looking to the unique path of the Haycraft litigation. As the Supreme Court instructed in Dowell, the question of whether a decree continues depends on how a given district judge chose to use the term unitary. The logical corollary of this proposition is that the scope of a continuing decree singularly depends upon the particular local history of desegregation.
From the legal legacy of desegregation in Jefferson County, therefore, the Court must determine the shape of the continuing Decree. Several broad legal principles guide the Court. Indeed, the terms of the ongoing order seem most importantly governed, on the one hand, by proper deference to the local school board and, on the other hand, by the need to provide continuing protection to individuals who might suffer the effects of any possibly lingering vestiges of segregation. In addition to these general considerations, the Court must keep two slightly narrower legal rules firmly in mind: first, the nature of any desegregation order must relate to the violation to be remedied; and, second, the order must provide a precise statement of the school district's obligations. At times, these interests and principles conflict with each other; and any balancing of them, of necessity, embodies imprecise and even rough determinations. Cf. Tilton v. Richardson, 403 U.S. 672, 678, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) ("Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics.").
Fundamentally, Judge Gordon premised the 1978 decision to withdraw federal court supervision on the good faith of the Board in implementing the 1975 Decree. Accordingly, he ended the monitoring, enforcement, and implementation provisions of the Decree and returned autonomous administrative control to the Board directing it only to comply with the continuing aspects of his desegregation order. Of necessity, Judge Gordon's action carries with it the decision to leave in place only a bare bones decree that would allow the Board a range of discretion to fashion appropriate educational policy in the long term. Such a decision makes sense given Judge Gordon's confidence in the Board and his praise for its conscientiousness. The task, therefore, is to identify any specific components or general commands of the decree that continued.
The return of managerial control to the Board is simply inconsistent with the many specific requirements of the original 1975 Decree. If the continuing Decree required alphabetical busing and the myriad of other specified policies, it would not conform to Judge Gordon's decision to restore educational decision-making to the discretion to the Board. Consequently, the Court concludes that these details dropped away.
The continuing Decree, however, must impose a remedial obligation on the Board. The shape of that obligation can be discerned only with reference to the vestiges of segregation identified by the Sixth Circuit in Newburg Area Council, Inc. v. Board of Education of Jefferson County, 489 F.2d 925 (6th Cir.1973). The appellate court found that the presence of racially identifiable pre-Brown schools in Louisville and Jefferson County constituted a vestige of segregation. Accordingly, the continuing decree must address, and help to remedy, this problem. In the language of Swann, "the nature of the violation determines the scope of the remedy." 402 U.S. at 16, 91 S.Ct. 1267. Or, as the Supreme Court stated in Milliken II, "the well-settled principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and *776 relate to the constitutional violation itself." 433 U.S. at 281-82, 97 S.Ct. 2749.
This precept means that a desegregation decree must strike directly at the wrong of racially identifiable schools. Thus, the continuing Decree must work to remove the vestige of discrimination it must alleviate the racial identifiability of schools in Jefferson County. Crucially, and problematically, the decree must achieve this result while still allowing the Board to set educational policy. The Court sees only one possible outcome: The continuing decree obligates the Board to do no more and no less than to operate a school system free from the vestige of racially identifiable schools.
Admittedly, the 1975 order states this command in no single paragraph or sentence. However, no one could dispute that such a mandate was its central purpose. The Court infers this mandate from the intent of the order, from its structure, and from all of its particulars. Despite the deductive nature of this task, the Court is confident in the outcome. Given the necessary balancing of interests and principles, no other conclusion is possible.
In 1975, Judge Gordon stated that his order would extend over a number of years. In 1978, he admonished the Board concerning the necessity of continuing to implement the decree in good faith. Judge Gordon, thus, left the duration of the decree hanging in the air. This Court cannot imagine Judge Gordon intended all of the precise and particular details of the 1975 Decree to remain in place indefinitely. Instead, given the basic decision to return decision-making power to the Board and given the unstated duration of the continuing order, the Court believes that Judge Gordon intended for the Board to carry on the fundamental intent of the Decree whether or not the Board continued to implement the order in the exact manner originally envisioned.
The Court draws strength for the foregoing conclusions from the requirement that all parties deserve a precise and specific statement of obligations under a desegregation decree. See Dowell, 498 U.S. at 246, 111 S.Ct. 630; Spangler, 427 U.S. at 438-39, 96 S.Ct. 2697. The application of this concept leads to the conclusion that only obligations of an indisputable nature should continue after 1978. Again, an examination of the Decree, in the context of the 1978 decision to return administrative control to the Board, leads the Court to conclude that only a prohibition on racially identifiable schools constitutes the sort of indisputable obligation that merits continuation.
Judge Gordon's Decree and his 1978 Memorandum remain the essential legal background of this case. Judge Gordon's words and the Board's actions over the years have given moral and practical weight to the Decree's continuing legal force. The Court must give each due respect. Regardless of its prior statements, the Board has treated the Decree's controlling tenet preventing the appearance of racially identifiable schools as a continuing obligation. The Court cannot simply ignore this history. The painful reality of state sponsored segregation and constitutionally mandated desegregation requires that this Court respectfully consider and delicately balance existing legal commands, neither ignoring them nor perpetuating them unnecessarily. This requires a process, not mere judicial fiat. This Memorandum Opinion defines that process.
None of this should imply that the Court has succeeded or even attempted to sweep all the chessmen off the board.[37] Over the *777 years, judges have struggled with and disagreed about the application of these principles in many different circumstances. "No court can have a confident solution for a legal problem so closely interwoven with political, social and moral threads." United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 849 (5th Cir.1966) (Wisdom, J.). In the final analysis, it is probably time to address directly the issues which Judges Gordon and Ballantine so skillfully and properly delayed. The Board and the community are entitled to an unambiguous statement about whether any legal obligations of the Decree continue. This Memorandum outlines a process for fairly and openly deciding that issue.
D.
The Continuing Decree Permits the Board's Current Student Assignment Plan
The continuing Decree has power that this Court cannot ignore.[38] Judge Gordon's continuing order serves to protect the rights of all those injured by any remaining vestiges of discrimination.[39] When the Board acts pursuant to the continuing Decree, it acts lawfully. Conversely, the continuing Decree should end if vestiges of discrimination no longer blight the Jefferson County school system. The continuing desegregation decree affects this case, however, only if the Board's policies fall under its aegis. Obviously, the Board currently possesses considerable discretion to enact student assignment policies to meet its continuing obligations under the Decree. While, theoretically, many techniques might achieve the goal of preventing racially identifiable schools, the Board has chosen tellingly to stay with the device of racial composition guidelines first imposed by Judge Gordon in the 1975 Decree.
For several reasons, the Court concludes that the continuing Decree encompasses the 1996 Student Assignment Plan. First, the present plan and its racial guidelines achieve the goal of preventing racially identifiable schools. Second, the managed choice plan accomplishes this result in a far less burdensome manner than the mandatory alphabetical busing plan. And, third, the Board has not adopted a new, and allegedly unconstitutional, student assignment device for ensuring compliance with the Decree. Instead, the Board has perpetuated, without interruption although with adjustment, the racial composition guidelines originally put in place by Judge Gordon. These three points establish that the Board has followed the command of the continuing Decree and that it has done so with great concern for the effect upon students and parents.
Because the Board's Student Assignment Plan and its racial composition guidelines have served the essential purpose of complying with the continuing Decree, the Court concludes that the Decree protects these policies from attack. So long as that order remains in force, it permits the use of various approaches to address the danger of racially identifiable schools. While the Decree does not mandate that the Board use one particular means of avoiding racially identifiable schools, it does allow the Board to achieve compliance through the use of reasonable policies.[40]*778 Plaintiffs challenge both the use of racial composition guidelines in the creation of satellite attendance zones and in the magnet school application process. Because those racial composition guidelines flow directly from the requirements of the continuing Decree, the Court finds that Plaintiffs cannot do so without first dissolving the Decree.[41]
Since the Plaintiffs are the masters of their case, the Court cannot sua sponte transform this case into a suit seeking the dissolution of the desegregation decree. Instead, Plaintiffs must make that decision for themselves. The Court will enter an order according Plaintiffs ample time to make that choice. Plaintiffs, or another party, must move to dissolve the continuing Decree in order for this case to proceed. While this choice is a significant one, a straightforward motion asserting the legal requirements is all that is necessary to initiate the process. In all likelihood the Court will set a hearing on the motion.
V.
TO TERMINATE THE DECREE A MOVANT MUST PROVE THE BOARD'S CONTINUED GOOD FAITH AND THE ELIMINATION OF VESTIGES TO THE EXTENT PRACTICABLE
Lifting the continuing Decree would have real consequences for the Board, the community, and Plaintiffs. At once, it would provide much broader discretion and some narrower restraints on future Board actions. On one hand, it would mean that the Board would be free to adopt any constitutional student assignment plan. On the other hand, the Decree *779 would no longer automatically shield the Board's use of racial classifications to achieve its goals. The Board would face a much higher legal burden to justify such policies. Obviously, the Court could not limit the effect of these changes to just Central High School or even just to the secondary schools. Everyone involved should consider these possibilities in making their choices.
To facilitate those choices, the Court will devote the remainder of this opinion to a brief analysis of the standards for dissolving a desegregation decree in light of the facts of this case. This portion of the opinion should assist Plaintiffs in assessing their evidentiary burden should they decide to pursue the dissolution of the continuing Decree.[42]
Of course, Dowell provides the incredibly straightforward standard that a desegregation decree terminates upon a showing of continued good faith and the elimination of the vestiges of segregation to the extent practicable. See 498 U.S. at 250-51, 111 S.Ct. 630.[43] On the question of good faith, Dowell teaches that a board's course of conduct provides the most relevant evidence. Meanwhile, Dowell's guidance on vestiges leaves something to be desired. The Court did direct attention to whether vestiges remain in any of a number of areas of the school system, but it provided little other assistance. In general, however, Dowell reminds us of the overriding logic of allowing the dissolution of a desegregation decree: returning control of schools to local authorities. See id. at 247-248, 111 S.Ct. 630 (citing the seminal cases of Brown and Green).[44]
In Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), the Supreme Court sets out more helpful standards for determining good faith and for ascertaining whether evidence of racial imbalance constitutes a vestige of discrimination. For instance, in the context of allowing a district court to terminate certain elements of a broad desegregation decree, the Freeman Court explained that good faith depends upon a number of considerations:
Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance *780 with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court's decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.
In considering these factors, a court should give particular attention to the school system's record of compliance. A school system is better positioned to demonstrate its good faith commitment to a constitutional course of action when its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations. And, with the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, and the practicability and efficacy of various remedies can be evaluated with more precision.
Id. at 491-92, 112 S.Ct. 1430.
The decisions of Judge Gordon and Judge Ballantine would seem to provide particularly important evidence on the question of past good faith. They may even have some res judicata effect on the Board's conduct. While this matter has not been fully explored, the Board's policies over the years since 1985 seem to demonstrate a commitment to the principles which Judge Gordon established. On the other hand, Plaintiffs have impugned the Board's good faith extensively in earlier hearings by suggesting that the Board has discriminated against black students by burdening them disproportionately with the ills of busing and by devising a system that sends black students to the less effective schools in the Jefferson County system. Similarly, in earlier hearings, the Board made many assertions about its own good faith and about the elimination of discrimination in the Jefferson County schools. Some of these statements may constitute evidence of conduct or of fact. If this case does go forward, the Court will need to resolve the questions of good faith based not on the professions of one party or the other, but based on factual evidence.
In Freeman, the Court also provided some analytical assistance about whether a racial imbalance constitutes a vestige of discrimination. Specifically, the Freeman Court discussed the causal link necessary to prove that an unequal racial pattern is, indeed, a vestige of discrimination. See id. at 494-96, 112 S.Ct. 1430. The Court began with the idea that racial balance holds no significance without evidence of a link to earlier segregation:
Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.... If the unlawful de jure policy of a school system has been the cause of the racial imbalance in student attendance, that condition must be remedied. The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation....
Where resegregation is a product not of state action but of private choices, it does not have constitutional implications....
... The vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied. It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation. And the law need not proceed on that premise.
As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a *781 school district is a vestige of the prior de jure system. The causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith.
Id.
Thus, Freeman addresses some of the general facts of this case: the de jure violation occurred long in the past, the Board alleges that a racial imbalance will occur without the racial composition guidelines, and there appears to be abundant evidence of the Board's good faith (although, of course, the Court has formed no conclusions on this point). Crucial differences with Freeman also abound. Unlike that case, this one does not seem to involve evidence of racial imbalances occurring in areas of demographic change. On the contrary, and just superficially, it would appear that the alleged racial imbalances might occur in many of the same schools or neighborhoods where the Sixth Circuit found vestiges of discrimination in 1973.
Another important distinction pertains. This case involves claims of "concealed" or "latent" racial imbalances.[45] The Board has argued, although in a hearing on a different legal issue, that if this Court lifts the racial composition guidelines, then many schools may return to a racially identifiable condition. If this were a "current imbalance" it would invoke the rule, stated in Freeman, that the party seeking termination of the desegregation decree, "bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation." Id. at 494, 112 S.Ct. 1430. However, the Board's claims are not allegations of a current imbalance, but of an alleged future imbalance. Because of this distinction, the Court does not believe that the Swann presumption of causation, as restated in Freeman, arises automatically. Instead, the Court may require substantial proof of the likelihood that a racial imbalance will re-emerge. The Board has already introduced some evidence about the prospects for the occurrence of "resegregation" in Jefferson County absent the guidelines. Whether a racial imbalance is likely to occur and whether the occurrence, even if likely, constitutes a vestige of past discrimination, remains unclear and undecided.
Another useful comment appears in Freeman. The Court considered whether racial balancing in the schools, even if no longer required to redress a vestige in student assignments, could serve to correct another vestige of discrimination. The Court concluded that the answer depended upon the evidence of a specific interconnection of various Green factors in the particular school system:
We next consider whether retention of judicial control over student attendance is necessary or practicable to achieve compliance in other facets of the school system. Racial balancing in elementary and secondary school student assignment may be a legitimate remedial device to correct other fundamental inequities that were themselves caused by the constitutional violation. We have long recognized that the Green factors may be related or interdependent. Two or *782 more Green factors may be intertwined or synergistic in their relation, so that a constitutional violation in one area cannot be eliminated unless the judicial remedy addresses other matters as well.
Id. at 497, 112 S.Ct. 1430.
This idea may provide very little help in this case, however. No one has suggested that any court ever identified vestiges of discrimination or ever mandated a remedy in any area other than student and staff assignments. It, therefore, seems difficult to imagine how the other Green factors will play very much of a role in any litigation over the propriety of dissolving Judge Gordon's continuing Decree. Of course, as directed by Dowell, the Court remains open to evidence of vestiges in other facets of the school system. Thus, the question of whether the Court will need to consider all the Green factors, or just a few, or only student assignments, depends on the evidence eventually amassed and presented by the parties.
In sum, then, for the continuing Decree to terminate, the Court requires proof of the Board's good faith and of an absence of vestiges to the extent practicable. Where the alleged vestiges come in the form of "concealed" or "latent" racial imbalances, the Court will require proof that such alleged future imbalances will occur. Obviously, the party seeking to continue the Decree would normally present this proof. Upon receiving such proof, the burden will shift[46] to the party seeking to dissolve the Decree. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); Agostini v. Felton, 521 U.S. 203, 214-15, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). In this case, that means the Plaintiffs bear the burden of showing good faith and no vestiges.[47]
*783 On the question of vestiges, the party seeking termination of the Decree can rely to some extent on the passage of time, the long-term compliance with a racial balance decree, and the continued good faith of the Board (assuming, the latter two are established). Nevertheless, the party seeking the change bears the burden of showing that no causal link connects proven probable future racial imbalance to vestiges of desegregation. Among the many ways of proving alternate causation, the party seeking dissolution may offer proof that the racial imbalance arises from demographic change or private choice rather than having any connection to previous governmental misconduct.
VI.
CONCLUSION
This Memorandum Opinion should focus the parties' attention on important new issues central to the future conduct of education policy in Jefferson County. The changes in focus require a few minor adjustments in the case itself.
Now that the continuing Decree is at issue, the Court will revisit its earlier order and permit the Fair Housing Council, Inc. the Kentucky Council for Human Relations, Inc., and Quality Education for All Students, Inc. to intervene as Plaintiffs. The Court will consider similar requests by other organizations or individuals with an interest in the future validity of the Decree.
Because its decree is now at issue, the Court could reopen Haycraft. However, the Court finds that such a procedure is unnecessary at this time. The question of the Decree's continued validity is properly raised in this litigation. All necessary parties are either present or could be present to decide the issue. If eventually necessary, the Court could temporarily reopen Haycraft for the sole and limited purpose of dissolving the Decree.
The Court will enter an Order consistent with this Memorandum Opinion.
ORDER
The Court has carefully reviewed Judge Gordon's 1975 Decree, the events which have transpired since and has considered the argument of counsel. The Court has set forth its views at some length and detail in the accompanying Memorandum Opinion. The Court concludes that only the following orders are necessary at this time and being otherwise sufficiently advised,
IT IS HEREBY ORDERED AND ADJUDGED that Judge Gordon's 1978 Order did not dissolve his 1975 Desegregation Decree and that, explained in the Court's Memorandum Opinion, certain provisions of that Decree remain in force and effect.
IT IS FURTHER ORDERED AND ADJUDGED that the Decree permits the Board's use of racial classifications to prevent re-emergence of racially identifiable schools.
IT IS FURTHER ORDERED that any party may move to dissolve the remaining portions of the Decree and the parties shall have to and including July 12, 1999, in which to file such a motion. Parties opposing such a motion shall have ten days to respond.
IT IS FURTHER ORDERED that the Court reconsiders its prior order and now sustains the motions to intervene by the Fair Housing Council, Inc., the Kentucky *784 Council for Human Relations, Inc., and Quality Education for All Students, Inc.
IT IS FURTHER ORDERED that any party having an interest in the continuation or dissolution of the Decree shall have to and including July 12, 1999, to move for leave to intervene in this case.
NOTES
[1] Although officially known as the Louisville Independent School District, the boundaries of the system did not extend to the City limits. Approximately 10,000 students lived within the City limits, but outside the borders of the City school system. These students attended the Jefferson County schools. See Haycraft v. Board of Educ. of Louisville, No. 7291, Memorandum Opinion and Judgment, at 9 (W.D.Ky. Mar. 8, 1973) [hereinafter Haycraft, 1973 Mem.Op.].
[2] In 1956, the district enrolled approximately 45,800 students, of whom 12,000 were black and 33,800 were white. About 26% of the City students were black. Less than 3000 students applied for transfer. See id. at 7 & 10.
[3] The system aggressively sought black instructors, with over 80% of the new hires being black teachers during one decade-long stretch. By 1972, 36% of the district's 2200 faculty were black as were 40% of the administrative staff. See id. at 8 & 10. All schools had biracial faculties and the system employed a biracial administration plan, requiring that each school's principal and assistant principal be of different races. See id. at 18.
[4] In the 1972, the City schools enrolled around 45,600 students, of whom approximately 22,600 were white and 22,900 were black. See id. at 10. The percentage of black population in the City increased from about 16% in 1950, to 18% in 1960, and to about 24% in 1970. The change in racial composition in the City schools seems to have resulted from an increase in the numbers of black children and from the departure of white children, either because their families physically moved from the City or because their parents chose to send them to non-public schools.
[5] By 1972, though the City's six non-vocational high schools had each attained some level of integration, a number appeared to remain racially-identifiable. Central (95% black; formerly all-black), Male (97% black, although in 1956 the school was 5% black; formerly all-white), and Manual (37% black; formerly all-white) had overlapping attendance zones. The other schools reflected their geographic zones: Atherton (3% black; a formerly all-white school located outside the district lines, although it served the City), Iroquois (3% black; a new school), and Shawnee (95% black, although in 1956 the school was 5% black; formerly all-white).
The junior high schools and elementary schools displayed a similar level of modest integration depending upon their neighborhood. See Haycraft, 1973 Mem. Op., at 19-26. For example, among the thirteen junior high schools, DuValle (formerly all-black), Mayzeek (formerly all-black), Parkland (formerly all-white), Russell (formerly all-black), and Shawnee (formerly all-white) all had black student populations of 95 - 100%, while Barrett (formerly all-white), Gottschalk (new), Highland (formerly all-white), and Southern (formerly all-white) all had white student populations of 94 - 99.5%. See Newburg Area Council, Inc. v. Board of Educ. of Jefferson County, 489 F.2d 925, 930 (6th Cir.1973). The remaining four junior high schools Manly, Manual, Western, and Woerner (all formerly all-white) had black student populations of 25 - 64%. See id.
Among the forty-six elementary schools, nineteen had black student populations of 82 - 100%, while twenty-one had white student populations of 89 - 100%. See id. All of the twenty-one identifiably white elementary schools were formerly all-white. See id.
[6] In 1955, the County enrolled around 32,000 students, of whom 1000, or 3.1%, were black. See Newburg Area Council, Inc. v. Board of Educ. of Jefferson County, No. 7045, Memorandum Opinion and Judgment, at 9 (W.D.Ky. Mar. 8, 1973) [hereinafter Newburg, 1973 Mem.Op.].
[7] By 1958, only five black schools remained, with a total student population of 286. See Newburg, 1973 Mem. Op., at 11.
[8] The County allowed black middle and high school students to finish at their segregated schools or to attend formerly all-white schools. See id. at 10.
[9] In 1955, the County employed 1066 teachers, of whom 36 were black. By 1972, the district employed 4000 teachers, with approximately 140 blacks (which was up from around 80 in 1971). In 1971, 35 schools contained integrated faculties, but by 1972 that number increased to 81 schools. See id. 8-12.
[10] In 1972 the County's student population was 95,900, of whom 92,200 were white and 3700, or 4.0%, were black. See id. at 8.
[11] Overall, the 74 elementary schools enrolled 46,700 students, of whom 44,900 were white and 1800, or 3.8%, were black. See id. at 9.
[12] The three schools were Newburg (which was virtually all-black), the nearby and new Price, and the new Cane Run. See id. at 13-24. The student populations at both Price and Cane Run were split roughly equally between black and white students. See Newburg Area Council, 489 F.2d at 928. All three schools lay near several all-white or virtually all-white schools. See id. at 929.
[13] In a pre-trial ruling, Judge Gordon tentatively dismissed the Anchorage system as a defendant on the grounds that it contained only 300 students and would be unreasonably burdened by the litigation. See Haycraft 1973 Mem.Op. at 4; Newburg, 1973 Mem.Op. at 7-8. The Sixth Circuit reversed Judge Gordon's rulings and required interdistrict remedies, specifically authorizing the crossing of Anchorage district lines. See Newburg Area Council, 489 F.2d at 931-32. But see Newburg Area Council, Inc. v. Board of Educ. of Jefferson County, 510 F.2d 1358, 1360 n. 1 (6th Cir.1974) (allowing district court to rejoin Anchorage as defendant if deemed necessary); Newburg Area Council, Inc. v. Gordon, 521 F.2d 578, 580-82 (6th Cir.1975) (same). The appellate court subsequently revisited the question, however, and affirmed the dismissal of Anchorage on the grounds that, even though the system was virtually all-white, it had never engaged in discrimination. See Cunningham v. Grayson, 541 F.2d 538, 543 (6th Cir.1976). But see id. at 545 (McCree, J., dissenting) (explaining that, because the Anchorage schools were created under state-imposed de jure segregation, "the Anchorage `boundaries' were drawn in 1911 to exclude blacks not geographically, but by definition" and, therefore, the district never lost its segregated character).
[14] Compared to other school districts throughout the deep South, it is certainly true that Louisville deserved some praise. See generally Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges of the Fifth Circuit Who Translated the Supreme Court's Brown Decision Into a Revolution for Equality (1981); J.W. Peltason, Fifty-Eight Lonely Men, Southern Federal Judges and School Desegregation (1961).
[15] "Regardless of any explanation for the racial composition of any of the other schools in the system, the thirty-five pre-Brown schools that have retained their pre-Brown racial identification to the present day stand out as clear vestiges of state-imposed segregation." Id. at 931.
[16] Judge Gordon created the desegregation plan in extensive and cooperative "shirt-sleave" conferences relying upon the staff of the Jefferson County school system as well as expertise provided by the plaintiffs and others. See 1975 Findings at 1; Haycraft v. Board of Educ. of Jefferson County, Nos. 7045 & 7291, Memorandum Opinion, at 2-3 (W.D.Ky.1978) (describing the amicable and informal working relationship that developed between the court and the parties).
[17] Judge Gordon apparently did not envision that the desegregation plan could treat white and black students exactly the same, however. He said that "[b]ecause the black students in the school system as a whole constitute only 20% of the total student body, it is inevitable that they will be required to be transported more often than white students." 1975 Findings at 2. Judge Gordon clearly meant that a plan must not impose an undue burden on either racial category given the system's demographics.
[18] First, Judge Gordon established the racial composition guidelines for elementary schools with the requirement that every school enroll a black student population of no less than 12% and no more than 40%. See id. at 3. Next, the judge provided the racial composition guidelines for secondary schools, mandating that each school have a black student population of no less than 12.5% and no more than 35%. See id.
[19] "It is important that the community understand that the demographic data and student attendance figures reflect the best available information to the Court and that any demographic changes in the county since the time the figures were obtained may cause some inaccuracy which will require minor revision of this plan. The school administration will make the appropriate revision as part of the implementation of this plan." Id. at 4.
[20] "The Court has therefore, as part of the plan, clustered and paired black schools with white schools and requires the Jefferson County Board of Education to transport students between these schools in order to achieve the appropriate desegregation of the school system." Id. at 6.
[21] The new attendance zones actually created racial compositions within guidelines at fifteen elementary schools, three middle schools, six junior high schools, and six high schools. Judge Gordon declared these institutions desegregated and excluded them from the busing program laid out later in the plan. See id. at 5.
[22] The court stated: "That the plan will leave no school with a black majority is permissible." 541 F.2d at 542. The court apparently based this conclusion on the relative proportion of black and white students in the Jefferson County system. The panel cited United States v. School District of Omaha, 521 F.2d 530, 547 (8th Cir.1975), as authority for its statement. In that case, like in Jefferson County in 1975, black students accounted for approximately 20% of the student population. Presumably, if black students accounted for a significantly larger percentage, then the conclusion about black majority schools would need reconsideration.
[23] However, the Sixth Circuit stated that "black plaintiffs have not complained of being unnecessarily burdened in the desegregation process," id., thus, suggesting its willingness to weigh the justification for imposing such a burden if appropriately challenged.
[24] The most telling passage from Spangler begins by quoting Swann's statement that a unitary system is under no constitutional duty to make annual adjustments to the racial composition of student populations absent government action. See Swann, 402 U.S. at 31-32, 91 S.Ct. 1267. The Spangler Court then explained:
In this case the District Court approved a plan designed to obtain racial neutrality in the attendance of students at Pasadena's public schools. No one disputes that the initial implementation of this plan accomplished that objective. That being the case, the District Court was not entitled to require [the Pasadena school district] to rearrange its attendance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity. For having once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court has fully performed its function of providing the appropriate remedy for previous racially discriminatory patterns.
427 U.S. at 436-37.
[25] Interestingly, the 1978 opinion offered some explanation for the difference between the treatment of elementary and secondary schools by detailing the changing enrollment pattern in the school district. As explained previously, the desegregation order prescribed that each elementary school must contain a student population of between 12% and 40% black students and each secondary school must contain a student population of between 12.5% and 35% black students. (Judge Gordon treated Newburg separately and capped its black enrollment at 37%.) In 1978, the student population in first grade was 29.4% black but decreased gradually to a 21.5% black student population in sixth grade. See 1978 Mem.Op. at 10-11. In other words, the distinction between the elementary and secondary levels appears to correspond to a different composition of the student population.
[26] The Final Judgment included a number of additional orders removing the court's active supervision: first, Judge Gordon ordered the "matter stricken from the active docket of this Court for the purposes of all issues" and ordered the Clerk to close the file; second, the judge discharged Special Master Balthis and ordered him to deliver his records to the court; third, he terminated the data reporting duties included in the 1975 order and in a 1976 order (although the court imposed some different duties on the Superintendent, as noted above, these new duties involved reports to the Board, rather than the court); and fourth, Judge Gordon ordered payment of certain legal fees to plaintiffs' counsel.
[27] As the judge explained: "The innovations were not universally accepted and, after a protracted series of meetings and discussions, the present plan was adopted and approved by all interested parties and organizations. After the plan was approved, the pending motion was filed." Id.
[28] The policy further states that the district will encourage all schools to move toward the average district-wide black enrollment of approximately 30%. See Stipulated Exhibit # 18 at 6; Stipulated Exhibit # 19 at 2.
[29] For instance, in the 1995 school year, the black student enrollment was 31.6% at the elementary level, 30.7% at the middle school level, and 28.5% at the high school level. See Defendants' Exhibit # 10, at 109 (containing raw data on black and "other" enrollment at each level).
[30] For instance, Jefferson County's high schools include magnet schools and schools that simultaneously contain magnet programs and/or optional programs along with a non-specialized "comprehensive" program. Before the ninth grade, students have a wide range of options ranging from applying for "open enrollment" at many high schools to applying for admission to a magnet school or special program.
[31] All told, the Dowell litigation spanned twenty-eight years and produced, at least, one full Supreme Court opinion, three reported appellate court opinions, and six published opinions of the district court.
[32] Defendants have suggested that Dowell might impose a new rule of decision dictating special caution in its retroactive application. For two reasons, the Court does not hesitate in applying Dowell to this case: First, Dowell does not alter the need for a finding of unitariness; instead, it merely explains the inconsistent meanings of unitariness as used by various federal courts. Dowell also explains the implications of Pasadena City Board of Education v. Spangler, a 1976 decision. To the extent that the Court employs this portion of Dowell, that opinion does not impose a new rule of decision it is just explanatory. Furthermore, even if Dowell is read to impose the new rule that a desegregation decree remains in effect until expressly dissolved, this Court is not applying that decisional rule to reopen a seemingly closed matter. Instead, this Court concludes that Judge Gordon expressly continued some components of the desegregation decree, leaving open only the question of which components endured. Second, to the extent the Court might apply the part of Dowell stating the standards for dissolving a desegregation decree, no danger of retroactivity arises. If the Court ends up considering the appropriateness of modifying or terminating the continuing elements of the 1975 order, it would not be applying Dowell retroactively to a determination made in previously closed litigation.
[33] While of little or no weight, the Court notes with interest that newspaper articles covering Judge Gordon's announcement might provide some indication of the contemporaneous construction given to the decision. Uniformly, the local newspapers' interpretation then is the same as the Court's now. See Clay Ryce & Dianne Aprile, Gordon Withdraws From County School Desegregation Case, The Louisville Times, at A1 (June 19, 1978) ("Gordon's order in effect turns the responsibility for monitoring the schools desegregation process over to school Supt. E.C. Grayson"); Michael Wines, A Few Words Finish Fight for Desegregation, The Louisville Times, at A1 (June 19, 1978) ("the duty to insure that the desegregation order is being met now will rest fully on Supt. E.C. Grayson and the 11-member Jefferson County school board"); Dick Kaukas, Judge Gordon Ends His Role in School Desegregation Case, The Courier-Journal, at A1 (June 17, 1978) (explaining that the order "does not, however, alter the desegregation plan" and that "Gordon said he expected the school system to keep it intact"); Bob Johnson, Judge Leaves Driver's Seat But Buses Will Still Roll, The Courier-Journal, at A1 (June 17, 1978) (explaining that the school will reopen in August 1978 still "legally obligated to provide a desegregated education" and that "Gordon's departure will have little practical effect on how the schools will operate").
[34] Specifically, the judge suggested that the Board continue the human relations program, that it monitor the racial disparity in suspensions, that it weigh the impact of school closings on desegregation, that it study the effect of optional programs and curricular programs on desegregation, and that it develop improved methods to supervise students and ensure they attend their assigned school.
[35] See supra note 14.
[36] Again, the Court finds the newspaper coverage of Judge Ballantine's decision interesting, although less supportive of this Court's legal conclusions than the coverage of Judge Gordon's 1978 decision. See Kit Lively, Ruling Could End Court's Desegregation Role in Schools, The Louisville Times, at A9 (Sept. 26, 1985) (stating that the decision "could forever free the Jefferson County public schools from seeking federal court approval before changing its desegregation plan" and that the ruling meant that "federal courts no longer have an active role in desegregation of local schools, unless the school system intentionally sets out to resegregate the schools"); Al Cross, Judge Frees Schools From Busing-Change Review, The Courier-Journal, at A1 (Sept. 26, 1985) (explaining that the ruling meant that the "Jefferson County Board of Education doesn't have to get federal court approval to change its desegregation plan" and that the decision "could permanently close the books on the 15-year-old lawsuit that forced integration of the county's public schools" but also stating that Ballantine ruled that "once a system is declared desegregated, federal courts lose authority over busing plans unless plaintiffs show the plans aimed at resegregation").
[37] For instance, one might justifiably ask how this Memorandum squares with the statement that once a school board complies with the racial balance requirements of a desegregation order, the federal court cannot mandate annual realignment. See Cunningham, 541 F.2d at 542. The best answer may be that, while a court may not order realignment, a board may get to realign as part of its compliance with a more general desegregation decree.
[38] See N.L.R.B. v. Local 282, Int'l Bhd. of Teamsters, 428 F.2d 994, 999 (2d Cir.1970) ("where ... a permanent injunction is violated, the interest in enforcement consists not only of the need to maintain respect for court orders and for judicial procedures, but also of the need to avoid repetitious litigation").
[39] "Proper analysis of [a district court's desegregation orders] must rest upon their serving as proper means to the end of restoring the victims of discriminatory conduct to the position they would have occupied in the absence of that conduct and their eventual restoration of state and local authorities to the control of a school system that is operating in compliance with the Constitution." Missouri v. Jenkins, 515 U.S. 70, 89, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (internal quotation marks omitted).
[40] Because the Board has decided to comply with the continuing Decree by converting the once mandatory racial composition guidelines into a voluntary policy, the 1996 Student Assignment Plan does not run afoul of the rule that a court may not order annual realignment to maintain racially neutral schools. See Cunningham v. Grayson, 541 F.2d 538, 542 (6th Cir.1976) (prohibiting Judge Gordon from ordering "year-to-year realignment to correct non-state action-caused divergencies from the racial guidelines"). As Judge Gordon noted in 1978, Cunningham "control[s] the question of the power of this Court to compel year-to-year realignment." 1978 Mem.Op. at 12. Rather than requiring annual adjustment, the continuing Decree allows the Board to avoid racially identifiable schools through whatever appropriate means it selects.
[41] If the Court were to proceed in this manner and eventually conclude that the desegregation order must end, then it seems possible that everything might return to the status quo ante. Possibly, the Board could argue that its student assignment plan constitutes an valid enactment independent of the continuing Decree. (Although the propriety of this approach may require some investigation.) If so, the question would be, as all have assumed up until now, whether the student assignment plan could pass scrutiny under the Equal Protection Clause. The Dowell Court contemplated an analogous situation in Oklahoma City: "A school district which has been released from an injunction imposing a desegregation plan no longer requires court authorization for the promulgation of policies and rules regulating matters such as assignment of students and the like, but it of course remains subject to the mandate of the Equal Protection Clause of the Fourteenth Amendment." Dowell, 498 U.S. at 250, 111 S.Ct. 630.
In any event, even if the Court found it proper to terminate the desegregation order, it would seem a difficult argument to contend that the Board's past actions violated any statutory or constitutional provision. Since both Judge Gordon and Judge Ballantine praised the Board's good faith in following the order, it would seem unlikely that the Board committed any misconduct. In fact, the Supreme Court appears to have focused on a similar point in a footnote to Dowell:
The Court of Appeals viewed the Board's adoption of the SRP [Student Reassignment Plan] as a violation of its obligation under the injunction, and technically it may well have been. But just as the Court of Appeals held that the respondent should not be penalized for failure to appeal from an order that by hindsight was ambiguous, we do not think that the Board should be penalized for relying on the express language of that order. The District Court in its decision on remand should not treat the adoption of the SRP as a breach of good faith on the part of the Board.
Id. at 249 n. 1, 111 S.Ct. 630.
Of course, any determination on this point might require more evidence.
[42] The Court notes two cases that provide invaluable guidance on how a district court should analyze the appropriateness of terminating a desegregation order: Dowell v. Board of Education of the Oklahoma City Public Schools, 778 F.Supp. 1144 (W.D.Okla.1991) (Dowell on remand from the Supreme Court) and Brown v. Board of Education of Topeka, 892 F.2d 851 (10th Cir.1989). Both of these cases demonstrate the evidentiary complexity and the allocation of burdens involved in proving that a school district no longer suffers from the vestiges of past discrimination and, accordingly, that a desegregation order should terminate.
[43] The Dowell Court considered but rejected the far more stringent Swift requirement of "grievous wrong evoked by new and unforeseen circumstances" imposed by the Tenth Circuit. See 498 U.S. at 246, 111 S.Ct. 630. The Court explained "[c]onsiderations based on the allocation of powers within our federal system," id. at 248, 111 S.Ct. 630, dictated a lower standard for the end to desegregation orders. Unlike other injunctions, school desegregation decrees "are not intended to operate in perpetuity." Id.
[44] As the Court explained:
The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by local authorities. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.
Id. at 248, 111 S.Ct. 630 (internal quotation marks deleted).
[45] The concept of "concealed" or "latent" vestiges seems to appear in Dowell although the Supreme Court does not formally name the idea. Specifically, Dowell stated that courts often found provisional unitariness when a "school district ... has currently desegregated student assignments, whether or not that status is solely the result of a court-imposed desegregation plan." 498 U.S. at 245, 111 S.Ct. 630. In these circumstances, "such a school district could be called unitary and nevertheless still contain vestiges of past discrimination." Id. The Court contrasted this situation with a fully unitary school system in which a board has "completely remedies all vestiges of past discrimination." Id. This distinction suggests that in a provisionally unitary system, vestiges of segregation may remain even if those vestiges have no facial manifestation. Indeed, a court would not terminate its supervision if visible vestiges still afflicted the school system. In other words, an effective desegregation order may act to conceal vestiges; the termination of the desegregation decree might cause these latent vestiges to re-emerge.
[46] As described in both Swann and Freeman, in a previously segregated system, the presence of a racial imbalance (such as a superficially racially identifiable school), causes the party opposing the claim of vestiges to prove that nothing links the suspicious condition to the earlier constitutional violation.
[47] While Dowell does not explicitly authorize a challenge to a desegregation decree by a nonparty, the Court sees no reason that Plaintiffs could not move for the termination of the continuing Decree. While Dowell phrased its standard of continued good faith and no vestiges as a burden on the school board, the Court believes that another litigant could shoulder the same burden. It might make some sense to impose an additional requirement on a nonparty. Perhaps when a party other than the board moves to modify or dissolve a desegregation order, that party should have to demonstrate some harm flowing from that order. This burden might be no different from the normal requirements of standing. Here, even if some additional burden were imposed, it would seem that Plaintiffs have met such a burden by establishing the Student Assignment Plan (protected by the desegregation order) contains at least one racial classification that acts to deny them admission to schools on an equal basis as non-black students.
In United States v. Board of School Commissioners, 128 F.3d 507 (7th Cir.1997) (Posner, C.J.), the Seventh Circuit considered whether a nonparty to an injunction could obtain relief from that order. Chief Judge Posner reasoned that nonparties should be allowed to seek relief because otherwise a party placed under an court order would possess more rights than an innocent nonparty injured by the court's exercise of equitable power. As Posner explained:
[T]he important point [is] that any person bound and significantly constrained by an equitable decree may present evidence to show that the decree should be lifted even if the primary wrongdoer is someone else. "A defendant may move to dissolve an injunction if it injuriously affects his interests, although the order is not against him," In re Hendrix, 986 F.2d 195, 197 (7th Cir. 1993) (quoting Hall v. Orlikowski Construction Co., 24 Ill.App.3d 60, 321 N.E.2d 23, 25 (1974)), as may a nonparty who is bound by the injunction. Memorial Health Systems, Inc. v. Halifax Hospice, Inc., 689 So.2d 373 (Fla.App.1997). Any other rule would give more rights to an adjudicated wrongdoer than to an innocent person forced to bear many of the costs of the wrongdoing; we cannot see what sense that would make.
Id. at 511.
This Court generally agrees with Chief Judge Posner and, furthermore, believes that the Supreme Court's reasoning in Dowell and the Equal Protection Clause demand the same result. Dowell explains that citizens have an interest in locally autonomous school boards. The public should not have to depend on a school board to seek the termination of a decree when the board appears comfortable with its obligations under that order even though members of the public feel injured by the Decree. More importantly, the Constitution forbids a school board from conducting otherwise impermissible discrimination under the guise of a moribund desegregation order.
This conclusion is made possible by the presence of all relevant parties. The Intervening Plaintiffs step into the role occupied by the original desegregation plaintiffs. If, however, additional parties feel that this suit should not proceed without their presence, the Court would consider new motions to intervene.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6667
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY A. PLEASANT, a/k/a Jeffrey A. Pleasants,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:00-cr-00071-REP-1; 3:14-cv-00259-REP)
Submitted: June 26, 2014 Decided: June 30, 2014
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jeffrey A. Pleasant, Appellant Pro Se. Stephen Wiley Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey A. Pleasant seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 60(b) motion as a
successive 28 U.S.C. § 2255 (2012) motion, and dismissing it on
that basis. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability
will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Pleasant has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Pleasant’s notice of appeal
and informal brief as an application to file a second or
2
successive § 2255 motion. United States v. Winestock, 340 F.3d
200, 208 (4th Cir. 2003). In order to obtain authorization to
file a successive § 2255 motion, a prisoner must assert claims
based on either:
(1) newly discovered evidence that . . . would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h) (2012). Pleasant’s claims do not satisfy
either of these criteria. Therefore, we deny authorization to
file a successive § 2255 motion.
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.
DISMISSED
3
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235 S.W.3d 519 (2006)
Nathan H. MEJIA
v.
STATE of Arkansas.
No. CR 06-442.
Supreme Court of Arkansas.
May 11, 2006.
No response.
PER CURIAM.
Timothy C. Sharum, a full-time, state-salaried public defender in Sebastian County, the Twelfth Judicial District, was appointed to represent Appellant, Nathan H. Mejia, an indigent defendant. On September *520 14, 2005, a hearing was held on the State's Petition to Revoke and the court found that Mr. Mejia violated the terms and conditions of his suspended imposition of sentence and he was sentenced to three years in the Arkansas Department of Corrections. A notice of appeal was timely filed and the record has been timely lodged in this Court.
Mr. Sharum now asks to be relieved as counsel on direct appeal based upon Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time state-salaried public defenders were ineligible for compensation for their work on appeal) and Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000)(relieving Appellant's court appointed public defender and appointing new counsel on appeal). Since Rushing, and Tester, the General Assembly passed legislation providing that only those fulltime, state-salaried public defenders who do not have a state-funded secretary may seek compensation for their work on appeal. See Ark.Code Ann. § 19-4-1604(b)(2)(B) (Supp.2003).
Mr. Sharum states in his motion that he is provided with a full-time, state-funded secretary who maintains his office operations. Accordingly, we grant his motion to withdraw as attorney. Mr. David Dunagin has stated his willingness to accept appointment in this case and will be substituted as counsel for Appellant.
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329 P.2d 850 (1958)
Ronald Kenneth LANYON et al., Plaintiffs in Error,
v.
J.W. O'NEAL, Defendant in Error.
No. 37674.
Supreme Court of Oklahoma.
June 17, 1958.
Rehearing Denied September 16, 1958.
Richard James, Stroud, John E. Dougherty, York, Neb., William A. Vassar, Joseph A. Young, Chandler, Okl., H.G. Wellensiek, Grand Island, Neb., M.M. Grosshans, York, Neb., for plaintiffs in error.
P.D. Erwin, Chandler, Phillip A. Tomek and John G. Tomek, David City, Neb., for defendant in error.
*851 JOHNSON, Justice.
The action upon which this appeal is based had its origin in the State of Nebraska. One Irving H. Lanyon, a resident of that state, died testate. His will disposed of all his property and directed the executor to convert all of the estate, wherever situated, into money. The testator, after the execution of that will, duly executed a codicil to the will in which he revoked certain prior bequests and made others in lieu thereof, including a bequest of $4,000 to one J.W. O'Neal, but that portion of the will directing the executor to convert all of testator's property, wherever located, into cash was unchanged by the terms of the codicil. All bequests in both the will and codicil were for cash, or specified sums of money. Both the will and codicil were filed for probate in the county court. Probation of the will and codicil was contested. After hearing, the will and codicil were admitted to probate. Contestants appealed from the action of the county court to the district court. Upon final trial de novo in the District Court of York County, Nebraska, the will was admitted to probate, but the decedent was found to be incompetent when he executed the codicil and it, therefore, was not admitted to probate, which action on appeal was affirmed by the Supreme Court of Nebraska. First Trust Co. of York v. Lanyon, 156 Neb. 21, 54 N.W.2d 262.
Thereafter the testator's named executor, The First Trust Company of York, filed ancillary proceedings in the County Court of Lincoln County, Oklahoma (in which county the deceased owned real property which has now been converted into cash, see O'Neal v. James, Okl., 312 P.2d 889) for the probate of the foreign will of Irving H. Lanyon, deceased, asking therein the appointment of Richard James administrator with the will annexed, and attached to the ancillary proceedings authenticated copies of the Nebraska probate proceedings. J.W. O'Neal, legatee under the codicil and one of the appellants in the Lanyon case, supra, filed the codicil for probate in the Lincoln County, Oklahoma, proceedings, notwithstanding the fact that the Nebraska courts had declared same invalid because of the incompetency of the testator at the time the codicil was executed.
The Lincoln County Court found the decedent to be competent when he executed the codicil, and admitted the codicil to probate. The Lincoln County District Court on appeal and trial de novo confirmed the action of the county court, resulting in this appeal.
As to form, substance and manner of execution both the will and codicil complied with the law of wills of Nebraska (and Oklahoma). Only a question of fact remained for determination in the Nebraska court, i.e., whether the decedent was competent or incompetent to make a will when he executed the codicil. The final adjudication was that he was mentally incompetent to execute such an instrument. Lanyon case, supra.
Admittedly the parties in the Oklahoma probate proceedings involved in this appeal were the same as in the Nebraska Court, see Lanyon case, supra, and the fact issue is the same as that determined by a court of competent jurisdiction in Nebraska, a foreign jurisdiction.
Under the doctrine of "estoppel by judgment," a fact once litigated and determined by a court of competent jurisdiction may not again be called in question or litigated by the same parties in a subsequent action. In re Hunter's Estate, 190 Okl. 284, 122 P.2d 1017. In that case in the first paragraph of the syllabus, we said:
*852 "The final adjudication of an issue of fact by a foreign court having jurisdiction to determine such issue, in a proceeding wherein the issue was contested between adverse parties, is, in the courts of this state, conclusive of such issue when that issue is sought to be raised again between the same parties."
Defendant in error argues that because the will in this case involved or related to real estate situated in Oklahoma that under 84 O.S. 1951 Sec. 20, the validity of the will is determined by the laws of this state. But that section also provides that "(E)xcept as otherwise provided," and it is otherwise provided in 84 O.S. 1951 Sec. 172. That section reads:
"When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property, from the time of the testator's death."
Thus under this statute and the terms of the will in this case, the rule contended for is not applicable. 96 C.J.S. Wills § 779, subdivision c, Proceeds of Property.
Where land is ordered sold and the proceeds are bequeathed, the beneficiary is entitled to money only as it is not a devise of land but a bequest of money. 96 C.J.S. Wills § 779, supra. For an application of the rule see Hunter v. Murphy, 124 Okl. 207, 255 P. 561 and Spencer v. Lyman, 27 S.D. 471, 131 N.W. 802 (the state from which we adopted Sec. 172, supra). Also 21 Am.Jur., Executors and Administrators, Sec. 700.
In such case the real property is considered as personal property, and the last domicile of the testator is to be resorted to as giving the law by which the validity and interpretation of a will is to be determined. See Wharton Conf. of Law, Construction of Wills, Third Edition, Sec. 592, pg. 1331.
In view of what we have herein said, the cause is reversed with directions to dismiss the proceedings relating to probation of the codicil and proceed in the administration of the estate in accord with the terms of the duly probated will of Irving H. Lanyon.
WELCH, C.J., and WILLIAMS, JACKSON and CARLILE, JJ., concur.
CORN, V.C.J., dissents.
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257 S.W.3d 908 (2008)
James R. HENSON, Appellant,
v.
GENERAL ELECTRIC, Electric Insurance, Second Injury Fund, Appellees.
No. CA 06-1356.
Court of Appeals of Arkansas.
May 30, 2007.
*909 McDaniel & Wells, P.A., by: Phillip Wells, Jonesboro, AR, for appellant.
David L., Pake, Little Rock, AR, for appellee Second Injury Fund.
ROBERT J. GLADWIN, Judge.
Appellant James R. Henson appeals the August 31, 2006 decision of the Arkansas Workers' Compensation Commission (Commission) finding that he was entitled to wage-loss-disability benefits of thirty-five percent. The Commission also gave appellee Second Injury Fund (Fund) a dollar-for-dollar credit for both long-term-disability benefits and disability-retirement benefits from their obligation to pay permanent-disability benefits. Further, the Commission ordered the Fund to reimburse the employer, appellee General Electric (GE), for any overpayment of temporary-total-disability benefits up to a maximum of the Fund's liability to pay appellant wage-loss-disability benefits. On appeal, appellant contends that he should be awarded total and permanent-disability benefits, or at a minimum, sixty percent wage-loss-disability benefits. Also, he claims that appellees should not receive a credit for disability-retirement benefits from their obligation to pay permanent-disability benefits. We reverse and remand in part, and affirm in part.
*910 Appellant is fifty-four-years old and has a high school education. He began working for GE in 1970 as a utility person, and he later moved into the maintenance department prior to becoming a machine operator. Appellant also obtained vocational training in hydraulics through GE. Appellant sustained a compensable injury on June 12, 2001. At that time, he was earning $19.00 per hour. His total wages exceeded $50,000 per year because he worked considerable overtime. Appellant sustained injuries and surgeries prior to the June 12, 2001, injury. He underwent his first back surgery on December 12, 1995, and he had a second back surgery on April 15, 1996. Further, appellant sustained a knee injury that required surgery on or about June 13, 2002. Due to his compensable-back injury on June 12, 2001, appellant underwent a third back surgery on August 15, 2001, followed by an extensive fusion surgery at the L4-L5 level on January 10, 2002. He has not been gainfully employed since the fusion surgery. He takes a number of prescription medications, including Neurontin, Metradose, and Lexapro. He testified that he cannot sit for more than ten to fifteen minutes at a time. He has to move from standing to sitting to reclining in order to relieve his pain. He has a difficult time sleeping and sometimes has to roll out of bed onto the floor in order to get up in the morning. He claims that he is unable to lift anything, and he cannot sit or stand without pain becoming an issue. GE provided appellant with job-placement assistance through Rehabilitation Management, Inc. Ms. Heather Naylor, a vocational-rehabilitation consultant, found job opportunities for the appellant; however, appellant did not obtain a job as a result.
Appellant claimed before the Administrative Law Judge (ALJ) that he was permanently-totally disabled or, alternatively, that he had sustained wage-loss disability in excess of the thirty-five percent to the body as a whole, which had been accepted by the Fund. GE claimed that any wage-loss disability over and above the twelve-percent permanent-anatomical-impairment rating was the responsibility of the Fund. GE requested reimbursement from the Fund for any payments made beyond its obligation to pay the twelve-percent permanent-anatomical-impairment rating. It further maintained that any and all wage loss was the responsibility of the Fund, including, but not limited to, the thirty-five percent accepted by the Fund. The Fund maintained that it was not responsible for reimbursement of any overpayment of temporary-total disability as its liability was limited to wage-loss-disability benefits only. The Fund conceded that it had controverted any wage-loss disability in excess of thirty-five percent for purposes of attorney's fees.
By order filed July 27, 2005, the ALJ made the following findings of fact and conclusions of law:
1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim.
2. The stipulations agreed to by the parties are hereby accepted as fact.
3. The claimant has failed to prove, by a preponderance of the credible evidence, that he is permanently totally disabled.
4. The claimant has shown, by a preponderance of the credible evidence, that he has sustained a wage-loss disability of sixty percent to the body as a whole which was caused by the combined disabilities or impairments, together with the June 12, 2001, compensable injury.
5. Respondent # 2 [the Fund] is responsible for all wage-loss disability, *911 specifically, the sixty percent wage-loss disability awarded herein.
6. Respondent # 1[GE] is not entitled to any reimbursement for overpayment of permanent impairment benefits. Respondent # 1[GE] did not obtain a final impairment rating from the primary treating physician until April 28, 2004, and is estopped from asserting a credit for any alleged overpayment. Furthermore, respondents have failed to prove that any alleged overpayments were considered advanced payments of compensation within the meaning of Ark.Code Ann. § 11-9-807.
7. Respondent # 2 [the Fund] is not entitled to a credit or offset pursuant to Ark.Code Ann. § 11-9-411.
8. Respondent #2 [the Fund] has accepted a thirty-five percent wage-loss disability in this claim. Respondent # 2 [the Fund] has controverted all wage-loss in excess of the thirty-five percent acknowledged.
9. Respondent # 1[GE] has paid all appropriate benefits for which it is liable, including continued, reasonably necessary medical treatment and is not obligated for payment of any attorney's fees.
By order of August 31, 2006, the Commission reversed in part and modified in part the ALJ's decision. The Commission found that the evidence demonstrated that appellant was capable of working a job that pays $12.35 an hour. Accordingly, the Commission found that appellant's loss-of-earning capacity was thirty-five percent. Further, the Commission determined that appellant did not have a financial incentive to work. The Commission found that GE was entitled to be reimbursed by the Fund the $37,136 that GE overpaid the appellant in compensation. Further, appellant was not required to reimburse GE for the overpayment he received. Finally, the Commission found that the Fund should be given a dollar-for-dollar credit for the long-term-disability benefits and disability-retirement benefits received by the appellant.
The Fund filed a motion for the Commission to reconsider its decision that GE was entitled to be reimbursed $37,136 by the Fund for GE's overpayment to appellant. After considering the motion, the Commission, by order of September 29, 2006, found that its finding should be modified, stating:
Our original finding with respect to [GE's] entitlement to reimbursement is correct. In addition, our original finding that [the Fund] is entitled to a credit for benefits claimant received pursuant to § 411 is also correct. Due to the circumstances of [GE's] oversight in overpayment and failure to claim the § 411 credit on their own behalf, the facts in this claim dictate [the Fund] should not be required to reimburse [GE] beyond their own liability in this claim. The claimant has already received more money than he is entitled and a true correction would actually require the claimant to reimburse the respondents, which is against longstanding public policy.
The Commission ordered that GE was entitled to reimbursement; however, the Fund was not required to pay this reimbursement beyond the extent of its actual liability to appellant, which was $11,223.12. Appellant filed his notice of appeal on September 11, 2006, and thereafter, the parties filed a joint stipulation with this court agreeing that no party intended to appeal the September 29, 2006, opinion of the Commission. This stipulation rendered GE's brief to this court moot.
In appeals involving claims for workers' compensation, this court views the evidence *912 and all reasonable inferences deducible therefrom in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. See Kimbell v. Ass'n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Dorris v. Townsends of Ark., Inc., 93 Ark.App. 208, 218 S.W.3d 351 (2005).
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Patterson v. Ark. Dep't of Health, 343 Ark. 255, 33 S.W.3d 151 (2000). When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002). Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony. Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 (2005). As our law currently stands, the Commission hears workers' compensation claims de novo on the basis before the ALJ pursuant to Ark.Code Ann. § 11-9-704(c)(2), and this court has stated that we defer to the Commission's authority to disregard the testimony of any witness, even a claimant, as not credible. See Bray v. Int'l Wire Group, 95 Ark.App. 206, 235 S.W.3d 548 (2006).
Wage loss
The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Emerson Elec. v. Gaston, 75 Ark.App. 232, 58 S.W.3d 848 (2001). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant's age, education, and work experience. Eckhardt v. Willis Shaw Exp., Inc., 62 Ark.App. 224, 970 S.W.2d 316 (1998). Objective and measurable physical or mental findings, which are necessary to support a determination of "physical impairment" or anatomical disability, are not necessary to support a determination of wage-loss disability. Arkansas Methodist Hosp. v. Adams, 43 Ark.App. 1, 858 S.W.2d 125 (1993). To be entitled to any wage-loss-disability benefit in excess of permanent-physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent-physical impairment as a result of a compensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). Other matters to be considered are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Curry v. Franklin Electric, 32 Ark.App. 168, 798 S.W.2d 130 (1990); City of Fayetteville v. Guess, 10 Ark.App. 313, 663 S.W.2d 946 *913 (1984). The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Oller v. Champion Parts Rebuilders Inc., 5 Ark.App. 307, 635 S.W.2d 276 (1982).
Appellant contends that the Commission placed great weight on a November 4, 2004, report from Heather Naylor of Rehab Management that indicated appellant was capable of performing light-duty work and that a job was available that paid $12.35 per hour. Based on this evidence, the Commission found that the appellant's loss of earning capacity was thirty-five percent. Appellant argues that none of the jobs listed in the reports and letters from Heather Naylor, which were submitted as evidence, paid $12.35 per hour. A review of the record submitted on appeal reveals that the November 4, 2004, report referred to in the Commission's decision and relied upon to a great extent was not included. When reviewing decisions from the Commission, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's finding and affirm if supported by substantial evidence. Welch's Laundry & Cleaners v. Clark, 38 Ark.App. 223, 832 S.W.2d 283 (1992). Because the relied-upon report is missing from the record herein, this issue is reversed and remanded to the Commission for reconsideration because there is no basis upon which to make this factual statement.
Credit
Appellant claims that as a result of his disability, he received two disability payments in addition to his workers' compensation benefits. The first was $150 per month for long-term disability and the second was $876 per month for disability-retirement benefits. The Commission allowed the Fund to receive a dollar-for-dollar credit for these benefits against any workers' compensation payments, pursuant to Ark.Code Ann. § 11-9-411(a) (Repl. 2002), which provides as follows:
Any benefits payable to an injured worker under this chapter shall be reduced in an amount equal to, dollar-for-dollar, the amount of benefits the injured worker has previously received for the same medical services or period of disability, whether those benefits were paid under a group health care service plan of whatever form or nature, a group disability policy, a group loss of income policy, a group accident, health, or accident and health policy, a self-insured employee health or welfare benefit plan, or a group hospital or medical service contract.
Appellant concedes that his long-term-disability benefits fit within the definition of a group-disability policy under Ark. Code Ann. § 11-9-411(a). He argues that the language of the statute does not allow for a dollar-for-dollar offset for disability-retirement benefits. He points out that the statute does not include the term "disability-retirement benefits." Appellant contends that if the legislature intended to consider an offset of disability-retirement benefits, those would have been included in the statute. He cites Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998), for the proposition that workers' compensation statutes are to be construed strictly. He argues that disability-retirement benefits are benefits paid primarily based on the eligibility of an employee to retire based on years of service in addition to being disabled, and since those benefits do not appear in Ark.Code Ann. § 11-9-411, they are not subject to credit or offset by the Fund.
Appellees argue that the Commission noted that the ALJ instructed appellant to *914 disclose the identity of the entity that was paying his disability benefits. Thus, appellees claim that the instruction carries with it the reasonable presumption that appellant has the burden of proving that disability-retirement benefits are based on years of service. The Commission found the opposite, and reasonable minds could come to the conclusion that an injured worker would not be eligible for disability retirement unless he was physically unable to perform the job he was doing for that employer. Appellees claim that a worker's physical condition, and not the amount of time the worker was employed, would be of consequence. We agree.
The Commission stated in its opinion of August 31, 2006:
Long-term disability benefits and the disability retirement benefits which the claimant receives are the types of benefits which subsection 411 is intended to address. The only type of benefit which respondent no. 2 [Fund] pays is the weekly benefit for wage loss disability. The claimant is receiving two types of disability payments from other sources. A disability "retirement" is not the same thing as a regular one. An employee becomes eligible for a disability retirement by virtue of injury, not by meeting the minimum number of years for a normal retirement. As such, it would meet the definition of a "welfare benefit plan ... of whatever form or nature..." [as stated in the statute].
We note that the interpretation given a statute by the agency charged with its administration is highly persuasive, and while not conclusive, it should not be overturned unless it is clearly wrong. Death & Perm. Dis. Trust Fund v. Anderson, 83 Ark.App. 230, 125 S.W.3d 819 (2003).
Appellees further claim that Ark. Code Ann. § 11-9-411 is clear. First, appellees argue that it was the intent of the legislature to include all types of benefits paid for disability because the term "any" is a term of expansion rather than a term of limitation. Second, the statute was meant to prevent a claimant from receiving a double recovery for the same period of disability. Third, the legislature included benefits "received by" the claimant, rather than "received from" a certain source. Appellees claim that it is therefore clear that if a claimant receives any type of disability benefit during a particular time period of disability, the legislature does not want the claimant to also receive workers' compensation benefits for that same time period. We agree and hold that the Commission did not err in finding that Ark. Code Ann. § 11-9-411 applies to retirement-disability benefits, as the overriding purpose of § 411 is to prevent a double recovery by a claimant for the same period of disability.
Reversed and remanded in part, and affirmed in part.
HART and ROBBINS, JJ., agree.
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THEAYTORNEY GENERAL
'OF-WAS
W’ILL WIILSON
*-l-rORNEY GICNERAL
May 23, 1961
Honorable Coke R. Stevenson Opinion No. WW-1067
Administrator
Texas Liquor Control Board Re: Whether a person who solicits
Austin, Texas and takes orders in Texas for
liquor that is stored in a
United States Custom Bonded
warehouse, underthe facts
submitted, is required to pro-
cure a permit under Article 1,
Section 4(a) of the Texas
Li uor Control Act (Article
Dear Mr. Stevenson: 66&(a), V ernon's Penal Code)?
Your request for an opinion reads as follows:
"We are confronted with the following situation.
A person seeks to establish a United States Bonded
Warehouse in the State of Texas for the purpose of
supplying liquor to individual travelers destined for
foreign countries, and for the purpose of supplying
liquor to sea-going vessels, and for the purpose of
exporting liquor. In so doing he expects to avoid
Federal taxes and State taxes on this commodity. To
conduct this business it will, of course, be necessary
for him to solicit and take orders for liquor within
the State of Texas.
"Section &(a) of Article 1 of the Texas Liquor
Control Act provides as follows:
'It shall be unlawful for any person
to manufacture, distill, brew, sell, possess
for the purpose of sale, import into this State,
export from this State, transport, distribute,
warehouse, store, solicit orders for, take
orders for, or,for the purpose of sale to bottle,
rectify, blend, treat, fortify, mix, or process
any liquor in any wet area without first having
procured a permit of the class required for such
privilege.'
Honorable Coke R. Stevenson, Page 2 (hWl067)
"Without raising the question of whether
the tax of the State of Texas may be so avoided
we are of the opinion that this person will violate
the above quoted Section of the Texas Liquor Control
Act if he engages in this business in the State of
Texas without first having procured a proper permit
issued by the Texas Liquor Control Board.
"We respectfully request your valued opinion
on the following question:
"Does a person who solicits and takes orders
in Texas for liquor that is stored in a United States
Custom Bonded warehouse for the purpose of supplying
individual travelers destined for foreign countries or
for the purpose of supplying sea-going vessels or for
the purpose of exportation violate Section 4(a) of
Article 1 of the Texas Liquor Control Act, if he does
so without first having procured a proper permit issued
by the Texas Liquor Control Board?"
The Commerce Clause, Article 1, Section 8, Clause 3 of the
Constitution of the United States, says:
"The Congress shall have power to lay and
collect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defense and
general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform through-
out the United States;
II
. . .
'IToregulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes."
The Import-Export Clause, Para. 2, Article 1, Section 10,
reads as follows:
I,
D . .
"NO State shall, without the Consent of the
Congress, lay any Imposts or Duties on Imports or
Exports, except what may be absolutely necessary
for executing its inspection Laws; and the net Produce
of all Duties and Imposts, laid by any State on Imports
or Exports, shall be for the Use of the Treasury of the
United States; and all such Laws shall be subject to
the Revision and Control of the Congress.
Honorable Coke R. Stevenson, Page 3 (WW-1067)
I,
. . .1,
Section 2 of the Twenty-First Amendment - Repeal of Prohibi-
tion Amendment - of the Constitution of the United States reads as
follows:
"Section 2. The transportation or importation
into any State, Territory, or possession of the United
States fordelivery or use therein of intoxicating
liquors in violation of the laws thereof, is hereby
prohibited."
The State of Texas has the right to tax or regulate intoxica-
ting beverages moving into or through the State of Texas in the
exercise by the State of Texas of its policepower, Gordon v, Statq,
310 S.W.2d 328 (Tex.Crim. 1956), Judgment Affirmed, 355 U.S. 369,
Rehearing Benied,.,355U.S. 967; Carter v. Vyinia, 321 U.S. 131,
(1944), Affirming 181 Va. 306, 24 S E 2d 56 . Therefore, any
intoxicating beverages moving from ih;!United States Custom Bonded
Warehouse through the State of Texas afterthe importation into the
State of Texas has.been completed, by passing through United States
Customs Inspection or the equivalent thereof, are subject to regula-
tion by the State of Texas.
The U. S. Supreme Court has held that, since the Twenty-First
Amendment, each state has the right to prohibit orregulate the impor-
tation of intoxicating liquors for delivery or use therein unlimited
by the Commerce Clause. Indianapolis Brewing Co. v. Liquor Control
Commission, 305 U.S. 391 (19391. Joseph S. Finch & Co. Y. McKittrick,
Attornev General. 305 U.S, 395 11939).
__.. It has also held that since
the adoption of ihe Twenty-First Amendment the "Equal Protection
Clause" is inapplicable to intoxicating liquors imported into a
state. Mahbney Liquor Control Commission v. Joseph Trinemrp.,
304 U.S. 401 (1938).
While it has been held that the Twenty-First Amendment does
not apply to intoxicating beverages transported through a-state,
Collins v. Yosemite Park & CurrvCo., 304 U.S. 578 (1938), it seems
clear that the Twenty-First Amendment overrides the Commerce Clause
or any other part of the Constitution in conflict with the Twenty-
First Amendment where the intoxi,catingbeverages are imported into
a state fordelivery or use in said state. While the fact that an
item maintains its character as a "foreign import" might remain
important in the determination of the extent of the police powers
of the state, the question of whether~or not an item maintains its
character as an import is not importantto the applicability or
non-applicability of the Twenty-First Amendment since the purpose of
Honorable Coke R. Stevenson, Page 4 (~~-1067)
the Twenty-First Amendment is to allow the regulation and con-
trol of imports by the various states,
In the present case the intoxicating beverages will be
imported into the State of Texas and if delivery or use of said
beverages occures within the State of Texas, the Twez-First
Amendment requires that the laws of the State of Texas be
followed., Under the fact situation which you present for our
consideration you do not state whether delivery or use occurs
within the State of Texas; however, if the ships being supplied
or upon which the individual being supplied travels are within
the territorial bounds of the State of Texas when the beverages
are delivered by the person selling the beverages from the United
States Custom Bonded Warehouse it would seem clear that the State
of Texas has the right to regulate such transaction since it falls
within the area contemplated by the Twenty-First Amendment. If
delivery or use does not OCCUT within the State of Texas, but the
goods are shipped out of the United States without a sale or
delivery occurring and while the goods maintain their character as
a foreign import such transactions would not be subject to regula-
tion by the State of Texas.
In the exercise of its authority to regulate, the State of
Texas is clearly allowed to exact a license fee for the privilege
of importing, possession, distributing, or any other activity
connected with intoxicating beverages. State Board of Equalization
of California v. Young's Market Co., 299 U.S. 59 (1936). In those
areas which Texas has the right to regulate the traffic in liquor,
Texas has done so by the passage of the Texas Liquor Control Act
and any action in the areas mentioned above of a commercial nature
without first procuring a permit of the class required from the
Texas Liquor Control Board would be a violation of the Texas Penal
Code,
SUMMARY
A person who solicits and takes orders in Texas
for liquor that is stored in a United States
Custom Bonded Warehouse, under the facts sub-
mitted, is required to procure a permit under
Article 1, Section 4(a) of the Texas Liquor
Control Act.
Yours very truly,
WILL WILSON
Attorney General of Texas
.
Honorable Coke R. Stevenson, Page 5 (WW-1067)
BY UL\
Cecil Cammack, Jr.-9
Assistant Attorney General
CC:ca
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Virgil Pulliam
L. P. Lollor
Maston Courtney
Dudley .McCalla
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt
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676 F.2d 705
Glennv.U. S. Dept. of Labor
81-1843
UNITED STATES COURT OF APPEALS Eighth Circuit
1/20/82
E.D.Ark. 517 F.Supp. 362
1
AFFIRMED**
**
See Local Rule 12
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613 So.2d 521 (1993)
SCHOOL BOARD OF MARTIN COUNTY, Appellant,
v.
MARTIN COUNTY EDUCATION ASSOCIATION, Appellee.
No. 92-0702.
District Court of Appeal of Florida, Fourth District.
January 20, 1993.
Certification Denied March 5, 1993.
Virginia Tanner-Otts, School Bd. Attorney for Martin County, Stuart, for appellant.
Thomas W. Young III, General Counsel, FEA/United, Tallahassee, for appellee.
Stephen A. Meck, Deputy General Counsel, Tallahassee, for Public Employees Relations Com'n.
PER CURIAM.
This is an administrative appeal of an order holding that the School Board of Martin County committed an unfair labor practice in freezing teachers' salaries in 1991 without negotiating with the teachers' representative, the Martin County Education Association. We reverse.
FACTS
The School Board and the Association entered into a collective bargaining agreement *522 for a three year period ending on July 30, 1993. The agreement contains provisions for teacher salaries and other employment issues. The agreement also contains a "reopener" clause which provides that, notwithstanding the salary provisions set out therein, "salaries are subject to negotiations for July 1, 1991 and July 1, 1992 years." Per this clause, on May 30, 1991, the Association notified the superintendent of schools of its intention to reopen the issue of salaries, and negotiations were requested to begin in June 1991. Negotiations were ultimately scheduled to begin on July 3, 1991. The parties continued to bargain over salaries and other reopener issues until August 16, 1991, when the superintendent declared an impasse.
On June 18, 1991, the School Board held a budget meeting, and the Board, acting in its legislative capacity, voted to freeze teachers' salaries at the previous year's levels due to an anticipated shortfall in revenue. Since 1982, the teachers had been given an annual salary increase based on experience. This wage increase was eliminated by the freeze. Subsequently, the Association filed this action claiming the unilateral elimination of the salary increase constituted an unfair labor practice. After a public hearing, the Public Employees' Relations Commission entered a final order on January 17, 1992, finding that the School Board had committed an unfair labor practice and violated section 447.501(1)(a) and (c), Florida Statutes (1991), by unilaterally rescinding experienced based step salary increases while the parties were negotiating salaries pursuant to the "reopener" clause in the current agreement. In relevant part, the Commission's order stated:
The contract was effective throughout its terms on all subjects covered therein which were not reopened for negotiations. However, ... salaries and other specified articles were subject to reopener negotiation upon proper notice. The undisputed facts demonstrate that negotiations on salaries were properly reopened and the parties were so engaged when the non-funding occurred. Thus, under this factual scenario, for the reasons explained below, the Commission agrees ... that no agreement existed on the subject of wages and, consequently, the underfunding of wages was not authorized by Section 447.903(2).
The Commission ordered the School Board to make a retroactive payment of the step salary increases, plus interest.
LAW
A unilateral underfunding of a collective bargaining agreement is a per se violation of section 447.501(1)(a) and (c), in the absence of waiver, exigent circumstances, or legislative resolution of an impasse. FFUAPD v. State of Florida, 16 FPER 21115 (1990); Palowitch v. Orange County School Bd., 3 FPER 280 (1977), affirmed, 367 So.2d 730 (Fla. 4th DCA 1979). In regard to the exception by legislative resolution of impasse, section 447.309(2), Florida Statutes (1991), provides:
[U]pon execution of the collective bargaining agreement, the chief executive shall, in his annual budget request or by other appropriate means, request the legislative body to appropriate such amounts as shall be sufficient to fund the provisions of the collective bargaining agreement. If less than the requested amount is appropriated, the collective bargaining agreement shall be administered by the chief executive officer on the basis of the amounts appropriated by the legislative body. The failure of the legislative body to appropriate funds sufficient to fund the collective bargaining agreement shall not constitute, or be evidence of, any unfair labor practice.
(Emphasis added). This appeal turns on whether the "collective bargaining agreement" referred to in section 447.309(2) refers to the general contract governing the parties, or to the specific provision on wages as the Commission concluded. The Commission held there was no existing collective bargaining agreement on wages, since the parties were actively negotiating on that issue under the "reopener" provision referred to above.
*523 The terms of section 447.309(2) are unambiguous. After a collective bargaining agreement is negotiated and concluded in good faith, section 447.309(2) prevents any subsequent legislative underfunding from being used as evidence of an unfair labor practice against the public employer. This statute makes no exception for the situation involved herein where the public employer wears two hats, one as the public employer, and the other as the legislative body.
Despite the absence of a precise definition of "collective bargaining agreement" in chapter 447, section 447.309(5) does provide the basic characteristics of a "collective bargaining agreement":
Any collective bargaining agreement shall not provide for a term of existence of more than 3 years and shall contain all of the terms and conditions of employment of the employees in the bargaining unit .. . except those terms and conditions provided for in applicable merit and civil service rules and regulations.
By both a plain reading of section 447.309(2), and a consideration of section 447.309(5), it appears that "collective bargaining agreement" as used in section 447.309 refers to the entire existing agreement between the parties.
CONCLUSION
We conclude that the plain meaning of section 447.309(2) requires reversal. The benefit of section 447.309(2) to a public employer is triggered by the execution of the collective bargaining agreement which in our case occurred well before the reopened negotiations on wages and the subsequent legislative underfunding. We hold a reopen provision, contained in an existing collective bargaining agreement, and negotiations begun pursuant thereto, do not remove the protection of section 447.309(2) for the School Board with respect to the salary provisions of the agreement. While we are ordinarily constrained to give great deference to the Commission's interpretation of this statutory scheme, we cannot go so far as to override the clear language used by the legislature. Cf. State v. Florida Police Benevolent Ass'n, Inc., et al., 613 So.2d 415 (1992).
Accordingly, we reverse the decision of the Commission and remand for further proceedings consistent herewith.
ANSTEAD and DELL JJ., and WALDEN, JAMES H., Senior Judge, concur.
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358 B.R. 130 (2006)
Phyllis Ann HILL, Debtor, Appellant,
v.
Andrea DOBIN, Trustee, Appellee.
Civ. No. 06-3265 (JAP). Bankruptcy No. 04-30325.
United States District Court, D. New Jersey.
December 4, 2006.
*131 *132 Bruce D. Atkinson, Atkinson & DeBartolo, Red Bank, NJ, for Appellant.
Valerie A. Hamilton, Sterns & Weinroth, Trenton, NJ, for Appellee.
OPINION
PISANO, District Judge.
Pursuant to 28 U.S.C. § 158(a)(1), Debtor Phyllis Hill ("Hill") has appealed the United States Bankruptcy Court's June 14, 2006 orders granting summary judgment in favor of the Trustee and denying Hill's request that her interest in two annuities be excluded from her bankruptcy estate. The issue presented here is whether Hill's interest in the annuities qualifies for exclusion from the bankruptcy estate pursuant to 11 U.S.C. § 541(c)(2). Resolving some disagreement among the bankruptcy courts in this district, the Court holds that an asset is excluded from the bankruptcy estate under § 541(c)(2) if (1) the asset represents the debtor's beneficial interest in a trust, (2) there is a restriction on transfer, and (3) the restriction is enforceable under an applicable non-bankruptcy law. See 11 U.S.C. § 541(c)(2). This involves a case-by-case approach requiring the bankruptcy courts to analyze the terms of the particular annuity at issue and determine whether it satisfies the elements necessary for exclusion. As explained below, the Court finds that Hill's annuities do not satisfy the requirements of § 541(c)(2) because they do not qualify as trusts. Accordingly, Hill's annuities are not excluded from her bankruptcy estate and the orders of the Bankruptcy Court are affirmed.
I. BACKGROUND
On June 16, 2004, Hill filed a voluntary bankruptcy petition under Chapter 7 of the Bankruptcy Code. Among the assets Hill listed in her original petition was an annuity with Guardian Insurance and Annuity Company, Inc. ("GIAC"), which she improperly identified as Park Avenue Securities. As of June 30, 2004, the GIAC Annuity had a value of $73,202.79. Hill later amended her petition to include an American Express Privileged Asset Annuity Certificate ("AMEX Annuity"), which had a value of $31,415.05 as of June 30, 2004. In her petition, Hill stated her belief that both annuities were excluded from her bankruptcy estate pursuant to 11 U.S.C. § 541(c)(2).
The Trustee filed a complaint on June 13, 2005 seeking a determination that both annuities were property of the bankruptcy estate. After Hill filed an answer on September 23, 2005, both parties filed motions for summary judgment wherein the Trustee requested an order that the annuities were assets of the debtor estate and Hill sought an order that the annuities were excluded from the estate. At the close of oral argument on June 12, 2006, the Bankruptcy Court rendered a decision in favor of the Trustee. After reviewing the terms of the AMEX Annuity, the Bankruptcy Court determined that the annuity was not excluded from Hill's bankruptcy estate because it had none of the indicia of a trust. Specifically, the Court found that the annuity was not a trust because "it doesn't have a fiduciary relationship, there's no manifest intent to create a trust, and there's no duty on the part of [AMEX] to deal with the property for the benefit of any person." Transcript of Hearing at 17, Dobin v. Hill (In re Hill), Ch. 7 Case No. 04-30325, Adv. No. 05-19401 (Bankr. D.N.J. June 12, 2006). Similarly, upon examining the GIAC Annuity documents, the Court noted that the annuity did not give rise to a fiduciary relationship, there was no trustee, and GIAC held the funds as an asset of the company, not as trust property. Id. at 22-23 The Court concluded, therefore, that Hill had no more *133 than a "contractual debtor creditor relationship" with GIAC. Id. On June 14, 2006, the Court entered orders granting summary judgment in favor of the Trustee and denying Hill's cross-motion for summary judgment. Hill timely filed an appeal of these orders on July 19, 2006.
II. DISCUSSION
A. Standard of Review
The Court has jurisdiction over this appeal pursuant to Rule 8001(a) of the Federal Rules of Bankruptcy Procedure and 28 U.S.C. § 158(a). The district court reviews a bankruptcy court's legal conclusions under a plenary standard. See J.P. Fyfe, Inc. of Fla. v. Bradco Supply Corp., 891 F.2d 66, 69 (3d Cir.1989). Factual determinations, however, may be set aside by the district court only if they are clearly erroneous. See Fed. Rule Bankr.Proc. 8013; J.P. Fyfe, Inc. of Fla., 891 F.2d at 69. The issue presented in this appeal is a question of law: whether Hill's annuities should be excluded from her bankruptcy estate pursuant to 11 U.S.C. § 541(c)(2). Thus, the Court will apply a plenary standard of review.
B. Section 541 of the Bankruptcy Code
Pursuant to Section 541(a)(1) of the Bankruptcy Code, 11 U.S.C. § 541(a)(1), a bankruptcy estate includes "all legal or equitable interests of the debtor in property" as of the creation of the bankruptcy estate "[e]xcept as provided in subsections (b) and (c)(2)." Subsection (c)(2) states that "[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title." Several courts have addressed the question of whether § 541(c)(2) covers annuities and the results vary. Compare In re Barnes, 264 B.R. 415 (Bankr.E.D.Mich.2001) (finding that TIAA annuity did not qualify as a trust and thus was not excluded from the debtor estate under § 541(c)(2)); In re Neto, 215 B.R. 939 (Bankr.D.N.J.1997) (finding that lottery annuity is part of debtor estate); In re Simon, 170 B.R. 999 (Bankr.S.D.Ill. 1994) (concluding that annuity, which court determined was not a trust, is part of debtor estate); Walro v. Striegel, 131 B.R. 697 (S.D.Ind.1991) (same) with In re Quinn, 327 B.R. 818 (W.D.Mich.2005) (finding a pension plan annuity excluded from the bankruptcy estate under § 541(c)(2)); In re Schuster, 256 B.R. 701 (Bankr.D.N.J.2000) (finding the annuities at issue were trusts and thus excludable under § 541(c)(2)). Further, neither the Supreme Court nor the Third Circuit has dealt squarely with this issue.
In Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), the Supreme Court analyzed § 541(c)(2) and held that the antialienation provision in an ERISA-qualified plan "constitute[d] an enforceable transfer restriction for purposes of § 541(c)(2)'s exclusion of property from the bankruptcy estate." Patterson, 504 U.S. at 757-60, 112 S.Ct. 2242. In so holding, the Court noted that the "natural reading of [§ 541(c)(2)] entitles a debtor to exclude from property of the estate any interest in a plan or trust that contains a transfer restriction enforceable under any applicable nonbankruptcy law." Id. at 758, 112 S.Ct. 2242. Focusing on the Court's use of the phrase "plan or trust," some courts have concluded that § 541(c)(2)'s trust requirement no longer applies when the asset at issue is an ERISA-qualified plan.[1] Another line of cases espouses the *134 view that non-ERISA qualified employer pension plans are not subject to a strict trust requirement.[2] There is, however, nothing in Patterson, or the statute for that matter, suggesting that the trust requirement does not apply to a non-ERISA annuity. See generally id.; Barnes, 264 B.R. at 425 ("Rather than `categorically' eliminating § 541(c)(2)'s trust requirement, . . . the most that one can plausibly infer from Shumate . . . is that the requirement is not applicable to ERISA-qualified plans.").
In In re Yuhas, 104 F.3d 612, 613 (3d Cir.1997), the Third Circuit held that a New Jersey statute "that protects a qualified individual retirement account (IRA) from claims of creditors constitutes a `restriction on the transfer of a beneficial interest of the debtor in a trust' within the meaning of 11 U.S.C. § 541(c)(2) and thus result[ed] in the exclusion of the IRA from a bankruptcy estate." Notably, the Court did not address the issue of whether IRAs qualify as trusts for the purpose of § 541(c)(2); instead, the Court assumed that the IRA satisfied the trust requirement because the parties did not raise that issue on appeal. Subsequent to the Yuhas decision, however, some bankruptcy courts within the Third Circuit have concluded that IRAs are not trusts and thus not eligible for exclusion under § 541(c)(2). See, e.g., In re Haney, 316 B.R. 827, 829 (Bankr.E.D.Pa.2004); In re Williams, 290 B.R. 83, 87 (Bankr.E.D.Pa.2003); In re Fulton, 240 B.R. 854, 865-66 (Bankr. W.D.Pa.1999).
In any event, there is no doubt that the Yuhas decision preserves the trust requirement set forth in § 541(c)(2). In deciding whether the IRA at issue was excluded from the bankruptcy estate, the Yuhas Court employed a five-part test, which states that:
(1) the IRA must constitute a "trust" within the meaning of 11 U.S.C. § 541(c)(2); (2) the funds in the IRA must represent the debtor's "beneficial interest" in that trust; (3) the IRA must be qualified under Section 408 of the Internal Revenue. Code; (4) the[re] . must be a "restriction on the transfer" of the IRA funds; and (5) this restriction must be "enforceable under nonbankrupcty law."
Yuhas, 104 F.3d at 614. The Court notes that, contrary to the interpretation of some bankruptcy courts, the Yuhas five-part test is not one of general applicability. Specifically, there is no requirement in § 541(c)(2) that the asset be qualified under Section 408 of the Internal Revenue Code. The Yuhas Court added that prong because the restriction on transfer upon which the debtor relied in that case N.J.S.A. § 25:2-1(b) applied only to qualifying *135 trusts, defined in N.J.S.A. § 25:2-1(b) as "trust[s] created or qualified and maintained pursuant to . . . section 408 . . . of the federal Internal Revenue Code of 1986." Yuhas, therefore, does not suggest that for an asset to be excluded from a bankruptcy estate under § 541(c)(2) it must be qualified under Section 408 of the Internal Revenue Code. Rather, that requirement simply addressed whether the particular restriction on transfer applied to the asset at issue in Yuhas.
This Court holds that, in order to demonstrate that an asset is excluded from a bankruptcy estate pursuant to § 541(c)(2), the debtor must establish that: (1) the asset represents the debtor's beneficial interest in a trust, (2) there is a restriction on transfer, and (3) the restriction is enforceable under an applicable non-bankruptcy law. See 11 U.S.C. § 541(c)(2); Yuhas, 104 F.3d at 614; see also In re Wilcox, 233 F.3d 899, 904 (6th Cir.2000). The debtor bears the burden of establishing that these requirements are met. In re Adams, 302 B.R. 535, 540 (6th Cir. BAP 2003). The nature of this test does not allow for a bright line rule resolving the issue of whether annuities, in general, are excluded from the bankruptcy estate under § 541(c)(2). Rather, a case-by-case approach is necessary: the bankruptcy courts must examine the annuity documents in each case to determine whether the specific annuities at issue satisfy the three elements set forth above.
The Court notes that the likely result of this test particularly because of the trust requirement will be that many annuities do not qualify for exclusion from bankruptcy estates. Such a result, however, is not inconsistent with the congressional policy "encouraging retirement savings, as reflected in the statutes which have given us ERISA, Keogh plans, and IRAs." Velis v. Kardanis, 949 F.2d 78, 82 (3d Cir.1991). Indeed, there is no federal statute evincing a goal to encourage or protect investments in annuities.[3] Moreover, to the extent that Congress wants to protect annuities from the claims of bankruptcy creditors, it has the ability to amend the Bankruptcy Code. As it stands now, the plain language of § 541(c)(2) makes clear that only a debtor's "beneficial interest in a trust" is eligible for exclusion under that section. 11 U.S.C. § 541(c)(2) (emphasis added).
1. The Elements of a Trust
The Bankruptcy Code does not define the term trust. Consequently, the Court relies on the common understanding of the term to discern the elements of a trust. Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) ("We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import.") (citations and internal quotation marks omitted). Pursuant to the Restatement of Trusts, a trust is a
fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.
RESTATEMENT (THIRD) OF TRUSTS § 2 (2003). Borrowing from that definition, the elements of a trust are: (1) a manifestation of intention to create a trust; (2) a trust res; (3) a trustee who is bound by a fiduciary duty to deal with the property for another's *136 benefit; and (4) a division of title between the trustee who holds legal title to the property and the beneficiary who retains equitable title.
2. Restriction on Transfer
The Bankruptcy Code broadly defines "transfer" as "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption." 11 U.S.C. § 101(54). Thus, "[a]ny procedure by which funds in [a trust] might be reached to satisfy the claims of creditors would seem to fall within this broad definition. . . ." Yuhas, 104 F.3d at 614 (citations and internal quotation marks omitted). The source of the restriction may be state law, see id. at 614-15, federal law, see Patterson, 504 U.S. at 760, 112 S.Ct. 2242, or the annuity itself, see Barnes, 264 B.R. at 437.
3. Enforceable Under Applicable Non-bankruptcy Law
Though some courts previously held the view that only state law could be the source of the "applicable non-bankruptcy law" under § 541(c)(2), Patterson established that "any relevant non-bankruptcy law," whether state or federal, satisfies the requirement. Patterson, 504 U.S. at 759, 112 S.Ct. 2242 ("Plainly read, [§ 541(c)(2)] encompasses any relevant nonbankruptcy law, including federal law . "); see also Yuhas, 104 F.3d at 614 n. 1 ("Applicable nonbankruptcy law includes both federal law such as ERISA, . . . and state law. . . .") (internal citations omitted).
C. Hill's Annuities
At the outset, the Court notes that the annuities at issue are neither ERISA-qualified plans nor pension plans created and controlled by an employer. Therefore, even assuming that ERISA-qualified plans and pension plans are, subject to a less exacting test, there is no basis upon which to relax the requirements of § 541(c)(2) in this case.
Both the AMEX Annuity and the GIAC Annuity are subject to a "restriction on transfer . . . that is enforceable under applicable nonbankrutpcy law." In fact, N.J.S.A. 17B:24-7 is the source of both the restriction on transfer and the applicable nonbankruptcy law. See Yuhas, 104 F.3d at 614-16 (relying on New Jersey statute as the source of the restriction on transfer and the applicable nonbankruptcy law). The statute, which expressly protects annuities from the claims of creditors, states:
The benefits, rights, privileges, powers and options which under any annuity contract heretofore or hereafter issued are due or prospectively due the annuitant, shall not be subject to execution, garnishment, attachment, sequestration or other legal process nor shall the annuitant be compelled to exercise any such rights, privileges, powers, or options, nor shall creditors be allowed to interfere with or terminate the contract. . . .
N.J.S.A. 17B:24-7(a). Therefore, the only issue in dispute is whether the annuities qualify as trusts.
Hill argues that both of her annuities should be excluded from the estate under § 541(c)(2) because all annuities are trusts or, in the alternative, the annuities satisfy all of the elements of a trust. The Trustee counters that Hill's annuities do not qualify as trusts and that Hill has not carried her burden of demonstrating that the annuities are excluded from her bankruptcy estate. As explained above, this Court does not take the view that all annuities are trusts. Courts must review the annuity *137 documents to determine whether the particular annuity at issue satisfies the statutory requirements of § 541(c)(2), including the trust requirement. As explained below, having reviewed the annuity documents for both the AMEX Annuity and the GIAC Annuity, the Court concludes that neither annuity qualifies as a trust. Accordingly, the annuities are not excludable from Hill's bankruptcy estate.
1. The AMEX Annuity
The terms of the AMEX Annuity, a fixed annuity, describe it as a long-term savings plan into which the owner (Hill) deposits monthly contributions. AMEX, in turn, agrees to repay those deposits plus interest to Hill or a designated beneficiary beginning on an agreed upon date in the future. AMEX determines the applicable interest rate depending upon current economic conditions, yields on AMEX's current investments, and projected yields on future investments. Hill has the right to withdraw funds from the annuity and to send extra payments at any time. AMEX owns and controls the monthly contributions and has unrestricted use of those funds. Moreover, the use of the funds has no bearing on the final value of the Annuity. To the extent that AMEX neglected to make the scheduled payments to Hill or the designated beneficiary, the owner would have a contract claim against AMEX, and if it became insolvent, the annuity, owner would become a creditor.
Tellingly, Hill spends no more than four sentences of her sixteen page brief explaining why the AMEX Annuity should be excluded from her bankruptcy estate under § 541(c)(2). Further, Hill does not identify any evidence demonstrating her manifestation of an intention to create a trust, the existence of a trust res, a division of title between beneficiary and trustee, or the existence of a trustee. Nor could she, because the annuity documents reveal that the AMEX Annuity does not satisfy the elements of a trust. The documents demonstrate that the AMEX Annuity creates a debtor-creditor relationship, not a trust, in which AMEX "contractually guarantees" Hill's "contributions and . . . interest earnings." Thus, there is no evidence of a manifested intention to create a trust. Nor is there an identifiable res: AMEX has unrestricted use of the premium payments and is bound only to pay Hill an amount similar to her contributions plus interest at a specified date in the future.
Further, there is no division of title. AMEX holds legal and equitable title[4] to Hill's premium payments because AMEX, by contract, bears the risk of loss arising out of its use of the premium payments. See Barnes, 264 B.R. at 434. Finally, the annuity documents do not identify a trustee; indeed, AMEX does not assign itself the role of trustee or undertake an obligation to invest the owner's premium payments for her benefit. Therefore, the AMEX Annuity is not a trust. It represents no more than a debtor-creditor relationship and thus is not excluded from Hill's bankruptcy estate under § 541(c)(2).
2. The GIAC Annuity
Under the terms of the GIAC Annuity, Hill could select either a fixed rate option or a variable option. The variable option, which Hill chose, allowed her to allocate her premiums to certain investment vehicles mostly mutual funds and have her funds kept in The Guardian Separate Account *138 E ("Account E"). As with the AMEX Annuity, Hill had the right to withdraw funds from the GIAC Annuity. GIAC owns the assets held in Account E, but those assets are kept separate from GIAC's general and other accounts. Though "[a]ssets equal to the reserves and contract liabilities of Account E [are] not charged with liabilities that arise from any other business GIAC may conduct," GIAC maintains the right to "transfer assets in excess of the reserves and contract liabilities to its general account." Thus, although not entirely clear, it appears that, were GIAC to become insolvent, the Account E assets would become subject to receiver control and/or liquidation. The size of the payments that Hill would receive beginning on the annuity commencement date the date on which GIAC would begin sending monthly payments to Hill depended upon the success of Hill's investments. Also, Hill had the right to withdraw funds from the annuity account.
The GIAC Annuity presents a closer question than the AMEX Annuity, principally because there is evidence of a division of title: GIAC, by the terms of the annuity documents, holds legal title and Hill retains an equitable interest in the funds she has paid into the annuity because she bears the risk of loss. See id. at 434. Indeed, her payments were used to purchase variable annuity units, the value of which could increase or decrease depending upon the performance of the annuity portfolio. Unlike the Barnes court, however, this Court does not adopt the view that division of title conclusively establishes that the asset is a trust. See id. at 432 ("The sine qua non of a trust is the division of ownership rights in the subject property-the trust beneficiary holding equitable title thereto but the trustee holding legal title.").
Further, there are three factors that counsel against a finding that the GIAC Annuity qualifies as a trust. First, the annuity documents consistently refer to the GIAC Annuity as a contract. Though the Court will not afford controlling weight to the parties description of their relationship without analyzing its substance, the Court finds that the parties' consistent and repeated use of the word contract is persuasive evidence that the parties did not intend to create a trust. See Walro, 131 B.R. at 701 ("[C]ourts will not simply assume that an annuity is a trust in the absence of evidence that the parties had the specific intent to create a trust . .").
Second, there is no indication in the annuity documents that GIAC has assumed the role of trustee. Although, as Hill points out, GIAC reserved the right "to serve the best interests of the owner and any beneficiary," GIAC is not bound by a fiduciary duty to do so. Thus, the Court finds that there is no trustee. Third, it appears that there is no trust res. It is true that GIAC purported to hold Hill's payments in Account E, keeping them separate from their other accounts and shielding the funds from any liabilities that could result from GIAC's other business activities. The annuity documents indicate, however, that GIAC could remove assets equal to those in Account E. Thus, the implication is that GIAC did have access the funds purportedly kept separately in Account E. In sum, the GIAC Annuity does not meet all of the elements of a trust. Therefore, Hill has failed to carry the burden of establishing that the GIAC Annuity is excluded from her bankruptcy estate under § 541(c)(2). See Adams, 302 B.R. at 540.
Notwithstanding the fact that the GIAC and AMEX Annuities fail to satisfy § 541(c)(2), Hill suggests that her interest in the annuities should be excluded from *139 her bankruptcy estate because there is a policy favoring the "[u]niform treatment of property interests," to prevent "a party from receiving a windfall merely by the reason of happenstance of bankruptcy." Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) (internal quotation marks and citation omitted); Patterson, 504 U.S. at 764, 112 S.Ct. 2242. A decision not to exclude the annuities in this case violates that policy, according to Hill, because it means that the happenstance of bankruptcy allows her creditors to access funds that would be otherwise be protected under N.J.S.A. 17B:24-7(a). The flaw in Hill's argument is that she requests uniform treatment of assets which she characterizes differently depending on the applicable law. Specifically, Hill suggests that her assets are trusts for the purpose of federal law (§ 541(c)(2)) and annuities for the purpose of state law (N.J.S.A.17B:24-7(a)). Hill cannot have it both ways, and the Court declines her invitation to give two different names each with legal significance to the same asset in order to achieve what she calls "uniform treatment."[5]
She further argues that failure to exclude the annuities under § 541(c)(2) will encourage creditors to "engage in the strategic manipulation of the bankruptcy laws in order to gain access to otherwise inaccessible funds." Patterson, 504 U.S. at 764, 112 S.Ct. 2242. That concern, however, is not valid where, as here, the debtor filed a voluntary bankruptcy petition.
III. CONCLUSION
For the reasons explained above, the Court finds that Hill's annuities do not satisfy the requirements of § 541(c)(2) because they are not trusts. Therefore, the AMEX Annuity and the GIAC Annuity are not excluded from Hill's bankruptcy estate. An appropriate order accompanies this opinion.
NOTES
[1] See, e.g., In re Rueter, 11 F.3d 850, 852 (9th Cir.1993) ("Under Shumate, a court need look no further than whether the ERISA-qualified plan at issue has an anti-alienation provision that satisfies the literal terms of § 541(c)(2)."); Mfrs. Bank & Trust Co. v. Hoist, 197 B.R. 856, 859 (N.D.Iowa 1996) ("Once the plan is determined to be ERISA-qualified, the inquiry is finished.").
[2] See, e.g., Morter v. Farm Credit Servs., 937 F.2d. 354, 357 (7th Cir.1991) (finding that courts have exhibited a "willingness to exclude [a pension] plan if it is employer-created and controlled and, therefore, analogous to a spendthrift trust"); Matter of Goff, 706 F.2d 574, 589 (5th Cir.1983) (finding that employer-created and controlled retirement plans may be characterized as spendthrift trusts for the purposes of § 541(c)(2) even though they are not traditional spendthrift trusts); In re Atallah, 95 B.R. 910, 919 (Bankr.E.D.Pa. 1989) ("Section 541(c)(2) is not limited to traditional spendthrift trusts, but also applies to pension funds which exhibit the characteristics of a spendthrift trust."). But see Barnes, 264. B.R. at 428 ("There is no statutory support for the notion that in determining whether a trust was created, employee benefit plans are subject to a less stringent standard than are other assets in which the debtor holds an interest.").
[3] It should be noted that an annuity is not necessarily a vehicle for retirement savings. There are many reasons why one might choose to purchase an annuity, not the least of which is to achieve the tax benefits that annuities typically provide.
[4] "`Equitable title' may be defined as `the beneficial interest of one person whom equity regards as the real owner, although legal title is vested in another.'" Arachnid, Inc. v. Merit Indus., Inc., 939 F.2d 1574, 1578 n. 3 (Fed.Cir.1991) (quoting BLACK'S LAW DICTIONARY (6th ed.1990)).
[5] The Bankruptcy Court reached a similar conclusion: "[I]f [Hill were] able to convince me that the contracts were actually trusts, I don't think they'd get the benefit of the state law because the state law exclusion only applies to annuities. So it seems to me that you can't have it a trust for federal law and an annuity for state law purposes." Transcript of Hearing at 17, Dobin v. Hill (In re Hill), Ch. 7 Case No. 04-30325, Adv. No. 05-19401 (Bankr.D.N.J. June 12, 2006).
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180 Cal.App.4th 161 (2009)
TIMOTHY J. WALTON, Plaintiff and Respondent,
v.
SCOTT MUELLER, Defendant and Appellant.
No. H034058.
Court of Appeals of California, Sixth District.
December 15, 2009.
*163 Carr & Ferrell, Robert J. Yorio and Christopher P. Grewe for Defendant and Appellant.
Law Offices of Timothy Walton and Timothy J. Walton for Plaintiff and Respondent.
*164 OPINION
DUFFY, J.
A $40,000 default judgment was entered against defendant Scott Mueller in this action in June of 2006. That judgment became final. Some two years later, Mueller began negotiations with Timothy J. Walton, the judgment creditor, to satisfy the judgment. Although Mueller contends that they reached an agreement to fully satisfy the judgment by Mueller paying Walton $15,000, Walton disputes that such a contract was ever formed. Without actually having paid anything, Mueller filed a motion to enforce the alleged settlement, purportedly under Code of Civil Procedure section 664.6,[1] which, under certain conditions, provides for entry of judgment in conformance with a settlement in pending litigation. The trial court denied the motion, finding that no settlement agreement was ever reached. Regardless of whether an agreement was reached, we conclude that section 664.6 does not apply after a judgment has become final in an ordinary civil action because at that point, litigation is no longer pending as expressly contemplated by the statute. We accordingly affirm.
STATEMENT OF THE CASE
Walton, a lawyer representing himself, initiated this action by filing his complaint for damages and injunctive relief against defendants other than Mueller on December 28, 2004. It alleged violations of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) for a first cause of action and a second claim based on "California Restrictions On Unsolicited Commercial E-mail Advertisers" under Business and Professions Code section 17529.5. The factual basis of the claims was that the defendants had allegedly sent Walton numerous unsolicited commercial e-mails containing deceptive and false information and advertisements. The complaint was amended twice, among other things adding Mueller, a Florida resident allegedly doing business as "Acceleratebiz Incorporated," as an individual defendant. Mueller was alleged in the operative third amended complaint to have sent Walton 40 unsolicited e-mails, for each of which Walton sought, among other things, $1,000 in statutory liquidated damages under Business and Professions Code section 17529.5, subdivision (b)(1)(B)(ii).
Default was entered against Mueller on January 26, 2006. A default judgment against him was entered by the court on August 25, 2006, for $40,000, supported by Walton's declaration as to having received the 40 unsolicited commercial e-mails from Mueller.[2]
*165 Two years later, in August 2008, Mueller's counsel orally proposed to Walton that he accept $15,000 from Mueller, payable in three installments over 12 months, in full satisfaction of the judgment. This offer was confirmed by Mueller's counsel by e-mail to Walton on August 28, 2008. Walton countered that offer on September 3, 2008, by orally proposing that Mueller pay him $20,000 in installments over 18 months. Mueller, through counsel, then orally countered the next day with an offer to pay Walton $15,000 in installments over nine months. On October 13, 2008, this offer was communicated to Walton by letter, after Walton requested that the discussions be reduced to writing.
At that point, Walton was simultaneously in the process of executing on the judgment by levy against one of Mueller's bank accounts, though Walton did not apprise Mueller's counsel of this. But after the bank account was levied, Mueller told his lawyer, who wrote to Walton on October 16, 2008, demanding that execution efforts cease while they "finalize settlement documentation." The letter did not mention the terms of any specific settlement. Walton responded by letter dated October 17, 2008, to Mueller's counsel, stating that he would not cease executing on the judgment, as was his right. The letter also impliedly rejected Mueller's last settlement offer of $15,000 payable over nine months[3] and said, "Am I to understand that you now seek settlement on no conditions other than payment of money? If so, and you have no other proposed settlement terms that you wish to include, please send a check in the amount proposed [$15,000], and we will cease any further proceedings in regard to execution of the judgment."
On October 22, 2008, Mueller's counsel responded by letter to Walton. Among other things, he asserted that a binding contract had been reached in settlement of the judgment on the terms relayed in Mueller's last offer$15,000 payable over nine months. But, he continued, "[n]otwithstanding that agreement, the attorneys working on your behalf have apparently filed an execution lien against Mr. Mueller's bank account.[4] In view of that action, Mr. Mueller offers to pay the sum of $15,000 to settle this litigation. Said money to be paid directly to you from the account that is presently subject to the execution lien. Obviously, your enforcement efforts preclude him from writing a check against that account at the present time. [¶] The offer stated in this letter is without prejudice and with a full reservation of rights to enforce the earlier binding settlement agreement between you and Mr. Mueller . . . ."
*166 On October 30, 2008, Walton again wrote to Mueller's counsel. He denied that a settlement had been reached and stated his position that negotiations had not resulted in the formation of any contract. He further requested Mueller's counsel to reduce any proposed settlement to a complete written draft of an agreement containing all terms and conditions so that he could fully understand and evaluate it.
On October 31, 2008, on Mueller's application, the court issued an order to show cause why enforcement of the judgment should not be stayed on account of the alleged settlement agreement composed of payment by Mueller to Walton of $15,000 over nine months. But on November 13, 2008, the court denied Mueller's motion to stay enforcement, specifically finding "that the parties did not reach any settlement agreement."
On November 24, 2008, Mueller himself wrote to Walton, stating, "In response to your letter of October 17, 2008 . . ., I accept your offer to settle this lawsuit in exchange for a lump sum $15,000 payment. I hereby tender the settlement payment of $15,000." Enclosed with the letter was a copy of a cashier's check payable to Walton, but no actual check.
In response, Walton wrote to Mueller's counsel on December 3, 2008. He stated his position that his October 17th offer to accept a check for $15,000 in full satisfaction of the judgment had been rejected by Mueller's counsel's letter of October 22d, which had offered to fully satisfy the judgment by payment of $15,000 directly from Mueller's bank account that was subject to the execution levy rather than by separate check. This would necessarily have required Walton to release the levy before receiving payment. Walton then offered to "agree to a confidential settlement for $60,000. Once I have the check for $60,000, I will cease enforcement actions."
On January 22, 2009, Mueller filed a motion to enforce what he contended was a binding settlement, as evidenced by Walton's offer of October 17th to accept a check for $15,000 in full satisfaction of the judgment and Mueller's letter of November 24th enclosing the copy of a cashier's check. The motion was brought under section 664.6, on the ground that the parties had agreed to the terms of a settlement in writing. Walton opposed the motion, reiterating his contention that no contract had been formed. The court denied the motion from the bench, stating that it did not "believe there was a valid settlement agreement entered into."[5]
*167 DISCUSSION
I. Appealability
There are two issues relating to appealability.
First, is the order appealable? Ordinarily, an order denying a motion to enforce a settlement in pending litigation under section 664.6 is not appealable, as judgment has not yet been entered and there are accordingly issues left in the trial court for consideration. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293 [91 Cal.Rptr.2d 60] ["The denial of the motion, rather than finally disposing of the action, expressly leaves it open."]; cf., Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 205 [265 Cal.Rptr. 620] (Viejo Bancorp) [order granting § 664.6 motion is appealable as the "intended substance and effect of the judgment is to finally dispose of" the action].) But here, because the motion concerned an alleged settlement to satisfy a judgment, the motion was necessarily brought after judgment had been entered. Apart from the question of the motion's propriety at that juncture, its denial nevertheless resulted in an order after judgment that is arguably appealable under section 904.1, subdivision (a)(2) as an order made after an appealable judgment. We will accordingly treat the order denying the section 664.6 motion as such in these narrow circumstances, particularly because there are no issues left for the trial court's consideration, a hallmark of an appealable order or judgment.[6] (Doran v. Magan, supra, 76 Cal.App.4th at p. 1293.)
The second issue relating to appealability in this case is whether the appeal is premature as no written order was entered denying the motion. The minute order reflecting that the motion was denied was not included in the record but we obtained it from the superior court and have augmented the record on our own motion to include it. The minute order does not provide for or require that a written order be prepared for entry. It is therefore appealable even though it is not a formal, signed order. (In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1410 [77 Cal.Rptr.2d 395] [unsigned minute order appealable unless it recites that formal order is to be prepared], criticized on another point in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1195, fn. 11 [86 Cal.Rptr.2d 778, 980 P.2d 337].) And for purposes of determining the time for filing a notice of appeal, the minute order was filed or entered on the date it was entered in the permanent minutesFebruary 17, 2009. (Cal. Rules of Court, rule 8.104(d)(2); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1248 [25 Cal.Rptr.3d 372].) The order was *168 timely appealed on March 27, 2009. The appeal is therefore not premature and we proceed to the merits.
II. The Trial Court Properly Denied the Section 664.6 Motion
The parties assumed the application of section 664.6 and focused their briefing on whether or not an enforceable contract was reached. But we question the applicability of section 664.6 to the circumstances presented here, even if a binding contract was formed.[7]
(1) Section 664.6 makes available "a summary procedure by which a trial court may specifically enforce an agreement settling pending litigation without requiring the filing of a second lawsuit" or a supplemental pleading in the existing case on which a party may move for summary judgment to enforce a settlement. (Kirby v. Southern Cal. Edison Co. (2000) 78 Cal.App.4th 840, 843 [93 Cal.Rptr.2d 223] (Kirby), citing Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809 [71 Cal.Rptr.2d 265].) The statute provides in pertinent part that "[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement."[8] (§ 664.6.)
The threshold and dispositive issue presented here is whether section 664.6 can be applied to enforce an alleged settlement that occurs after a judgment has already become final in a civil action. At that point, is the litigation "pending" such that section 664.6 may be applied, particularly when the only remedy made available by the statute is entry of judgment pursuant to the settlement? This question involves construction and application of the statute, to which we apply independent review. (Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162 [64 Cal.Rptr.2d 571].) In doing so, we review the court's ruling and not its rationale. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330 [48 P. 117]; Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 663-664 [77 Cal.Rptr.3d 743].)
(2) "Our primary task in interpreting a statute is to determine the Legislature's intent so as to effectuate the purpose of the law. [Citations.] Because the statutory language is the best indicator of legislative intent, we *169 must begin by examining the words of the statute itself [citation], giving those words their plain meanings [citation]. `When statutory language is clear and unambiguous, there is no need for construction, and courts should not indulge in it.' [Citation.]" (Kirby, supra, 78 Cal.App.4th at p. 844.)
Previous cases analyzing the applicability of section 664.6 have addressed in other contexts the meaning of the phrase "pending litigation." In Viejo Bancorp, for example, parties to the action had agreed to a settlement of the case, and the action was dismissed. (Viejo Bancorp, supra, 217 Cal.App.3d at pp. 203-204.) After problems implementing the settlement arose, one of the parties then filed a new action. The party then successfully moved in that action under section 664.6 to enforce the earlier settlement by entry of judgment in the new action pursuant to the settlement of the previously dismissed one. (Viejo Bancorp, at p. 204.) The Court of Appeal reversed, holding that a section 664.6 motion "cannot be made in a separate action to enter judgment pursuant to the terms of a settlement in a prior action." (Viejo Bancorp, at p. 208.) In so concluding, the court considered the issue one of subject matter jurisdiction. It observed that "[b]y its very terms, section 664.6 is limited to settlements reached in pending litigation" and that the statute "requires an action to be pending when the parties enter into the agreement." (Id. at p. 206.)
In Kirby, the plaintiff filed a wrongful death action. The defendant asserted in its answer that a settlement had been reached before litigation had even begun. The defendant moved to enforce that settlement under section 664.6 and the trial court granted the motion, dismissing the action. (Kirby, supra, 78 Cal.App.4th at pp. 842-843.) The Court of Appeal reversed, concluding that the summary procedures of section 664.6 do not apply to a settlement agreement made before litigation was actually pending. The court reasoned that the statutory language "refers to settlements by `parties to pending litigation' who `stipulate . . . for settlement of the case . . .'" and that this language is clear and unambiguous in its requirement that parties be litigants who settle while litigation is pending. (78 Cal.App.4th at pp. 844-845.) The court further observed that the statute's legislative history reinforced its requirement that litigation be pending, as the problem the Legislature had targeted was that of parties to a settlement reached at a pretrial conference changing their minds after the case had been taken off calendara problem that does not exist outside the context of pending litigation. (Id. at p. 845.)
In Housing Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106 [109 Cal.Rptr.2d 497] (Housing Group), parties to an insurance dispute participated in private mediation and reached a settlement. No lawsuit was pending *170 at the time. The parties stipulated to the appointment of a judicial referee or judge pro tem in an attempt to secure that their settlement was enforceable under section 664.6. They filed a stipulated petition in the superior court for the appointment of a judge pro tem to preside over the entry of a settlement. (Housing Group, at p. 1107.) The court appointed a judge pro tem and the parties recorded a settlement at a hearing before him. One of the parties later moved in the superior court under section 664.6 to enforce the settlement. The court granted the motion and entered a partial judgment. (Housing Group, at p. 1107.) The Court of Appeal reversed, concluding that the superior court lacked subject matter jurisdiction, despite the parties' attempt to confer it by stipulation, because they did not seek the reference in litigation pending before the court. No complaint alleging a dispute had ever been filed, and the section authorizing the reference, section 638, did not by itself confer subject matter jurisdiction to render the settlement enforceable by the court under section 664.6. (Housing Group, at pp. 1108, 1113-1115.)
These three cases all address the "pending litigation" requirement of the statute by narrowly construing this term on its face, which is a starting point in the construction of the statute. But none of them presents the circumstance in which section 664.6 was invoked after a judgment had already been entered. In re Marriage of Armato (2001) 88 Cal.App.4th 1030 [106 Cal.Rptr.2d 395] (Armato) is the only published case to address section 664.6's application to a postjudgment circumstance. There, the parties' marriage was dissolved by a judgment of dissolution that included provisions relating to the husband's payment of monthly child support. The judgment also provided that the court would retain continuing jurisdiction to effectuate the terms of the judgment and that no separate proceedings would be required in order to do so. (Armato, at pp. 1032-1033.) At one point, pursuant to motion, the court modified child support. Later, the parties on their own agreed to another modification by which the husband would pay higher support and they reduced their agreement to a writing that both of them signed. The husband made the higher payments for some time but then reduced his payments to the old amount based on his assertion that due to other circumstances between the parties, he could no longer afford the higher payments. (Id. at pp. 1033-1034.) The wife brought a motion under section 664.6 to enforce their postdissolution-judgment written agreement. The trial court granted the motion, concluding that the husband and wife were parties to pending litigation as required by the statute "`inasmuch as there was continuing jurisdiction to modify a support order in a family law case.'" (88 Cal.App.4th at p. 1034.)
Faced with the question whether the meaning of "pending litigation" as used in section 664.6 applies to postdissolution child support matters, the Court of Appeal first noted as important that the judgment in that case itself provided for continuing jurisdiction to effectuate it and specifically provided *171 that no separate proceedings would be required in order to do so. (Armato, supra, 88 Cal.App.4th at p. 1035.) Then the court analyzed section 664.6 in the family law context, observing that the statute was enacted to further legislative policies shared with specific family law provisions concerning child support modification, particularly the shared policy for simple and expedited proceedings. (Armato, at p. 1036.) The court emphasized the public policies that place "`a high priority on enforcement of child support awards'" and the ability of family courts to retain jurisdiction to modify and enforce such awards following a final decree of dissolution, noting that these policies preserve access to the courts and to "`modification and enforcement mechanisms'" that promote "`"flexibility in the administration of judgments which will affect the lives of the parties far into the future, especially after very lengthy marriages."'" (Id. at pp. 1036-1037, italics omitted.) The court further noted the 1996 legislative direction to the Judicial Council to adopt rules of court and forms for a simplified method to modify support orders and other legislative action to streamline and make efficient the unique matter of child support modification and to decrease the need for litigation in this area. (Id. at p. 1037; see, e.g., Fam. Code, §§ 4053, subds. (a), (j), (l), 4050-4076, 3901, subd. (b), 3660-3668.)
The Armato court went on to analyze the meaning of "pending" in the context of family law, observing that in that specific and unique context, as distinct from ordinary civil actions, a dissolution action remains pending after entry of judgment, particularly for purposes of child support modification. (Armato, supra, 88 Cal.App.4th at pp. 1045-1047; see Lerner v. Superior Court (1952) 38 Cal.2d 676, 685 [242 P.2d 321] [many diverse proceedings grow out of a divorce action and arise after entry of the final decree]; Lamborn v. Lamborn (1923) 190 Cal. 794, 795-796 [214 P. 862] [dissolution action remained pending as to child support issues].) Further, the court observed, section 1049, which provides that "[a]n action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed . . .," does not apply to child support proceedings. (Armato, supra, 88 Cal.App.4th at p. 1047.)
Based on all of these considerations, the Armato court concluded that for purposes of section 664.6, "`litigation' was `pending' . . . when [the parties] executed the letter agreement modifying child support" such that the statute could be used, even postdissolution judgment, to enforce the agreement. (Armato, supra, 88 Cal.App.4th at p. 1047.)
*172 (3) Notwithstanding Armato, we hold that section 664.6, by its plain and unambiguous terms, does not apply in an ordinary civil action after a judgmentunrelated to the alleged settlement and therefore containing no provision for continuing jurisdiction to enforce ithas been entered and has become final in the sense that the time for appeal has passed. We so conclude because at that point, the litigation is no longer "pending" as used in the statute. To hold otherwise, out of perceived fairness or for efficiency's sake, even recognizing the established policy of promoting settlement, would do violence to the statutory language. The statute's sole remedyentry of judgment pursuant to the terms of an agreed settlementreinforces our conclusion as in this situation, final judgment in the action has already been entered and the one-final-judgment rule precludes entry of a second judgment.[9] Section 1049defining when an action is pending and limiting that state to the point at which the time for appeal from the judgment has passedfurther supports our conclusion. And although Armato was also decided in a postjudgment context and held that section 664.6 could be used to enforce an agreement concerning modification of child support, that holding was unique to the family law context (Housing Group, supra, 90 Cal.App.4th at pp. 1112-1113) and as we read it, to the specific context of child support modifications. Moreover, the distinctions the Armato court made between ordinary civil actions, like the one here, and postdissolution child-support-modification proceedings for purposes of when an action is "pending" make the result in that case not inconsistent with our holding.
(4) In supplemental briefing, Mueller likens this case to one in which a partial dismissal had been filed before the section 664.6 motion such that part of the action remained pending before the court, which was thus held to be not lacking subject matter jurisdiction to enforce a settlement under section 664.6. (See Casa de Valley View Owner's Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1191-1192 [213 Cal.Rptr. 790] (Casa de Valley View).) But here, we are not dealing with a partial dismissal. And a judgment had already *173 been entered and become final at the time of the alleged settlement. In discussing the question of the presence or lack of the trial court's subject matter jurisdiction, the appellate court in Casa de Valley View acknowledged that "`where a tribunal has jurisdiction over the parties and the subject matter, the jurisdiction continues until a final judgment is entered.' [Citations.]" (Casa de Valley View, supra, 167 Cal.App.3d at p. 1191, italics added.) Thus, rather than supporting the application of section 664.6 here, Casa de Valley View instead buttresses our conclusion that the statute does not apply as the trial court was without subject matter jurisdiction to enforce a settlement made after a judgment in the action had already been entered and had become final, by entry of another judgment.
(5) Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 22-24 [269 Cal.Rptr. 332], also cited by Mueller, further supports the conclusion that section 664.6 does not furnish subject matter jurisdiction to enforce a settlement after a judgment has been entered and become final. In that case, a judgment of dismissal had been entered as part of a settlement. The Court of Appeal held that in order to later enforce the payment provisions of the settlement under section 664.6, the party had to first obtain relief from the judgment of dismissal under section 473, thus restoring subject matter jurisdiction to the trial court so it could proceed to apply section 664.6. (220 Cal.App.3d at pp. 22-24.) The court was without subject matter jurisdiction to apply section 664.6 unless the judgment of dismissal was properly vacated under grounds provided at section 473mistake, surprise, or excusable neglect.
(6) Mueller also attempts to analogize application of section 664.6 to case law concerning a trial court's retention of in personam jurisdiction over a defendant to enforce an existing judgment (see, e.g., Goldman v. Simpson (2008) 160 Cal.App.4th 255, 263-264 [72 Cal.Rptr.3d 729]) and to various statutes generally governing the renewal, enforcement, and satisfaction of judgments. (See, e.g., §§ 683.120, 683.170, subd. (b), 699.040, subd. (a), 701.520, subds. (c), (d), 724.030-724.050, 724.080.) But we are not dealing with the concept of in personam jurisdiction. And for purposes of subject matter jurisdiction, the renewal, enforcement, and satisfaction of an existing judgment are entirely distinct matters from an attempt to enforce a settlement under section 664.6 by entry of a judgment pursuant to the settlement. A court of course retains subject matter jurisdiction to renew, enforce, or compel satisfaction of an existing judgment by the statutory procedures available for these purposes. (See, e.g., §§ 680.010-720.800, 724.010-724.260.) But these statutory mechanisms are unrelated to the enforcement of an alleged settlement by entry of a new judgment, which is *174 section 664.6's only remedy. By resort to section 664.6, Mueller was not attempting to renew, enforce, or even compel satisfaction of the existing judgment. He was instead attempting to supplant it by in effect replacing it with another judgment, amounting to the substitution of a new and lesser obligation in its place. Thus, authorities concerning the renewal, enforcement, and satisfaction of an existing judgment offer nothing to promote or facilitate application of section 664.6 here.
(7) Indeed, statutory authority concerning the satisfaction of judgments only confirms that a judgment debtor, like Mueller, who wishes to enforce an alleged agreement to satisfy a judgment, whether for full payment or something less than that, is not without a remedy. But it is not section 664.6. Section 724.050, subdivision (d), specifically provides a noticed motion procedure to compel a judgment creditor to furnish an acknowledgement of satisfaction of judgment through which a trial court may determine whether an agreement for full satisfaction has been reached. The statutory scheme for satisfaction of judgment (§ 724.010 et seq.), which includes this section, has been characterized as providing "only a single method for a judgment debtor to obtain an order for entry of satisfaction of judgment (other than in the case of a writ of execution) in those cases in which the judgment creditor refuses or fails to file or deliver a signed acknowledgment of satisfaction. . . . There is no other procedure [than section 724.050] authorizing a noticed motion for entry of satisfaction of judgment." (Quintana v. Gibson (2003) 113 Cal.App.4th 89, 94 [5 Cal.Rptr.3d 898]; see also Wade v. Schrader (2008) 168 Cal.App.4th 1039, 1048 [85 Cal.Rptr.3d 865] [statutory procedure for compelling satisfaction of judgment may be used to balance offsetting judgments].) Mueller's alleged settlement agreement is just the kind of agreement for which section 724.050, subdivision (d) is availableto compel the judgment creditor to furnish an acknowledgment of satisfaction of judgment based on an agreement to satisfy the judgment by payment for less than the full face amount.
(8) Thus, section 664.6 was not an authorized or available procedure for Mueller to use to enforce the alleged settlement. After entry and finality of the judgment, the action no longer constituted "pending litigation" as used in the statute. Moreover, the judgment already having been entered and become final, section 664.6, with its sole remedy of entry of judgment pursuant to the settlement, was not available to enforce the alleged settlement by entry of a second judgment. That would have violated the one-final-judgment rule. The trial court therefore properly denied Mueller's motion, albeit for a different reasonthe lack of a binding contract.[10]
*175 DISPOSITION
The order denying Mueller's section 664.6 motion is affirmed.
Rushing, P.J., and Elia, J., concurred.
NOTES
[1] Further statutory references are to the Code of Civil Procedure unless otherwise specified.
[2] The judgment also included injunctive relief not pertinent here.
[3] Walton later asserted in a declaration that he had also expressly rejected this offer and we assume this asserted rejection was oral.
[4] Walton apparently engaged counsel to assist in judgment-enforcement efforts.
[5] According to the superior court's docket, no signed written order denying the motion was ever entered.
[6] This is not to say that we sanction departing from the general rule that ordinarily, a motion denying a section 664.6 motion is not appealable.
[7] We therefore requested and received supplemental briefing on the point.
[8] The statute also provides that "[i]f requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." (§ 664.6.) This provision is not pertinent to our analysis in this case because the existing judgment, which was not entered pursuant to a settlement, provided no such thing.
[9] Section 904.1, which codifies the general list of appealable judgments and orders, also effectively codifies the common law one-final-judgment rule. Under this rule, an appeal lies only from a final judgment that terminates the trial court proceedings by completely disposing of the matter in controversy. (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 [63 Cal.Rptr.2d 74, 935 P.2d 781]; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697 [107 Cal.Rptr.2d 149, 23 P.3d 43] (Griset); Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 803 [70 Cal.Rptr.3d 434].) A judgment is "the final determination of the rights of the parties in an action or proceeding." (§ 577.) As such, there can be but one as the policy behind the one-final-judgment rule is the avoidance of piecemeal disposition of an action. (Griset, supra, 25 Cal.4th at p. 697; Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 734 [85 Cal.Rptr. 281] ["there ordinarily cannot be multiple final judgments in a single action"].)
[10] Having reached this conclusion, we need not address whether the trial court was correct in its determination that the parties had not reached a settlement agreement.
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191 F.3d 88 (2nd Cir. 1999)
UNITED STATES OF AMERICA, Appellee,v.UVAL TUBOL, aka Alon Yasar, Defendant-Appellant.
Docket No. 98-1519August Term, 1998
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
Argued: April 26, 1999Decided: August 19, 1999
Appeal from a judgment entered in the United States District Court for the Eastern District of New York (David G. Trager, Judge) convicting defendant of violating the Hobbs Act by robbing an appliance store, possessing a firearm during the appliance store robbery, robbing a bank, and being an illegal alien in possession of a firearm.
Affirmed in part, vacated in part, and remanded. [Copyrighted Material Omitted][Copyrighted Material Omitted]
CHRISTOPHER J. GUNTHER, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney, Eastern District of New York; Peter A. Norling, on the brief), for Appellee.
RICHARD J. SHANLEY, Brooklyn, New York, for Defendant-Appellant.
Before: WINTER, Chief Judge, and MINER and POOLER, Circuit Judges.
POOLER, Circuit Judges.
1
Defendant Uval Tubol appeals his convictions for violating the Hobbs Act, 18 U.S.C. § 1951, by robbing an appliance store; possession of a firearm; and bank robbery. A jury in the United States District Court for the Eastern District of New York convicted Tubol of (1) robbing the appliance store, (2) using a firearm in connection with the appliance store robbery, (3) robbing a bank, and (4) being an illegal alien in possession of a firearm. Tubol concedes his guilt on the last charge but argues that the jury lacked sufficient evidence to convict on both of the robbery counts and on the gun count associated with the appliance store robbery. Tubol also contends that the district court erred by joining the appliance store robbery, bank robbery, and illegal alien in possession of a firearm charges for trial. Finally, he argues that the court erred by allowing the government to introduce evidence that Tubol (1) admitted participation in an unrelated Israeli bombing and (2) congratulated police officers upon his arrest. We find that the jury had sufficient evidence to sustain Tubol's conviction on all counts but agree with Tubol that the robbery counts were insufficiently similar to justify joinder and that the district court should not have allowed testimony concerning Tubol's participation in an unrelated bombing. Because these errors were not harmless, we vacate Tubol's conviction on the challenged counts and remand for new trials.
BACKGROUND
2
In an indictment returned June 3, 1997, a grand jury sitting in the Eastern District of New York charged that on March 31, 1995, Tubol robbed the First Bank of the Americas located in Flushing, New York, and thereby violated 18 U.S.C. § 2113(a)(2). On September 18, 1997, the grand jury returned a superseding indictment that additionally charged Tubol with violating the Hobbs Act by robbing Kitchen Rejuvenation, an appliance store also located in Flushing, on March 15, 1995. A second superseding indictment issued October 9, 1997, charged Tubol with committing the bank robbery and the appliance store robbery and using a gun in the appliance store robbery in violation of 18 U.S.C. § 924(c)(1). On December 19, 1997, the grand jury issued a third superseding indictment. This indictment additionally charged that on April 28, 1995, Tubol, an illegal alien, knowingly and intentionally possessed a Baretta 9 mm. semi-automatic pistol and ammunition in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2).
3
After Tubol received copies of witness statements from the government, he argued that the bank robbery charge should be tried separately from both of the appliance store robbery charges and the illegal alien gun possession charge.1 Tubol offered two reasons for severance: (1) his chosen attorney would have to testify during trial of the appliance store robbery count2 and (2) the offenses did not qualify for joinder under Fed. R. Crim. Proc. 8. Tubol argued that joinder was improper because the charged offenses were not sufficiently similar. He pointed out that the witness statements indicated the bank robber dressed as a Hasidic Jew and carried a fake bomb while the appliance store robber did not wear Hasidic dress, did not carry a bomb, fake or otherwise, and did carry a gun. After some hesitation, the district court granted Tubol's severance motion and determined to try the bank robbery charge first.
4
The court also addressed several evidentiary issues before trial began. Over Tubol's objections, the court determined that the government could offer evidence that Tubol congratulated the officers who caught him and said that six different police agencies were looking for him. The court also allowed the government to offer Tubol's admission that -- for a fee of $25,000 -- he planted a bomb in a house in Israel a month before the bank robbery. The court, however, declined to allow the government to prove Tubol's possession of a gun at the time of his arrest because no witness claimed Tubol used a gun in the bank robbery.
5
Tubol's first trial ended in a mistrial after the jury informed the court that it was unable to reach a verdict.
6
Before Tubol's scheduled second trial on the bank robbery charges, the government again asked to offer evidence of Tubol's possession of a gun when he was arrested and of his use of a gun in the appliance store robbery. In support of this request, the government asserted that an additional witness would testify that Tubol had a black handgun in his waistband during the bank robbery. The district court indicated that it would allow the government to prove that Tubol also had a black handgun in his waistband at the time of his arrest. Tubol's attorney, whose conflict had been resolved, then offered to withdraw his objection to joinder of all counts provided that the government did not offer evidence of the Israeli bombing admission or Tubol's additional admission that he dumped guns in a river. The court ordered a joint trial on all counts but allowed the government to offer evidence concerning the Israeli bombing. The court also indicated that it would allow a police detective to testify that Tubol congratulated him but not to offer any additional detail about Tubol's statement. Defense counsel then said, "[o]f course, we have the objections we initially made. We're willing to work within the parameters of the court's ruling." The court responded, "[y]ou don't have much choice."
7
At Tubol's second trial, the government offered the disputed evidence along with other evidence of the charged crimes. Jonathan Weiner, the appliance store proprietor, testified concerning the robbery of his store substantially as follows. A man whom Weiner described as "Israeli, an Arab," came into the brightly lit store about five or six o'clock p.m. and spoke with Weiner in Hebrew for about half an hour. The conversation ended abruptly when the Israeli threatened Weiner with a gun. When Weiner tried to push a silent alarm, the robber slapped him. Weiner then gave the robber his wallet, and the robber left the store.
8
Eight weeks later Weiner selected Tubol's picture from a photo array. However, some time after identifying Tubol from the photo array, Weiner viewed a lineup in which Tubol participated and identified a different individual. Weiner explained that he actually didn't recognize anyone in the lineup and that he had difficulty making an identification because a clear glass partition separated him from the lineup. At trial, Weiner could not recall the robber's build or his face but testified that he could still recognize Tubol as the robber from the photo array as well as a photo of the lineup. Weiner also testified that a gun taken from Tubol at the time of his arrest resembled the gun that the robber used to threaten Weiner. No other physical evidence linked Tubol to the appliance store robbery.
9
Three eyewitnesses testified concerning the bank robbery. John Nolasco, the teller that Tubol allegedly robbed, testified that the robber spoke in easily understood English and his voice was not unusual. Nolasco also indicated that the robber had a gun. However, the government stipulated that Nolasco did not mention a gun when law enforcement officers first interviewed him. Nolasco did tell investigating officers that the robber was approximately six foot two and had crooked lower teeth. Tubol is five foot ten and displayed his teeth, which he claims are straight, to the jury. Nolasco did not identify Tubol as the robber at trial but did testify that about a month before trial he looked at a six-person photo array and eliminated all of the pictures except Tubol's and another person's.
10
However, Nolasco did identify the hold-up note, which said:
11
I got a bomb and a gun, put all the money in the bag and if I see any cops everybody dies. After you give me the money get on the floor. You better No cops or else
12
The note is signed with an idiosyncratic scrawl that closely resembles the signature Tubol used to acknowledge receipt of Miranda warnings when he was arrested. However, the government did not offer expert testimony that Tubol wrote the holdup note. The bomb referred to in the note turned out to be a hoax, composed of road flares, wires, and an alarm clock.
13
Jenny Jaches, the bank's assistant branch manager, testified that she got a quick look at the robber as he entered the bank. The robber said "good morning" to Jaches, and she saw his face. Later Jaches looked up two or three times from her work and observed the robber at the teller window. She noticed that the robber was dressed as a Hasidic Jew and wore a hat with a round brim and glasses but could not recall whether he had any facial hair. Like Nolasco, Jaches said the robber was tall, at least six foot one, and she noticed no accent. In contrast, the three law enforcement officers who interrogated Tubol noted that he did have an accent. After the robbery, Jaches looked at a photo array and picked out Tubol as resembling the man who robbed the bank. At trial, Jaches testified that she could not say with any degree of certainty that the man she selected from the photo array robbed the bank.
14
Kleber Yepez, another bank employee, identified Tubol as the robber at trial. Yepez saw the robber for only a few seconds in the bank but testified that he had seen the robber earlier at a Spanish cafeteria where he had a longer opportunity to observe him. Yepez did not inform investigating officers of this prior encounter and testified that he later recalled it in a flashback.
15
Yepez also viewed a photo array and, like Jaches, said that Tubol resembled the bank robber. Prior to seeing the array, Yepez told investigators there was "no way that he would remember or be able to recognize the Hasidic man."
16
In addition to introducing the holdup note, the government introduced surveillance photos taken at the time of the robbery. Although the government concedes that the photos did not clearly show the robber's face, it argues that the jury could have found that Tubol's height and build and the shape of his face resembled characteristics of the robber shown in the film. No scientific evidence linked Tubol to the bank robbery.
17
After the government rested, Tubol moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29. The court denied this motion. The defense called no witnesses, and after summations and charge, the court submitted the matter to the jury. On the second day of deliberation, the jury sent a note to the court indicating it could not come to an agreement on the bank robbery, appliance store robbery, and March 15 gun possession charges. Over defense objection, the court gave the jury an Allen charge.3 The jury then returned a verdict of guilty on all four counts.
DISCUSSION
I. Joinder
Fed. R. Crim P. 8(a) provides that:
18
Two or more offenses may be charged in the same indictment or information . . . if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
19
The court may also order that two or more indictments be tried together if the counts they contain could have been joined in a single indictment. See Fed. R. Crim. P. 13. Even where the government properly joins offenses, the court may order severance "[i]f it appears that a defendant or the government is prejudiced." Fed. R. Crim. P. 14. Here, the district court severed the bank robbery count from the appliance robbery and gun counts prior to the first trial but then decided to rejoin them prior to the second trial.
20
We review the propriety of joinder de novo as a question of law. See United States v. Uccio, 917 F.2d 80, 87 (2d Cir. 1990); United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980). If Rule 8 did not permit joinder, we must reverse Tubol's convictions unless the error was harmless. See Werner, 620 F.2d at 926.
21
The government first argues that Tubol waived his objection to joinder by agreeing to a joint trial provided that the court exclude all proof of his admissions concerning the Israeli bombing and an incident in which Tubol allegedly dumped guns in a river. However, Tubol clearly conditioned his agreement to joinder on exclusion of the admissions. The government's understanding of the condition is reflected in the prosecutor's statement that "[h]e seems to say that he wants the statement about the bomb out, as a prelude to doing this." Because the district court allowed proof of Tubol's admission that he placed a bomb in a house in Israel, Tubol did not waive his objection. Although the government argues that Tubol again acquiesced to joinder when his counsel said that he was "willing to work within the parameters of the court's ruling[s]," Tubol, as the district court correctly noted, had no choice but to abide by the court's rulings.
22
The government also argues that joinder was proper because the charged offenses were of the same or similar character and constituted part of a common pattern of conduct. In support of this argument, the government emphasizes that all three offenses were committed in close geographical proximity within a six-week period and all involved the use of a gun. Tubol, of course, focuses on the differences. The bank robber dressed as a Hasidic Jew, spoke in English with no noticeable accent, and although he claimed to have a gun and a bomb in his holdup note, did not brandish a weapon. The bank robber also acted with dispatch. On the other hand, the appliance store robber acted at a leisurely pace, pulled a gun on his victim, and spoke in Hebrew. We have allowed the joinder of separate robbery counts when they occurred in close geographical or temporal proximity and the perpetrator used the same modus operandi in each. See United States v. Di Giovanni, 544 F.2d 642, 644 (2d Cir. 1976) (upholding joinder of bank robberies where they were committed within six days of each other and the modus operandi was the same in both); see also United States v. Chambers, 964 F.2d 1250, 1250-51 (1st Cir. 1992) (upholding joinder of six robberies where each "involved a similar institutional victim - a federally insured bank"; all occurred in a limited period of time in a limited area; and each had a similar modus operandi "with the robber always wearing a hat or cap, always threatening violence with a bomb or gun, and always giving the teller a handwritten note demanding money in basically the same language"). Tubol allegedly used distinctly different methods in the two robberies for which he was convicted. Moreover, he targeted distinctly different victims - a bank and a small store. In the face of these differences, the use of a gun and proximity in time and place do not sufficiently support joinder.
23
However, the court did not err by joining Count Four, the gun possession charge related to Tubol's alien status, with either of the robbery charges. Joinder is proper where the same evidence will support both of the joined counts. See United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991). Because eyewitnesses testified that the perpetrator of both robberies carried a gun, the government was entitled to offer evidence that Tubol had a gun when arrested to show that he had the means to commit the robberies. See United States v. Robinson, 560 F.2d 507, 509, 513 (2d Cir. 1977) (en banc). Therefore, the gun count could properly have been joined to either of the robbery counts.
II. The Israeli Bombing Incident
Fed. R. Evid. 404(b) provides that:
24
Evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
25
Pursuant to this rule, the district court allowed a government witness to testify that Tubol admitted that (1) he planted a bomb in an Israeli residence a few weeks before the charged robberies, (2) the bomb caused no injuries, and (3) he received $25,000 for his actions. The court reasoned that the prior incident was admissible to show identity because the defendant used a similar modus operandi in both instances, that is, the use of a bomb or a threat of a bomb to extort money. The court also found that the statement tended to prove that Tubol knew how to rig a bomb. In its charge, the district court instructed the jury that Tubol's admission could be considered only on the issue of identity.
26
We review a district court's admission of similar acts evidence for abuse of discretion. See United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998). The evidence is admissible if it "is relevant to an issue at trial other than the defendant's character, and if the probative value of the evidence is not substantially outweighed by the risk of unfair prejudice." Id. We have allowed proof of prior bad acts to show identity where the defendant used very similar methods in the charged crime and the prior bad act. See, e.g., United States v. Mills, 895 F.2d 897, 907-08 (2d Cir. 1990) (indicating that district court permissibly could have allowed proof that process used to make counterfeit bills "was a unique one, that . . . had been encountered only once before in the experience of the Secret Service, and that on that prior occasion the perpetrator was [the defendant]"); United States v. Sliker, 751 F.2d 477, 486-87 (2d Cir. 1984) (allowing proof of similar fraud where "[b]oth schemes depended upon the use of phony bank checks issued by the same non-existent offshore bank as well as on prearrangement with an 'officer' of the bank to confirm the validity of the checks" despite the fact that victim of one scheme was a bank and victim of the other was a diamond seller); United States v. Danzey, 594 F.2d 905, 911 (2d Cir. 1979) (allowing proof of prior robberies where appellant conceded he had a trademark method of robbing a bank and methodologies were very similar). If Tubol's admission is credited, someone paid him to plant a bomb in a residence in Israel. In the bank robbery, he gave the bank teller a note claiming to have a bomb but actually had a hoax bomb. There is no proof that the hoax bomb and the Israeli bomb shared any characteristics beyond the word "bomb" or that Tubol used them in similar ways. Because the Israeli bombing and the charged crimes in this case were not similar in the manner contemplated by Mills, Sliker, and Danzey, the relevance of Tubol's admission was slight at best.
27
The government argues, in the alternative, that Tubol's knowledge of how to build a real bomb supports the conclusion that he knew how to build a hoax bomb. However, it seems unlikely that constructing a fake bomb of road flares, wires, and an alarm clock requires any unusual degree of technical knowledge. Therefore, relevance is remote on this theory as well. Whatever limited relevance Tubol's admission had was substantially outweighed by the extraordinary prejudice of testimony indicating that Tubol planted a bomb. This testimony goes directly and principally to character, the very evil that Rule 404 attempts to prevent. The jury fairly could have understood the detective's testimony to mean that Tubol planted a real bomb in a residence, and, in this decade, Americans have cause to consider bombers to be particularly evil people.
III. The Congratulatory Remark
28
Tubol also alleges that the district court erred by allowing a government witness to testify that Tubol said "congratulations" when he was arrested. The district court admitted this evidence as consciousness of guilt. Tubol contends that the court erred because (1) there was an insufficient nexus to the crimes with which he was charged to constitute evidence of consciousness of guilt; (2) the testimony was unreliable because the witness failed to memorialize Tubol's alleged remark in his official records and changed his account over time; and (3 ) the district court improperly cropped the remark.
29
Tubol's statement to Sergeant Bill Nevins was first reported in a New York City newspaper as follows: "He congratulated us on catching him . . . [h]e said six police agencies were looking for him and only we've been successful." At Tubol's first trial, Nevins testified that Tubol "[c]ongratulated [him] as the best detective in the world because six countries are looking for [Tubol]." To minimize any prejudice to Tubol, the district court ruled before the second trial that Nevins could testify only that Tubol congratulated him. Nevins followed the court's instructions.
30
We perceive no abuse of discretion. Offering congratulations to an arresting officer is some evidence of consciousness of guilt, and any resulting prejudice to Tubol did not outweigh the relevance of his statement. Nor did the district court err by cropping the remark. Tubol could have elicited the full remark on cross-examination had he wished. Finally, the witness' failure to record the remark and his offer of various versions did not render the remark inadmissible. Again, Tubol was free to cross-examine Nevins and to argue to the jury that his account should be given little weight.
IV. Harmless Error
31
We have concluded that the district court erred by joining the bank robbery count to the two counts (robbery and possession of a weapon) associated with the appliance store robbery and by allowing the government to offer Tubol's admission that he planted a bomb in Israel. Both these errors are subject to harmless error analysis. See United States v. Lane, 474 U.S. 438, 449 (1986) (joinder); United States v. Colombo, 909 F.2d 711, 713 (2d Cir. 1990) (evidentiary error). We must disregard "[a]ny error, defect, irregularity or variance which does not affect substantial rights." Fed. R. Crim. P. 52(a). We "reverse only if the government is unable to demonstrate that the error was harmless, that is, that the error did not affect the defendant's substantial rights or influence the jury's verdict." United States v. Salameh, 152 F.3d 88, 142 (2d Cir. 1998), cert. denied, 119 S. Ct. 885, 1273, 1274, 1345 (1999). However, we must consider the combined potential effect of the erroneous joinder and the evidentiary error on the jury. See Ayala v. Leonardo, 20 F.3d 83, 92 (2d Cir. 1994) (improperly admitted testimony and improperly redacted statement excluded from evidence). "The strength of the government's case against the defendant is probably the most critical factor in determining whether an error affected the verdict." Colombo, 909 F.2d at 714.
32
We consider the counts of conviction separately for purpose of our harmless error analysis. Tubol conceded his guilt on Count Four, which charged him with being an illegal alien in possession of a weapon. Therefore, any error was clearly harmless on this count.
33
Counts One and Two concern the appliance store robbery. The evidence supporting both counts is limited to the testimony of the store's proprietor and the fact that Tubol had a gun similar in appearance to the one carried by the robber. The proprietor's identification of Tubol was undermined by his inability to make an in-court identification and his selection of a person other than Tubol from the lineup. Joinder allowed the jury to hear that other witnesses had identified Tubol as the perpetrator of an unrelated robbery. That prejudice was compounded by the evidence that Tubol admitted to a bombing in Israel. Given the relative weakness of the evidence linking Tubol to the crime, we believe that the substantial evidence of other crimes could have infected the jury's verdict.
34
Count Three is the bank robbery. The government's proof on this count is stronger. Two witnesses identified Tubol at one time or another, and the signature on the holdup note looks like Tubol's signature on his acknowledgment of receipt of Miranda warnings. However, each of the identification witnesses' testimony was impeached, and the government failed to establish through expert testimony that Tubol signed the holdup note. Moreover, a prior jury that heard only the bank robbery count was unable to reach a verdict. Finally, the jury that convicted Tubol first told the court that it was unable to reach a verdict on this count and convicted him only after receiving an Allen charge. Based on these circumstances, we are not persuaded that the joinder and evidentiary errors, considered cumulatively, were harmless.
V. Sufficiency of the Evidence
35
Although we believe the joinder and evidentiary errors may have infected the jury's verdict and therefore order new trials, we disagree with Tubol's contention that because the jury lacked sufficient evidence to convict him on the first three counts of the indictment, we should direct the district court to enter a judgment of acquittal. See Fed. R. Crim. P. 29(a). "[A] defendant who challenges the sufficiency of the evidence to support his conviction after a jury verdict bears a heavy burden." United States v. Maher, 108 F.3d 1513, 1530 (2d Cir. 1997). We must "view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor." Id. (internal quotation marks and citation omitted). In addition, the court must view the evidence "not in isolation but in conjunction." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (quoting United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir. 1969)). After assessing the evidence, the court must reject the defendant's challenge if "any rational trier of fact could have found the essential elements of the crime." Maher, 108 F.3d at 1530 (internal quotation marks omitted).
36
If the jury credited all of the eye witness testimony against Tubol and drew all inferences from the testimony and the other evidence in favor of the government, it properly could have found Tubol guilty beyond a reasonable doubt on each of the contested counts. In light of the heavier burden Tubol faces on a motion for judgment of acquittal, his sufficiency challenge fails despite the fact that joinder and evidentiary errors require new trials.
CONCLUSION
37
For the reasons we have discussed, we affirm Tubol's conviction on the fourth count of the indictment. However, we reverse his conviction on the first three counts of the indictment and remand to the district court for new trials.
Notes:
1
Tubol initially requested only that the court sever the April 28, 1995, gun possession charge from the earlier charges. He expanded his request during oral argument in the district court.
2
Tubol's attorney viewed the lineup procedure for the appliance store robbery, and his memory of the lineup differed from that of potential government witnesses.
3
See Allen v. United States, 164 U.S. 492, 501-02 (1896).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-7538
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IRA LEE DICKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, District Judge.
(CR-91-36, CA-97-2809-4-12)
Submitted: April 27, 2001 Decided: May 15, 2001
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ira Lee Dickerson, Appellant Pro Se. Beth Drake, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ira Lee Dickerson seeks to appeal the district court’s order
dismissing as untimely his motion filed under 28 U.S.C.A. § 2255
(West Supp. 2000). We have reviewed the record and the district
court’s opinion and find no reversible error. With respect to
Dickerson’s newly-presented claim on appeal that he was sentenced
in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), we
recently held in United States v. Sanders, F.3d , 2001 WL
369719 (4th Cir. Apr. 13, 2001) (No. 00-6281), that the new rule
announced in Apprendi is not retroactively applicable to cases on
collateral review. Accordingly, we grant Dickerson’s motion to
amend his brief, but deny a certificate of appealability and dis-
miss the appeal on the reasoning of the district court. United
States v. Dickerson, Nos. CR-91-36; CA-97-2809-4-12 (D.S.C. filed
Sept. 27, 2000; entered Sept. 28, 2000). We further deny Dicker-
son’s motion for the appointment of counsel. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2
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2016 IL App (1st) 142500
No. 1-14-2500
Fifth Division
Modified opinion filed March 11, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
In re ESTATE OF ALBERT LELLO, Deceased )
) Appeal from the Circuit Court
(Lawrence Webster Harris II, Virginia M. Harris, ) of Cook County.
Jeanette Harris, and Marjorie Anne James, )
Petitioners-Appellants, ) No. 12 P 6237
)
v. ) The Honorable
) John J. Fleming,
Luzminda R. Lello, Ex’r of the Estate of Albert Lello, ) Judge Presiding.
Deceased; and Rita Sapko, )
Respondents-Appellees). )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from the probate court’s denial of petitioners’ petition for
construction of decedent Albert Lello’s will upon a finding that the will was unambiguous.
Decedent left the entirety of his estate to two of his sisters and his wife, “to share and share
alike in equal shares or to the survivor or survivors of them.” One of the sisters predeceased
decedent, and upon decedent’s death, petitioners, who are the sister’s children, argued that
they were entitled to her share of decedent’s estate. The probate court disagreed, finding that
No. 1-14-2500
the will created a class gift that resulted in the deceased sister’s share being divided between
the two remaining named legatees. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 Decedent Albert Lello died on October 2, 2012, at age 88, and on October 26, 2012,
Luzminda Lello, decedent’s wife, filed a petition for probate of decedent’s June 25, 2005,
will. On November 13, 2012, the probate court admitted the will to probate and appointed
Luzminda as independent executor of the estate. On the same day, Luzminda filed an
affidavit of heirship stating that she was decedent’s wife and decedent had no children, either
from their marriage or from his former marriage; and the probate court entered an order
declaring Luzminda to be decedent’s only heir.
¶4 Decedent’s will was a three-page document, signed by decedent on June 25, 2005. 1 The
will contains two preamble paragraphs, the second of which provides:
“In making this Will, I have borne in mind the various members of my family and
have carefully considered all of my property, real, personal and mixed, wheresoever
situated, and have made what I consider the wisest and most just disposition of such
property, and it is my will and express intention that my said property be disposed of
only as hereinafter provided, upon such trusts and for such uses and for the benefit of
such persons as are hereinafter set forth, and such members of the family as are not
mentioned herein have not been overlooked, but have been intentionally omitted.”
The will then sets forth six paragraphs disposing of decedent’s property and naming
Luzminda as the executor of his estate. The fourth paragraph is the paragraph challenged on
appeal, and it provides in full:
1
The record reflects that decedent’s will was drafted by an attorney.
2
No. 1-14-2500
“FOURTH: After the payment of all my just debts, cost of administration, taxes
of every nature, if any, I hereby give, devise and bequeath my entire estate, be it real,
personal or mixed, wheresoever situated, of whatsoever kind or nature, of which I
may die seized or possessed, or to which I may be entitled to at the date of my death,
as follows:
To my sister, VIRGINIA HARRIS, to my sister, RITA SAPKO, and to my
wife, LUZMINDA R. LELLO, to share and share alike in equal shares or to the
survivor or survivors of them.”
The record reflects that decedent was one of 12 children, and that at the time of the will’s
execution, only Virginia, Rita, and one other sister (who was not named in decedent’s will)
remained living. The record also reflects that decedent had a number of nieces and nephews.
¶5 On May 7, 2013, petitioners, the four children of Virginia Harris, filed a petition for
construction of the will, alleging that they were persons who could be entitled to an interest
in decedent’s estate. The petition alleges that Virginia predeceased decedent and the probate
court was required to determine whether Virginia’s share of the estate passed to her heirs or
to Rita and Luzminda. Petitioners advocated for the former reading, arguing that petitioners,
Virginia, and decedent “had a good and close ongoing family relationship” and that “[f]or
many years [decedent] lived in the same building with his two (2) sisters and their families
and [decedent] treated all of his nieces and nephews equally as though they were his own
children.”
¶6 On May 9, 2013, Luzminda renounced any benefits afforded to her under the will and
chose to take her statutory share of the estate.
3
No. 1-14-2500
¶7 On June 13, 2013, Rita filed a motion to dismiss the petition for construction of the will
pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West
2012)), arguing that the petition was legally insufficient because petitioners’ interpretation of
the will was unsupported by Illinois law. Rita argued that decedent’s will created a class gift,
so upon Virginia’s death, her share passed to Rita and Luzminda, the surviving members of
the class.
¶8 On September 25, 2013, the probate court denied the motion to dismiss the petition for
construction of the will. On the same day, the probate court granted Luzminda leave to file an
amended petition for probate of decedent’s will, which updated the value of decedent’s estate
to approximately $8.2 million.
¶9 On March 21, 2014, Luzminda filed a motion to declare the will unambiguous as a matter
of law and Rita filed a memorandum of law in support of finding no ambiguity. Also on
March 21, 2014, petitioners filed a motion for summary judgment on their petition for
construction of the will, asking the probate court to find that the will was ambiguous as a
matter of law and that it should be construed such that petitioners were entitled to Virginia’s
share of decedent’s estate per stirpes.
¶ 10 On June 10, 2014, the probate court entered an order denying petitioners’ petition for
construction of the will, finding that “the will of Albert Lello, deceased, is hereby declared
UNAMBIGUOUS as a matter of law” (emphasis in original), and further finding that there
was “no latent or patent ambiguity.”
¶ 11 On July 10, 2014, petitioners filed a motion to reconsider, which was denied by the
probate court on July 24, 2014. In denying the motion to reconsider, the probate court made
it clear that its June 10 ruling was limited to a finding that there was no ambiguity within the
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No. 1-14-2500
four corners of the will. It expressly noted that it had not made any rulings considering
petitioners’ hypothetical arguments about the consequences of all three named legatees
predeceasing decedent.
¶ 12 This appeal follows.
¶ 13 ANALYSIS
¶ 14 On appeal, petitioners argue that the probate court erred in finding decedent’s will to be
unambiguous in creating a class gift to the named legatees. “The threshold question in a suit
to construe a will is whether or not construction of the will is necessary.” Coussee v. Estate
of Efston, 262 Ill. App. 3d 419, 423 (1994). “Only if a court finds that a will is ambiguous
will it entertain an action to construe a will.” Coussee, 262 Ill. App. 3d at 423. “[O]nce a
court determines that no ambiguity exists in a will, an action for construction should be
dismissed.” Coussee, 262 Ill. App. 3d at 424. In the case at bar, the probate court found that
decedent’s will was unambiguous and, therefore, dismissed petitioners’ petition for
construction of the will.
¶ 15 “In interpreting a will, the court’s sole purpose is to give effect to the intent of the
testator. [Citation.] The language of a will is the best proof of that intent. [Citations.]”
Coussee, 262 Ill. App. 3d at 423. “A will is ambiguous if the testator’s intent is unclear
because words in the will can be given more than one meaning or are in conflict.” Coussee,
262 Ill. App. 3d at 423. “An ambiguity can appear on the face of a will or when attempting to
implement a will’s provision.” Coussee, 262 Ill. App. 3d at 424. “For the threshold
determination of whether or not a will is ambiguous, the court may examine only the four
corners of the will and evidence brought by the parties which tends to show a latent
ambiguity.” Coussee, 262 Ill. App. 3d at 424.
5
No. 1-14-2500
¶ 16 In the case at bar, petitioners argue that paragraph four of decedent’s will is ambiguous
and that the proper interpretation is that decedent’s intent was for Virginia’s share of the
estate to pass to petitioners, not to Rita and Luzminda. As noted, the fourth paragraph of
decedent’s will provides in full:
“FOURTH: After the payment of all my just debts, cost of administration, taxes
of every nature, if any, I hereby give, devise and bequeath my entire estate, be it real,
personal or mixed, wheresoever situated, of whatsoever kind or nature, of which I
may die seized or possessed, or to which I may be entitled to at the date of my death,
as follows:
To my sister, VIRGINIA HARRIS, to my sister, RITA SAPKO, and to my
wife, LUZMINDA R. LELLO, to share and share alike in equal shares or to the
survivor or survivors of them.”
The question the probate court was asked to determine was the meaning of the phrase “to
share and share alike in equal shares or to the survivor or survivors of them.” We agree with
its conclusion that this language establishes a class gift, meaning that upon Virginia’s death,
Rita and Luzminda would be entitled to Virginia’s share of the estate. See 755 ILCS 5/4-
11(b) (West 2012) (“Unless the testator expressly provides otherwise in his will, *** (b) if a
legacy of a present or future interest is to a class and any member of the class dies before or
after the testator, the members of the class living when the legacy is to take effect in
possession or enjoyment take the share or shares which the deceased member would have
taken if he were then living[.]”); In re Estate of Kirchwehm, 211 Ill. App. 3d 1015, 1019
(1991) (“When the term ‘survivor’ is used in conjunction with a gift to a group or class of
beneficiaries as in this case, under the common law, that term is deemed to indicate the
6
No. 1-14-2500
intention of the testator that, should any member of the class predecease the testator, the
share of the deceased beneficiary goes to the remaining named members of the class, rather
than to the children or issue of the deceased beneficiary.”).
¶ 17 Our supreme court has stated that “[a] gift to a class is defined *** as a gift of an
aggregate sum to a body of persons uncertain in number at the time of the gift, to be
ascertained at a future time, and who are all to take in equal or some other definite
proportions, the share of each being dependent for its amount upon the ultimate number of
persons.” (Internal quotation marks omitted.) O’Connell v. Gaffney, 23 Ill. 2d 611, 616-17
(1962). “One of the essential features of a class gift is that the number of the persons who are
to take the property is to be ascertained at a future time. A gift to persons who are both
numbered and named in the language of gift is prima facie or by initial presumption a gift to
them as individuals notwithstanding they are also designated in general terms as by
relationship to the testator to others.” O’Connell, 23 Ill. 2d at 617. In O’Connell, for instance,
the supreme court found no class gift where the testator’s will provided that half of his estate
was to “ ‘be paid in equal shares, to my two brothers, James Gaffner and Edward Gaffney of
Ireland.’ ” O’Connell, 23 Ill. 2d at 613. The court there noted that “[i]n our opinion, nothing
appears from the general plan of disposition, or from any special relationship of [the testator]
to his two brothers, or from the failure of [the testator] to change his will after the death of
Edward to overcome the initial presumption that the gift was to James and Edward as
individuals.” O’Connell, 23 Ill. 2d at 617. “The decisive inquiry is whether or not the
testator, in making the particular gift in question, did so with group-mindedness, whether in
other words, he was looking to the body of persons in question as a whole or unit rather than
7
No. 1-14-2500
to the individual members of the group as individuals; if the former, they take as a class.”
(Internal quotation marks omitted.) Krog v. Hafka, 413 Ill. 290, 299 (1952).
¶ 18 In the case at bar, paragraph four of decedent’s will names the three legatees.
Accordingly, the initial presumption is that decedent’s bequest to each of them is an
individual gift, unless there is something additional contained in the will to rebut that
presumption. See Brown v. Leadley, 81 Ill. App. 3d 504, 507 (1980) (“Illinois cases seem
clear that a gift to persons named is a gift to them individually and not a class gift unless
reasons are found in the will for deciding that the testator’s intent would best be served by
disregarding the rule.”). In the case at bar, there is: the survivorship language contained at the
end of paragraph four, which provides that the bequest is to the three named legatees “to
share and share alike in equal shares or to the survivor or survivors of them.”
¶ 19 Illinois courts have considered similar language several times, and have found that such
language indicates a class gift, with a deceased legatee’s share passing to the surviving
legatees. For instance, in Waugh v. Poiron, 315 Ill. App. 78, 79 (1942), the court was asked
to interpret a will containing a residuary clause that provided:
“ ‘I give, devise and bequeath the rest, residue and remainder of my estate, real,
personal and mixed, and wheresoever situated, to my brother, James W. Poiron, my
sister, Minnie Hodge, my sister, Annie Enslin, and my niece Ethel Seidal [sic], share
and share alike, and to the survivor of them.’ ”
At the time of the testator’s death, Ethel was the only legatee still living, and contended that
she was entitled to the entire residue of the estate. Waugh, 315 Ill. App. at 79. By contrast,
the children of James and Minnie argued that the phrase “ ‘and to the survivor of them’ ”
8
No. 1-14-2500
should be construed to give each of them the portion of the estate to which their parents
would have been entitled. Waugh, 315 Ill. App. at 79.
¶ 20 While the probate court agreed with the children, the appellate court reversed, finding
that Ethel was entitled to the entire residue. Waugh, 315 Ill. App. at 80. The court pointed to
“the precise nature of the paragraph,” noting:
“It is complete in a single sentence. The testatrix says, ‘I give the rest, residue and
remainder to my brother James, my sister Minnie, my sister Annie, and my niece
Ethel, share and share alike, and to the survivor of them.’ Webster says ‘survivor’
means ‘to live longer than’. Here the word ‘survivor’ is modified by the phrase ‘of
them’. ‘Them’ manifestly refers to James, Minnie, Annie and Ethel. The ‘survivor of
them’ is Ethel, because she lived after the death of the other. 2 Bouvier’s Law Dict.,
Rawle’s Third Rev., defines a ‘survivor’ as ‘the longest liver of two or more persons’.
Of the four names in the residuary clause, Ethel Seidel lived longest and was the only
one of the four living at the death of the testatrix. It would seem nothing could be
clearer than that she is ‘the survivor of them’.” Waugh, 315 Ill. App. at 80-81.
The court further noted that the will was prepared by a lawyer and that the language of the
paragraph “is not the language a lawyer would use, assuming the testatrix made known to
him her intention to provide for this distribution to the children in case of the death of their
parent.” Waugh, 315 Ill. App. at 81. The court noted that, “[t]herefore, not only the actual
language used but also the language not used makes quite impossible the construction
adopted by the decree.” Waugh, 315 Ill. App. at 81. The court also pointed to another clause
in which the testator had left two individuals bequests of $1, noting that “[b]y this clause she
practically disinherits these two, who if the trial court had carried his theory of construction
9
No. 1-14-2500
to its logical conclusion would ([since] Annie Enslin [had died] intestate) take a substantial
part of the estate,” a construction that “[t]he courts will not sustain.” Waugh, 315 Ill. App. at
81. The court also dismissed citations to authority concerning the issue of whether the will
contained a class gift, noting: “Nor is there any question here of whether the residuary legacy
is a gift to a class or distribution to named individuals. That question is eliminated by the
clause ‘and to the survivor of them’. The numerous cases cited involving that question are
therefore without value.” Waugh, 315 Ill. App. at 82.
¶ 21 Similarly, in Estate of Carlson, 39 Ill. App. 3d 281 (1976), the will at issue was construed
in the same way. There, the will provided:
“ ‘All the rest, residue and remainder of my estate of every kind and nature, I hereby
give, devise and bequeath to my wife, Adina V. Carlson. In the event that my said
wife should die prior to my death, or if we both die as a result of the same accident or
catastrophe, then I give, devise and bequeath all of my property of every kind and
nature to my niece and nephew, Barbara Ann Carlson and Bernard D. Carlson, and
the nephew of my wife, William Perry Filbert, or their survivors or survivor, share
and share alike.’ ” Carlson, 39 Ill. App. 3d at 282.
The testator’s wife predeceased him, as did his nephew Bernard. The administrator of the
will construed the quoted language to exclude Bernard’s child from the class of persons
designated “ ‘their survivors or survivor.’ ” Carlson, 39 Ill. App. 3d at 282.
¶ 22 The appellate court stated that the principal issue was “whether the words ‘their survivors
or survivor, share and share alike’, viewed within the four corners of the will, create an
ambiguity which requires construction of the will.” Carlson, 39 Ill. App. 3d at 283. The court
noted that “[w]hen the term ‘survivor’ is used in conjunction with a gift to a group or class of
10
No. 1-14-2500
beneficiaries, under the common law the survivorship clause of the will is deemed to indicate
the intention of the testator that, should any member of the class predecease the testator, the
share of the deceased beneficiary goes to the remaining named members of the class, rather
than to th[e] children or issue of the predeceased beneficiary.” Carlson, 39 Ill. App. 3d at
284. The court also found the decision in Waugh persuasive, noting that the language used in
that will was similar and that, like in Waugh, the bequest in Carlson was contained in a
single sentence. Carlson, 39 Ill. App. 3d at 284. Accordingly, the court found that there was
no ambiguity in the will and affirmed the probate court’s dismissal of the child’s suit.
Carlson, 39 Ill. App. 3d at 285.
¶ 23 In the case at bar, the language of decedent’s will is strikingly similar to the language
present in both Waugh and Carlson. Here, decedent bequeathed his entire estate “[t]o my
sister, VIRGINIA HARRIS, to my sister, RITA SAPKO, and to my wife, LUZMINDA R.
LELLO, to share and share alike in equal shares or to the survivor or survivors of them.”
Almost identical language was used in both of those cases. See Waugh, 315 Ill. App. at 79
(bequeathing the testator’s estate to several named individuals “ ‘share and share alike, and to
the survivor of them’ ”); Carlson, 39 Ill. App. 3d at 282 (bequeathing the testator’s estate to
several named individuals “ ‘or their survivors or survivor, share and share alike’ ”).
Furthermore, as in both Waugh and Carlson, decedent’s bequest in the case at bar was
contained in a single sentence. Additionally, as in Waugh, the will in the instant case was
drafted by an attorney and, “[t]herefore, not only the actual language used but also the
language not used makes quite impossible the construction adopted by the decree.” Waugh,
315 Ill. App. at 81. The will here does not use the terms “heirs,” “descendents,” “children,”
“issue,” “per stirpes,” or any other language that would indicate that a predeceased legatee’s
11
No. 1-14-2500
share was intended to pass to her children. 2 Indeed, the second preamble paragraph expressly
provides that “it is [decedent’s] will and express intention that [his] said property be disposed
of only as hereinafter provided, *** for the benefit of such persons as are hereinafter set
forth, and such members of the family as are not mentioned herein have not been overlooked,
but have been intentionally omitted.” Accordingly, we agree with the Waugh and Carlson
courts that this language means that a class gift was created and that upon Virginia’s death,
her share of the estate passed to Rita and Luzminda.
¶ 24 We do not find petitioners’ attempt to distinguish Waugh and Carlson persuasive. With
respect to Waugh, petitioners claim that the reversal in that case “was directly attributable to
the possibility of the two effectively disinherited $1 heirs taking half the estate though their
Aunt Annie’s intestate share” and that the ruling merely contained “a long course in dictum
on the meaning of a survivorship clause in the absence of the testator’s intent to benefit the
heirs of named legatees.” Petitioners misconstrue the holding in Waugh, as well as the
Waugh court’s reasoning. The court discussed the language of the survivorship clause first
and determined that “[o]f the four names in the residuary clause, Ethel Seidel lived longest
and was the only one of the four living at the death of the testatrix. It would seem nothing
could be clearer than that she is ‘the survivor of them’.” Waugh, 315 Ill. App. at 81. Thus,
rather than being “a long course in dictum,” Waugh’s discussion of the survivorship clause
was central to its holding that Ethel was the sole beneficiary by virtue of being the sole
legatee surviving at the testator’s death. Further, while the Waugh court did discuss the
implications of the probate court’s conclusion in light of the effective disinheritance of the
other two individuals, this was not the focus of the court’s decision, nor do we find that it
2
Petitioners argue that “the poor quality of draftsmanship is palpable” and that competence of the attorney
should not be assumed. However, other than petitioners’ argument that this paragraph of the will is ambiguous,
petitioners provide no evidence of the attorney’s incompetence and we will not draw such a conclusion.
12
No. 1-14-2500
lessens the applicability of that case to the case at bar. Indeed, in light of decedent’s
statement in the will’s prefatory clause that “such members of the family as are not
mentioned herein have not been overlooked, but have been intentionally omitted,” reading
paragraph four to provide a bequest to petitioners could be read as giving a bequest to
individuals who have been expressly disinherited, a construction that the Waugh court noted
that “[t]he courts will not sustain.” Waugh, 315 Ill. App. at 81. As the Waugh court stated:
“These four who now claim as nieces and nephew were living at the time the will was made.
Their parent legatees passed away while the testatrix was still living and (presumably)
competent to change her will in case she wished to do so.” Waugh, 315 Ill. App. at 81-82.
The exact same situation remains true here.
¶ 25 Petitioners further claim that Waugh and Carlson are distinguishable because they do not
contain the precise language present in the instant case, pointing to the fact that the wills in
those cases did not specify “equal shares” as in the instant case. However, the size of each
individual’s share was not relevant to the court’s decision in either Waugh or Carlson. The
important language was the survivorship language. The same is true here.
¶ 26 We are similarly unpersuaded by petitioners’ arguments that there was no class created
based on Estate of Garrett, 325 Ill. App. 3d 123 (2001), which they characterize as “[t]he
leading case in Illinois on determining whether a class gift is created.” However, the weight
petitioners place on Garrett is not borne out by the case itself, which is readily
distinguishable from the case at bar. In that case, the single dispositive paragraph of the
testator’s will provided:
“ ‘I direct the executor hereinafter named to divide my estate into twelve equal
shares. I give, devise and bequeath one share to each of the following: Grace Ella
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No. 1-14-2500
Powers, Lora Geneva Bishop, Beulah Leona Jones, Coleman William Bramlett, Cecil
Karl Bramlett, John Lloyd Bramlett and Claude Ted Bramlett, share and share alike
or to the survivor or survivors of them; one share to the children of my deceased
sister, Maude May Brown, per stripes [sic] and one share to the children of my
deceased sister, Mary Belle Clouse, per stirpes.’ ” Garrett, 325 Ill. App. 3d at 124-25.
The executor of the will construed this language to require that only those siblings who
survived the testator and those children of Maude May Brown and Mary Belle Clouse who
were living at the testator’s death would inherit. Garrett, 325 Ill. App. 3d at 125. The probate
court found that the will created a class gift that required the class members to survive the
testator, but certified the question to the appellate court. Garrett, 325 Ill. App. 3d at 125.
¶ 27 The appellate court considered the question of whether a class gift had been created and
concluded that it had not. The court noted that the testator had first divided her estate into 12
equal shares, then devised one share to each named sibling. Garrett, 325 Ill. App. 3d at 126.
“Shares were not dependent on persons to be determined in the future; the number of
persons, and the share to each, was already ascertained.” Garrett, 325 Ill. App. 3d at 126.
The court further noted that she named her siblings individually, “indicating a gift to each of
them, not to a class.” Garrett, 325 Ill. App. 3d at 126. The court found that all of these
factors indicated that a gift to individuals was intended, not a class gift. Garrett, 325 Ill. App.
3d at 126. After concluding that the gift was not a class gift, the court determined that the
survivorship language present in the will was ambiguous, because “her use of the word
‘survivor’ [was] not consistent with the rest of the dispositive clause.” Garrett, 325 Ill. App.
3d at 127. The court noted that “[g]enerally, the use of the word ‘survivor’ in a will is
construed to mean the person who lives the longest out of a group of named individuals.”
14
No. 1-14-2500
Garrett, 325 Ill. App. 3d at 127. However, the court noted that in the sole dispositional clause
of the will, the testator left 12 equal shares of the estate to her then-living siblings and the
children of her two predeceased sisters and concluded that “[f]rom this bequest, we can infer
that [the testator] wished to treat her brothers and sisters and their descendants equally.”
Garrett, 325 Ill. App. 3d at 127. Thus, the Garrett court found the will ambiguous. Garrett,
325 Ill. App. 3d at 127.
¶ 28 In the case at bar, petitioners use Garrett to show that survivorship language does not
designate a class gift as a matter of law. We have no quarrel with that statement. However,
petitioners also use Garrett to argue that paragraph four of decedent’s will did not establish a
class gift. We do not find that argument persuasive, since the language of the will in Garrett
differs significantly from the language of the will in the instant case. In Garrett, as noted, the
estate was first divided into 12 equal shares, then each of those shares was divided amongst
the testator’s 10 living siblings, named individually, and the children of the testator’s two
deceased siblings. By contrast, in the case at bar, the individuals were named first, “to share
and share alike in equal shares or to the survivor or survivors of them.” There was not a
specific percentage of the estate apportioned to each of them. The share that the legatee
received would depend on how many “survivors” there were at the time of decedent’s death.
Additionally, there is no reference in the will in the instant case to any children of deceased
siblings, which would have also indicated that an individual bequest was intended as opposed
to a class gift. Instead, there is a statement that decedent’s property should “be disposed of
only as herinafter provided, *** for the benefit of such persons as are hereinafter set forth,
and such members of the family as are not mentioned herein have not been overlooked, but
have been intentionally omitted.” Thus, unlike in Garrett, where “we can infer that [the
15
No. 1-14-2500
testator] wished to treat her brothers and sisters and their descendants equally” (Garrett, 325
Ill. App. 3d at 127), here, the only inference that can be drawn is that decedent did not wish
to treat the named legatees and his remaining family equally. We find the facts of this case
more analogous to Waugh and Carlson than to Garrett, and accordingly, agree with those
decisions that the will in the instant case created a class gift. 3
¶ 29 Additionally, it bears repeating that the second preamble paragraph of the will counsels
against reading the will in the way petitioners urge. As noted, that paragraph provides:
“In making this Will, I have borne in mind the various members of my family and
have carefully considered all of my property, real, personal and mixed, wheresoever
situated, and have made what I consider the wisest and most just disposition of such
property, and it is my will and express intention that my said property be disposed of
only as hereinafter provided, upon such trusts and for such uses and for the benefit of
such persons as are hereinafter set forth, and such members of the family as are not
mentioned herein have not been overlooked, but have been intentionally omitted.”
Petitioners readily agree that this paragraph should be read as decedent “stat[ing] his intent to
disinherit all his other relatives.” However, petitioners appear to believe that they are not
included in the disinheritance of “all his other relatives.” The only explanation for this
special treatment is petitioners’ self-serving allegations in their petition for construction of
the will, in which they claim that petitioners, Virginia, and decedent “had a good and close
ongoing family relationship” and that “[f]or many years [decedent] lived in the same building
with his two (2) sisters and their families and [decedent] treated all of his nieces and nephews
equally as though they were his own children.” However, again, as the Waugh court stated:
3
We also find no merit to petitioners’ citation of Peadro v. Peadro, 400 Ill. 482 (1948), an Illinois Supreme
Court case in which the court was asked to determine whether a will’s survivorship clause took effect at the time of
the testator’s death or at the time of the death of the holder of a life estate in the property bequeathed in the will.
16
No. 1-14-2500
“These four who now claim as nieces and nephew were living at the time the will was made.
Their parent legatees passed away while the testatrix was still living and (presumably)
competent to change her will in case she wished to do so.” Waugh, 315 Ill. App. at 81-82.
Decedent had a number of nieces and nephews, including petitioners here, and did not
provide for any of them by name in his will. Given his express statement that “such members
of the family as are not mentioned herein have not been overlooked, but have been
intentionally omitted,” we cannot agree with petitioners that they, despite being unnamed in
the will, were intended to be bequeathed Virginia’s share.
¶ 30 Finally, petitioners make several arguments concerning construction of wills and
presumptions against intestacy. Petitioners are correct that when construing a will, a court
presumes that the testator did not intend any property to pass intestate. Coussee, 262 Ill. App.
3d at 426. “As a rule of construction, however, the presumption against intestacy only comes
into play after an ambiguity is found.” Coussee, 262 Ill. App. 3d at 426. In the case at bar,
there is no ambiguity, so we have no need to consider petitioners’ arguments on this point.
¶ 31 Moreover, even if we were to consider petitioners’ arguments, we would find them
unpersuasive. Petitioners’ main contention is that the trial court should have looked to the
consequences of all three named legatees predeceasing the testator. They point to the Probate
Act of 1975’s antilapse statute, which provides that, “if a legacy lapses by reason of the death
of the legatee before the testator, the estate so bequeathed shall be included in and pass as
part of the residue under the will, and if the legacy is or becomes part of the residue, the
estate so bequeathed shall pass to and be taken by the legatees or those remaining, if any, of
the residue in proportions and upon estates corresponding to their respective interests in the
residue.” 755 ILCS 5/4-11(c) (West 2012). Since the will made no provision for the residue
17
No. 1-14-2500
of the estate, petitioners argue that if all three named legatees predeceased decedent, the
estate would fall into intestacy, providing shares of the estate to those of decedent’s family
whom decedent had expressly disinherited by the second preamble paragraph of the will.
While this may be true, in petitioners’ hypothetical situation, decedent would still be alive at
the time that all three named legatees died, thereby affording him the opportunity to amend
his will should be choose to do so. “[T]he testator is presumed to have known the law in
force when the will was drafted. [Citation.] The testator is also presumed to know that if any
devise in a will does lapse, the property becomes intestate property and all heirs of the
testator take.” Noll v. Garber, 336 Ill. App. 3d 925, 929 (2003) (finding the testator’s failure
to modify her will after the named legatee’s death or to employ a lapse provision in the will
“highly probative” of her intent). Thus, even considering petitioners’ hypothetical scenario,
the probate court did not err in finding no ambiguity in the will.
¶ 32 As a final matter, petitioners argue that the probate court erred in “finding” that the estate
would escheat to the State if all three named legatees predeceased decedent. However, the
probate court expressly stated that its findings were limited to a finding that there was no
ambiguity within the four corners of the will and that it had not make any rulings considering
petitioners’ hypothetical arguments about the consequences of all three named legatees
predeceasing decendent. Accordingly, we will not discuss the propriety of the probate court’s
response to hypothetical scenarios that were expressly not part of its ruling.
¶ 33 CONCLUSION
¶ 34 The probate court correctly determined that decedent’s will was unambiguous and
created a class gift such that Virginia’s share of the estate passed to Rita and Luzminda, the
18
No. 1-14-2500
two surviving legatees. Accordingly, the probate court properly dismissed petitioners’
petition for construction of decedent’s will.
¶ 35 Affirmed.
19
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720 F.Supp. 1116 (1989)
JOHNSON & JOHNSON, Plaintiff,
v.
COOPERVISION, INC. and the Cooper Companies, Inc., Defendants.
Civ. A. No. 88-715-JLL.
United States District Court, D. Delaware.
August 17, 1989.
*1117 William Prickett and Elizabeth M. McGeever of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., and J. Nelson Happy and Richard Savage of Patterson, Belknap, Webb & Tyler, New York City, of counsel, for plaintiff.
Henry N. Herndon, Jr. of Morris, James, Hitchens & Williams, Wilmington, Del., and Edward V. Anderson, Patricia H. McCall and Barbara R. Shufro of Pillsbury, Madison & Sutro, San Jose, Cal., of counsel, for defendants.
MEMORANDUM OPINION
LATCHUM, Senior District Judge.
I. INTRODUCTION
Plaintiff Johnson & Johnson brought this diversity action against defendants CooperVision, Inc. and The Cooper Companies, Inc., alleging fraud and breach of contract. (See Docket Item ["D.I."] 1.) The dispute arises out of a Purchase Agreement executed on December 31, 1986. (See D.I. 8, Ex. A; D.I. 12, Ex. A.) Under the terms of the Purchase Agreement, Johnson & Johnson (as purchaser) acquired the ophthalmic pharmaceutical business of CooperVision, Inc. and CooperVision Pharmaceuticals, Inc. (sellers).
Plaintiff alleges that defendant The Cooper Companies, Inc., is the corporate successor of CooperVision, Inc. and CooperVision Pharmaceuticals, Inc. (D.I. 1 at ¶ 2; D.I. 12 at ¶ 2.) Throughout this Opinion the various Cooper entitiesnamely, CooperVision, Inc., CooperVision Pharmaceuticals, Inc., and The Cooper Companies, Inc. shall be referred to collectively as "Cooper." All three of the Cooper entities are (or were) Delaware corporations. (D.I. 1 at ¶ 2; D.I. 8, Ex. A at 1.) Johnson & Johnson is a New Jersey corporation. (D.I. 1 at ¶ 1; D.I. 8, Ex. A at 1.)
Presently before the Court are certain motions filed by Cooper. (See D.I. 4.) First, Cooper moves to dismiss this action pursuant to Rule 12(b)(7), Fed.R.Civ.P., because of Plaintiff's failure to join Iolab, Inc. ("Iolab"), a Johnson & Johnson subsidiary which Cooper maintains is an indispensable party under Rule 19(b). Similarly, Cooper requests dismissal claiming that this action was not brought in the name of the real party in interest: Iolab. See Rule 17(a), Fed.R.Civ.P. Finally Cooper moves, in the alternative, that this case be transferred to the United States District Court for the Northern District of California pursuant to 28 U.S.C. § 1404(a).
For the reasons set forth in this Opinion, the Court concludes that Iolab is an indispensable party within the meaning of Rule 19(b). This action cannot, "in equity and good conscience," proceed in Iolab's absence. Iolab is a Delaware corporation (D.I. 11 at 5; D.I. 12 at ¶ 8; D.I. 12, Ex. D at 1), the joinder of which would destroy the Court's subject matter jurisdiction, which is based solely upon diversity of citizenship. (See D.I. 1 at ¶ 3; 28 U.S.C. § 1332(a)(1).) Accordingly, Cooper's motion to dismiss for failure to join an indispensable party will be granted. The Court *1118 need not and does not reach Cooper's alternative arguments.
II. BACKGROUND FACTS
As stated previously, this dispute grew out of the sale of Cooper's pharmaceutical business to Johnson & Johnson. Among the assets conveyed by Cooper as part of the pharmaceutical business were its trade accounts receivable. (D.I. 8, Ex. A, § 2(b)(ix) at p. 9.) The gist of Johnson & Johnson's Complaint is that Cooper, in the year preceding its sale of the business, entered into numerous promotional sales deals pursuant to which customers were sold large quantities of pharmaceutical products on generous price and refund terms outside of the ordinary course of business. (D.I. 1 at ¶¶ 10-12; D.I. 11 at 4.) Johnson & Johnson alleges that Cooper intentionally concealed the existence of these promotional deals. (D.I. 1 at ¶¶ 23-27; D.I. 11 at 4.) According to Johnson & Johnson, Cooper's alleged concealment was both fraudulent[1] and in breach of the terms of the Purchase Agreement.[2]
Moreover, Johnson & Johnson avers that Cooper failed to account properly for the promotional sales deals, thereby breaching the Purchase Agreement.[3] (D.I. 1 at ¶¶ 6-8, 10-19, 30-32; D.I. 11 at 4-5.) Such failure caused Cooper's 1986 financial statementswhich were furnished to, and allegedly relied upon by Johnson & Johnsonto overstate sales, inflate trade receivables, and understate the liability to provide cash refunds to customers.[4] The misstated financial statements, in turn, allegedly induced Johnson & Johnson to pay more for the pharmaceutical business than it otherwise would have. (D.I. 11 at 5.) Johnson & Johnson seeks damages, measured as the amount by which cash refunds paid to customers (following Johnson & Johnson's acquisition of the business but relating to pre-acquisition promotional sales of pharmaceutical products) exceeded the balance in the reserve account. (D.I. 1 at ¶¶ 15, 20-21, 26-29; D.I. 11 at 6-7.) More simply put, plaintiff seeks to recover the amount by which Cooper understated its refund liability.[5] (D.I. 11 at 5.) Johnson *1119 & Johnson calculated its damages to be $2.61 million as of the commencement of this lawsuit. (D.I. 1 at ¶¶ 15, 21, 35.) Additionally, it requests an award of punitive damages because of the alleged fraud. (D.I. 1 at 10; D.I. 22 at 16.)
While the only signatories to the Purchase Agreement are Johnson & Johnson and Cooper, another entity, Johnson & Johnson's Iolab subsidiary, is inextricably linked to the transaction. First and foremost, Iolab's close relationship to the transaction is apparent from the fact that many of the assets and liabilities of the pharmaceutical business were transferred to it. (D.I. 7 at 3-4; D.I. 11 at 6, 12; D.I. 12 at ¶ 9.)
The Purchase Agreement explicitly authorized Johnson & Johnson to assign its rights thereunder to one or more of its subsidiaries.[6] This in fact was done, as Johnson & Johnson assigned some of its rights under the Purchase Agreement to Iolab. (D.I. 8, Ex. B at 1; D.I. 11 at 5-6.) Certain of the assets and liabilities of the pharmaceutical business were transferred to Johnson & Johnson (including the goodwill of the business), with the balance transferred to Iolab. (D.I. 11 at 5-6; D.I. 12 at ¶ 9.)
Under the heading "Acquired Assets," the Purchase Agreement sets forth those assets transferred by Cooper which comprise the pharmaceutical business. (D.I. 8, Ex. A, § 2(b) at pp. 4-10.) The allocation of those assets as between Johnson & Johnson and Iolab was accomplished by two related instruments. The first instrument, which was executed by Cooper and Johnson & Johnson and is entitled "Bill of Sale, Assignment and Assumption Agreement," shall be referred to herein as the "Johnson & Johnson Bill of Sale." (See D.I. 8, Ex. C.) It lists those assets of the pharmaceutical business transferred to Johnson & Johnson. (Id. at pp. 2-3.)
The second instrument was executed between Cooper and Iolab. It too is entitled "Bill of Sale, Assignment and Assumption Agreement," and will be referred to herein as the "Iolab Bill of Sale." (See D.I. 8, Ex. B.) It details those assets of the pharmaceutical business conveyed to Iolab. (Id. at pp. 2-7.) Most notable for present purposes, the Iolab Bill of Sale transferred to Iolab "all trade accounts receivable in existence as of the Closing arising out of the sale of Products by, or for the account of, [Cooper] in the United States." (Id. § 2(ix) at p. 7.) As indicated above, it is the alleged overstatement of these trade accounts receivable, and the concomitant understatement of the obligation to provide refunds to customers, which lies at the root of this lawsuit. Not only was Iolab the entity which received the accounts receivable of Cooper's pharmaceutical business, it was also Iolab which assumed the obligation to provide customer refunds, and which indeed paid the $2.61 million in alleged excess refunds. (See D.I. 11 at 5-6.)
It is noteworthy that the Johnson & Johnson Bill of Sale and the Iolab Bill of Sale were executed concurrently on December 31, 1986the same date as the closing of the Purchase Agreement. Both the Johnson & Johnson Bill of Sale and the Iolab Bill of Sale specifically refer to one another (D.I. 8, Ex. B at 7-8, 14; D.I. 8, Ex. C at 3-4, 10), as well as to the Purchase Agreement. (D.I. 8, Ex. B at 1; D.I. 8, Ex. C at 1.) From all of the foregoing, it is patently obvious that the Purchase Agreement, the Johnson & Johnson Bill of Sale, and the Iolab Bill of Sale were not prepared in isolation. All three instruments are related components of a larger transaction.
*1120 Aside from the fact that the very same assets and liabilities which underlie this lawsuit were conveyed to Iolab, there are several other manifestations of Iolab's close involvement with this transaction. First, Iolab was represented in the negotiations which culminated in the sale of Cooper's pharmaceutical business. Plaintiff's own papers identify Mr. Terry Johnson, an Iolab officer, as one of the principal negotiators of the transaction. (See D.I. 1 at ¶ 22; D.I. 11 at 7; D.I. 12 at ¶ 6.) Second, of the $260 million total price tag for Cooper's pharmaceutical business, $70 million was paid directly to Cooper by Iolab. (D.I. 11 at 5; D.I. 12 at ¶ 8.) Finally, to the extent customer refunds paid by Iolab were excessive, Cooper maintains that this resulted not from any understatement of liabilities on the part of Cooper, but rather, from Iolab's mismanagement of the pharmaceutical business subsequent to its acquisition. (D.I. 17 at 1, 5, 9, 11; D.I. 22 at 4.) Evidence of Iolab's operation of the business thus may play a pivotal role in ultimately resolving this dispute on its merits.
Johnson & Johnson commenced this action on December 28, 1988, by filing its Complaint against Cooper in this Court. (See D.I. 1.) Plaintiff asserts subject matter jurisdiction on the basis of the parties' diversity of citizenship. Iolab was not named as a party plaintiff, nor could it have been, for Iolab, like defendant Cooper, is incorporated in and therefore is a citizen of Delaware for diversity purposes. Hence joinder of Iolab would destroy this Court's diversity-based subject matter jurisdiction. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Bonar, Inc. v. Schottland, 631 F.Supp. 990, 993 (E.D.Pa.1986).
In the absence of Iolab, this Court will be unable to compel the appearance as witnesses of any Iolab officers or employees who do not reside in Delaware. As far as the record reveals, no Iolab officers or employees reside in Delaware. Mr. Terry Johnson, the Iolab officer who actively participated in negotiating the Purchase Agreement, resides and works in California. (D.I. 11 at 7; D.I. 12 at ¶ 7.) Mr. Johnson's testimony as to the misrepresentations allegedly perpetrated by Cooper's negotiators may prove to be crucial in deciding the merits of this dispute. The Iolab personnel familiar with the distribution of customer refunds live and work in Puerto Rico (see D.I. 13), which, according to plaintiff, is Iolab's principal place of business.[7] (D.I. 11 at 5; D.I. 12 at ¶ 8; D.I. 13 at ¶ 1.) Their testimony might be material to the issue of whether or not the payment of any excess refunds resulted from mismanagement by Iolab. These individuals, like Mr. Johnson, are beyond this Court's subpoena power.
Prior to filing the motions now before this Court, Cooper brought a related action in state court in California (the "California litigation"). The issues to be adjudicated in the California litigation parallel those of the instant lawsuit. Cooper's Complaint in the California litigation requests "a judgment declaring that Cooper has not breached the Purchase Agreement and does not have any liability to Iolab for pharmaceutical *1121 products returned after December 31, 1986." (D.I. 8, Ex. E at 17.) All three of the players in this corporate ménage à troisCooper, Johnson & Johnson, and Iolabare parties to the California litigation, in marked contrast to the action pending here which does not include Iolab.
III. ANALYSIS
Deciding Cooper's motion to dismiss for failure to join an indispensable party requires a two-step analysis. Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1042 (9th Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 156, 78 L.Ed.2d 144 (1983); Florida Ins. Guar. Ass'n, Inc. v. Carey Canada, Inc., 123 F.R.D. 356, 357-58 (S.D.Fla.1988); Wylain, Inc. v. Kidde Consumer Durables Corp., 74 F.R.D. 434, 436 (D.Del.1977). First, the Court must determine whether Iolab is a "person to be joined if feasible" under Rule 19(a). That is, using the more traditional terminology, the Court first decides whether Iolab is a so-called "necessary party." See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 116-18 & n. 12, 88 S.Ct. 733, 741-42 & n. 12, 19 L.Ed.2d 936 (1968); Pujol v. Shearson American Express, Inc., 877 F.2d 132, 134 (1st Cir.1989).
If Iolab is found to be a necessary party, the Court then proceeds to the second step in the analysis, which is contained in Rule 19(b). The inquiry facing the Court under Rule 19(b) is whether, "in equity and good conscience the action should proceed among the parties before it, or [alternatively, whether the action] should be dismissed." Rule 19(b), Fed.R.Civ.P. Dismissal of the action follows from a finding that Iolab is an "indispensable party." The terms "necessary party" and "indispensable party" are conclusory. See Provident Tradesmens Bank v. Patterson, 390 U.S. at 118-19 n. 15, 88 S.Ct. at 742-43 n. 15 (quoting Rule 19, Fed.R.Civ.P., advisory committee's note). Thus the use of these terms may follow from the appropriate analysis under Rule 19, but cannot take the place of that analysis.
Rule 19(a) identifies three categories of necessary parties. Rule 19(b) lists four factors to be considered by courts in determining whether a necessary party is also indispensable. There is some overlap between the analysis required under Rule 19(a), and that mandated by Rule 19(b). See Acton Co., Inc. of Mass. v. Bachman Foods, Inc., 668 F.2d 76, 81 (1st Cir.1982); Lopez v. Shearson American Express, Inc., 684 F.Supp. 1144, 1149 (D.P.R.1988). Furthermore, the four factors listed within Rule 19(b) are themselves overlapping to some extent. Florida Ins. Guar. Ass'n v. Carey Canada, 123 F.R.D. at 359; Rule 19, Fed.R.Civ.P., advisory committee's note.
Determining whether or not Iolab is indispensable to this litigation requires a fact-specific, flexible analysis. See Provident Tradesmens Bank v. Patterson, 390 U.S. at 118, 88 S.Ct. at 742; Helzberg's Diamond Shops, Inc. v. Valley West Des Moines Shopping Center, Inc., 564 F.2d 816, 819 (8th Cir.1977); Prescription Plan Service Corp. v. Franco, 552 F.2d 493, 496 (2d Cir.1977). Rule 19 contains no prescribed formula, and cannot be applied in a mechanical way. Provident Tradesmens Bank v. Patterson, 390 U.S. at 118 & n. 14, 88 S.Ct. at 742 & n. 14; Francis Oil & Gas, Inc. v. Exxon Corp., 661 F.2d 873, 878 (10th Cir.1981). The Court is vested with substantial discretion in making the determination. Envirotech Corp. v. Bethlehem Steel Corp., 729 F.2d 70, 75 (2d Cir.1984); Micro-Medical Indus., Inc. v. Hatton, 607 F.Supp. 931, 935 (D.P.R.1985). See also Northrop v. McDonnell Douglas, 705 F.2d at 1043 (appellate court's standard of review is abuse of discretion).
A. Rule 19(a): "Necessary Party"
The first step in the Court's analysis is to decide whether, pursuant to Rule 19(a), Iolab is a person to be joined if feasible.
The label of "necessary party" fits Iolab if, in its absence, (1) complete relief cannot be accorded the present parties, or (2) the disposition of the action would prejudice, as a practical matter, Iolab's ability to protect its own interest, or (3) any of the present parties would be subject to a substantial *1122 risk of multiple or inconsistent obligations.[8]Micro-Medical v. Hatton, 607 F.Supp. at 933. The Court will briefly discuss these three categories of necessary parties in reverse order, mindful of the overlap with Rule 19(b) and that the analysis under Rule 19(b), infra, will be in greater depth.
Starting with the third category, Cooper runs the risk of incurring duplicate obligations if this action is permitted to continue. First, Johnson & Johnson might succeed in recovering from Cooper on the breach of contract and fraud claims it asserts here. Not being a party to this action, quite possibly Iolab would not be bound by its outcome, and would remain free to sue Cooper in another forum for what are essentially the same damages.
If on the other hand Iolab, though not a party to this action is nevertheless bound by it, then Iolab's ability to protect its interests would be seriously impaired. In such a case Iolab would fall within the second category of necessary parties outlined in Rule 19(a).
The first category of necessary parties includes those persons, the absence of whom would prevent relief from being accorded among the present parties. While Johnson & Johnson would be able, even without the benefit of Iolab's presence, to fully litigate its own claims here, Cooper would remain exposed to a subsequent lawsuit by Iolab arising out of the same transaction. In this sense, any relief afforded Cooper herein cannot be regarded as "complete."
For the foregoing reasons, and reemphasizing Iolab's close connection with this entire transaction,[9] the Court concludes that Iolab is a necessary party. Were it feasible, the Court would order the joinder of Iolab pursuant to Rule 19(a).
B. Rule 19(b): "Indispensable Party"
Iolab cannot be added to this lawsuit, for to do so would destroy the Court's diversity jurisdiction. Having ruled that Iolab is a necessary party, the Court now turns to the more difficult second part of its two-step analysis. The relevant inquiry becomes whether Iolab is indispensable. The Court must consider whether this action should forge ahead despite the absence of Iolab, a party whose presence would obviously have been desirable, or whether instead the action should be dismissed.
Rule 19(b) sets forth four nonexclusive, overlapping factors to be considered by courts in evaluating whether an absent party is indispensable.[10]See Rule 19, Fed.R. Civ.P., advisory committee's note (the four "factors [contained in Rule 19(b)] are to a certain extent overlapping, and they are not intended to exclude other considerations which may be applicable in particular situations"). The Supreme Court has distilled from Rule 19(b) essentially four constituencies whose interests are balanced by the rule. Those four constituencies are: (1) the defendant, (2) the absent party, (3) the courts and the public, and (4) the plaintiff.[11]Provident Tradesmens Bank v. *1123 Patterson, 390 U.S. at 109-111, 88 S.Ct. at 737-38. See also Envirotech v. Bethlehem Steel, 729 F.2d at 73; Prescription Plan Service v. Franco, 552 F.2d at 497. The Court will consider, in turn, the interests of each of these four constituencies in the context of this case.
1. The Defendant's InterestCooper
The first interest to be considered by the Court in applying Rule 19(b) is that of the defendant, Cooper, in avoiding multiple litigation and inconsistent obligations. See Provident Tradesmens Bank v. Patterson, 390 U.S. at 110, 88 S.Ct. at 738. Cooper's interest hinges largely upon the preclusive effect on Iolab, if any, of a decision rendered in this Court on the merits of the case.
Claim preclusion (res judicata) may be asserted in a later action only by and against parties, and those in privity with parties to the earlier action. See generally 1B J. Moore, J.D. Lucas & T. Currier, Moore's Federal Practice ¶ 0.405[1], at 178 (2d ed.1988). See also Provident Tradesmens Bank v. Patterson, 390 U.S. at 110, 88 S.Ct. at 738 ("Of course, since the outsider is not before the court, he cannot be bound by the judgment rendered."); Restatement (Second) of Judgments § 34(3) (1982). Similarly issue preclusion (collateral estoppel) may be asserted only against parties, and those in privity with parties to an earlier action.[12]See generally 1B Moore's Federal Practice ¶ 0.411[1], at 386-87.
As a nonparty, Iolab will thus be free to litigate anew, in another forum, any claims or issues decided unfavorably to it in this action, unless Iolab is held to be in privity with Johnson & Johnson. The fact that Iolab is Johnson & Johnson's wholly-owned subsidiary is insufficient to establish privity between the two entities. See Moore's Federal Practice ¶ 0.411[10], at 471, 474, 478.
In Astron Indus. Assoc., Inc. v. Chrysler Motors Corp., 405 F.2d 958 (5th Cir. 1968), the court held that a plaintiff-parent corporation's lawsuit was barred by res judicata, based upon the outcome of an earlier action brought by the plaintiffs subsidiary against the same defendant, arising out of the same operative facts. In invoking res judicata, the Fifth Circuit affirmed the district court's finding of privity between the parent corporation (the plaintiff in that lawsuit), and its subsidiary (plaintiff in the earlier lawsuit). Astron v. Chrysler, 405 F.2d at 961.
Two aspects of the decision in Astron v. Chrysler warrant particular attention. First, the court there emphasized the importance to a finding of privity that the plaintiff in the second action had controlled the first lawsuit. The parent "would be in privity with [its subsidiary] if [the parent] controlled the earlier lawsuit and its interests were represented" by the subsidiary in that earlier action. 405 F.2d at 961 (emphasis added). The Fifth Circuit's determination that the parent had controlled its subsidiary's prior lawsuit was quite logical given the facts of Astron v. Chrysler. The parent "completely controlled [the subsidiary] as its sole shareholder, an officer of [the parent] operated [the subsidiary], and the Board of Directors of [the parent] authorized the initial lawsuit by" the subsidiary against the defendant. 405 F.2d at 961. On this basis the instant action is easily distinguished from Astron v. Chrysler. Here, it can hardly be said that Iolab, Johnson & Johnson's subsidiary and the prospective plaintiff in a later lawsuit, controlled the present lawsuit brought by its corporate parent.
The second noteworthy feature of the Astron v. Chrysler decision is that the court stressed that the question of whether two parties are in privity for preclusion *1124 purposes is one of fact. Astron v. Chrysler, 405 F.2d at 961 (the "determination of identity between litigants for the purpose of establishing privity is a factual question"). See also Micro-Medical v. Hatton, 607 F.Supp. at 934 (a "finding of privity in a later suit would likely result from an evidentiary examination into the actual participation or control by [the parent] of the subsidiary's [earlier] litigation").
It would be premature for this Court to endeavor to decide whether Iolab and Johnson & Johnson are in privity in bringing the instant action, for purposes of determining the preclusive effect of this action on a later lawsuit, where the potential later lawsuit is yet to be brought, and where the instant action has not even run its course yet. What is relevant however, and what the Court may properly decide at this juncture is that: (a) there is a substantial likelihood that a court would find, at some future date, that Johnson & Johnson and Iolab were not in privity in bringing the instant lawsuit, (b) therefore any findings in this case adverse to Iolab would likely have no preclusive effect upon Iolab in a subsequent suit by Iolab against Cooper, and (c) allowing this suit to continue therefore subjects Cooper to the risk of duplicate liabilityto Johnson & Johnson now, and to Iolab later.
The Court notes in passing that privity between Johnson & Johnson and Iolab likewise will probably not lie in their relationship as partial assignor and assignee of the Purchase Agreement. In general an assignee is regarded as in privity with its assignor for preclusion purposes only if the assignment occurred after the initial lawsuit was brought. Industrial Credit Co. v. Berg, 388 F.2d 835, 841 (8th Cir. 1968); Wight v. Chandler, 264 F.2d 249, 253 (10th Cir.1959); Montana Bank of Circle v. United States, 7 Cl.Ct. 601, 614 (1985); Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 414 N.Y.S.2d 308, 312, 386 N.E.2d 1328, 1332 (1979);[13] Restatement (Second) of Judgments § 55 & comment a (1982). Here the partial assignment to Iolab occurred on or before the closing date of the Purchase Agreement (December 31, 1986),[14] whereas the instant lawsuit commenced with the filing of the Complaint on December 28, 1988. (D.I. 1.) Accordingly, Johnson & Johnson and Iolab likely are not privies, for purposes of claim and issue preclusion, merely because of their relationship as assignor and assignee which arose prior to filing this lawsuit.[15]
Cooper's most obvious concern is that it will be forced to pay twiceonce to Johnson & Johnson, and then a second time to Iolabfor the same allegedly wrongful act. Yet even if there are no inconsistent or *1125 duplicative judgments against Cooper, simply having to litigate twice that which could be decided in a single proceeding imposes an unnecessary burden upon Cooper. See Provident Tradesmens Bank v. Patterson, 390 U.S. at 110, 88 S.Ct. at 738 ("the defendant may properly wish to avoid multiple litigation").
Finally, Iolab's absence may impair Cooper's ability to fully assert its contention that, to the extent customer refunds were excessive, this fact resulted from Iolab's post-acquisition mismanagement of the pharmaceutical business and not from any fraud or breach of contract on the part of Cooper. While expressing no opinion as to the merits of this defense, the Court does note that Cooper's capacity to fully and fairly assert its defense is an interest to be protected.
In light of all the foregoing, the Court concludes that Cooper's interests would best be served by dismissing this action, rather than by proceeding without Iolab.
2. The Outsider's InterestIolab
The second of four interests to be weighed by the Court in making its assessment under Rule 19(b) is that of Iolab, the absent party.
Even if, as seems likely, Iolab will not be precluded from subsequently raising any claims and issues similar or identical to those litigated in this action,[16] an unfavorable ruling here would nonetheless constitute adverse persuasive precedent, thereby harming Iolab's interest. Acton v. Bachman Foods, 668 F.2d at 78 ("[e]ven if [the absent party] would not be legally bound, an adverse ruling would be a persuasive precedent in a subsequent proceeding, and would weaken [the absent party's] bargaining position for settlement purposes"). The court in Doty v. St. Mary Parish Land Co., 598 F.2d 885 (5th Cir.1979), phrased the proposition as follows:
[Plaintiffs] correctly point out that the [absent party] would not be bound, in the res judicata sense, by an adjudication of the validity of [defendant's] title. Nonetheless, the fact that a party may not be bound by a judgment does not mean that an action may proceed without him.... [I]n a subsequent suit between [plaintiffs] and the [absent party], an unfavorable judgment in the present case would constitute precedent adverse to the [absent party's] claims.
Id. at 887 (footnotes omitted).
Of course if, on the other hand, Iolab ultimately is held bound by claim or issue preclusion, then the prejudice to Iolab of allowing this action to proceed in its absence is even more clear-cut. Moreover, the fact that Iolab is a wholly-owned subsidiary of a party does not necessarily mean that Iolab's interests are adequately protected by its parent corporation so as to negate Iolab's indispensability. See E.H. Crump & Co. v. Gatewood, 497 F.Supp. 549, 551 (E.D.Ark.1980); Lang v. Colonial Pipeline Co., 266 F.Supp. 552, 554 (E.D. Pa.), aff'd, 383 F.2d 986 (3d Cir.1967).
This is not a case in which the separate corporate existence of Johnson & Johnson and Iolab may be disregarded, with Johnson & Johnson viewed as a surrogate for Iolab; the former's presence excusing the latter's absence. For several reasons, the Court will not "pierce the corporate veil" of Iolab, or deem it to be a mere "alter ego" of Johnson & Johnson, so as to thereby ignore its absence.
"A subsidiary corporation may be deemed the alter ego of its corporate parent where there is a lack of attention to corporate formalities, such as where the assets of two entities are commingled, and their operations intertwined." Mobil Oil Corp. v. Linear Films, Inc., 718 F.Supp. 260, 266 (D.Del.1989). In the instant case, however, there is no suggestion that the adherence to corporate formalities by Johnson & Johnson and Iolab was anything less than unwavering. (See D.I. 22 at 12 (at oral argument, plaintiff's counsel conceded that Johnson & Johnson and Iolab "are definitely different corporations").) Distinguish Pujol v. Shearson American Express, 877 F.2d at 135 (in concluding that *1126 the defendant's subsidiary was not an indispensable party, the court observed that "the subsidiary is a mere `corporate shell' existing separately from defendant only on paper," and further referred to the "subsidiary's `corporate alter ego' status").
Furthermore, the so-called alter ego or veil-piercing doctrine is typically employed by claimants against a defendant corporation as a vehicle for holding the corporation's shareholders or its parent company liable. In the case at bar, Johnson & Johnson is postured as a plaintiff. Even if Johnson & Johnson and Iolab had not rigidly observed their status as separate legal entities, it would still be highly unusual, if not unprecedented, for Johnson & Johnson to invoke the alter ego doctrine as a means of benefitting from its own inattention to corporate formalities. Johnson & Johnson chose to structure its affairs as it did namely, with operating subsidiaries as distinct legal entities. It cannot now pretend that these separate entities are in fact one.
Finally, application of the alter ego doctrine requires that the use of the corporate form would, if left unchecked, operate as a fraud or injustice. Mobil Oil v. Linear Films, at 267, 268; Lang v. Colonial Pipeline, 266 F.Supp. at 558. The record in the present case, however, is devoid of any indication that plaintiff's operation of its corporate entities would effect a fraud or injustice of any kind. Accordingly, the alter ego or veil-piercing doctrine can have no application on the facts of this case.
It is conceivable that the presence here of Johnson & Johnson, which owns 100% of Iolab's stock, could vicariously protect Iolab's stake in this dispute. A more prudent solution, however, would be for the dispute to proceed in a forum where Iolab is present, and capable of safeguarding its own interests. For the reasons outlined above, the Court concludes that Iolab's interest would best be protected by dismissing this suit.
3. Interest of the Courts and the Public
The third of four interests promoted by Rule 19(b) is that of the courts and the public.[17] The most palpable interest of this constituency is in having disputes resolved in the most efficient manner possible. See Provident Tradesmens Bank v. Patterson, 390 U.S. at 111, 88 S.Ct. at 738 (referring to "this public stake in settling disputes by wholes"); Florida Ins. Guar. Ass'n v. Carey Canada, 123 F.R.D. at 359 ("[j]udicial economy and the desire to settle disputes in a single forum whenever possible are considerations under this factor").
Litigating the merits of the present controversy in the California state courts with all three of the principal actors presentwill advance the public's interest in the efficient administration of justice. Surging forward in this forumwith one of the three key players missingwould not promote such an interest. On the contrary, it would spawn repetitious litigation because this Court cannot resolve the entire dispute.
It is also relevant to the public interest that the issue of Iolab's indispensability has been raised (and will be decided) at the outset of this lawsuit, rather than on appeal after a full trial on the merits. Cf. Provident Tradesmens Bank v. Patterson, 390 U.S. at 111, 88 S.Ct. at 739 ("[a]fter trial, considerations of efficiency of course include the fact that the time and expense of a trial have already been spent"). Dismissal at the present stage of this litigation would likely conserve considerable resources otherwise expended on discovery and trial. In this sense, the instant case is distinguishable from Provident Tradesmens Bank v. Patterson. There, the Supreme Court reversed the Court of Appeals' holding that an absent party was indispensable. 390 U.S. at 106-107, 88 S.Ct. at 736. In reaching its decision, the Supreme Court noted that the Rule 19 issue was first raised, apparently sua *1127 sponte,[18] by the Court of Appeals only after a full trial on the merits had been conducted in the District Court. Id.
As stated above, there is great uncertainty as to the preclusive effect that a decision on the merits rendered by this Court might have upon subsequent proceedings. Yet even if the doctrines of claim and issue preclusion were to apply so as to minimize duplication of effort, "the result would in any case be to complicate and enlarge what would otherwise be a relatively straightforward contract action in a single court." Acton v. Bachman Foods, 668 F.2d at 81.
Regardless of whether or not the instant lawsuit in this Court is dismissed, the California litigation in which all three of the players in the dispute are joined is likely to continue. The Court concludes that the interest of the courts and public in the efficient administration of justice would best be served by dismissal of this case.
4. The Plaintiff's InterestJohnson & Johnson
The fourth and final interest to be scrutinized under Rule 19(b) is that of the plaintiff. The plaintiff here, Johnson & Johnson, has made plain its preference for the action to proceed in this Court, notwithstanding the prospect of parallel litigation ongoing in the California state courts.
Rule 19(b) directs the Court to evaluate "whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." In the context of the present dispute, the California state courts are available to provide a remedy which is not only adequate, but indeed preferable. This Court, saddled with the absence of Iolab, is essentially being asked by Johnson & Johnson to decide the case with one hand tied behind its back. In contrast, a California state court could grant complete relief among all three of the parties before it.
The Supreme Court has stated that "[t]he decision whether to dismiss (i.e., the decision whether the person missing is `indispensable') must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests." Provident Tradesmens Bank v. Patterson, 390 U.S. at 118-19, 88 S.Ct. at 742-43 (emphasis added). The availability of the California state courts to resolve this dispute is certainly persuasive, and approaches classification as a factor which is "compelling by itself." See Francis Oil v. Exxon, 661 F.2d at 881 (Logan, J., concurring) ("[t]he fourth factor, `whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder,' is to me the key"); Doty v. St. Mary Parish Land Co., 598 F.2d at 888 ("[t]he final factor is one which, in the end, we find to be most persuasivethe presence of an adequate forum if the action is dismissed"). Cf. Wylain v. Kidde Consumer Durables, 74 F.R.D. at 437 ("under the circumstances of this case, the most important equitable consideration is `whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder'").
In sum, it is highly relevant to this case that the California state courts are at the parties' disposal, and can provide relief superior to that which is attainable here. While the Court stops short of saying that dismissal would be in Johnson & Johnson's best interest, it does find that dismissal would not prejudice Johnson & Johnson unduly.
C. Summary of Rule 19 Analysis
The Court first determined that Iolab is a necessary party. That is, Iolab is a person to be joined if feasible, pursuant to Rule 19(a). Iolab cannot be joined, however, because to do so would defeat the Court's diversity-based subject matter jurisdiction.
The Court therefore proceeded to consider whether the action should continue without Iolab, or whether instead, it should be dismissed, Iolab thus being regarded as an indispensable party. Four factors to be weighed by courts in performing the indispensable party analysis are listed in Rule *1128 19(b), which has been interpreted by the Supreme Court and by the lower courts. Courts must balance the interests of: (1) the defendant, (2) the absent party, (3) the courts and the public, and (4) the plaintiff.
The interests of the defendant, as well as those of the courts and the public, clearly favor dismissal of this action so that the entire controversy may be settled in a single forum. As for the absent party, Iolab, it is plausible that its interest would be satisfactorily represented via the presence here of its parent, Johnson & Johnson. Nevertheless, the safer approach, from Iolab's vantage point, is to require that the dispute proceed in a forum where Iolab is present, and thus able to look after its own interest. Hence Iolab's interest is best served by dismissing this suit, and deferring to the California state courts. Lastly, although the Court cannot hold that dismissal would advance the plaintiff's interest, it does find that dismissal would not unduly harm Johnson & Johnson, in view of the availability of an alternative forum.
Based upon the preceding analysis, the Court concludes that this action cannot, in equity and good conscience, proceed in Iolab's absence. Iolab is an indispensable party. Like a tripod with one missing leg, Iolab's absence causes this lawsuit to topple over, notwithstanding the presence of the other two legsCooper and Johnson & Johnson.
The Court's conclusion is buttressed by case law applying Rule 19 in the context of parent and subsidiary corporations.
"The jurisprudence is fairly uniform in cases involving a corporate parent and subsidiary that ... where the corporation is a primary participant in the facts that give rise to the complaint, that corporation is an indispensable party. Additionally, there seems to be no real significance whether the nondiverse corporation is a parent or a subsidiary."
Lopez v. Shearson American Express, 684 F.Supp. at 1150 (emphasis added). See also Envirotech v. Bethlehem Steel, 729 F.2d at 75-76 (in holding that the counterclaim defendant's parent corporation was an indispensable party, the court emphasized the parent's "degree of involvement" with the contracts at issue, which the court found to be "considerable").
Iolab was certainly "a primary participant"[19] in the events giving rise to this action. An Iolab officer was a leading negotiator of the Purchase Agreement. Iolab became a partial assignee of the Purchase Agreement, and furnished $70 million of the consideration paid to Cooper. Its "degree of involvement" with the contract at issue is no doubt "considerable." Accordingly, the Court's determination that Iolab is an indispensable party comes as no surprise.
In support of its argument that Iolab is not an indispensable party, Johnson & Johnson cites two cases which are superficially similar to the instant case. (D.I. 11 at 12-16.) In each of these two cases (Micro-Medical Indus., Inc. v. Hatton, 607 F.Supp. 931 (D.P.R.1985) and McCormick & Co. v. Bedford Indus., Inc., 301 F.Supp. 29 (D.Md.1969)), a plaintiff-parent company contracted to acquire a business from the defendant. In each case a nonparty subsidiary of the plaintiff took title to the assets of the business. Micro-Medical, 607 F.Supp. at 934 ("certain of the assets" were transferred to the subsidiary); McCormick, 301 F.Supp. at 32 & n. 3. After disputes developed, the respective courts in both cases denied motions to dismiss, finding that the nonparty subsidiaries of plaintiffs were not indispensable. Micro-Medical, 607 F.Supp. at 935; McCormick, 301 F.Supp. at 35.
Both Micro-Medical and McCormick are distinguishable from the instant case. The nonparty subsidiaries in the cited cases played far narrower roles in the relevant *1129 transactions than Iolab did here. Unlike Iolab, neither of those two subsidiaries took part in negotiating the purchase agreements, and neither contributed toward the purchase price. Micro-Medical, 607 F.Supp. at 933-34; McCormick, 301 F.Supp. at 32.
More akin to the instant case is Acton Co., Inc. of Mass. v. Bachman Foods, Inc., 668 F.2d 76 (1st Cir.1982). In Acton v. Bachman Foods, the plaintiff and its parent corporation, a nonparty, contracted to acquire the assets of a business from the defendants. 668 F.2d at 78. The nonparty parent took part in negotiating the contract, and furnished a deposit toward the purchase price. Id. Its subsidiary, the plaintiff, was designated in the contract as the purchaser. Id. The subsidiary-plaintiff agreed to undertake most of the obligations in the contractincluding, presumably, the payment of the balance of the purchase price. See id. In an action on the contract, the First Circuit affirmed the trial court's determination that the nonparty parent corporation was indispensable. Id. at 81. In so doing, the court noted the absent party's "substantial role in negotiating" the contract, id. at 78, and alluded to its "substantial interest in" the contract. Id. at 82. The same can be said of Iolab in this case.
IV. CONCLUSION
Having determined that Iolab is both a necessary party and an indispensable party, the Court will grant defendant Cooper's motion to dismiss for failure to join an indispensable party. Cooper's other two motions: (1) to dismiss this action on the ground that it was not brought in the name of the real party in interest, pursuant to Rule 17(a), Fed.R.Civ.P.; and (2) to transfer the case to the United States District Court for the Northern District of California, pursuant to 28 U.S.C. § 1404(a), will both be denied as moot.
NOTES
[1] (See D.I. 1 at ¶¶ 33-35.)
[2] (See D.I. 1 at ¶¶ 6-8, 10-19.) Among Cooper's list of representations and warranties contained in the Purchase Agreement was the following: Since the end of its fiscal year on October 31, 1986, Cooper has not "with respect to any [p]roducts, offered extended dating to the trade, increased or decreased prices (except as set forth in published price lists), used free goods to lower the effective selling price or participated in any unusual transfers to subsidiaries or affiliates." (D.I. 8, Ex. A, § 5(j) at p. 27 [emphasis added].) The Purchase Agreement also contains Cooper's express representation that it did not, subsequent to January 1, 1986, sell or dispose of any assets of the pharmaceutical business or incur any liabilities except in the ordinary course of business. (D.I. 8, Ex. A, § 5(t) at pp. 35-37.)
[3] Relevant here is the following representation by Cooper in the Purchase Agreement:
As of the Closing [i.e. December 31, 1986], all the Trade Receivables will (i) represent bona fide indebtedness incurred by the applicable account debtors, (ii) have arisen on or prior to the closing in the ordinary course of the Pharmaceutical Business, (iii) be subject to no prior assignment, claim, lien or security interest and (iv) be collectible in full when due in the ordinary course of business, net of the reserves therefor shown on the Closing Date Financial Statement.
(D.I. 8, Ex. A, § 5(s) at p. 9.)
[4] The Purchase Agreement provided that Cooper would supply Johnson & Johnson with financial statements of the pharmaceutical business for the fiscal year ended October 31, 1986. The financial statements were to be:
(A) ... in accordance with the books of account and records of [Cooper] and the assumptions stated therein, (B) present fairly the financial condition and results of operations of the Pharmaceutical Business as of the date and for the period indicated using such assumptions and (C) have been prepared in accordance with generally accepted accounting principles and such assumptions applied on a consistent basis throughout the periods covered thereby.
(D.I. 8, Ex. A, § 5(p) at p. 34.)
[5] (See D.I. 8, Ex. A, § 16(a) at p. 58.) Under the Purchase Agreement, Cooper agreed:
to indemnify and hold Purchaser harmless from and against any and all claims, damages, liabilities, liens, losses or other obligations whatsoever, together with costs and expenses, including fees and disbursements of counsel (collectively, "Losses"), arising out of or resulting from any of the following:
(i) inaccuracy of any representation or the breach of any warranty, covenant or agreement of [Cooper] contained in this Agreement or in any agreement, certificate or other instrument delivered by [Cooper] pursuant to this Agreement....
(Id.)
[6] (D.I. 8, Ex. A, § 21 at pp. 69-70.) The Purchase Agreement provides that Johnson & Johnson:
may assign its rights under this Agreement or any of them to one or more direct or indirect wholly-owned subsidiaries of [Johnson & Johnson].... This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted assignees. Nothing herein expressed or implied is intended to confer upon any person, other than the parties hereto and their respective permitted assignees, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
(Id.)
[7] Cooper maintains that Iolab's principal place of business is in California, not in Puerto Rico. (D.I. 7 at 4; D.I. 8 at ¶ 6.)
The information on this point contained in filings by Johnson & Johnson is somewhat confusing. Iolab, Inc. is described as a wholly-owned subsidiary of Johnson & Johnson, incorporated in Delaware and having its principal place of business in Puerto Rico. (D.I. 11 at 5; D.I. 12 at ¶ 8.) Meanwhile, the Johnson & Johnson filings also allude to an Iolab Corporation. Iolab Corporation is said to be a wholly-owned Johnson & Johnson subsidiary, incorporated and headquartered in California. (D.I. 11 at 7 n. 1; D.I. 12 at ¶ 7.) Johnson & Johnson does not reveal whether the principal place of business of Iolab Corporation is different from its California headquarters.
Adding to the confusion is the status of Mr. Terry Johnson, whose position is described variously as vice president of Iolab Corporation (D.I. 11 at 7; D.I. 12 at ¶ 6), and as president of Iolab, Inc. (D.I. 7 at 6; D.I. 8 at ¶ 7; D.I. 22 at 19.)
There is some uncertainty as to whether Iolab, Inc. and Iolab Corporation are separate entities, and if so, what role, if any, was played in this transaction by Iolab Corporation. However, the record is clear that assets of Cooper's pharmaceutical business (including the trade accounts receivable) were conveyed to Iolab, Inc., the Delaware corporation.
[8] The precise language of Rule 19(a) calls for the joinder of a person:
if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Rule 19(a), Fed.R.Civ.P.
[9] See discussion under Background Facts, supra.
[10] The four factors are:
[F]irst, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Rule 19(b), Fed.R.Civ.P.
[11] This Court recites the four constituencies in a slightly different order from that used by the Supreme Court, which itself varied the order from Rule 19(b). See Provident Tradesmens Bank v. Patterson, 390 U.S. at 109 n. 2, 88 S.Ct. at 738 n. 2; Prescription Plan Service v. Franco, 552 F.2d at 497 n. 3.
[12] In contrast to claim preclusion, issue preclusion may be asserted by strangers to the earlier proceeding; although like claim preclusion, it may only be asserted against parties to the earlier case and their privies. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).
[13] The Gramatan v. Lopez case apparently announces the law of New York relative to privity between assignors and assignees of contracts. The case takes on added significance given that the Purchase Agreement here states that it "shall be governed by and construed in accordance with the laws of the State of New York." (D.I. 8, Ex. A, § 25 at pp. 71-72.)
The determination of whether or not a person is indispensable is a matter of federal law. Nevertheless, that determination requires a balancing of interests, and such interests may be rooted in state contract law. See Rush & Halloran, Inc. v. Delaware Valley Fin. Corp., 180 F.Supp. 63, 65 (E.D.Pa.1960) (in determining whether plaintiffs' parent corporation was an indispensable party, the court found relevant the fact that state contract law conferred upon plaintiffs a right to bring suit as donee third-party beneficiaries).
[14] The Iolab Bill of Sale, executed concurrently with the Purchase Agreement on December 31, 1986, provides that Johnson & Johnson "has assigned its right to purchase the Acquired Assets described herein to [Iolab] in accordance with the terms of the Purchase Agreement." (D.I. 8, Ex. B at 1.)
[15] Cf. 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1613 (1986).
An assignor of rights and liabilities under a contract is not needed for a just adjudication of a suit brought by the assignee; indeed, in most cases the assignor would not even be a proper party inasmuch as he may have lost his right to bring an independent action on the contract by virtue of the assignment. However, when there only has been a partial assignment, courts may require joinder so that the entire contractual interest that is in dispute is represented in the action.
Id. at pp. 188-190 (footnotes omitted). While downplaying the importance of the assignor's (i.e. Johnson & Johnson's) presence in a contractual dispute, the above-quoted language implicitly recognizes that the assignee's (i.e. Iolab's) presence is vital.
[16] See discussion of Cooper's interest, supra.
[17] This public interest is embodied within the third factor listed under Rule 19(b): whether a judgment issued in the absence of the nonjoined person will be "adequate." Provident Tradesmens Bank v. Patterson, 390 U.S. at 111, 88 S.Ct. at 739. The relevant language of Rule 19(b) is reproduced in note 10, supra.
[18] The indispensable party issue had not "been raised in the District Court or by the appellant." Provident Tradesmens Bank v. Patterson, 390 U.S. at 106, 88 S.Ct. at 736.
[19] Whereas the court in Lopez v. Shearson American Express used the expression "a primary participant," 684 F.Supp. at 1150, at least one court has employed the term "the primary participant." See Dernick v. Bralorne Resources, Ltd., 639 F.2d 196, 199 (5th Cir.1981). Although the Court hesitates to label Iolab, or anyone else, as the primary participant, it has no difficulty in describing Iolab as a primary participant. The latter term (i.e. a primary participant) appears to this Court to articulate a more meaningful standard.
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72 S.W.3d 719 (2002)
Cynthia PHILLIPS, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-00-392-CR.
Court of Appeals of Texas, Waco.
February 27, 2002.
*720 Kerri K. Anderson-Donica, Law Office of Kerri K. Anderson-Donica, Corsicana, for appellant.
Patrick C. Batchelor, Navarro County Crim. Dist. Atty., James E. Lagomarsino, Navarro County Asst. Crim. Dist. Atty., Corsicana, for appellee.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
OPINION
BILL VANCE, Justice.
After a jury convicted Cynthia Phillips of murdering Toby Matthews, the court *721 sentenced her to 60 years in prison. She appeals, urging (1) the court erred in its charge to the jury and (2) the evidence is insufficient to corroborate the testimony of an accomplice. Finding harmless error in the charge and sufficient corroboration, we will affirm the judgment.
THE OFFENSE
Toby Matthews was found dead behind his car on the side of the road in a Corsicana neighborhood. He had been shot multiple times. A resident of the area heard gunshots and saw a pick-up speed away. Phillips, who was Matthews' girlfriend, and Richard Boyd, Matthews' roommate, were arrested and charged with murder. Boyd, who pled guilty to the offense before Phillips' trial, was the main witness against her.
CHARGE ERROR
Phillips' first issue claims the trial court erred in overruling her objection to the charge at the guilt-innocence phase. She contends that the court erred by including two lines from the Geesa "reasonable doubt" definition in the jury charge. Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim.App.1991), overruled by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). The two lines Phillips finds objectionable are:
It is not required that the prosecution prove guilt beyond all doubt. It is required that the prosecution's proof exclude all reasonable doubt concerning the defendant's guilt.
At trial, Phillips objected only to the first sentence.
Phillips says that because the Court of Criminal Appeals found the better practice was to give no definition of reasonable doubt at all to the jury, the inclusion of these sentences is error. See Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We agree. In Paulson, the Court decided to forgo requiring a definition on reasonable doubt. See id. The Court said: "We find that the better practice is to give no definition of reasonable doubt at all to the jury. On the other hand, if both the State and the defense were to agree to give the Geesa instruction to the jury, it would not constitute reversible error for the trial court to acquiesce to their agreement." Id. Here, the trial court extracted two lines from the reasonable-doubt instruction in Geesa and gave them to the jury. Because the Court of Criminal Appeals was clear on the pointgive it all if the parties agree or give none of itwe hold it was error to give part of the Geesa instruction in the absence of an agreement. See id.
Having found error in the charge, we turn to the question of harm. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994) (a review of charge errors is a two-step process). Because Phillips did not object to both sentences, we might apply the "some harm" standard to the objected to portion and the "egregious harm" standard to the other. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (on rehearing). However, after a thorough evaluation of the record applying the less stringent standard, we cannot say that the charge error caused harm. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000) (factors to consider). Thus, Phillips's first issue is overruled.
ACCOMPLICE WITNESS TESTIMONY
Phillips' second issue challenges the sufficiency of the evidence to corroborate Boyd's accomplice testimony.
Article 38.14 states that a conviction "cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant *722 with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The reason for the rule is that accomplice testimony is inherently untrustworthy and should be viewed with caution. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim.App.1998) (accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person). The test for determining whether the evidence is sufficient to corroborate accomplice testimony is to eliminate from consideration the accomplice-witness's testimony and examine the other inculpatory evidence to ascertain whether the combined weight of the non-accomplice evidence "tends to connect" the defendant with the offense. Bradley v. State, 48 S.W.3d 437, 440 (Tex. App.-Waco 2001, no pet.) (citing Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000)). We will use this test to determine whether Boyd's testimony is adequately corroborated.
Boyd testified that on the night of the murder, he and Phillips followed Matthews as he was driving to a store to buy cough medicine. Boyd flashed his lights at Matthews, and after Matthews pulled over to the side of the road, they argued about the cough medicine. As Matthews turned to go back to his car, Phillips pulled out a gun and shot him. She continued to shoot him after her first shot hit him. Although Boyd had said in a written statement that he then took the gun from Phillips and also shot Matthews, he testified at trial he did not shoot at all. He said they got back in the pick-up, turned around, and drove home.
Manda Ralstin Mauch testified that she and Phillips were in the same jail cell in Colorado some time after the murder. Phillips admitted to her that she shot Matthews six or seven times and killed him. She testified that Phillips also said Boyd was with her and that he, too, shot Matthews. Ralstin Mauch's testimony, independently of Boyd's, "tends to connect" Phillips to the offense. We hold that Boyd's testimony is sufficiently corroborated and overrule the second issue.
CONCLUSION
Having overruled Phillips' two issues, we affirm the judgment.
Justice GRAY, concurring.
GRAY, Justice, concurring.
The majority has determined that the trial court erred by including two lines from the former required "reasonable doubt" definition in the jury charge. The two lines are as follows:
It is not required that the prosecution prove guilt beyond all doubt. It is required that the prosecution's proof exclude all reasonable doubt concerning the defendant's guilt.
At trial, Phillips only objected to the first sentence.
Phillips contends, and the majority agrees, that because the Court of Criminal Appeals found the "better practice" was to give no definition of reasonable doubt to the jury, the inclusion of these lines is error. See Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000). I disagree. In Paulson, the Court decided the "better practice" was to forgo requiring a definition on reasonable doubt. See id. It did not, however, hold that to include such a definition is error.
"Better practice" does not equate to being the only way to submit a proper charge. If it was error to include any type of instruction or definition regarding reasonable doubt, the court had the issue before it and could have so held. It did *723 not. "Better practice" should not be construed to mean that anything else is error. The trial court has always been accorded wide discretion regarding what additional instructions and definitions should be included in the charge. We must review each charge, and each objection to a charge, on a case by case basis to determine if the charge contained error.
The United States Supreme Court does not subscribe to the theory proposed by Phillips. That Court has said:
... the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, ... the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Rather, "taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury." (citations omitted).
Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).
The first sentence Phillips complains about is not a definition of reasonable doubt. It only tells the jury that the State's burden is not proof beyond all doubt. It does not lessen the State's burden of proof, especially in light of the second sentence which correctly repeats the State's burden. See Tex.Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.2002). As a whole, the instructions correctly conveyed reasonable doubt to the jury. Thus, the trial court did not err by including these sentences in the jury charge. Phillips's first issue should be overruled.
CONCLUSION
Because the majority holds the trial court erred but holds that the error was harmless, they reach the same result as I would by holding that the trial court did not err. Accordingly, I concur in the result.
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800 A.2d 937 (2002)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Jeffrey KOLANSKY, Esq., Appellant.
Superior Court of Pennsylvania.
Submitted January 28, 2002.
Filed May 14, 2002.
Reargument Denied June 24, 2002.
*938 Jeffrey M. Kolansky, Philadelphia, appellant, in propria personna.
Catherine L. Marshall, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before: ORIE MELVIN, J., CERCONE, P.J.E., and CAVANAUGH, J.
ORIE MELVIN, J.
¶ 1 Appellant, Jeffrey M. Kolansky, Esq., appeals from the judgment of sentence entered in the Municipal Court of Philadelphia County adjudicating him in contempt of court and directing that he pay a fine in the amount of $1500.00.[1] After careful review, we are constrained to reverse.
¶ 2 The basic facts are as follows. Appellant is a defense attorney practicing in Philadelphia, Pennsylvania. In May of 2001, Appellant represented a man who was charged with two counts of homicide by vehicle and related offenses. The case was scheduled to proceed to trial on May 14, 2001. On May 9, 2001, Appellant sent the trial court a letter via facsimile stating that he would not be able to proceed with the criminal case on May 14, 2001 because he was representing another client in a civil case scheduled for trial in the Court of Common Pleas on the same date. The Commonwealth did not oppose the continuance. The trial court granted Appellant's continuance and scheduled the case for trial on May 16, 2001. On May 15, 2001, Appellant filed a written motion to continue. On May 16, 2001, Appellant appeared before the trial court and requested an additional continuance until he could secure two expert witnesses, an accident reconstructionist and a liver specialist. Also, Appellant asserted that he was not prepared to proceed because he had been continuously in trial since January of 2001. He also informed the court that he had not yet received certain FBI investigation reports from the Commonwealth. He further stated that the Commonwealth recently informed him that there was no possibility of a non-trial disposition.
¶ 3 The trial judge noted that Appellant knew the case was scheduled for trial on that day. Accordingly, he fined Appellant $1500.00 and continued the case until November 13, 2001. Appellant then filed this timely appeal.
¶ 4 On appeal, Appellant raises the following issues for our review:
1. Whether the lower court violated appellant's right to due process of law when it summarily found him guilty of direct criminal contempt by holding an impromptu hearing without first providing appellant with, inter alia, warning that the court believed his conduct to be contumacious; without providing appellant with notice that the court was charging him with criminal contempt; without providing appellant with prior notice that the court was conducting such a contempt hearing; without affording appellant with an opportunity to retain counsel and properly prepare a *939 defense to all charges; and without advising appellant of his rights post-sentence. [sic].
2. Whether the lower court's summary finding that appellant was guilty beyond a reasonable doubt of direct criminal contempt was supported by the evidence when appellant clearly demonstrated no willful intent to impede the "lawful process of the court." [sic].
Appellant's brief at 4.[2]
¶ 5 Initially, we note that "[w]hen reviewing a contempt conviction, much reliance is given to the discretion of the trial judge. Accordingly, we are confined to a determination of whether the facts support the trial court decision." Williams v. Williams, 452 Pa.Super. 52, 681 A.2d 181, 183 (1996), affirmed, 554 Pa. 465, 721 A.2d 1072 (1998). We will reverse a trial court's determination only when there has been a plain abuse of discretion. Ricci v. Geary, 447 Pa.Super. 609, 670 A.2d 190, 191 (1996) (citation omitted). A court's power to impose a summary punishment for contempt is set forth in 42 Pa.C.S.A. § 4132, which provides as follows:
§ 4132 Attachment and summary punishment for contempts
The power of the several courts of this Commonwealth to issue attachments and to impose summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.
42 Pa.C.S.A. § 4132. The ability to utilize the sanction of criminal contempt allows the trial court to maintain control in his or her courtroom; however, a trial court should not use this sanction when a lesser means would suffice. Commonwealth v. Jones, 700 A.2d 1008, 1013 (Pa.Super.1997) (citation omitted).[3]
¶ 6 Here, the trial court opines that it specifically found Appellant to be in criminal contempt pursuant to 42 Pa. C.S.A. § 4132(2). A finding of contempt pursuant to this subsection must be supported by the following four elements:
(1) The [court's] order or decree must be definite, clear, specific and *940 leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited;
(2) The contemnor must have had notice of the specific order or decree;
(3) The act constituting the violation must have been volitional; and
(4) The contemnor must have acted with wrongful intent.
Fenstamaker v. Fenstamaker, 337 Pa.Super. 410, 487 A.2d 11, 14 (1985) (citations omitted). Further, "unless the evidence establishes an intentional disobedience or an intentional neglect of the lawful process of the court, no contempt has been proven." Commonwealth v. Pruitt, 764 A.2d 569, 574 (Pa.Super.2000) (quoting Ricci v. Geary, 447 Pa.Super. 609, 670 A.2d 190, 192 (1996)). Moreover, a conviction for criminal contempt requires proof beyond a reasonable doubt. Fenstamaker, 487 A.2d at 14 (citation omitted).
¶ 7 The trial court relies on Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980), for its conclusion that Appellant's conduct constituted disobedience or neglect. In that case, an attorney was found to be in contempt and was fined $400.00 because he failed to appear on time for the call of the weekly trial list. On appeal, he argued his conduct was not contumacious because he had been negotiating to have one of his client's cases disposed of through an accelerated rehabilitative disposition program and was at his office waiting for opposing counsel to arrive. The attorney had made no effort to contact the judge between 9:00 a.m., the time he was directed to appear, and the end of the call of the list. Our Supreme Court determined that by not arriving in court on time, the attorney made a deliberate choice not to appear as directed. Marcone, 487 Pa. at 584-85, 410 A.2d at 766. The Supreme Court noted that as the attorney had notice of the time he was to appear, and the attorney's office was across the street from the courthouse, the attorney could have easily appeared in court for the proceeding and then asked for permission to await the arrival of opposing counsel at his office. Id. at 585, 410 A.2d at 766. The Supreme Court further noted that the attorney had a record of ignoring the trial court's directives and had previously been disciplined for failing to attend the call of the list. Id. Accordingly, the Supreme Court determined that he acted with wrongful intent. Id.
¶ 8 Also, in Commonwealth v. Zacher, 455 Pa.Super. 594, 689 A.2d 267 (1997), appeal denied, 550 Pa. 706, 705 A.2d 1309 (1997), the Court affirmed the trial court's finding of direct criminal contempt. In that case, the defendant was the court-appointed attorney for a criminal defendant. The case was scheduled for trial on September 5, 1995; however, because of the transfer of the criminal trial division in Philadelphia to a new building, no cases were heard that week. The client's case was relisted for trial on October 10, 1995. On that day, the attorney was informed that his client would not be transported to the courthouse until 10:30 a.m. Court personnel informed the attorney at approximately 11:00 a.m. that his client had not been transported to the courthouse, but the case had been called for trial by the court. The attorney immediately went to the courthouse and requested permission to withdraw from the case, asserting that he was too busy to handle his client's case. He admitted that he had never met with his client, that he had never informed his client of his desire to withdraw, and that he had not provided the trial court with his desire to withdraw. He also stated that he was not prepared to go to trial. A hearing was scheduled for October 12, 1995 concerning the request to withdraw.
*941 ¶ 9 After a hearing on the matter, the trial court granted the attorney's request to withdraw, found him to be in direct criminal contempt, and ordered him to pay a fine of $500.00. The attorney then retained counsel and filed a motion for reconsideration. The trial court denied the motion.
¶ 10 Upon review, this Court determined that the attorney's actions in being tardy did not meet the requisite standard for a finding of contempt because there was no proof that the attorney had intentionally or willfully disregarded the process of the court. Id. at 269. Further, we concluded that the contempt sanction against the attorney for requesting to withdraw representation of his client was unwarranted, as it was not demonstrated that the attorney's request was a violation of a court order or decree. Id. at 270. However, we determined that the attorney could be found in contempt for failing to be prepared to proceed with his client's case. Id. at 270-72. We noted that the record revealed that the attorney was informed on July 21, 1995 that his client's trial was to commence on October 10, 1995. We further noted that the attorney did not dispute that he was aware trial was to commence on October 10, 1995. We determined that the attorney was properly held in contempt for failing to be prepared to proceed with a case at the scheduled time for trial. Specifically, we held: "when counsel deliberately appears unprepared for a scheduled court proceeding, his actions fall within the purview of Section 4132(2)." Id. at 270. We further opined, "when the trial court directs that counsel's client's case is to commence on a certain date, an essential part of this directive is that counsel will not only appear but that he will appear prepared to proceed with the case." Id. at 271.
¶ 11 Next, we addressed whether the attorney's noncompliance was a volitional act done with wrongful intent. The attorney's reasons for not being prepared were that he was no longer interested in practicing criminal law, he could not handle his client's case because of the dramatic increase in his civil case load, and because he assumed the trial court would allow him to withdraw from the case. We determined that the statements revealed that the attorney deliberately decided not to prepare for trial. Id. at 271. We further concluded that the attorney "acted with a substantial certainty that the case would be delayed or with reckless disregard of this result." Id. at 271. Accordingly, we upheld the attorney's contempt conviction for deliberately failing to prepare his client's case so that it could proceed as scheduled.
¶ 12 Here, Appellant does not assert that he was unaware that his client's case was scheduled for trial on May 16, 2001. He contends that he was unable to proceed on the date set for trial because he had not yet secured expert witnesses as he had just recently found out that the Commonwealth was not amenable to a non-trial disposition of the matter. Further, he asserts that his caseload was unusually large due to a complex civil trial. Also, Appellant argues that he was unable to proceed because he had not yet received discovery in the nature of investigation reports.
¶ 13 We find the circumstances in this case are not analogous to the factual scenarios presented in Marcone and Zacher. Appellant did not fail to prepare his client's case because he believed the trial judge would allow him to withdraw or because he no longer wished to practice criminal law, as was the case in Zacher. Further, unlike in Marcone, Appellant made efforts to notify the trial court in advance that he would not be able to proceed with the case on May 14, 2001, the *942 day it was originally scheduled for trial. He sent a letter dated May 9, 2001 to the trial court requesting a continuance of his client's trial. Further, after the case was rescheduled for trial on May 16, 2001, Appellant filed a motion to continue. Moreover, Appellant informed the trial judge that he was still awaiting discovery from the Commonwealth concerning an FBI investigation of the incident. As this discovery could have included potentially exculpatory evidence, it was in his client's interest to request a continuance until he received the investigation reports. As such, we cannot conclude that it has been demonstrated that Appellant deliberately and consciously decided not to prepare Appellant's case.
¶ 14 We sympathize with the trial court's frustration in dealing with an attorney who is not prepared to proceed to trial on the date the case is scheduled for trial. We further recognize the importance of the trial court's ability to issue a criminal contempt citation, as this sanction "gives credence to a judge's status as commander in chief over his or her courtroom." Commonwealth v. Jones, 700 A.2d 1008, 1013 (Pa.Super.1997) (quoting Commonwealth v. Martorano, 387 Pa.Super. 79, 563 A.2d 1193, 1200 (1989)). Moreover, we stress that "counsel is prohibited from accepting a caseload beyond his ability to provide adequate management and supervision." Marcone, 410 A.2d at 766. In this case, however, we find the trial court abused its discretion in finding the elements of disobedience or neglect had been met beyond a reasonable doubt.[4]
¶ 15 Accordingly, based upon the foregoing, we reverse. As we reverse on the basis that the trial court abused its discretion in finding Appellant was disobedient or neglectful beyond a reasonable doubt, we need not address Appellant's contention that he was denied due process of law.[5]
¶ 16 Judgment of sentence reversed.
NOTES
[1] We note that although Appellant's sentence was filed at Philadelphia Municipal Court No. 01-05-1198, is was entered by a Court of Common Pleas Judge as part of a proceeding incident to a criminal case in the Court of Common Pleas of Philadelphia County. As this Order was entered by a Court of Common Pleas judge, we will address the claims set forth in Appellant's appeal. See 42 Pa.C.S.A. § 742.
[2] The Commonwealth has not filed an advocate's brief in this matter despite their obligation to do so. See 16 P.S. § 1402(a). Instead, they have submitted a two-page letter brief in which they attempt to shift their responsibility to the Administrative Office of the Pennsylvania Courts (AOPC). We have reviewed the cases they cite and find no authority for such practice. The AOPC did not participate in the cases cited. In the present case, the trial judge is not charged with any wrongdoing whatsoever and he is not a party to the case anymore than any other judge in a criminal matter. Direct criminal contempt is a crime against the Commonwealth in that Appellant's behavior is alleged to have been disruptive to the orderly business of the court. Simply put, Appellant is appealing the trial court's decision and seeks our review on the merits. However, despite the Commonwealth's dereliction in its duty, we decline to remand for an advocate's brief because our meaningful review is not hampered based on our review of the record, including the trial court's comprehensive opinion.
[3] In this case, Appellant was found in direct criminal contempt. Furthermore, we recognize a contempt sanction is criminal in nature when the trial court's main purpose is to punish the contemnor for disobedience of the court's order. See Diamond v. Diamond, 715 A.2d 1190, 1194 (Pa.Super.1998) (citation omitted).
[4] During the colloquy held on May 16, 2001, the trial judge noted that he was disturbed by some "undercurrents" involving the underlying case. However, the record does not reveal the nature of these "undercurrents."
[5] We note that "[a] contemnor is entitled to the essential procedural safeguards inherent in criminal proceedings when faced with summary punishment for criminal contempt." Commonwealth v. Pruitt, 764 A.2d 569, 576 (Pa.Super.2000) (citing Commonwealth v. Brown, 424 Pa.Super. 333, 622 A.2d 946, 949 (1993)). Due process mandates that a contemnor be afforded notice such that he or she may prepare a defense. Id. A warning given by a judge to an individual that his or her behavior was contumacious may constitute notice. Id. (citation omitted).
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164 Cal.App.3d 936 (1985)
210 Cal. Rptr. 855
THE PEOPLE, Plaintiff and Respondent,
v.
FRED DALE STEGMAN, Defendant and Appellant.
Docket No. 16312.
Court of Appeals of California, Fourth District, Division Two.
February 20, 1985.
*939 COUNSEL
Cesena, Lee & Spencer and Gregory A. Lee for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Frederick R. Millar and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
*940 OPINION
KAUFMAN, Acting P.J.
Defendant was charged by information with one count of possession of cocaine for sale, a violation of Health and Safety Code section 11351. Defendant pled not guilty. Defendant's motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. Defendant then withdrew his plea and entered a plea of guilty to the count charged. Defendant was sentenced to the middle term of three years. Defendant appeals, contending the trial court improperly denied his motion to suppress.
Facts
On May 21, 1982, at approximately 1 a.m., Riverside County Sheriff's officers responded to a report from Jim Jacobson that he smelled the odor of ether coming from a neighbor's residence. When Deputies Hanson and Birney arrived at Jacobson's residence in a sparsely populated, mountainous, rural area, they smelled a very strong odor of ether. The deputies knew ether was a volatile substance, and that there was a danger of explosion and fire. Because of this danger, the Jacobsons were evacuated by the fire department.
There were three houses in the area of the ether odor. The first house was the Jacobson residence. Deputies Hanson and Birney went up to the second residence to try to determine where the ether odor was coming from. The second house appeared to be vacant, an unoccupied weekend cabin. From the porch or deck of the second house, the officers saw lights at the third house. The deputies returned to their unit and called for a backup deputy. Deputy Jordan arrived in approximately 30 minutes. Deputy Jordan also noticed a strong odor of ether in the area.
The three deputies then made an approach to the third house. They climbed over a chain link fence and walked up to the corner of the house. The smell of ether became stronger, the closer they approached to the house. As the deputies walked toward the side of the house, they could see lights on in the bottom rear portion of the house. Deputy Jordan testified as they came toward the rear portion of the house where the lights were, he could see people inside the residence, and he saw plastic vats with a chemical substance in them on the patio in back of the house. The deputies climbed up on a porch and saw through the windows and the open french doors what appeared to be a vacuum pump. Deputy Jordan could hear the motor running, and he saw more plastic vats with chemicals inside. He saw a number of glass beakers inside the house also. Deputy Hanson knocked on the door, which was slightly ajar, and announced "`Sheriff's deputy, open the door.'" The subjects inside the residence immediately began running. *941 The deputies then immediately went inside to pursue the running subjects. Defendant and two other persons were arrested.
The officers walked through the house, but they did not collect any evidence at that time. They opened the windows to let some fresh air into the house, they turned off one of the burners on the kitchen stove that had been turned on, and they attempted to turn off a wall heater, but they were unable to extinguish the pilot light. The officers were inside the house for about 45 minutes to an hour. Fire department personnel then entered the house to secure it from the risk of fire or explosion. The fire department personnel, however, were also unable to turn off the heater pilot light.
The three sheriff's deputies and the fire department personnel then awaited the arrival of the crime specific unit. Deputy Ridgway arrived at approximately 7 a.m. He smelled a heavy odor of ether in the area, and he saw a number of plastic barrels outside the residence on the driveway. He waited approximately half an hour for the arrival of two criminalists from the Department of Justice, and the three entered the house in order to turn off the furnace which the sheriff's deputies and the fire department personnel had been unable to turn off, and to determine whether any ongoing chemical reactions had stopped. Deputy Ridgway and the criminalists were in the house for less than five minutes. They did not take anything from the residence at that time. Deputy Ridgway then made out an affidavit and application for a search warrant. A search warrant was obtained, and served, and a large number of containers and various chemicals were seized.
Contentions
Defendant raises numerous contentions on appeal relating to his motion to suppress evidence. Specifically, defendant contends: (1) Jacobson's report to the police of the smell of ether from a neighbor's house was insufficient as an informant's statement to establish probable cause for the warrant or for the emergency search; (2) the "plain smell" of ether was not an exigent circumstance so as to justify the search; (3) a lawful odor is not probable cause for the issuance of a search warrant; (4) there was no emergency situation which justified the initial warrantless safety search; (5) the officers' actions in looking through the windows violated defendant's privacy rights; (6) the failure to comply with the knock notice rules of Penal Code section 844 rendered the evidence inadmissible; (7) the affidavit, the search warrant, and the search pursuant to the warrant were fruits of the initial illegal emergency search; (8) there was no exigent circumstance justifying reentry of the premises; (9) the officers' conduct was inconsistent with any exigency; and (10) the officers failed to comply with Penal Code section 1531 in executing the search warrant. The People argue that the *942 officers' conduct was reasonable under the circumstances of this case, and that the warrant was properly issued.
Discussion
(1) Defendant first contends Jacobson's report of the smell of ether coming from a neighbor's residence was a mere unsubstantiated hearsay statement of an untested informant, and thus could not supply probable cause for a search or for issuance of a search warrant. Jacobson was a resident in the neighborhood and voluntarily initiated the contact with the sheriff's department. He was not criminally disposed or implicated, and was not acting for pecuniary or other personal gain. Jacobson was a private citizen informant, and as such, may be considered presumptively reliable. (People v. Ramey (1976) 16 Cal.3d 263, 269 [127 Cal. Rptr. 629, 545 P.2d 1333].) Moreover, the information he provided was corroborated by the officers who responded to his call, who also smelled the odor of ether. Jacobson's tip, furthermore, was not the basis for a search or for issuance of a search warrant. Jacobson reported a circumstance which required further investigation. The results of that investigation led to the subsequent search and the application for a search warrant, not the tip alone.
(2a) Defendant next asserts that "plain smell" is not an exigent circumstance justifying a search, and that lawful odors are not probable cause for issuance of a search warrant. The "plain smell" of ether, defendant argues, is not an exigent circumstance so as to justify a search. The "plain smell" of ether was not the justification for any search in the instant case. It was, however, a circumstance which justified further investigation. The officers knew that ether is a highly volatile and explosive substance. An odor detectible at a distance of two houses away in a wooded and mountainous area could be of a toxic volume near the source (see People v. Dickson (1983) 144 Cal. App.3d 1046, 1051 [192 Cal. Rptr. 897]), and although ether is a substance which may have lawful uses, the odor at such a high concentration as to be detected from some distance away is at least as probably consistent with criminal as with innocent activity.
(3) The California Supreme Court has rejected the implication that activity which may be consistent with lawful conduct is not subject to governmental intrusion. Conduct which is consistent with either innocent or criminal behavior may justify an investigative detention. (In re Tony C. (1978) 21 Cal.3d 888, 892-894 [148 Cal. Rptr. 366, 582 P.2d 957].) "[I]f the circumstances are `consistent with criminal activity,' they permit even demand an investigation: the public rightfully expects a police officer to inquire into such circumstances `in the proper discharge of the officer's duties.' [Citation.] No reason appears for a contrary result simply because the *943 circumstances are also `consistent with lawful activity,' as may often be the case." (Id., at p. 894.) If conduct which is consistent with either criminal or innocent activity may justify a physical detention of a person (In re Tony C., supra), then such circumstances may certainly justify the sheriff's deputies here in approaching the residence in question "to resolve that very ambiguity and establish whether the activity is in fact legal or illegal...." (In re Tony C., supra, 21 Cal.3d 888, 894.) (2b) The strong odor of ether emanating from the subject residence was at least as consistent with criminal as with lawful activity, and when coupled with the officers' knowledge of the volatile and toxic properties of ether clearly justified their approach to the house.
We need not address defendant's specific contentions that the smell of ether alone does not justify a warrantless search, and that the odor of a noncontraband substance does not supply probable cause for issuance of a search warrant. Neither a search nor a search warrant in the instant case was based solely on the evidence of the ether odor. There was other evidence which, when combined with the smell of ether, established both the exigency for the entry and probable cause for the issuance of the search warrant. As the officers approached the residence, the smell of ether became stronger. The officers saw plastic vats with chemicals outside the house, and when they went up on the porch, they saw, plainly visible through the windows, a vacuum pump, more vats with chemicals, and glass beakers. When the sheriff's deputy knocked on the open door and identified himself, the people inside the house immediately ran. These additional items of evidence justified the entry into the residence, and not the smell of ether alone.
(4) Defendant next contends there was no emergency situation or exigent circumstance which justified the initial warrantless "safety search." The officers' entry into the house to arrest the running suspects and to avert an explosion of the chemicals under these circumstances clearly falls under the exigency exception to the warrant requirement. Under the facts of this case there existed "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence." (People v. Ramey, supra, 16 Cal.3d at p. 276.) The officers knew the volatile and dangerous nature of ether, they had the Jacobson family evacuated from the area because of the imminent danger of explosion and fire, they noted the ether odor became stronger as they approached the subject residence, the presence of the chemical vats outside the house confirmed that the residence was the source of the ether odor, and the observations from the porch revealed a possible ongoing chemical process involving the ether. The actions of the sheriff's officers were consistent with the demands of the emergency: they quickly secured the fleeing suspects, opened the windows in an effort *944 to dissipate the chemical fumes, and located and attempted to extinguish heat sources (the wall heater and the stove) which could precipitate an explosion of the fumes. They did not collect any evidence at that time.
Defendant relies on People v. Dickson, supra, 144 Cal. App.3d 1046 for the proposition that the odor of ether does not indicate a condition of imminent danger so as to constitute an exigent circumstance permitting warrantless entry of a dwelling. To the extent the Dickson court suggested the risk of explosion or fire from ether in a sufficient concentration to operate a narcotics laboratory is minimal, we disagree with it.[1] It was objectively reasonable under the circumstances of this case for the officers to be concerned about the possible dangers of ether sufficient to permit them to approach the residence for further investigation. The more the officers saw, the clearer it became that large quantities of ether were being used in a clandestine narcotics laboratory. Through the windows the officers could see different types of chemicals, plastic vats with chemicals in them, glass beakers, and a vacuum pump with the motor running. In the face of these observations, it was perfectly reasonable for the officers to apprehend some danger from the ether and the ongoing chemical processes which they observed. As we have noted, the actions of the officers were entirely consistent with their knowledge of the dangerous properties of ether, that the ether fumes could explode if contacted with a heat source or flame. The officers opened the windows for ventilation, to dissipate the ether fumes. They extinguished any lit burners on the stove, and attempted to extinguish the furnace pilot light, although they were unsuccessful. The officers then withdrew from the premises.
The later reentry by Deputy Ridgway and the Department of Justice criminalists was based on a continuing exigency, because of the still-burning furnace. Deputy Ridgway entered with the criminalists to attempt to extinguish *945 the flames, and to determine whether the dangerous chemical reactions had ceased. The reentry was for a time period of no more than five minutes for these purposes. The instant case is distinguishable from People v. Blackwell (1983) 147 Cal. App.3d 646 [195 Cal. Rptr. 298], in which the emergency situation was treated during the initial entry of the premises. At the time of reentry there was no longer a danger that the chemicals would explode. In the instant case, the circumstances constituting the danger still remained.
(5) Defendant argues the officers had no right to be on the porch and make the observations they made through the windows and open french doors of the residence, citing Lorenzana v. Superior Court (1973) 9 Cal.3d 626 [108 Cal. Rptr. 585, 511 P.2d 33]. As the Lorenzana court recognized, however, exigent circumstances may justify an officer's presence in a place to which there is otherwise no express or implied public invitation. (Lorenzana v. Superior Court, supra, 9 Cal.3d 626, 634, and fn. 7, citing People v. Sirhan (1972) 7 Cal.3d 710 [102 Cal. Rptr. 385, 497 P.2d 1121].) The pervasive odor of ether, coupled with the officers' knowledge of its volatile and dangerous properties, justified their approach to the house for investigation of an emergency situation. Otherwise, their observations were of evidence in plain sight from areas (the driveway and the porch) which were the logical and proper access to the residence.
(6) Defendant argues the affidavits supporting the search warrant, the search warrant, and the evidence seized pursuant to the search warrant were all the fruit of the initial, assertedly illegal, search. As we have shown, the initial entry to the residence and the reentry by Deputy Ridgway and the criminalists were justified by a continuing exigency. These entries were not unlawful. Thus, the affidavit was properly made, and the warrant was properly issued and executed.
Defendant next contends the officers' conduct in waiting for backup before approaching the house was inconsistent with a threat of imminent danger and the subjective motivation of preserving lives and property. We reject the intimation in People v. Dickson, supra, 144 Cal. App.3d 1046, that, as a matter of law an officer may not be found to have a subjective, good faith belief there is an emergency if the officer waited for backup assistance before moving to take action. The pervasive odor of ether at the distance indicated in the instant case strongly suggested the ongoing manufacture of illicit drugs. Persons in the process of manufacturing illicit drugs may reasonably be expected to be armed and willing to use arms to prevent apprehension. An officer is not required to rush blindly into a potential illicit drug laboratory and possibly encounter armed individuals guarding the enterprise, with no regard for his own safety just to show his good faith belief *946 the situation is emergent. Ether at such high levels of concentration would be highly dangerous regardless of purpose, thus constituting an exigent circumstance, and an officer is not required to put aside the common sense inference of probable narcotics activity and foolishly imperil his own life. As we have stated, the officers here took reasonable precautions consistent with the emergency situation. They evacuated the only other residents of the area, they had fire department personnel on hand, and took whatever precautions were necessary inside the residence to dissipate the fumes, extinguish sources of heat, and otherwise minimize the risk of fire or explosion.
(7) Defendant urges that the officers did not comply with the knock-notice requirements of Penal Code section 844. Defendant asserts that the officers were required to (1) demand entrance; (2) explain the purpose for which they desired admittance; and (3) give the people time to let the officers in. (See People v. Bennetto (1974) 10 Cal.3d 695 [111 Cal. Rptr. 699, 517 P.2d 1163].) Defendant argues that the officers here simply knocked on the door and forced their way in. Not so. As the evidence plainly showed, Deputy Hanson knocked on the open door and identified himself as a sheriff's deputy. The people inside the house immediately began running away. The law does not require strict compliance with the knock-notice rule where it is reasonable to conclude that the arrest would be frustrated by the delay caused in observing knock-notice requirements. (People v. Maddox (1956) 46 Cal.2d 301, 305-306 [294 P.2d 6]; see People v. Negrete (1978) 82 Cal. App.3d 328, 335-339 [147 Cal. Rptr. 101].) It was apparent that the occupants of the residence in the instant case were engaged in the commission of a crime and were attempting to escape. The officers were not required to wait for defendant or his friends to open the door. For the same reason there was no violation of Penal Code section 1531. (People v. Villanueva (1963) 220 Cal. App.2d 443, 447-449 [33 Cal. Rptr. 811].)
Disposition
Defendant has failed to establish any ground upon which the motion to suppress was erroneously denied. The judgment is affirmed.
McDaniel, J., and Rickles, J., concurred.
NOTES
[1] The Dickson court stated: "Imminence [of danger] connotes a high probability that something will happen and that the event will occur in the very near future. The odds that a narcotics laboratory will explode or catch fire during any given hour or during a given day or week are very slim. Otherwise no one would accept the risk of conducting such an operation. [¶] If ether were so combustible that its mere presence signalled an imminent explosion, society would not have to worry about PCP and related drugs since all the laboratories would long ago have gone up in smoke or been abandoned." (Id., at p. 1067.) There was no empirical evidence presented in the trial court in the Dickson case to substantiate this theory, and we doubt that judicial notice may be taken of such "facts." We note that the illicit reward in terms of the street value of illegally manufactured drugs might well be worth the risk of conducting such an operation. Moreover, even assuming the odds that a narcotics laboratory will explode or catch fire at any given time may be slim, the unpredictability and volatility of the substance enhance rather than diminish the presence of danger. Finally, the risk of explosion or fire is not the only danger to be apprehended. When the odor of ether is in a sufficient concentration to be detected at some distance, as was the case here, there is also a danger, as was noted in the Dickson case (id., at p. 1051), of causing anesthesia or narcosis to any person near the source.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00430-CR
GUILLERMO ORTEGA APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
A jury convicted Appellant Guillermo Ortega of attempted capital murder of
James Newport and assessed his punishment at twenty years’ confinement. The
trial court sentenced him accordingly. In two points, Appellant challenges the
sufficiency of the evidence to support his conviction. Because the evidence is
sufficient to support his conviction, we affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
I. Summary of Facts
On May 13, 1992, Appellant and his brother Ernesto Ortega broke into and
attempted to steal a car belonging to James Newport and his wife. Newport’s
wife woke up after hearing the sound of glass breaking and people talking.
When she recognized the sound of her car starting and then stalling, she woke
up Newport and told him that someone was stealing the car. Newport heard
what sounded like a car starting and ran out of his apartment with a .223 caliber
assault rifle. He testified that once outside, he saw that the car had been backed
out of the parking space; he took a ―firing stance‖ and told the people in the car to
get out of the car. Newport testified that he was standing on the passenger side,
probably about thirty or forty feet away from the car. He stated that two males
got out of the vehicle on the driver’s side, which was ―opposite of [Newport], and
began firing.‖
Newport saw muzzle flashes coming from the weapons held by the two
men, and the flashes were close together. Then, one man ran to the left and the
other ran to the right, both shooting at Newport. He continued to see muzzle
flashes from both firearms. He testified that he could hear the bullets, and one
bullet lodged in the apartment complex building behind where he was standing.
Newport was certain that both men were firing directly at him. He returned fire,
aiming at the man running to the left because the shot was better and safer. The
man running to the left continued to shoot at Newport, and when the man
stopped at the end of the parking lot, Newport shot him, killing him. Newport
2
testified that during the entire encounter, he feared for his life and was
threatened with bodily injury or death.
After he killed that man, Newport gave chase to the second man. Halfway
across the parking lot, Newport realized that he was out of ammunition and in his
underwear, so he went back to his original spot. By that time, he could hear
sirens, so he removed the magazine, laid down his rifle, and waited for the
police.
Crime Scene Investigator Joel Stephenson examined the scene and
discovered Ernesto’s body. Near Ernesto’s body, Stephenson found a .38
caliber revolver with two bullets discharged. This revolver was not the weapon
with which Ernesto was shot. In Ernesto’s pockets, Stephenson found a pair of
pliers or wire cutters and what appeared to be a broken spark plug. He testified
that spark plug pieces are sometimes used to break out car windows. A ―dent
puller‖ was found under Ernesto’s body; dent pullers are commonly used to
―defeat the vehicle ignitions.‖
In examining Newport’s car, Stephenson noted that the driver’s side
window had been broken out, the steering column had been ―defeated,‖ and the
dome light had been disconnected. Two fingerprints lifted from the car matched
the postmortem fingerprints of Ernesto. A palm print lifted from the car’s dome
light cover and a fingerprint from the top of the driver’s side door were identified
as belonging to Appellant.
3
In the parking lot, Stephenson found eleven shell casings from Newport’s
gun. Although no shell casings connected to a third firearm were located, there
were bullet tracks in the roof of Newport’s car with a trajectory from the car
toward the apartments. No inspection of the apartment building for gunshot
damage was ever performed. Newport’s wife testified to hearing three different
guns firing, including two small caliber weapons and the rifle. She testified that it
sounded like a war zone. Cary Gore, a neighbor, testified that he heard only
three or four small caliber shots and ―two rifle shots twice.‖
Kenya Parada, Appellant’s former wife, testified at trial that shortly after
Ernesto’s death, before the couple was married, Appellant had told her that he
and Ernesto were trying to steal a car or some parts from a car when Ernesto
was killed and that both he and Ernesto had fired shots.
II. Sufficiency of the Evidence
After Appellant filed his brief, the Texas Court of Criminal Appeals held that
there is no meaningful distinction between the legal sufficiency standard and the
factual sufficiency standard.2 Thus, the Jackson standard, which is explained
below, is the ―only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense
2
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling
Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).
4
that the State is required to prove beyond a reasonable doubt.‖3 We therefore
apply the Jackson standard to both of Appellant’s sufficiency points.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.4 This standard
gives full play to the responsibility of the trier of fact to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.5 The trier of fact is the sole judge of the weight and
credibility of the evidence.6 Thus, when performing an evidentiary sufficiency
review, we may not re-evaluate the weight and credibility of the evidence and
substitute our judgment for that of the factfinder.7 Instead, we Adetermine
whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
3
Id.
4
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
5
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
6
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).
7
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
5
the verdict.‖8 We must presume that the factfinder resolved any conflicting
inferences in favor of the prosecution and defer to that resolution.9 The standard
of review is the same for direct and circumstantial evidence cases; circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor.10
But the sufficiency of the evidence in a criminal case is not determined by a no-
evidence standard.11
In determining the sufficiency of the evidence to show an appellant=s intent,
and faced with a record that supports conflicting inferences, we ―must presume—
even if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflict in favor of the prosecution, and must defer to that
resolution.‖12
Appellant was charged by indictment with attempted capital murder in the
course of robbery or of burglary of a motor vehicle. The jury charge instructed
the jury that they could convict him of attempted capital murder if they found him
guilty as a principal or as a party. Oddly, even though Appellant was not charged
8
Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
9
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
10
Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.
11
Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled
on other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App.
1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex.
Crim. App. 2000).
12
Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
6
with the offense of criminal conspiracy under section 15.02 of the penal code, a
second-degree offense in this case,13 the jury was also instructed that they could
convict Appellant of attempted capital murder if they found him guilty of criminal
conspiracy, and the jury instruction tracked the language of section 15.02.14
Section 15.02 of the penal code provides,
a) A person commits criminal conspiracy if, with intent that a felony
be committed:
(1) he agrees with one or more persons that they or one or
more of them engage in conduct that would constitute the
offense; and
(2) he or one or more of them performs an overt act in
pursuance of the agreement.
(b) An agreement constituting a conspiracy may be inferred from
acts of the parties.
(c) It is no defense to prosecution for criminal conspiracy that:
(1) one or more of the coconspirators is not criminally
responsible for the object offense;
(2) one or more of the coconspirators has been acquitted, so
long as two or more coconspirators have not been acquitted;
(3) one or more of the coconspirators has not been
prosecuted or convicted, has been convicted of a different
offense, or is immune from prosecution;
(4) the actor belongs to a class of persons that by definition of
the object offense is legally incapable of committing the object
offense in an individual capacity; or
13
See Tex. Penal Code Ann. § 15.02 (West 2011).
14
See id.
7
(5) the object offense was actually committed.
(d) An offense under this section is one category lower than the most
serious felony that is the object of the conspiracy, and if the most
serious felony that is the object of the conspiracy is a state jail
felony, the offense is a Class A misdemeanor.15
The sufficiency of the evidence should be measured by the elements of the
offense as defined by the hypothetically correct jury charge for the case, not the
charge actually given.16 Such a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily restrict the State=s theories
of liability, and adequately describes the particular offense for which the
defendant was tried.17 However, we may not affirm a conviction based on legal
or factual grounds that were not submitted to the jury. 18 The law as authorized
by the indictment means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging
instrument.19
Appellant does not challenge the indictment, but he does challenge the
sufficiency of the evidence to convict him.
15
Id.
16
Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App. 2009); Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
17
Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App.), cert. denied,
130 S. Ct. 515 (2009); Malik, 953 S.W.2d at 240.
18
Malik, 953 S.W.2d at 238 n.3.
19
See Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App. 2000).
8
When the jury is authorized to convict on any one of several theories or
methods of commission of the same offense (for example, two different statutory
definitions of the same offense) and returns a general verdict of guilt, it does not
matter that the evidence is insufficient to sustain one or more of the theories, so
long as the evidence is sufficient to sustain conviction under at least one
theory.20
In the case now before this court, however, Appellant was not charged with
criminal conspiracy in the indictment, but the jury was charged that they must
convict Appellant of attempted capital murder whether they found him guilty of
attempted capital murder as a principal or as a party or they found he had
entered into a conspiracy to commit capital murder. 21 Specifically, the jury was
charged to convict if they found Appellant had
entered into a conspiracy with another to commit the felony offense
of burglary of a motor vehicle and that on or about the 13th day of
May, 1992, in Tarrant County, Texas, in an attempt to carry out this
agreement, if any, Ernesto Ortega did then and there, with the
specific intent to commit the offense of murder of James Newport,
intentionally shoot a firearm at James Newport during the course of
committing or attempting to commit burglary of a motor vehicle of
James Newport, which amounted to more than mere preparation
20
Grissam v. State, 267 S.W.3d 39, 41 (Tex. Crim. App. 2008); Swearingen
v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (citing Rabbani v. State, 847
S.W.2d 555, 558–59 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993));
see also Jefferson v. State, 189 S.W.3d 305, 311–13 (Tex. Crim. App.)
(analyzing whether a statute that does not require a unanimous verdict as to
different manner and means of committing the same offense violates due
process), cert. denied, 549 U.S. 957 (2006).
21
See Tex. Penal Code Ann. § 15.02.
9
that tended but failed to effect the commission of the offense
intended and that such offense was committed in furtherance of the
unlawful purpose to commit burglary and was an offense that should
have been anticipated as a result of the carrying out of the
agreement.
The defendant in this case was Appellant, not Ernesto. There was a
similar instruction with robbery as the subject of the conspiracy. The jury was
instructed in the conspiracy instruction that they must find an agreement. An
agreement is not an element of attempted capital murder, and the State is not
required to prove an agreement to prove a defendant’s guilt of attempted capital
murder, either as a principal or as a party. To instruct the jury that an agreement
is a necessary element of the offense either improperly increases the State’s
burden or allows the jury to convict Appellant of conspiracy, an offense of which
he was not accused and for which he was not indicted.
Appellant argues that the evidence is insufficient to prove attempted capital
murder, as opposed to robbery or burglary, because there is no evidence that he
knew that Ernesto had a gun and no evidence that Appellant fired any shots.
Appellant apparently argues that there is no evidence of an agreement or
meeting of the minds regarding using a firearm and no evidence that he, as
opposed to Ernesto, fired a weapon. Although the trial court charged the jury to
convict under the conspiracy statute, which requires an agreement,22 an
agreement is not an element of capital murder, attempted capital murder,
22
See id. § 15.02(a).
10
burglary, or robbery. There is no evidence of an agreement between Ernesto
and Appellant. There is evidence that both participated in entering the vehicle
and that one of the brothers attempted to get the vehicle running. There is
evidence that Appellant touched the interior dome light cover of the vehicle.
There is evidence that Ernesto had the tools to enter with him. But the State was
never required to prove an agreement to prove Appellant guilty of attempted
capital murder.23
The State was required to prove ―the specific intent to commit the offense
of murder,‖24 but not an agreement, in order to prove attempted capital murder.
That intent may be inferred from any act on the part of Appellant, acting with
intent to promote or assist the commission of attempted capital murder, or to
solicit, encourage, direct, aid, or attempt Ernesto to commit capital murder. Here,
there is evidence that Appellant participated in robbery and burglary and that in
the course of committing those offenses, he fired a firearm at Newport because
Newport testified that he saw muzzle flashes not only from Ernesto’s location but
also from Appellant’s location. This evidence is sufficient to prove those
elements of the offense despite the absence of evidence of an agreement.
23
See Pereira v. United States, 347 U.S. 1, 11, 74 S. Ct. 358, 364 (1954);
Ex parte Brosky, 863 S.W.2d 783, 784, 788 (Tex. App.—Fort Worth 1993, no
pet.).
24
See Tex. Penal Code Ann. § 15.01 (West 2011) (defining criminal
attempt), id. § 19.03 (defining capital murder).
11
Appellant was not charged by indictment with conspiracy, there was no
direct evidence of conspiracy, and that instruction should not have been
submitted to the jury. But the correct jury charge would have allowed the jury to
convict only of the offense alleged in the indictment and properly proved by the
evidence—attempted capital murder, or a lesser included offense.25 Conspiracy
is not a lesser included offense because it requires proof of an additional
element: an agreement. We therefore hold that, under the appropriate standard,
the evidence was sufficient to support Appellant’s conviction of attempted capital
murder as actually alleged in the indictment. Because the jury returned a general
verdict, we overrule Appellant’s points.
III. Conclusion
Having overruled Appellant’s points, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 9, 2011
25
See Malik, 953 S.W.2d at 240.
12
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350 F.2d 389
Lester Alvin BUATTE, Appellant,v.UNITED STATES of America, Appellee.
No. 19912.
United States Court of Appeals Ninth Circuit.
August 24, 1965.
Alan Philip Bayham, Phoenix, Ariz., for appellant.
William P. Copple, U. S. Atty., Tom Karas, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.
HAMLEY, Circuit Judge.
1
Lester Alvin Buatte appeals from a judgment convicting him of assault with intent to commit murder on the person of Dan Secody, in violation of 18 U.S.C. §§ 1152 and 113(a) (1964). Consideration of the grounds for reversal urged by Buatte requires that we first review prior criminal proceedings involving this defendant.
2
On April 7, 1962, Buatte shot and killed fourteen-year-old Alice Secody in her parents' tent on the Navajo Indian Reservation in Arizona. At the same time Buatte shot Alice's brother, Dan, and struck him with a hammer. Dan's injuries did not prove fatal. On April 17, 1962, Buatte was indicted for the murder of Alice Secody. At his jury trial on that charge, in December, 1962, Buatte's principal defense was insanity. On December 19, 1962, he was convicted, on a jury verdict, of murder in the second degree.
3
On March 2, 1964 another panel of this court reversed, with directions to grant Buatte's motion for acquittal. This court held that, according to the principle set forth in Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750, the Government failed to maintain its burden of proving beyond a reasonable doubt that Buatte was sane in the legal sense at the time he killed Alice Secody. Buatte v. United States, 9 Cir., 330 F.2d 342.
4
Petitioning for a rehearing, the Government asserted among other things that if the judgment is to be reversed, this court should remand for a new trial rather than with directions to acquit. In its petition the Government undertook to indicate the additional evidence which it might produce in a new trial and which, the Government argued, would be adequate to support a conviction on the murder charge. This court denied the petition for rehearing, holding that a new trial would serve no purpose. We stated that neither evidence listed in the Government's petition "* * * nor any other conceivable evidence would suffice to satisfy the requirements set forth in Davis v. United States, * * *." Buatte v. United States, 9 Cir., 331 F.2d 848.
5
One day after the murder trial began, the Government obtained an indictment against Buatte charging him with assaulting Dan Secody with intent to commit murder. After the reversal of the murder conviction and the directed acquittal of Buatte on that charge, the Government moved for and obtained a dismissal of the assault charge. This was done to enable Arizona state authorities to institute an insanity commitment proceeding against Buatte in the Superior Court of the State of Arizona in and for Maricopa County.
6
On July 17, 1964, the superior court, after a hearing, determined that Buatte was then sane, and ordered his release from state custody. Later the same day, the United States filed a complaint again charging Buatte with assault with intent to murder Dan Secody. On August 14, 1964, Buatte was arraigned, and defense counsel was appointed; Buatte waived his right to have the matter presented to the grand jury, and an information was filed charging him with the described assault, in violation of 18 U.S.C. §§ 1152 and 113(a) (1964).
7
As he had done in the murder case, Buatte raised the defense of insanity. He produced substantial evidence tending to support this defense. The burden was thus placed upon the Government to establish to the satisfaction of the jury beyond a reasonable doubt, that Buatte was sane in the legal sense at the time he committed the assault. Buatte v. United States, 9 Cir., 330 F.2d 342, 345, applying the principle expressed in Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360. In an effort to meet this burden, the Government produced both lay witnesses and expert medical testimony.
8
Buatte contends on this appeal that, viewing the evidence as a whole, the district court should have held that Buatte's sanity at the time of the assault was not established beyond a reasonable doubt, and on that ground the court should have granted defendant's motion for judgment of acquittal made at the close of all the evidence.
9
An evaluation of the evidence bearing upon the question of Buatte's sanity at the time the assault was committed requires an understanding of the background facts. On April 7, 1962, Buatte was hitchhiking through a desert in northern Arizona. He stopped, entered the tent of Charlie Secody, and asked for a drink of water. Dan Secody, age eleven, got the water for Buatte and observed appellant put his hand on the thigh of Alice Secody, age fourteen. Alice Secody told Buatte not to bother her or she would call the police. Buatte obtained a hammer and struck Dan Secody; then he shot both children in the head.
10
Charlie Secody, the father, was nearing the tent and honking his horn at some sheep which were in the road. He saw Buatte standing by his tent and, later, running on the highway and persistently hailing a truck to stop. The truck stopped, Buatte boarded, and the truck continued to the Gap Trading Post which was approximately ten miles away. At this place Buatte was taken into custody.
11
Buatte, when confronted with a holster which the police found in a bag he was carrying and asked about the location of his gun, replied that he had no gun and that he had found the holster while hitch-hiking. He also stated that he had not shot anyone, although investigating officers had not at that time established that the children had been shot. Subsequently, police found a pistol belonging to Buatte in a tarpaulin in the back of the truck where he had ridden.
12
Police also found a receipt for the gun in Buatte's billfold. When confronted with the receipt defendant said he owned a gun but that it had been stolen. Buatte claimed not to be able to remember any of the occurrences for the one hour during which he left the highway, went to the Secody tent, and returned to the highway to flag the truck.
13
Buatte presented the basis for his defense of insanity through the testimony of several expert witnesses. The defendant also introduced exhibits showing that in 1952 and 1957 the Navy and Army, respectively, discharged him after determining that he had a psychotic condition.1
14
Dr. Charles R. Keith, testifying for defendant, stated that he and his staff had examined defendant for a period of three and one-half months starting in June of 1962. Based on that extensive examination Dr. Keith was of the opinion that Buatte was suffering from a schizoid personality disorder. He described this as a condition where the patient has few if any ties with other people, and the symptoms often appear only when a situation of stress arises. On cross-examination, Dr. Keith testified that in his experience he had never seen a schizophrenic reaction which lasted only one to three hours as this one was claimed to have lasted. He also stated that generally amnesia resulting from a psychosis has an abrupt onset and termination, but that this was not true in Buatte's case. Dr. Keith could not say either that a psychosis had occurred or that one had not occurred.
15
Dr. Sydney Smith, a clinical psychologist, was Buatte's second expert witness. He testified that he examined Buatte on December 10, 1962, eight months after the shooting, giving him four recognized psychological tests. On the basis of his examination Dr. Smith described defendant in the following manner: a "hollowshell man, who was incapable of appreciating ordinary feelings and the ordinary human relationships * * *"; having "a peculiar kind of blandness, a lack of anxiety about anything he has done or anything he has said, which is a part of his feelinglessness * * * a very common symptom * * * that appears in schizophrenic conditions"; being "autistic, by which we mean that he has a tendency quite frequently to be bound more closely to fantasy than he is to reality"; being "burdened with many, many strange irrational fears that intrude upon his consciousness and cause him often to be unsettled and deeply troubled, in ways that can lead him at times to have to act upon these fears in a very impulsive fashion, without much in the way of judgment"; being sometimes without ability to give any adequate recall; and being a "simple schizophrenic."
16
Dr. Smith testified that in his opinion the kind of fears Buatte apparently had immediately prior to the incident, arising from his effort to get off of the desert before darkness set in, and other events prior to the shooting, would have been sufficient to bring about a possible schizophrenic reaction during which defendant could not know right from wrong.
17
Dr. Harrison Baker, a psychiatrist, also testifying for defendant, stated that based on his examination of Buatte he believed that defendant was a chronic undifferentiated schizophrenic. In Dr. Baker's opinion, during the time in question Buatte was in a psychotic episode of short duration, and that he then "* * * did not have any knowledge of being, of his actions, and he could not recall them, and he was not in that period able to differentiate what was real from what was not real." Dr. Baker stated that defendant could not tell right from wrong during the episode.
18
The Government presented two expert witnesses on the insanity issue, Dr. Richard E. H. Duisberg and Dr. William D. McGrath, both of whom are psychiatrists.
19
On the basis of a lengthly hypothetical question,2 each of the two doctors gave his opinion that no schizophrenic reaction took place and that, under the hypothesized facts, the individual would know the difference between right and wrong. Dr. McGrath had never heard of a psychosis lasting only one or two hours, and Dr. Duisberg thought that such a schizophrenic state would last longer than one hour. Dr. Duisberg, as his reasons for his answer to the hypothetical question, stated that the behavior under the circumstances was too logical and that the acts following the shooting evidenced a realization that the acts of injuring the two children were wrong. He explained the amnesia as an escape from the consequences of the violent acts.3
20
There is no evidence that Dr. McGrath examined Buatte, and in any case his testimony was based solely on the hypothesized facts. Dr. McGrath gave no reasons to support his conclusion that no schizophrenic reaction occurred at the time of the shooting. The doctor testified that despite the subsequent development of amnesia, the defendant would have known right from wrong at the time of the experience.
21
The Government also presented evidence, through the testimony of Dr. Duisberg, tending to show that Buatte's conduct immediately preceding and following the shooting was that of a person who knew that he was doing something wrong in attacking Dan Secody. This approach by the Government was further developed by its cross-examination of defense witness Dr. Smith, although that witness reasserted his opinion that defendant did not know right from wrong at the time of the shooting. The same approach was used in the cross-examination of Dr. Baker, another defense witness.
22
The jury finding that Buatte was sane in the legal sense at the time of the assault should not be set aside unless we conclude that reasonable men must necessarily possess a reasonable doubt as to Buatte's sanity at the time in question. See Dusky v. United States, 8 Cir., 295 F.2d 743, 756. We do not so conclude. The weight of conflicting medical testimony is for the fact finder to determine. See Tuck v. United States, 9 Cir., 282 F.2d 405, 410.
23
Buatte relies on the former case in which he was charged with the murder of Alice Secody to show that the Government's evidence was insufficient in this case.4 We have examined the record in the earlier murder trial. The Government there presented no evidence that a schizophrenic reaction lasts much longer than an hour. Nor in that case did the Government present through its single expert on insanity the reasoning that Buatte did not experience true amnesia or a schizophrenic reaction because his conduct preceding and following the period in question was too logical.
24
With the exception of Dr. Duisberg's testimony, the Government's evidence on the sanity issue at the former trial was directed to show that in the eyes of lay people for whom Buatte had worked, or who saw him prior to the shooting, Buatte was acting normally. Dr. Duisberg's testimony, in answer to a hypothetical question, that such a person "might well have known the difference" between right and wrong on April 7th, 1962, fell short of his clear cut expression of opinion in the present case.
25
In our view, the evidence countering the insanity defense was substantially stronger in the present case than in the murder trial. It follows that the ruling of this court in the murder case that the Government had not sustained its burden on the sanity issue, does not stand in the way of a contrary ruling here.5
26
We conclude that the district court did not err in denying the motion for judgment of acquittal, made on the ground that the Government did not sustain its burden on the insanity issue.
27
Buatte also argues that his right to a speedy trial has been violated, stating that an eighteen to thirty-two month wait before the assault trial commenced was too long. The facts concerning the delay in commencing the assault trial are set forth at the outset of this opinion.
28
In passing upon this contention we take into consideration the four factors stated in United States v. Simmons, 2 Cir., 338 F.2d 804, 807, which are: the length of delay, the reasons for the delay, the prejudice to defendant, and waiver by the defendant. See also Sanchez v. United States, 9 Cir., 341 F.2d 225, 228-229.
29
Buatte at no time voiced any objection as to the length of time between the assault and commencement of the trial on that charge. Nor did he at any time seek to have the assault case brought to trial at an earlier date. Buatte has not shown how he was in any way prejudiced by the delay between the return of the indictment and the time of trial. In fact it was on his motion that the trial date was extended from October 14, 1964 to December 1, 1964.
30
We conclude that appellant was not denied his right to a speedy trial.
31
Buatte also questions the admissibility of evidence which was presented concerning the death of Alice Secody.
32
The evidence that Buatte shot Alice Secody was part of the overall occurrence. Moreover, even though the murder conviction was set aside and an acquittal entered, the evidence that Buatte shot Alice Secody was relevant to show that his shooting of Dan Secody was not a mistake or accident, and it was relevant to the issue of intent. See Himmelfarb v. United States, 9 Cir., 175 F.2d 924, 941. In addition, evidence of other criminal acts which involve or explain the circumstances of the crime charged is admissible. United States v. Spatuzza, 7 Cir., 331 F.2d 214, 217.
33
Affirmed.
Notes:
1
For a summary of Buatte's mental illness in the armed services as shown by the records, see Buatte v. United States, 9 Cir., 330 F.2d 342, 344
2
Buatte refers to the hypothetical question as being incomplete. We note, however, that in defendant's cross-examination he filled in several of the details. No other incompleteness in the hypothetical question has been called to our attention
3
While the testimony of Dr. Duisberg was elicited by a hypothetical question, the doctor had examined Buatte on two occasions, May 18, 1962, and December 4, 1962. However, the doctor was not, as part of the hypothetical case told to rely on, nor does it appear that he did rely on, the information gained from his examinations of defendant
4
Defendant also relies upon the cases of McKenzie v. United States, 10 Cir., 266 F. 2d 524, and United States v. Westerhausen, 7 Cir., 283 F.2d 844. In McKenzie the Government, to prove the sanity of defendant, relied entirely on the testimony of non-expert witnesses who testified that they observed nothing unusual about defendant before or after the crime. The defendant, however, offered disinterested psychiatrists who testified that defendant was insane. 266 F.2d 527-28. In Westerhausen the Government did have expert testimony before the court, but the court held that in view of the strength of the evidence presented by the defense, the Government failed to carry its burden of proof on the insanity issue. As the court said, 283 F.2d at 852:
"The quantum and nature of proof the Government must offer to take the case to a jury varies in different situations and to some degree depends upon the quantum and nature of proof the defendant offers."
5
As noted earlier in this opinion, in denying the petition for rehearing in the murder case, we stated that no "* * * other conceivable evidence would suffice to satisfy the requirements set forth in Davis v. United States, * * *." Buatte v. United States, 9 Cir., 331 F.2d 848. The quoted statement must be construed in the light of the facts and circumstances which had been brought to the attention of the court in that case. We do not consider this statement as a decisional ruling that in another criminal case arising out of the same general incident, but involving another victim, the Government would necessarily be incapable of sustaining its burden of proof on the insanity issue. A somewhat analogous problem was before this court in United States v. Page, 9 Cir., 302 F.2d 81. We there pointed out that where the question involves the sufficiency of the evidence, each case necessarily depends on its own facts
Buatte argues that the decision of this court in the murder case worked a collateral estoppel which prevents the Government from asserting or proving, in the present case, that Buatte was sane at the time in question. Buatte cites no authority supporting such a theory. In our opinion the concept of collateral estoppel has no application under the circumstances of this case.
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Docket No. 105018.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE BOARD OF EDUCATION, JOLIET TOWNSHIP HIGH
SCHOOL DISTRICT No. 204, Appellee, v. THE BOARD OF
EDUCATION, LINCOLN WAY COMMUNITY HIGH SCHOOL
DISTRICT No. 210 et al. (The Illinois State Board of Education et
al., Appellants).
Opinion filed October 17, 2008.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride, Karmeier,
and Burke concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion.
OPINION
In 1998, the registered voters of a 320-acre parcel of land in Will
County filed a petition to detach the parcel from Joliet Township
High School District No. 204 and annex it to Lincoln Way
Community High School District No. 210, pursuant to section 7–2b
of the Illinois School Code (105 ILCS 5/7–2b (West 1998)). District
204 objected to the petition and argued inter alia that section 7–2b
violates the Equal Educational Opportunities Act of 1974 (EEOA)
(20 U.S.C. §1701 et seq. (2000)). The hearing officer for the Illinois
State Board of Education (Board) found that the conditions of section
7–2b were met and recommended that the petition be granted. District
204’s EEOA claim was not considered when the hearing officer made
this recommendation, as the hearing officer found that the claim was
outside the scope of the Board’s authority under section 7–2b. The
Board accepted the hearing officer’s findings and granted the petition
for detachment/annexation. The circuit court of Will County affirmed
the Board’s order and found that the order did not violate the
constitution or federal statute. On appeal, the appellate court found
that section 7–2b was preempted by the EEOA and was, therefore,
unconstitutional. 373 Ill. App. 3d 563. The appellate court remanded
the cause to the Board to consider District 204’s EEOA claim. The
Board filed a petition for leave to appeal pursuant to Supreme Court
Rules 317 (210 Ill. 2d R. 317) and 315 (210 Ill. 2d R. 315). This court
granted the Board’s petition and for the following reasons, we reverse
the judgment of the appellate court and remand the cause to the
circuit court for consideration of District 204’s EEOA claim.
BACKGROUND
In July of 1998, four individuals who made up all of the registered
voters of a contiguous 320-acre parcel of farm land in Will County
filed a petition with the Illinois State Board of Education (Board) to
detach their property from Joliet Township High School District No.
204 (District 204) and attach it to Lincoln Way Community High
School District No. 210, pursuant to section 7–2b of the Illinois
School Code (105 ILCS 5/7–2b (West 1998)).
The parcel of land in question is situated in an area of the state
where the grade schools and high schools are split into separate
school districts and the boundaries of these districts are not
coterminous. The children who reside on the disputed parcel of land
currently attend grade school in the New Lenox Elementary School
District No. 122. The high school district that generally serves the
New Lenox Elementary School District is Lincoln Way Community
High School District No. 210. However, the parcel of land in question
does not fall within the boundaries of High School District 210, it
falls within the boundaries of Joliet High School District No. 204.
Thus the children who reside on the parcel will not attend the same
high school as the majority of their former grade school classmates.
-2-
Section 7–2b allows for the detachment of land from one district
and annexation to another where the affected land lies within
elementary and high school districts with noncoterminous boundaries.
Section 7–2b allows the land to be detached and annexed at either the
elementary or high school level. Thus, it is the petitioner’s choice
which district they leave and which they join. 105 ILCS 5/7–2b(a)
(West 1998). A parcel of land is eligible for detachment and
annexation only if (1) it represents 10% or less of the equalized
assessed value of the district; (2) the parcel constitutes 10% or less of
the territory of the district;1 (3) two-thirds of the registered voters of
the parcel support the petition; and (4) the annexation will make the
boundaries of the grade school and high school districts for the
affected parcel identical. 105 ILCS 5/7–2b(a) (West 1998). Before
this court, neither party disputes that these four conditions are met.
Before the Board’s hearing officer, District 204 argued inter alia
that the detachment and annexation of the parcel increased
segregation in violation of the Equal Educational Opportunities Act
of 1974. 20 U.S.C. §1701 et seq. (2000). The EEOA prohibits a state
from denying “equal educational opportunity to an individual on
account of his or her race, color, sex, or national origin.” 20 U.S.C.
§1703 (2000). The EEOA delineates a number of activities that
constitute discrimination. Among these are the assignment of a
student to a school within the district in which he or she resides other
than the one closest to his or her residence “if the assignment results
in a greater degree of segregation.” 20 U.S.C. §1703(c) (2000). The
EEOA also prohibits the transfer of a student from one school to
another if “the purpose and effect of such transfer is to increase the
segregation of students.” 20 U.S.C. §1703(e) (2000).
District 204 claimed the detachment and annexation of the parcel
increases segregation because the four individuals who petitioned for
annexation are white while the population of District 204, from which
1
Section 7–2b has subsequently been amended to reduce the percentage
of both value and land mass that may be detached. Under the new law, the
land to be detached may constitute no more than 5% of the assessed value
and territory of the district. 105 ILCS 5/7–2b (West 2006). This change has
no impact on this decision.
-3-
they seek to be detached, is “60% minority.”2 District 204 further
asserted that allowing the “land to be detached *** from a largely
minority school district (60%) and annexed to an almost completely
white school district” would increase segregation based on race. On
this basis, District 204 described section 7–2b as a “mechanism for
‘white flight’ ” and stated that it fostered “division among the races”
in violation of the EEOA.
The hearing officer refused to hear District 204’s EEOA claim
because section 7–2b contains a limiting clause that prohibits the
Board from hearing any evidence or considering any issue except
those necessary to determine if the four conditions of section 7–2b
have been met. See 105 ILCS 5/7–2b (West 1998) (“The [Board]
shall have no authority or discretion to hear any evidence or consider
any issues except those that may be necessary to determine whether
the limitations and conditions of this Section have been met”). The
hearing officer expressly stated in his proposed findings of fact and
conclusions of law that District 204’s EEOA claim was “beyond the
scope of the [Board’s], and by extension the Hearing Officer’s
authority.”3 The Board accepted the hearing officer’s findings of fact
and conclusions of law and granted the section 7–2b petition.
Thereafter, District 204 filed a complaint for administrative review
with the circuit court.
On administrative review, the circuit court confirmed the Board’s
decision to grant the petition, noting that there was “no Constitutional
problem with the actions of the [Board].” The circuit court also stated
that “mere suspicion” is not sufficient to establish racial motivation.
District 204 appealed this ruling.
2
Because of the procedural history of this case, District 204 has never
had the opportunity to establish the truth of these statements. While this
court takes no position on the veracity of these assertions, we include them
to illustrate the basis of District 204’s EEOA claim.
3
Public Act 91–46, which became effective on June 30, 1999, changed
the body responsible for reviewing a section 7–2b petition from the Illinois
State Board of Education to the Regional Board of School Trustees. This
modification has no bearing on this opinion.
-4-
On appeal, the appellate court affirmed that the EEOA claim was
beyond the Board’s authority, but vacated the circuit court’s ruling on
the merits of the EEOA claim and remanded the cause to the hearing
officer to develop a record on the EEOA claim.
The appellate court agreed that the limiting clause of section 7–2b
prohibited the Board from hearing or considering District 204’s
EEOA claim. Specifically, the appellate court held that the Board
“acted in accord with its mandate when it refused to determine
whether section 7–2b or the proposed detachment/annexation violated
the [EEOA].” 373 Ill. App. 3d at 568.
The appellate court went on to conclude that section 7–2b not
only stripped the Board of jurisdiction over the EEOA claim, but also
denied jurisdiction over the claim to the circuit court under
administrative review law. The appellate court noted that the circuit
court’s power to review the decisions of administrative agencies is
limited in scope to the statutory powers provided by the General
Assembly. 373 Ill. App. 3d at 569, quoting Ill. Const. 1970, art. VI,
§9 (“Circuit Courts shall have such power to review administrative
action as provided by law”). The Code of Civil Procedure provides
that a hearing for administrative review is limited to questions of law
and fact that are presented to the court by the record. “No new or
additional evidence *** shall be heard by the court.” 735 ILCS
5/3–110 (West 2006). The appellate court reasoned that because
section 7–2b limited the Board’s authority to reviewing only the
procedural requirements for a petition for detachment and annexation,
the circuit court’s authority on administrative review was similarly
“limited to determining whether the Board erred in finding those
requirements met.” 373 Ill. App. 3d at 570. Accordingly, the appellate
court vacated the circuit court’s determination that the Board’s
actions did not violate federal law, reasoning that the Board itself “did
not have jurisdiction to even develop a record which the circuit court
could then rely upon in formulating any constitutional decision.” 373
Ill. App. 3d at 570. Thus, the “circuit court lacked both the
jurisdiction and the evidence to make such an independent finding.”
373 Ill. App. 3d at 569.
Finally, the appellate court found that section 7–2b was
preempted by the EEOA and remanded the cause to the Board to
conduct a hearing on District 204’s EEOA claim. The appellate court
-5-
noted that “ ‘state law is nullified to the extent that it actually
conflicts with federal law.’ ” 373 Ill. App. 3d at 572, quoting Fidelity
Federal Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 73
L. Ed. 2d 664, 675, 102 S. Ct. 3014, 3022 (1982). The appellate court
noted that the right of a student to be assigned to a school on the basis
of geography and not race, as provided in the EEOA, could not be
nullified by state action. Thus, the court reasoned that section 7–2b’s
“restricting the Board’s ability to hear claims of racial segregation,
‘ “stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of [the EEOA.]” ’ ” 373 Ill. App. 3d at
572, quoting Fidelity Federal Savings & Loan Ass’n, 458 U.S. at 153,
73 L. Ed. 2d at 675, 102 S. Ct. at 3022, quoting Hines v. Davidowitz,
312 U.S. 52, 67-68, 85 L. Ed. 581, 587, 61 S. Ct. 399, 404 (1941).
Therefore, the appellate court found that section 7–2b’s limitation
clause was preempted by the EEOA under the supremacy clause of
the United States Constitution and remanded the cause to the Board
for further consideration. 373 Ill. App. 3d at 573.
In its petition for leave to appeal to this court, the Board argues
that the appellate court erred in holding that section 7–2b was
preempted by the EEOA. We granted the Board’s petition. For the
following reasons, we reverse the decision of the appellate court.
QUESTION PRESENTED
Both parties agree that District 204’s EEOA claim must be heard
and decided by a body of competent jurisdiction. The parties disagree
over the proper means of effectuating this hearing.
The Board, as appellant, takes the position that the EEOA does
not require the Board to review EEOA claims and that these claims
are better developed in and decided by the circuit court. Conversely,
District 204 argues that the EEOA mandates that an “educational
agency,” in this case the Board, consider its EEOA claim. Therefore,
District 204 asserts that the appellate court was correct and that
section 7–2b must be preempted because it conflicts with the EEOA
by prohibiting the Board from hearing the EEOA claim.
District 204 further argues that the Board’s position is infeasible,
as the circuit court is prohibited from considering its EEOA claims
because administrative review is the exclusive means of reviewing an
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administrative decision and section 7–2b prevents the development
of a record that is sufficient given the limited scope of administrative
review. Thus, District 204 argues that the current legislative
framework is preempted because it is intentionally crafted to make it
“impossible for a factual record regarding the effect of segregation to
be considered when determining whether to grant a petition for
detachment.” District 204 notes that “[s]tates have an affirmative duty
to take measures to comply with the mandate set forth in the EEOA,”
and that the current legislative framework represents the General
Assembly’s “naked attempt to sidestep the federal mandate set forth
in the EEOA.”
There are then two areas of dispute between the parties. First, the
parties argue whether the EEOA requires that the Board consider the
EEOA in granting a petition for detachment/annexation. Second, if
the Board does not have to consider the EEOA, the parties dispute
whether the circuit court can review an alleged violation outside of
administrative review.
The resolution of both arguments turns on the constitutional law
doctrine of preemption. However, in the first argument, preemption
is only implicated if we agree with District 204’s interpretation of the
EEOA. Therefore, the initial question presented for the first argument
is a question of statutory interpretation, as this court must determine
what the EEOA mandates of an “educational agency.”
The second argument presents a question of preemption, as this
court must determine whether the current legislative framework
creates a situation where the state can avoid compliance with “the
mandate set forth in the EEOA.”
STANDARD OF REVIEW
Whether state law is preempted by a federal statute is a question
of law, which is subject to de novo review. Kinkel v. Cingular
Wireless, LLC, 223 Ill. 2d 1, 15 (2006), citing Schultz v. Northeast
Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 288 (2002).
Similarly, questions of statutory interpretation present questions of
law and are therefore reviewed de novo. Harshman v. DePhillips, 218
Ill. 2d 482, 490 (2006).
-7-
ANALYSIS
The underlying basis of both arguments is preemption. The
preemption doctrine originates with the supremacy clause of article
VI of the United States Constitution, which provides that the “Laws
of the United States *** shall be the supreme Law of the Land; and
Judges in every State shall be bound thereby, any Thing in the
Constitution or laws of any State to the Contrary notwithstanding.”
U.S. Const., art. VI, cl. 2. Thus, when state law conflicts with a
federal statute, state law is preempted by the supremacy clause and its
application is unconstitutional. Crosby v. National Foreign Trade
Council, 530 U.S. 363, 388, 147 L. Ed. 2d 352, 371, 120 S. Ct. 2288,
2302 (2000); see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,
540, 150 L. Ed. 2d 532, 550, 121 S. Ct. 2404, 2414 (2001).
A state statute may be preempted in three situations. First, a
statute may be preempted through the express language of a
congressional enactment. Lorillard Tobacco Co., 533 U.S. at 540-41,
150 L. Ed. 2d at 550, 121 S. Ct. at 2414, citing Cipollone v. Liggett
Group, Inc., 505 U.S. 504, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992).
A state statute may also be preempted where the “depth and breadth
of a congressional scheme” implies that Congress “occupies the
legislative field.” Lorillard Tobacco Co., 533 U.S. at 541, 150 L. Ed.
2d at 550, 121 S. Ct. at 2414; see also Fidelity Federal Savings &
Loan Ass’n v. de la Cuesta, 458 U.S. 141, 73 L. Ed. 2d 664, 102 S.
Ct. 3014 (1982). Finally, a statute may be preempted where the state
law presents a “conflict with a congressional enactment.” Lorillard
Tobacco Co., 533 U.S. at 541, 150 L. Ed. 2d at 550, 121 S. Ct. at
2414; see also Geier v. American Honda Motor Co., 529 U.S. 861,
146 L. Ed. 2d 914, 120 S. Ct. 1913 (2000).
In the present case, only the latter form of preemption, conflict
preemption, is at issue. Conflict preemption occurs where “ ‘under
the circumstances of [a] particular case, [the challenged state law]
stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.’ ” Crosby, 530 U.S. at 373, 147
L. Ed. 2d at 361, 120 S. Ct. at 2294, quoting Hines, 312 U.S. at 67,
85 L. Ed. at 587, 61 S. Ct. at 404. An obstacle to a congressional
objective is sufficient to find preemption when a state law would
operate in a way that a federal statute, when considered as a whole,
would be rendered ineffective and its purpose and intended effects
-8-
frustrated. Crosby, 530 U.S. at 373, 147 L. Ed. 2d at 361, 120 S. Ct.
at 2294 (citing Savage v. Jones, 225 U.S. 501, 533, 56 L. Ed. 1182,
1195, 32 S. Ct. 715, 726 (1912), and Hines, 312 U.S. at 67 n.20, 85
L. Ed. at 587 n.20, 61 S. Ct. at 404 n.20).
In the present case, the Board asserts that the appellate court erred
in finding preemption on two bases. First, that the EEOA does not
require that the Board, as an “educational agency,” consider the
segregative effect that a section 7–2b petition would have on the
parties. Second, that review of District 204’s EEOA claim can be had
outside of administrative review under the circuit court’s original
jurisdiction. We will address each argument in turn.
I
The first argument presented by the Board that the appellate court
erred in finding that the EEOA preempts section 7–2b is that “nothing
in the EEOA specifically requires [EEOA] claims to be decided by
the [Board], rather than by a circuit court.” Under the Board’s view,
the two statutes do not directly conflict and, therefore, the limiting
clause of section 7–2b is constitutional.
District 204, in reply, argues that the EEOA requires an
“educational agency” to consider racial segregation in making school
assignment decisions. Thus, District 204 argues that section 7–2b’s
limiting clause prevents the Board from considering the EEOA and
is thus preempted.
Both parties agree that section 7–2b’s limiting clause prevents the
Board from considering the EEOA in making decisions on
detachment/annexation petitions. The limiting clause of section 7–2b
states that the Board “shall have no authority or discretion to hear any
evidence or consider any issues except those that may be necessary to
determine whether the limitations and conditions of this Section have
been met.” 105 ILCS 5/7–2b (West 1998). As noted previously,
section 7–2b contains four provisions that must be met before a
petition for detachment/annexation can be granted. EEOA compliance
is not among these four factors. See 105 ILCS 5/7–2b (West 1998).
However, the parties disagree as to what the EEOA requires of
“educational agencies.” District 204 cites to section 1703 of the
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EEOA to support its conclusion that educational agencies are required
to enforce the EEOA. Section 1703 states:
“No State shall deny equal educational opportunity to an
individual on account of his or her race, color, sex, or national
origin, by–
(a) the deliberate segregation by an educational
agency of students on the basis of race, color, or national
origin among or within schools;
***
(c) the assignment by an educational agency of a
student to a school, other than the one closest to his or her
place of residence within the school district in which he
or she resides, if the assignment results in a greater degree
of segregation *** than would result if such students were
assigned to the school closest to his or her place of
residence ***.” (Emphases added.) 20 U.S.C. §1703
(2000).
District 204 reads section 1703 as a requirement that the Board, as an
educational agency,4 not only refrain from engaging in discriminatory
conduct, but affirmatively consider whether a proposed
detachment/annexation petition would violate the EEOA.
The resolution of this argument rests on statutory interpretation
grounds, as this court must decide whether Congress intended to
charge “educational agencies” with an affirmative duty to consider
the EEOA before making an administrative decision.
The goal of statutory interpretation is to ascertain and give effect
to the intent of the legislative body. The simplest and surest means of
effectuating this goal is to read the statutory language itself and give
the words their plain and ordinary meaning. Illinois Graphics Co. v.
Nickum, 159 Ill. 2d 469, 479 (1994). A statute must be read in its
entirety, keeping in mind the subject it addresses and the legislature’s
apparent objective in enacting it. Gill v. Miller, 94 Ill. 2d 52, 56
4
The parties agree that the Board is an “educational agency” as defined
by the EEOA and the Elementary and Secondary Education Act of 1965.
See 20 U.S.C. §1720(a) (2000), and 20 U.S.C. §7801(26)(A), (26)(E)
(Supp. 2005).
-10-
(1983). Where the language of the statute is clear and unambiguous,
it must be applied as written, without resort to other tools of statutory
construction. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.
2d 248, 255 (2004).
The EEOA is a remedial statute designed to “specify appropriate
remedies for the orderly removal of the vestiges of the dual school
system.” 20 U.S.C. §1701(b) (2000). A “dual school system” is one
“in which students are assigned to schools solely on the basis of race,
color, sex, or national origin.” 20 U.S.C. §1702(a)(1) (2000). The
remedies specified by Congress as part of the EEOA are “not
intended to modify or diminish the authority of the courts of the
United States.” 20 U.S.C. §1702(b) (2000).
Section 1703 of the EEOA expressly forbids the states from
denying equal educational opportunity when it states that “[n]o State
shall deny equal educational opportunity to an individual on account
of his or her race, color, sex, or national origin.” 20 U.S.C. §1703
(2000). The EEOA goes on to list a number of ways that a state can
deny equal educational opportunity. Each of these examples
anticipates that an “educational agency” has undertaken the
discriminatory action or failed to rectify previous discriminatory
actions. (I.e., “the failure of an educational agency *** to take
affirmative steps *** to remove the vestiges of a dual school system”
(20 U.S.C. §1703(b) (2000)) and “discrimination by an educational
agency *** in the employment, employment conditions, or
assignment to schools of its faculty or staff” (20 U.S.C. §1703(d)
(2000)).)
The EEOA views “educational agencies” as the political
subdivision of the state that is either engaging in discrimination or
failing to rectify past discrimination. The EEOA defines an
“educational agency” as “a local educational agency or a ‘State
educational agency’ as defined by section 801(k) of the Elementary
and Secondary Education Act of 1965.” 20 U.S.C. §1720 (2000).5 A
“local educational agency” is defined as:
5
The definitions of “local educational agency” and “State educational
agency” have subsequently been recodified multiple times. The definitions
are now available at 20 U.S.C. §7801 (Supp. 2005).
-11-
“[A] public board of education or other public authority
legally constituted within a State for either administrative
control or direction of, or to perform a service function for,
public elementary schools or secondary schools in a city,
county, township, school district, or other political
subdivision of a State, or of or for a combination of school
districts or counties that is recognized in a State as an
administrative agency for its public elementary schools or
secondary schools.” (Emphases added.) 20 U.S.C.
§7801(26)(A) (Supp. 2005).
A “State educational agency” is similarly defined as “the State
educational agency in a State in which the State educational agency
is the sole educational agency for all public schools.” 20 U.S.C.
§7801(26)(E) (Supp. 2005).
The combination of the EEOA’s prohibition on states denying
individuals access to equal educational opportunity and the definition
of an “educational agency” as a political subdivision of the state
demonstrates that Congress intended that states and their “educational
agencies” not engage in discriminatory conduct. This point is
reinforced by District 204 when they cite Gomez v. Illinois State
Board of Education, 811 F.2d 1030 (7th Cir. 1987), to support its
contention that the Board is responsible for enforcement of the EEOA
as well as the courts. Gomez, 811 F.2d at 1038 (“relief is to be
obtained from the state and its agencies”). However, the quotation
used by District 204, taken in context, shows that relief was “to be
obtained from the state and its agencies” in court. The passage from
Gomez cited by District 204 went on to include the 7th Circuit’s
holding, which was that “Congress intended to abrogate the states’
Eleventh Amendment immunity to the extent such immunity would
foreclose recovery under that act.” Gomez, 811 F.2d at 1038. In other
words, Gomez stands for the proposition that the EEOA allows the
courts to hold the state and its agencies liable for past discriminatory
actions. It does not stand for the idea that the Board must adjudicate
or even consider the racially discriminatory impact of its actions.
The prohibition on acting in a discriminatory way is not the same
as an affirmative mandate to take certain actions or to conduct formal
proceedings to ensure that the actions taken are not discriminatory.
There is no language in the EEOA that prescribes that any state or
-12-
“educational agency” take any affirmative step to consider the
segregative effects of their actions prior to taking them.
What the EEOA does provide is that if the state or an
“educational agency” does take a discriminatory action or has taken
a discriminatory action in the past that these “agencies” may either
take voluntary steps to remedy the past discrimination (20 U.S.C.
§1716 (2000)) or in the absence of action that these agencies are
liable in court (20 U.S.C. §§1712, 1713, 1714, 1716, 1717, 1718
(2000)).
Certainly, a state can choose to mandate that its “educational
agency” consider the EEOA in granting a petition for
detachment/annexation. However, the EEOA does not require that
states mandate educational agencies to consider the EEOA or vest
them with the power to consider the segregative effect of
detachment/annexation petitions. Preemption requires an actual
conflict such that “it is impossible *** to comply with both state and
federal law” and where the challenged law “stands as an obstacle to
the accomplishment and execution of the full purposes and objectives
of Congress.” Crosby, 530 U.S. at 372-73, 147 L. Ed. 2d at 361, 120
S. Ct. at 2294. That is not the case here.
The EEOA uses the term “educational agencies” to describe
potential discriminatory actors, but ultimately it is the discriminatory
actions of the state and its agencies that are to be corrected by the
court. It is the state that must provide relief for the discriminatory
actions of its subdivisions. Under the supremacy clause, “state courts
share responsibility for the application and enforcement of federal
law” (Howlett v. Rose, 496 U.S. 356, 372-73, 110 L. Ed. 2d 332, 351
110 S. Ct. 2430, 2441 (1990)) and a state court cannot refuse to hear
a federal claim as long as they would entertain a similar claim under
state law. Howlett, 496 U.S. at 369-73, 110 L. Ed. 2d at 348-51, 110
S. Ct. at 2439-41. Illinois recognizes numerous claims for both racial
discrimination and the invalidation of agency actions. See, e.g., Board
of Education v. Cady, 369 Ill. App. 3d 486 (2006), and Chicago
School Reform Board of Trustees v. Illinois Educational Labor
Relations Board, 315 Ill. App. 3d 522 (2000). Therefore, the courts
-13-
of Illinois have an obligation to review and enforce the EEOA.6 It is
this obligation that we direct our attention to next.
II
The second argument presented by the Board to refute the
appellate court’s finding of preemption is that administrative review
is not the exclusive means of challenging the Board’s decision to
grant a petition for detachment/annexation. The Board argues that
District 204’s EEOA claim may be brought under the circuit court’s
original jurisdiction.
District 204 counters that the EEOA requires states to take
affirmative steps to “remove vestiges of a dual school system” and to
not “deny equal educational opportunity to an individual on account
of his or her race, color, sex, or national origin.” 20 U.S.C. §1703
(2000). District 204 asserts that administrative review is the exclusive
means of reviewing the Board’s decision because the administrative
review law states that “[e]very action to review a final administrative
decision shall be commenced by the filing of a complaint and the
issuance of summons.” 735 ILCS 5/3–103 (West 2006). In the present
case, District 204 seeks review of a final decision of an administrative
agency. Further, District 204 notes that on administrative review, the
circuit court is limited to the record developed before the
administrative body (see 735 ILCS 5/3–110 (West 2006)) and section
7–2b prohibits the Board from considering the EEOA. Thus, if
administrative review is the exclusive means of challenging the
Board’s decision, then section 7–2b, in conjunction with the scope of
the circuit court’s jurisdiction on administrative review, would
effectively prohibit the state from stopping a potentially
discriminatory action under the EEOA. Thus, the EEOA would
preempt section 7–2b, as the EEOA mandates that the state must not
allow discriminatory action.
6
This does not exclude the possibility that a federal claim is initially
considered and decided by an administrative tribunal and comes before the
court only under an exercise of the court’s statutory power for
administrative review.
-14-
Thus, District 204 asserts that either section 7–2b’s limiting
clause or the administrative review statute must be invalidated and
thereby allow for consideration of its EEOA claim. However, this
problem exists only if administrative review is the exclusive means
of challenging the Board’s decision.
The Board asserts that the way to both obtain a hearing on the
Board’s decision and avoid declaring a statute unconstitutional is to
allow District 204 to bring the EEOA claim as an independent cause
of action under the circuit court’s original jurisdiction. This would
allow District 204 to bring its EEOA claim in the circuit court and
develop a factual record before the circuit court. Under the Board’s
argument this action could either progress independently or be
consolidated with an action for administrative review. The Board
notes, and District 204 does not dispute, that under this approach
there is no preemption issue. In this way, District 204’s EEOA claim
can be fully litigated, and this court avoids invalidating a statute. For
the following reasons, we believe that this is the correct approach.
As a creation of statute, the Board may exercise only the authority
given to it by statute. “Any power or authority it exercises must find
its source within the law pursuant to which it was created.” Delgado
v. Board of Election Commissioners, 224 Ill. 2d 481, 485 (2007). As
previously noted, section 7–2b’s limitation clause serves to severely
limit the evidence that a party may introduce into the record before
the Board. While the General Assembly could have vested the Board
with the power to hear District 204’s EEOA claim, it did not. So long
as the right to equal educational opportunity can be vindicated,
however, the wisdom of the General Assembly’s choice in this regard
is not for this court to decide.
The Code of Civil Procedure states that on administrative review
the circuit court is limited to “questions of law and fact presented by
the entire record before the court. No new or additional evidence ***
shall be heard by the court.” 735 ILCS 5/3–110 (West 2006).
Therefore, to the extent that section 7–2b restricts the evidence that
the Board may place in the record, the circuit court is similarly
restricted in its administrative review. Thus, the circuit court on
administrative review is no better able to address District 204’s
EEOA claims than the Board was in the first instance.
-15-
The Illinois Constitution of 1970 vests the circuit courts with
original jurisdiction over “all justiciable matters except when the
Supreme Court has original and exclusive jurisdiction.” Ill. Const.
1970, art. VI, §9. As this court has noted,
“Our current constitution does not define the term
‘justiciable matters,’ nor did our former constitution, in which
this term first appeared. See Ill. Const. 1970, art. VI, §9; Ill.
Const. 1870, art. VI, §9 (amended 1964). Generally, a
‘justiciable matter’ is a controversy appropriate for review by
the court, in that it is definite and concrete, as opposed to
hypothetical or moot, touching upon the legal relations of
parties having adverse legal interests.” Belleville Toyota, Inc.
v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335
(2002).
In this case, there is a controversy between private citizens who
wish to detach property from a government entity, the Board who
wishes to defend the law, and a second government body that opposes
the proposed action. There is nothing abstract or moot about the
controversy. It affects the legal relationship between the parties and
the parties have adverse legal interests. Therefore, the current case
constitutes a “justiciable matter” under the Illinois Constitution’s
grant of original jurisdiction to the circuit courts. In addition to the
case falling within the circuit court’s original jurisdiction, this case
may also be handled as an independent action because the traditional
rules of forfeiture do not apply.
Ordinarily, any issue that is not raised before the administrative
agency, even constitutional issues that the agency lacks the authority
to decide, will be forfeited by the party failing to raise the issue. In
Carpetland U.S.A., Inc. v. Illinois Department of Employment
Security, this court refused to address a claim that the Department of
Employment Security had violated the due process clauses of both the
United States Constitution and Illinois Constitution because the issue
had not been raised at the first opportunity, before the administrative
agency. Carpetland U.S.A., Inc. v. Illinois Department of Employment
Security, 201 Ill. 2d 351, 396-97 (2002) (“constitutional claim is
[forfeited] for failure to raise it at the first opportunity”). This has led
this court to admonish litigants to “assert a constitutional challenge
on the record before the administrative tribunal, because
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administrative review is confined to the proof offered before the
agency.” Carpetland U.S.A., Inc., 201 Ill. 2d at 397. See also Texaco-
Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278 (1998).
(“It is well-recognized that a litigant’s right to question the validity of
a statute is subject to [forfeiture] by act or omission”).
However, in this instance, the ordinary forfeiture rules do not
apply because section 7–2b prohibits the development of a record
with regard to the EEOA claim. The limiting clause of section 7–2b
denies District 204 all opportunity to develop a record with regard to
an EEOA violation before the administrative agency. Thus, there can
be no forfeiture, because there was no opportunity to present the
issue. In essence, there was no “first opportunity.”
Similarly, the exclusivity of the administrative review law does
not apply where, as described above, the issue being raised cannot be
introduced before the administrative agency. In the present case,
section 7–2b operates as a complete bar to the Board’s even receiving
evidence on anything outside of section 7–2b’s requirements. Neither
the parties nor this court have found any similar limitation anywhere
else in the statutes of this state. As this court held in Chestnut v.
Lodge, “[t]he Administrative Review Act is a salutary act to provide
a simple single review from specified administrative decisions, but it
was not intended to be a trap for the unwary to establish a bar to
relief.” Chestnut v. Lodge, 34 Ill. 2d 567, 571 (1966). District 204’s
EEOA claim is beyond the scope of the hearing officer, beyond the
scope of the Board’s administrative decision, and therefore beyond
the scope of the administrative review law.
The Board points out that handling the EEOA claim as an
independent action under the circuit court’s original jurisdiction is not
without precedent. In Board of Education of Rich Township High
School District No. 227 v. Brown, the appellate court allowed a
constitutional challenge to section 7–2b to be brought as an
independent action in the circuit court. In doing so, the appellate court
rejected an expansion of the Board’s power, holding that the limiting
clause of section 7–2b expressly placed the issue outside of the
Board’s authority and outside the court’s statutory authority to review
the decisions of administrative agencies. Board of Education of Rich
Township High School District No. 227 v. Brown, 311 Ill. App. 3d
478 (1999). However, the court noted that while the issue may be
-17-
outside the scope of the administrative agency’s authority, and
outside the scope of administrative review, it was not outside the
scope of the circuit court’s original jurisdiction under the Illinois
Constitution. Therefore, the court held that the circuit court could
develop the record necessary to decide the constitutional challenge
under an exercise of the circuit court’s original jurisdiction. Rich
Township, 311 Ill. App. 3d at 491.7
District 204 contends that adopting this approach will allow
school district boundaries to be “redrawn without considering the
effect of such a maneuver on educational segregation.” Neither party
disputes that District 204’s EEOA claim must be considered and
decided by a court of competent jurisdiction. Through the exercise of
the circuit court’s original jurisdiction, the circuit courts may conduct
proceedings, receive evidence, and fully adjudicate District 204’s
EEOA claim. Further, given the nature of this claim, there is no
reason why a plaintiff could not seek an injunction pending resolution
of this claim in the circuit court. See Ardt v. Illinois Department of
Professional Regulation, 154 Ill. 2d 138, 148 (1992) (“Circuit courts
have traditionally used mandamus, certiorari, injunction and other
actions as a means of reviewing the decisions of administrative
agencies”).
CONCLUSION
Because District 204’s EEOA claim is subject to adjudication by
the circuit court as a matter of original jurisdiction, there is no
preemption, as section 7–2b does not present an obstacle to the
“accomplishment and execution of the full purposes and objectives”
of the EEOA. Accordingly, we reverse that portion of the appellate
7
In Rich Township, the circuit court did not ultimately have to develop
this record because the record had been adequately developed before the
Board, the limitations of section 7–2b not withstanding. However, this
holding is not dicta because regardless of where the factual record was
developed, the circuit court still had to have jurisdiction to consider and
enter judgment in the case.
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decision that held section 7–2b was preempted by the EEOA. We
remand the matter to the circuit court.
Reversed and remanded.
JUSTICE FREEMAN, specially concurring:
This court holds that the circuit court of Will County has original
jurisdiction to adjudicate the claim of Joliet Township High School
District 204 (District 204), brought pursuant to the Equal Educational
Opportunities Act of 1974 (EEOA) (20 U.S.C. §1701 et seq. (2000)).
Consequently, this court further holds that the EEOA does not
preempt and render unconstitutional section 7–2b of the Illinois
School Code (105 ILCS 5/7–2b (West 1998)). Slip op. at 18-19.
I fully agree with the court’s reasoning and result. I write
separately to urge the General Assembly to amend section 7–2b of the
School Code to allow a school board to hear disputes regarding equal
educational opportunity when determining section 7–2b petitions.
Such disputes should be heard initially by a school board and not a
court. Also, I caution the circuit court in this case, on remand, to base
its findings on sufficient evidence and not conjecture.
I. BACKGROUND
Four individuals who were all of the registered voters of a
contiguous 320-acre parcel of farm land in Will County petitioned the
Illinois State Board of Education (Board) to detach their property
from District 204 and annex it to Lincoln Way Community High
School District No. 210 (District 210), pursuant to section 7–2b of the
School Code (105 ILCS 5/7–2b (West 1998)). Section 7–2b provides
that, under specific circumstances, land may be automatically
detached from one district and annexed to another district, at either
the elementary or high school level. See M. Guenther & B. Wright,
Creation, Dissolution, and Boundary Changes, in 1 Illinois School
Law §1.11 (Ill. Inst. for Cont. Legal Educ. 2005). The Board held an
administrative hearing on the detachment and annexation petition.
District 204 claimed, inter alia, that granting the petition would
violate the EEOA, which prohibits the transfer of a student from one
school to another if the transfer results in increasing student racial
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segregation. See 20 U.S.C. §1703 (2000). District 204 alleged that
petitioners are white, the population of District 204 is “60%
minority,” and District 210 is “almost completely white.” District 204
argued that granting the petition would increase racial segregation in
violation of the EEOA. The hearing officer specifically found that
District 204’s EEOA claim was beyond its statutory and regulatory
authority. It is undisputed that petitioners met section 7–2b’s four
specific conditions. Accordingly, the Board granted the section 7–2b
petition. Slip op. at 2-4.
On administrative review, the circuit court confirmed the Board’s
decision granting the petition. Additionally, the circuit court
independently found that the Board’s decision did not “create a
Constitutional impediment,” or violate federal law. On appeal, the
appellate court: vacated the circuit court’s ruling on the merits of
District 204’s EEOA claim; held that the EEOA preempted section
7–2b of the School Code and rendered it unconstitutional; and
remanded the cause to the Board to conduct a hearing on the EEOA
claim. Slip op. at 4-5.
II. ANALYSIS
Before this court, District 204 essentially raises two issues:
“The current legislative framework developed by the
General Assembly is a naked attempt [A] to sidestep the
federal mandate set forth in the EEOA by stripping away an
agency’s ability to consider the effect of detachment on racial
segregation, and [B] then tie the hand of the circuit courts on
review through application of the Administrative Review
Act.”
While future litigation will shed light on the first claim, this court
correctly rejects the second contention.
A. De Jure Segregation and Equal Educational Opportunity
Section 7–2b of the School Code mandates an automatic
detachment and annexation procedure that expressly prohibits
consideration of surrounding circumstances. This unique automatic
procedure can potentially promote illegal student segregation. The
potential for such a consequence flies in the face of constitutional
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principles that the United States Supreme Court first enunciated over
50 years ago, and decisions that this court issued over a century ago,
upholding the right of children to attend public schools free of de jure
segregation.
1. Authority to Change School District Boundaries
Within constitutional limitations, the legislature ultimately
controls the creation, division, and abolishment of school districts.
People v. Wood, 411 Ill. 514, 522 (1952). This court has repeatedly
recognized that any school district established under enabling
legislation is:
“ ‘entirely subject to the will of the legislature thereafter.
With or without the consent of the inhabitants of a school
district, over their protests, even without notice or hearing, the
State may take the school facilities in the district, without
giving compensation therefor, and vest them in other districts
or agencies. *** The area of the district may be contracted or
expanded, it may be divided, united in whole or in part with
another district, and the district may be abolished. All this at
the will of the legislature.’ ” Elementary School District 159
v. Schiller, 221 Ill. 2d 130, 155 (2006), quoting People ex rel.
Dixon v. Community Unit School District No. 3, 2 Ill. 2d 454,
465-66 (1954).
This court has further explained that a school district is a quasi-
municipal corporation created by the state to act as its administrative
arm to implement the establishment of free schools. Wood, 411 Ill. at
522. The legislature may delegate its power to change school district
boundaries to school authorities, who exercise that power in their
discretion, guided by statutory standards. School District No. 79 v.
County Board of School Trustees, 4 Ill. 2d 533, 538-40 (1954).
Although the residents of a school district may initiate a petition for
detachment and annexation because of personal desires or
convenience, the decision to change established school district
boundaries rests within the discretion of the appropriate school
agency. Oakdale Community Consolidated School District No. 1 v.
County Board of School Trustees, 12 Ill. 2d 190, 193 (1957).
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Of course, the legislature must exercise this significant power
within constitutional limitations. School district lines are not
sacrosanct and they must not conflict with the fourteenth amendment.
See Milliken v. Bradley, 418 U.S. 717, 744, 41 L. Ed. 2d 1069, 1091,
94 S. Ct. 3112, 3127 (1974).
2. Constitutional Principles
One scholar has identified Brown v. Board of Education, 347 U.S.
483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), “as having the most impact
on education law.” 4 J. Rapp, Education Law §10.01[1], at 10–3
(2008). In Brown, the United States Supreme Court repudiated the
doctrine of “separate but equal,” which the Court first enunciated in
Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138
(1896). The Court in Brown observed that de jure (state-imposed)
racial segregation of students is in itself an evil that tends to frustrate
the affected students “in a way unlikely ever to be undone.” Brown,
347 U.S. at 494, 98 L. Ed. at 880, 74 S. Ct. at 691. The Court held as
follows:
“We conclude that in the field of public education the
doctrine of ‘separate but equal’ has no place. Separate
educational facilities are inherently unequal. Therefore, we
hold that the plaintiffs and others similarly situated for whom
the actions have been brought are, by reason of the
segregation complained of, deprived of the equal protection
of the laws guaranteed by the Fourteenth Amendment.”
Brown, 347 U.S. at 495, 98 L. Ed. at 881, 74 S. Ct. at 692.
Brown is significant partly because the United States Supreme Court
reversed years of constitutional history that permitted the segregation
of students based on race or color. “It righted a legal and moral
wrong. But as important–perhaps more important–is that Brown
ushered in a new era of broader educational opportunity.” 4 J. Rapp,
Education Law §10.01[1], at 10–3 (2008). Today, the idea that
segregation based on race or color is inherently unequal is “a
statement of clear constitutional principle and not a matter of
educational conjecture.” 4 J. Rapp, Education Law §10.05[1], at
10–75 (2008).
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The decision in Brown invalidated only de jure segregation in
public schools, i.e., segregation resulting from intentional
governmental action. In contrast, de facto segregation occurs without
any governmental action that is intended to segregate. Unintentional
de facto segregation, by itself, does not violate the fourteenth
amendment. Dayton Board of Education v. Brinkman, 433 U.S. 406,
413, 53 L. Ed. 2d 851, 859, 97 S. Ct. 2766, 2772 (1977); see 3 R.
Rotunda & J. Nowak, Treatise on Constitutional Law §18.9(a)(ii)(1),
at 488 (4th ed. 2008); 4 J. Rapp, Education Law §10.05[1], at 10–74
through 10–75 (2008); 3 J. Cook & J. Sobieski, Civil Rights Actions
¶16.02, at 16–5 (2008); E. Reutter, The Law of Public Education 794-
95 (3d ed. 1985).
In Keyes v. School District No. 1, 413 U.S. 189, 37 L. Ed. 2d 548,
93 S. Ct. 2686 (1973), the Court addressed for the first time the
constitutionality of racial imbalance in a school system that had
“never been operated under a constitutional or statutory provision that
mandated or permitted racial segregation in public education.” Keyes,
413 U.S. at 191, 37 L. Ed. 2d at 553, 93 S. Ct. at 2688. Nevertheless,
the Court held that where “school authorities have carried out a
systematic program of segregation affecting a substantial portion of
the students, schools, teachers, and facilities within the school system,
it is only common sense to conclude that there exists a predicate for
a finding of the existence of a dual school system.” Keyes, 413 U.S.
at 201, 37 L. Ed. 2d at 559, 93 S. Ct. at 2694. “Correction of such
actions comes within the direct mandate of Brown, for it is
segregation which has developed, not fortuitously, but by
governmental action. Although often called de facto segregation, it is
really ‘covert de jure’ segregation.” E. Reutter, The Law of Public
Education 795 (3d ed. 1985). The Court emphasized that the crucial
difference between de jure and de facto segregation is the intent to
discriminate. The Court endorsed a burden-shifting procedure
designed to adduce the intent necessary to prove “covert de jure”
segregation where the law does not expressly authorize segregation.
Keyes, 413 U.S. at 208, 37 L. Ed. 2d at 563, 93 S. Ct. at 2697; see
Brinkman, 433 U.S. at 420, 53 L. Ed. 2d at 863, 97 S. Ct. at 2775; 3
R. Rotunda & J. Nowak, Treatise on Constitutional Law
§18.9(a)(ii)(1), at 490-92 (4th ed. 2008) 4 J. Rapp, Education Law
§10.04[3], at 10-69 through 10–70, §10.05[3], at 10–86 through
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10–90 (2008); 3 J. Cook & J. Sobieski, Civil Rights Actions ¶16.02,
at 16–8 through 16–12 (2008). Keyes exemplifies that “the Equal
Protection Clause [is] aimed at all official actions, not just those of
state legislatures. *** Even actions of state agents that may be illegal
under state law are attributable to the State.” Columbus Board of
Education v. Penick, 443 U.S. 449, 457 n.5, 61 L. Ed. 2d 666, 676
n.5, 99 S. Ct. 2941, 2946 n.5 (1979).
3. Equal Educational Opportunities Act of 1974
The EEOA is a multipurpose statute. The Act declares it to be a
policy of the United States that “all children enrolled in public
schools are entitled to equal educational opportunity without regard
to race, color, sex, or national origin.” 20 U.S.C. §1701(a)(1) (2000).8
To effectuate this policy, the EEOA prohibits in pertinent part:
“No State shall deny equal educational opportunity to an
individual on account of his or her race, color, sex, or national
origin, by–
***
(c) the assignment by an educational agency of a
student to a school, other than the one closest to his or her
place of residence within the school district in which he
or she resides, if the assignment results in a greater degree
of segregation of students on the basis of race, color, sex,
or national origin among the schools of such agency than
would result if such student were assigned to the school
closest to his or her place of residence within the school
8
The EEOA also declares it to be a policy of the United States that “the
neighborhood is the appropriate basis for determining public school
assignments.” 20 U.S.C. §1701(a)(2) (2000). It is generally recognized that
Congress enacted the EEOA in reaction to court decisions upholding busing
as a means of remedying de jure segregation. See 4 J. Rapp, Education Law
§10.06[5], at 10-121 (2008); 3 J. Cook & J. Sobieski, Civil Rights Actions
¶16.19, at 16–96 through 16–97 (2008). The Act directs federal courts not
to use busing to remedy de jure segregation “unless the court first finds that
all alternative remedies are inadequate.” 20 U.S.C. §1755 (2000).
-24-
district of such agency providing the appropriate grade
level and type of education for such student;
***
(e) the transfer by an educational agency, whether
voluntary or otherwise, of a student from one school to
another if the purpose and effect of such transfer is to
increase segregation of students on the basis of race,
color, or national origin among the schools of such
agency.” 20 U.S.C. §1703 (2000).
With respect to racial desegregation, the EEOA is essentially a
restatement of preexisting case law, and its prohibitions are mostly
coextensive with the equal protection clause of the fourteenth
amendment. 4 J. Rapp, Education Law §10.02[3], at 10–19 (2008);
3 J. Cook & J. Sobieski, Civil Rights Actions ¶16.19, at 16–99
(2008).
4. Segregation in Illinois Schools
De jure racial segregation existed in Illinois at the time of the
ratification of the fourteenth amendment. In 1825, the General
Assembly provided for the establishment of public schools, which
were “open and free to every class of white citizens, between the ages
of five and twenty-one years.” (Emphasis added.) 1833 Ill. Laws 556.
The 1857 School Code did not expressly exclude black children from
public schools but, rather, impliedly limited public schools to white
children. 1857 Ill. Laws 260, §7 (requiring state superintendent to
periodically report to Governor on, inter alia, “the number of white
persons in each county under twenty-one years of age”), 1857 Ill.
Laws 263, §16 (requiring school commissioner to apportion state
funds among school districts in county based on, in part, “the number
of white children, under twenty-one years of age”), 1857 Ill. Laws
292, §80 (“In townships in which there shall be persons of color the
board of trustees shall allow such persons a portion of the school fund
equal to the amount of taxes collected for school purposes from such
persons of color in their respective townships”); see generally B.
Reams & P. Wilson, Segregation and The Fourteenth Amendment in
the States 138-54 (1975); D. Douglas, The Limits of Law in
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Accomplishing Racial Change: School Segregation in the Pre-Brown
North, 44 UCLA L. Rev. 677, 695-96 (1997).
In 1867, the General Assembly ratified the fourteenth amendment.
In 1874, the legislature enacted legislation that expressly prohibited
the exclusion of any child from a public school based on race. Ill.
Rev. Stat. 1874, ch. 122, par. 100. In a series of decisions beginning
in 1874, this court repeatedly ruled against racial segregation in
education in the face of local defiance. See, e.g., Chase v. Stephenson,
71 Ill. 383 (1874); People ex rel. Longress v. Board of Education of
the City of Quincy, 101 Ill. 308 (1882); People ex rel. Peair v. Board
of Education of Upper Alton School District, 127 Ill. 613 (1889);
People ex rel. Bibb v. Mayor & Common Council, 193 Ill. 309 (1901).
Against this backdrop, I turn to article 7 of the Illinois School Code.
5. Detachment and Annexation: Overall Benefit
“The most typical” school boundary changes are the result of the
detachment of a portion of school district territory and its annexation
to another school district. See C. Russo & R. Mawdsley, Education
Law §1.04[3], at 1–19 through 1–20 (2008). In Illinois, school district
boundaries may be changed by detachment, annexation, division,
dissolution, or by any combination of those methods pursuant to
article 7 of the School Code. 105 ILCS 5/7–02 (West 2006). The
general method for detachment and annexation involves a petition
process, administrative hearings, and the potential for judicial review
pursuant to the Administrative Review Law (735 ILCS 5/3–101 et
seq. (West 2006)). See 105 ILCS 5/7–1, 7–2, 7–6, 7–7 (West 2006).
At the administrative hearing on a detachment and annexation
petition, section 7-6 of the School Code mandates that the hearing
officer:
“shall hear evidence as to the school needs and conditions
of the territory in the area within and adjacent thereto and as
to the ability of the districts affected to meet the standards of
recognition as prescribed by the State Board of Education,
and shall take into consideration the division of funds and
assets which will result from the change of boundaries and
shall determine whether it is to the best interests of the
schools of the area and the educational welfare of the pupils
-26-
that such change in boundaries be granted ***.” 105 ILCS
5/7–6(i) (West 2006).
Based on the language of section 7–6, a petition for detachment and
annexation should be granted only where the overall benefit to the
annexing district and the detachment area clearly outweighs the
resulting detriment to the losing district and the surrounding
community as a whole. Carver v. Bond/Fayette/Effingham Regional
Board of School Trustees, 146 Ill. 2d 347, 356 (1992) (collecting
cases).
In applying this benefit-detriment test, the hearing board, and the
courts reviewing the board’s decision, are to consider differences
between school facilities and curricula, the distances from the
petitioners’ homes to the respective schools, the effect detachment
would have on the ability of either district to meet state standards of
recognition, and the impact of the proposed boundary change on the
tax revenues of both districts. Carver, 146 Ill. 2d at 356. The hearing
board may also consider the closely related “whole child” and
“community of interest” factors. The “whole child” factor “recognizes
that extracurricular participation in social, religious and even
commercial activities is important in a child’s development as a
beneficial supplement to the child’s academic involvement.” Board
of Education of Golf School District No. 67 v. Regional Board of
School Trustees of Cook County, 89 Ill. 2d 392, 397 (1982). The
“community of interest” factor ascertains whether the petitioning area
is identified with the school district and the community to which
annexation is requested. If a child attends school in his or her natural
community, it not only enhances the child’s educational opportunity
but encourages the child’s participation in social and other
extracurricular activities that figure importantly in the “whole child”
concept. Golf, 89 Ill. 2d at 397-98. Further, consideration of the racial
impact of a school district boundary change is relevant to a
detachment and annexation proceeding “to ensure that a dual school
system based upon race, national origin, or color does not result.” C.
Russo & R. Mawdsley, Education Law §1.04[3], at 1–19, 1–20
(2008). See, e.g., In re Petition for Authorization to Conduct a
Referendum on the Withdrawal of North Haledon School District
from the Passaic County Manchester Regional High School District
, 181 N.J. 161, 181-82, 854 A.2d 327, 339 (2004); Union Title Co. v.
-27-
State Board of Education, 51 Ohio St. 3d 189, 192 n.5, 555 N.E.2d
931, 934 n.5 (1990).
Indeed, it is recognized that “Illinois is exceptionally active in
detachment proceedings. *** A review of Illinois detachment cases
over the past two decades indicates that the judicial emphasis is
consistently focused on the concepts of the ‘whole child,’ the
‘community of interests’ and ‘the educational welfare of the
students.’ ” J. Menacker, Illinois Detachment Legislation: A Device
for Creating Manageable Urban School Districts, 81 Educ. L. Rep.
411, 414-19 (1993). However, in enacting the automatic detachment
procedure in section 7–2b of the School Code, the legislature
pointedly rejected this well-settled holistic approach.
6. Section 7–2b: Automatic Procedure
Section 7–2b of the School Code provides for the detachment and
annexation of noncoterminous land from an elementary or high
school district. In contrast to the procedure for detachment and
annexation generally, section 7–2b mandates that a detachment and
annexation petition “shall” be granted if the affected land constitutes
10% or less of the district’s equalized assessed value and of its
territory; two-thirds of the registered voters in affected area support
the petition; and the annexation will make the boundaries of the
elementary school and high school districts for the affected land
identical. 105 ILCS 5/7–2b(a) (West 1998); slip op. at 3.
The legislature originally added this procedure to the School Code
in 1991. Pub. Act 87–667, eff. September 20, 1991 (adding Ill. Rev.
Stat. 1991, ch. 122, par. 7–2b). Further, to ensure that this procedure
is truly automatic, the legislature subsequently added a directive to
section 7–2b, which at the time of these proceedings read as follows:
“The regional board of school trustees shall have no authority
or discretion to hear any evidence or consider any issues
except those that may be necessary to determine whether the
limitations and conditions of this Section have been met.”
Pub. Act 87–1270, §2, eff. March 3, 1993 (amending Ill. Rev.
Stat. 1991, ch. 122, par. 7–2b).
Among the issues that the legislature expressly excludes from
consideration is whether granting a detachment and annexation
-28-
petition would deny public school children the equal educational
opportunity guaranteed by the equal protection clause of the
fourteenth amendment. Obviously, such a result is untenable.
School authorities have the primary responsibility for elucidating,
assessing, and solving the problem of unconstitutional racial
discrimination in public education. Brown v. Board of Education
(Brown II), 349 U.S. 294, 299, 99 L. Ed. 1083, 1105, 75 S. Ct. 753,
756 (1955). It is recognized that detachment and annexation of school
district territory can operate to perpetuate segregation. See C. Russo
& R. Mawdsley, Education Law §1.04[3], at 1–19, 1–20 (2008).
Surprisingly, the General Assembly expressly prohibits the Board
from even considering this constitutional issue when presented with
a section 7–2b petition. In a case presenting a more blatant example
of legislative obstructionism, the United States Supreme Court
declared as follows:
“[T]he prohibitions of the Fourteenth Amendment extend to
all action of the State denying equal protection of the laws;
whatever the agency of the State taking the action [citations];
or whatever the guise in which it is taken [citations]. In short,
the constitutional rights of children not to be discriminated
against in school admission on grounds of race or color
declared by this Court in the Brown case can neither be
nullified openly and directly by state legislators or state
executive or judicial officers, nor nullified indirectly by them
through evasive schemes for segregation whether attempted
‘ingeniously or ingenuously.’ [Citation.]” Cooper v. Aaron,
358 U.S. 1, 17, 3 L. Ed. 2d 5, 16, 78 S. Ct. 1401, 1409 (1958).
No state legislator, executive, or judicial officer can war against the
Constitution without violating his or her oath to support it. Cooper,
358 U.S. at 18, 3 L. Ed. 2d at 16-17, 78 S. Ct. at 1409-10.
To be sure, the general detachment and annexation procedure,
with its petition process, administrative hearings, and potential for
judicial review, can be described as “cumbersome.” J. Menacker,
Illinois Detachment Legislation: A Device for Creating Manageable
Urban School Districts, 81 Educ. L. Rep. 411, 413 (1993). This court
long ago admitted that the applicable standards “are general rather
than specific in nature. However, it would be both impossible and
undesirable for the legislature to draft rigid nondiscretionary
-29-
standards which would embrace each and every school district
boundary change, for conditions surrounding the changes are seldom
the same.” District No. 79, 4 Ill. 2d at 537-38. Further: “ ‘The
judiciary is ill equipped to act as a super school board in assaying the
complex factors involved in determining the best interest of the
schools and the pupils affected by a change in boundaries.’ ” Carver,
146 Ill. 2d at 362, quoting School Directors of School District No. 82
v. Wolever, 26 Ill. 2d 264, 267 (1962).
Disputes regarding equal educational opportunity obviously must
be heard in the first instance by some public body, and that body
should be the Board. I urge the General Assembly to amend section
7–2b to lift this prohibition from the Board when determining section
7–2b petitions.
B. Safeguarding Equal Educational Opportunity
Of course, this legislative oversight cannot prevent judicial
intervention to safeguard the fundamental goal of equal educational
opportunity. This court correctly holds that the circuit court of Will
County has original jurisdiction to adjudicate District 204’s EEOA
claim. Slip op. at 13-14, 16-18. Indeed, the circuit court has
jurisdiction to hear not only the EEOA claim, but all claims brought
under the full panoply of federal and Illinois remedial legislation for
the vindication of equal educational opportunity. See Yellow Freight
System, Inc. v. Donnelly, 494 U.S. 820, 823, 108 L. Ed. 2d 834, 839-
40, 110 S. Ct. 1566, 1568-69 (1990) (holding that state courts have
inherent authority to adjudicate federal claims and that Congress must
affirmatively divest state courts of their concurrent jurisdiction).
On remand, the circuit court will have the obligation to hear any
claim that District 204 may bring, and to receive relevant evidence in
support thereof. Surprisingly, the circuit court made the following
independent finding in confirming the Board’s grant of the section
7–2b petition:
“While one may have suspicions as to why property
owners may want to detach their land from one district and
attach it to another, mere suspicions are not enough. There is
nothing in this record to establish any type of racial
motivation on the part of the parties seeking disconnection.
On the record before the Hearing Officer it appears that the
-30-
reason for the disconnection was to properly align elementary
and high school boundaries so that students who attend New
Lennox Grade School District 122 could attend [h]igh school
at Lincolnway with their friends.
Now, this court is not so naïve as to not understand that
there may well be an economic benefit to a developer going
from one school district to another. Clearly, this land in
question will be used for development purposes. However,
even if that is the motivation, which is unclear from the
record, that in and of itself does not create a Constitutional
impediment or a violation of Federal law. The Court finds no
Constitutional problem with the actions of the State Board of
Education.” (Emphasis added.)
The circuit court correctly observed that the record contained no
evidence regarding District 204’s EEOA claim because section 7–2b
of the School Code prohibited the Board from receiving such
evidence.
“It is essential to the sufficiency of findings of a court that they be
sustained by the evidence.” Hanaman v. Davis, 20 Ill. App. 2d 111,
115 (1959). In this case, it was impossible for the circuit court to find
no constitutional or statutory violation because section 7–2b
prohibited the Board from receiving any evidence supporting District
204’s claim. Such indiscriminate comments “do not aid in the
administration of justice but on the contrary are a distinct
obstruction.” Lewis v. West Side Trust & Savings Bank of Chicago,
288 Ill. App. 271, 275 (1937). On remand, I assume that the circuit
court will provide an analysis based on the relevant evidence
presented by the parties, rather than conjecture based on no evidence
at all.
III. CONCLUSION
The enduring legacy of Brown v. Board of Education is that the
doctrine of “separate but equal” has no place in the field of public
education. Segregation based on race, color, or national origin
deprives students of the equal protection of the laws guaranteed by
the fourteenth amendment. Brown, 347 U.S. at 495, 98 L. Ed. at 881,
74 S. Ct. at 692. I recommend that the General Assembly amend
section 7–2b of the School Code to effectuate this constitutional
-31-
requirement more efficiently. Meanwhile, on remand, I am confident
that the circuit court will fully and fairly decide the merits of any
claims that District 204 chooses to bring.
-32-
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IN THE MATTER OF: M.W.
No. COA09-941.
Court of Appeals of North Carolina.
Filed May 18, 2010.
Attorney General Roy Cooper, by Assistant Attorney General Janette Soles Nelson, for the State.
Geeta Kapur for juvenile-appellant.
UNPUBLISHED OPINION
ROBERT N. HUNTER, JR., Judge.
Juvenile appeals from a disposition order imposing level 1 and 2 punishment following his adjudication on 18 December 2008 of delinquency for commission of the offense of possession of stolen property. Juvenile also appeals through the same written notice of appeal an adjudication order entered 13 August 2008 adjudicating juvenile delinquent for the offense of injury to personal property. Juvenile contends the trial court lacked subject matter jurisdiction to enter the 13 August 2008 adjudication order.
Before addressing the merits of the appeal, we address the State's argument that juvenile failed to give timely notice of appeal. Notice of appeal in a juvenile action is governed by N.C. Gen. Stat. § 7B-2602, which provides:
Upon motion of a proper party as defined in G.S. 7B-2604, review of any final order of the court in a juvenile matter under this Article shall be before the Court of Appeals. Notice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order. However, if no disposition is made within 60 days after entry of the order, written notice of appeal may be given within 70 days after such entry.
N.C. Gen. Stat. § 7B-2602 (2009). An appealable final order includes "[a]ny order of disposition after an adjudication that a juvenile is delinquent or undisciplined[.]" N.C. Gen. Stat. § 7B-2602(3). The written notice of appeal must identify the final disposition order of which review is sought; otherwise, this Court lacks jurisdiction and the appeal will be dismissed. In re A.L., 166 N.C. App. 276, 277-78, 601 S.E.2d 538, 538-39 (2004).
The record shows that in its 13 August 2008 adjudication order, the court continued the case for disposition until 21 August 2008. When juvenile's parent failed to appear for the hearing on 21 August 2008, the court issued an order to show cause. On 24 September 2008, the court continued the disposition and show cause hearing until 22 October 2008.
Meanwhile, two new juvenile petitions were filed on 20 October 2008 accusing juvenile of possession of stolen property and resisting a law enforcement officer. At the call of the matter for hearing on 22 October 2008, juvenile argued a motion to vacate the 13 August 2008 adjudication order on the ground the court lacked subject matter jurisdiction because the petition was not filed in a timely manner. The court did not rule upon the motion to vacate but continued the motion, pending disposition and show cause hearing, and the adjudication of the new charges to 20 November 2008. After one more continuance, the court heard all pending matters on 18 December 2008. The court filed an order on 18 December 2008 adjudicating juvenile delinquent for possession of stolen property and dismissing the show cause proceeding against the parent. The court also filed a disposition order entering disposition based upon the more serious offense of misdemeanor possession of stolen property.
The State argues that because the court did not enter a disposition on the 13 August 2008 adjudication order within sixty days, notice of appeal was required to be given within seventy days after entry of the adjudication order, which would have been 22 October 2008. The State misreads the statute, as the statute provides that the appellant "may" give notice of appeal within seventy days. N.C. Gen. Stat. § 7B-2602. The statute does not mandate that notice of appeal be given prior to entry of the disposition order if the disposition order is not entered within sixty days. Even if juvenile had given notice of appeal within 70 days, the appeal would have been subject to dismissal because a final disposition order had not been entered. See In re Laney, 156 N.C. App. 639, 642, 577 S.E.2d 377, 379, disc. review denied, 357 N.C. 459, 585 S.E.2d 762 (2003)(appeal was subject to dismissal when final disposition order had not been entered at time of notice of appeal). The court entered disposition on the 13 August 2008 adjudication when it entered the 18 December 2008 disposition order. At that point a final order was entered and notice of appeal was required to be given within ten days by the terms of the statute, as was done by juvenile.
Having determined that notice of appeal was timely given, we now address the merits of the appeal. Juvenile contends that the trial court lacked subject matter jurisdiction because the petition was not timely filed. "In reviewing a question of subject matter jurisdiction, our standard of review is de novo." In re K.A.D., 187 N.C. App. 502, 503, 653 S.E.2d 427, 428 (2007). A court's lack of subject matter jurisdiction may not be waived and may be raised as an issue for the first time on appeal. In re Green, 67 N.C. App. 501, 504, 313 S.E.2d 193, 195 (1984). As required by statute, a juvenile court counselor, upon receiving a complaint concerning a juvenile, must determine within fifteen days after its receipt whether the complaint should be filed as a juvenile petition. N.C. Gen. Stat. § 7B-1703(a) (2009). The counselor must file the petition within fifteen days after receiving the complaint. N.C. Gen. Stat. § 7B-1703(b). The fifteen-day period may be extended by a maximum of fifteen days at the discretion of the chief juvenile court counselor. Id. If the petition is not timely filed, the court lacks subject matter jurisdiction. In re J.B., 186 N.C. App. 301, 303, 650 S.E.2d 457, 458 (2007).
The record shows that the complaint giving rise to the petition was made on 1 May 2008 and that the petition was filed on 29 May 2008. The transcript of the 22 October 2008 hearing shows that although a written order allowing the permitted extension of time does not appear in the court file, the court counselor's computer system indicated that the chief court counselor granted the fifteen-day extension of time permitted by the statute on 2 May 2008 due to "time constraints associated with" a high volume of cases. Therefore, we conclude the filing of the petition on 29 May 2008 was timely and the court was vested with subject matter jurisdiction.
Notwithstanding, juvenile challenges the validity of the extension granted by the chief juvenile court counselor by asserting the counselor abused his discretion. Juvenile cites In re K.W., 191 N.C. App. 812, 815, 664 S.E.2d 66, 68 (2008), for the proposition that "the chief juvenile court counselor is required to provide some indication that he or she properly exercised discretion in extending the fifteen-day period . . . and do so in a manner which allows the trial and appellate courts of this state some meaningful review of that decision." The record in K.W. failed to show, unlike here, that the chief juvenile court counselor ever granted an extension of time and hence exercised his discretion. The chief juvenile court counselor in the case at bar exercised his discretion by granting the extension of time and gave a rational reason for the exercise of his discretion, namely, time constraints due to a high volume of cases. The chief juvenile court counselor did not abuse his discretion.
The order is
Affirmed.
Judges McGEE and GEER concur.
Report per Rule 30(e).
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543 U.S. 808
IN RE HODGES.
No. 04-5411.
Supreme Court of United States.
October 4, 2004.
1
Petitions for writs of mandamus denied.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1155
___________
United States of America, *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Jermaine Harris, *
* [PUBLISHED]
*
Defendant – Appellant. *
___________
Submitted: June 8, 2009
Filed: June 12, 2009
___________
Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
In 1999 Jermaine Harris was convicted by a jury on charges of distribution and
possession of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(c) & 844,
and was sentenced to 292 months. After the United States Sentencing Commission
made retroactive its amendment to the sentencing guideline for crack cocaine, the
district court1 reduced Harris's sentence to 235 months. Harris appeals, arguing that
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
the district court erred by refusing to appoint counsel to represent him during the
proceedings and by denying his request for a hearing. We affirm.
In 2007 the United States Sentencing Commission revised the guideline for
crack offenders to reduce the base offense level applicable for the quantity of cocaine
base by two levels. U.S.S.G. app. C, amend. 706 (2008). The Sentencing Commission
made that amendment retroactive, which enables defendants who were sentenced
under the previous cocaine base guideline to seek a modification of their sentences
under 18 U.S.C. § 3582(c)(2).
In 2007 the district court notified Harris that his sentence would be reevaluated
based on the amended guideline. Harris moved for appointment of counsel, which the
district court denied. In a preliminary order the district court stated that it would
reduce Harris's sentence to 235 months, which was the low end of the amended
guideline range and the maximum reduction permitted by U.S.S.G. § 1B1.10. The
district court also explained that United States v. Booker, 543 U.S. 220 (2005), did not
apply to proceedings under § 3582(c)(2) so a full resentencing was not appropriate,
but allowed twenty days for the parties to file objections. Harris then renewed his
request for appointment of counsel, requested additional time to prepare objections,
and requested a hearing. The district court entered the final order reducing Harris's
sentence on January 5, 2009 and denied his motions, noting that it lacked discretion
to impose any sentence lower than 235 months.
Harris contends that he had constitutional and statutory rights to the
appointment of counsel for his § 3582(c)(2) proceedings. We review for abuse of
discretion a court's decision regarding appointment of counsel. Williams v. Groose,
979 F.2d 1335, 1337 (8th Cir. 1992) (per curiam). The Supreme Court has held that
the Sixth Amendment right to counsel does not extend beyond the first appeal.
Coleman v. Thompson, 501 U.S. 722, 756 (1991), and we agree with the six circuits
that have held that there is no right to appointed counsel in sentence modification
-2-
proceedings under § 3582(c). See United States v. Young, 555 F.3d 611, 615 (7th Cir.
2009); United States v. Olden, No. 08-5060, 2008 WL 4596336, *3 (10th Cir. Oct. 15,
2008) (unpublished); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000);
United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996); United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462,
465 (2d Cir. 1995); United States v. Evans, 46 F.3d 1135, No. 94-2779, 1995 WL
46553 (8th Cir. 1995) (per curiam) (unpublished) (no abuse of discretion in refusing
to appoint counsel in § 3582(c) proceedings).
Nor does Harris have a right to counsel under the Criminal Justice Act, which
provides that "[a] person for whom counsel is appointed shall be represented at every
stage of the proceedings from his initial appearance . . . through appeal, including
ancillary matters appropriate to the proceedings." 18 U.S.C. § 3006A(c). Proceedings
under § 3582(c)(2) are not ancillary matters for the purposes of § 3006A(c) because
such a motion is potentially far removed in time from the original sentencing and does
not provide "a second opportunity to present mitigating factors to the sentencing
judge, nor is it a challenge to the appropriateness of the original sentence." Whitebird,
55 F.3d at 1010–11; accord Reddick, 53 F.3d at 464–65. We therefore conclude that
the district court did not abuse its discretion in denying Harris's motion for
appointment of counsel. Moreover, we find that Harris was not prejudiced by this
denial, since he received the maximum reduction in his sentence permitted by
U.S.S.G. § 1B1.10.
Harris also argues that the district court erred by denying his request for a
hearing. In United States v. Starks, 551 F.3d 839 (8th Cir. 2009), cert. denied, 2009
WL 1043901 (U.S. June 1, 2009) (No. 08-9839), we held that Booker did not render
advisory the policy statement at U.S.S.G. § 1B1.10, which applies during a §
3582(c)(2) proceeding. That policy statement allows the district court to consider the
sentencing factors at 18 U.S.C. § 3553(a) only "when making the decision whether to
reduce a term of imprisonment as a result of the Sentencing Commission's lowering
-3-
of the range." Id. at 841. Those factors do not allow the district court to impose a
sentence that is less than the minimum of the amended guideline range, so it was not
error for the court to refuse to hold an evidentiary hearing at which the defendant
could present evidence supporting a sentence less than the minimum of the amended
guideline range. Id. at 843. Likewise, because the district court in this case could not
impose a sentence lower than the one stated in its preliminary order, it did not err by
denying Harris's request for a hearing.
The amended judgment is affirmed.
_____________________________
-4-
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331 F.3d 1207
Ariel S. VELCHEZ, Plaintiff-Appellee,v.CARNIVAL CORPORATION, a.k.a. Carnival Cruise Lines, Defendant-Appellant.
No. 02-13535.
United States Court of Appeals, Eleventh Circuit.
May 29, 2003.
Beverly D. Eisenstadt, James Daryl Gassenheimer, Rachel S. Cohen, Mase & Gassenheimer, Miami, FL, for Defendant-Appellant.
David Henry Pollack, Miami, FL, Rebecca Bedford Watford, The Huggett Law Firm, Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BIRCH, CARNES and BRUNETTI*, Circuit Judges.
CARNES, Circuit Judge:
1
Ariel Velchez formerly worked as a seaman on board a vessel owned by Carnival. He was employed under the terms of a standard Philippine Overseas Employment Administration contract, which includes a clause requiring claims and disputes to be resolved through an established "grievance machinery." Velchez served Carnival with a summons and complaint he had filed in state court. The complaint asserted claims for negligence under the Jones Act, unseaworthiness, failure to provide maintenance and cure, and failure to treat, and it sought damages for injuries Velchez allegedly sustained while employed on the ship.
2
Some nineteen months after Velchez filed suit, Carnival filed a notice of removal in the United States District Court for the Southern District of Florida. The notice of removal took the position that because Velchez was working under an arbitration agreement which fell under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, removal was proper under 9 U.S.C. § 205. Following removal, Velchez moved the district court to remand the action to state court, arguing among other things that Carnival's notice of removal was procedurally flawed. The district court agreed and granted Velchez's motion.
3
Under 28 U.S.C. § 1447(d), "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d).1 So if that section applies to this case, we are without jurisdiction and have no choice but to dismiss the appeal. Carnival, of course, insists that the section does not apply, while Velchez insists that it does.
4
In In re Ocean Marine Mutual Protection & Indemnity Ass'n, 3 F.3d 353 (11th Cir.1993), we applied § 1447(d) and held that any remand order based on a timely § 1447(c) motion to remand for procedural defects in the removal is unreviewable. Id. at 355. In his amended motion for remand, Velchez asserted that Carnival had failed to meet the procedural requirements of 28 U.S.C. § 1446, and more specifically, that it had failed to attach "a copy of all process, pleadings, and orders served" as required by § 1446(a). Because failure to comply with § 1446(a) constitutes a defect in removal procedure within the meaning of § 1447(c), see Ocean Marine, 3 F.3d at 356, Velchez's motion was a timely § 1447(c) motion for remand based on procedural defects in removal. It follows that we lack jurisdiction over this appeal. None of Carnival's arguments to the contrary persuade us.
5
One of those arguments is that 9 U.S.C. § 205, the provision under which Carnival had removed the case, does not incorporate the procedural requirements of § 1446.2 We have never squarely addressed that issue in this circuit, and we cannot today because "the remand order, `whether erroneous or not,' is not subject to review in this court...." Ocean Marine, 3 F.3d at 356 (quoting Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976)) (emphasis added). Thus, even if we were convinced that Carnival is correct and that the district court's decision is wrong, we are precluded by § 1447(d) from doing anything about it because the district court's action, right or wrong, was based on a timely § 1447(c) motion.3
6
Carnival's response to that problem with its position is to contest the proposition that the district court's remand was based upon a § 1447(c) motion. If the remand based upon procedural defects in the removal had been ordered sua sponte, as Carnival argues, then we would not lack jurisdiction. Whole Health Chiropractic & Wellness, Inc. v. Humana Medical Plan, Inc., 254 F.3d 1317, 1319 (11th Cir.2001). The law disfavors court meddling with removals based upon procedural — as distinguished from jurisdictional — defects, because "[w]e ... recognize that a plaintiff may acquiesce to federal jurisdiction, and forgive any of the defendant's procedural errors in removing the case." Id. at 1321. Allowing district courts to remand cases on their own because of procedural defects would remove a plaintiff's ability to acquiesce in a procedural problem that may not be bothersome to the plaintiff, thereby depriving both sides of their preferred forum. Id. at 1320. As the Seventh Circuit has observed, to avoid extending a dispute, a district court should wait for a motion for remand, because "the plaintiff may forgive the procedural defect and accept the defendant's preference for a federal forum." In re Continental Cas. Co., 29 F.3d 292, 295 (7th Cir.1994).
7
Carnival's contention that the district court essentially acted on its own to send the case back to state court because of a procedural defect in removal rests entirely upon the fact that the district court granted Velchez's remand motion on the basis of a different procedural defect than the motion specified. The procedural objection in Velchez's motion was based on Carnival's asserted failure to attach certain documents to its removal notice, as required by § 1446(a). The district court granted the motion to remand on the different basis, never asserted by Velchez, that Carnival had failed to comply with the requirement of § 1446(b) that the removal notice be filed within thirty days of the defendant's receipt of the initial pleading.
8
This is really the issue upon which this appeal turns: Does a remand order based upon a procedural defect different from the one asserted in the remand motion filed by a party amount to a sua sponte order over which we have appellate jurisdiction? Sua sponte means "[w]ithout prompting or suggestion; on its own motion." Black's Law Dictionary 1437 (7th ed.1999). That dictionary definition of sua sponte does not fit these circumstances, because the court was prompted by Velchez to remand. The court stated in its order that "it is, ORDERED AND ADJUDGED that Plaintiff's Motion to Remand is GRANTED." Order at 3.
9
Of equal or greater importance is the purpose behind the distinction. When a party moves for remand, as Velchez did, that party wants to go back to state court. The motion establishes that the moving party does not want to acquiesce in the federal forum despite any procedural defects. The concern we expressed in Whole Health Chiropractic that a sua sponte remand might "deprive both sides of their preferred forum" and stand in the way of a non-moving party who wanted to "acquiesce to federal jurisdiction, and forgive any of the defendant's procedural errors in removing the case," 254 F.3d at 1320, 1321, is baseless in this situation. We decline to extend a rule to circumstances in which the basis for it does not exist.
10
APPEAL DISMISSED FOR LACK OF JURISDICTION.
Notes:
*
Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by designation
1
The statute expressly includes an exception for certain civil rights cases, 28 U.S.C. § 1447(d), which is not relevant here
2
Section 205 says that:
Where the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention, the defendant or the defendants may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States for the district and division embracing the place where the action or proceeding is pending. The procedure for removal of causes otherwise provided by law shall apply ....
9 U.S.C. § 205 (emphasis added). Section 1446(b) requires a notice of removal to be filed within thirty days after the defendant receives the pleading, 28 U.S.C. § 1446(b), and Carnival waited much longer than that. The district court's remand order was based on Carnival's failure to comply with that time limit.
3
As in ourOcean Marine decision, in this case "we state no opinion as to the correctness of the district court's conclusion that 9 U.S.C. § 205 retains the thirty-day time limit of § 1446(b)." Ocean Marine, 3 F.3d at 356.
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922 F.2d 841
136 L.R.R.M. (BNA) 2152
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.INTERN. BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 8,Plaintiff-Appellant,v.C & M ELECTRIC, Defendant-Appellee.
No. 90-3233.
United States Court of Appeals, Sixth Circuit.
Jan. 3, 1991.
Before KRUPANSKY, RALPH B. GUY, Jr. and SUHRHEINRICH, Circuit Judges.
PER CURIAM.
1
Plaintiff-appellant, Local Number 8 of the International Brotherhood of Electrical Workers (Union), appeals the dismissal of its action against defendant-appellee, C & M Electric (Company). The district court dismissed the complaint, finding that subject matter jurisdiction over the controversy was lacking under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185.
2
This litigation arose out of a dispute between the Union and the Company in connection with the construction of a Wal-Mart store in Napoleon, Ohio in September, 1989. The Company, which had sub-contracted to perform the electrical work at the construction site, employed only non-Union labor, allegedly at wages below the prevailing rate paid to Union labor in that region of Ohio. The Union picketed the site, protesting the absence of Union labor and payment of sub-standard wages. In settlement of the dispute, the Union and the Company entered into an agreement whereby the Company agreed to replace itself with a firm that employed Union labor, and to withdraw from the site as soon as possible. The Company allegedly breached this agreement, and the Union subsequently commenced suit under section 301.
3
The district court held that the agreement at issue was not the type of contract that may serve as the subject of a section 301 action because it had not been entered into between a union and a company employing members of that union. District 2 Marine Engineers v. Grand Bassa Tanker, 663 F.2d 392, 398 (2d Cir.1981). Upon review of the arguments of the parties and of the applicable law, this court finds that the judgment of the district court should be affirmed for the reasons stated in its opinion of February 26, 1990.
4
Accordingly, the judgment of the district court dismissing the complaint for lack of subject matter jurisdiction is hereby affirmed.
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677 S.W.2d 851 (1984)
283 Ark. 496
Ann BROACH, Appellant,
v.
CITY OF HAMPTON, Arkansas, Appellee.
No. 84-145.
Supreme Court of Arkansas.
October 29, 1984.
*853 Shackleford, Shackleford & Phillips, P.A., El Dorado, for appellant.
Wynne, Wynne & Wynne by Robin F. Wynne, Fordyce, for appellee.
DUDLEY, Justice.
In 1963, appellee, the City of Hampton, acquired 57 acres of land from Charles and Ann Broach for the price of $105.00 per acre. The acreage was to be used for an oxidation pond and pumping station for the city sewer system. On February 8, 1966, after the construction was complete, Charles Broach asked the Hampton City Council if he and Ann Broach could buy back that part of the property which had not been used for the sewer system. The council voted to sell back the unused 43.15 acres at the price of $50.00 per acre, but reserved the right to repurchase the property when the sewer system required additional oxidation ponds. The pertinent provision in the deed reads as follows:
The grantees herein, Charles Broach and Ann Broach, hereby agree to sell back to the City of Hampton, grantors herein, all or any part of the above-described 43.15 acre tract that the City of Hampton might need in the future for oxidation ponds for the city sewer system, at a price of $50.00 per acre. Grantor reserves such right of purchase.
In 1973, Charles Broach died, leaving appellant as the survivor. Meanwhile the City of Hampton grew and the additional population required expansion of the sewer system. In July, 1983, the City Council voted to repurchase the property for the price stated in the deed, $50.00 per acre, and expand the system. Appellant refused to sell. Appellee city filed suit for specific performance. Appellant answered, raising various defenses, among them being that *854 the option to repurchase was void because it violated the Rule against Perpetuities and also because it placed an unreasonable restraint upon alienation of the land. The court granted appellee's request for specific performance. We affirm. Jurisdiction is in this court pursuant to Rule 29(1)(p) as the case presents a question about the construction of deeds.
We must first decide whether the repurchase option in the deed is void because it violates the rule against perpetuities or the rule against unreasonable restraints on the alienation of property. Although these rules are distinct entities, they share a common purpose which is to insure that property is reasonably available for development by forbidding restraints that keep property from being used for a lengthy period of time. L. Simes & A. Smith, The Law of Future Interests § 1135 (2d ed. 1956). Iglehart v. Phillips, 383 So.2d 610 (Fla.1980). Article 2, Section 19 of the Arkansas Constitution forbids perpetuities. Arkansas does not have a statute stating the rule against perpetuities, but follows the common law rule which prohibits the creation of future interests or estates which by possibility may not become vested within the life or lives in being at the time ... of the effective date of the instrument and 21 years thereafter. Roemhild v. Jones, 239 F.2d 492 (8th Cir. 1957); Hendricksen v. Cubage, 225 Ark. 1049, 288 S.W.2d 608 (1956).
The language in the repurchase option clause of the deed mentions only Charles and Ann Broach and the City of Hampton. No Arkansas case has previously decided the issue of whether the rule against perpetuities applies to an option to repurchase. However, in Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918 (1950), that court stated:
In practically all the cases holding that the reservation of an option to repurchase made in favor of the grantor violates the rule against perpetuities and is invalid, the language of the reservation clearly extended the option beyond the life of the optionee. Usually the reservation of the option was to the optionee, his heirs and assigns.
313 Ky. at 252, 230 S.W.2d at 920. In the case before us there is no language in the deed which states that the option runs to the heirs or assigns of the Broaches, nor is there any other language that indicates that the parties intended that the terms would be binding beyond the lives of the Broaches. There is a reasonable basis, therefore, for the trial court's ruling that the option did not extend beyond the lives of the parties to the option, and consequently, we cannot say as a matter of law that the rule against perpetuities has been violated.
The same result follows where there are two possible constructions to the option agreement because:
The rule against perpetuities is not a rule of construction but a rule of property, yet if there are two possible constructions of an instrument, one which would render it valid and one which would render it invalid, preference will be accorded to the construction which will uphold it. Roemhild v. Jones, 239 F.2d 492, 496 (8th Cir.1957).
Appellant's contention that the repurchase option violates the rule against unreasonable restraints upon alienation is also without merit. A direct restraint on alienation is "a provision which, by its terms, prohibits or penalizes the exercise of the power of alienation." L. Simes, Law of Future Interests 237 (1966). There are three types of direct restraints. 4 Restatement, Property § 404 (1944). First, a disabling restraint is created when property is devised or conveyed with the limitation that it not be alienated. Simes, at 237. See Garner v. Becton, 187 Tenn. 34, 212 S.W.2d 890 (1948). All disabling restraints are void except those restraints on alienation incidental to spendthrift trusts. Simes, at 238. Second, a forfeiture restraint is created when, by an instrument *855 of transfer, the estate transferred will be subject to forfeiture or termination on alienation. Id. The general rule is that all forfeiture restraint are void. Simes, at 242. See Crecelius v. Smith, 255 Iowa 1249, 125 N.W.2d 786 (1964). Third, a promissory restraint is created when the promisor agrees, in a covenant in an instrument of conveyance, or by contract, not to alienate the property. Simes, at 238. Generally, although there are some exceptions, the law treats such promisory restraints just as it treats forfeiture restraints and declares them void. Simes, at 248. See Jackson v. Jackson, 215 Ga. 849, 113 S.E.2d 766 (1960).
The language in this deed does not create an unreasonable restraint on alienation for the simple reason that it does not constitute a restraint on alienation as above defined. There is no language by which the Broaches promise not to sell nor is there any language prohibiting the alienation of the land or causing forfeiture upon attempted alienation. The Broaches were free at all times to sell the interest they owned in the land.
The result announced by the trial court is correct. An appellate court will sustain the judgment if it is right, although the trial court announced the wrong reason for its ruling. Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983).
Appellant additionally argues that the trial court erred in holding that appellee's reservation of the right to repurchase was enforceable. Appellant contends that the statute of frauds is applicable to the reservation of the right to repurchase and that appellee must prove both the terms of the contract and the facts constituting performance in order to take the contract out of the statute of frauds. We find no merit in this argument. It is apparent from the language of the deed what the terms of the contract are and we note, as did the trial court, that the grantees accepted the deed, placed it on record, paid the purchase price, and took possession of the land.
The last point we address is whether appellee's reservation of the option to repurchase was still in effect when appellee attempted to exercise it since there was no express time limit stated in the deed. When there is no time limit expressed, an option must be exercised within a reasonable time of its execution and delivery. Gerald Elben, Inc. v. Seegren, 62 Ill.App.3d 20, 19 Ill.Dec. 125, 378 N.W.2d 626 (1978). This court has upheld the trial court's reasoning in determining that the option did not violate the rule against perpetuities because it could only be exercised during the lives of the grantees. We hold that limiting the exercise of the option to the lives of the grantees is a reasonable period of time.
Affirmed.
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Affirmed and Memorandum Opinion filed March 6, 2008
Affirmed
and Memorandum Opinion filed March 6, 2008.
In The
Fourteenth Court of
Appeals
____________
NO. 14-06-00286-CR
NO. 14-06-00287-CR
____________
ALFRED EDWARD JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the
209th District Court
Harris County,
Texas
Trial Court Cause
Nos. 785,382 & 785,381
M E M O R
A N D U M O P I N I O N
These
are appeals from judgments signed March 28, 2006, revoking appellant=s community supervision and
sentencing him to confinement for ten months in the State Jail Division of the
Texas Department of Criminal Justice. In 1999, appellant was convicted of
criminal nonsupport of his two children. In each case, he was originally
sentenced to confinement for two years in a state jail facility, probated for
five years. See Johnson v. State, Nos. 14-99-01130-CR & 14-99-01131-CR,
2001 WL 1218412 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (not designated for publication).
Appellant
is not indigent and is represented by retained counsel. Appellant=s brief was originally due July 26, 2006,
over one year ago. On October 13, 2006, appellant filed a motion
requesting that we abate these appeals for a period of sixty days so that the
trial court could consider his application for writ of habeas corpus
collaterally attacking his convictions, which has been pending since 2002.
See Tex. Code Crim. Proc. Ann..
art. 11.072, ' 1 (establishing procedure for seeking habeas corpus relief in cases
where community supervision is ordered); Tex.
Code Crim. Proc. Ann. art. 11.07, ' 3 (establishing procedure for
application for writ of habeas corpus seeking relief Aafter final conviction in any felony
case@). We granted the motion and abated
the appeal.
More
than sixty days passed and the parties did not advise this court of the status
of appellant=s writ. On January 26, 2007, the court notified the parties that the
appeals would be reinstated unless any party filed a response demonstrating
grounds for continuing the abatement. No response was filed. Accordingly, we
reinstated the appeals and set appellant=s brief due March 30, 2007. We
granted appellant another extension of time until June 4, 2007. When this
extension was granted, the court noted that no further extensions would be
granted.
On June
27, 2007, appellant filed a further motion for extension of time to file
appellant=s brief, seeking an additional 90-day delay so that the trial court may
rule on appellant=s application for writ of habeas corpus. We denied the
request and ordered counsel to file appellant=s brief. No brief was filed.
Pursuant to Texas Rule of Appellate Procedure 38.8(b), we directed the trial
court to conduct a hearing to determine why no brief was filed and whether
counsel should be held in contempt of court. The trial court made the
requested findings, declined to hold counsel in contempt of court and granted
appellant 90 days, or until December 13, 2007, to file appellant=s brief. Again, no brief was filed.
Instead appellant filed a further motion to abate the appeals or in the
alternative to extend time to file the brief until his habeas proceeding has
not only been decided by the trial court, but also until after final
disposition by the Court of Criminal Appeals at some unknown future date. We
denied the motion.
Rule
38.8 provides that we will not dismiss or consider an appeal without briefs
unless it is shown the appellant no longer desires to prosecute his appeal or
that he is not indigent and has failed to make necessary arrangements for
filing a brief. It is clear that the rule was designed to protect an indigent
appellant from the failure of his appointed counsel to provide a brief. The
rule further provides that under appropriate circumstances, Athe appellate court may consider the
appeal without briefs, as justice may require.@ Tex.
R. App. P. 38.8 (b)(4).
A
hearing has already been held as required under Rule 38.8. Appellant is not
indigent and is represented by retained counsel. Because the trial court has
already held one hearing to make the findings required under Rule 38.8, and we
can find nothing in the rules or case law which requires this court to once again
send this matter back to the trial court, we decline to do so. Therefore, on
January 17, 2008, we ordered appellant to file a brief in these appeals on or
before February 19, 2008. In our order, we advised appellant that if he failed
to file his brief, we would decide the appeals on the record before the court.
See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994) (affirming
conviction on record alone where appellant failed to file a pro se brief after
being properly admonished); Coleman v. State, 774 S.W.2d 736, 738-39
(Tex. App.BHouston [14th Dist.] 1989, no pet.) (holding that former rule 74(l)(2)
(now Rule 38.8(b)) permitted an appeal to be considered without briefs Aas justice may require@ when a pro se appellant has not
complied with the rules of appellate procedure).
Appellant
has not complied with our order of January 17, 2008. While we believe that no
accused should be denied his right of appeal, we also believe that Ajustice requires@ that the exercise of this right of
appeal must be held within the framework of the rules of appellate procedure. See
Coleman, 774 S.W.2d at 738-39. We also believe that requiring any
appellant to follow the rules does not infringe upon his right of appeal. See
id. We therefore find that justice requires that these appeal be
determined without briefs.
This
court has reviewed the entire record brought forth in these appeals. By
stipulations signed March 28, 2006, the date the revocation judgments were
signed, appellant judicially confessed to the violations of his probation
alleged in the State=s motions. He entered a plea of true in each case, but he
reserved his right to appeal.
We find
no reversible error. Accordingly, the judgments of the trial court are
affirmed.
PER
CURIAM
Judgment rendered and Memorandum
Opinion filed March 6, 2008.
Panel consists of Chief Justice
Hedges and Justices Anderson and Boyce.
Do not publish - Tex. R. App. P. 47.2(b).
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151 Pa. Commonwealth Ct. 53 (1992)
616 A.2d 143
John A. BALAS, Georgia Bargebuhr, Judith Beck, et al., Petitioners,
v.
DEPARTMENT OF PUBLIC WELFARE, ALLEGHENY COUNTY ASSISTANCE OFFICE, Respondent.
Commonwealth Court of Pennsylvania.
Argued February 4, 1992.
Decided September 30, 1992.
*54 Paul D. Boas, for petitioners.
James S. Marshall, Asst. Counsel, for respondent.
Before PALLADINO and McGINLEY, JJ., and BARRY, Senior Judge.
McGINLEY, Judge.
John A. Balas and sixteen other supervisory employees (Petitioners) of the Allegheny County Assistance Office (ACAO) petition for review of orders of the State Civil Service Commission (Commission) that denied their appeals from the action of the Department of Public Welfare (DPW) in reclassifying them downward from the position of Casework Supervisor II (CWS II),[1] at Pay Range 40, to Income Maintenance Casework Supervisor (IMCWS), at Pay Range 38. The petitions from the seventeen separate orders of the Commission have been consolidated.
Petitioners previously petitioned for review from the Commission's denial of their appeals and requests for hearings under both Section 951(a) and (b) of the Civil Service Act *55 (Act).[2] This court determined that, under the Supreme Court's recent decision in McHale v. Department of Transportation, 520 Pa. 282, 553 A.2d 956 (1989), the downward reclassifications were not "demotions" subject to appeal under Section 951(a), in which the appointing authority bears the burden of demonstrating just cause for the enumerated personnel action. However, Petitioners had also appealed under Section 951(b), claiming discrimination in violation of Section 905.1 of the Act.[3] They alleged that their reclassifications were done solely for the purpose of equalizing the pay differential between them and the IMCWSs, who were doing the same work at lower pay.
We concluded that Petitioners' allegations were sufficiently specific to establish a claim of discrimination and merited a Section 951(b) hearing, where the burden is placed on the appealing employee to show a violation of Section 905.1. Next we referred to the general rule that personnel actions must be based on merit criteria that are relevant to the proper execution of the employee's duties, that are job-related and that touch in some logical and rational manner upon competence and ability. We concluded that a motive to reclassify Petitioners based solely on an inappropriate classification of the position of IMCWS and unrelated to the proper performance of the duties of a CWS II, if proved true, would constitute discrimination based on non-merit criteria. We remanded for a hearing. Balas v. Department of Public Welfare, 128 Pa. Cmwlth.Ct. 205, 563 A.2d 219 (1989) (Balas I).
At the hearing on remand, Petitioners presented testimony from five of their own number and from some other DPW employees not involved in the case. Petitioners are all employees *56 of DPW in the ACAO for fifteen years or longer. The position of CWS II was in place at least by 1971. In 1973 the "Income Maintenance" classification series was established, which included the position of Income Maintenance Supervisor (IMS).[4] The witnesses testified that there was no difference between the work of CWS IIs and IMSsone who occupied either position supervised both Caseworkers and Income Maintenance Workers, and essentially performed the same work. Further, the witnesses testified that the job duties of CWS IIs did not change after the late 1960's or early 1970's CWS IIs did the same work before and after the creation of the Income Maintenance series, and their work duties remained the same after they were reclassified as IMCWSs.[5] Some IMSs began protesting as early as 1981 about the disparity in pay between IMSs and CWS IIs. A 1982 memorandum from the Director of DPW's Office of Western Operations proposed addressing the problem by combining the two positions in a new "Public Assistance Supervisor" position at Pay Range 39.
The Chief of the Division of Position Management and Compensation of DPW, Nevin Shenck (Shenck), testified that beginning in 1981 or 1982 his office conducted a review of the classifications of positions in County Assistance Offices state wide and determined that they were inadequate. He stated that for a long time the CWS II positions were "earmarked" because his office thought they were misclassified, but they could not take any classification action until the adoption in 1982 or 1983 of 4 Pa.Code § 99.42, relating to reallocation to a lower class.[6] Had they acted earlier, the result would have *57 been furloughs, and not for the particular incumbents involved. In addition, Rebecca Urban Hill, a Personnel Analyst 2 in the ACAO, testified that in the early 1970's a caseworker's duties were approximately one-half direct provision of social services to individuals and one-half eligibility determinations, and that by the mid-1970's the nature of the work evolved to doing mostly eligibility determinations and a small amount of referrals to other social service providers.
DPW recommended changes in the classifications of County Assistance Offices employees to the Executive Board of the Commonwealth (Executive Board).[7] By Amendment No. 495 to the Compensation Plan for the Commonwealth, dated December 31, 1985, the Executive Board, among other actions, changed the titles of positions in the Income Maintenance series to the new Income Maintenance Casework series.[8] By memorandum of January 14, 1986, DPW reclassified some 159 *58 CWS IIs state wide, eliminating the position of CWS II in County Assistance Offices, although that title is still used in other settings, such as mental hospitals.
The Personnel Director of the ACAO informed Petitioners of their reclassification by the letters of February 6, 1986. Each letter stated that, after review, the duties of their position were determined to be properly allocable to the Income Maintenance Casework Supervisor class. Petitioners were further informed that attempts to find alternate placement in a "complement classification" or one with the same pay range were not successful. The reclassification did not result in a reduction of current rate of compensation or anniversary date, and had no effect on Civil Service status. Each Petitioner was to report to the same office and work assignment; the action implied no negative reflection on performance or abilities. The letter stated that the action might be appealed under Section 951(b) of the Act if the Petitioner felt that it was based on discrimination or non-merit factors, but that an appeal from the technical classification decision was unacceptable. If the Petitioner wished to appeal the classification decision, he or she was to use the appropriate collective bargaining agreement grievance process in Chapter 28 of the Personnel Rules or Management Directive No. 505.7.
After the hearing on remand, the Commission made findings concerning the difference between positions and classifications, the authority of the Executive Board and the history of the positions involved. The Commission's crucial finding is No. 10: "The appointing authority determined that the Income Maintenance Casework Supervisor was the appropriate classification for the appellant's position. N.T. p. 157." Commission Adjudication at 2. The Commission emphasized the burden on an appellant to prove discrimination in a Section 951(b) appeal. It stated that the Petitioners were afforded the opportunity to prove their allegations, after Balas I, but that they "failed to meet the required standard of proof." Id. at 3.
The Commission distinguished cases cited by the Petitioners describing merit criteria, on the basis that those cases concerned *59 removal actions, whereas the present controversy involves "a reclassification decision made by an appointing authority acting in compliance with standards established by the Executive Board." Id. It quoted Section 707 of the Act:[9] "The classification of positions and the compensation of employes in the classified service shall conform to standards and rules adopted by the Executive Board." The Commission noted further that this court has held that the Executive Board may modify salary ranges for reasons of economy or other factors not related to an employee's performance. O'Peil v. State Civil Service Commission, 16 Pa.Cmwlth.Ct. 467, 332 A.2d 879 (1975).
The Commission summarized the testimony of DPW's witnesses Shenck and Hill and found that "the subject reclassification was executed solely as a means to correctly classify the [Petitioners], not to equalize pay with employes previously classified as Income Maintenance Supervisors." Commission Adjudication at 4. The Commission relied upon Nevling v. Department of Public Welfare, 106 Pa.Cmwlth.Ct. 625, 527 A.2d 610 (1987), to further support its decision. There, this court accepted a Commission ruling that a reclassification is appropriate when there is a change in job duties.[10] Finally, the Commission stated that to show discrimination, an appellant must prove either an intent to discriminate of the part of the appointing authority or a technical statutory violation, citing Pronko v. Department of Revenue, 114 Pa.Cmwlth.Ct. 428, 539 A.2d 456 (1988). The Commission was expressly *60 aware of the principle that discrimination cannot be inferred, and it reiterated that the Petitioners failed to prove any of their allegations. The Commission denied the appeal.
The scope of our review of an adjudication of the Commission is limited to determining whether there was a constitutional violation or an error of law and whether the necessary findings of fact are supported by substantial evidence in the record. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Balas I.
Petitioners first contend that the Commission sustained the reclassification contrary to Balas I because this personnel action was based on non-merit factors. They cite the description of merit-based factors found in Corder v. State Civil Service Commission, 2 Pa.Cmwlth.Ct. 462, 467, 279 A.2d 368, 371 (1971):
This means that any `personnel action' carried out by the Commonwealth is to be scrutinized in the light of such merit criteria, as has the party failed to properly execute his duties, or has he done an act which hampers or frustrates the execution of same. The criteria must be job-related and in some rational and logical manner touch upon competency and ability.
Petitioners assert that the record establishes beyond dispute that that the nature and scope of their duties has not changed for almost twenty years. They aver that the most plausible motive for the action was to equalize their pay with the IMSs, coincidentally stifling the protests of the IMSs and saving money on wages. In addition, Petitioners note that proof of a technical violation of the Act has been recognized as proof of discrimination proof of intent to discriminate need not be shown. Pronko.
Despite Petitioners' citation to Corder, they do not contend that a downward reclassification may be done only on the basis of unsatisfactory performance. As we observed in Balas I, the Supreme Court in McHale noted that downward reclassification based on merit criteria is a "demotion" rather than a reclassification. McHale held, "A reclassification of positions *61 to recognize a change in status or duties or to correct an error made in the original classification is not a demotion affording an employee the procedural rights created by the Civil Service Act." McHale, 520 Pa. at 287, 553 A.2d at 958.[11] In addition, the Petitioners' argument that 4 Pa.Code § 99.42 does not apply to their circumstances is a tacit concession that that section may be applied in some circumstances. As hard as this may be on Petitioners, the concept of reclassification based on factors other than individual job performance is firmly established.
As for the factual question of motive, our Supreme Court explained in Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987), the shifting burden of going forward in a "traditional" discrimination case, where a plaintiff alleges disparate treatment on the basis of race, sex or other non-merit factors, i.e., intentional discrimination. If a plaintiff produces sufficient evidence that, if believed and otherwise unexplained, indicates that more than likely discrimination has occurred (that is, if the plaintiff makes out a prima facie case) then a presumption of discrimination is established. The defendant must then be heard to respond to offer a nondiscriminatory explanation. If there is no response, the presumption prevails. However, if the defendant makes a response sufficient to create a factual question as to motive, the presumption *62 drops from the case, the issue is joined, and the trier of fact must determine which explanation it believes. Allegheny Housing Rehabilitation Corp., 516 Pa. at 131, 532 A.2d at 319.
In Balas I we stated that the Petitioners' allegations make out a prima facie case of intent to discriminate they allege that they were adversely reclassified without any claim of unsatisfactory performance, for the non-merit purpose of equalizing pay with another group of employees, in disregard of the appropriate classification of their positions. At the hearing in this case Petitioners supported their allegations with testimony and documentary evidence, thereby making out their prima facie case. DPW then responded with evidence of a proper motive, namely, that it determined after study that the jobs were misclassified. DPW maintains that action was taken only for the purpose of correcting that situation, without any intent to discriminate. The Commission, as trier of fact, chose to accept the evidence of DPW over that of the Petitioners. Although Petitioners argue that little weight should be accorded the testimony of Shenck and Hill, they do not raise a claim that the testimony was, as a matter of law, so irrelevant or incompetent that it must be stricken, thereby eliminating the response to the prima facie case. Questions of credibility and of the weight to be accorded evidence and the resolution of conflicts are for the Commission. This court will not separately weigh evidence and substitute its judgment, even though we might have reached a different factual conclusion. Anastasi v. Civil Service Commission City of Philadelphia, 88 Pa.Cmwlth.Ct. 6, 488 A.2d 384 (1985).
It must be emphasized that the Commission found that DPW did not act with an improper intent, not that the classification made by DPW was "correct." In Gorton v. State Civil Service Commission, 35 Pa.Cmwlth.Ct. 319, 385 A.2d 1026 (1978), this court explained that the effect of amendments to the Act in 1963, including the addition of Section 707, noted above, was the removal of authority over job classification and related compensation matters from the Commission and the placing of authority over such matters in the Executive Board. *63 Section 905.1 of the Act applies to the Executive Board as well as all other agencies the Executive Board may not classify or set standards with a discriminatory intent, and the Commission may adjudicate such a claim because it is a discrimination matter rather than a classification matter.[12] The determination for the Commission is whether there was discrimination, not whether the act of classification was correct or advisable.
Next, Petitioners incorrectly assert that, at a minimum, they have proved a technical violation of the Act, and therefore, under Pronko, they need not prove intent to discriminate. Pronko involved a procedural error in a personnel action, the misdesignation of a furlough unit.[13] The court held:
[I]n cases brought under Section 951(b) where a technical violation of the Act (sometimes referred to as a procedural error, procedural impropriety or procedural `discrimination') constitutes the alleged discrimination, no showing of intent is required.... The reason for our holding is that often in cases of technical non-compliance what has occurred is administrative error or mistake. Thus, intent to discriminate could not be shown because it is frequently non-existent.
Pronko, 114 Pa.Cmwlth.Ct. at 439-40, 539 A.2d at 462 (citing Debra Punsky Rand, An Examination of Discrimination Under the Pennsylvania Civil Service Act, 25 Duq.L.Rev. 209, 236 (1987)).[14] Then the court went on to state: "We wish to *64 emphasize, however, that our holding does not excuse the complaining individual from proving intent in the traditional type of discrimination case." Id. at 440, 539 A.2d at 462 (footnote omitted).
In the present case Petitioners do not claim an error in the procedure by which they were reclassified. Petitioners do not dispute that an appointing authority may reclassify its employees, nor do they contend, for example, that DPW used an improper procedure by failing to conduct the search for equivalent reassignment positions that was required by Section 99.42. As for mistake, Petitioners were afforded the opportunity to prove that the reclassification was a mistake because their job duties never changed, but the Commission determined that issue against them. Petitioners' challenge is a "traditional" claim of discrimination based on non-merit factors, not a claim of procedural discrimination or mistake of fact.
The Petitioners' final contention is an argument in the alternative that even if DPW proved a change in job duties some thirteen years earlier, the Commission erred by affirming a reclassification under 4 Pa.Code § 99.42 in those circumstances. They challenge DPW's interpretation of the regulation and maintain that the regulation only provides for reclassification in the context of contemporaneous or quasi-contemporaneous changes in job duties.[15] However, even if the Petitioners' interpretation is correct, this contention constitutes a challenge to the classification itself, and under Gorton and related cases, the Commission does not have authority to adjudicate such a matter. The Petitioners' only remedy is to pursue procedures established by the Executive Board for challenging the propriety of an act of classification or reclassification.
*65 Accordingly, we are constrained to affirm the Commission Adjudications as to each of Petitioners.
ORDER
AND NOW, this 30th day of September, 1992, the orders of the State Civil Service Commission in the above-captioned matter, dated October 19, 1990, are affirmed.
NOTES
[1] The "Caseworker" classification series includes the positions of Caseworker Trainee, Caseworker, Casework Supervisor 1, Casework Supervisor 2 and Casework Supervisor 3.
[2] Act of August 5, 1941, P.L. 752, as amended, added by Section 27 of the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.951(a) and (b).
[3] Added by Section 25 of the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.905a. Section 905.1 provides:
No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with regard to the classified service because of political or religious opinions or affiliations because of labor union affiliations or because of race, national origin or other non-merit factors. (Emphasis added.)
[4] That classification series included Income Maintenance Worker Trainee, Income Maintenance Worker 1, Income Maintenance Worker 2, Income Maintenance Supervisor, Income Maintenance Manager 1 and Income Maintenance Manager 2.
[5] Counsel for DPW stipulated that all Petitioners not yet called would testify in the same manner as those who had been called.
[6] Section 99.42, as amended March 5, 1982, 12 Pa.B. 868, provided:
When a position is allocated by proper classification authority to a class with a lower maximum rate of compensation due to change in the duties and responsibilities of the position as a result of action such as but not limited to redistribution of duties, modification of responsibility, or general program reorganization the regular or probationary incumbent of such position shall be reassigned if possible. Should a reassignment not be possible or should the regular or probationary incumbent of such position decline a reassignment, the incumbent shall continue in the reallocated position at the lower classification. An incumbent subject to such position reallocation shall have all rights of appeal as provided in the Civil Service Act (71 P.S. §§ 741.1-741.1005) except that an appeal to the Commission from the technical classification decision will not be accepted.
This provision was amended slightly in 1985 and was deleted November 15, 1991, 21 Pa.B. 5334. The effect of reclassifications is now addressed by 4 Pa.Code § 99.41, which provides simply that when an employee's job duties change or the Executive Board changes a class, any reclassification to a lower level will not be construed as a demotion.
[7] The Executive Board consists of the Governor, who is chairman, and six other heads of administrative departments. Section 204 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 64. Its powers include "[t]o standardize the qualifications for employment, and all titles, salaries, and wages, of persons employed by the administrative departments, boards, and commissions . . . ." Section 709(a) of the Administrative Code of 1929, 71 P.S. § 249(a).
[8] Amendment 495 changed the title of Income Maintenance Worker Trainee to Income Maintenance Casework Trainee, changed that of Income Maintenance Worker 2 to Income Maintenance Caseworker, changed that of Income Maintenance Supervisor to Income Maintenance Casework Supervisor and abolished the title of Income Maintenance Worker 1. The Amendment provides job descriptions for the new titles.
[9] Added by Section 17 of the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.707.
[10] Nevling was a furlough case under Section 951(a) of the Act where two food service employees challenged their furloughs (followed by offers of jobs at a lower classification) when the work of their agency was cut nearly in half. Among their claims was one that the reclassification procedure of 4 Pa.Code § 99.42 (with its requirement of an attempt to seek a reassignment) should have been used. The court approved the Commission's resolution of the "lack of work" issue based on its acceptance of DPW's interpretation of the regulation: furlough is proper where there is a drastic loss of work, but § 99.42 is proper where the appointing authority is adjusting the classification structure, upward or downward, to reflect the actual work allocated to each position.
[11] See also Office of Administration v. Orage, 511 Pa. 528, 532 n. 1, 515 A.2d 852, 854 n. 1 (1986): "The Executive Board has promulgated rules defining `reclassification' as the `reassignment of a position from one class to a different class to recognize a change in duties or responsibilities or to correct an error in the original assignment' . . . . 4 Pa.Code § 23.2." At the time of McHale and Orage this provision appeared in the "Definitions" section of Chapter 23 "General Provisions" of Subpart C. "Personnel Rules" of Part II of Title 4 Pa.Code, which relates to the Executive Board. The definition expressly described reclassification both upward and downward. This provision and all others in the Personnel Rules that did not relate to leave of absence with pay were deleted by the Executive Board on June 8, 1985, 15 Pa.B. 2094. The Executive Board stated that in the future decisions in those areas of responsibility will be adopted by simple resolution and communicated to state agencies and employees through the Directives Management System under 4 Pa.Code § 1.2 or some other appropriate means. Id.
[12] See O'Peil, 16 Pa.Cmwlth.Ct. at 471 n. 5, 332 A.2d at 882 n. 5: "The Executive Board ... may modify salary ranges for reasons of economy or other `non-merit' factors, if not discriminatory within the provisions of the statute and not constitutionally prohibited."
[13] See also Pennsylvania Board of Probation and Parole v. Baker, 51 Pa.Cmwlth.Ct. 501, 414 A.2d 1117(1980), appealed again after remand sub nom. Alterman v. Baker, 71 Pa.Cmwlth.Ct. 124, 454 A.2d 1154 (1983), appealed again after remand sub nom. Pennsylvania Board of Probation and Parole v. Baker, 82 Pa.Cmwlth.Ct. 86, 474 A.2d 415 (1984) (use of unauthorized testing procedures for promotion).
[14] The same analysis has been applied to claims of discrimination based on mistake of fact rather than intent. See, e.g., State Correctional Institution at Graterford v. Goodridge, 87 Pa.Cmwlth.Ct. 527, 487 A.2d 1036 (1985) (initial determination of a falsified application, later found to be incorrect).
[15] The Petitioners argue that Section 99.42 does not provide a proper substantive justification for their reclassification. This is not a claim of procedural error or mistake of fact.
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76 S.W.3d 393 (2002)
Ex parte Michael DOTSON, Applicant.
No. 73986.
Court of Criminal Appeals of Texas, En Banc.
June 5, 2002.
*394 William A. Thau, III, Corpus Christi, for Appellant.
Douglas K. Norman, Asst. DA, Corpus Christi, Matthew Paul, State's Atty., Austin, for State.
Before the court en banc.
OPINION
JOHNSON, J., delivered the opinion of the Court, in which MEYERS, PRICE, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.
This is an original application for writ of habeas corpus. A Nueces County grand jury indicted James Vannoy for the offense of felony theft. On August 14, 2000, the state filed an application to subpoena three witnesses, one of whom was applicant. On August 22, 2000, an investigator with the district attorney's office served applicant with the subpoena. Applicant refused to obey the subpoena, telling the district attorney that he was scared to "point the finger at someone." No writ of attachment was served.
A jury was selected, and the state put on evidence from its first witness in Vannoy's prosecution. Applicant failed to appear in court to testify. The trial court issued a writ of attachment, but applicant could not be located. Because the case could not be proved without applicant's testimony, the prosecution against Vannoy was dismissed with prejudice.
On September 14, 2000, the state filed a motion requesting that applicant be held in contempt for failing to obey the subpoena and, upon a finding of contempt, that he be sentenced to a term of confinement in the Nueces County jail. On September 27, 2000, the trial court held a hearing pursuant to the state's motion. Counsel for applicant argued that, under Art. 24.05 of the Texas Code of Criminal Procedure,[1] the only punishment which could be imposed for refusing to obey a subpoena in a criminal case was a fine of $500. The state argued that a subpoena is a court order and that the trial court had the power to *395 punish for contempt for failure to comply with an order.
The trial court found that Texas Rule of Civil Procedure 176.8(a)[2] is applicable to the extent that it authorizes punishment by contempt for failing to obey a subpoena. At the conclusion of the hearing, the trial court agreed with the state that a subpoena is a court order, and that, in the trial court's opinion, "there is no conflict between Rule 176.8 ... and Art. 24.05...." It further found that "if there is such a conflict, then the Court finds that and is of the opinion that Article 24.05 of the Code of Criminal Procedure is an unconstitutional infringement on the powers of the Court, the inherent powers of the Court and that it violates the separation of powers doctrine...." The court then found applicant in contempt and assessed punishment at 180 days confinement and a fine of $500. We are called upon to determine whether the trial court had the authority to confine applicant for contempt because of his failure to comply with a subpoena in a criminal case.
Generally, contempt is either direct, an act which occurs in the presence of the court, or indirect, an act done at a distance, such as disobeying an order of the court. 13 Tex. Jur.3d Contempt § 2 (1993). At the outset, we note that the instant case deals with criminal contempt.[3] The trial court's judgment of contempt repeatedly refers to applicant's "punishment" for contempt. Furthermore, the case against Vannoy had been dismissed with prejudice, and contempt as coercion to produce testimony was no longer useful. Criminal contempt was the only type available to the trial court. Clearly, the claimed contemptuous act, failing to answer a subpoena and appear in court, did not occur in the presence of the court. The state asserts that contempt will lie because the subpoena is a court order; applicant disagrees.
The issue is which statutory provision applies in these circumstances. One of our general rules of statutory construction is that a more specific statute or rule will prevail over a more general one. Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim.App.1988). Rule 176.8, by its placement in the Rules of Civil Procedure, applies specifically to civil proceedings. Art. 24.05, by its placement in the Code of Criminal Procedure and by its plain language, applies specifically to criminal cases. It is therefore reasonable to assume that the legislature intended to create different consequences for a given act, *396 depending on the circumstances surrounding that act.
The case before us arose from a criminal case, and the sentence imposed constitutes criminal contempt. Because applicant's refusal to answer was in the context of a criminal prosecution, we apply the statute which is specific to such failure, Art. 24.05, and hold that such failure does not fall under the provisions of civil Rule 176.8. The penalty for failure to answer a subpoena in a criminal case is limited to the provisions of Art. 24.05. Because Art. 24.05 speaks only in terms of failure to answer a subpoena and does not speak in terms of contempt, it is unnecessary to decide whether a subpoena is a court order. The punishment assessed by the trial court exceeded that permitted by law, and the trial court did not act within its authority.
Relief is granted.
WOMACK, J., filed a concurring opinion.
HERVEY, J., filed a concurring opinion, in which HOLCOMB, and COCHRAN, JJ., joined.
KELLER, P. J., filed a dissenting opinion, in which KEASLER, J., joined.
WOMACK, J., filed a concurring opinion.
I join the Court's judgment granting relief under our writ of habeas corpus. I reach that result on a different basis.
I agree with the Court that Rule of Civil Procedure 176.8(a) does not authorize a contempt action in a criminal case. This seems obvious.
Although the district court specified Rule 176.8(a) as its authority, any law that authorized the court's order would require us to deny relief to this applicant. The law that comes closer to authorizing the judgment of contempt is Section 21.002(a) & (b) of the Government Code.[1] Section 21.002 is not limited to civil cases as Rule 176.8(a) is. This statute, in its pre-codification *397 form,[2] came before us in Ex parte Wilkinson, 641 S.W.2d 927 (Tex.Cr.App. 1982).
Wilkinson and another person refused to testify before a grand jury. A district court held them in contempt, fined them $500, and ordered them imprisoned for 6 months. We issued the writ of habeas corpus.
The witnesses argued that Article 20.15, not the general contempt statute that is now codified as Section 21.002, controlled the district court. We agreed.
If it can be argued, however, that said [statutes] are in pari materia, then under the rules of statutory construction the special statute, Article 20.15, would govern over ... the general statute.
The two statutes are not, however, in pari materia. Article 20.15 and its forerunners have long been a part of our criminal procedural laws. The procedure involves only the district court and a witness who may be held in contempt for refusing to testify before the grand jury. [The general statute], enacted in 1971, deals with the contempt power of all courts concerning witnesses, officers of the court and others in a variety of situations. It is clear the two statutes are contained in different legislative acts, provide for different penalties, and are designed to serve different purposes and objectives. The provisions of the statutes are irreconcilable and the special statute, Article 20.15, must prevail under the rules of statutory construction. Although [the general statute] is the latter enactment, there is no manifest intent that the general provisions thereof relating to any act of contempt before any court control.[3]
The Court uses similar reasoning today and reaches the same result.[4] I agree, on the basis of Wilkinson.
HERVEY, J., filed a concurring opinion in which HOLCOMB, and COCHRAN, JJ., joined.
I join the Court's opinion. Since applicant did not refuse to obey the subpoena in the court's presence and since applicant did not refuse to obey the subpoena after being ordered to do so by the trial court, the trial court had no inherent or statutory power to hold applicant in contempt based solely on his refusal to obey the subpoena.[1] The trial court, therefore, could only fine applicant according to the statutory procedures for punishing those who refuse to obey properly served subpoenas. See Articles 24.05, 24.06, 24.07, 24.08, 24.09, 24.10, Texas Code of Criminal Procedure. This case, therefore, does not require the Court to address whether Article 24.05 violates constitutional separation of powers principles *398 by usurping the judiciary's contempt power under Section 21.002, Texas Government Code.
Had the trial court ordered applicant to obey the subpoena and had applicant refused,[2] then this Court would have to address this separation of powers issue. But even then, there would be no separation of powers problem. The trial court could apply the statutory Article 24 procedures set out above to punish applicant for refusing to obey the subpoena. The trial court could also apply its Section 21.002 contempt power to punish applicant for refusing to obey the court's order which is a separate act from applicant's refusal to obey the subpoena.[3]Compare Ex parte Edone, 740 S.W.2d 446, 449 (Tex.Cr.App. 1987) (court could properly hold applicants in contempt for violating court's order to testify before the grand jury) with Ex parte Wilkinson, 641 S.W.2d 927, 933 (Tex. Cr.App.1982) (court could not properly hold applicants in contempt based only on their refusal to testify before the grand jury).[4] Under these circumstances where they are applied to punish separate acts, Article 24.05 and Section 21.002 can each be reconciled and given effect and neither branch of government usurps a power that belongs to the other.
With these comments I join the Court's opinion.
KELLER, P.J., filed a dissenting opinion in which KEASLER, J. joined.
I believe that the district court had inherent power to punish contempt, and that power is in no way circumscribed by the statutory scheme. Alternatively, to the extent the statutory scheme might be said to circumscribe this power, it violates the Separation of Powers Clause of the Texas Constitution.
I.
The Texas Constitution vests "[t]he judicial power" in the courts, including the district courts of this state.[1] The compulsion of witnesses and the punishment of contempt are both aspects of this power. In the federal system the United States Supreme Court has recognized their judicial character.[2] The Supreme Court has also recognized that federal courts have inherent powerpower that exists even *399 absent statutory authorizationto punish contempts.[3]
In Chambers, the Supreme Court addressed a federal district court's inherent power to impose financial sanctions for abuses of the judicial process.[4] The district court had assessed attorney's fees for bad faith conduct.[5] Although a scheme for assessing sanctions was provided by both statute and rule, the Court held that the scheme did not displace the trial court's inherent power to assess sanctions.[6] While Congress has the authority to limit the exercise of the inherent power of lower federal courts because those courts were created by act of Congress, the Supreme Court does "not lightly assume that Congress" has intended to do so.[7] Significantly, the Court held that a district court could resort to inherent power to punish abuse of the judicial system even when there existed statutory mechanisms for imposing punishment for the specific type of abuse in question:
There is, therefore, nothing in the other sanctioning mechanisms or prior cases interpreting them that warrants a conclusion that a federal court may not, as a matter of law, resort to its inherent power to impose attorney's fees as a sanction for bad-faith conduct. This is plainly the case where the conduct at issue is not covered by one of the other sanctioning provisions. But neither is a federal court forbidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute or the Rules. A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. Furthermore, when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power. But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.[8]
We have recognized that courts possess inherent powers in criminal cases[9] and that these powers date back to early English common law.[10] We have defined inherent powers as "those powers required for the judiciary to perform its constitutional duties, preserve its jurisdiction, and preserve it[s] independence and integrity as a co-equal department of government." [11] In some cases we have recognized the trial court's inherent power to control how evidence is presented[12] and to assess conditions of bail[13] or probation.[14]*400 In these cases, we also recognized that legislatively enacted procedures did not preclude other procedures adopted by the trial court pursuant to its inherent power. We found that a statutory method for providing closed-circuit televised testimony did not preclude the use of closed-circuit television for witnesses who did not qualify under the statute, that a statute authorizing a trial court to set conditions of bail in a felony case did not defeat a trial court's inherent power to set conditions of bail in a misdemeanor case, and that the Legislature's creation of a Community Rehabilitation Center, with strict guidelines, did not prevent a trial court from creating a "Court Residential Treatment Center" that did not adhere to those guidelines.[15]
And our courts have long recognized that the power of contempt is inherent in the judicial department.[16] This Court has described the power as "broad and plenary" in the judiciary.[17] Another court has stated, "[a]lthough the exercise of this authority should be tempered with common sense and sound discretion, nevertheless we accord the judge's contempt power wide latitude because it is essential to judicial independence and authority."[18]
At first glance, another line of Texas cases may seem at odds with the assertion of inherent power with regard to contempt proceedings, at least insofar as subpoenas are involved. While, the Legislature has codified the ability to punish contempt generally in Section 21.002 and has provided specific penalties,[19] it has also enacted Chapter 24 of the Code of Criminal Procedure to deal specifically with the matter of subpoenas. Even more specifically, Article 24.05 provides that "[i]f a witness refuses to obey a subpoena, he may be fined at the discretion of the court, as follows: in a felony case, not exceeding five hundred dollars; in a misdemeanor case, not exceeding one hundred dollars."[20]
Some of our earlier cases, although not squarely addressing the issue in the instant matter, are consistent with the view that Article 24.05 and Section 21.002 are irreconcilable. In Ex Parte Wilkinson, the trial court held a witness in contempt for failing to testify before a grand jury in violation of Article 20.15 of the Code of Criminal Procedure, which provides penalties, including jail, for refusing to testify after being compelled to appear before a grand jury.[21] There we held that the more specific statute, Article 20.15, prevailed over the more general contempt statute, Article 1911a of the Civil Statutes (now Section 21.002 of the Government Code).[22]
*401 In Ex Parte Marek,[23] a witness appeared before a grand jury to testify but failed to bring with him certain documents as required in a subpoena duces tecum that he received. We concluded that the trial court erroneously held the witness in contempt under Article 20.15 because the witness actually appeared and testified before the grand jury.[24] We explained that Chapter 24, not Chapter 20, of the Code of Criminal Procedure treats subpoena matters and provides various fines for failure to comply.[25] Nothing in the Code of Criminal Procedure, however, permitted confinement in jail until subpoenaed material is brought before a grand jury. We noted, moreover, that the trial court erroneously found a "direct contempt" of the court where the court itself had issued an order directing the witness to produce the documents.[26] The command, we said, was "to bring materials to the grand jury, not to the court," and thus the court's general contempt power under Article 1911a was not implicated.
However, the holdings in these cases have been undercut by our subsequent holding in Ex Parte Edone."[27] In that case, we overruled an earlier decision holding that violation of a court order to answer grand jury questions was a contempt of the grand jury and not of the court itself.[28] It logically follows that violating a court order to produce documents in a grand jury would likewise constitute contempt of court, and not merely of the grand jury, contrary to Marek's holding. In supporting its position, Edone characterized the grand jury as "an appendage of the court, powerless to perform its investigative function without the court's aid, because powerless itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so."[29] With this language, Edone characterized the subpoena power as a power of the court and not merely a ministerial function performed by the clerk.
Edone also indicated that a district court's punishment options for contempt were limited because the court's power to supervise the grand jury was specifically conferred by statute, and Article 20.15 was the method the Legislature conferred upon the trial court in exercising its supervision.[30] This conclusion seems flawed because, under the Texas constitution, grand juries are a part of the judicial system,[31] and therefore the courts have inherent power to supervise them.
*402 Regardless of the status of grand juries, trial courts must have the inherent power to subpoena witnesses for trial, as the power to subpoena witnesses is necessary for the trial court to exercise its constitutional duties. And that subpoena power, to be effective, must not require a subsequent court order for its enforcement. As the Supreme Court so eloquently stated:
A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity.[32]
And the Supreme Court has also recognized the contempt power to be so important an aspect of the judicial system that it requires federal courts to abstain from decisions that would interfere with state contempt proceedings.[33]
Given a trial court's inherent powers to subpoena witnesses and punish contempt of its own proceedings, and the importance of those powers to the functioning of the judiciary, we should follow the Supreme Court's admonition to not lightly hold that the Legislature has abrogated such power through its statutory enactments. Here, the Legislature has simply assessed a penalty for failing to comply with a subpoena of any kind. Chapter 24 authorizes subpoenas in numerous situations, which are not necessarily confined to court proceedings.[34] The penalty provided by the Legislature for failing to obey subpoenas generally should not be held to displace the trial court's inherent power to punish by contempt the failure to obey a court subpoena.
One final reason for declining to interpret the Legislative scheme as displacing the trial court's inherent power is the possibility that such a scheme would violate the Separation of Powers provision of the Texas Constitution. This Court has a duty to narrowly construe statutes to avoid a constitutional violation.[35] The Separation of Powers issue is addressed in detail in part II of this opinion.
II.
The venerable principle of separate and distinct powers has a distinguished history in American public law.[36] Long have we recognized that, as Madison observed, the "accumulation of all powers, legislative, executive, *403 and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."[37] To prohibit the ambitious encroachments of one branch upon another, the Texas Constitution, like the federal Constitution, divides power into three separate branches. Unlike the federal Constitution, Article II of the Texas Constitution further provides that each of the departments
shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.[38]
For our purposes here, it is also notable that the state Constitution says specifically that, "[t]he Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled, `The Legislature of the State of Texas'"[39] and that, "[t]he judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law."[40] In elaborating upon the constitutional text, this Court has stated that Article II may be violated in either of two ways: "it is violated when one branch of government assumes, or is delegated, to whatever degree, a power that is more `properly attached' to another branch," or it "is also violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers."[41]
As I discussed earlier, our courts have long recognized that the powers to issue subpoenas and punish contempt are inherent in the judicial department. Furthermore, we have described contemptuous acts themselves broadly, explaining that contempt is conduct that obstructs or tends to obstruct the proper administration of justice.[42] The act itself must amount to contemptuous conduct, regardless of the purpose or intent of the actor.[43]
"The judicial power" does not (and cannot, in light of Article II) mean some of *404 the judicial power. Rather, it means all of the judicial power, unless the Constitution itself gives a specific judicial power to another branch of the government.[44] Because the contempt power inheres in the judicial department, the Legislature may not assume that power by statute unless the Constitution expressly permits it to do so. The Constitution, however, does no such thing. True, the Constitution enables either chamber of the Legislature to imprison those who commit disrespectful or disorderly conduct in the presence of the chamber, or who obstruct legislative proceedings.[45] But we have held that, while the Legislature may punish such contemptuous or disruptive conduct, this power is limited to those circumstances in light of Article II and the judicial nature of the contempt power.[46] The Legislature also has general authority to define and punish crimes and other acts contrary to good civil order where a wrong requires a legal remedy.[47] As the cases demonstrate, however, contempt is a singular offense in the law (note that it does not appear in the Penal Code, where one would expect to find a legislatively defined criminal offense), and its execution and punishment are unique to the judiciary.[48] The Constitution also permits the Legislature to prescribe the jurisdiction of the courts it creates[49] and to delegate rule-making authority to this Court or the Supreme Court, subject to limitations for which the Legislature may provide by law.[50] That authority, however, cannot displace the substantive powers of the judiciary. As we have said, giving the Legislature authority to infringe upon the substantive power of the judicial department by establishing procedural guidelines for judicial administration would "render[ ] the separation of powers doctrine meaningless."[51]
If Article 24.05 does in fact limit a trial court's ability to punish disobedience to subpoenas under its inherent authority to punish contempt, then the statute is constitutionally infirm because it fails both elements of our separation of powers jurisprudence: it amounts to the legislative exercise of a power reserved exclusively to the courts (the power to identify contemptuous conduct and to punish it in the court's discretion consistent with the Constitution, common sense and good judgment), and it unduly interferes with the court's ability to effectuate the judicial power, of which contempt is a necessary *405 element. In some situations, the failure to comply with a subpoena may be so egregious, or so infect the truth-seeking process, that confinement is both appropriate and necessary. So interpreted, Article 24.05 strips the court of the authority to determine the appropriate and necessary punishment for failure to comply with a subpoena, leaving that determination in the hands of the Texas Senate and House of Representatives, though the Constitution commits no such power to those chambers.
Were Article 24.05 merely a codification of the notionwhich seems fairly implicit in our casesthat failure to comply with a subpoena is a contemptuous act[52] punishable by the court's inherent powers of contempt, it would pose no constitutional difficulty. Indeed, failure to comply with a subpoena is contemptuous precisely because it "obstructs the proper administration of justice"[53] by compromising substantially the truth-seeking process. But affirmatively imposing a statutory limitation on the court's inherent power to punish a contemptuous act by providing only for a fine deprives the court of exclusive control over an inherent judicial function.
This is not to say that the judiciary possesses, or should possess, unlimited authority to exercise its contempt powers. The federal and state Constitutions provide ample security for the contemnor, who has the protection of the Due Process and Due Course of Law clauses,[54] the Equal Protection Clause and the Texas Equal Rights Amendment,[55] the double jeopardy clauses,[56] and the constitutional prohibitions on excessive fines and cruel and unusual punishments.[57] These are the protections that the common law and our constitutional law have traditionally afforded the people against irrational or unwarranted state conduct in the administration of justice. The Legislature, however, may not supplement those constitutional limitations on judicial authority with statutory ones, as well, absent a specific constitutional grant of power to do so.
Madison shrewdly observed that, although "in republican government, the legislative authority necessarily predominates,"[58] it remains necessary to provide mechanisms for checking legislative power and thus preventing its encroachment upon other, coequal departments in order to protect against "the legislative department everywhere extending the sphere of its activity and drawing all power into its impetuous vortex."[59] Article II of the Texas Constitution provides this Madisonian antidote by explicitly prohibiting the Legislature from intruding upon judicial ground, absent the support of constitutional text.[60] I respectfully dissent.
NOTES
[1] Art. 24.05 provides that "[i]f a witness refuses to obey a subpoena, he may be fined at the discretion of the court, as follows: In a felony case, not exceeding five hundred dollars; in a misdemeanor case, not exceeding one hundred dollars."
[2] Rule 176.8(a) provides that "[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both."
[3] The distinction between civil and criminal contempt has been explained as follows:
The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil contemnor carries the keys of (his) prison in (his) own pocket. In other words, it is civil contempt when one may procure his release by compliance with the provisions of the order of the court.
Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court.
Ex parte Werblud, 536 S.W.2d 542, 545-6 (Tex.1976) (citations and internal quotation marks omitted).
[1] "(a) Except as provided by Subsections (g) and (h), a court may punish for contempt.
"(b) The punishment for contempt of a court other than a justice court or municipal court is a fine of not more than $500 or confinement in the county jail for not more than six months, or both such a fine and confinement in jail.
"(c) The punishment for contempt of a justice court or municipal court is a fine of not more than $100 or confinement in the county or city jail for not more than three days, or both such a fine and confinement in jail.
"(d) An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.
"(e) This section does not affect a court's power to confine a contemner to compel him to obey a court order.
"(f) Article 42.033, Code of Criminal Procedure, and Chapter 157, Family Code, apply when a person is punished by confinement for contempt of court for disobedience of a court order to make periodic payments for the support of a child.
"(g) A court may not punish by contempt an employee or an agency or institution of this state for failure to initiate any program or to perform a statutory duty related to that program:
"(1) if the legislature has not specifically and adequately funded the program; or
"(2) until a reasonable time has passed to allow implementation of a program specifically and adequately funded by the legislature.
"(h) [This subsection, the subject of which was justice and municipal courts' dealing with the acts of juveniles, was repealed by the act of June 16, 2001, 77th Leg., R.S., ch. 1297, § 71(4), 2001 Tex. Gen. Laws 2978, 3009.]" Tex. Gov't Code § 21.002.
[2] Act of June 9,1971, 62nd Leg., R.S., ch. 831, §§ 1-3, 1971 Tex. Gen. Laws 2535, 2535, as amended by Act of June 16, 1973, 63rd Leg., R.S., ch. 657, § 1, 1973 Tex. Gen. Laws 1784, and Act of June 16, 1977, 65th Leg., R.S., ch. 827, § 2, 1977 Tex. Gen. Laws 2076, 2076, and Act of June 16, 1981, 67th Leg., R.S., ch. 674, § 4, 1981 Tex. Gen. Laws 2563, 2537.
[3] Wilkinson, 641 S.W.2d at 932.
[4] See ante at.
[1] A trial court's inherent contempt power usually arises in "direct contempt" situations where the contemptuous acts occur in the court's presence. See Cleveland v. State, 508 S.W.2d 829, 831 (Tex.Cr.App.1974) (court may use its inherent contempt power to enforce testimonial duty of a recalcitrant witness). A trial court's statutory Section 21.002 contempt power (a trial court probably has the same power as part of its inherent contempt power) usually arises in "constructive contempt" situations where the contemptuous acts usually involve a willful violation of a trial court's reasonably specific order. See Ex parte Rhodes, 974 S.W.2d 735, 740 (Tex.Cr. App.1998).
[2] That did not happen here.
[3] This would not present a double jeopardy problem either. See Rhodes, 974 S.W.2d at 739-42 (double jeopardy principles barred criminal prosecution of father for interference with child custody due to his previous criminal contempt in a civil proceeding based on same conduct).
[4] This Court's decision in Wilkinson was based on the record showing that the court held applicants in contempt for their refusal to testify before the grand jury and not based on their refusal to comply with the court's order to testify before the grand jury. See Wilkinson, 641 S.W.2d at 933. Under these circumstances, the court could only assess a penalty under a statute like the one here. See id.
[1] TEX. CONST., Art. 5, § 1.
[2] Blair v. United States, 250 U.S. 273, 280, 39 S.Ct. 468, 63 L.Ed. 979 (1919)("At the foundation of our federal government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States"); Juidice v. Vail, 430 U.S. 327, 335, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977)("The contempt power lies at the core of the administration of a State's judicial system"); see also Freytag v. C.I.R., 501 U.S. 868, 891, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)(federal judicial power includes the authority to punish contempts with fine or imprisonment and to subpoena witnesses).
[3] Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).
[4] Id. at 44-45, 111 S.Ct. 2123.
[5] Id. at 40, 111 S.Ct. 2123.
[6] Id. at 46, 111 S.Ct. 2123.
[7] Id. at47, 111 S.Ct. 2123.
[8] Id. at 50, 111 S.Ct. 2123 (emphasis added).
[9] Matchett v. State, 941 S.W.2d 922, 932-933 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1107, 117 S.Ct. 2487, 138 L.Ed.2d 994 (1997).
[10] Id. at 932 n. 11.
[11] Id.
[12] Marx v. State, 987 S.W.2d 577, 582-583 (Tex.Crim.App.1999), cert, denied, 528 U.S. 1034, 120 S.Ct. 574, 145 L.Ed.2d 436 (1999).
[13] Dallas v. State, 983 S.W.2d 276, 277 (Tex. Crim.App.1998).
[14] Fielder v. State, 811 S.W.2d 131, 134 (Tex. Crim.App.1991).
[15] See Marx, Dallas, and Fielder, respectively.
[16] See, e.g., Ex Parte Robinson, 19 Wall. 505, 86 U.S. 505, 510, 22 L.Ed. 205 (1873); Ex Parte Pryor, 800 S.W.2d 511 (Tex. 1990); Ex Parte Browne, 543 S.W.2d 82 (Tex.1976); Ex Parte Davis, 171 Tex.Crim. 629, 353 S.W.2d 29 (App.1961); Ex Parte West, 60 Tex.Crim. 485, 132 S.W. 339 (App.1910).
[17] Ex Parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim.App.1991).
[18] In re Bell, 894 S.W.2d 119, 127 (Tex. Spec.Ct.Rev.1995).
[19] See Tex. Gov't Code § 21.002.
[20] Tex.Code Crim. Proc. Art. 24.05.
[21] 641 S.W.2d 927, 932-33 (Tex.Crim.App. 1982).
[22] Id. We said in Wilkinson that the two competing statutes were not in pari materia because they were "contained in different legislative acts, provide for different penalties, and [were] designed to serve different purposes and objectives." Id. at 932. For an explanation of the in pari materia rule, see Alejos v. State, 555 S.W.2d 444, 449-50 (Tex.Crim.App. 1977)(explaining that "statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things are considered as being in pari materia though they contain no reference to one another"). See also Cheney v. State, 755 S.W.2d 123, 126-27 (Tex.Crim.App.1987) (holding that the "felony theft" statute and the "false statement to obtain property or credit" statute were not in pari materia where the "latter statute was more specific and thus controlling, and where the statutes dealt with different subject matter."). Under Cheney's analysis, if Article 24.05 and § 21.002 are in pari materia, then Article 24.05 prevails as the more specific statute. Id. at 126. Even if the two are not in pari materia, then Article 24.05 still prevails because its plain wording applies more directly to the instant matter, id. at 127, and, under Wilkinson, it prevails as a special statute. Wilkinson, 641 S.W.2d at 932.
[23] 653 S.W.2d 35 (Tex.Crim.App.1983).
[24] Id. at 37.
[25] Id.
[26] Id. at37n. 5.
[27] 740 S.W.2d 446 (Tex.Crim.App.1987).
[28] 740 S.W.2d at 449 (overruling Ex Parte Port, 674 S.W.2d 772 (Tex.Crim.App.1984)).
[29] Id. at 448 (emphasis added).
[30] Id. at 448.
[31] TEX. CONST., Art. V, §§ 13 & 17.
[32] United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950).
[33] Juidice, 430 U.S. at 334-337, 97 S.Ct. 1211 (applying Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) abstention doctrine to state contempt proceedings).
[34] The statute authorizes the issuance of a subpoena for proceedings before a court in a criminal action, before an examining court, at a coroner's inquest, before a grand jury, at a habeas corpus hearing, and in any other proceeding in which the person's testimony might be required in accordance with the Code of Criminal Procedure. TEX. CODE CRIM. PROC., Art. 24.01(a).
[35] Long v. State, 931 S.W.2d 285, 295 (Tex. Crim.App.1996).
[36] See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (explaining that "it is emphatically the province of the judicial department to say what the law is" but cautioning courts to avoid involvement in matters properly left to the political branches); The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter, ed., 1961) (explaining the division of powers in the federal Constitution, noting that the distinct departments will have a constitutional control over one another); Paul Verkuil, The American Constitutional Tradition of Shared and Separated Powers: Separation of Powers, the Rule of Law, and the Idea of Independence, 30 Wm. & Mary L.Rev. 301 (1989) (providing an historical account of the idea of the separation of powers).
[37] See The Federalist No. 47, at 301 (James Madison).
[38] Tex. Const. Art. II, § 1 (emphasis added).
[39] Id. Art. III, § 1.
[40] Id. Art. V, § 1.
[41] Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Crim.App.1990) (emphasis added). See also State v. Williams, 938 S.W.2d 456, 458 (Tex.Crim.App.1997) (recognizing same); State v. Condran, 977 S.W.2d 144, 145 (Tex.Crim.App.1998)(Keller, J., dissenting) (recognizing same). I agree with the first prong of our separation of powers jurisprudence, that one branch may not assume or be delegated to any degree a power that belongs to another branch. It is not, however, clear to me that the second, functionalist prong of our existing jurisprudencethe "undue interference" prongis entirely accurate, although, consistent with the principle of stare decisis, I have applied it in past opinions where the difference in the two prongs was neither raised nor of significance to the analysis. Perhaps in a future case we as a Court will have the opportunity to consider whether Article II of the Texas Constitution prohibits any interference with another branch's power, due or undue.
[42] Ex Parte Gibson, 811 S.W.2d 594, 596 (Tex.Crim.App.1991); Taylor, 807 S.W.2d at 748; Lee v. State, 799 S.W.2d 750, 752 (Tex. Crim.App.1990).
[43] Taylor, 807 S.W.2d at 748-49.
[44] The Texas Constitution, does, in fact, vest certain judicial powers in the Legislature. For example, the House and Senate may punish by imprisonment those who behave in a disrespectful or disorderly manner in the chamber's presence or who disrupt legislative proceedings. See Tex. Const. Art. III, § 15. The Senate also has the power to try impeachments. See id. Art. XV, § 2.
[45] Id. Art. III, § 15.
[46] See Ex Parte Youngblood, 94 Tex.Crim. 330, 251 S.W. 509, 511-12 (App.1923).
[47] Tex. Const. Art. III.
[48] See Taylor, 807 S.W.2d at 748 (noting that the contempt power is plenary in the judiciary).
[49] Tex. Const. Art. V, § 1.
[50] Id. Art. V, § 31(c).
[51] Meshell v. State, 739 S.W.2d 246, 255 (Tex. Crim.App.1987). Meshell and several prior cases involved controversies over the meaning of former Article V, § 25 of the Texas Constitution, which gave the Supreme Court procedural rulemaking authority "not inconsistent with the laws of the State." Id. Our courts consistently found the Legislature's use of that provision to violate the separation of powers. See, e.g., id.; Williams v. State, 707 S.W.2d 40 (Tex.Crim.App.1986); Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025 (1934). Although Article V, § 25 was repealed, Article V, § 31 contains similar language.
[52] See, e.g., Marek, 653 S.W.2d at 38 (describing failure to comply with a subpoena duces tecum as "contemptuous").
[53] See Taylor, 807 S.W.2d at 748.
[54] See U.S. Const. amend. XIV; Tex. Const. Art. I, § 19.
[55] See U.S. Const. amend. XIV; Tex. Const. Art. I, § 3a.
[56] See U.S. Const. amends. V, XIV; Tex. Const. Art. I, § 14.
[57] See U.S. Const. amend. VIII; Tex. Const. Art. I, § 13.
[58] The Federalist No. 51, at 322 (James Madison).
[59] The Federalist No. 48, at 309 (James Madison).
[60] Tex. Const. Art. II, § 1.
| {
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00126-CR
______________________________
DEIDRA M. MCGRAW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court No. 25790
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Deidra M. McGraw appeals from her conviction for possession of marihuana in the amount
of 2,000 pounds or less but more than fifty pounds, and resulting sentence of eighteen years‘
imprisonment. Her sole point of error contends that the trial court erred in denying her motion to
suppress the evidence. We affirm the trial court‘s judgment.
I. Standard of Review
We review a trial court‘s decision on a motion to suppress evidence by applying a
bifurcated standard of review. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana
2010, pet. ref‘d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref‘d).
While we defer to the trial court on its determination of historical facts and credibility, we review
de novo its application of the law and determination on questions not turning on credibility.
Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996);
Graves, 307 S.W.3d at 489.
We also afford deference to a trial court‘s ―application of law to fact questions,‖ also
known as ―mixed questions of law and fact,‖ if the resolution of those questions turns on an
evaluation of credibility and demeanor. Guzman, 985 S.W.2d at 89. Since all the evidence is
viewed in the light most favorable to the trial court‘s ruling, we are obligated to uphold the denial
of McGraw‘s motion to suppress if it was supported by the record and was correct under any
2
theory of law applicable to the case. Carmouche, 10 S.W.3d at 327–28; State v. Ballard, 987
S.W.2d 889, 891 (Tex. Crim. App. 1999).
II. Scope of Detention
―No right is held more sacred, or is more carefully guarded, by the common law‖ than
freedom from unreasonable search and seizure as guaranteed by the Fourth Amendment to the
United States Constitution. Terry v. Ohio, 392 U.S. 1, 9 (1968); State v. Williams, 275 S.W.3d
533, 536 (Tex. App.––Texarkana 2008, no pet.). ―A search which is reasonable at its inception
may violate the Fourth Amendment by virtue of its intolerable intensity and scope.‖ Williams,
275 S.W.3d at 536 (citing Terry, 392 U.S. at 18). ―Thus, it is imperative that the scope or purpose
of a search be strictly tied to, and justified by, the circumstances which rendered an invasion
permissible in the first place.‖ Id. (quoting Florida v. Royer, 460 U.S. 491, 500 (1983); Terry,
392 U.S. at 19–20, 29).
Because a routine traffic stop implicates the United States and Texas Constitutions, the
traffic stop must be reasonable. Berkemer v. McCarty, 468 U.S. 420, 436–37 (1984); Francis v.
State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); see U.S. CONST. AMEND. IV; TEX. CONST.
art. I, § 9. We employ the test developed in Terry to determine the reasonableness of an
investigative detention; thus, we inquire: ―(1) whether the officer‘s action was justified at its
inception; and, (2) whether it was reasonably related in scope to the circumstances which justified
the interference in the first place.‖ Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997).
3
―Under the first prong, ‗the police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.‘‖ Davis, 947 S.W.2d at 242 (quoting Terry, 392 U.S. at 21). The specific, articulable
facts, along with rational inferences from those facts, must allow the officer to reasonably
conclude that the person detained actually is, has been, or soon will be engaged in criminal
activity. United States v. Sokolow, 490 U.S. 1, 10 (1989).
The second prong of Terry requires the scope of the detention to be ―like any other search,
[and it] must be strictly circumscribed by the exigencies which justify its initiation.‖ Davis, 947
S.W.2d at 243 (quoting Terry, 392 U.S. at 25–26). The officer, however, must diligently pursue a
means of investigation that lasts no longer than is necessary and should be the ―least intrusive
means reasonably available.‖ Id. at 245. A law enforcement officer may rely on information,
obtained in the course of his or her contact with a citizen, in justifying further detention. Powell v.
State, 5 S.W.3d 369, 377 (Tex. App.––Texarkana 1999, pet. ref‘d).
―If an officer has a reasonable basis for suspecting that a person has committed a traffic
offense, the officer may legally initiate a traffic stop.‖ Graves, 307 S.W.3d at 489; Zervos v.
State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref‘d); see TEX. CODE CRIM. PROC.
ANN. art. 14.01(b) (Vernon 2005). McGraw was stopped for following too close to the vehicle in
front of her and for speeding. McGraw does not contest the legality of the initial traffic stop.
4
Rather, McGraw‘s complaint is that the duration of the traffic stop exceeded the
permissible scope. It is the State‘s burden to demonstrate that the seizure it seeks to justify was
sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.
Williams, 275 S.W.3d at 536 (citing Royer, 460 U.S. at 500). The following findings were
entered by the trial court:
1. On January 19, 2009, Deidra McGraw was stopped by Royse City Police
Officers for traffic violations.
2. After the initial stop and being asked very particular questions, Deidra
McGraw lied about facts in her response to the police officers.
3. Deidra McGraw lied about her criminal record to police officers.
4. Based upon this deceit, Royse City Police Officers had enough reasonable
suspicion to believe that there was a fair probability of inculpatory evidence
in Deidra McGraw‘s automobile.
III. Factual Background
Officers Shaun Meek, Rushing, and Mosely 1 were patrolling along Highway I-30 at
nighttime in three separate patrol units. Meek testified that two vehicles with ―out of state license
plate[s]‖ ―were following extremely close to each other‖ and ―speeding, 70 in a 65‖ when they
passed in front of the officers. The officers ―proceeded to follow up behind the vehicles,‖ which
continued to speed. Rushing pulled over the rental car driven by McGraw, and Mosely pulled
over the other vehicle.
From Meek‘s recollection, and the video recording of the stop, Rushing indicated McGraw
―had shaky hands on the steering wheel,‖ ―refused to make eye contact,‖ and ―had a nervous
1
Rushing‘s and Mosely‘s first names are not mentioned in the record.
5
appearance about her, by how fast and hard she was chewing her gum.‖ Rushing explained the
reason for the traffic stop and asked McGraw if she was following the vehicle in front of her.
Although McGraw agreed that she was driving too closely, she denied following the other vehicle,
stated she did not know the driver of the other vehicle, and claimed she was travelling alone.
Rushing asked for McGraw‘s driver‘s license and learned that she was from Austin.
McGraw stated that she was travelling to Tennessee to locate her father, although a Mapquest
printout observed by Rushing through the window depicted directions to Indiana, and the car in
front of McGraw had Indiana license plates. After telling McGraw that she would only be
receiving warnings for the traffic offense, Rushing went back to the patrol car to run her driver‘s
license number. In addition to the indicators of nervousness, Rushing was concerned that
McGraw seemed ―way too friendly.‖
Rushing was communicating with Mosely while running McGraw‘s license. Mosely
advised Rushing that the vehicle in front of McGraw was driven by Cornealius Neal, who was also
acting nervously. Although McGraw and Neal were driving out-of-state vehicles, they both
possessed Texas driver‘s licenses. Neal was also from Austin and contradicted McGraw‘s story
by claiming that he knew her. Rushing wrote the warnings for the traffic offenses, but did not
deliver them. McGraw‘s driver‘s license check came back ―unclear and that she had been
arrested several times for large amounts of illegal narcotics.‖ Because Rushing believed that he
caught McGraw in a lie, Rushing asked McGraw to step outside of her vehicle so that he could
6
question her further about her relationship with Neal. Realizing that Neal claimed to know her,
McGraw changed her story and admitted that she knew him. However, when asked about her
criminal record, McGraw lied by stating she had only been arrested for theft by check.
McGraw denied consent for Rushing to search the vehicle. Rushing then called for a
Greenville canine unit. While waiting for the unit, McGraw stated that Neal was going to
Indiana, but that she was stopping in Tennessee. She claimed they had not been anywhere else
together, but Neal had confessed to travelling with McGraw to Abilene. The canine unit arrived,
alerted to McGraw‘s trunk, and officers located approximately eighty-one pounds of marihuana
inside several suitcases. The entire stop lasted approximately thirty minutes.
IV. Further Detention Was Warranted
The scope of an officer‘s inquiry is limited to investigation of the traffic violation and a few
routine inquiries. Williams, 275 S.W.3d at 536. McGraw argues that the traffic stop concluded
when she was told by Rushing that she would only receive warnings for the traffic offense.
However, because Rushing had not delivered the warnings and had not received the report on
McGraw‘s driver‘s license, the traffic stop had not concluded. Courts recognize that during a
traffic stop, the officer has a right to check for outstanding warrants and to examine the detainee‘s
driver‘s license, insurance, and identification. Id. (citing Cisneros v. State, 165 S.W.3d 853, 859
(Tex. App.––Texarkana 2005, no pet.)); Powell, 5 S.W.3d at 377. It is only after this computer
check is completed and the officer knows that this driver has a currently valid driver‘s license, no
7
outstanding warrants, and the car is not stolen, that the traffic-stop investigation is fully resolved.
Kothe v. State, 152 S.W.3d 54, 63–64 (Tex. Crim. App. 2004).
Once a police officer makes a lawful traffic stop, he or she may also investigate any other
offense the officer reasonably suspects has been committed. Bachick v. State, 30 S.W.3d 549,
551–52 (Tex. App.—Fort Worth 2000, pet. ref‘d). Further detention for investigation beyond the
traffic violation requires the officer to have a reasonable suspicion of further criminal activity. To
be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate
the purpose of the stop. Davis, 947 S.W.2d at 245. The propriety of the length of the detention is
judged by assessing whether the police diligently pursued a means of investigation that was likely
to quickly dispel or confirm their suspicions. United States v. Sharpe, 470 U.S. 675, 686 (1985).
Any continued detention must be based on articulable facts which, when taken together with
rational inferences from those facts, would warrant a person of reasonable caution in the belief that
a continued detention was justified, i.e., the detainee was or would soon be engaged in criminal
activity. See Davis, 947 S.W.2d at 244–45.
We find that while the traffic stop was ongoing, and through routine inquiries, Rushing
obtained information which gave him reasonable suspicion to suspect McGraw was engaged in
criminal activity. Upon initial contact, McGraw nervously stated she was travelling alone and
denied any knowledge of the driver of the vehicle she was following, but Rushing determined from
the other officer that the other driver acknowledged their acquaintanceship. McGraw told the
8
officer she was travelling to Tennessee to see her father, but a Mapquest printout indicated
directions to Indiana. The license check was returned as ―unclear,‖ showing several arrests for
illegal substances, even though McGraw only admitted to one arrest for theft. Finally, McGraw
changed her story that she did not know the other driver and admitted that she knew Neal.
Rushing testified that training and experience showed that two vehicles may travel together during
the course of drug trafficking to allow one of the vehicles to act as a decoy; many times the officer
can only stop one vehicle. From Rushing‘s experience, the fact that both drivers knew each other,
but McGraw initially denied it, had changing and inconsistent stories, the vehicles were travelling
together at nighttime in rental cars with out-of-state license plates, together with McGraw‘s
suspicious driver‘s license report, led to a reasonable belief that McGraw and Neal were
transporting drugs. Finally, the delay for the further investigation by a canine unit was of
relatively short duration, as the entire stop lasted less than thirty minutes.
Giving the trial court appropriate deference in its finding that Rushing ―had enough
reasonable suspicion to believe that there was a fair probability of inculpatory evidence in Deidra
McGraw‘s automobile‖ based upon her ―deceit,‖ we conclude there was no error in the denial of
McGraw‘s motion to suppress.
9
V. Conclusion
We affirm the trial court‘s judgment.
Jack Carter
Justice
Date Submitted: April 21, 2011
Date Decided: April 27, 2011
Do Not Publish
10
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67 F.3d 779
Bankr. L. Rep. P 76,674, 95 Cal. Daily Op. Serv. 7528,95 Daily Journal D.A.R. 12,915Thomas TRULIS; Eamon J. McClory; Erv Grosch; ThomasSwarthout; Al Simon; Tom Ewing; MichaelBarrack, Plaintiffs-Appellants,v.J. Porter BARTON; Jon T. Brown; Phillip R. Jacoby, Jr., etal., Defendants,andMyron Sukut; Carl Berg; Clyde Berg; Berg & BergDevelopers; Baccarat Electronics, Inc.,Defendants-Appellees.Thomas TRULIS; Eamon J. McClory; Erv Grosch; ThomasSwarthout; Al Simon; Tom Ewing; MichaelBarrack, Plaintiffs-Cross-Appellees,v.J. Porter BARTON; Myron Sukut; Jon T. Brown; Phillip R.Jacoby, Jr., et al., Defendants,andCarl Berg; Clyde Berg; Berg & Berg Developers; BaccaratElectronics, Inc., Defendants-Cross-Appellants.Thomas TRULIS; Eamon J. McClory; Erv Grosch; ThomasSwarthout; Al Simon; Tom Ewing; MichaelBarrack, Plaintiffs-Cross-Appellees,Daniel J. Callahan, Cross-Appellee,v.J. Porter BARTON, Defendant,andCarl Berg; Clyde Berg; Berg & Berg Developers; BaccaratElectronics, Inc., Defendants-Cross-Appellants.
Nos. 94-55024, 94-55049, and 94-55234.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 2, 1995.Decided Sept. 27, 1995.
Jeffrey S. Benice, Anton M. Rosandic, Benice & Associates, Irvine, California, for appellants-cross-appellees.
Allan Gabriel, Dean B. Herman, Peter Schwartz, Gabriel, Herman & Peretz, Los Angeles, California, for appellees-cross-appellants Carl Berg, Clyde Berg, Berg & Berg Developers and Baccarat Electronics, Inc.
Kathlene W. Lowe, J. Russell Taylor, Jr., Brobeck, Phleger & Harrison, Newport Beach, California, specially appearing for attorney Brobeck, Phleger & Harrison.
1
Jeffrey S. Benice, Benice & Associates, Irvine, California, specially appearing for Jeffrey S. Benice.
2
Daniel J. Callahan, Callahan & Gauntlett, Irvine, California, specially appearing for Daniel J. Callahan.
3
George Dale, Carrick & Dale, Los Angeles, California, for Myron Sukut.
4
Appeals from the United States District Court for the Central District of California.
5
Before FLETCHER, BRUNETTI, and T.G. NELSON, Circuit Judges.
BRUNETTI, Circuit Judge:
6
In the primary appeal, we are called on to put an end to a lawsuit that a bankruptcy court in a collateral proceeding has already held is released and barred. In the cross-appeal, we consider how much attorney misconduct a court should tolerate before imposing sanctions.
I.
7
This case began with the bankruptcy of the Marbella Golf and Country Club (the Country Club), which had operated at a loss since its opening. To fund its operational deficit, the Country Club filed a voluntary bankruptcy petition to restructure the rights of its members. There are several classes of Country Club members: Series A Charter Gold Members, Series B Charter Gold Members, Series C Gold Members, Charter Silver Members, and House Members.
8
Shortly after the Country Club filed for bankruptcy, Jeffrey S. Benice, then an attorney with Brobeck, Phleger and Harrison, filed the present action on behalf of certain Country Club members. Specifically, the complaint named as plaintiffs Thomas Trulis, Eamon J. McClory, Erv Grosch, Thomas Swarthout, Al Simon, Tom Ewing, and Michael Barrack. Daniel Callahan was originally named as a plaintiff in the action, but his name was removed as a plaintiff when the First Amended Complaint was filed. At that time he became co-counsel with Benice.
9
The complaint alleged that the Country Club founders, directors, and attorneys (collectively the "Berg Defendants") violated various securities regulations and the Racketeer Influenced and Corrupt Organizations Act, and committed fraud, negligent misrepresentation, breach of contract, and other wrongdoing in connection with the Country Club's inception and operation. The complaint alleged damages estimated at over $10,000,000.00.
10
Meanwhile, back in the bankruptcy proceeding, a seven-member committee was formed to represent the interests of the Series B members (Committee). The Committee chose the law firm of Paul, Hastings, Janofsky & Walker to represent it. Another committee was formed to represent the interests of the Series A and Silver Members, which chose the law firm of Allen, Matkins, Leck, Gamble & Mallory to represent it.
11
The Country Club proposed an Initial Plan of Reorganization and filed a Disclosure Statement in the bankruptcy court. The Committee representing the Series B members vigorously opposed this Initial Plan by filing in the bankruptcy court an Objection to the Country Club's Disclosure Statement. The Objection outlined the claims Country Club Members had against the Berg Defendants. One of their more serious grounds for opposition was the plan provisions that released any claims Series B Members might have against the directors and management of the Country Club. So there could be no mistake about what claims they sought to protect from the release provision of the Initial Plan, the Committee attached to its Objection a copy of the First Amended Complaint in this litigation, which was authored by Benice.
12
The Initial Plan was rejected. Between February and June of 1993, the respective counsel for the Country Club and the members' committees entered negotiations seeking to develop an acceptable reorganization plan. Meanwhile, Benice and Callahan convened a meeting of the Series B members. They advertised the meeting as a question and answer meeting for Series B members regarding the bankruptcy plan. According to one of the attendees, however, the real purposes of the meeting were to "drum up support for [this] lawsuit[,]" to "convince all 'B' members to vote no on the plan[,]" and to launch "a character assassination of Mr. Berg." To entice those in attendance to join the suit, Callahan suggested that "the lawsuit could be worth up to 20 or even as high as 50 million dollars." He also promised that the case "would not be a drawn out process. 'We can be ready to go to trial in 30 days.' "
13
The same attendee reported that at the meeting, "Mr. Benice stated that although he was not a member of the club he felt it would be ridiculous for any 'B' member to release and indemnify (give up the right to sue) [sic] the developer." Despite his own warning that the Plan's release provisions would bar them from pursuing this lawsuit, Benice then promised the attendees that even if the Plan passed "his law firm [Brobeck] would take the case on a contingency basis[.]"
14
Despite Benice and Callahan's efforts, and after another version (the Amended Plan) failed, the various interests in the bankruptcy eventually agreed on the Joint Plan of Reorganization. The Joint Plan proposed creating a new club. Like the proposals that preceded it, the Joint Plan gave members the choice of voting in favor of the Plan and obtaining membership in the new club, or voting against the Plan and relinquishing their membership in return for a promissory note. Members were also offered as a third option, freezing their memberships without paying dues and selling their memberships within seven years. Most importantly, the Joint Plan required, like the versions that preceded it, that those who elected to become a member of the new club release any claims they had against the Berg Defendants.
15
Six-hundred and eighty-six of the 702 Country Club members, an overwhelming majority, voted to adopt the Joint Plan, including the release provision. Each of the named plaintiffs in this case voted in favor of the Joint Plan.
16
At about the same time that members were reviewing the Joint Plan and casting their votes in favor of it, most of the named plaintiffs sought to be dismissed from this suit. Despite explicit orders from his clients, however, Benice never filed any releases on behalf of any of the named plaintiffs.
17
After the Country Club Members approved the Joint Plan, the bankruptcy court confirmed it in an order stating:
18
... Series B Charter Gold Members who elected to become Series B Gold New Club Members under the Plan and Services B Charter Gold Members who elected to enter into the Membership Freeze Program under the Plan are hereby deemed to release, and are permanently and forever enjoined and barred from commencing or continuing any action against, the Developer and the Developer Affiliates with regard to any claims such Series B Charter Gold Members have against such entities, except for Homeowner Claims.
19
In re Marbella Golf and Country Club, No. SA 20014-JB, at 4-5 (Bankr.C.D.Cal.1993) (emphasis added). The bankruptcy court included a virtually identical order pertaining to Series A Members' release of claims. No party to this action appealed from the bankruptcy court's order confirming the Joint Plan.
20
After confirmation of the Joint Plan, the Berg Defendants wrote to Benice. They demanded dismissal of this suit. The Berg defendants pointed out that the plaintiffs had released their claims by voting for the Joint Plan, that most of the named plaintiffs had sought dismissals, and that the bankruptcy court order confirming the Joint Plan explicitly barred this suit. Benice refused to dismiss the action.
21
Consequently, the Berg Defendants filed a Motion for Summary Judgment. Undeterred by the release provisions of the Joint Plan and the bankruptcy court's order, Benice opposed the Berg Defendants' motion for summary judgment by arguing that under California law the release provisions in the confirmed Joint Plan were unenforceable. Benice steadfastly maintained that his clients were unaware that adoption of the Joint Plan released the Berg Defendants.
22
Contrary to Benice's claims of his clients' ignorance, however, at least one of Benice's clients understood the legal significance of the confirmation of the Joint Plan. In support of the Berg Defendants' motion for summary judgment, Trulis attested, "I was aware that as a result of the approval of the Bankruptcy Plan on July 26, 1993, I agreed to release Mr. Berg, related entities and Mr. Sukut from any further litigation relating to Marbella."
23
In opposition to the Berg Defendants' motion for summary judgment, Benice filed an unsigned document entitled "Declaration of Michael Barrack." The unsigned document declared that "No one has explained the effect of approving the Amended Plan or the release to me." The unsigned document also described that although the would-be signatory was withdrawing from the suit, his decision to withdraw was prompted by pressure from other Country Club members, not his belief the litigation was frivolous. No signed declaration on behalf of any plaintiff was entered into the record in opposition to the Berg Defendants' motion for summary judgment.
24
In their reply brief, the Berg Defendants submitted a declaration signed by Barrack, which stated:
25
I have on repeated occasions, beginning in June 1993, requested to be dropped as a plaintiff. It was my explicit understanding that this was done and I had no knowledge of the fact that I remained as a plaintiff.
26
3. On November 4, 1993, I was informed by a member of the [Country Club] Board that a declaration had been filed in my name on November 1, 1993. I categorically state that I had no knowledge whatsoever of the content and had never discussed said content with anyone.... I further state that I had never signed such a declaration nor authorized anyone to send a declaration on my behalf to the Court.
27
After the Berg Defendants filed their papers containing this signed declaration, Benice withdrew the unsigned document purporting to be Barrack's declaration.
28
In Benice's opposition to the Berg Defendants' motion for sanctions, Benice's associate, Anton Rosandic, stated in an affidavit that Barrack had promised to sign the affidavit and later refused. Additionally, declarations in opposition to the motion for sanctions stated that Rosandic had spoken with Barrack regarding the declaration Defendants submitted in support of their reply brief and Barrack had stated that the signature on the declaration attached to the Berg Defendants' reply was not his, and that he had not signed any declaration for the Berg Defendants.
29
The Berg Defendants then filed a third, handwritten declaration by Barrack. This declaration stated, "On November 8 in the presence of Mr. Sukat [sic] I signed a declaration that I prepared as exhibit A. I declare under penalty of perjury ... that the foregoing is true and correct." This declaration cross-referenced and verified the signed declaration originally submitted by the Berg Defendants.
30
The district court granted the Berg Defendants' motion for summary judgment. After granting the Berg Defendants' motion, the district court denied their request for sanctions in an oral ruling from the bench. Benice appeals the district court's grant of summary judgment,1 and the Berg Defendants cross-appeal the district court's denial of sanctions. After filing a Notice of Appeal for their cross-appeal, the Berg Defendants filed a second motion for sanctions in the district court, denial of which they also now appeal.
II.
31
We review de novo the grant of summary judgment. Red Mountain Mach. Co. v. Grace Inv. Co., 29 F.3d 1408, 1410 (9th Cir.1994).
32
The Berg Defendants moved for summary judgment based on the release provisions contained in the Joint Plan and the bankruptcy court's confirmation order. Confronted with this motion, Benice fashioned state contract law arguments that the release provisions were unconscionable, lacked consideration, and were executed under duress and in breach of fiduciary duties. The district court held that none of these arguments were sufficient to invalidate the release provisions. However, we can affirm the district court's grant of summary judgment on any basis supported by the record. See Shawmut Bank, N.A. v. Kress Assocs., 33 F.3d 1477, 1484 (9th Cir.1994). We conclude that the Berg Defendants were entitled to summary judgment because Benice failed to challenge the Joint Plan on direct appeal and res judicata principles preclude collateral attack.
33
Once a bankruptcy plan is confirmed, it is binding on all parties and all questions that could have been raised pertaining to the plan are entitled to res judicata effect. See 11 U.S.C. Sec. 1141(a). Res judicata bars a party from bringing a claim if a court of competent jurisdiction has rendered final judgment on the merits in a previous action involving the same parties and claims. In re Intl Nutronics, Inc., 28 F.3d 965, 969 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 577, 130 L.Ed.2d 493 (1994). Since the plaintiffs never appealed the bankruptcy court's confirmation order, the order is a final judgment and plaintiffs cannot challenge the bankruptcy court's jurisdiction over the subject matter. See Stoll v. Gottlieb, 305 U.S. 165, 171-72, 59 S.Ct. 134, 137, 83 L.Ed. 104 (1938); Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1050 (5th Cir.1987). In other words,
34
[C]reditors who do not wish to release third party debtors pursuant to the principal debtor's plan of reorganization should object to confirmation of the plan on the ground that such a plan provision is violative of section 524 and not within the power, even jurisdiction, of the bankruptcy court.... The point is that only a direct attack is available and collateral attack is unavailable.
35
5 Collier on Bankruptcy p 1141.01 (Lawrence P. King, ed., 15th Ed. 1995) (emphasis added). The release provisions and the bankruptcy court order expressly apply to the same parties and claims as the present suit. The bankruptcy court order confirming the Joint Plan clearly stated that members of each class who elected to become members of the new club, which each plaintiff in this case did, release all claims against the Berg Defendants. Since the bankruptcy order confirming the Joint Plan applied to the same claims and parties involved in this litigation, this suit is barred by res judicata and summary judgment was appropriate.
III.
36
We now turn to the issues of attorney misconduct and the district court's failure to impose sanctions. The Berg Defendants brought two motions for sanctions, the first based on violations of 28 U.S.C. Sec. 1927, and the second based on Fed.R.Civ.P. (Rule) 11 and the inherent powers of the court. We address these motions in turn.
A.
37
Section 1927 provides that "[a]ny attorney or other person admitted to conduct cases in any court of the United States ... who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs." 28 U.S.C. Sec. 1927. We review the district court's denial of Sec. 1927 sanctions for abuse of discretion. Air Separation v. Lloyd's of London, 45 F.3d 288, 291 (9th Cir.1995).
38
When ruling on the Berg Defendant's motion, the district court did not address or inquire into any of the abuses pointed out by the Berg Defendants. Instead, the district court simply stated, "They took a position; you took a position. I don't think its an unreasonable position that they took. I think the evidence, you know supports your side in this particular case, and I'm not going to award sanctions." The only other comment by the district court was "I don't believe this is a case for sanctions and I will not award sanctions in this matter." This finding, and the district court's failure to address the alleged misconduct, was an abuse of discretion.
1.
39
We first address the district court's failure to award sanctions even though Benice vexatiously continued this suit after the order confirming the Joint Plan explicitly barred it. As we explained in Section II., the law governing the preclusive effect of confirmed bankruptcy plans is clear and unequivocally bars this suit. We are unpersuaded that Benice's arguments before the district court dignified this case as anything more than vexatious continuation of a case that had been clearly precluded. The only evidence in the record is that Benice and his purported clients actively participated in the bankruptcy proceedings through effective legal counsel, and that they were well aware of the release provisions in the Joint Plan. We find that under these circumstances maintenance of this suit after the confirmation of the Joint Plan was reckless as a matter of law and vexatiously multiplied the proceedings in violation of Sec. 1927. Cf. In re Peoro, 793 F.2d 1048, 1051 (9th Cir.1986) (affirming award of sanctions under Sec. 1927 against party who attempted to relitigate the validity of his lien, which a bankruptcy court had previously held was void). The district court abused its discretion by denying the Berg Defendants' motion for sanctions with regard to this issue.
2.
40
We now turn to the various so-called Barrack declarations. It is clear that someone--Benice and his associates, the Berg Defendants, or Barrack himself--has made misrepresentations. Either Benice and Rosandic misrepresented that Barrack authorized the unsigned declaration, the Berg Defendants misrepresented that Barrack signed the declaration proffered by them, or Barrack made misrepresentations in the declarations he signed. They simply cannot all be telling the truth.
41
This is not a case in which parties have taken opposing positions regarding the interpretation of ambiguous facts. Nor is it an example of an advocate "coloring" facts to present his or her case in the best possible light. These violations did not arise from a sole practitioner's inexperience, but are the product of lawyers practicing at large, well-equipped law firms. Cf. William W Schwarzer, Sanctions Under the New Federal Rule 11--A Closer Look, 104 F.R.D. 181, 183 (1985). At least one person necessarily made deliberate misrepresentations, signed and in writing, to the district court.
42
The problem is that it is unclear exactly who is guilty of this misconduct. However, this uncertainty did not relieve the district court of its obligation to assess the validity of the Berg Defendants' claim for sanctions under Sec. 1927. Cf. Frantz v. U.S. Powerlifting Federation, 836 F.2d 1063, 1066 (7th Cir.1987) (when assessing a motion for sanctions "[t]he absence of ineluctable answers does not imply the privilege to indulge in an unexamined gestalt.").
43
The district court abused its discretion by failing to address this matter in its consideration of sanctions, and we therefore remand for further findings. If Benice and his associates were responsible for the falsehoods involved in the Barrack declarations, then the district court should determine whether to grant the Berg Defendants' motion and award appropriate sanctions. Conversely, if the district court finds that the misrepresentations are attributable to either the Berg Defendants or Barrack himself, the district court can award such sanctions as it deems appropriate. See Mark Indus., Ltd. v. Sea Captain's Choice, 50 F.3d 730, 732-33 (9th Cir.1995).
3.
44
We now consider the district court's failure to address in its denial of sanctions the various named plaintiffs' requests to be dismissed from the suit and Benice's refusal to do so. The Berg Defendants presented uncontroverted evidence that at least five out of seven of the named plaintiffs demanded that they be dismissed from the suit.
45
Trulis attested that in June of 1993 he had "talked to Mr. Jeffrey Benice and Mr. Daniel Callahan requesting dismissal.... Mr. Callahan had assured [him that he] was no longer a plaintiff in the case." Trulis' affidavit also stated that he had "received a letter confirming that [he] was no longer a plaintiff[,]" and that "Mr. Benice was not authorized to continue the litigation on [his] behalf ... after June, 1993."
46
Similarly, Ewing wrote to Benice formally requesting that Benice dismiss him as a plaintiff on June 7, 1993. To be certain that Benice respected his command, Ewing requested that Benice "indicate receipt of this letter [instructing Benice to remove him as a plaintiff] and compliance with these instructions by signing where indicated below and returning a copy to me for my file." Evidently unable to obtain a response from Benice, Ewing resent the same letter to Benice, this time inscribed with a hand-written note emphasizing "I WANT OUT OF THE LAWSUIT AS A PLAINTIFF. PLEASE SIGN AND RETURN A COPY ACKNOWLEDGING MY INSTRUCTIONS." Benice finally responded to Ewing, assuring that he would "file a Request for Dismissal without prejudice of you as a party plaintiff in the class action on Monday June 14, 1993."
47
On March 21, 1993, Grosch requested that Benice "immediately take whatever steps are necessary to remove [him] as a plaintiff from this suit." On May 17, 1993, Callahan wrote to Benice informing him of Swarthout's insistence that he be removed as a plaintiff. There is no evidence that McClory instructed Benice to dismiss him, but Benice represented to the Berg Defendants that he was preparing a notice of dismissal on behalf of McClory, along with those for Grosch and Swarthout. The only named plaintiff who, according to the record, never requested dismissal, or on whose behalf Benice never purported to prepare a dismissal, was Simon.
48
Nevertheless, well after their requests to be dismissed Benice continued to file documents in the district court bearing the names of these plaintiffs and the Notice of Appeal Benice filed in this Court states that this appeal is taken on behalf of Trulis, McClory, Grosch, Swarthout, Simon, Ewing, and Barrack. Benice has never amended his Notice of Appeal nor indicated to this court that he is no longer authorized to represent those parties named in his Notice of Appeal. No dismissals appear in the record. Notably, however, the opening brief on appeal designates only a single appellant, Simon.
49
It is axiomatic that an attorney cannot continue to represent a client in a lawsuit in contravention of that client's explicit instruction to the contrary. See Model R.Prof.Cond. 1.2 ("A lawyer shall abide by a client's decisions concerning the objectives of representation[.]"); Comment to Model R.Prof.Cond. 1.2 ("The client has ultimate authority to determine the purposes to be served by legal representation[.]"). The uncontroverted evidence establishes that Benice intentionally disregarded his clients' explicit instructions regarding dismissal and filed documents, including the notice for this appeal, which he was not authorized to file on their behalf.
50
In an effort to justify his decision to disregard his clients' instructions and his representations to the Berg Defendants, Benice submitted a declaration, stating:
51
The reason I have not yet filed a motion to dismiss those Plaintiffs from this case ... is my concern that Berg will pursue malicious prosecution or similar claims against my clients, unless I can first obtain a release from all the Berg Defendants....
52
This argument is unavailing. The only way Benice could justify his conduct is by showing that upon such advice from Benice, his clients had a change of heart or altered their instructions to him. See Foothills Dev. Co. v. Clark County Bd., 46 Wash.App. 369, 730 P.2d 1369, 1373 (1986) (attorney must follow client's specific instructions). Benice has not even suggested that such evidence exists. Therefore, Simon (and perhaps McClory) were the only named plaintiffs Benice was authorized to represent after June 1993, and consequently the only names Benice was authorized to include on his filings in the district court and this court.
53
District courts enjoy much discretion in determining whether and how much sanctions are appropriate. Frantz, 836 F.2d at 1066. However, "[d]iscretionary choices are not left to a court's inclination, but to its judgment; and its judgment is to be guided by sound legal principles." Id. (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975)) (additional internal quotation omitted). In this case, however, the district court failed to provide any explanation, sound or unsound, for its denial of sanctions.
54
"Sanctions pursuant to section 1927 must be supported by a finding of subjective bad faith." New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir.1989). "Bad faith is present when an attorney knowingly or recklessly raises a frivolous argument or argues a meritorious claim for the purpose of harassing an opponent." Id. (quoting Estate of Blas, 792 F.2d 858, 860 (9th Cir.1986)) (additional internal quotation omitted). Since there are no disputed facts regarding this issue, we find that Benice's intentional disregard of his clients' express instructions and his continued insistence that he represented persons who he was not authorized to represent was reckless as a matter of law. That reckless conduct vexatiously increased the scope of this litigation in violation of Sec. 1927. The uncontroverted facts demonstrate subjective bad faith as a matter of law. We therefore reverse the district court's denial of sanctions, and remand for findings regarding the appropriate amount of sanctions. The district court should determine on remand what additional costs the Berg Defendants incurred by defending what was ostensibly a multi-plaintiff class action2 instead of a single- or two-plaintiff lawsuit.
4.
55
The Berg Defendants also requested sanctions on the ground that Callahan made misrepresentations to the bankruptcy court when he attested in an affidavit filed in the bankruptcy court that two lawsuits, including this action, had been filed against the Berg Defendants. At the time, none of the Berg Defendants had been named in either of the lawsuits. We do not consider the merits of this claim because the district court did not have power to sanction conduct that occurred in a different court in a different case. See GRiD Systems Corp. v. John Fluke Mfg. Co., 41 F.3d 1318, 1319 (9th Cir.1994); accord In re Peoro, 793 F.2d at 1051 (affirming imposition of sanctions awarded by district courts reviewing appeals from bankruptcy proceedings).B.
56
We now turn to the Berg Defendants' appeal from denial of their second motion for sanctions, which was filed after they filed their Notice of Appeal from denial of their first motion for sanctions. The second motion sought sanctions under the district court's inherent powers and Rule 11.
57
With the exception of one allegation, we do not consider the merits of the Berg Defendants' second motion for sanctions because the district court did not have jurisdiction to consider that motion. As noted, the Berg Defendants filed their second motion after they had already filed a Notice of Appeal from denial of their first motion for sanctions. "The filing of a notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982).
58
In reviewing the Berg Defendants' second motion, the district court found that "[i]n the [second] motion, the Moving Defendants present essentially the same arguments as those already considered and rejected by this Court on November 15, 1993." Trulis, No. 92-587 DT (Tx), at 14 n. 5. The Berg Defendants' proffer of new legal bases for sanctions does not change the fact that the allegedly sanctionable conduct underlying both motions was identical. See United States v. Kersting (Two Cases), 891 F.2d 1407, 1413 (9th Cir.1989) (finding that motion for discovery brought after notice of appeal directly related to good faith, an issue on appeal, and therefore was beyond the district court's jurisdiction), cert. denied, 498 U.S. 812, 111 S.Ct. 49, 112 L.Ed.2d 25 (1990). Most of the issues raised in the Berg Defendants' second motion asked the district court to reconsider matters that were involved in the appeal and beyond the district court's jurisdiction.
59
The only issue in the Berg Defendants' second motion that was not part of the appeal from denial of their first motion was their allegation that Benice attempted to bribe Barrack into signing his declaration. Trulis, No. 92-587 DT (Tx), at 14 n. 5. Since that issue involves an allegation of new sanctionable conduct, which was not part of the Berg Defendants' cross-appeal from denial of their first motion, the district court had jurisdiction, and we review the district court's consideration of it.
60
We review the district court's failure to impose sanctions pursuant to Rule 11 and the court's inherent powers for abuse of discretion. See Mark Indus., Ltd., 50 F.3d at 732.
61
In their second motion for sanctions, the Berg Defendants alleged that Benice and his associates attempted to bribe Barrack into signing his declaration by offering him $10,000. Benice and his associates denied these allegations of attempted bribery, stating that they merely informed Barrack that he might be abandoning his claim to settlement proceeds.
62
Rule 11 sanctions are not an appropriate remedy for this alleged misconduct since they are only available with regard to papers filed with the court, not attorney misconduct. Fed.R.Civ.P. 11;3 see also United Energy Owners Comm., Inc. v. United States Energy Management Systems, Inc., 837 F.2d 356, 364-65 (9th Cir.1988).
63
The district court could have awarded sanctions based on its inherent powers. When it denied sanctions, however, the district court gave no explanation for its decision. Instead, the district court merely reiterated both parties' arguments and summarily concluded that it "remain[ed] unwilling to award sanctions in this matter." Trulis, No. 92-587 DT (Tx), at 14. Like the district court's other rulings, this explanation is insufficient. "[A]n explanation need not be complex, and a judge need not pretend that there is a single right answer that can be reached by deductive logic or defended with precision." Frantz, 836 F.2d at 1066. However, some explanation or indication of the basis for the district court's decision is necessary. We therefore remand this issue of sanctions for the district court to reconsider its denial of sanctions.4
IV.
64
Although the sanctions in this case are payable to the Berg Defendants, the real cost of Benice's misconduct, and of most attorney misconduct, is borne by the clients and the legal profession as a whole. At a time when public confidence in the legal profession has already been severely eroded, courts cannot further jeopardize that confidence by condoning such egregious and pervasive attorney misconduct. The district court, in considering sanctions, should also determine whether reference of any of the lawyers involved to the appropriate disciplinary authorities is warranted.
65
For the reasons stated in sections III.A.1. and III.A.3., we find that sanctions are also appropriate on appeal under Fed.R.App.P. 38 and Sec. 1927, respectively. On remand the district court shall fix appropriate attorneys fees on appeal. The district court's grant of summary judgment is AFFIRMED; denial of the Berg Defendants' first motion for sanctions is REVERSED and REMANDED; and denial of the Berg Defendants second motion for sanctions is VACATED IN PART for lack of jurisdiction, and REMANDED IN PART.
1
Although the complaint named other defendants in addition to those in favor of whom the district court granted summary judgment, Benice represented to this court, and the record reflects, that none of the other defendants were served. Consequently, summary judgment in favor of the Berg Defendants, the only served defendants, was a final judgment for the purpose of appeal, and we have jurisdiction
2
Although the complaint purports that the plaintiffs named constitute certifiable classes under Rule 23, no motion to certify was ever brought under Local Rule 18.3
3
Rule 11 was amended effective December 31, 1993. The prior version, which was in effect when the conduct at issue here occurred, provides in pertinent part:
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record and in the attorney's individual name[.].... [T]he signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion or other paper; that to the best of the signer's knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
Fed.R.Civ.P. 11 (1983).
4
The Berg Defendants did not seek sanctions against the Brobeck law firm until their second motion. Therefore, the bribery allegation is the only one the Berg Defendants properly asserted against Brobeck. On remand, if the district court finds that sanctions are warranted with respect to the bribery allegation against Benice, it may consider whether sanctions against Brobeck are also appropriate
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353 F.3d 862
Paula WANKIER, Plaintiff-Appellee,v.CROWN EQUIPMENT CORPORATION, Defendant-Appellant.
No. 02-4147.
United States Court of Appeals, Tenth Circuit.
December 23, 2003.
COPYRIGHT MATERIAL OMITTED Michael L. O'Donnell (Darcy M. Goddard, Wheeler Trigg & Kennedy, P.C., Denver, CO and Lee Mickus, Snell & Wilmer, LLP, Denver, CO, with him on the brief), Wheeler Trigg & Kennedy, P.C., Denver, CO, for Defendant-Appellant.
Michael P. Zaccheo (Christian S. Collins with him on the brief), Richards Brandt Miller & Nelson, Salt Lake City, UT, for Plaintiff-Appellee.
Before SEYMOUR, HENRY, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
1
Crown Equipment Corporation ("Crown") appeals a jury verdict for Plaintiff Paula Wankier in this products liability action, which is governed by Utah law. Ms. Wankier was the operator of an electric pallet jack, also known as a "walkie-rider," manufactured by Crown. While operating the walkie-rider in a warehouse, Ms. Wankier drove the machine into a conveyor belt. Her leg was caught between the conveyor and the walkie-rider, causing severe and permanent injuries to her leg. Ms. Wankier brought suit against Crown in federal district court in the District of Utah, pursuant to diversity jurisdiction.
2
Ms. Wankier claimed that the accident occurred because the walkie-rider contained a latent defect: that when the control arm, which is used to regulate the power and direction of the machine, is slipped from the "power on" position to a neutral zone between the "power on" and the brake application position, the machine's power cuts out, the machine coasts, and the operator loses control over it. Crown concedes this fact regarding the machine's operational capabilities. Crown Br. at 3. Ms. Wankier asserted strict liability claims for design defect and inadequate warnings, as well as negligence claims related to product design and inadequate warnings. Her case at base rested on the contention that Crown should have eliminated or changed the location of the neutral — or coast — position of the control arm, and also that Crown should have equipped the walkie-rider with a guard rail attached to the back of the machine's operator platform.
3
The district court granted partial summary judgment in favor of Crown on the inadequate warning claims. App. 531. After a six-day trial, the jury found in favor of Crown on Ms. Wankier's negligent design claim, but found for Ms. Wankier on the strict liability design defect claim. The jury awarded special damages in the amount of $210,000 and general damages in the amount of $90,000. The district court reduced the overall award to $240,000 to reflect the jury's finding that Ms. Wankier was 20% at fault for the accident. It also awarded costs and interest.
4
Prior to trial, Crown submitted two proposed jury instructions, both of which informed the jury that the plaintiff bore the burden of showing the existence of a safer, feasible, alternative design.1 Crown contended that this instruction was required under controlling Tenth Circuit precedent, Allen v. Minnstar, Inc., 8 F.3d 1470 (10th Cir.1993). Ms. Wankier argued that, in light of subsequent decisions by the Utah Supreme Court, there was no requirement under Utah strict products liability law that the plaintiff show the existence of a safer alternative design. The district court declined to give Crown's proposed jury instructions:
5
The court declines to give proposed instructions 16 and 16-A from defendant for the reasons that I have previously explained. I do not believe that Utah law — and if I'm wrong, I'm sure if you lose you'll go up and see what the Circuit says about it. I'll give my proposed instruction 20. I am not convinced that Utah law requires, as an element of plaintiff's case, a safer alternative design.
6
App. 1613-14.2 Noting the fact that the Utah Supreme Court had not had the opportunity to rule on the law applicable to a strict liability design defect claim, the district court noted:
7
And this tea leaf reading thing on what the Utah Supreme Court will or will not do is a very interesting question. But they did sort of survey the waterfront in House [v. Armour of Am., Inc., 929 P.2d 340 (Utah 1996)]. Now, why they didn't refer to, what is it, Allen, I don't know. But it looks to me like as they surveyed the waterfront, what they really found was that plaintiff's burden is that the subject product failed to perform as safely as an ordinary consumer or user would expect when used in an intended or reasonably foreseeable manner, which is language from that House v. Armour [opinion] on Page 344. And if you look at the Model Utah Jury Instruction 12.4, definition of defective design, that's my best reading of the Utah tea leaf.
8
Mot. Hr'g Tr. 59-60, App. 877-78 (italics added).
9
The principal issue on appeal is whether the district court erred, as a matter of Utah law, in declining to instruct the jury that a plaintiff alleging design defect in a strict liability action must prove the existence of a safer alternative design, practicable under the circumstances and available at the time defendant placed the product in the stream of commerce. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.
Analysis
10
In cases arising under a federal court's diversity jurisdiction, the task of the federal court is not to reach its own judgment regarding the substance of the common law, but simply to "ascertain and apply the state law." Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944); see also Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The federal court must defer to the most recent decisions of the state's highest court. Blackhawk-Central City Sanitation Dist. v. Am. Guar., 214 F.3d 1183, 1194 n. 4 (10th Cir.2000). Where no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do. In performing this ventriloquial function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state's highest court has resolved the issue. Id.; see Koch v. Koch Indus., Inc., 203 F.3d 1202, 1231 (10th Cir.2000).
11
The Utah Supreme Court adopted the doctrine of strict products liability, as defined in Section 402A of the Restatement (Second) of Torts, in Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). But it has not addressed whether the plaintiff bears the burden of showing a safer alternative design in a strict liability design defect case. In Allen, this Court examined the then-current state of Utah products liability tort law, and concluded the plaintiff, in a design defect case, "bear[s] the burden of showing that an alternative, safer design, practicable under the circumstances, was available at the time the [products] were sold." 8 F.3d at 1479; see also Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1279 (10th Cir.2003) (noting holding of Allen regarding standards for strict liability design defect claims under Utah law).3
12
Ms. Wankier argues that the Utah cases subsequent to Allen demonstrate that a Utah court would not require plaintiffs to prove an element of a safer, feasible alternative design as an element of a strict liability design defect claim. These cases stand for the following proposition: To plead a case of strict products liability against a manufacturer, a plaintiff must allege (1) that the product was unreasonably dangerous due to a defect or defective condition, (2) that the defect existed at the time the product was sold, and (3) that the defective condition was a cause of the plaintiff's injuries.
13
Lamb v. B & B Amusements Corp., 869 P.2d 926, 929 (Utah 1993); see also House v. Armour of Am., Inc., 929 P.2d 340, 343, 344 (Utah 1996) (applying Restatement (Second) of Torts § 402A standard for strict liability and quoting comment i, regarding the doctrine of open and obvious danger); Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418 (Utah App.1994). None of these cases are apposite because none involve design defect issues. Nor do any of the cases discuss or cite Allen. See House, 929 P.2d at 342 (duty to warn claim); Lamb, 869 P.2d at 929 (manufacturing defect claims); Burns, 876 P.2d at 416-17 (manufacturing defect claim). The very recent case of Schaerrer v. Stewart's Plaza Pharmacy, Inc., 79 P.3d 922, 928 (Utah 2003), similarly recites the elements noted above, but like the earlier decisions does not reach the issue before us. The Schaerrer court concluded that the defendant in that case, a pharmacist mixing "fen-phen" capsules, was shielded by the "learned intermediary rule." See id.
14
These distinctions are consequential. In neither duty-to-warn claims nor manufacturing defect claims does the issue of a safer alternative design logically arise. A manufacturer or distributor may have a duty to warn of latent dangers even if there is no feasible way to produce a safer product; the purpose of the warning is to enable the user to take appropriate steps to avoid the hazard. Similarly, a manufacturing defect claim, by its nature, involves a deviation from the product's design specifications, to the injury or potential injury of a user. The gravamen of the tort is not defective design but defective execution of the design. In a case involving an allegedly defective design, however, the existence of a safer feasible design may be thought relevant to determining whether the design is defective or whether the product is simply unavoidably dangerous. See Grundberg v. Upjohn Co., 813 P.2d 89, 92 (Utah 1991) (distinguishing between design defect claims and manufacturing defect and inadequate warning claims for purposes of the exemption from strict liability for unavoidably unsafe products, as discussed in the Restatement (Second) of Torts, section 402A, comment k).
15
In the absence of intervening Utah authority indicating that a plaintiff is not required to prove a safer, feasible alternative design, we are bound to follow the rule of Allen, as was the district court. "Following the doctrine of stare decisis, one panel of this court must follow a prior panel's interpretation of state law, absent a supervening declaration to the contrary by that state's courts or an intervening change in the state's law." Koch, 203 F.3d at 1231.
16
Where an appellate court determines that the district court has given a legally erroneous jury instruction, the judgment must be reversed "if the jury might have based its verdict on the erroneously given instruction." Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1242 (10th Cir.2002) (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1202 (10th Cir.1997)). Under our precedents, reversal is necessary "[e]ven if that possibility is `very unlikely[.]'" City of Wichita v. United States Gypsum Co., 72 F.3d 1491, 1495 (10th Cir.1996) (quoting Adams-Arapahoe Joint Sch. Dist. No. 28-J v. Cont'l Ins. Co., 891 F.2d 772, 780 (10th Cir.1989)).
17
A district court's failure to inform the jury of all the elements essential to a plaintiff's claim necessarily misleads the jury. See Thomas v. Denny's, Inc., 111 F.3d 1506, 1508 (10th Cir.1997) ("the court's definition of the prima facie case was erroneous.... Accordingly, we reverse the jury verdict ...."); see also Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152-53 (10th Cir.1999) (district court's refusal to instruct on element essential for an award of damages constituted reversible error). In this case, there is no doubt that the erroneous instruction regarding Plaintiff's burden to show a safer alternative design may have misled the jury. Plaintiff's counsel even relied on this missing element in closing argument: "It doesn't say anywhere in these instructions that plaintiff has to solve the problem.... [I]t's not required. We don't have to prove that there's a better alternative." Tr. 989, App.1751.
18
Crown also challenges the district court's decision to permit Ms. Wankier's expert, Fred Smith, to testify. Among other complaints, Crown contends that Smith was not qualified to testify regarding the existence of a safer alternative design. Because the district court's ruling on this issue may have been affected by the court's ruling that Plaintiff did not need to establish the existence of a safer alternative design, on remand it will be necessary for the district court to revisit this issue.
Conclusion
19
For the foregoing reasons, the verdict of the jury regarding Ms. Wankier's strict liability design defect claim against Crown is REVERSED, the judgment of the district court on that claim is VACATED, and the case is REMANDED to the district court for proceedings consistent with this opinion.
Notes:
1
First, Crown proposed the following instruction on the elements of a strict liability design defect claim:
In order to establish her claim for strict liability in tort, Plaintiff Paula Wankier has the burden of proving each of the following four elements by a preponderance of the evidence:
First, that the Defendant Crown Equipment manufactured a product which, at the time it was sold, was in a defective condition that made the product unreasonably dangerous to the user; and
Second, that the product reached the ultimate user without substantial change in the condition in which Defendant Crown Equipment sold it; and
Third, that any defective condition in the product proximately caused the injury to the Plaintiff Paula Wankier; and
Fourth, at the time the Defendant Crown Equipment sold the product, a safer alternative design was available and practicable under the circumstances.
Def.'s Requested Jury Instruction No. 16, App. 672.
In the alternative, Crown requested this instruction:
To prove the existence of a design defect with respect to Crown's Walkie-Rider, Plaintiff Paula Wankier must show, by a preponderance of the evidence, that a safer, technically feasible, alternative design that was practicable in terms of cost was available to Crown at the time the Walkie-Rider was sold.
Def.'s Requested Jury Instruction No. 16A, App. 673.
2
Instruction No. 20, the district court's instruction covering the elements of strict liability, reads:
I will now instruct you as to the law of strict products liability. A manufacturer of a product is liable for damages resulting from physical harm to the ultimate user or consumer when:
1
At the time the product was sold by the manufacturer, there was a defect or defective condition in the product, which made the product unreasonably dangerous for its anticipated or reasonably foreseeable use; and
2
The manufacturer, wholesaler, retailer or distributor is engaged in the business of selling the product; and
3
Plaintiff's injuries and damages are proximately caused by the defective condition
A manufacturer of a defective and unreasonably dangerous product is liable for injury and damage to the ultimate user or consumer under the above circumstances even though:
1
The product manufacturer or seller who placed the product in the stream of commerce has exercised reasonable, or the utmost, care in design of the product; and
2
The user or consumer has not bought the product from or entered into contractual relation with the product manufacturer or seller
Jury Instruction No. 20, App. 783.
3
We note that the authors of theRestatement (Third) of Torts have adopted this requirement of proof of a safer alternative design. See Restatement (Third) of Torts, Prod. Liab. § 2(b) (1998).
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10 A.3d 496 (2010)
IN RE MOULIERT.
No. 09-463.
Supreme Court of Vermont.
October 21, 2010.
Appeal Disposed of Without Published Opinion or Memorandum Decision Affirmed.
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647 F.2d 166
U. S.v.Huff
80-5185
UNITED STATES COURT OF APPEALS Sixth Circuit
2/23/81
1
E.D.Ky.
AFFIRMED
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271 F.2d 806
In the Matter of Cecil M. JACKSON, Bankrupt, Appellant,v.A. S. MENICK, Trustee in bankruptcy of Cecil M. Jackson, bankrupt, Appellee.
No. 16314.
United States Court of Appeals Ninth Circuit.
November 9, 1959.
Irving Sulmeyer, Los Angeles, Cal., for appellant.
Craig, Weller & Laugharn, Hubert F. Laugharn, Frank C. Weller, Thomas S. Tobin, Andrew F. Leoni, Los Angeles, Cal., for appellee.
Before STEPHENS, CHAMBERS and MARIS, Circuit Judges.
STEPHENS, Circuit Judge.
1
The appellant Jackson has been denied a discharge in bankruptcy pursuant to Title 11 U.S.C.A. § 32, sub. c, for the following reasons: (1) He obtained property on credit from the Union Hardware & Metal Co. by submitting a false financial statement on April 25, 1952; (2) He obtained a loan from the Security First National Bank of Los Angeles by submitting a false financial statement on October 31, 1955; (3) He failed to satisfactorily explain the diminution of his assets; and (4) He swore to a false oath in filing his statement of unsecured debts. The order of the referee denying discharge was affirmed by the District Court, and Jackson has appealed. Two other objections to discharge, — that he failed to keep adequate records of his financial condition, and concealed secret records, — have been decided in his favor, and are not before us.
2
The financial statement given to the Union Hardware & Metal Co. in April, 1952, showed a net worth of $39,241.44. This favorable picture was produced by omitting all "personal" liabilities, that is, debts which had not been secured by his business, Jackson's Toy Shop. Jackson testified that at that time, these undisclosed liabilities exceeded his net worth, and that he had been losing money since 1950. What his exact position was is not now known.
3
The statement was prepared by a CPA, who testified that the personal liabilities were omitted on his responsibility. Jackson said that he did not remember checking the statement, and that he relied completely on his accountant. He thus seeks to show that any deception practiced was innocent, and that he did not intentionally deceive the Union Hardware Co.
4
The accountant even argued that the statement was true and correct, because it did not purport to be a complete financial picture, but only the "Property Statement of Cecil M. Jackson, dba Jackson's Toy Shop." He said that this type of statement was often used, because such personal assets and liabilities as utility bills, household furniture, cash in your pocket, etc., were only a nuisance to all concerned.
5
It may be customary in arriving at a present worth figure to omit relatively small current expenses, but these personal liabilities here omitted, were substantial and exceeded the bankrupt's net worth. The business involved was a sole proprietorship. The critical statement was prepared for and was used as a basis for the obtaining of credit, and the statement contained the following: "Notes or debts payable to others (including relatives or friends) — none." No other conclusion was possible but that the statement was intentionally false.
6
The financial statement given to the Security First National Bank on October 31, 1955, showed a net worth of $71,076.00, although actually Jackson was further in debt then, than when he submitted the statement to the Union Hardware Co. He had no net worth whatever. The deception was again produced by omitting all "personal" liabilities, and more since he omitted the mention of a $12,000 note to the Union Hardware Co., for past due merchandise accounts. His position at that time was so shaky that he had to pay his bills with cash or cashier's checks. He claims that the bank did not rely on the financial statement, but instead upon his past record of prompt payment and good character. The record is clear however, that the bank took the false representations into consideration in granting credit.
7
Jackson also raises a procedural point with respect to this charge. The false statement given the bank on October 31, 1955, was properly pleaded in the original objections to discharge. But in the first amendment, it was only mentioned incidentally, and a different statement of October 6, 1954, with a loan made in reliance thereon on April 24, 1952, was pleaded. The second and third amendments corrected this error, but by then the statute of limitations had run. Jackson argues that it was therefore too late to file new objections, and that the allegations could not be mere amendments, since the original objections had been wholly superseded by the first amendments. While this technicality is ingenious, it is unavailing. The referee has ample discretion to allow the filing of objections beyond the time allotted. See Rameson Bros. v. Goggin, 9 Cir., 241 F.2d 271, 273.
8
In answer to the charge that he has failed to satisfactorily explain the diminution of his assets, Jackson claims that it is unfair to start with his financial statements, which were "technically" inaccurate, and that his true financial condition can be determined from his records. To support the latter contention, he cites the fact that the referee rejected the charge that he failed to keep adequate records. This is immaterial. The duty to explain imposed by the statute is a positive one. The bankrupt only pointed to boxes which contained a jumble of unassorted memoranda, checks, bank statements and bills, when asked to explain. In particular, we note that no explanation has been offered of the use made of cashier's checks. See Rameson Bros. v. Goggin, supra.
9
The finding that Jackson executed a false oath when he omitted the $14,000 note owed to the Far East Missionary Society from his list of unsecured debts is amply supported by the evidence. Jackson claims that the omission was inadvertent, and that he could have no reason for intentionally omitting it. But there was evidence that the authorization for the loan was irregular, and that the members of the Society who knew about it were willing to forget the loan completely. Jackson would thereby obtain a private discharge, while at the same time diminishing the losses he had to explain, and weakening the case for the charge that he had used false financial statements. There was testimony that he had attempted to cover up another of his personal liabilities, involving the sum of $18,000. The finding that he knowingly omitted the debt is fully supported.
10
The final contention made is that it was error to admit into evidence the entire transcript of the first meeting of creditors because of the prejudicial remarks by the referee which it contained. This referee had characterized Jackson's statement that he had forgotten the $14,000, debt, as "the biggest lie I have ever heard in this courtroom."1 The remark, to say the least, was injudicial but could not have been prejudicial to the rights of the bankrupt, because there were other and compelling grounds for denying a discharge.
11
Affirmed.
Notes:
1
The referee who made the remark disqualified himself and did not further officiate in the case
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369 F.2d 276
The PENNSYLVANIA RAILROAD COMPANY, Appellee,v.Joseph SHARFSIN, P. Stephen Stahlnecker, Robert W. Anthony, William F. O'Hara and John L. Dorris, Individually and as Commissioners of the Pennsylvania Public Utility Commission, Appellants.
No. 15855.
United States Court of Appeals Third Circuit.
Argued October 4, 1966.
Decided December 6, 1966.
COPYRIGHT MATERIAL OMITTED William A. Goichman, Philadelphia, Pa. (Edward Munce, Asst. Counsel, Joseph C. Bruno, Chief Counsel, Harrisburg, Pa., on the brief), for appellants.
Charles E. Mechem, Asst. General Sol., Pennsylvania Railroad Co., Legal Department, Philadelphia, Pa., for appellee.
Before FORMAN, FREEDMAN and SEITZ, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.
1
This appeal by the Pennsylvania Public Utility Commission ("P. U. C.") challenges an injunction issued by the District Court at the behest of the Pennsylvania Railroad ("Railroad") against enforcement of a P. U. C. order commanding the Railroad to restore certain train service within Pennsylvania.
2
In November 1960, the Railroad applied to the P. U. C. for authority to discontinue service at stations within Pennsylvania of two passenger trains which operated during the night between Harrisburg, Pennsylvania and Hagerstown, Maryland.1 On August 7, 1961, the P. U. C. denied the application. Although there is an appeal provision, the Railroad did not appeal the decision. Rather, on January 24, 1962, the Railroad filed with the Interstate Commerce Commission a notice with supporting data of a proposed discontinuance of the trains effective February 25, 1962. This was done pursuant to Section 13a(1) of the Interstate Commerce Act (49 U.S.C. § 13a(1)).2 The Railroad concededly complied with the requirements of that Act and pertinent regulations. The P. U. C. received notice and on February 8, 1962 served by mail a petition to intervene. A few other protests were also filed.
3
On February 8, 1962, the I. C. C. in a notice with a service date of February 12, 1962 reached its conclusion not to institute a formal investigation of the proposed discontinuance.3
4
On February 20, 1962 — five days before the trains were to be discontinued — the P. U. C. served upon the Railroad a Rule to Show Cause why it should not be required to continue the operation of the trains in question within the State of Pennsylvania. By way of answer to the Rule the Railroad referred to its proceeding under the Interstate Commerce Act and argued that jurisdiction over the discontinuance of the trains had thereby become subject to the exclusive jurisdiction of the I. C. C. The Railroad discontinued the trains on February 25.
5
After the hearing on the Rule the P. U. C. on July 9, 1962 reaffirmed its order of August 7, 1961 and directed the Railroad to restore the particular trains. The P. U. C. decision was apparently not based on the grounds advanced by the parties but was bottomed on the unconstitutionality of Section 13a(1) of the Interstate Commerce Act, as here applied, under the Commerce and Due Process clauses of the Federal Constitution.
6
The Railroad also did not appeal this P. U. C. decision. Instead, it commenced the present action to enjoin the P. U. C. from enforcing its 1962 order. The District Court, with jurisdiction based upon 28 U.S.C.A. § 1337, on February 9, 1966 enjoined the P. U. C. from instituting proceedings concerning the Railroad's action in discontinuing the trains in question. See Pennsylvania Railroad Company v. Sharfsin, 240 F.Supp. 233 (M.D.Pa.1965), an opinion by a three-judge District Court readopted verbatim after the Supreme Court had vacated the judgment on the ground that a three-judge court was not required and that appeal should be to this court. See also Sludden v. United States, 211 F.Supp. 150 (M.D.Pa.1962). This is the decision on the P. U. C.'s appeal from the trial court's judgment.
7
The P. U. C. first contends on various grounds that § 13a(1) is unconstitutional as applied to this case. Stripped to its bare bones the P. U. C.'s argument is that Congress cannot under the commerce clause empower the discontinuance of trains insofar as they may operate between station points within a single state, even though they are an integral part of an interstate trip, unless there is a finding that their intrastate movements constitute an undue burden on or interference with interstate commerce.
8
We first consider whether § 13a (1) requires the procedure and showing which the P. U. C. says is required as a prerequisite to control of the operation of these trains within Pennsylvania. This section clearly does not by its terms require the showing of undue burden which the P. U. C. claims is mandatory to bind the state here. Indeed, when a(1) is compared with a(2), adopted at the same time, it is evident that Congress did not intend to require such a showing under a(1). In contrast, a(2) which embraces "any train or ferry operated wholly within the boundaries of a single state" specifically requires, inter alia, as a prerequisite to relief thereunder, a finding after an adversary type of hearing that the continued operation or service of the train or ferry without discontinuance or change in whole or in part would constitute an unjust and undue burden upon the interstate operations of the carrier. It would thus fly in the face of the evident Congressional intent to construe a(1) to require the I. C. C. to grant in this case a hearing at which the issues of undue burden on or interference with interstate commerce would be tried by the I. C. C. in a full adversary proceeding. We do not so construe it.
9
We are therefore required to examine the P. U. C. contention that Congress under § 13a(1) cannot constitutionally authorize discontinuances of intrastate train operations (two or more stops within a state) which are a part of an interstate train service without itself finding or providing for a finding that the intrastate operations are a burden on or interference with interstate commerce.
10
We commence from the established and governing law announced in State of New Jersey v. United States, 168 F. Supp. 324, (D.C.N.J.1958), aff'd., 359 U.S. 27, 79 S.Ct. 607, 3 L.Ed.2d 625, (1959). That case involved a ferry which operated between New Jersey and New York to service trains on the West Shore Line of the New York Central Railroad. The United States Supreme Court affirmed the district court decision holding, inter alia, that the procedure incorporated in § 13a(1) was constitutional, at least on the facts there involved. The P. U. C. says the case is distinguishable because it involved a ferry which operated only in interstate commerce whereas in our case the trains operated in both interstate and intrastate commerce. While we think the force of New Jersey v. U. S. is greater than counsel for the P. U. C. would concede, it is certainly true that the factual distinction suggested by the P. U. C. does exist between the New Jersey case and ours. The question here is whether that distinction makes the difference.
11
The P. U. C.'s counsel contends that a fair reading of certain United States Supreme Court cases reveals a limitation on Congress' power under the commerce clause when it is exercised so as to affect intrastate commerce. It says that in such situations the Congress must either itself find that the particular intrastate activity is an undue burden upon or interference with interstate commerce or provide for such a finding after a full hearing. We do not understand that the Railroad quarrels with this contention. Rather, it says that we are concerned solely with the application of congressional power over interstate commerce. The resolution of this conflict commences with an analysis of the legislation involved.
12
At the risk of repetition, it is important to understand the statutory scheme involved in § 13a(1) and (2). Section 13a(1) deals with trains and ferries "[O]perating from a point in one State to a point in any other state * * *". In contrast (2) embraces trains and ferries which are "operated wholly within the boundaries of a single state * *". As is noted in the House Report on this legislation, § 13a(1) gives the railroads an option to "have the Interstate Commerce Commission, rather than State commissions, pass upon the discontinuance or change in the operation or service of any train or ferry. This option is limited, however, to the operation or service of a train or ferry on a line of railroad not located wholly within a single state." 2 U.S.Code Cong. & Legisl. News p. 3468 (1958). Section 13a(2), on the other hand, deals with purely intrastate operations. It protects the rights of the states "by leaving to the state regulatory agencies the right to regulate and have a final decision with respect to the discontinuance of train service which originated and ended within one particular state, except when it could be established that intrastate service was a burden on interstate commerce." 104 Cong.Rec. 15528. See also Southern R. Co. v. North Carolina, 376 U.S. 93, 84 S.Ct. 564, 11 L.Ed.2d 541 (1964); and State of New Jersey v. New York, S. & W. R. Co., 372 U.S. 1, 83 S.Ct. 614, 9 L.Ed.2d 541 (1962).
13
Reading § 13a(1) and (2) together with their legislative history makes it clear that under a(1) Congress was legislating with respect to all interstate train service. Thus, even the P. U. C. would presumably agree that by following the procedure outlined in a(1) the Railroad was entitled to discontinue the interstate service of the trains in question. But the P. U. C. says in effect that such an order could not affect the so-called intrastate aspect of their service without a finding in an adversary proceeding that the continuation of such service would be a burden upon or interference with interstate commerce.
14
Can it be said that an interstate train which serves more than one point within any state has an intrastate function which the Congress can regulate at the same time only by showing that it constitutes a burden upon or interference with interstate commerce? We think the answer to this question is found from an evaluation of the purpose of a particular interstate regulation when considered with the nature of the subject matter involved.
15
We think it is an unwarranted construction of the Commerce Clause to say that Congress may authorize the I. C. C. to permit without a hearing the discontinuance of trains which operate between states but may not authorize the I. C. C. to allow the discontinuance of the very same trains insofar as they operate wholly within those states except upon a finding, after hearing, that the intrastate operation is a burden upon or interference with interstate commerce. We are satisfied that the mere fact that a train operating in interstate commerce makes more than one stop within a single state does not alter the interstate character of its operation so as to limit the power of Congress to legislate fully with respect thereto.
16
We reach these conclusions because effective regulation in this area of interstate commerce would be substantially frustrated if each state retained authority over the so-called intrastate portions of the operation after termination of interstate service.4 This conclusion is evident from a consideration of the practicality of the situation. We take notice that many interstate trains pass through several states, making more than one stop within each state. Under the P. U. C.'s view § 13a(1) would be largely meaningless as applied to the so-called intrastate segments because after permission was obtained under § 13a(1), the carrier would then have to apply to each such state or, if refused, proceed under § 13a(2). Certainly a(1) of the statute was not intended to so operate and we do not believe it is unconstitutional because it permits regulation of all interstate train service, including service between points within a state, without a finding of burden upon or interference with interstate commerce.
17
We think the case law amply supports the conclusion that the fact of service between points within a state of an interstate train does not limit congressional power to deal with the so-called intrastate aspects to cases where proof of burden on or interference with interstate commerce can be shown. Rather, we think that no state power to order the continuance of these trains within Pennsylvania survived the proper invocation of § 13a(1) by the Railroad.
18
As the Supreme Court said in State of Colorado v. United States, 271 U.S. 153, 165-166, 46 S.Ct. 452, 455, 70 L.Ed. 878 (1926):
19
"Because the same instrumentality serves both [interstate and intrastate commerce], Congress has power to assume not only some control but paramount control insofar as interstate commerce is involved. It may determine to what extent and in what manner intrastate service must be subordinated in order that interstate service may be adequately rendered. The power to make the determination inheres in the United States as an incident of its power over interstate commerce. The making of this determination involves an exercise of judgment upon the facts of the particular case. The authority to find the facts and to exercise thereon the judgment whether abandonment is consistent with public convenience and necessity, Congress conferred upon the Commission."
20
It was also contended by the State in the Colorado case "that the order [of the I. C. C.] is void, so far as it relates to intrastate traffic, because essential findings were not made * * *". One finding alleged to be essential and lacking was that "by continued operation of the branch interstate or foreign commerce will be discriminated against, * * *". Later in the opinion the court gave its answer:
21
"While the constitutional basis of authority to issue the certificate of abandonment is the power of Congress to regulate interstate commerce, the Act does not make issuance of the certificate conditional upon a finding that continued operation will result in discrimination against interstate commerce, or that it will result in a denial of just compensation for the use in intrastate commerce of the property of the carrier within the state, or that it will result in a denial of such compensation for the property within the state used in commerce intrastate and interstate. The sole test prescribed is that abandonment be consistent with public necessity and convenience. In determining whether it is, the Commission must have regard to the needs of both intrastate and interstate commerce."
22
The P. U. C. says our case calls for an answer to a question suggested but avoided in State of Texas v. Eastern Texas R. R. Co., 258 U.S. 204, 42 S.Ct. 281, 66 L.Ed. 566 (1922). In that case the railroad involved owned a line which, while apparently connecting with lines in other states, was located entirely within one state. It carried both interstate and intrastate commerce. The I. C. C. granted the railroad authority to abandon and cease operating the road. The state claimed that the I. C. C. did not have the power to authorize an abandonment of the intrastate operations.
23
The United States Supreme Court decided that the Congress had the power to act through the I. C. C. to authorize a termination of the interstate traffic on the railroad. The court then said that if certain paragraphs of the act of Congress were to be construed as authorizing the Commission to deal with the abandonment of such a road as to intrastate as well as interstate and foreign commerce, "a serious question of their constitutional validity will be unavoidable". It is this point which the P. U. C. argues most earnestly must now be decided. However, we do not believe the question is presented here, as reference to the language of the opinion will show. The court there said:
24
"The road lies entirely within a single state, is owned and operated by a corporation of that state, and is not a part of another line. Its continued operation solely in intrastate commerce cannot be of more than local concern. Interstate and foreign commerce will not be burdened or affected by any shortage in the earnings nor will any carrier in such commerce have to bear or make good the shortage. It is not as if the road were a branch or extension whose unremunerative operation would or might burden or cripple the main line and thereby affect its utility or service as an artery of interstate and foreign commerce."
Again in the same opinion it is said:
25
"* * * As a whole these acts show that what is intended is to regulate interstate and foreign commerce and to affect intrastate commerce only as that may be incidental to the effective regulation and protection of commerce of the other class. They contain many manifestations of a continuing purpose to refrain from any regulation of intrastate commerce, save such as is involved in the rightful exertion of the power of Congress over interstate and foreign commerce."
26
Here, the fact aside that the Railroad's lines do not lie entirely within Pennsylvania, the important circumstance is that the very trains in question operated across state lines. Nor is it permissible here to "convert" these trains into intrastate trains by viewing them apart from and after termination of their interstate operation. We do not believe that such a fragmenting approach is legally or practically permissible. When it adopted § 13a(1) Congress preempted the field in the area involved under its interstate commerce power and a finding of a reserved power in this area in the states is incompatible therewith. We conclude that § 13a(1) as construed represents a constitutional exercise of power by Congress under the Commerce Clause.
27
The P. U. C. next argues that § 13a(1), in permitting supercession of a state order to take place whenever a railroad files a notice of discontinuance, is an unlawful delegation of legislative power to a private person.
28
The short answer to this contention is that there is no delegation to a private person. The Congress itself determined that a self-implementing procedure would be established. State of New Jersey v. United States, 168 F.Supp. 324 (D.C. N.J.1958); aff'd., per curiam 359 U.S. 27, 79 S.Ct. 607, 3 L.Ed.2d 625 (1959). But let us look beyond that answer. It is true that the railroad files the notice under a(1), but even that is not the end of the matter. Under a(1) the I. C. C. must decide whether it believes an investigation is warranted. See State of New Jersey v. United States, above.
29
The P. U. C. also contends that § 13a(1) as applied in this case violates the Due Process Clause of the Fifth Amendment to the Constitution of the United States.
30
Counsel for the P. U. C. concedes that there is no direct authority to support its position. Nevertheless we look to the merits of the contention. Actually, the P. U. C. is saying that Congress should have made provision for the States affected to present their case at a hearing. The prime answer is found in State of New Jersey v. United States, supra, where the Due Process argument was rejected. Since Congress had plenary power over interstate commerce it alone was the judge of the appropriate procedure to be incorporated in a(1).5 We are not concerned with any taking of property or invasion of any other constitutionally protected right.
31
The P. U. C. next contends that the Administrative Order of the P. U. C. is a "record" or "judicial proceeding" within the Full Faith and Credit Clause and should have been accorded the same respect as it receives by the state. Apart from anything else, we think that when the Railroad submitted this matter to the I. C. C. under § 13a(1) on January 24, 1962, the P. U. C. was without further jurisdiction of the particular subject matter. This conclusion follows from the language of § 13a(1). Thus, the P. U. C.'s order of July 9, 1962, was not entitled to Full Faith and Credit.
32
Finally, the P. U. C. says the district court should have declined to exercise jurisdiction on the basis of the doctrine of comity. Courts generally should be most conscious of the need to avoid unnecessary encroachment on pending proceedings in other forums. However, it is evident that the application of the comity doctrine here would fly directly into the face of the Congressional intent as expressed in § 13a(1). For that section is, by its terms, to be applicable even though the railroad involved is subject to any state "order" or has "any proceeding pending" before a state agency. Combining the exclusive nature of the power supporting the enactment of § 13a (1) with the intent there manifested, we think it would at best be inappropriate to apply the comity doctrine in favor of the State Commission's order.
33
The judgment of the district court will be affirmed.
Notes:
1
No Maryland application was filed because these trains did not provide intrastate service therein and thus the trains were not within the regulatory concern of that state, at least for present purposes
2
Section 13a(1) provides:
"A carrier or carriers subject to this chapter, if their rights with respect to the discontinuance or change, in whole or in part, of the operation or service of any train or ferry operating from a point in one State to a point in any other State or in the District of Columbia, or from a point in the District of Columbia to a point in any State, are subject to any provision of the constitution or statutes of any State or any regulation or order of (or are the subject of any proceeding pending before) any court or an administrative or regulatory agency of any State, may, but shall not be required to, file with the Commission, and upon such filing shall mail to the Governor of each State in which such train or ferry is operated, and post in every station, depot or other facility served thereby, notice at least thirty days in advance of any such proposed discontinuance or change. The carrier or carriers filing such notice may discontinue or change any such operation or service pursuant to such notice except as otherwise ordered by the Commission pursuant to this paragraph, the laws or constitution of any State, or the decision or order of, or the pendency of any proceeding before, any court or State authority to the contrary notwithstanding. Upon the filing of such notice the Commission shall have authority during said thirty days' notice period, either upon complaint or upon its own initiative without complaint, to enter upon an investigation of the proposed discontinuance or change. Upon the institution of such investigation, the Commission, by orders served upon the carrier or carriers affected thereby at least ten days prior to the day on which such discontinuance or change would otherwise become effective, may require such train or ferry to be continued in operation or service, in whole or in part, pending hearing and decision in such investigation, but not for a longer period than four months beyond the date when such discontinuance or change would otherwise have become effective. If, after hearing in such investigation, whether concluded before or after such discontinuance or change has become effective, the Commission finds that the operation or service of such train or ferry is required by public convenience and necessity and will not unduly burden interstate or foreign commerce, the Commission may by order require the continuance or restoration of operation or service of such train or ferry, in whole or in part, for a period not to exceed one year from the date of such order. The provisions of this paragraph shall not supersede the laws of any State or the orders or regulations of any administrative or regulatory body of any State applicable to such discontinuance or change unless notice as in this paragraph provided is filed with the Commission. On the expiration of an order by the Commission after such investigation requiring the continuance or restoration of operation or service, the jurisdiction of any State as to such discontinuance or change shall no longer be superseded unless the procedure provided by this paragraph shall again be invoked by the carrier or carriers."
3
The I. C. C. took this action before the expiration of the time fixed in the Railroad's notice for the filing of objections and obviously before it had received the P. U. C.'s petition. It was, to say the least, a most inappropriate procedure for the I. C. C. to follow. However, the P. U. C. does not argue that this method of handling the matter vitiated the decision, possibly because the I. C. C. still had time to change its decision had it so desired after the petition to intervene was received
4
Indeed, the P. U. C. would presumably contend that the limitation for which it contends would be applicable to any change in the operation of these trains between stops within Pennsylvania
5
We should note that the Railroad submitted to the I. C. C. with its notice of intent to discontinue these trains a rather elaborate statement of the passenger use, revenues, etc. of these trains and referred to the proceedings before the P. U. C. While the P. U. C. challenges the accuracy of some of the statements, it has not called upon us to decide in this proceeding whether the I. C. C. had a sufficient basis for exercising its discretion not to investigate
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471 F.2d 648
Spencerv.Slayton
72-1037
UNITED STATES COURT OF APPEALS Fourth Circuit
1/4/73
1
E.D.Va.
AFFIRMED
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 14, 2008
No. 07-10219
Summary Calendar Charles R. Fulbruge III
Clerk
ALEX KOJO BLANKSON
Petitioner-Appellant
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL; JOHN SOURKARIS,
Director Post Order Detention Unit, U S (ICE); NURIA PRENDES, Director of
Detention and Field Operations Dallas, Texas (ICE); JILL WATSON, Warden
of RPRDC
Respondents-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CV-155
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alex Kojo Blankson appeals the district court’s dismissal of his 28 U.S.C.
§ 2241 petition on the grounds that his detention by the Department of
Homeland Security/Bureau of Immigration and Customs Enforcement (DHS) is
unconstitutional in light of Zadvydas v. Davis, 533 U.S. 678 (2001).
*
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.
No. 07-10219
The district court noted that 8 U.S.C. § 1231(a)(1)(C) provides that the
removal period shall be extended if the alien fails or refuses to make a good faith
effort to obtain a travel document or acts to prevent his removal and concluded
that Blankson’s own actions and conflicting claims of citizenship hampered the
DHS’s ability to effectuate his removal. The district court also found that
Blankson failed to show that there is no significant likelihood of removal in the
foreseeable future.
The district court did not err in denying the petition. Blankson’s frequently
changing claims of citizenship hampered the DHS’s ability to effectuate removal
and, under § 1231(a)(1)(C), has served to extend the removal period
of§ 1231(a)(1)(A). See Balogun v. INS, 9 F.3d 347, 350-51 (5th Cir. 1993).
Blankson has failed to show that under the circumstances his continued
detention violates his constitutional rights and that “there is no significant
likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S.
at 701.
The judgment of the district court is AFFIRMED; Blankson’s motion to
enter exhibit lists is DENIED.
2
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FILED
United States Court of Appeals
Tenth Circuit
August 19, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-3291
v. (D.Ct. No. 5:12-CR-40047-RDR-1)
(D. Kan.)
ERIC JEROME JAMES,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Eric Jerome James pled guilty to one count of carjacking for
willfully taking a motor vehicle in violation of 18 U.S.C. § 2119, received a
*
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.
sentence of 216 months imprisonment and five years supervised release, and was
ordered to pay $6,304.43 in restitution. Mr. James appeals only the order of
restitution, contending the district court lacked authority to impose restitution for
a loss not directly and proximately caused by the offense of conviction. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and vacate and remand to the
district court the judgment of restitution for damages concerning the vehicle
involved in this appeal.
I. Background
On April 18, 2012, Mr. James escaped on foot from a jail in Kansas and
came upon the owner of a 2002 Nissan Altima. After an altercation which left
lacerations on the owner’s face, Mr. James fled in the vehicle, driving to Omaha,
Nebraska. Two days later, while at the home of Latasha Collier, Mr. James
provided the vehicle to Jackson Williams; later that day, Omaha police stopped
Mr. Williams after verifying the vehicle was the one stolen from Kansas and
might contain an escaped felon. After explaining he borrowed the vehicle from
Mr. James, Mr. Williams directed the police to Ms. Collier’s residence where they
found Mr. James and arrested him. Meanwhile, the vehicle was towed from the
scene of Mr. Williams’s arrest to the Omaha police impound lot where United
States Marshals placed a “hold” and “hands-off” instruction on the vehicle. At
the time of impoundment, the Omaha Police Department reported the condition of
the vehicle as having “small scratches & minor interior damage.” Sometime
-2-
thereafter, apparently either while impounded or transported back to Kansas, the
vehicle was damaged, causing the victim’s insurance company to determine the
vehicle was totaled; it later sold it for salvage.
Following Mr. James’s guilty plea to the carjacking offense, a probation
officer prepared a presentence report calculating his sentence under the applicable
2011 United States Sentencing Guidelines. In recommending the amount of
restitution, the probation officer determined the total loss amount at $8,169.43,
which was later reduced to $6,304.43 after deduction of the salvage proceeds.
Both in a formal objection and at the sentencing hearing, Mr. James
objected to paying restitution for damage caused to the vehicle, arguing that while
the vehicle was totaled when it was returned to Kansas, his crime was not the
proximate cause of the damage which arose after the crime was committed and
the vehicle was placed in the government’s custody. In turn, the government
admitted it had no evidence of how the damage actually occurred to the vehicle,
but that Mr. James should be responsible for any damage to the vehicle following
the carjacking given his offense ultimately resulted in such damage. At the
conclusion of the sentencing hearing, the district court agreed with the
government, stating it “accepts the argument that this man is responsible for what
happened to that automobile.” It then ordered Mr. James to pay restitution for
damage to the vehicle.
-3-
II. Discussion
On appeal, Mr. James claims the district court did not have authority to
order restitution for a loss not directly and proximately caused by the carjacking.
Pointing to the government’s admission it had no evidence on the cause of the
damage, Mr. James argues the government failed to carry its burden of showing
either proximity or a lack of intervening cause or that any intervening cause of
the damage was not too attenuated from his offense. The government opposes the
appeal, but in the event the district court erred, asks we remand for further
proceedings rather than issue a final decision restitution was inappropriate.
Generally, “[w]e review the district court’s application of the MVRA
[Mandatory Victims Restitution Act]1 de novo, review its factual findings for
clear error, and review the amount of restitution awarded for abuse of discretion.”
United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008). As Mr. James
points out, the government bears the burden of proving the loss was sustained as a
result of the offense. See United States v. Speakman, 594 F.3d 1165, 1172-73 n.5
(10th Cir. 2010). “‘Courts have no inherent power to order restitution; they may
only do so as authorized by statute.’” United States v. West, 646 F.3d 745, 750
(10th Cir. 2011) (quoting United States v. Gordon, 480 F.3d 1205, 1210 (10th Cir.
1
We refer to the Mandatory Victims Restitution Act of 1996 as the
“MVRA.” See Pub. L. No. 104-132, 110 Stat. 1227 (codified principally at 18
U.S.C. § 3663A and enforced under 18 U.S.C. § 3664, as provided in
§ 3663A(d)).
-4-
2007)).
With respect to the statute to which we look for authorization in this case,
the MVRA states, in part, the court shall order the defendant to make restitution
to the victim of the offense and defines “victim” as “a person directly and
proximately harmed as a result of the commission of an offense for which
restitution may be ordered ....” See 18 U.S.C. § 3663A(a)(1)-(2) (emphasis
added).
We have held, with respect to the terms “directly and proximately,” the
word “and” is conjunctive, and therefore, “directly” and “proximately” each have
a separate meaning and both must be shown to support an order for restitution.
See Speakman, 594 F.3d at 1171. We define “directly” as requiring a showing of
“but-for” causation, so that a particular loss would not have occurred but for the
conduct underlying the offense of conviction. See id. In turn, “proximately”
requires a causal connection between the conduct and a loss that is not too
attenuated, either factually or temporally. See id. at 1171-72 (relying on United
States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007); United States v.
Cutter, 313 F.3d 1, 7 (1st Cir. 2002)). In considering proximate cause, our main
inquiry is “whether there was an intervening cause and, if so, whether this
intervening cause was directly related to the offense conduct.’” Id. at 1172. In
conducting the direct and proximate cause analysis, we have held restitution
under the MVRA may only be ordered for losses caused by the offense of
-5-
conviction. See West, 646 F.3d at 751.
Applying these principles and the first causation prong, it is apparent Mr.
James’s offense was the direct cause of the damage to the victim’s vehicle. In
making this conclusion, we rely on the “but-for” analysis for the proposition that
“but for” Mr. James’s carjacking offense, the victim’s car would not have been
taken to Nebraska, impounded, transported back to Kansas, and thereby totaled in
the process.
With respect to the second causation prong involving proximate cause, it is
clear an intervening event occurred. After commission of the crime and the
government’s possession of the vehicle, it is undisputed the vehicle had only
“small scratches & minor interior damage,” and it was clearly operating the day
Mr. Williams drove it. It is also undisputed that when it was returned to the
victim it was damaged beyond repair, to the point of being totaled and thereby
unusable by the victim. Clearly, an intervening event occurred, causing the
damage. At the sentencing hearing, the government admitted it had no evidence
to show how or when the vehicle incurred such damage. As a result, it did not
carry its burden of showing this intervening cause “was directly related to the
offense conduct,” Speakman, 594 F.3d at 1172, or that the causal connection
between the conduct and the loss was otherwise not too attenuated, either
factually or temporally. See id. at 1171-72. As a result, the district court erred in
ordering restitution concerning the vehicle. See, e.g., United States v. Kieffer,
-6-
681 F.3d 1143, 1171 (10th Cir. 2012) (holding district court order of restitution
failed for lack of proof when government failed to meet burden), cert. denied, 133
S. Ct. 996 (2013). Because the government has not indicated on appeal that any
new evidence exists on how or when the damage occurred, it is evident its request
for a further proceeding on this matter lacks merit or would otherwise prove
fruitless.
III. Conclusion
For these reasons, we VACATE and REMAND to the district court the
judgment of restitution concerning damages sustained to the vehicle at issue in
this case, ordering it to revise such judgment in accordance with this decision.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
-7-
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-80,819-02
EX PARTE ALVIN EUGENE HINES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 31047-A IN THE 3RD DISTRICT COURT
FROM ANDERSON COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and
sentenced to sixty years’ imprisonment. His appeal was dismissed for want of jurisdiction. Hines v.
State, No. 12-13-00325-CR (Tex. App.—Tyler Nov. 21, 2013) (not designated for publication).
Applicant contends that his counsel rendered ineffective assistance because counsel failed
to timely file a notice of appeal. After a remand, the trial court obtained a response from one of
Applicant’s two trial lawyers, and recommends granting relief, despite finding that Applicant was
denied a meaningful appeal due to his own actions. The writ record contains no response from the
2
lawyer Applicant allegedly said he would be contacting about his appellate rights.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999); Ex parte
Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). In these circumstances, additional facts are needed.
As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is
the appropriate forum for findings of fact. The trial court shall order counsel to respond to
Applicant’s claim of ineffective assistance of counsel. The trial court may use any means set out in
TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
It appears that Applicant is represented by counsel. If he is not represented and the trial court
elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and
wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant
at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make additional findings of fact and conclusions of law as to whether
Applicant was denied his right to a meaningful appeal because Applicant’s counsel failed to timely
file a notice of appeal. The trial court shall make specific findings addressing whether Applicant
contacted his second trial lawyer about the appeal, and how that lawyer advised Applicant as to his
appellate rights. The trial court shall also make any other additional findings of fact and conclusions
of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas
corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
3
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: January 28, 2015
Do not publish
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0112n.06
No. 09-3303 FILED
Feb 19, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JOHN E. WERNER, JR., )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
PRIMAX RECOVERIES, INC.; ) THE NORTHERN DISTRICT OF
ACS RECOVERY SERVICES, INC, ) OHIO
)
Defendants-Appellees. )
)
)
Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Plaintiff John E. Werner, Jr. challenges the district court’s
grant of summary judgment in favor of defendants Primax Recoveries, Inc. and ACS Recovery
Services, Inc. (collectively, “Primax”), on his claims under the Employee Retirement Income
Security Act (“ERISA”) and Ohio common law. We reject his arguments and affirm.
I.
Werner was involved in a traffic accident on June 28, 2002, and required medical treatment
for his injuries. He was entitled to healthcare benefits through two different insurers. First, he had
an employer-sponsored health-insurance policy through Medical Mutual of Ohio (“Medical
Mutual”). Werner also had a motor-vehicle-insurance policy through Progressive Preferred
No. 09-3303
Werner v. Primax Recoveries, Inc.
Insurance Company (“Progressive”) that covered up to $5000 in medical-expense benefits (the “Med
Pay” coverage).
Werner submitted most of his medical-treatment bills to Medical Mutual. He submitted other
bills to Progressive. Both insurers paid the bills directly, rather than reimbursing Werner. The
Medical Mutual policy included a subrogation clause. Under that clause, Medical Mutual was
entitled to recoup from third parties, including other insurers, benefits that it had paid on Werner’s
behalf. Medical Mutual entered into a contract with Primax Recoveries—which has since been
acquired by ACS Recovery Services—to conduct its recoupment efforts.
On November 27, 2002, Progressive mailed Werner a letter inquiring whether he would be
submitting additional bills. Werner responded that he had just undergone surgery and that he would
be submitting other bills. He did send one such bill, which Progressive paid. Around this time,
Werner also engaged an attorney, C. Michael Piacentino, to manage his personal-injury claim. On
January 28, 2003, Progressive sent another letter—this time to Piacentino—inquiring about
additional bills. Piacentino responded that he would submit additional bills. There is no indication
in the record, however, that either Piacentino or Werner ever did so.
On April 28, 2003, Primax notified Progressive that it was asserting a lien against the unpaid
balance of Werner’s Med Pay benefits. Progressive attempted to telephone Piacentino regarding the
lien, but allegedly received an out-of-service message. Progressive then contacted Werner directly,
who stated that he had been receiving collection notices and that he did not know why Piacentino
had failed to submit the bills. Progressive also sent Piacentino letters requesting that he forward any
bills that he had and informing him of Primax’s purported lien. Piacentino never replied.
-2-
No. 09-3303
Werner v. Primax Recoveries, Inc.
Meanwhile, Primax sent Progressive two more inquiries, including a demand for
reimbursement. Progressive acceded to that demand on August 15, 2003, and sent Primax a check
for $3895, which exhausted Werner’s benefits under the Med Pay policy. Progressive then sent
Piacentino a letter to notify him of its actions.
Soon afterward, one of Werner’s medical providers sued him for non-payment. Werner
demanded that Progressive seek a refund from Primax. When Progressive refused to do so, he
turned to the courts. As part of a personal-injury action against the tortfeasor in his traffic accident,
Werner asserted claims against Progressive seeking Med Pay coverage of his treatment bills.
Werner’s and Progressive’s attorneys corresponded in late 2004, and on January 28, 2005,
Progressive sent Werner a check for $3895 in an attempt to settle the lawsuit. Werner returned the
check because Progressive refused to pay interest on that sum and attorney’s fees incurred in
defending the suit brought by his provider. Later that year, Werner voluntarily dismissed his claims
against Progressive. But Werner sued Progressive again in February 2007, this time in a putative
class action. That case ended in summary judgment for Progressive. Werner v. Progressive
Preferred Ins. Co., 533 F. Supp. 2d 776 (N.D. Ohio 2008), aff’d, 310 F. App’x 766 (6th Cir. 2009).
Werner then sued Primax, even though it had already returned the $3895 to Progressive 20
months earlier. He initially asserted only Ohio common-law conversion and breach-of-contract
claims, invoking the district court’s jurisdiction over class actions, see 28 U.S.C. § 1332(d). He
sought damages, prejudgment interest, declaratory and injunctive relief, and attorney’s fees, as well
as class certification. After Primax filed a summary-judgment motion, asserting that ERISA
preempted those state-law claims, Werner amended his complaint to include claims under two of
-3-
No. 09-3303
Werner v. Primax Recoveries, Inc.
ERISA’s civil-enforcement provisions. He asserted that those claims entitled him to most of the
earlier-sought relief, and added a new claim for restitution through a constructive trust or an
equitable lien.
The district court granted Primax’s summary-judgment motion on mootness and preemption
grounds. Werner then filed a motion, which the district court construed as a motion under Fed. R.
Civ. P. 59(e) to amend or alter a judgment, asserting that the court had neglected to rule on his
ERISA claims. The court denied that motion on standing, mootness, and forfeiture grounds.
This appeal followed.
II.
Werner challenges the district court’s summary-judgment grant to Primax. We review that
grant de novo, drawing all reasonable inferences in Werner’s favor. See Allen v. Highlands Hosp.
Corp., 545 F.3d 387, 393 (6th Cir. 2008). Summary judgment is appropriate when “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.” Fed. R. Civ.
P. 56(c). His numerous assignments of error fall into three general categories.
A.
Werner asserts several state-law claims against Primax. His legal theories are not particularly
clear, but we attempt to summarize them here. First, he claims that Primax converted benefits that
he was entitled to under his Med Pay policy when it asserted a lien against them under the Medical
Mutual policy’s subrogation clause. Second, he claims that Primax breached his insurance contract
with Medical Mutual when, acting as Medical Mutual’s agent, Primax asserted nonexistent
-4-
No. 09-3303
Werner v. Primax Recoveries, Inc.
subrogation rights against Progressive. Third, he claims that he is entitled—under either a tort theory
or a contract theory—to prejudgment interest on the Med Pay funds Primax thereby obtained and
held for 27 months. Fourth, he claims that he is entitled to attorney’s fees as a result of that alleged
wrongdoing. And finally, he asserts that Primax routinely asserts the subrogation clause against his
and other insureds’ Med Pay benefits, and that class certification is therefore appropriate.
These state-law claims are vulnerable on several fronts, but the district court granted
summary judgment on the ground that they are all preempted by ERISA. Werner challenges that
determination. He recognizes that we have long interpreted ERISA as broadly preempting “most
state law claims” that relate to an employee-benefit plan, particularly where—as here—those claims
“explicitly refer to such a plan.” See Zuniga v. Blue Cross & Blue Shield of Mich., 52 F.3d 1395,
1401 (6th Cir. 1995) (internal citations and quotation marks omitted). Nevertheless, he contends that
a pair of recent cases have “somewhat modified” our interpretation. See Rodriguez v. Tenn.
Laborers Health & Welfare Fund, 463 F.3d 473 (6th Cir. 2006); Primax Recoveries, Inc. v. Gunter,
433 F.3d 515 (6th Cir. 2006). But Werner confuses preemption with subject-matter jurisdiction.
Rodriguez and Gunter merely hold that a federal court may have subject-matter jurisdiction over an
action brought under ERISA, even though the action seeks relief that itself is not available under the
statute. See Rodriguez, 463 F.3d at 476; Gunter, 433 F.3d at 516.
Here, we need look only at the face of Werner’s complaint to determine that it “relate[s] to
an employee benefit plan” and is therefore preempted. See 29 U.S.C. § 1144(a); Zuniga, 52 F.3d at
1401. Under ERISA, the phrase “employee benefit plan” includes employer-sponsored medical
insurance policies. 29 U.S.C. § 1002(1) and (3). Werner expressly alleges that “the health insurance
-5-
No. 09-3303
Werner v. Primax Recoveries, Inc.
policy pertinent to this action was provided to the representative plaintiff by his employer.” (Am.
Compl. ¶ 1.) He also alleges that his health insurer paid medical bills on his behalf, (id. ¶ 6), and
that Primax acted as his insurer’s agent in making subrogation claims under the terms of the
insurance policy, (id. ¶¶ 7-10, 16-17). Each of Werner’s state-law claims depends on those
allegations, because each claim requires consideration of Primax’s actions under the subrogation
clause. That dependency more than meets the “relates to” standard in § 1144(a), and thus these
claims are all preempted. The district court did not err in concluding as much.
B.
Werner challenges the district court’s legal findings on each of his ERISA claims. He
initially brought those claims under §§ 502(a)(1)(B) and 502(a)(3) of ERISA, but now concedes that
only § 502(a)(3) is applicable here. (Werner’s Reply Br. 6.) That section allows a plan participant
to seek equitable relief for violations of ERISA or the plan. § 502(a)(3) (codified at 29 U.S.C.
§ 1132(a)(3)). Werner sought several different types of equitable relief under § 502(a)(3). But the
right of action provided by that section, alone, is insufficient to maintain this suit. Werner must first
satisfy the requirements for federal jurisdiction under Article III of the United States Constitution.
And as the district court recognized, he fails in that regard.
Werner first sought injunctive and declaratory relief. He asked the district court to order
Primax to enforce the subrogation clause “according to its terms” and to bar Primax from engaging
in future efforts to collect Med Pay funds under the clause. He also asked for a declaration that
Primax’s collection efforts were “illegal.” To have standing to seek an injunction in federal court,
however, Werner must show a non-speculative threat that “he will again experience injury as a
-6-
No. 09-3303
Werner v. Primax Recoveries, Inc.
result” of the alleged wrongdoing. See City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). And
to have standing to seek federal declaratory relief, Werner must “demonstrate actual present harm
or the significant possibility of future harm.” See Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006)
(citation omitted).
Werner virtually admits that he cannot meet those requirements personally, given that he
“would not seriously contest the lower court’s ruling . . . if these requests for judicial relief
concerned only Mr. Werner.” (Werner’s Br. 35). Werner believes that he has standing, nonetheless,
because it is Primax’s “standard practice” to collect Med Pay funds in this manner and Werner seeks
to represent not only himself but an entire class. That belief is mistaken: “The Article III standing
requirements apply equally to class actions. The class representative must allege an individual,
personal injury in order to seek relief on behalf of himself or any other member of the class.” Sutton
v. St. Jude Med. S.C., Inc., 419 F.3d 568, 570 (6th Cir. 2005). The district court did not err, then,
by concluding that Werner lacked standing to assert these claims.
Werner also sought restitution, asking the district court to impose a constructive trust or an
equitable lien on the $3895 that Primax obtained from Progressive. The court found that request to
be moot, however, because Primax had returned those funds to Progressive nearly 20 months prior
to Werner’s filing of this action. Werner argues that the district court erred by assuming that a
specific res had to be identifiable before it could impose an equitable lien. He relies solely on a
passage in Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), in which the Court
explained that “strict tracing” of funds is not necessary when an equitable lien is established by an
agreement. See id. at 364-65. But that reliance is misplaced: Werner has no agreement with Primax
-7-
No. 09-3303
Werner v. Primax Recoveries, Inc.
that creates an equitable lien. Rather, he seeks an equitable lien in restitution, i.e., the return of
something that he alleges Primax wrongfully took. Sereboff expressly distinguishes such claims.
Moreover, Sereboff still requires that a request for restitution under § 502(a)(3) target
“‘particular funds or property in the defendant’s possession.’” Id. at 362 (quoting Great-West Life
& Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213 (2002) (emphasis added)). Werner does not
dispute that Primax returned the $3895 to Progressive. We fail to see why that would not already
amount to restitution here, thus mooting the request—unless what Werner actually seeks is
possession of the $3895 for himself. But for that, presumably he may now file reimbursement claims
with Progressive. Restitution certainly does not require that Primax pay twice. Our review of
Sereboff also leads us to conclude that Werner’s restitution claim is for relief that a court cannot
grant under § 502(a)(3), because he seeks legal rather than equitable restitution. See id. at 361-62
(distinguishing the two types and explaining that only equitable restitution is available under
§ 502(a)(3)); Fed. R. Civ. Pro. 12(b)(6). The district court properly granted summary judgment on
this claim.
Werner next argues that the district court erroneously found moot his prejudgment-interest
claim under ERISA. What the court actually did, however, was expressly reject his ERISA-based
argument for prejudgment interest because that argument first appeared in the reply brief Werner
filed in support of his Rule 59(e) motion. Werner v. Primax Recoveries, Inc., 2009 WL 302311, at
*3 n.1 (N.D. Ohio Feb. 9, 2009). The court was well within its authority to do so. “[U]nder Rule
59(e), parties cannot use a motion for reconsideration to raise new legal arguments that could have
been raised before a judgment was issued.” Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477
-8-
No. 09-3303
Werner v. Primax Recoveries, Inc.
F.3d 383, 395 (6th Cir. 2007). Similarly, we will not consider the argument on appeal when it was
not properly presented to the district court in the first instance. Armstrong v. City of Melvindale, 432
F.3d 695, 699-700 (6th Cir. 2006). Thus, Werner’s prejudgment-interest claim fails.
Finally, Werner argues that the district court abused its discretion in denying his request for
attorney’s fees. See § 1132(g). In light of his failure to advance an argument upon which we can
so much as reach the merits of his claim, we think it obvious that no reasonable court would have
granted that request.
C.
Werner argues that the court erred in resolving his request for class certification. He rather
candidly admits that the “primary thrust of this case . . . is for class certification” and that the time
and expense of this litigation—not to mention the “economical use of the Court’s time”—would not
be justified by an award of interest and attorney’s fees in Werner’s case alone. (Werner’s Br. 40-41.)
Given that this case represents Werner’s second appearance before us attempting to stitch together
a class action out of the same set of events, we think it is worth pointing out that, despite his
numerous theories about how Primax and Progressive wronged him, it is readily apparent that the
fault, if any, lies somewhere else. Had Piacentino coordinated Werner’s benefits between the two
insurers, timely submitted all of Werner’s claims, or even responded to Progressive’s numerous
attempts to reach him, most of the ensuing “time and expense” would likely have been avoided.
In any event, as explained above, Werner’s state-law claims are preempted. His ERISA
claims variously fail for lack of standing, mootness, and forfeiture. And because Werner is thus left
-9-
No. 09-3303
Werner v. Primax Recoveries, Inc.
without a viable individual claim, the issue of class certification is moot. See Johnson v. Turner, 125
F.3d 324, 339 (6th Cir. 1997).
The district court’s judgment is affirmed.
-10-
| {
"pile_set_name": "FreeLaw"
} |
372 S.E.2d 771 (1988)
Frank Paulding SCOTT
v.
COMMONWEALTH of Virginia.
Record No. 1172-86-3.
Court of Appeals of Virginia.
October 4, 1988.
*772 Harry F. Hambrick, Jr., Roanoke, for appellant.
Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: KOONTZ, C.J., and COLEMAN and KEENAN, JJ.
KOONTZ, Chief Judge.
Frank Paulding Scott was convicted in a jury trial of first degree murder, two counts of attempted robbery and use of a firearm in the commission of murder. In accordance with the jury's verdicts, Scott was sentenced to life imprisonment for murder, ten years imprisonment for each attempted robbery and two years imprisonment for the use of a firearm in the commission of murder. On appeal, Scott raises the following issues: (1) whether the trial court abused its discretion in restricting voir dire; (2) whether the trial court erred in ruling that his abandoned notice of alibi was admissible for impeachment; (3) whether the trial court erred in restricting counsel's attempted impeachment of a prosecution witness by proof of prior inconsistent *773 statements; (4) whether the trial court erred in refusing Scott's discovery request to review the juvenile court records of a prosecution witness; (5) whether the conviction of, or punishment for, the attempted robbery of Bonnie Flett constituted double jeopardy; and (6) whether the evidence was sufficient to support the conviction of attempted robbery of Bonnie Flett. For the reasons that follow, we find no reversible error in the first five issues; however, we reverse Scott's conviction of attempted robbery of Bonnie Flett because the evidence was insufficient to support his conviction.
I. Facts
The evidence at trial established that on the evening of July 11, 1985, Scott, D'Anthony Hale and Ronald Keeling decided to rob the Arby's restaurant located on Brandon Avenue in the City of Roanoke. Scott had previously worked at this Arby's and he suggested that they could "snatch" the night deposit bag when the manager left with it at the close of the business day.
The three drove to a service station near the Arby's and while Keeling waited in his car, Scott and Hale proceeded to the rear of Arby's and waited for the departure of the manager. Within several minutes, Bonnie Flett, a summer employee, and Jerry Horne, the manager, exited Arby's, crossed the rear parking lot and dumped garbage in the dumpster. Flett and Horne turned and were returning to the employee entrance when Flett saw two men moving towards them. Flett screamed, "Run, Jerry, run." As she reached the employee entrance one of the men grabbed her from behind and pulled her to the ground. Flett testified that after she said, "Let me go," her assailant did so and that he immediately went to where the other assailant was struggling with Horne. She heard a voice say, "Shoot him, shoot him," and within seconds she heard more than one gunshot. Flett turned and saw Horne lying wounded on the ground and the two assailants running away. Flett was not able to identify the two assailants. Horne died several hours later from a gunshot wound to his neck.
Hale and Keeling both testified for the Commonwealth. Hale testified that Scott had suggested the plan to "snatch" the night deposit bag from the manager. He testified that he and Scott were the two men seen by Flett as she and Horne were returning to the employee entrance of Arby's. He further testified that Scott tried to hit Horne but that Horne "just swinged [sic] him down." After Hale and Flett "collided," Horne grabbed Hale in a "bear hug" from behind. Seconds later Scott pulled a gun from his jacket pocket and shot Horne. Hale and Scott then ran to Keeling's car and made their escape.
Keeling's testimony confirmed the robbery plan and that he had been the driver of the car involved. He was not present at the scene of the robbery. Scott did not testify.
II.
Scott submitted thirty proposed voir dire questions and the trial court, for reasons stated in the record, refused twenty of these. We conclude that the trial court did not abuse its discretion in restricting the proposed voir dire questions. The record affirmatively supports the conclusion that the mandates of Code § 8.01-358 and Rule 3A:14 were followed; thus, we will not recite the twenty questions which were rejected by the trial court.
Scott essentially asserts that some of the proposed questions were intended to test the jurors' understanding and willingness to accept fundamental law, and whether the jurors had formed an opinion concerning Scott's guilt or innocence as a result of pretrial news media coverage of this case. The trial judge conducted voir dire sessions with prospective jurors in groups of three and the record affirmatively establishes that the rejected questions were either adequately covered by other granted questions or questions propounded by the court.
The questions propounded by counsel must be relevant ... and the trial court must, in its discretion, decide the issue of relevancy, subject to review for abuse. The test of relevancy is whether the *774 questions relate to any of the four criteria set forth in [Code § 8.01-358]. If an answer to the question would necessarily disclose, or clearly lead to the disclosure of the statutory factors of relationship, interest, opinion or prejudice, it must be permitted. Questions which go beyond this standard are entirely within the trial court's discretion.
A party has no right, statutory or otherwise, to propound any question he wishes, or to extend voir dire questioning ad infinitum. The court must offer a party a full and fair opportunity to ascertain whether prospective jurors "stand indifferent in the cause," but the trial judge retains the discretion to determine when the parties have had sufficient opportunity to do so.
LeVasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984) (citations omitted); see also Scott v. Commonwealth, 1 Va.App. 447, 451, 339 S.E.2d 899, 901 (1986), aff'd, 233 Va. 5, 353 S.E.2d 460 (1987). We conclude from our review of the record that the trial court did not abuse its discretion because the relevant questions which Scott proposed were either permitted or were adequately covered by other questions to the jurors. Scott was therefore afforded a full and fair opportunity to ascertain whether the prospective jurors stood indifferent in the cause.
III.
During the pretrial proceedings, counsel for Scott filed a notice of alibi, asserting that he intended to establish that Scott was in Washington D.C. when the offenses occurred. Subsequently, counsel advised the court that he had "abandoned" this alibi and substituted oral notice that he intended to establish that Scott was with his girlfriend when the offenses occurred. At a hearing on a motion in limine, Scott's counsel raised the issue whether the Commonwealth would be permitted to impeach Scott by evidence of the first alibi if Scott elected to testify. At the conclusion of the Commonwealth's evidence, the court ruled that if Scott testified the Commonwealth would be permitted, for impeachment purposes, to cross-examine him on his abandoned alibi defense. Counsel for Scott made no objection to this ruling. Consequently, Scott is not permitted to raise this issue for the first time on appeal. Rule 5A:18. While Scott did not testify, we note that on appeal he does not assert that this ruling on the impeachment use of his abandoned alibi defense was the reason for his election not to testify. Furthermore, we note that any harm resulting from the trial court's decision to allow the use of the abandoned alibi defense is speculative and since Scott did not testify, he is not entitled to have the court's decision reviewed. See Reed v. Commonwealth, 6 Va.App. 65, 69, 366 S.E.2d 274, 277 (1988) (citing Luce v. United States, 469 U.S. 38, 42-43, 105 S.Ct. 460, 463-464, 83 L.Ed.2d 443 (1984)).
IV.
Prior to trial, witnesses Hale and Keeling gave several statements to the investigating officers which admittedly were inconsistent with their trial testimony. These statements were transcribed and provided to Scott's counsel. At trial, counsel attempted to attack the credibility of these witnesses during cross-examination by using their prior inconsistent statements.
Counsel desired to "paraphrase" the questions and answers contained in these statements during cross-examination in order to "direct the cross-examination to the precise point" in the prior inconsistent statements. The trial court required counsel to read verbatim the question and the corresponding answer when confronting witnesses with their prior inconsistent statements. When the witness admitted making the prior inconsistent statement, the witness was permitted to explain the inconsistency. The explanation was repeatedly that the witness had lied to deceive investigating officers.
Scott contends that without being permitted to paraphrase the prior statements, cross-examination was rendered ineffective because the inconsistencies which he wanted *775 to pinpoint were often "buried in the middle of a response" and were not responsive to specific questions, such as those asked by the Commonwealth's Attorney at trial. We find no merit to Scott's assertion that the trial court committed reversible error by requiring a verbatim reading of the questions and answers given by witnesses in prior statements.
Initially we agree with the Commonwealth that it was possible for Scott's counsel to extract specific questions and answers for purposes of cross-examination, consistent with the court's ruling in that regard. In addition, neither Code § 19.2-268.1 nor the Supreme Court's decision in Patterson v. Commonwealth, 222 Va. 612, 283 S.E.2d 190 (1981), support Scott's contention that he should have been permitted to paraphrase the prior statements. Code§ 19.2-268.1, in plain language, permits the cross-examination of a witness in a criminal case based on a prior written statement by the witness. This statute provides that if the witness denies making the prior statement, it shall then be shown to him and if he admits its genuineness, he shall be allowed to make his own explanation of it. The witnesses in this case admitted making the prior statements and explained that they were not truthful when made. In Patterson, the Court held that counsel, when asking a witness whether he or she previously made a particular statement, is permitted "to frame the question by reading the statement from a transcript of a prior proceeding." Id. at 616, 283 S.E.2d at 193 (emphasis deleted). The trial court's ruling was consistent with Patterson. Contrary to Scott's contention, we find nothing in Patterson supporting the position that he should have been permitted to paraphrase the questions and answers contained in the witnesses' prior statements. Accordingly, we hold that the trial court's ruling on this issue was consistent with the requirements of Code § 19.2-268.1 and with an orderly procedure calculated to avoid confusion for the witnesses and the jury, and it was well within the court's discretion to control the conduct of cross-examination. See Watkins v. Commonwealth, 229 Va. 469, 484, 331 S.E.2d 422, 433 (1985), cert. denied, 275 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986).
V.
Prior to trial, counsel for Scott filed a motion for discovery in which he requested, inter alia, "a copy of the criminal record of all potential witnesses as to all charges against [Scott]." One of those witnesses was the co-defendant D'Anthony Hale. Hale was an adult, eighteen years of age, at the time of the offense and nineteen years of age at the time his motion was filed. At a hearing on this motion, counsel for Scott specifically requested permission "as an office of the court" to review the juvenile court records of Hale. The trial court denied counsel's request and directed the Commonwealth to provide counsel with the record of guilty findings of felonies or crimes of moral turpitude in Hale's record. The Commonwealth subsequently provided counsel Hale's complete record, which disclosed juvenile assault adjudications against Hale. Thereafter, counsel for Scott filed a motion in limine in which he sought permission to "question, by way of impeachment" the witness Hale using these juvenile assault adjudications. Counsel asserted that these adjudications "are analogous to misdemeanors of moral turpitude and show a predisposition to commit an act of violence." The trial court responded: "I don't believe ... your request can be granted at this time."
At trial, Hale, then age twenty, admitted prior adult convictions of statutory burglary and grand larceny. Counsel for Scott made no specific reference to Hale's juvenile record during cross-examination. Hale further admitted that he had pled guilty to and was convicted of murder, attempted robbery and use of a firearm in the commission of murder for the same offenses for which Scott was on trial. While he had not been sentenced for these offenses, Hale testified that he had been advised that the Commonwealth would recommend that he receive a sentence of life imprisonment regardless of his testimony in the Scott trial.
In this context, Scott asserts that he should have been permitted to review *776 Hale's juvenile court record rather than being limited to the procedure adopted by the trial court which directed the Commonwealth to review the record and disclose to him convictions of felonies and crimes of moral turpitude. Scott asserts that these procedural facts present a conflict between the state's policy interest of protecting juvenile records as embodied in Code § 16.1-305 (providing for confidentiality of juvenile court records) and his right to effective cross-examination under the confrontation clause of the Sixth Amendment of the United States Constitution.
Scott relies primarily on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and Fulcher v. Commonwealth, 226 Va. 96, 306 S.E.2d 874 (1983). Scott's reliance on these cases is misplaced. In Davis, the Supreme Court held that "[t]he State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Davis, 415 U.S. at 320, 94 S.Ct. at 1112 (emphasis added). The Court in Davis clearly distinguished the introduction of evidence of a prior crime, a general attack on the credibility of a witness, from the introduction of evidence to show bias, prejudice or ulterior motive, a specific attack on the credibility of a witness.
In Fulcher, the Virginia Supreme Court, citing Davis, stated, without deciding the issue, that it would be error to restrict cross-examination to show bias by reference to juvenile charges still pending against the witness because that amounts to a specific attack, rather than a general attack, on the credibility of the witness. 226 Va. at 99, 306 S.E.2d at 876. The Fulcher Court referred without comment to its prior decision in Kiracofe v. Commonwealth, 198 Va. 833, 97 S.E.2d 14 (1957), where it held that refusal to permit cross-examination of a witness to show prior juvenile felony adjudication, a general attack on credibility, is proper.
In his motion for discovery, Scott sought Hale's "criminal record;" he received Hale's complete record including his prior juvenile assault adjudications. Subsequently, he sought permission to impeach Hale on cross-examination by referring to those juvenile adjudications which he asserted were, like misdemeanors involving moral turpitude, permissible grounds for impeachment. We conclude that Scott's reliance on Davis and Fulcher is misplaced because he was not attacking Hale's credibility on the grounds of bias. He was, rather, seeking to mount a general attack on his credibility by showing prior juvenile adjudications. Furthermore, as the Commonwealth noted, the right to cross-examination is a trial right; Scott, however, in fact did not assert that right by questioning Hale at trial concerning his juvenile assault adjudications, even though that evidence had been provided to him by the Commonwealth prior to trial and the trial court had not made a final ruling on its admissibility. For these reasons, we are not properly presented with the broad issue asserted by Scott on brief of where the line should be drawn between the state's policy interest in protecting the confidentiality of a juvenile offender's record embodied in Code § 16.1-305 and the constitutional right to effective cross-examination of such an adverse witness.
In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) the Supreme Court was presented factual circumstances which raised an issue more closely related to the broad issue asserted by Scott on brief in the present case. There, a father was charged with sexual offenses against his minor daughter and sought to subpoena the records of the protective service agency that had investigated these offenses and prior allegations of child abuse of her. The father hoped to find in those records a medical report, names of witnesses, and other unspecified exculpatory evidence. The agency refused to comply with the subpoena, claiming its records were confidential under a statute similar to Code § 16.1-305. The father contended that to deny him access to these records would deny his constitutional right to effective cross-examination. The Supreme Court held that the father had a due process, rather than a confrontation, right *777 to have the records of the agency turned over to the trial court for in-chambers review and release to him of material information for his defense. The Court further held that this right was limited to a review by the trial court and did not include and extend to a review by counsel for the father. Thus, a balance was reached between the accused's rights and the state's interest in protecting confidential records.
Unlike the circumstances in Ritchie, counsel for Scott sought the "criminal record" of Hale including his prior juvenile adjudications. Unlike the circumstances in Ritchie, Scott did not assert that Hale's prior juvenile adjudications or his prior adult convictions in any way involved Scott. Thus bias, prejudice or ulterior motive was not asserted and consequently justification for a review of the actual files of the juvenile court documenting those adjudications was not asserted. Scott received a list of those adjudications just as he received a list of Hale's adult convictions. He was fully advised of the recommendation for sentencing the Commonwealth would make concerning Hale's participation in the pending charges. We believe no more was required.
Accordingly, we hold only that on these facts the trial court did not err in adopting the procedure of requiring the Commonwealth to provide Hale's record of prior convictions which included his juvenile record.
VI.
Finally, we turn to Scott's challenge to his conviction of the attempted robbery of Bonnie Flett. He argues that his conviction was barred by the double jeopardy guarantee and that the evidence was insufficient.
In the context of his double jeopardy argument, Scott essentially contends that assuming an intent to rob was established by the Commonwealth's witnesses, that intent was to rob the manager or the one employee who happened to have possession of the daily proceeds of Arby's Restaurant; and thus there was only one attempted robbery rather than two. While not specifically stated, we assume that Scott contends for purposes of his double jeopardy claim that he has received multiple punishments for a single criminal act.
In Jordan v. Commonwealth, 2 Va.App. 590, 347 S.E.2d 152 (1986), we held: "Because the essential character of both Code § 18.2-58 and common-law robbery is violence against a person for the purpose of theft, ... the appropriate `unit of prosecution' is determined by the number of persons from whose possession property is taken separately by force or intimidation." Id. at 596, 347 S.E.2d at 156 (citation omitted). In Jordan, this Court found no double jeopardy bar where the Commonwealth's evidence showed that the defendant pointed a gun at two employees and obtained money belonging to their joint employer from each of them. We rejected the defendant's contention on those facts that only one robbery had occurred. In the context of a double jeopardy claim, we believe that the reasoning in Jordan is equally applicable to attempted robbery. Thus, we hold that where the facts establish an intent to rob either or both of two employees, and overt acts to accomplish that intent are inflicted on each of them, two separate attempts have occurred rather than one, even though the money sought belonged solely to their employer. Accordingly, under such facts, the imposition of separate sentences would not constitute multiple punishment for the "same offense."
Scott's challenge to the sufficiency of the evidence for his conviction of attempted robbery of Bonnie Flett is not resolved by our holding that no double jeopardy bar exists in this case. Under familiar principles, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The jury's verdict will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it. See Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987); Sutphin v. Commonwealth, 1 *778 Va.App. 241, 243, 337 S.E.2d 897, 898 (1985); Code § 8.01-680.
"[A]n attempt is composed of two elements: the intention to commit the crime, and the doing of some direct act towards [sic] its consummation which is more than mere preparation but falls short of execution of the ultimate purpose." Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E. 2d 212, 213 (1978). The Court also noted in Sizemore that "the question of what constitutes an attempt is often intricate and difficult to determine, and ... no general rule can be laid down which will serve as a test in all cases. Each case must be determined on its own facts." Id. at 985, 243 S.E.2d at 215.
The evidence in this case clearly establishes that Scott and Hale intended to "snatch" the night deposit bag containing the daily receipts of the Arby's Restaurant. Because Scott had previously been employed there he knew that the manager would customarily exit with the deposit bag. It was therefore a reasonable inference for the jury to conclude that Scott intended to rob the manager when he exited Arby's on this particular night and in fact Scott does not contest that in this appeal. It also is a reasonable inference that Scott's intent to rob was not limited to the manager but rather extended logically to any employee of Arby's in possession of the deposit bag at that particular time. Thus, had only one employee exited Arby's at that particular time, Scott's intent to rob and the act of assaulting that person would have constituted the attempt to rob.
The difficulty in this case, however, is that two employees exited Arby's and one was known by the robbers to be the manager. Thus, the reasonable inference is that the intent to rob focused entirely on the manager rather than on the other employee. In order to support the inference suggested by the Commonwealth that the intent to rob was not limited to the manager, the facts must exist to support a reasonable inference that the intent to rob extended to and included Flett. Flett's testimony in this regard is particularly critical. She testified that when her assailant grabbed and pulled her down, he immediately let her go when she exclaimed, "Let me go." The evidence indicates that this assailant was Hale. Flett further testified that "they never did make any sort of actual attempt to get any money other than coming up towards us." We must view that statement, not in the context of the actions taken against the manager, Horne, but specifically in the context of the actions taken against Flett. When coupled with the established intent to rob the manager, Horne, and the struggle between Horne and Scott occurring simultaneously, the act of grabbing Flett does not support an inference that there was an intent also to rob her or that the grabbing of her was an act intended to consummate a robbery of her. Her immediate release under circumstances in which she had been subdued contradicts such a conclusion. In addition, contrary to the assertion of the Commonwealth, the rationale of Jordan does not support a conclusion that two attempted robberies occurred in this case. In Jordan it was clear that there was an intent to rob coupled with an actual theft of money belonging to their employer from two employees. Here, the intent proved by the Commonwealth's evidence was the intent to rob Horne. Hale's act of grabbing Flett does not support an inference that this intent was somehow extended to Flett because she may have possessed some of her employer's money. In short, the evidence failed to establish that when Hale grabbed Flett he intended to take something of value from her rather than merely to prevent her from escaping or assisting Horne while the intended robbery of Horne which had commenced was consummated. Accordingly, Scott, while acting in concert with Hale, cannot be held criminally responsible for an act which did not constitute an attempted robbery.
We conclude that on the facts of this case the evidence does not support a conviction of attempted robbery of Flett. Accordingly, we reverse that conviction.
AFFIRMED IN PART AND REVERSED IN PART.
*779 COLEMAN, Judge, concurring in part and dissenting in part.
While I concur with all rulings of the majority except that the evidence is insufficient to support Scott's conviction of attempted robbery of Bonnie Flett, I am unable to agree with some reasons assigned for the majority's conclusions.
First, in Part V, I agree that the trial court did not err in ruling upon Scott's discovery request for "a copy of [Hale's] criminal record" when it directed that the Commonwealth's attorney provide Hale's record of prior criminal convictions, including juvenile adjudications of "not innocent." Scott's discovery request was expanded by an oral motion at the discovery hearing to permit defense counsel to personally review Hale's juvenile records. Although the request might be construed to seek more than criminal convictions, Scott does not contend that the "criminal record" he requested involved anything other than Hale's record of criminal convictions or the juvenile adjudications which the Commonwealth provided. Although on brief appellant states that permitting counsel access to juvenile records would be a "better rule... to determine the existence of any potential impeachment evidence," he does not contend that he was not provided with the requested "criminal record." Thus, Scott's sole complaint is that the procedure utilized by the trial court to obtain the requested discovery was not the best possible procedure. I agree that the procedure was within the discretion of the trial court, that the procedure was one of several avenues available to the trial court, and there is nothing of record to indicate abuse of discretion in the procedure utilized. There is no suggestion that all requested discoverable material was not provided.
Although the majority concludes that the procedure was proper, the majority opinion unnecessarily indulges in an analysis of why records of apparently nonexistent juvenile adjudications would be inadmissible evidence at trial as general impeachment evidence. The majority engages in this exercise apparently to enable it to rule that even if other adjudications could have been discovered had counsel been permitted to inspect the record, such adjudications would nevertheless have been inadmissible under the Davis v. Alaska and Fulcher v. Commonwealth analysis. Because I fail to see any issue relating to admissibility of evidence before us, I would merely hold that the trial court did not err in the procedure utilized to provide the discovery.
Had the appellant presented a due process challenge that discoverable evidence was withheld in violation of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), or Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or made a due process argument that the procedure did not enable the accused to obtain specific evidence, see Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), an inquiry into the materiality of the evidence, not the admissibility, would be appropriate. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). However, no due process challenge was raised.
Second, in regard to Scott's conviction of attempted robbery of Bonnie Flett, I dissent from the majority holding and would rule that the evidence was sufficient to support the conviction. "[W]hat inferences are to be drawn from proved facts is within the province of the jury and not the court so long as the inferences are reasonable and justified." Higginbotham v. Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975) (quoting LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)). We are constrained to affirm Scott's attempted robbery conviction unless it is plainly wrong or without evidence to support it. Code § 8.01-680; Sutphin v. Commonwealth, 1 Va.App. 241, 243, 337 S.E.2d 897, 898 (1985). In ruling that the robbers had no intent to rob Bonnie Flett, I believe the majority substitutes its view for a reasonable inference that the jury was entitled to draw. The majority discusses the conclusion which it deems most reasonable but fails to address whether the jury's conclusion that Scott and Hale intended to rob Flett was reasonable and therefore sufficient.
The jury concluded that Scott and/or Hale intended to rob Flett. The circumstances *780 support that deduction. The specific intent to commit a theft from the victim is a necessary element of attempted robbery. However, robbery is denominated as a crime against the person, not a property crime. Jordan v. Commonwealth, 2 Va.App. 590, 596, 347 S.E.2d 152, 156 (1986). Thus, an attempt to rob a person who has nothing of value is still an attempted robbery. The gravamen of the offense consists of "violence to the person" or "putting a person in fear," robbery or an attempt to commit robbery is more than aggravated larceny. Id. at 596, 347 S.E.2d at 155. However, mere violence against a person without the specific intent to take property from the actual or constructive possession of the victim is not robbery or attempted robbery. See Patterson v. Commonwealth, 222 Va. 653, 664, 283 S.E.2d 212, 219 (1981).
Viewed in the light most favorable to the Commonwealth, the evidence in this case was sufficient for the jury to conclude that the robbers laid in wait and intended to take the daily receipts from whichever employee had them, including Flett. When the two employees left the restaurant, the robbers accosted and physically assaulted both, killing the manager Horne. Violence or intimidation against either employee with an intent to take the receipts if either had them would constitute attempted robbery. The fact that the intent was conditioned upon whichever employee had the proceeds is of no consequence and does not negate an intent to rob Flett. The majority concedes: "It is also a reasonable inference that Scott's intent to rob was not limited to the manager but rather extended logically to any employee of Arby's in possession of the deposit bag at that particular time." Despite this concession, the majority concludes that the robbers did not intend to rob Flett because Hale released his hold on her, and because they knew that the manager would probably have the receipts and that Flett was not the manager. However, the jury could reasonably have concluded that Hale released her because he determined she did not have the receipts, because he changed his mind or became fearful or for other reasons which do not belie an intent to take the receipts from Flett if she had them. However, we need not speculate on why she was released. To do so diverts attention from the critical question of whether there was credible evidence from which the jury could infer an intent torob Flett.
To conclude that the facts did not permit the jury reasonably to infer that Scott intended to rob Bonnie Flett of the daily receipts if they were in her possession, in my view, impermissibly substitutes our finding of fact of Scott's intent for that of the jury.
Third, had I agreed with the majority that the evidence was insufficient to support the conviction for attempted robbery of Flett, I would have voted not to address the issue of whether the invalid conviction was barred by double jeopardy. Under the majority's holding that the evidence is insufficient to prove attempted robbery of Flett, a determination of the double jeopardy issue is not necessary. The majority opinion, in effect, holds that an invalid conviction was nevertheless not barred by another conviction on the ground of former jeopardy. However, since I disagree with the majority on the sufficiency issue, under my view the double jeopardy challenge must be addressed. I would sustain the trial court's ruling on the claim of double jeopardy based upon Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104 (1983), and Thomas v. Warden, 683 F.2d 83 (4th Cir.), cert. denied, 459 U.S. 1042, 103 S.Ct. 460, 74 L.Ed.2d 611 (1982).
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444 U.S. 335 (1980)
OHIO
v.
KENTUCKY.
No. 27, Orig.
Supreme Court of United States.
Argued December 3, 1979.
Decided January 21, 1980.
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER.
James M. Ringo, Assistant Attorney General of Kentucky, argued the cause for defendant. With him on the briefs were Robert F. Stephens, Attorney General, and George F. Rabe.
Michael R. Szolosi argued the cause for plaintiff. With him on the brief were William J. Brown, Attorney General of Ohio, Howard B. Abramoff, Assistant Attorney General, and Stephen C. Fitch.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The State of Ohio, in 1966, instituted this action, under the Court's original jurisdiction, against the Commonwealth of Kentucky. By its bill of complaint as initially filed, Ohio asked that the Court declare and establish that the boundary line between the two States is "the low water mark on the *336 northerly side of the Ohio River in the year 1792." Leave to file the bill of complaint was granted. 384 U. S. 982 (1966). In due course, Kentucky filed its answer and a Special Master was appointed. 385 U. S. 803 (1966). In its answer, Kentucky alleged that the boundary line is the current low-water mark on the northerly side of the Ohio River.
Ohio later moved for leave to file an amended complaint that would assert, primarily, that the boundary between Ohio and Kentucky is the middle of the Ohio River, and, only alternatively, is the 1792 low-water mark on the northerly shore. That motion was referred to the Special Master. 404 U. S. 933 (1971). The Special Master held a hearing and in due course filed his report recommending that Ohio's petition for leave to amend be denied. 406 U. S. 915 (1972). Upon the filing of Ohio's exceptions and Kentucky's reply, the matter was set for hearing. 409 U. S. 974 (1972). After argument, the Special Master's recommendation was adopted, Ohio's motion for leave to amend was denied, and the case was remanded. 410 U. S. 641 (1973).
The Honorable Robert Van Pelt, who by then had been appointed Special Master following the resignation of his predecessor, thereafter filed his report on the case as shaped by the original pleadings. That report was received and ordered filed. 439 U. S. 1123 (1979). Kentucky lodged exceptions to the report, and Ohio filed its reply. Oral argument followed.
The Special Master recommends that this Court determine that the boundary between Ohio and Kentucky "is the low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; that the boundary "is not the low-water mark on the northerly side of the Ohio River as it exists today"; and that such boundary, "as nearly as it can now be ascertained, be determined either a) by agreement of the parties, if reasonably possible, or b) by joint survey agreed upon by the parties," or, in the absence of such an agreement or *337 survey, after hearings conducted by the Special Master and the submission by him to this Court of proposed findings and conclusions. Report of Special Master 16.
We agree with the Special Master. Much of the history concerning Virginia's cession to the United States of lands "northwest of the river Ohio" was reviewed and set forth in the Court's opinion concerning Ohio's motion for leave to amend its 1966 complaint. 410 U. S., at 645-648. Upon the denial of Ohio's motion, the case was left in the posture that the boundary between the two States was the river's northerly low-water mark. The litigation, thus, presently centers on where that northerly low-water mark isis it the mark of 1792 when Kentucky was admitted to the Union, ch. IV, 1 Stat. 189, or is it a still more northerly mark due to the later damming of the river and the consequent rise of its waters?
It should be clear that the Ohio River between Kentucky and Ohio, or, indeed, between Kentucky and Indiana, is not the usual river boundary between States. It is not like the Missouri River between Iowa and Nebraska, see, e. g., Nebraska v. Iowa, 143 U. S. 359 (1892), or the Mississippi River between Arkansas and Mississippi. See Mississippi v. Arkansas, 415 U. S. 289 (1974), and 415 U. S. 302 (1974). See also Iowa v. Illinois, 147 U. S. 1 (1893); Missouri v. Nebraska, 196 U. S. 23 (1904); Minnesota v. Wisconsin, 252 U. S. 273 (1920); New Jersey v. Delaware, 291 U. S. 361 (1934); Arkansas v. Tennessee, 310 U. S. 563 (1940). In these customary situations the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river have full application.
A river boundary situation, however, depending upon historical factors, may well differ from that customary situation. See, for example, Texas v. Louisiana, 410 U. S. 702 (1973), where the Court was concerned with the Sabine River, Lake, and Pass. And in the Kentucky-Ohio and Kentucky-Indiana boundary situation, it is indeed different. Here the boundary *338 is not the Ohio River just as a boundary river, but is the northerly edge, with originally Virginia and later Kentucky entitled to the river's expanse. This is consistently borne out by, among other documents, the 1781 Resolution of Virginia's General Assembly for the cession to the United States ("the lands northwest of the river Ohio"), 10 W. Hening, Laws of Virginia 564 (1822); the Virginia Act of 1783 ("the territory. . . to the north-west of the river Ohio"), 11 W. Hening, Laws of Virginia 326, 327 (1823); and the deed from Virginia to the United States ("the territory . . . to the northwest of the river Ohio") accepted by the Continental Congress on March 1, 1784, 1 Laws of the United States 472, 474 (B. & D. ed. 1815). The Court acknowledged this through Mr. Chief Justice Marshall's familiar pronouncement with respect to the Ohio River in Handly's Lessee v. Anthony, 5 Wheat. 374, 379 (1820):
"When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. The river, however, is its boundary."
The dissent concedes as much. Post, at 342. The dissent then, however, would be persuaded by whatever is "the current low-water mark on the northern shore." Post, at 343. But it is far too late in the day to equate the Ohio with the Missouri, with the Mississippi, or with any other boundary river that does not have the historical antecedents possessed by the Ohio, antecedents that fix the boundary not as the river itself, but as its northerly bank. Handly's Lessee, in our view, supports Ohio's position, not the dissent's. If there could be any doubt about this, it surely was dispelled completely when the Court decided Indiana v. Kentucky, 136 U. S. 479 (1890). *339 There Mr. Justice Field, speaking for a unanimous Court, said:
"[Kentucky] succeeded to the ancient right and possession of Virginia, and they could not be affected by any subsequent change of the Ohio River, or by the fact that the channel in which that river once ran is now filled up from a variety of causes, natural and artificial, so that parties can pass on dry land from the tract in controversy to the State of Indiana. Its water might so depart from its ancient channel as to leave on the opposite side of the river entire counties of Kentucky, and the principle upon which her jurisdiction would then be determined is precisely that which must control in this case. Missouri v. Kentucky, 11 Wall. 395, 401. Her dominion and jurisdiction continue as they existed at the time she was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river.
.....
"Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filed." Id., at 508, 518-519.
The fact that Indiana v. Kentucky concerned a portion of the Ohio River in its Indiana-Kentucky segment, rather than a portion in its Ohio-Kentucky segment, is of no possible legal consequence; the applicable principles are the same, and the holding in Indiana v. Kentucky has pertinent application and is controlling precedent here. The Court's flat pronouncements in Indiana v. Kentucky are not to be rationalized away so readily as the dissent, post, at 343-345, would have *340 them cast aside. Kentucky's present contentions, and those of the dissent, were rejected by this Court 90 years ago.
We are not disturbed by the fact that boundary matters between Ohio and Kentucky by the Court's holding today will turn on the 1792 low-water mark of the river. Locating that line, of course, may be difficult, and utilization of a current, and changing, mark might well be more convenient. But knowledgeable surveyors, as the Special Master's report intimates, have the ability to perform this task. Like difficulties have not dissuaded the Court from concluding that locations specified many decades ago are proper and definitive boundaries. See, e. g., Utah v. United States, 420 U. S. 304 (1975), and 427 U. S. 461 (1976); New Hampshire v. Maine, 426 U. S. 363 (1976), and 434 U. S. 1 (1977). The dissent's concern about the possibility, surely extremely remote, that the comparatively stable Ohio River might "pass completely out of Kentucky's borders," post, at 343, is of little weight. Situations where land of one State comes to be on the "wrong" side of its boundary river are not uncommon. See Wilson v. Omaha Indian Tribe, 442 U. S. 653 (1979); Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 369, n. 5 (1978); Missouri v. Nebraska, 196 U. S. 23 (1904).
Finally, it is of no little interest that Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary. Informational Bulletin No. 93 (1972), issued by the Legislative Research Commission of the Kentucky General Assembly, states:
"Kentucky's North and West boundary, to-wit, the low water mark on the North shore of the Ohio River as of 1792, has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia." Id., at 3.
See also the opinion of the Attorney General of Kentucky, OAG 63-847, contained in Kentucky Attorney General Opinions 1960-1964. See also Perks v. McCracken, 169 Ky. 590, *341 184 S. W. 891 (1916), where the court stated that the question in the case was "where was the low water mark at the time Kentucky became a State."
The exceptions of the Commonwealth of Kentucky to the report of the Special Master are overruled. The report is hereby adopted, and the case is remanded to the Special Master so that with the cooperation of the parties he may prepare and submit to the Court an appropriate form of decree.
MR. JUSTICE POWELL, with whom MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST join, dissenting.
The Court today holds that the present boundary between Ohio and Kentucky is the low-water mark of the northern shore of the Ohio River when Kentucky was admitted to the Union in 1792. This curious result frustrates the terms of the Virginia Cession of 1784 that first established the Ohio-Kentucky border, ignores Mr. Chief Justice Marshall's construction of that grant in Handly's Lessee v. Anthony, 5 Wheat. 374 (1820), is contrary to common-law rules of riparian boundaries, and creates a largely unidentifiable border. Accordingly, I dissent.
I
In 1784, the Commonwealth of Virginia ceded to the United States all of its territory "to the northwest of the river Ohio." 1 Laws of the United States 472, 474 ( B. & D. ed. 1815). As this Court recently observed, the border question "`depends chiefly on the land law of Virginia, and on the cession made by that State to the United States.'" Ohio v. Kentucky, 410 U. S. 641, 645 (1973), quoting Handly's Lessee v. Anthony, supra, at 376. The 1784 Cession was construed definitively in Handly's Lessee, a case involving a dispute over land that was connected to Indiana when the Ohio River was low, but which was separated from Indiana when the water was high. The Court held that since the 1784 Cession required that the river remain within Kentucky, the proper *342 border was the low-water mark on the northern or northwestern shore. Consequently, the land in issue belonged to Indiana.
Mr. Chief Justice Marshall, writing for the Court, pointed out that Virginia originally held the land that became both Indiana and Kentucky. Under the terms of the Virginia Cession, he stated: "These States, then, are to have the [Ohio] river itself, wherever that may be, for their boundary." 5 Wheat., at 379 (emphasis supplied). The Chief Justice found support for that conclusion in the original Cession:
"[W]hen, as in this case, one State [Virginia] is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State [Indiana] extends to the river only. The river, however, is its boundary." Ibid.
Such a riparian border, the Chief Justice emphasized, cannot be stationary over time. He wrote: "Any gradual accretion of land, then, on the Indiana side of the Ohio, would belong to Indiana. . . ." Id., at 380. This rule avoids the "inconvenience" of having a strip of land belonging to one State between another State and the river.
"Wherever the river is a boundary between States, it is the main, the permanent river, which constitutes that boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low water mark." Id., at 380-381.
Because the boundary between Ohio and Kentucky was established by the same events that drew the line between Indiana and Kentucky, the holding in Handly's Lessee should control this case.[1] The Ohio River must remain the border between the States and within the domain of Kentucky. The *343 only way to ensure this result is to recognize the current low-water mark on the northern shore as the boundary.
The approach taken by the Court today defeats the express terms of the Virginia Cession and ignores the explicit language of Mr. Chief Justice Marshall in Handly's Lessee.[2] The Court's holding that the boundary forever remains where the low-water mark on the northern shore of the river was in 1792, regardless of the river's movements over time, may produce bizarre results. If erosion and accretion were to shift the river to the north of the 1792 low-water mark, today's ruling would place the river entirely within the State of Ohio. The river would thus pass completely out of Kentucky's borders despite the holding in Handly's Lessee that the Ohio "[R]iver itself, wherever that may be, [is the] boundary." Id., at 379. The river would not be the boundary between the two States nor would Kentucky as successor to Virginia "retai[n] the river within its own domain" as Mr. Chief Justice Marshall declared that it must. Ibid. Similarly, if the river were to move to the south of the 1792 line, Ohio would be denied a shore on the river. Sensible people could not have intended such results, which not only would violate the plain language of the 1784 Cession, but also would mock the congressional resolution accepting Ohio into the Union as a State "bounded . . . on the South by the Ohio [R]iver." Ch. XL, 2 Stat. 173.
II
The Court, like the Special Master, disregards the teaching of Handly's Lessee. Instead, the Court relies heavily on the *344 decision in Indiana v. Kentucky, 136 U. S. 479 (1890), where Mr. Justice Field wrote that with respect to Kentucky's northern border, the State's "dominion and jurisdiction continue as they existed at the time she was admitted into the Union [1792], unaffected by the action of the forces of nature upon the course of the river." Id., at 508; ante, at 339. Kentucky argues, with some force, that the Court in 1890 found no change from the 1792 boundary because that case concerned the abandonment of a channel by the river, the sort of avulsive change in course that ordinarily does not alter riparian boundaries. There is no sign of an avulsive change in the length of the Ohio River at issue in this case. Moreover, Indiana v. Kentucky went on to find that Indiana had acquiesced in Kentucky's prescription of the land at issue. There has been no showing before us that Kentucky has acquiesced to Ohio's claim that the 1792 low-water mark establishes the entire boundary between the two States. See n. 3, infra. Absent such a showing, I do not believe the holding in Indiana v. Kentucky should be applied here.
In any event, the force of Mr. Justice Field's opinion as a precedent may be questioned on its face. The decision cannot be reconciled with Handly's Lessee or with any normal or practical construction of Virginia's Cession in 1784. Indeed, the Court's opinion is essentially devoid of reasoning. After reproducing the passages in Handly's Lessee that establish that Kentucky must retain jurisdiction over the river, Mr. Justice Field states abruptly that, nevertheless, the boundary should be set at the low-water mark "when Kentucky became a State." 136 U. S., at 508. Mr. Justice Field apparently was unaware that, in effect, he was overruling the case on which he purported to rely. His conclusion is based simply on the startling view that when Kentucky "succeeded to the ancient right and possession of Virginia" in 1792, the new State received a boundary that "could not be affected by any subsequent change of the Ohio River." *345 Ibid. The opinion offers no further explanation for its holding.
Of course, Kentucky did succeed to Virginia's rights in 1792. After the Cession of 1784, Virginia was entitled to have the river within its jurisdiction and to have the northern low-water mark as the boundary between it and that part of the Northwest Territory that became Ohio and Indiana. Kentucky's entry into the Union could not, without more, replace those rights with the immutable boundary found by Mr. Justice Field. Neither Mr. Justice Field in 1890 nor the State of Ohio in this litigation pointed to any suggestion by Congress in 1792 that it intended such a result.
III
Today's decision also contravenes the common law of riparian boundaries. In a dispute over the line between Arkansas and Tennessee along the Mississippi River, this Court noted:
"[W]here running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream." Arkansas v. Tennessee, 246 U. S. 158, 173 (1918).
See Bonelli Cattle Co. v. Arizona, 414 U. S. 313 (1973). This rule has an intensely practical basis, since it is exceedingly difficult to establish where a river flowed many years ago. Physical evidence of the river's path is almost certain to wash away over time, and documentary evidence either may not survive or may not be reliable.
The Court suggests that the Ohio-Kentucky boundary should not be determined by reference to previous river boundary decisions because the border in this case is not "the river itself, but . . . its northerly bank." Ante, at 338. This *346 contention contradicts Mr. Chief Justice Marshall's statement, quoted by the Court, that with respect to Kentucky's northern border, "`[t]he river, however, is its boundary.'" Ibid. In addition, the Court does not explain why established principles of riparian law are inapplicable simply because the northern low-water mark, not the center of the river, is the boundary. Since both lines shift over time, it is only sensible to adopt the common-law view that borders defined by those lines will move with them.[3]
IV
Following today's decision, all boundary matters between Ohio and Kentucky will turn on the location almost 200 years *347 ago of the northern low-water mark of the Ohio River. This cumbersome and uncertain outcome might be justified if it were dictated by unambiguous language in the Virginia Cession. But since the Court's decision is not only unworkable but also does violence to that deed as it has been construed by this Court, I cannot agree with its ruling today.
NOTES
[1] Both parties to this litigation agree that the boundary between Kentucky and Ohio is controlled by the same legal and historical considerations that define the boundary between Indiana and Kentucky.
[2] Mr. Chief Justice Marshall, the author of Handly's Lessee, would seem a particularly reliable interpreter of the 1784 Cession. The Chief Justice was not only a practicing lawyer in Richmond in 1783 and 1784, but also served as a member of the General Assembly of Virginia that approved the Cession. 1 A. Beveridge, The Life of John Marshall 202-241 (1919).
[3] The Court seeks support for today's decision from a recent statement by the Legislative Research Committee of the Kentucky General Assembly and a 1963 opinion of the Kentucky Attorney General. Ante, at 340. Although both documents refer to the 1792 low-water mark as the proper boundary, they are hardly authoritative pronouncements that should control our outcome. Indeed, other legislative and judicial statements refer to the northern low-water mark without any mention of the 1792 line. See 57 Stat. 248 (interstate Compact between Indiana and Kentucky defining the boundary as the "low-water mark of the right side of the Ohio River"); Commonwealth v. Henderson County, 371 S. W. 2d 27, 29 (Ky. App. 1963) (Kentucky's boundary is "north or northwest low watermark of the Ohio River"); Louisville Sand & Gravel Co. v. Ralston, 266 S. W. 2d 119, 121 (Ky. App. 1954) ("`our state boundary is along the north bank of the Ohio river at low-water mark,'" quoting Willis v. Boyd, 224 Ky. 732, 735, 7 S. W. 2d 216, 218 (1928)).
Under the doctrine of prescription and acquiescence, it may be proved that one party has recognized through its actions a riparian boundary claimed by another party. See Michigan v. Wisconsin, 270 U. S. 295, 308 (1926). That question, however, is one of fact. The Special Master did not request evidence from the parties on this issue, so it is not properly before us now. We cannot decide such a question on the basis of particular shards of evidence that may come to our attention. In view of the conflicting evidence on the claim of prescription and acquiescence, the correct course would be to return this litigation to the Special Master for findings of fact on that question.
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481 F.2d 1400
Zurzolav.Mutchnick
72-1501, 72-1502
UNITED STATES COURT OF APPEALS Third Circuit
7/25/73
E.D.Pa., 341 F.Supp. 767
AFFIRMED
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-6-2006
Citifinancial v. Gimbi
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5052
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Citifinancial v. Gimbi" (2006). 2006 Decisions. Paper 947.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/947
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5052
___________
CITIFINANCIAL
v.
CLARISSA GIMBI,
Appellant
_____________________
Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil No. 05-cv-1230)
District Judge: Honorable Thomas I. Vanaskie
________________________
Submitted Under Third Circuit LAR 34.1(a)
May 12, 2006
Before: RENDELL, AMBRO and *ROTH, Circuit Judges.
(Filed June 6, 2006)
________________
OPINION OF THE COURT
________________
PER CURIAM
Clarissa Gimbi appeals the District Court’s order granting appellee CitiFinancial’s
*Effective May 31, 2006 Judge Roth assumed senior status.
motion to dismiss or remand. The procedural history of this case is well-known to the
parties, set forth in the District Court’s opinion, and need not be discussed at length.
Briefly, appellee filed an action against Gimbi in state court. After judgment was entered
against her, Gimbi filed a notice of removal in the District Court for the Middle District
of Pennsylvania. The District Court found that it did not have subject-matter jurisdiction
and dismissed the action. Gimbi filed a timely notice of appeal.
Appellee argues that we lack jurisdiction over the appeal because an order
remanding a case to the state court from which it was removed is generally not
appealable. 28 U.S.C. § 1447(d). However, here the District Court did not remand the
case; it dismissed the action. Appellee cites to Com. of Pa. ex rel. Gittman v. Gittman,
451 F.2d 155 (3d Cir. 1971), to support its argument that such a dismissal is also not
appealable. However, in Gittman, we did not dismiss the appeal for lack of jurisdiction;
rather, we affirmed the District Court’s decision that the appellant had not made out a
case for removal pursuant to § 1443. Moreover, we noted that although the District Court
stated that the petition to remove the case was denied, we deemed that the effect of the
order was to remand the case to the state court. Id. at 157. Here, however, the District
Court explicitly chose to dismiss the case instead of remanding it. Thus, we conclude that
we have jurisdiction over the appeal.
For the reasons given by the District Court, we agree that removal was improper.
The District Court determined that there was no state court to which to remand the matter
2
because Gimbi had not appealed the judgment of the Magistrate Court to the Court of
Common Pleas. However, we believe the better course is to remand the case rather than
dismiss it. See Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 214 (3d Cir.
1997)(“[W]hen a federal court has no jurisdiction of a case removed from a state court, it
must remand and not dismiss on the ground of futility.”)
Accordingly, we will vacate the District Court’s order and remand the matter with
instructions to remand the case to the state court from which it was removed.
3
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57 F.3d 1071NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,v.Craig B. PRINCE, Defendant-Appellant.
No. 94-4118.
United States Court of Appeals, Sixth Circuit.
June 13, 1995.
Before BROWN, KENNEDY, and NORRIS, Circuit Judges.
PER CURIAM.
1
The Defendant, Craig Prince, was arrested during the execution of an anticipatory search warrant conditioned upon a controlled delivery of a package containing cocaine. A federal grand jury indicted Prince on two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841 and 846, and 18 U.S.C. Sec. 2. Prince moved to suppress the evidence, challenging the validity of the warrant. Following the district court's denial of the motion, Prince entered a conditional plea of guilty on the second count, and now appeals. For the following reasons, we AFFIRM.
I.
2
On April 13, 1994, a package was mailed through Federal Express from Rialto, California to a "Kieth [sic] Brown" at 17306 Wayne, Cleveland, Ohio. The Fed Ex employee at the sending station became suspicious of both the sender and the package, and therefore, placed a request for the package to be inspected by Fed Ex's security department. The package was sent to the security office in Memphis and subsequently opened and weighed pursuant to company policy. The package contained, among other things, four individual packages of a white powdery substance. The security officers contacted Detective Kwane Morris from the Drug Enforcement Administration who field-tested the white substance and determined that the substance was cocaine. Morris then sent the parcel to Detective Debra Harrison in Cleveland, Ohio.
3
Harrison determined, after an investigation, that the parcel was mailed to a fictitious name, and that Prince was the actual occupant of the premises to which the package was addressed. Harrison replaced some of the cocaine in the individual packages with detergent and resealed the parcel. Harrison then proceeded with a plan to make a controlled delivery, obtaining an anticipatory search warrant from federal magistrate judge David Perelman. It was Harrison's plan to "deliver" the parcel to the described residence, allow the addressee to open and inspect its contents, and then conduct a search to retrieve the parcel and any other relevant evidence.
4
The warrant issued on April 13th stated in pertinent part:
5
Affidavit(s) having been made before me by DEBRA HARRISON who has reason to believe that on the premises known as 17306 Wayne Drive, Cleveland, Ohio, Cuyahoga County, In the Northern District of Ohio. There is concealed COCAINE, and other narcotic drugs and/or other paraphernalia used in the taking of drugs and/or preparation [sic] of illegal drugs for sale, use or shipment, records of illegal transactions, articles of personal property, papers and documents tending to establish the identity of persons in control of the premises....
The attached affidavit provided in part:
6
F. On April 14, 1994, Special Agents of the Drug Enforcement Administration and members of the Drug Enforcement Administration Task Force plan to deliver the package to the addressee, located at 17306 Wayne Drive, Cleveland, Ohio. An agent will pose as a Federal Express Employee, and make delivery.
7
G. Your Affiant [Harrison] will wait a reasonable period of time to allow the addressee to open the package and examine the contents. This search warrant will be executed and the package and controlled substance will be retrieved.
8
On April 14, the next day, a federal agent posing as a deliveryman for Fed Ex delivered the parcel to the Prince home. Prince received and signed for the package. A short time after completing the delivery of the package, the officers, according to the plan, entered the premises, executed the search warrant, and arrested Prince.
9
In May 1994, a federal grand jury indicted Prince, charging him with possession with intent to distribute cocaine (4 kilograms) in violation of 21 U.S.C. Secs. 841 and 846, and 18 U.S.C. Sec. 2. In June 1994, Prince filed a motion to suppress the evidence. He contended that the search warrant was ambiguous and therefore fatally defective because it lacked the specificity and clarity required by law. The government argued that the warrant was valid inasmuch as the Harrison affidavit attached to the warrant provided the necessary specificity and particularity for the warrant. The district court held an evidentiary hearing, and issued an order denying Prince's motion to suppress. On August 9, 1994, Prince entered a conditional plea of guilty to Count two of the indictment and was sentenced to 70 months incarceration. Prince now appeals, challenging the denial of his motion to suppress.
II.
10
Anticipatory search warrants are peculiar to property in transit. Such warrants--warrants that are issued in advance of the receipt of particular property at the premises designated in the warrant--are not unconstitutional per se. United States v. Lawson, 999 F.2d 985 (6th Cir.), cert. denied, 114 S.Ct. 574 (1993). However, in issuing an anticipatory search warrant, "the magistrate must set conditions ... that are 'explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents.' " United States v. Ricciardelli, 998 F.2d 8, 12 (1st Cir.1993). There are two particular situations in which the anticipatory warrant must restrict the discretion of government agents. First, the warrant must ensure that "the triggering event is both ascertainable and preordained." Id. Second, "the contraband must be on a sure and irreversible course to its destination, and a future search of the destination must be made expressly contingent upon the contraband's arrival there." Id.
11
On appeal, Prince argues that the language in the search warrant creates fatal errors that make the warrant invalid. Specifically, Prince first argues that the language in the warrant is conflicting and ambiguous, and therefore, leaves too much discretion to the executing officers. Prince contends that the language in the April 13 warrant--"There is concealed cocaine"--intimates that probable cause exists on the 13th, versus the "anticipatory" language that the search warrant is valid on the 14th after the controlled delivery has taken place. Prince alternatively argues that the warrant failed to define the triggering event for the search.
12
Prince's claims are without merit. First, it is clear that the triggering event was the controlled delivery of the package. Although it is preferable that the warrant be as specific as possible, the fact that the warrant does not expressly make such a statement does not render the warrant void. See United States v. Rey, 923 F.2d 1217, 1221 (6th Cir.1991) ("A reasonable inference can be made that the warrant authorizes a search only after the controlled delivery has occurred. If the controlled delivery had not occurred, then the warrant would have been void."). An anticipatory warrant is nevertheless valid even though it does not state on its face the conditions precedent for its execution, so long as "1) 'clear, explicit and narrowly drawn' conditions for the execution of the warrant are contained in the affidavit that applies for the warrant application, and 2) those conditions are actually satisfied before the warrant is executed." United States v. Moetamedi, 46 F.3d 225, 229 (2nd Cir.1995).
13
These requirements were satisfied in the instant case. The warrant specifically stated that there was to be a controlled delivery on April 14th. The affidavit dictated that the officers "will wait a reasonable period of time to allow the addressee to open the package and examine the contents." Testimony from Detective Harrison also made it clear that if the package had not been successfully delivered the search warrant would not, and could not, have been executed. Thus, the warrant and affidavit state clear and precise conditions for the execution of the warrant, and these conditions were satisfied on the successful controlled delivery of the package at the location identified in the warrant--the Prince residence. See United States v. Washington, 852 F.2d 803, 804-05 (4th Cir.), cert. denied, 488 U.S. 974 (1988). We therefore find that the district court was correct in denying Prince's motion to suppress. We AFFIRM.
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952 F.2d 408
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Carlos RODRIGUEZ GONZALEZ, Defendant-Appellant.
No. 91-30158.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 7, 1992*Decided Jan. 9, 1992.
Before EUGENE A. WRIGHT, WILLIAM A. NORRIS, and CYNTHIA HOLCOMB HALL, Circuit Judges.
1
MEMORANDUM**
2
Although the government may have waived its right to appeal the miscomputed sentencing range on appeal, United States v. Turner, 898 F.2d 705, 711 (9th Cir.), cert. denied, 110 S.Ct. 2574 (1990), the district court did not forfeit its discretion to correct the error at resentencing. See McDaniel v. Arizona, 921 F.2d 966, 967 (9th Cir.1990) (collateral estoppel inapplicable to resentencing after appeal), cert. denied, 111 S.Ct. 1426 (1991).
3
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 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 Ninth Circuit Rule 36-3
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208 F.2d 218
MORALES et al.v.MOORE-McCORMACK LINES, Inc.
No. 14474.
United States Court of Appeals Fifth Circuit.
December 9, 1953.
Milton Schwartz, Houston, Tex., for appellants.
M. L. Cook, Royston & Rayzor, Houston, Tex., for appellees.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
HUTCHESON, Chief Judge.
1
Appellants on October 31, 1952, approximately two years and six months after their claimed cause of action arose, filed this libel for injuries resulting to them from the alleged negligence of the respondent in permitting poisonous fumigans in excessive quantities to exist in a cargo of grain which libellants, as longshoremen, had been employed to trim.
2
The respondent, excepting to the libel on the ground that it showed on its face that the Texas Statute of Limitations applicable to their cause of action had barred their suit at law and that no exceptional circumstances to prevent the application of the doctrine of laches were alleged in the libel or are existing in the case moved to dismiss it for laches.
3
The district judge invited briefs, and full briefs were filed, libellants in their brief carefully setting out the facts upon which, though not alleged by them, they relied to rebut the showing of laches made by the libel.
4
Thereafter, the district judge, one of the ablest and most experienced of admiralty judges, in the exercise of a wise and informed discretion, matured over the nearly quarter of a century in which he has presided as judge, in a carefully considered and well supported opinion.1 determined that the exception was well taken and that the action should be dismissed. In the course of it he considered as though they had been alleged in the libel the facts set out in libellants' brief and, assessing them, found them wanting.
5
Agreeing as we do both with the result and with the supporting reasons given for it in the opinion, we will content ourselves with stating our approval of the views therein expressed and with adding briefly to them by referring to authorities not cited in the opinion, and quoting from some of them.
6
The rule correctly applied in this case received its first clear cut announcement in this circuit in McGrath v. Panama Ry. Co., 5 Cir., 298 F. 303, 304. Since the facts here are closely analogous to those in that case, we quote from it:
7
"* * * Courts of admiralty are not, however, bound by commonlaw limitations, but adopt them by analogy, unless equitable reasons exist for not doing so. In the case of a libel in personam for the recovery of damages for personal injuries, the reason for following the limitations of the common law in courts of admiralty is emphasized by reason of there being preserved to the libelant in such a case the right to sue at common law, as well as in admiralty. In the event the libelant sued at common law, the statute of limitations would bar a recovery. It would be inconsistent to permit him to sue in admiralty, with the same effect as at common law (as is true in the case of a libel in personam), after his right to sue at common law had become barred.
8
"The appellant suggests that no injury is shown to have been done to the appellee by the delay in filing the libel. Injury is presumed from the statutory period of limitation in common-law actions, and, when equity adopts the statutory period, it adopts along with it the presumption of injury, until the contrary is shown. The appellant relies also upon erroneous advice given her by her counsel in Panama as to the applicable statute of limitations, namely the statute of three years under the Code of Colombia, as being a circumstance that would make it in-inequitable for a court of inquiry to follow the common-law limitation. In view of the fact that the limitation of one year was prescribed by the Canal Zone Code of Civil Procedure, we do not think that the mistake of counsel was sufficient to justify a court of admiralty in departing from the analogy of the statutory limitation."
9
In Gardner v. Panama Railroad Co., the district judge, on the authority of the McGrath case, sustained the defense of laches and dismissed the libel, and we affirmed in 185 F.2d 730, 731. The Supreme Court,2 reversed and sent the cause back for trial, and, in a per curiam opinion, after stating the correct rule:
10
"Though the existence of laches is a question primarily addressed to the discretion of the trial court, the matter should not be determined merely by a reference to and a mechanical application of the statute of limitations. The equities of the parties must be considered as well. Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. The Key City, 1872, 14 Wall. 653, 20 L.Ed. 896; Southern Pacific Co. v. v. Bogert, 1919, 250 U.S. 483, 39 S. Ct. 533, 63 L.Ed. 1099; Holmberg v. Armbrecht, 1946, 327 U.S. 392, 66 S. Ct. 582, 90 L.Ed. 743; see McGrath v. Panama R. Co., 5 Cir., 1924, 298 F. 303, 304." (Emphasis supplied.)
11
thus applied it to the undisputed facts:
12
"Petitioner has diligently sought redress in this case. Twice within the year following her injuries she brought suit. The second action abated through an Act of Congress and not through any fault of her own. There is no showing that respondent's position has suffered from the fact that the claim has not yet proceeded to trial on its merits."
13
In this case, though the district judge did not cite or quote from the opinion in the Gardner case, he faithfully conformed to and carried out the ruling there laid down in spirit as well as in letter. Giving full consideration, as though they had been pleaded by them, to appellants' statement in their brief of the facts upon which they relied to excuse the failure to bring the action, the district judge correctly concluded that these facts did not excuse the delay.
14
Here the appellants in direct contradiction of the rule invoked by them in their trial brief, that persons claiming excuse for delay must show that they exercised the diligence required of reasonably prudent persons, Aetna Cas. Co. v. Rhine, 5 Cir., 152 F.2d 368, Pacific Employers Ins. Co. v. Oberlechner, 5 Cir., 161 F.2d 180, claim special consideration on the ground that being ignorant and unlettered persons, a different standard should apply in their case. Their only excuse for delay in filing suit is that they did not appreciate the lingering effects of their illness and that they did not appreciate their legal right to bring a third party action for negligence.
15
While, when they took their first harm, they may not have known fully the effect it would have upon them, they did know that they had been injured, they did receive compensation for their injuries, and later they knew that the effects were recurring.
16
Under circumstances of this kind, they were required to proceed with the diligence of an ordinarily prudent person, and the district judge correctly concluded that they had failed to do so.
17
As to their claim of ignorance of their legal right to sue a third party, the steamship lines which had contracted with their employer, we know of no principle which enables persons to plead, not excusable ignorance of facts, but of the law which accorded them the right to sue.
18
This claim is particularly specious here in view of the fact that a suit having wide publicity had been brought against the City of Galveston by many longshoremen claiming injuries from poisonous fumigants while loading other ships, and included in the claimants in that suit were three of the libellants in this one.
19
In addition to these considerations is the fact, which the judge found, that they were informed by their counsel of their right to sue, some months before they brought the action, and they still delayed.
20
It will not do, as appellants seem to insist they may, to claim that under this showing of negligent delay, the burden of showing prejudice in fact was upon the respondent. It is settled law: that in situations of this kind, where the libel shows on its face that it is barred by laches, prejudice to the respondent is presumed until the contrary is made to appear; that it is incumbent on the libellant to show facts excusing the delay; and that the libellant has the burden of rebutting the presumption3 of prejudice.
21
Of appellant's claim that, though no leave was asked to amend the libel, this court, if it affirms the judgment, should order that the affirmance be without prejudice to filing an amended libel within a time to be fixed by the district judge, we find it sufficient to point to the fact that the district judge did not dismiss the libel on the exception alone without affording appellants an opportunity to state the reasons excusing their delay. On the contrary, he accepted for the purpose of his judgment the facts stated by libellants in their brief and there could be no point in permitting libellants to amend in order to allege in their libel the very same matters which the district judge, in the exercise of his informed discretion, has correctly held were not grounds for excuse.
22
We add only this further, upon the matter of prejudice, that in a suit of this kind, brought upon allegations of the existence, on a certain day and date more than two and a half years before, of dangerous fumigants in the hold of a vessel, it would be much more difficult for the respondent to prepare its defense with effectiveness than would have been the case if the claim had been timely made and suit timely brought, or, even if suit had not been timely brought, a claim had been timely made and pressed.
23
We find no abuse of discretion on the part of the district judge in dismissing the libel. On the contrary, we find that in dismissing it, the district judge exercised a wise and informed discretion.
24
The order dismissing the libel is, therefore, affirmed.
Notes:
1
Morales v. Moore McCormack, 109 F.Supp. 585
2
Gardner v. Panama R. R. Co., 342 U.S. 29, 72 S.Ct. 12, 13, 96 L.Ed. 31
3
Redman v. United States, 2 Cir., 176 F.2d 713; Kane v. Union of Soviet Socialist Republics, D.C., 89 F.Supp. 435; The Sydfold, 2 Cir., 86 F.2d 611
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10 S.W.3d 610 (2000)
Betty ROTHERMICH, Personal Representative of the Estate of Kenneth J. Rothermich, Respondent,
v.
UNION PLANTERS NATIONAL BANK, Appellant.
No. ED 75373.
Missouri Court of Appeals, Eastern District, Division Five.
February 8, 2000.
*612 Robert H. Brownlee, Robert W. Phillips, Thompson Coburn, LLP, St. Louis, for appellant.
Edward C. Ahlheim, Ahlheim & Dorsey, St. Charles, for respondent.
OPINION
CRAHAN, Judge.
Union Planters National Bank ("Bank") appeals from a judgment entered by the trial court pursuant to stipulated facts submitted by the parties on the issue of whether certain automatic pinsetting machines ("pinspotters") installed at a bowling alley constituted fixtures or personal property. Bank asserts the court misapplied the law when it found that the pinspotters were fixtures secured by the provisions of Kenneth Rothermich's deed of trust and as such, had priority over Bank's UCC personal property security interest. We agree and reverse the judgment of the trial court.
Kenneth Rothermich ("Rothermich")[1] and Herman Toebben owned St. Charles Bowling Lanes, Inc. ("St. Charles Bowl"), a company which owned and operated a bowling alley in St. Charles, Missouri. Rothermich and Herman Toebben operated St. Charles Bowl from the early 1960's, when the building housing the lanes was constructed, through 1987, when the business was ultimately sold.
In January 1972, after St. Charles Bowl had been in business as a bowling alley for several years, St. Charles Bowl entered into a lease agreement with AMF, Inc. ("AMF") for the installation of pinspotters in the building. The pinspotters were manufactured in three pieces and assembled inside the bowling alley. They were placed in the step-down portion of the alley lane that was re-designed to accommodate them, and screwed, bolted and riveted to the concrete floor.
The lease agreement between AMF and St. Charles Bowl, signed by Rothermich in his corporate capacity, provided for a lease term of 12½ years and recited, in part:
Upon any termination of this agreement, AMF shall immediately have the right to possession of the machines and AMF may enter upon the premises where the machines are located, take possession without previous demand or notice and without legal process, and remove them to the manufacturer's factory or other place of storage.
* * *
The machines shall at all times remain the sole and exclusive property of AMF (which reserves the right to assign or encumber the machines) and operator shall have no rights, title or interest to the machines but only the right to use them under this agreement. The machines shall remain personal property and shall not be deemed otherwise by reason of becoming attached to the premises.
In July 1984, with the original lease term nearing its expiration, Rothermich and Herman Toebben executed an amendment to the lease agreement extending the lease term through December 1989.
In May 1987, Herman Toebben's son, Kevin Toebben, along with several others, formed Weber's St. Charles Lanes, Inc. ("Weber's Lanes"), for the purpose of purchasing St. Charles Bowl. The purchase agreement between St. Charles Bowl and Weber's Lanes was made expressly contingent *613 upon an assignment to Weber's Lanes of the lease agreement, as extended, between St. Charles Bowl and AMF for the use of the pinspotters. The price paid to Rothermich and Herman Toebben for St. Charles Bowl did not include consideration for the pinspotters, as they were considered by all parties involved to be the property of AMF pursuant to the terms of the lease agreement.
As part of the purchase agreement, Rothermich and Herman Toebben agreed to finance part of the purchase price for St. Charles Bowl, with the remainder financed by Boatmen's Bank of O'Fallon ("Boatmen's"). In June 1987, Weber's Lanes executed a promissory note in the amount of $522,500.00 in favor of Herman Toebben, a promissory note in the amount of $327,500.00 in favor of Rothermich, and a promissory note in the amount of $500,000.00 in favor of Boatmen's. Each promissory note was secured by a deed of trust and recited that it conveyed to the trustee both the real property and "all buildings, fixtures and appurtenances now or hereafter to the same belonging...."
In early 1989, with the extended lease term for the pinspotters nearing expiration, Kevin Toebben, in his capacity as an officer of Weber's Lanes, approached Bank[2] regarding financing the purchase of the pinspotters by Weber's Lanes from AMF. On March 31, 1989, Weber's Lanes, by Kevin Toebben as an officer thereof, executed a promissory note in favor of Bank for the purchase of the pinspotters, and also executed a security agreement granting Bank a security interest in the same. The security agreement provided, in relevant part:
That upon default or at any time thereafter, Secured Party may, without notice, declare all obligations owed hereunder immediately due and payable and shall have all the rights and remedies of a secured party under the Uniform Commercial Code of Missouri, and any other applicable laws. Debtor will, at Secured Party's request, assemble the collateral or make it available to the Secured Party at such place as is designated by the Secured Party, which shall be reasonably convenient.
On April 14, 1989, Bank filed a UCC 1 financing statement with the St. Charles County Recorder of Deeds, setting forth Bank's security interest in the pinspotters. On April 17, 1989, Bank filed a UCC 1 financing statement with the Missouri Secretary of State, again setting forth its security interest.[3]
Thereafter, Weber's Lanes defaulted on its loans. In the fall of 1995, Bank foreclosed on its interest in the pinspotters pursuant to its rights under the security agreement and Boatmen's foreclosed on the real estate pursuant to its deed of trust. Prior to the foreclosure sale, Bank entered into an intercreditor agreement with Boatmen's to resolve their disagreement regarding the status of the pinspotters as fixtures or personal property. Under this agreement, Bank agreed to reimburse Boatmen's from its anticipated sale proceeds of the pinspotters in the event a deficiency resulted from the foreclosure sale by Boatmen's.
After the agreement was signed, Bank sold the pinspotters at the foreclosure sale to Charan Industries, Inc. ("Charan") for $124,000.00. Contractors hired by Charan *614 removed the pinspotters from the bowling alley premises with no physical or structural damage to the property. Charan subsequently resold the pinspotters to another bowling alley operator outside of the United States.[4]
Thereafter, Betty Rothermich, personal representative of the estate of Kenneth Rothermich, brought a declaratory judgment action against Bank seeking a declaration that the pinspotters sold by Bank were fixtures constituting a part of the real property and thus, subject to her deed of trust which was not satisfied by the Boatmen's foreclosure sale.[5] After Rothermich entered into an agreement with Herman Toebben as to their respective percentages for sharing the potential funds, all parties agreed to submit to the trial court on stipulated facts the issue of whether the pinspotters were fixtures subject to the deeds of trust of Rothermich and Toebben, or personal property subject to the security interest of Bank.
On October 11, 1998, the trial court entered judgment for Rothermich, finding that the pinspotters were fixtures and ordering Bank to pay $124,000.00 plus accrued interest into the registry of the Court. No findings of fact or conclusions of law were requested. Bank appeals from this judgment.
Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. In a case tried on stipulated facts, the only issue on appeal is whether the court drew the proper legal conclusions from the stipulated facts. State Farm Mut. Auto. Ins. Co. v. Sommers, 954 S.W.2d 18, 19 (Mo.App.1997).
In its first point on appeal, Bank argues the trial court misapplied the law and drew improper legal conclusions from the stipulated facts. Specifically, it argues that the court erred in finding the pinspotters to be fixtures because the three-factor test, as originally discussed in Bastas v. McCurdy, 266 S.W.2d 49, 51 (Mo.App.1954), when applied to the agreed upon facts, clearly establishes that the pinspotters were personal property.
A fixture is an article in the nature of personal property which has been so annexed to the realty that it is regarded as part of the land and partakes of the legal incidents of the freehold and belongs to the person owning the land. Bastas at 51. The test for determining whether property has become a fixture is three-fold, consisting of: 1) the annexation to the realty; 2) the adaptation to the use to which the realty is devoted; and 3) the intent that the object become a permanent accession to the land. Id.; Hoffman Management Corp. v. S.L.C. of North America, Inc., 800 S.W.2d 755, 759 (Mo.App.1990). These elements or tests all present questions of fact and are not ordinarily resolvable by law. Bastas, 266 S.W.2d at 51. Whether or not an article is a fixture depends upon the facts and circumstances of a particular case. Id.
Bank contends that the trial court erred in finding the pinspotters were fixtures because at the time of the annexation of the pinspotters to the real estate, all parties intended, as evidenced by the original lease agreement, that the pinspotters were to remain personal property. It further argues that this intention extended beyond the original lease agreement to all *615 subsequent transactions and included all subsequent parties as well. We agree.
The intent of the parties is generally regarded as the most important element to consider when making the determination as to the classification of an item as it relates to the land. The intent of the annexor at the time of the annexation controls as to whether something is to be considered a fixture. Lee's Mobile Homes, Inc. v. Grogan, 621 S.W.2d 317, 318 (Mo. App.1981). When necessary, other tests may be applied in determining this question, but where, as here, the intention of the parties may be determined from their contract, such intention should control, regardless of other tests and rules of law which are applied in determining the question in the absence of the expressed intention of the parties. Id.; Kolb v. Golden Rule Baking Co., 222 Mo.App. 1068, 9 S.W.2d 840, 844 (1928). Although most often applied to conflicts between the purchaser and seller of an item that has become affixed to the land, the same principle has been applied to situations similar to the present case.
In Hoffman Management Corp., the purchaser of a building at a foreclosure sale and the subsequent purchaser of a telephone system that had been previously installed in the premises disputed whether the system constituted personal property or a fixture. 800 S.W.2d at 760. In holding that the telephone system was personal property, the court found that the agreement between the lessor and the original building owner stating that the telephone system would remain personal property irrespective of its use or attachment to the realty represented an "unequivocal manifestation" of intent for the item to remain personal property and controlling. Id.
In American Clay Machinery Co. v. Sedalia Brick & Tile Co., 174 Mo.App. 485, 160 S.W. 902 (Mo.App.1913), the court considered a similar scenario where a dispute arose between the seller of machinery and the subsequent purchaser of the machinery who had actual notice of the agreement between the seller and the original purchaser wherein the machinery was to remain personal property and be removed if it was not paid for. The court held that under those circumstances, it was not necessary to consider the facts and circumstances attending the sale, the manner of attaching the property to the realty, or the results flowing from its removal therefrom in order to get to the intention of the parties. It held that in determining whether or not machinery attached to realty remained personal property or became realty, the intention of the owner is the best test; and, if that is not expressly stated, the adaptability of the machinery to the uses and purposes to be subserved is the next best test. Id. at 904. It found that since the subsequent purchaser had actual notice of the express agreement between the original parties and took the property subject to that agreement, the case was to be considered precisely as if it were between the seller and the original purchaser. Id. The machinery was found to be personal property as agreed upon by the parties prior to the installation of the equipment on the premises.
In the present case, the undisputed facts also established that all parties intended that the pinspotters would remain personal property subject to the lease agreement with AMF. The original lease agreement, negotiated and signed by Rothermich and Herman Toebben, expressly stated that the pinspotters were to remain personal property and not be "deemed otherwise by reason of becoming attached to the premises." As in Hoffman Management Corp., this language is an unequivocal manifestation of the intent of the original parties that the pinspotters remain personal property.
This same manifestation was present in each of the subsequent transactions and extended to all subsequent parties as well. The characterization of the pinspotters as personal property was affirmed by St. Charles Bowl at the time of the lease *616 extension with AMF in 1984 and reaffirmed upon the sale of St. Charles Bowl to Weber's Lanes in 1987. The purchase price paid by Weber's Lanes did not include consideration for the pinspotters as the parties agreed they were personal property, and the sale was made expressly contingent upon the assignment of the lease agreement with AMF. Finally, the intent of the parties to classify the pinspotters as personal property was affirmed a third time by Weber's Lanes in its security agreement with Bank upon the purchase of the pinspotters from AMF in 1989. Thus, the record is clear that the pinspotters retained their personal property characterization throughout each of the transactions and was regarded as such by all parties involved.
In response, Rothermich argues that the 1986 filing of a security interest by Manufacturers Hanover modified the terms and effect of the lease between AMF and St. Charles Bowl. She also asserts that Webers' Lanes' purchase of the pinspotters extinguished the classification of the pinspotters thereunder. She contends that at that point the pinspotters became fixtures and part of the real estate subject to her deed of trust the same as any other after-acquired property.
We find nothing in the Manufactures Hanover filing that specifically categorizes the pinspotters as fixtures. Although the pinspotters are mentioned, the filing specifically covers both personal property and fixtures. Nor do we believe any agreement between AMF and a third party could properly override the underlying and unequivocal agreement between AMF and the original and successor owners of the real property that the pinspotters would remain personalty. Nor did Weber's Lanes' purchase of the pinspotters evidence any intent to change the character of the pinspotters in view of its contemporaneous agreement with Bank that the pinspotters would remain personal property subject to Bank's security interest.[6]
Bank next argues that the trial court erred in finding the pinspotters were fixtures because the factor of physical annexation to the real estate was not met. It asserts that although the pinspotters were screwed, bolted and riveted to the concrete floor, the facts established that they were easily removed without damage to the premises, thereby defeating the factor of annexation. Rothermich counters that the test is not whether the item can be easily removed, but whether it was intentionally affixed in a permanent manner and required for the operation of the particular bowling alley.
Rothermich's reliance on Leawood Nat'l Bank of Kansas City v. City Nat'l Bank & Trust Company of Kansas City, 474 S.W.2d 641 (Mo.App.1971), is misplaced. In Leawood, the purchaser at a bankruptcy foreclosure sale contended that hydraulic lifts installed in an auto garage constituted fixtures and came with the real estate, as against the purported lessor of the lifts who claimed them as personal property pursuant to its security agreement with the bankrupt owner of the garage. Id. at 642-43. While recognizing that agreements between parties can control whether an item is deemed a fixture or personal property, the court did not give effect to the lease agreement in that case. Id. The court noted that prior to executing the lease agreement, the lifts had been installed in the garage with the intent by the owner for them to be a permanent accession, and that at the time of installation the lifts had become fixtures subject to the recorded deed of trust. Id. Further, because the lease agreement itself was not recorded and the *617 purchaser was an innocent third party who took title through the bankruptcy trustee, the court held that the unrecorded agreement could not prejudice the purchaser's rights. Id. at 645.
There are several key factual distinctions between the instant appeal and those presented in Leawood. First, the lease agreement between St. Charles Bowl and AMF designating the pinspotters as personal property was executed at the time of the pinspotters' installation on the bowling alley premises. Second, Rothermich is not an "innocent purchaser" whose rights would be prejudiced by a characterization of the pinspotters as personal property. Also, unlike the lessor in Leawood, Bank properly recorded its security agreement with Weber's Lanes.
Finally, the method of annexation to the property in this case actually supports the finding that the pinspotters were to remain personal property. The undisputed facts showed that the pinspotters were not only easily removable from the bowling alley premises, but were actually removed and sold to another company for installation at another bowling alley. The removal was accomplished with no damage to the real property or to the pinspotters themselves. Thus, the method of annexation does not defeat the unequivocal manifestations of intent, by all parties concerned, to characterize the pinspotters as personal property, but instead, supports a finding that the element of annexation was not met.
Bank next argues that the trial court erred in finding the pinspotters were fixtures because the third element of adaptation to the real estate was not met. Specifically, it asserts that the pinspotters were not sufficiently adapted to the use to which the real estate was devoted to indicate a permanent accession was intended. Rothermich counters that the element of adaptation was clearly met because the pinspotters were an absolute necessity to the bowling alley operation, and that the building was designed for the sole purpose of being a bowling alley which required the pinspotters for its operation.
As stated above, the intention of the parties as to the characterization of the article must control, and as with the element of annexation, the element of adaptation is important to consider when the intent of the parties is not clear. Although the intent of the parties is undeniably clear, the undisputed facts also establish that the pinspotters were not so adapted to the premises as to become fixtures of the real property.
The "adaptation" element refers to the characteristics of fitness or suitability of the item for the building or premises in question. Hoffman Management Corp., 800 S.W.2d at 760. State ex rel. State Highway Comm'n v. Wally Hutter Oil Co., 467 S.W.2d 279, 282 (Mo.App.1971). The item in question should be peculiarly adapted to the real property or premises. Hoffman Management Corp., 800 S.W.2d at 760. An item usable at other locations is not peculiarly adapted for use on the land in question. See Wally Hutter Oil Co., 467 S.W.2d at 282. The fact that the item was actually removed and installed elsewhere further reinforces the conclusion that the item was not so peculiarly adapted to the realty as to constitute a fixture. Blackwell Printing Co. v. Blackwell-Wielandy Co., 440 S.W.2d 433, 438 (Mo.1969).
In this case, the pinspotters were part of the standard equipment used in the bowling alley industry. While it is true that the lanes at the bowling alley were specially adapted for the use of the pinspotters, there is nothing peculiar or unique about these particular pinspotters and nothing requires that these particular pinspotters be used. On the contrary, the facts established that the purchaser of the bowling alley real estate at the foreclosure sale purchased and installed replacement pinspotters for use in the same alley lanes without difficulty, and the pinspotters from Weber's Lanes were purchased and installed in a bowling alley elsewhere as well. *618 Thus, there was no peculiar adaptation of the pinspotters to the bowling alley premises, and the adaptation element was not sufficiently satisfied for the pinspotters to be considered fixtures.
In view of our determination that the pinspotters are personal property and not fixtures, it is unnecessary to address Bank's remaining point on appeal. The judgment of the trial court is reversed and judgment is hereby rendered in favor of Bank.
MARY RHODES RUSSELL, C.J., Concurs.
JAMES A. PUDLOWSKI, Sr. J., Concurs.
NOTES
[1] Kenneth Rothermich is deceased. His wife, Betty Rothermich, brought suit as the personal representative of his estate.
[2] Landmark Bank of St. Charles County was succeeded due to merger by Magna Bank National Association, which was in turn, succeeded due to merger by Union Planters National Bank.
[3] Although apparently unnoticed by Bank, there was also a financing statement dated December 11, 1986, signed by AMF and Manufacturers Hanover, recorded as a fixture filing in the real estate section of the St. Charles County Recorder of Deeds office. This financing statement asserted a security interest in favor of Manufacturers Hanover in any property, whether personal property or fixtures, of AMF located at the premises of St. Charles Bowl. This financing statement was still of record when Bank obtained its personal property UCC financing statement from Weber's Lanes in March of 1989.
[4] Subsequent to the removal of the pinspotters, the purchaser of the bowling alley real estate at the foreclosure sale purchased and installed replacement pinspotters.
[5] Her petition also requested a declaration of the priorities of the respective deeds of trust on the real property. This court affirmed the grant of summary judgment in favor of Boatmen's in Rothermich v. Weber's St. Charles Lanes, Inc., 957 S.W.2d 509 (Mo.App.1997). That appeal did not discuss the present issue.
[6] Rothermich also cites an affidavit she filed in opposition to Bank's earlier motion for summary judgment as to her and her late husband's intent. This was not part of the stipulation of facts on which the case was submitted. Moreover, Mrs. Rothermich's intent would be irrelevant because she was not a party to any of the transactions and her testimony about her late husband's intent is hearsay.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVID GAY, a single man, No. 14-16642
Plaintiff-Appellant, D.C. No. 2:13-cv-02269-DGC
v.
MEMORANDUM*
TRUMBULL INSURANCE COMPANY,
a Connecticut corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted September 15, 2016**
San Francisco, California
Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.
Plaintiff David Gay appeals the district court’s order granting summary
judgment in favor of Defendant Trumbull Insurance Company. Trumbull denied
Gay’s insurance claim after concluding that his motorcycle was not an insured
*
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).
vehicle under the subject policy. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm the district court’s judgment.1
1. The unconventional definition of “motor vehicle” in the Minnesota
No-Fault Automobile Insurance Act, which excludes motorcycles, does not apply
to the Uninsured/Underinsured Motorist Coverage section of Trumbull’s insurance
policy.2 Nothing in the Act suggests the Minnesota legislature intended its
definition to apply to all automobile insurance policies. See Himle v. Am. Family
Mut. Ins. Co., 445 N.W.2d 587, 590 (Minn. Ct. App. 1989). And the Minnesota
Supreme Court held that the definition did not apply to a similar policy. Roering v.
Grinnell Mut. Reinsurance Co., 444 N.W.2d 829, 833 (Minn. 1989). Although the
Roering court held that the policy exclusion in that case was unenforceable because
it permitted less coverage than the Act required at the time, the Minnesota
legislature amended the Act in 1991 such that “an owner of a motorcycle who is
injured while occupying that motorcycle may only look to uninsured or
underinsured benefits purchased for that motorcycle.” See Johnson v. W. Nat’l
Mut. Ins. Co., 540 N.W.2d 78, 81 (Minn. Ct. App. 1995). The post-Roering
1
The parties agree that Minnesota law governs the substantive
questions raised here.
2
The definition of “motor vehicle” provided in the Personal Injury
Protection Coverage Endorsement is not relevant here.
2
amendments to the No-Fault Act do not demonstrate that the Minnesota legislature
intended insurance policies to require underinsured motorist coverage for
motorcycles. Additionally, Trumbull’s policy suggests only an intent to meet
minimum coverage requirements, rather than an intent to adopt all definitions from
the Act.3
2. Where the parties advance different interpretations of policy language,
a reviewing court must “decide whether both of these interpretations are
reasonable.” Carlson v. Allstate Ins. Co., 749 N.W.2d 41, 45 (Minn. 2008).
Trumbull argues that the term “motor vehicle” as used in Exclusion A.1 to the
Uninsured/Underinsured Motorists Coverage section includes motorcycles. This is
consistent with the term’s usual and accepted meaning. Gay does not argue that
“motor vehicle,” as generally understood, reasonably excludes motorcycles, but
rather that construing the term in accordance with the statutory definition is also
reasonable. But as already explained, we find no support for the argument that the
legislature intended for the Act’s definition to apply to the parties’ contract.
The parties request attorney’s fees in their briefs. Such requests must be
made in accordance with Ninth Circuit Rule 39-1.6.
3
Contrary to Plaintiffs’ arguments, Himle is inapplicable here because
there is no “express statement of . . . intent to meet the requirements of the
statutes.” See 445 N.W.2d at 590.
3
AFFIRMED.
4
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469 So.2d 309 (1985)
STATE of Louisiana, Appellee,
v.
Lugene MILTON, Appellant.
No. 16894-KA.
Court of Appeal of Louisiana, Second Circuit.
May 8, 1985.
Rehearing Denied June 7, 1985.
*310 Indigent Defender Office by Richard C. Goorley, Richard E. Hiller, Shreveport, for appellant.
William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Carey T. Schimpf, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
Before MARVIN, JASPER E. JONES and SEXTON, JJ.
SEXTON, Judge.
Defendant was charged by bill of information with simple burglary of an inhabited dwelling contrary to LSA-R.S. 14:62.2. On May 10, 1984, after trial by jury, the defendant was found guilty as charged. Subsequently, on May 14, 1984, the district attorney filed a habitual offender bill of information. Thereafter, the trial judge found the defendant to be a habitual offender, and on July 17, 1984 the defendant was sentenced to twenty-four years at hard labor, the maximum possible sentence under the habitual offender statute, LSA-R.S. 15:529.1. The defendant now appeals his conviction and sentence on the basis of eight assignments of error, four of which are abandoned. We affirm.
*311 Facts
On January 3, 1984, Bowen Stewart and his wife left their residence at 454 Gloria Street in Shreveport to go to work around 8:00 a.m. Mr. Stewart returned to his house around 9:15 a.m. When Mr. Stewart drove up into his carport and opened his door, he heard sort of a "clinking noise." After Mr. Stewart heard the clinking noise, he noticed that his back gate was slightly ajar. Mr. Stewart proceeded into the back yard, thinking that the clinking noise had been caused by utility company employees. However, Mr. Stewart did not go completely into the back yard and turned around and walked back to his carport. Mr. Stewart then heard a "kind of rattling noise, you know, like the fence rattling." Mr. Stewart assumed that he had heard a cat and entered his house through the carport door.
When Mr. Stewart walked into his kitchen, he noticed that the back door to the house was open. Not only was the back door open, the locks on the door had been knocked off and wooden splinters from the door were on the floor. Upon further examination, Mr. Stewart noticed that many items in the house had been moved. Mr. Stewart left his house at this point because he realized that his house had been broken into and that the culprit could possibly still be inside. After waiting outside for a couple of minutes he went back inside the house, obtained his shotgun, and exited the premises again.
While outside the house, Mr. Stewart met his neighbor, Mr. George Tindall, coming down the street in a car. Mr. Tindall had noticed a strange looking brown Pontiac parked on the side of the road as he drove up to his house. Mr. Tindall noticed the car because he had never seen it in the neighborhood before. When Mr. Tindall pulled up to his house, Mr. Stewart notified him of the robbery. Afterwards, Mr. Stewart went into his house to call the police, and Mr. Tindall checked his house. When both men came back out of their houses, Mr. Tindall observed a man get into the brown Pontiac. When Mr. Tindall saw that the Pontiac was going to drive off, he decided to get its license number. Mr. Tindall got in his truck and followed the Pontiac until he could note the car's license number. Mr. Tindall then returned to his house and reported the Pontiac's license number to Mr. Stewart. Shortly thereafter, he observed another strange car parked on Gloria Street. He observed two men get into the second car and wrote down the license number of this car also.
Before the police arrived, Mr. Stewart returned inside his house and determined that a .22 caliber pistol with ammunition and a fraternity ring were missing.
Lieutenant Jerry G. Wood was the identification officer dispatched to the scene of the crime. Officer Wood examined the apparent point of entry into the residence for fingerprints. Officer Wood was able to obtain several "usable" prints from the back door of Mr. Stewart's house. However, none of the fingerprints taken by Officer Wood were ever linked to the defendant.
On the evening after the burglary, Mr. Stewart noticed two strange lawn rakes propped up against his house near his back patio, which were subsequently retrieved by the Shreveport Police Department. Detective George Smith, upon being assigned to investigate the burglary of the Stewart residence, and was informed of the license number of the strange brown Pontiac which had been observed just after the burglary. Detective Smith determined that the license number given to him by Mr. Tindall was assigned to a brown Pontiac registered in the defendant's name.
The Shreveport Police Department detectives decided to place the defendant under surveillance. The defendant's car was found parked in an apartment complex parking lot on the morning of January 4, 1984. Between 1:00 p.m. and 2:00 p.m., the defendant was observed to get into his car and begin to drive off. However, he stopped in the apartment complex parking lot near a red truck from which he obtained a yard rake. After placing the rake in the *312 backseat of his car, the defendant exited the parking lot.
Shortly thereafter, the defendant's car was located by other surveillance officers who observed that the defendant had secured a passenger. The defendant proceeded to the Cross Lake Boulevard area of Shreveport, where the vehicle drove through the neighborhood at an extremely slow rate of speed. The defendant's vehicle then returned back towards the apartment complex parking lot.
In the meantime, Detective C.A. Lewis, while checking through records routinely filed with Shreveport Police Department by local pawn shops, noticed that a pawn ticket filed by the Gold Mart, located at 433 Kings Highway, listed a fraternity ring which had been pawned by the defendant around noontime on January 3, 1984. Detective Lewis proceeded to the Gold Mart, and contacted the proprietor of the establishment. The proprietor gave Detective Lewis the ring, and Detective Lewis notified the detectives involved in the surveillance operation. Mr. Stewart identified the ring recovered from the pawn shop as the ring that was taken from his house on January 3, 1984.
Upon receiving the information discovered by Detective Lewis, Detectives Ashley and Lindsey decided to place the defendant under arrest. At the time this decision was made, the defendant was driving away from a convenience store parking lot with three passengers. Detective Lindsey, in an unmarked unit, stopped the defendant's vehicle and ordered all persons out of the car. At this point, the defendant bent over the front seat toward the right side of the car, "as if to bend down into the front floorboard area." Upon Detective Lindsey's second command, the defendant exited the vehicle and was placed under arrest. His vehicle was towed to an impoundment lot.
Detective Ashley and Sergeant Patti Morgan searched the defendant's car after it had been impounded. Sergeant Morgan seized a lawn rake from the back of the defendant's car. She also seized several.22 caliber bullets which had been scattered on the car's floor around the driver's seat. Finally, Sergeant Morgan also seized a .22 caliber pistol, which was discovered under the passenger's seat along with a pair of suede gloves.
On January 5th, the defendant gave a voluntary statement to Detective Smith in the conference room of the Shreveport jail. He indicated that he had no knowledge of the burglary of the Stewart residence. When asked what he had done on January 3, 1984, the defendant indicated that he arose early in the morning and worked on his car. Later, the defendant said that he went by the house of Cordovas Laffitte. Mr. Laffitte offered to give the defendant $10 if the defendant would sell a ring for Mr. Laffitte at the Gold Mart. The defendant then said that he took the ring from Mr. Laffitte and drove around in his car for a while. The defendant indicated that he drove around to look for yards to rake because he raked yards for a living. Eventually, the defendant said that he went by the Gold Mart and sold the ring for $30. The defendant said that he returned to Mr. Laffitte's house and gave him $20.
During trial it was established that the .22 caliber pistol seized from the defendant's car was the pistol which had been stolen from Mr. Stewart's house. Also, the defense established that Fabian Laffitte, the cousin of Cordovas Laffitte, was the person who was occupying the front passenger seat of the defendant's car at the time of his apprehension.
I.
Sufficiency of Evidence to Support Burglary Conviction Assignment of Error No. 7
In this assignment of error, the defendant argues that the evidence was insufficient to support this burglary conviction. Specifically, the defendant argues that there was no evidence to show that the defendant made an "unauthorized entry" into the victim's house. On review of the sufficiency of the evidence to support a criminal conviction, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, *313 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
In this cause, the state's case consisted almost entirely of circumstantial evidence. Examining the level of proof in a circumstantial evidence case, in the light of Jackson v. Virginia, supra, does not require a stricter standard of review. State v. Chism, 436 So.2d 464 (La.1983). As Chism points out, and as the Supreme Court reiterated in State v. Smith, 441 So.2d 739 (La.1983), the circumstantial evidence rule of LSA-R.S. 15:438 simply emphasizes the need for more careful observation and provides a helpful methodology for its implementation in cases which hinge on an evaluation of circumstantial evidence. Stated somewhat differently, LSA-R.S. 15:438 provides an evidentiary guideline for the finder of fact when circumstantial evidence is involved and facilitates appellate review of whether the fact finder could have found the defendant guilty beyond a reasonable doubt. Thus, where circumstantial evidence is used to convict, exclusion of every reasonable hypothesis of innocence becomes a component of a more comprehensive reasonable doubt standard. State v. Wright, 445 So.2d 1198 (La.1984). It is important to note that not every hypothesis of innocence must be excluded but only those which are reasonable. State v. Bindom, 410 So.2d 749 (La.1982), State v. Austin, 399 So.2d 158 (La.1981).
The record shows that the defendant's automobile was observed near the scene of the crime shortly after its commission. The record also shows that the defendant pawned a ring taken from the victim's house within just a few short hours of the commission of the crime. When the defendant's car was placed under surveillance, Shreveport Police Department detectives observed the defendant to secure a rake and to cruise slowly through a residential area of the city. Considering the fact that Mr. Stewart discovered two lawn rakes outside his house during the afternoon after the burglary, there is a strong indication that the defendant had established a modus operandi of using his lawn raking business as a cover to spot and burglarize desirable targets. Finally, when the defendant was ordered out of his vehicle by the arresting officer he was seen to lean over toward the floorboard on the passenger side, the location the detectives discovered the pistol taken from Mr. Stewart's house.
In brief to us, the defendant concedes that "he may be guilty of the offense of Illegal Possession of Stolen Things." However, he asserts that the only evidence implicating him is his possession of the stolen items and the observation of his car near the scene. He contends that this evidence, particularly when the lack of fingerprint evidence is considered, is insufficient to convict him under the legal standard previously enunciated. We disagree. There is considerable additional evidence which we have previously discussed in detail. When all of the evidence is considered, it is our view that this evidence when viewed in the light most favorable to the prosecution, even under the careful scruntiny required of circumstantial evidence per Smith, supra, and Chism, supra, the hypothesis that the defendant was not a principal in this offense is not reasonable. This assignment lacks merit.
II.
Re-opening of State's Case in Habitual Offender Hearing Assignment of Error No. 3
In this assignment of error, the defendant argues that the trial court erred in allowing the state to reopen its case to introduce additional evidence in the habitual offender hearing. The record shows that on July 6, 1984, a multiple offender hearing was held subsequent to the filing of a multiple offender charge by the state. During that hearing, the state failed to produce evidence that the defendant had been "Boykinized" when he pled guilty on April 15, 1981 to the burglary offense, *314 which was the basis of the multiple offender charge.
In order to enhance a penalty under the multiple offender statute, the state must affirmatively prove that the defendant was fully "Boykinized" in the predicate offense if that conviction resulted from a guilty plea. State v. Bland, 419 So.2d 1227 (La.1982); State v. Lewis, 367 So.2d 1155 (La.1979).
After the closure of the state's case, and subsequent to the defense argument that the state had failed to sustain its burden with respect to proof of Boykin, the trial judge ordered a recess of some fifteen to twenty minutes. At the conclusion of the recess, the state filed a transcript of the colloquy of the defendant's previous conviction which showed full compliance with Boykin.
The defendant's contention has been squarely rejected in State v. Belton, 441 So.2d 1195 (La.1983). In Belton, after the state had rested its case, the defendant objected to the sufficiency of the state's evidence on the ground that the minutes offered by the prosecution did not reflect that the defendant had been advised of and waived his rights as per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial judge ordered a transcript made of the earlier guilty plea colloquy and took the matter under advisement. Four days later, after reviewing the transcript and finding that the defendant was properly "Boykinized," the trial judge found him to be a second felony offender. In concluding that the action of the trial court was not improper, the Supreme Court noted the function of a proceeding under the habitual offender law in the following terms.
A proceeding pursuant to the habitual offender law is not a prosecution for a separate criminal charge. It is to enhance the penalty for the subsequent offense; it only involves the sentencing for that crime. State v. Walker, 416 So.2d 534 (La.1982); State v. Stott, 395 So.2d 714 (La.1981). Hence, the trial judge's actions in the instant case in taking the matter under advisement and then considering additional evidence four days later is not contrary to La.Code Crim.P. art. 765(5). This article specifies the normal order of trial and is inapplicable to sentencing procedure. Similarly, the consideration of additional evidence in the sentencing phase of the instant case does not constitute double jeopardy. State v. Stott, supra; State v. Langendorfer, 389 So.2d 1271 (La.1980).
This assignment of error is without merit.[*]
III.
Sufficiency of Evidence of Predicate Conviction Assignment of Error No. 8
In this assignment of error, the defendant argues that the evidence offered at the habitual offender hearing was not sufficient to identify the defendant as the person who committed the predicate burglary. This assignment of error is patently without merit.
The state's evidence to identify the defendant with the previous burglary partially consisted of the testimony of Detective George C. Smith. Detective Smith testified that he arrested the defendant for a burglary committed on December 8, 1980. The "pen package" offered into evidence by the state conclusively established that the defendant, in entering a guilty plea on April 15, 1981, pled guilty to the offense for which Detective Smith arrested him. Deputy Sheriff Sergeant Gary Bass testified that the fingerprints contained in the records of the Sheriff's Office for Lugene Milton matched the fingerprint card contained in the "pen package." Additionally, the state made a motion to fingerprint the defendant in open court so that his fingerprints could be compared to those contained *315 in the pen package and those contained in a fingerprint card on file with the Caddo Parish Sheriff's Department. However, defense counsel stipulated that if the defendant were fingerprinted in open court, his fingerprints would match the fingerprints shown on the card on file with the Sheriff's Department.
Since the fingerprints shown on the card contained in the Sheriff's Department files matched the fingerprints shown in the pen package pertaining to Lugene Milton, the stipulation and other evidence is sufficient to identify the defendant as the Lugene Milton incarcerated with the Department of Corrections for the previous December, 1980 burglary. This assignment lacks merit.
IV.
Excessive Sentence Assignment of Error No. 6
In this assignment of error, the defendant argues that the trial court erred in imposing an excessive sentence of 24 years at hard labor for his crime of burglary of an inhabited dwelling. As a second habitual offender, the defendant was subject to a prison term of not less than one-half the longest possible sentence for the original crime charged and not more than twice the longest possible sentence prescribed for a first conviction. LSA-R.S. 15:529.1(A)(2)(a). Under LSA-R.S. 14:62.2, the defendant was facing a minimum sentence of not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years. The trial judge determined that the defendant should receive the maximum possible sentence of twenty-four years.
During the sentencing hearing, the trial judge found that the defendant's past criminal record was sufficient to demonstrate his "ill intentions" toward his community. The trial judge was particularly influenced by the fact that he had heard a preliminary examination prior to the trial of this cause in which the defendant was accused of fourteen counts of burglary of inhabited dwellings. This fact coupled with the fact that the defendant had previously been given a three year burglary sentence as recently as August 18, 1981 influenced the decision of the trial judge to impose the maximum sentence.
A sentence will be deemed excessive where it is grossly out of proportion to the severity of the crime, or where it is nothing more than the needless imposition of pain and suffering. State v. Smith, 433 So.2d 688 (La.1983). The trial judge has a wide discretion in the imposition of a sentence within the statutory limits and such a sentence should not be set aside as excessive absent a manifest abuse of discretion. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983).
Maximum sentences are reserved for cases involving the most serious violations of the charged offenses and for the worse kind of offender. State v. Quebedeaux, 424 So.2d 1009 (La.1982). Prior criminal activity is one of the factors under LSA-C.Cr.P. Art. 894.1 to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Washington, 414 So.2d 313 (La.1982).
This defendant can be catagorized as the worst type of burglary offender. He had a prior burglary conviction in 1981 resulting from his entry into an apartment. His imprisonment for that prior burglary obviously had no deterrent affect on his aberrant conduct. The evidence adduced by the state tended to establish that the defendant's criminal activity was carried out in a calculated, deliberate manner. Evidently, the defendant searched for burglary targets in his car. He used his lawn raking business as a cover for his criminal activities. He apparently carried out his crime with the use of gloves so that he could not be easily detected. He destroyed property by breaking and entering premises, and he only took items which could be easily fenced. Finally, the record shows that the defendant had numerous counts of burglary still pending against him at the *316 time that he was sentenced. This factor tends to show that the defendant was engaging in a comprehensive burglary operation. The fact of pending offenses is a legitimate sentencing consideration. State v. Washington, supra; State v. Williams, 441 So.2d 832 (La.App. 3d Cir.1983).
Consequently, the defendant's sentence, even though it is the maximum possible, cannot be considered constitutionally excessive. Due to the defendant's obvious disregard for the property rights of his fellow citizens and due to his systematic endeavors, a twenty-four year sentence does not amount to the purposeless and needless imposition of pain and suffering. This assignment lacks merit.
Finding no merit to the four assignments of error argued before us, we affirm the defendant's conviction and sentence.
AFFIRMED.
NOTES
[*] The proof complained of in the instant case involved a sentence enhancement. It did not concern an essential element of the state's case. Therefore, State v. Collier, 438 So.2d 652 (La. App. 2d Cir.1983), is clearly distinguishable.
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675 So.2d 543 (1996)
Ex parte Spencer Owen ZIGLAR.
(In re STATE of Alabama v. Spencer Owen ZIGLAR.
CR-95-0694.
Court of Criminal Appeals of Alabama.
March 1, 1996.
Joe S. Pittman, Jr., Richard W. Whittaker, Enterprise, for Petitioner.
Jeff Sessions, Atty. Gen., and Yvonne Saxon, Asst. Atty. Gen., for Respondent.
TAYLOR, Presiding Judge.
The petitioner, Spencer Owen Ziglar, filed this petition for a writ of mandamus, asking us to direct the Honorable Robert W. Barr, circuit judge for the Twelfth Judicial Circuit, not to retry the criminal case against him. He contends that to retry him for manslaughter would subject him to double jeopardy.
*544 The petitioner was initially indicted for murder, a violation of § 13A-6-2, Code of Alabama 1975, but was convicted of the lesser included offense of manslaughter, a violation of § 13A-6-3, Code of Alabama 1975. We reversed that conviction because the petitioner's wife had been compelled to testify against him in violation of the spousal privilege. Ziglar v. State, 629 So.2d 43 (Ala.Cr. App.1993). The petitioner's retrial, on the charge of manslaughter, was scheduled to begin in November 1994. The petitioner then filed with this court a petition for a writ of mandamus arguing that a retrial would subject him to double jeopardy. We denied the petition without an opinion, on the authority of Ex parte Spears, 621 So.2d 1255 (Ala.1993). Ex parte Ziglar, 668 So.2d 936 (Ala.Cr.App.1994) (table). On the same day this court denied his petition, Ziglar filed a petition for a writ of mandamus in the Alabama Supreme Court. Before the Alabama Supreme Court ruled on the petition, the second trial ended in a mistrial when the jury was unable to reach a unanimous verdict. Ziglar then filed a second petition for a writ of mandamus in the Alabama Supreme Court, asking that Court to bar any further retrials. The Supreme Court denied that petition, stating that it was premature because he did not present with his petition any evidence that he had raised in the trial court the issue of double jeopardy. Ex parte Ziglar, 669 So.2d 133 (Ala.1995). In response, the petitioner filed a motion to dismiss in the trial court. A hearing was held on the petitioner's motion, and the motion was denied by the trial court. The petitioner then filed this petition for a writ of mandamus with this court.
Initially, we must determine if a petition for a writ of mandamus is the appropriate method to challenge a pretrial ruling on a motion to dismiss based on double jeopardy grounds. The Alabama Supreme Court addressed this issue in its opinion in this case. The Alabama Supreme Court stated:
"We are satisfied that a criminal defendant with a double jeopardy defense should not be foreclosed from pretrial correction of a trial judge's erroneous denial of a plea of former jeopardy. Therefore, the appellate courts of this State will review double jeopardy claims properly presented by petitions for the writ of mandamus. Rule 21(e), Ala.R.App.P. This procedure will adequately protect the interest of a defendant, as emphasized in Abney [v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)], so as to avoid the personal strain, public embarrassment, and expense of a subsequent criminal trial."
669 So.2d at 135. Thus, a petition for a writ of mandamus is a viable method by which to challenge a trial court's ruling on a motion to dismiss based on double jeopardy grounds.
The petitioner contends that the doctrine of double jeopardy and/or the doctrine of collateral estoppel bar his third trial on a charge of manslaughter.
The Code section defining manslaughter, § 13A-6-3, Code of Alabama 1975, establishes two separate manslaughter offenses: subsection (a)(1) defines "reckless" manslaughter; and subsection (a)(2) defines "heat-of-passion" manslaughter. The petitioner contends that in his first trial, the jury was given, in addition to instructions on murder, instructions on heat-of-passion manslaughter, § 13A-6-3(a)(2), but was not instructed as to reckless manslaughter, § 13A-6-3(a)(1), because, he says, the trial court found that no evidence was presented to support a charge of reckless manslaughter. The petitioner claims that he was therefore acquitted of reckless manslaughter. Likewise, in his second trial, the petitioner contends that the jury was given instructions only on reckless manslaughter because the trial court refused to instruct on heat-of-passion manslaughter and he argues that he was therefore likewise acquitted of heat-of-passion manslaughter in his second trial.
The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This right is echoed in Article I, § 9, of the Constitution of Alabama of 1901, which states:
"That no person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by *545 law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury."
The petitioner was acquitted of the charge of murder when he was convicted of manslaughter in his first trial. The conviction for a lesser included offense is an implied acquittal as to the greater offense. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). The fact that the petitioner's first conviction of manslaughter, was reversed by the court does not prevent the State from trying him again on charges of manslaughter or any lesser offense of manslaughter. "The Double Jeopardy Clause does not preclude the State's retrying a defendant whose conviction is set aside because of an error in the proceedings." Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995). Also, a mistrial due to a deadlocked jury in the second trial does not preclude petitioner's retrial on manslaughter.
"A mistrial, declared after a trial judge has determined that the jury cannot agree upon a verdict, does not terminate the original jeopardy to which the defendant was subjected. Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). Thus, a defendant's retrial following a hung jury does not constitute double jeopardy under the Alabama or United States Constitutions."
McKinney v. State, 567 So.2d 870, 874 (Ala. Cr.App.), cert. denied, 567 So.2d 877 (Ala. 1990). See also Article I, § 9, Alabama Constitution of 1901.
The petitioner's contention that he was subjected to double jeopardy because of the trial court's refusal to give instructions on a particular type of manslaughter in each of his two previous trials and that the trial court's refusal to do so resulted in an acquittal as to those offenses is not supported by prior case law. Although there are two distinct and mutually exclusive types of manslaughter, "[t]hese subsections do not ... constitute separate offenses for purposes of jeopardy." Quinlivan v. State, 627 So.2d 1082, 1088 (Ala.Cr.App.1992).
"The appellant cites Ex parte Washington, 448 So.2d 404 (Ala.1984), for the proposition that intentional murder and reckless murder are separate offenses outlined in §§ 13A-6-2(a)(1) and -(a)(2). He then argues by analogy that reckless manslaughter and heat-of-passion manslaughter are separate offenses under subsections (a)(1) and (a)(2) of the manslaughter statute. Ex parte Washington referred to the `intentional murder and reckless murder alternatives ... contained in different subsections of § 13A-6-2.' 448 So.2d at 407 (emphasis added). That case held that one alternative is not a lesser included offense of the other. It did not hold that intentional murder and reckless murder are `separate offenses' for purposes of determining whether jeopardy had attached.
"By the same token, in McLaughlin v. State, [586 So.2d 267 (Ala.Cr.App.1991)] this Court did not hold that subsections (a)(1) and (a)(2) of the manslaughter statute constitute separate offenses for jeopardy purposes. In McLaughlin, we said that
"`[t]he offense of sudden heat-of-passion manslaughter identified in §§ 13A-6-2(b) and 13A-6-3(a)(2) sets out "the law of mitigating an intentional murder to manslaughter if committed under a naturally engendering passion" ... [while]... the offense of manslaughter identified in § 13A-6-3(a)(1) describes a reckless homicide.'
"586 So.2d at 272 (original emphasis deleted, present emphasis added [in Quinlivan]). We should not have used the term `offense' to draw a distinction in McLaughlin between the two ways of committing the crime of manslaughter. Instead, it would have been more precise to employ the term `variant' or `alternative' to describe the two different ways in which the single offense of manslaughter set out in § 13A-6-3 can be violated. The fact that we used imprecise language in another context, however, does not convert two different types of conduct, either of which the legislature intended to constitute the single crime of manslaughter, into separate `offenses' for purposes of jeopardy here.
"To paraphrase the United States Supreme Court, *546 "`[the appellant's] real challenge is to [Alabama's] characterization of [manslaughter] as a single crime as to which a verdict need not be limited to any one statutory alternative, as against which he argues that [reckless manslaughter] and [heat-of-passion manslaughter] are separate crimes as to which the jury must return separate verdicts. The issue in this case, then, is one of the permissible limits in defining criminal conduct, as reflected in the instructions to jurors applying the definitions....'
"Schad v. Arizona, 501 U.S. [624] at 630-31, 111 S.Ct. [2491] at 2496[, 115 L.Ed.2d 555 (1991)]. There is no question here that the Alabama legislature was acting within permissible limits in defining the offense of manslaughter in terms of alternative, and mutually exclusive, mental states. Mutually exclusive mental states have always characterized the crime of manslaughter in Alabama. Even prior to the adoption of the Alabama Criminal Code in 1979, either a reckless killing, Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958), or a killing in sudden passion with sufficient provocation, Easley v. State, 246 Ala. 359, 20 So.2d 519 (1945), constituted manslaughter. Alabama appellate courts have long held that
"`Intent to kill is but an alternative ingredient [of manslaughter]: the same state of mind can be imputed from conduct wanton and reckless toward human life. The likelihood of another's being imperiled by the wanton conduct, no less than actual knowledge, makes for culpability, thus supplying mens rea in voluntary manslaughter.'
"Anderson v. State, 40 Ala.App. 509, 513, 120 So.2d 397, 400 (1959), cert. denied, 270 Ala. 575, 120 So.2d 414 (1960), reversed on other grounds, 366 U.S. 208, 81 S.Ct. 1050, 6 L.Ed.2d 233 (1961)."
627 So.2d at 1088-89.
The petitioner's contention that the doctrine of collateral estoppel should prevent his trial on charges of criminally negligent homicide or retrial on charges of manslaughter is also unfounded.
"The doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy ... [and] ... provides 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."
United States v. Bailey, 34 F.3d 683, 688 (8th Cir.1994). There has been no final judgment of an issue of ultimate fact regarding the manslaughter charge because the first conviction was reversed and the second trial resulted in a hung jury.
The petitioner has made no showing that the doctrine of double jeopardy or the doctrine of collateral estoppel should be applied to prevent the state from retrying him for manslaughter. Therefore, the appellant's petition for a writ of mandamus is due to be denied.
PETITION DENIED.
All the Judges concur.
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Order entered September 8, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00721-CR
XAVIER ALEXANDER ANDRADE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F13-25334-H
ORDER
The clerk’s record in this case does not contain a copy of the trial court’s order
appointing Leslie McFarlane to represent appellant on appeal. Accordingly, we ORDER the
Dallas County District Clerk to file, within FIFTEEN DAYS of the date of this order, a
supplemental record containing the trial court’s order appointing Ms. McFarlane to represent
appellant.
We DIRECT the Clerk to send copies of this order, by electronic transmission, to Gary
Fitzsimmons, Dallas County District Clerk, and to counsel for all parties.
/s/ DAVID EVANS
JUSTICE
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310 F.2d 107
John H. GATELY, Appellant,v.Leonard V. B. SUTTON, Otto Moore, Edward C. Day, William E.Doyle, Frank H. Hall, and Francis J. Knauss, Appellees.
No. 7045.
United States Court of Appeals Tenth Circuit.
Oct. 16, 1962.
John H. Gately, Colorado Springs, Colo., pro se.
Frank E. Hickey, Deputy Atty. Gen., Denver, Colo. (Duke W. Dunbar, Atty. Gen., Denver, Colo., with him on the brief), for appellees.
Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.
PICKETT, Circuit Judge.
1
The petitioner, Gately, formerly a practicing attorney in Colorado Springs, Colorado, relying upon one of the provisions of the Civil Rights Act, 42 U.S.C. 1983, brought this action against members of the Supreme Court of Colorado requesting, in his prayer for relief, an order directing that Court to set aside an order of disbarment and damages in the sum of $500,000. This is an appeal from an order dismissing the petition upon the ground that the federal district court was without jurisdiction to award the relief prayed for.
2
From the allegations it appears that the disbarment proceeding resulted from a public charge by the petitioner that the Chief Justice of the Colorado Supreme Court accepted a bribe to influence or control the Court's decision in an appeal pending before it in which the petitioner represented the appellant. No appeal from the final order of disbarment was taken to the Supreme Court of the United States. The effect of the petitioner's allegations is that the Supreme Court of Colorado, in the disbarment proceeding, refused to receive the evidence of the truth of the allegation of bribery which the petitioner submitted at the hearing, and unlaefully entered the order of disbarment. It is obvious from the petition, the record, and the appellant's brief that the relief sought is a review of the disbarment proceedings in the Supreme Court of Colorado culminating in a nullification of that Court's disbarment order.1
3
The Supreme Court of Colorado has exclusive jurisdiction to admit attorneys to practice in the Colorado courts and to strike them from the roll for misconduct. Colo.Rev.Stat.1953, 12-1-1, 12-1-8. The federal courts do not have jurisdiction to review an order of the Colorado Court disbarring an attorney in that state for personal and professional misconduct. Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585. See In re MacNeil, 1 Cir., 266 F.2d 167, cert. denied 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103; In re Noell, 8 Cir ., 93 F.2d 5; In re Bennethum, D.Del., 196 F.Supp. 541; In re Crow, N.D. Ohio, 181 F.Supp. 718, aff'd 6 Cir., 283 F.2d 685; Keeley v. Evans, D.Or., 271 F. 520, appeal dismissed 257 U.S. 667, 42 S.Ct. 184, 66 L.Ed. 426. In Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342, the Supreme Court said:
4
'It is not for this Court, except within the narrow limits for review open to this Court, as recently canvassed in Konigsberg v. California, 353 U.S. 252, (77 S.Ct. 722, 1 L.Ed.2d 810), and Schware v. Board of Bar Examiners, 353 U.S. 232 (77 S.Ct. 752, 1 L.Ed.2d 796), to sit in judgment on Louisiana disbarments, and we are not in any event sitting in review of the Louisiana judgment. While a lawyer is admitted into a federal court by way of a state court, he is not automatically sent out of the federal court by the same route . The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers, among whom, in the present context, lawyers are included. * * *'
5
The limits of review referred to are violations, in the course of disbarment proceedings, of the due process or equal protection clauses of the Fourteenth Amendment, and a petition for a writ of certiorari to the Supreme Court of the United States is the only method by which review may be had. In re MacNeil, supra.
6
Furthermore, the federal courts have no jurisdiction to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties, including disbarment proceedings . In re Blake, 175 U.S. 114, 20 S.Ct. 42, 44 L.Ed. 94; In re Green, 141 U.S. 325, 12 S.Ct. 11, 35 L.Ed. 765; Biggs v. Ward, 7 Cir., 212 F.2d 209. See Daniels v. Thomas, 10 Cir., 225 F.2d 795, cert. denied 350 U.S. 932, 76 S.Ct. 303, 100 L.Ed. 815; Jones v. Medlock, 10 Cir., 180 F.2d 658, cert. denied 340 U.S. 819, 71 S.Ct. 50, 95 L.Ed. 602. The opinion of the Supreme Court in In re Green, supra, effectively disposes of Gately's prayer for relief by writ of mandamus.
7
With respect to the prayer for damages, it is clear that in the disbarment proceeding the Supreme Court of Colorado was acting within its statutory power, and the proceedings were within the jurisdiction of that Court. This Court has said in a number of cases that judges, when performing their official duties in matters within their jurisdiction, are immune from liability for damages for any alleged violation of the Civil Rights Act. Kostal v. Stoner, 10 Cir., 292 F.2d 492, cert. Denied 369 U.S. 868, 82 S.Ct. 1032, 8 L.Ed.2d 87; Spriggs v. Pioneer Carissa Gold Mines, Inc., 10 Cir., 251 F.2d 61, cert. denied 356 U.S. 950, 78 S.Ct. 914, 2 L.Ed.2d 843; Ryan v. Scoggin, 10 cir., 245 F.2d 54. See Bottone v. Lindsley, 10 Cir, 170 F.2d 705, cert. denied 336 U.S. 944, 69 S.Ct. 810, 93 L.Ed. 1101.
8
Affirmed.
1
The prayer of the petition reads:
'WHEREFORE your Petitioner respectfully prays that this Court forthwith enter an order of Mandamus directed to the members of the Supreme Court of Colorado, Defendants herein, and correct the error of the Supreme Court of Colorado by its Writ of Mandamus and order that Court to expunge the order of suspension entered October 31, 1960, Ex. F. and the order of disbarrment of July 24, 1961, restraining the Petitioner herein from the practice of law, and award damages to your Petitioner as prayed herein in the sum of $500,000.00.'
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United States Court of Appeals
for the Federal Circuit
__________________________
SANDISK CORPORATION,
Plaintiff-Appellant,
v.
KINGSTON TECHNOLOGY CO., INC.
AND KINGSTON TECHNOLOGY CORP.,
Defendants-Appellees.
__________________________
2011-1346
__________________________
Appeal from the United States District Court for the
Western District of Wisconsin in consolidated case nos.
07-CV-0605 and 07-CV-0607, Senior Judge Barbara B.
Crabb.
__________________________
Decided: October 9, 2012
__________________________
GREGORY A. CASTANIAS, Jones Day, of Washington,
DC, argued for plaintiff-appellant. With him on the brief
was DOUGLAS R. COLE, of Columbus, Ohio. Of counsel
were VICTORIA DORFMAN, of New York, New York, and
THARAN G. LANIER, of Palo Alto, California.
DAVID M. BARKAN, Fish & Richardson P.C. of Red-
wood City, California, argued for defendants-appellees.
SANDISK CORP v. KINGSTON TECH 2
With him on the brief was DAVID HOFFMAN, of Austin,
Texas. Of counsel on the brief was CHRISTINE YANG, Law
Offices of S. J. CHRISTINE YANG, of Fountain Valley,
California. Of counsel was ALAN D. SMITH, of Boston,
Massachusetts.
__________________________
Before PROST, REYNA, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST.
Opinion concurring-in-part and dissenting-in-part filed by
Circuit Judge REYNA.
PROST, Circuit Judge.
SanDisk Corporation (“Sandisk”) sued Kingston
Technology Co., Inc. and Kingston Technology Corp.
(collectively “Kingston”) for infringement of U.S. Patent
Nos. 5,719,808 (“’808 patent”), 6,149,316 (“’316 Patent”),
6,426,893 (“’893 patent”), 6,757,842 (“’842 patent”), and
6,763,424 (“’424 patent”). After the district court issued
its claim construction opinion, SanDisk withdrew its
infringement claims with respect to the ’808 and ’893
patents and claims 1, 6, 7, 10, 12, 15, 18, and 20 of the
’842 patent. The district court granted Kingston’s motion
for summary judgment of non-infringement with respect
to certain asserted claims of the ’842, ’316, and ’424
patents. SanDisk dismissed its remaining infringement
claims and has appealed the district court’s judgment.
For the reasons set forth below, we affirm in part, vacate
in part, and remand for further proceedings.
I. BACKGROUND
The patents-in-suit all relate to various aspects of
flash memory, which is the type of Electrically Erasable
Programmable Read-Only Memory (“EEPROM”) used, for
3 SANDISK CORP v. KINGSTON TECH
example, in USB “thumb drives,” computers, smart
phones, and mp3 players. A benefit of flash memory is
that it is “non-volatile”; in other words, it continues to
store data even after the power source is removed. A
thumb drive, for example, retains its saved data after
being removed from a host computer and can be used to
transport data from one computer to another.
A typical flash memory device includes one or more
flash memory integrated circuit chips and a controller.
Each flash memory chip contains memory cells for storing
data. The cells are arranged as “pages” with multiple
pages comprising a “block” of cells.
The flash memory device’s controller accepts com-
mands from the “host” device (e.g., the computer to which
the USB thumb drive is attached) and then writes data
to, or retrieves data from, the memory chip depending on
the host device’s command. To write and retrieve data,
the controller must be able to identify where each piece of
data is located in the system. This tracking of data is
accomplished through “addressing.” In general, the
system uses two types of addresses: “physical” and “logi-
cal.” The physical address refers to the physical location
in the system where particular data is stored. The logical
address is the identifier for a specific piece of data; it
describes the data without regard to the data’s physical
location. Because a particular piece of data can change its
physical location, a logical address may be associated with
one physical address at one time and another physical
address at a different time. The controller maps the
logical address to the correct physical address, allowing
the flash memory system to provide the correct data to
the host device.
SANDISK CORP v. KINGSTON TECH 4
Unlike typical computer memory, the old data on the
flash memory cell must be erased every time new data is
written to the cell. The memory cells are erased an entire
block at a time, while data is written to the cell one page
at a time; the erasure of data, therefore, occurs in larger
segments than the writing of data. These erase/write
cycles wear down the memory cell until the cell eventually
no longer reliably stores information. The patents-in-suit
relate to various methods and systems for managing the
data in the flash memory system, including methods for
reducing the wear and tear on the flash memory cells.
SanDisk filed two complaints in the U.S. District
Court for the Western District of Wisconsin against
Kingston for patent infringement, and the district court
consolidated the two actions on January 28, 2008. After
the district court issued its claim construction order,
SanDisk withdrew its infringement allegations with
respect to claims 1, 6, 7, 10, 12, 15, 18, and 20 of the ’842
patent and all asserted claims of the ’893 and ’808 pat-
ents. Both parties moved for summary judgment. The
district court granted SanDisk’s motion as to SanDisk’s
claim that Kingston was contributorily infringing claims
20, 24, 28, and 30 of the ’424 patent by selling products
containing a Phison PS3006 controller. With respect to
all remaining asserted claims, the court found that King-
ston was not infringing as a matter of law and ultimately
entered judgment in favor of Kingston on those claims.
After the district court’s summary judgment order, the
parties entered into a Stipulation and Order Dismissing
Remaining Claims for Relief (“Stipulation”), whereby
SanDisk dismissed without prejudice its remaining in-
fringement claims involving the ’424 patent, and Kingston
dismissed without prejudice its related invalidity and
enforceability counterclaims. J.A. 17754-55. SanDisk
5 SANDISK CORP v. KINGSTON TECH
timely appealed, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(1).
II. DISCUSSION
On appeal, SanDisk argues that the district court
erred in its construction of the following claim terms:
“recording a relative time of programming . . .” in claims 1
and 3 of the ’424 patent; “user data portion” and “over-
head portion” in claims 1, 10, and 61 of the ’842 patent
and claim 67 of the ’316 patent; “block characteristic
information” in claims 1 and 65 of the ’893 patent; and
“designating a combination[] . . .” in claim 16 of the ’808
patent. In addition to its claim construction arguments,
SanDisk further contends that the district court legally
erred in entering summary judgment of non-infringement
in favor of Kingston as to claim 20 of the ’424 patent and
claim 79 of the ’316 patent.
Claim construction is a question of law reviewed de
novo. Cybor Corp v. FAS Techs., Inc., 138 F.3d 1448,
1454-55 (Fed. Cir. 1998) (en banc). Claim terms generally
are construed in accordance with the ordinary and cus-
tomary meaning they would have to one of ordinary skill
in the art in light of the specification and the prosecution
history. Phillips v. AWH Corp., 415 F.3d 1303, 1312-14
(Fed. Cir. 2005) (en banc).
We review the district court’s grant of summary
judgment de novo, drawing all reasonable inferences in
favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Summary judgment is appro-
priate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
SANDISK CORP v. KINGSTON TECH 6
A. Claim Construction
As an initial matter, Kingston argues that we should
not address certain claim construction issues presented
by SanDisk because either we lack jurisdiction to review
the district court’s construction or SanDisk waived its
right to advance its proposed construction on appeal.
First, Kingston contends that we lack jurisdiction to
review the district court’s claim constructions related to
claims 1 and 65 of the ’893 patent, claim 16 of the ’808
patent, and claims 1 and 10 of the ’842 patent because
SanDisk voluntarily withdrew those claims from the
litigation without the parties stipulating to a judgment of
non-infringement; thus, Kingston argues, there is no
judgment for this court to review. We agree.
After the district court entered its claim construction
order, SanDisk informed Kingston that it was no longer
pursuing these claims. The district court never entered a
separate order dismissing these claims, but it acknowl-
edged in its summary judgment opinion that SanDisk had
withdrawn them. J.A. 40. We, therefore, treat SanDisk’s
withdrawal of the claims as being akin to either a Federal
Rule of Civil Procedure 15 amendment to the complaint,
see Gronholz v. Sears, Roebuck & Co., 836 F.2d 515, 518
(Fed. Cir. 1987) (“[A] plaintiff’s motion to dismiss a single
claim of a multi-count complaint is properly treated as an
amendment under . . . [Rule] 15.”), or a Rule 41(a) volun-
tary dismissal of claims without prejudice, see Nilssen v.
Motorola, Inc., 203 F.3d 782, 784 (Fed. Cir. 2000) (“In
many instances the procedure for, and effect of, an
amendment will be the same as a voluntary dismissal
because of the similarities between the governing rules.”)
(internal quotations and citations omitted). Regardless of
how we characterize the withdrawal, these claims are no
7 SANDISK CORP v. KINGSTON TECH
longer at issue, and we accordingly have no final judg-
ment before us with respect to these claims to review.
Our jurisdiction, however, is generally limited to final
judgments: “Under the ‘final judgment rule,’ parties may
only appeal a ‘final decision of a district court.’” Spread
Spectrum Screening L.L.C. v. Eastman Kodak Co., 657
F.3d 1349, 1354 (Fed. Cir. 2011) (quoting 28 U.S.C.
§ 1295(a)(1)). Here, SanDisk voluntarily withdrew the
’893 and ’808 patents and claims 1 and 10 of the ’842
patent from this action, and it does not dispute that the
district court never entered a stipulated judgment of non-
infringement with respect to these claims. Thus, these
claims do not present a current infringement controversy
before this court. Without such a controversy, we lack
Article III jurisdiction to decide these issues. See Streck,
Inc. v. Research & Diagnostics Sys., Inc., 665 F.3d 1269,
1281 (Fed. Cir. 2012) (“It is well-established that, in
patent cases, the existence of a ‘case or controversy must
be evaluated on a claim-by-claim basis.’”); Jang v. Boston
Sci. Corp., 532 F.3d 1330, 1336 (Fed. Cir. 2008) (resolving
claim construction issues “that do not actually affect the
infringement controversy between the parties” would
result in impermissible advisory opinion because “[t]he
Supreme Court has explicitly held that Article III does
not permit the courts to resolve issues when it is not clear
that the resolution of the question will resolve a concrete
controversy between interested parties”).
As a result, we reject SanDisk’s contention that the
district court’s ultimate entry of a final judgment confers
appellate jurisdiction over these withdrawn claims. To
the contrary, where, as here, a party’s claim construction
arguments do not affect the final judgment entered by the
court, they are not reviewable. See Mass. Inst. of Tech. v.
Abacus Software, 462 F.3d 1344, 1350 (Fed. Cir. 2006)
SANDISK CORP v. KINGSTON TECH 8
(refusing to address claim construction arguments “perti-
nent only to dismissed claims of invalidity” because “[a]n
appeal is not an opportunity to bring before the appellate
court every ruling with which one or more of the parties
disagrees without regard to whether the ruling has in any
way impacted the final judgment”).
Nor does the parties’ Stipulation, relied upon by San-
Disk, establish our jurisdiction. After the district court
ruled on the summary judgment motions (and after
SanDisk withdrew these claims), the parties entered into
the Stipulation, whereby SanDisk dismissed its “remain-
ing” infringement claims and Kingston dismissed its
related validity and unenforceability counterclaims.
According to SanDisk, the Stipulation’s recognition that
this court might “reverse[] remand[], or vacate[], in whole
or in part, the Court’s September 22, 2010 Claim Con-
struction Order” and that the parties agreed that the
“Stipulation shall not in any way prejudice any parties’
[sic] right to appeal this matter in whole or in part, in-
cluding, but not limited, to an appeal of the Court’s Sep-
tember 22, 2010 Claim Construction Order,” J.A. 17754-
55, evinces SanDisk’s “intent to pursue, on appeal, argu-
ments that those claim-construction rulings were legally
incorrect,” including any arguments related to the with-
drawn claims, SanDisk’s Reply Br. 2.
We are not persuaded. First, the Stipulation does not
change the fact that there is no final judgment with
respect to the withdrawn claims for us to review. Without
a final judgment as to the infringement or validity of
these claims, the court’s claim constructions that impact
only these withdrawn claims are not properly before us.
Second, the parties’ agreement that the Stipulation would
not affect their right to appeal the entire claim construc-
tion order cannot create a right to appeal where one
9 SANDISK CORP v. KINGSTON TECH
otherwise does not exist. See Bender v. Williamsport Area
School Dist., 475 U.S. 534, 541 (1986) (“[E]very federal
appellate court has a special obligation to satisfy itself . . .
of its own jurisdiction . . . even though the parties are
prepared to concede it.”) (internal quotation marks and
citations omitted). Consequently, we conclude that we
lack jurisdiction to resolve SanDisk’s claim construction
arguments that impact only the withdrawn claims.
Second, Kingston argues that SanDisk waived its
right to challenge the district court’s construction of “user
data portion” and “overhead data portion” in claim 61 of
the ’842 patent and claim 67 of the ’316 patent because (1)
the parties never presented these terms to the court for a
construction, and (2) SanDisk never disputed the court’s
construction of these terms during summary judgment.
SanDisk, however, maintains that it did not waive these
arguments because the district court construed the re-
lated terms “user data” and “overhead information” in
claims 1 and 10 of the ’842 patent, and the parties ac-
cepted that this construction also applied to claim 61 of
the ’842 patent and claim 67 of the ’316 patent. According
to Sandisk, Kingston confirmed this understanding when
it made the following representation to the district court
in its memorandum in support of its motion for summary
judgment:
Neither SanDisk nor Defendants presented the is-
sue of whether claims 61 and 67 were limited to
only one user data portion and one overhead data
portion during the claim construction process.
But as explained below, both parties understood
those claims to have the same scope as claims 1
and 10 of the ’842 patent. Indeed, Defendants
were quite surprised when SanDisk indicated it
would continue to assert claims 61 and 67, despite
SANDISK CORP v. KINGSTON TECH 10
the Court’s clear guidance as to the limited scope
of these claims imposed by the claim language.
J.A. 7341 n.4 (emphasis added). Moreover, according to
SanDisk, because it had already presented its claim
construction positions to the district court during the
Markman proceedings, it was not required to continue
challenging the court’s construction during summary
judgment to preserve its arguments for appeal.
We agree with SanDisk. Based on Kingston’s own
representations to the district court, the parties assumed
that the court’s constructions for claims 1 and 10 of the
’842 patent would also apply to the related terms in claim
61 of the ’842 patent and claim 67 of the ’316 patent. We,
therefore, are not persuaded by Kingston’s argument that
SanDisk failed to present its claim construction position
to the district court. Nor was SanDisk required to repeat
its unsuccessful construction arguments to the district
court during summary judgment to preserve the issue for
appeal. See O2 Micro Int’l Ltd. v. Beyond Innovation
Tech. Co., 521 F.3d 1351, 1358-59 (Fed. Cir. 2008) (finding
that party did not waive right to challenge claim con-
struction on appeal when it had advanced the argument
during Markman proceedings but did not object to the
district court’s jury instruction on that claim construc-
tion).
Accordingly, because we conclude that we lack juris-
diction over the ’808 and ’893 patents and claims 1 and 10
of the ’842 patent, we limit our review of the district
court’s claim constructions to (1) the “recording a relative
time of programming . . .” limitation in claims 1 and 3 of
the ’424 patent, and (2) the “at least a user data portion
and an overhead portion” limitation in claim 61 of the
’842 patent and claim 67 of the ’316 patent.
11 SANDISK CORP v. KINGSTON TECH
1. “recording a relative time of programming that at least
one page of new data and the at least one page of super-
ceded data” (’424 patent, claims 1 & 3)
In the conventional flash EEPROM system, an entire
block of data is copied to a new block, with the updated
data replacing the superceded data. The entire old data
block is then erased. This method caused re-writing of
the non-updated data with the resulting wear and tear on
the flash memory cells.
The ’424 patent covers a method for performing “par-
tial block” updates in flash memory devices. When the
flash memory system makes minor updates to already
stored data, such as by changing a few words in a docu-
ment, it performs a “partial block” update; in other words,
only part of the data block is updated. The controller
writes only the pages with the updated data into the new
block as opposed to rewriting the entire block of data.
The new data shares a logical address with the super-
ceded data. The controller reads the data from the blocks,
identifying those pages that have been superceded by a
more recently updated page sharing the logical address.
When the controller reports the data to the host system, it
substitutes the superceded pages with this updated data.
Claim 1 of the ’424 patent is representative:
1. In a non-volatile memory system having a plu-
rality of blocks of memory storage elements that
are individually erasable as a unit and which are
individually organized into a plurality of pages of
memory storage elements that are individually
programmable together, a method of substituting
new data for superceded data within at least one
page of one of the plurality of blocks while data in
SANDISK CORP v. KINGSTON TECH 12
at least another page of said one block is not re-
placed, comprising:
programming the new data into at least one
page of said one or another of the plural-
ity of blocks,
identifying the at least one page of superceded
data and the at least one page of new
data by a common logical address,
recording a relative time of programming the
at least one page of new data and the at
least one page of superceded data; and
wherein the at least one page of superceded
data is less than all the data contained in
said one block.
’424 patent col.12 l.60-col.13 l.10 (emphasis added).
The specification teaches two methods for identifying
the physical page containing the most recent version of
data with the same logical address. First, the specifica-
tion discloses writing a time stamp onto each individual
page that “provides an indication of its time of program-
ming, at least relative to the time that other pages with
the same logical address are programmed.” Id. at col.8
ll.26-40. Second, the specification teaches recording the
programming time for an entire block, referred to by the
parties as the “Block Recording Method.” See id. at col.9
l.40-col.10 l.43. In this method, “the time stamp . . . does
not need to be stored as part of each page” but “[r]ather, a
single time stamp can be recorded for each block, either
as part of the block or elsewhere within the non-volatile
memory, and is updated each time a page of data is
written into the block.” Id. at col.9 ll.42-50. Within the
13 SANDISK CORP v. KINGSTON TECH
block, the new data is physically stored after the old data
such that the most recent page with a particular logical
address is determined by the relative physical order of
those pages within the block: “Data is then read from
pages in an order of descending physical address, starting
from the last page of the most recently updated block
containing data pages having the same LBN [Logical
Block Number].” Id. at col.9 ll.50-53.
On appeal, SanDisk challenges the district court’s
construction of the “recording a relative time of program-
ming . . .” limitation in claims 1 and 3 of the ’424 patent.
According to SanDisk, the district court improperly con-
strued the claims to exclude the “Block Recording
Method” and further limited the claims during summary
judgment to require the recording of an actual time.
Specifically, SanDisk argues, inter alia, that Figures 8
and 11, along with the specification’s teaching of the
Block Recording Method, indicate that claims 1 and 3
encompass this method. In response, Kingston contends
that the claims need not cover all embodiments in the
specification particularly where none of the embodiments
is described as being “preferred.” Kingston maintains
that the district court’s construction was correct because
claims 1 and 3 of the ’424 patent explicitly require re-
cording the time the pages were programmed, as opposed
to only recording a single time value for the entire block
as in the Block Recording Method.
We agree with SanDisk that the district court im-
properly excluded the Block Recording Method from
claims 1 and 3 of the ’424 patent. First, the claim lan-
guage supports SanDisk’s broader construction. The
claims only require “recording a relative time of pro-
gramming,” not “a time of programming.” The use of
“relative” is significant: whereas “recording the time of
SANDISK CORP v. KINGSTON TECH 14
programming” would suggest that a time of programming
must be recorded for each page, “recording a relative time
of programming” merely requires recording some indica-
tion of the order of programming for those pages sharing
a logical address. The claims place no limitation on how
the claimed “recording” occurs.
Turning to the specification, its teachings are consis-
tent with this interpretation. The specification unambi-
guously discloses two distinct techniques for
“distinguish[ing] the pages containing the superceded
data from those containing the new, updated version [of
the data].” ’424 patent col.7 ll.59-60. In the first method,
a time stamp indicator is associated with each page of
data; in the second method—the Block Recording
Method—the time stamp indicator is associated with the
block, and the physical order of the pages in the block
identifies the most recently updated data with a particu-
lar logical address. As quoted above, in this “second
specification implementation of the inventive technique,”
“[t]he time stamp . . . does not need to be stored as part of
each page. Rather, a single time stamp can be recorded
for each block.” Id. at col.9 ll.40-53.
Figures 8 and 11 of the ’424 patent provide further il-
lustrations of this second implementation. In Figure 8,
the relative time of programming the updated and origi-
nal logical pages 3, 4, and 5 is determined by reading the
pages in the most recent physical block (PBN1) in reverse
order, “followed by reading the pages of the original block
(PBN0) in the same reverse order.” Id. at col.9 ll.56-57.
After the data in the updated pages—here, logical pages
3, 4, and 5 on physical pages 0, 1, and 2 of block PBN1—is
read, “the superceded data in those pages of the original
block PBN0 that are identified by the same logical page
15 SANDISK CORP v. KINGSTON TECH
numbers can be skipped during the reading process.” Id.
at col.9 ll.58-61.
In describing Figure 8, the specification additionally
instructs that “[o]nly an identity of those physical blocks
containing data of a common logical block and the relative
times that the physical blocks were programmed need to
be known in order to carry out this efficient reading
process.” Id. at col.10 ll.3-7.
Similarly, Figure 11 discloses a second update to logi-
cal page 5 within the same physical block (PBN1) where
the physical location of the two pages within the block
identifies the most recently updated page:
SANDISK CORP v. KINGSTON TECH 16
Specifically, in Figure 11, the new physical block
(PBN1) contains two versions of original page 5 located at
PBN1 physical page 2 and PBN1 physical page 3. Be-
cause the data will be read backwards starting from the
last page of the new block, the user data on PBN1 physi-
cal page 3 will be read, but the data on PBN1 physical
page 2 will not: “It will be noted that this example of
reading pages in a reverse order efficiently sorts out the
new data pages from the superceded data pages because
data are written in physical page locations of an erased
block in order from page 0 on.” Id. at col.10 ll.29-33.
Reading the claims in light of the specification, we
conclude that the district court erred in finding that
claims 1 and 3 of the ’424 patent excluded the Block
Recording Method. Further, to the extent that the dis-
trict court, during summary judgment, interpreted this
limitation as requiring the recording of an actual time of
programming, we agree with SanDisk that such an inter-
pretation is incorrect. Consistent with our conclusion
that the claims encompass the Block Recording Method, it
necessarily follows that the “relative time of program-
17 SANDISK CORP v. KINGSTON TECH
ming” can be recorded through non-temporal means such
as the location of the physical pages within the block or
the use of a “modulo-N counter” which also is disclosed in
the specification. 1
2. “at least a user data portion and an overhead portion”
(’842 patent, claim 61 & ’316 patent, claim 67)
The district court found that the “user data and over-
head information” limitation in claims 1 and 10 of the
’842 patent was “limited to a single user data and a single
overhead portion.” J.A. 35. During summary judgment,
the court applied this construction to the related limita-
tion, “a user data portion and an overhead portion” in
claim 61 of the ’842 patent and claim 67 of the ’316 pat-
ent, which, as we concluded above, are before us on ap-
peal.
Claim 61 of the ’842 patent is representative:
61. A method of operating a memory system with
a host system that includes a processor, wherein
the memory system includes one or more inte-
grated circuit chips individually including an ar-
ray of non-volatile floating gate memory cells
partitioned into a plurality of sectors that indi-
vidually include a distinct group of memory cells
that are erasable together as a unit, comprising:
1 The specification discloses storing the output
of a “modulo-N counter” to identify the most recently
updated page of a specific logical address. As the specifi-
cation explains, “[w]hen updating the data of a particular
page . . . the controller first reads the count stored in the
field 43 of the page whose data are being updated, incre-
ments the count by some amount, such as one, and then
writes that incremented count in the new block . . . .” ’424
patent col.8 ll.45-51.
SANDISK CORP v. KINGSTON TECH 18
providing said one or more of the memory in-
tegrated circuit chips and a memory con-
troller within a card that is removably
connectable to the host system said con-
troller being connectable to said proces-
sor for controlling operation of the
memory system when the card is con-
nected to the host system,
operating memory cells within individual sec-
tors with at least a user data portion and
an overhead portion,
causing the controller, in response to receipt
from the processor of an address in a
format designating at least one mass
memory storage block, to designate an
address of at least one non-volatile mem-
ory sector that corresponds with said at
least one mass memory storage block;
either writing user data to, or reading from,
the user data portion of said at least one
non-volatile memory sector; and
either writing to, or reading from, said over-
head portion of said at least one non-
volatile memory sector, overhead data re-
lated either to said at least one non-
volatile memory sector or to data stored
in the user data portion of said at least
one non-volatile memory sector.
’842 patent col.22 l.51-col.23 l.12 (emphases added).
SanDisk argues that the district court improperly fo-
cused on the claims’ use of the definite articles “the” and
19 SANDISK CORP v. KINGSTON TECH
“said” in connection with the user data portion and over-
head portion without looking at the language of the claim
as a whole. According to SanDisk, because the claims’
earlier references to the user data and overhead portions
use the indefinite articles “a” and “an,” under traditional
claim construction rules, those terms cover “one or more,”
not only one. This position, SanDisk contends, is sup-
ported by several dependent clams that expressly include
an “only one” user data portion and overhead portion
limitation. Lastly, SanDisk argues that the specification
suggests the possibility of multiple user data and over-
head data portions. In response, Kingston argues that
the claims’ use of indefinite articles does not assist San-
Disk because the specification only discloses a single user
data portion and a single overhead data portion. With
respect to SanDisk’s claim differentiation argument,
Kingston contends that the court’s construction does not
violate the doctrine of claim differentiation because the
independent claims “allow[] the system to include other
potential portions of information beside overhead and
user data.” Kingston’s Resp. Br. 36.
We agree with SanDisk that the court improperly lim-
ited the claims to only one user data portion and only one
overhead data portion. In its claim construction opinion,
the district court determined that “[t]he claim’s reference
to ‘the user data portion’ and ‘said overhead portion’
supports the proposed limitation.” J.A. 7. The court also
emphasized this use of “the” and “said” in concluding that
“the claim leaves no doubt that it covers a method involv-
ing only one user data portion and one overhead portion.”
J.A. 8.
This conclusion is contrary to Baldwin Graphics Sys-
tems, Inc. v. Siebert, 512 F.3d 1338 (Fed. Cir. 2008). In
Baldwin, we explained that the later use of “the” and
SANDISK CORP v. KINGSTON TECH 20
“said” to refer back to an earlier claim term does not limit
that claim term to the singular, and we also articulated
the general rule that the use of the indefinite articles “a”
or “an” means “one or more”:
[T]his court has repeatedly emphasized that an
indefinite article “a” or “an” in patent parlance
carries the meaning of “one or more” in open-
ended claims containing the transitional phrase
“comprising.” That “a” or “an” can mean “one or
more” is best described as a rule, rather than
merely as a presumption or even a convention.
The exceptions to this rule are extremely limited: a
patentee must “evince[] a clear intent” to limit “a”
or “an” to “one.” The subsequent use of definite ar-
ticles “the” or “said” in a claim to refer back to the
same claim term does not change the general plu-
ral rule, but simply reinvokes that non-singular
meaning.
Id. at 1342 (second alteration in original) (internal quota-
tion marks and citations omitted) (emphasis added).
Further, this general rule applies unless “the language of
the claims themselves, the specification, or the prosecu-
tion history necessitate[s] a departure from the rule.” Id.
at 1342-43. In this case, the intrinsic evidence does not
demonstrate an intention to exclude multiple user data
portions or overhead portions from the claims’ scope.
First, the claims recite “at least a user data and an
overhead data portion.” ’316 patent col.21 ll.40-41; ’842
patent col.22 ll.64-65. The phrase “at least” suggests that
the claim covers more than one user data portion and
overhead portion. See Biagro W. Sales, Inc. v. Grow More,
Inc., 423 F.3d 1296, 1304 (Fed. Cir. 2005) (“The phrase ‘at
least one’ in patent claims typically is construed to mean
21 SANDISK CORP v. KINGSTON TECH
‘one or more.’”). This interpretation further comports
with the general rule set forth in Baldwin against limit-
ing claim terms using the indefinite articles “a” and “an”
to mean “one.” 512 F.3d at 1342-43.
Dependent claims 16 and 67 of the ’842 patent and
claim 73 of the ’316 patent additionally bolster SanDisk’s
interpretation. Those claims add the limitation that
either the individual blocks (claim 16 of the ’842 patent)
or sectors (claim 67 of the ’842 patent and claim 73 of the
’316 patent) “include only one user data portion and only
one overhead portion.” ’842 patent col.18 ll.7-9, col.24 ll.7-
9; ’316 patent col.22 ll.14-16. Where, as here, the sole
difference between the independent claim and the de-
pendent claims is the limitation that one party is trying to
read into the independent claim, “the doctrine of claim
differentiation is at its strongest.” Liebel-Flarsheim Co. v.
Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004); see also
Phillips, 415 F.3d at 1315 (“[T]he presence of a dependent
claim that adds a particular limitation gives rise to a
presumption that the limitation in question is not in the
independent claim.”).
Although the doctrine creates only a rebuttable pre-
sumption, see, e.g., Liebel-Flarsheim, 358 F.3d at 910,
here Kingston has not identified any intrinsic evidence
that overcomes this presumption and justifies its narrow
construction. To the contrary, we agree with SanDisk
that the specification suggests that the precise configura-
tion of the user data and overhead portions is not fixed:
It is to be understood that the partitioning be-
tween the user data portion 403 and the spare
[i.e., overhead] portion 405 need not be rigid. The
relative size of the various partitioned areas may
be logically reassigned. Also the grouping of the
SANDISK CORP v. KINGSTON TECH 22
various areas is largely for the purpose of discus-
sion and not necessarily physically so.
’842 patent col.8 ll.52-57 (emphasis added).
Thus, for the above reasons, we conclude that the dis-
trict court erred in its construction of the phrase “at least
a user data portion and an overhead portion” in claim 61
of the ’842 patent and claim 67 of the ’316 patent. Under
the correct construction, this claim limitation covers “one
or more” user data portion and overhead portion.
B. Summary Judgment of Non-Infringement
In addition to SanDisk’s claim construction argu-
ments, SanDisk raises two challenges to the district
court’s summary judgment decision. First, SanDisk
argues that the district court erred in applying the disclo-
sure-dedication rule from Johnson & Johnston Associates,
Inc. v. R.E. Service Co., 285 F.3d 1046 (Fed. Cir. 2002) (en
banc), in finding that Kingston’s accused products did not
infringe claim 20 of the ’424 patent under the doctrine of
equivalents. Second, SanDisk contends that the district
court erred in finding that the accused products did not
infringe claim 79 of the ’316 patent either literally or
under the doctrine of equivalents because they lacked a
“controller.” This second finding of non-infringement also
implicates Johnson & Johnston’s disclosure-dedication
rule. 2
2 On appeal, Kingston has maintained the con-
fidentiality of the specific design implementations of its
accused products. To preserve that confidentiality, we
limit our discussion of the products to counsels’ state-
ments during oral argument, see Oral Argument 12:20-
12:27, available at http://www.cafc.uscourts.gov/oral-
argument-recordings/2011-1346/all (“No kind of block
23 SANDISK CORP v. KINGSTON TECH
1. ’424 Patent, Claim 20
Claim 20 of the ’424 patent recites:
20. In a re-programmable non-volatile memory
system having a plurality of blocks of memory
storage elements that are erasable together as a
unit, the plurality of blocks individually being di-
vided into a plurality of a given number of pages
of memory storage elements that are programma-
ble together, a method of operating the memory
system, comprising:
programming individual ones of a first plural-
ity of said given number of pages in each
of at least a first block with original data
and a logical page address associated
with the original data,
thereafter programming individual ones of a
second plurality of a total number of
pages less than said given number in a
second block with updated data and a
logical page address associated with the
updated data, wherein the logical page
addresses associated with the updated
data programmed into the second plural-
ity of pages are the same as those associ-
ated with the original data programmed
into the first plurality of pages, and
thereafter reading and assembling data from
the first and second plurality of pages in-
marker alone or in combination with a logical block
address is in any way disclosed . . . .”), and the non-
confidential information in the parties’ briefs.
SANDISK CORP v. KINGSTON TECH 24
cluding, for pages having the same logi-
cal addresses, selecting the updated data
from the pages most recently pro-
grammed and omitting use of the origi-
nal data from the pages earlier
programmed.
’424 patent col.15 ll.40-64 (emphases added).
Claim 20 claims a method for performing partial block
updates. In a partial block update, data retains the same
logical address throughout each update. The controller
identifies the data sharing a logical page address and
provides the most updated data with that address to the
host device. To accomplish this, the logical page address
must identify a specific logical page within a block. It is
undisputed that a logical block number, by itself, does not
identify a logical page address. Instead, to provide a
logical page address, additional information must be
added to the logical block number, such as a logical page
offset.
The parties’ dispute centers on whether the accused
products contain an equivalent of the “programming . . . a
logical page address associated with the original data”
limitation in claim 20. The district court construed a
“logical page address” as not being limited to a “logical
block number plus logical offset.” J.A. 37.
During summary judgment, SanDisk argued that an
indication that the pages within a block are stored se-
quentially—referred to by SanDisk’s expert as a “Sequen-
tial Block Marker”—coupled with programming a logical
block address was equivalent to the “programming . . . a
logical page address” limitation in claim 20. According to
SanDisk, when the data is programmed sequentially, the
25 SANDISK CORP v. KINGSTON TECH
logical page matches the physical page. SanDisk’s Br. 53.
For data programmed into physical page 3 of logical block
6, for example, “[t]he logical page address is necessarily
logical block 6, logical page 3 because the logical page
address within the block (i.e., 3) matches the physical
address of the block.” Id. at 53 n.4. Therefore, in San-
Disk’s view, knowing both the logical block number and
that the pages are sequentially stored identifies the
logical page address. The district court, however, deter-
mined that SanDisk could not pursue this infringement
theory, finding that Figure 9 of the ’424 patent disclosed
this alleged equivalent and thus dedicated it to the public
under the disclosure-dedication rule set forth in Johnson
& Johnston.
On appeal, SanDisk argues that the disclosure in the
specification relied upon by the district court does not
amount to a dedication under Johnson & Johnston be-
cause neither Figure 9 relied on by the district court nor
the remainder of the specification discloses using a Se-
quential Block Marker in combination with a logical block
address to identify the logical page address. Instead,
according to SanDisk, all the disclosed embodiments,
including Figure 9 reproduced below, show that a logical
page address includes only (1) a logical block number
(LBN) and (2) a logical page offset:
SANDISK CORP v. KINGSTON TECH 26
In response, Kingston argues that Figures 4, 8, and 9
in the ’424 patent depict systems in which the logical
block number is programmed and the blocks are written
in sequential order, such that the logical page address
and the physical page address are the same. Kingston
contends that this information discloses to one of ordinary
skill SanDisk’s proposed equivalent to the “programming .
. . a logical page address” limitation.
We agree with Sandisk that its proposed equivalent
was not dedicated to the public. Under the doctrine of
equivalents, “a product or process that does not literally
infringe upon the express terms of a patent claim may
nonetheless be found to infringe if there is ‘equivalence’
between the elements of the accused product or process
and the claimed elements of the patented invention.”
Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520
U.S. 17, 21 (1997). A patentee, however, can disclaim an
equivalent by disclosing it in the specification. As we held
in Johnson & Johnston, “[W]hen a patent drafter dis-
closes but declines to claim subject matter, . . . this action
dedicates that unclaimed subject matter to the public.”
285 F.3d at 1054.
Johnson & Johnston’s disclosure-dedication rule is
not without restriction. In PSC Computer Products v.
Foxconn International, Inc., 355 F.3d 1353 (Fed. Cir.
2004), we explained that the rule “does not mean that any
generic reference in a written specification necessarily
dedicates all members of that particular genus to the
public.” Id. at 1360. Rather, “the disclosure must be of
such specificity that one of ordinary skill in the art could
identify the subject matter that had been disclosed and
not claimed.” Id. Additionally, in Pfizer, Inc. v. Teva
Pharmaceuticals USA, Inc., 429 F.3d 1364 (Fed. Cir.
2005), this court further clarified that “before unclaimed
27 SANDISK CORP v. KINGSTON TECH
subject matter is deemed to have been dedicated to the
public, that unclaimed subject matter must have been
identified by the patentee as an alternative to a claim
limitation.” Id. at 1379. Whether the disclosure-
dedication rule prevents a patentee from pursuing a
doctrine of equivalents infringement theory is a question
of law we review de novo. Id. at 1378.
Here, the disclosures in Figure 9 relied upon by the
district court and the other teachings in the specification
cited by Kingston do not satisfy the disclosure-dedication
rule’s requirements. Figure 9 and the accompanying
description in the specification teach a logical page ad-
dress composed of a logical block number and a logical
page offset. Neither Figure 9 nor any other portion of the
specification identified by Kingston refers to using an
indication in the address that the block is sequentially
programmed combined with programming a logical block
address as an alternative to “programming . . . a logical
page address.” Whether a person of ordinary skill ulti-
mately could employ the disclosures of the patent to
implement a purported equivalent does not amount to
actually disclosing to one of ordinary skill that equivalent
“as an alternative to a claim limitation.” See Pfizer, 429
F.3d at 1379. We have considered Kingston’s remaining
arguments and find they lack merit. Accordingly, we
conclude that the district court erred in finding that
SanDisk’s proposed equivalent to the “programming . . . a
logical page address limitation” was dedicated to the
public.
2. ’316 Patent, Claim 79
Claim 79 of the ’316 patent provides in pertinent part:
SANDISK CORP v. KINGSTON TECH 28
79. A memory system connectable to a host proc-
essor to enable the exchange of data therebe-
tween, and memory system comprising:
an array of non-volatile floating gate memory
cells partitioned into a plurality of blocks
of cells that individually store a given
amount of user data and overhead data,
wherein the memory cells are individu-
ally programmable into one of more than
two distinct threshold level ranges corre-
sponding to more than one bit of data per
cell,
a controller connected to the array and re-
movably connectable to the host through
an electrical connector, said controller
including:
an address generator that is respon-
sive to receipt of a mass memory
storage block address from the
host to address a corresponding
at least one of the plurality of
memory blocks, and
a data transfer control that responds
to an instruction from the host to
perform a designated one of read-
ing user data from, or writing
user data to, said at least one ad-
dress block, including a data writ-
ing circuit that generates at least
some of the overhead data associ-
ated with at least one of at least
one addressed block or user data
29 SANDISK CORP v. KINGSTON TECH
being written therein, and a data
reading circuit that reads the
overhead data from said at least
one addressed block, wherein the
data writing circuit programs the
individual memory cells into said
one or more than two distinct
threshold level ranges and the
data reading circuit reads one of
more than two distinct threshold
level ranges form the individual
memory cells.
’316 patent col.22 ll.35-79 (emphases added).
The memory system in claim 79 includes two main
limitations: (1) an array of non-volatile floating gate
memory cells and (2) a controller. The controller has both
an “address generator” and a “data transfer control.”
Within the data transfer control are a “data writing
circuit” and a “data reading circuit.” It is undisputed that
the accused devices contain data writing and data reading
circuits, but those circuits are located on the flash mem-
ory chip, not the controller chip. The key issue is whether
the read and write circuitry in the accused products are
part of the claimed “controller,” either literally or under
the doctrine of equivalents, even though the circuitry is
located on the flash memory chip.
The district court recognized that the circuitry for the
controller could be located on more than one chip but
found that the accused products did not literally infringe
because “[t]here is no evidence that the data writing and
reading circuitry on the flash memory chips of the accused
products are otherwise part of the ‘controller.’” J.A. 60.
With respect to infringement under the doctrine of
SANDISK CORP v. KINGSTON TECH 30
equivalents, the district court again applied the disclo-
sure-dedication rule of Johnson & Johnston, finding that
the ’316 patent, through the incorporated by reference
U.S. Patent No. 5,172,338 (“’338 patent”), 3 disclosed but
did not claim programming and reading that is that is
regulated on the separate flash memory chip. J.A. 61.
On appeal, SanDisk argues that the district court’s
literal infringement analysis is irreconcilable with its
doctrine of equivalents analysis. According to SanDisk, if,
as the district court found, the ’316 patent discloses
controller circuitry on the flash memory chip, claim 79
should be read to cover that embodiment; on the other
hand, if such an embodiment is not disclosed, the disclo-
sure-dedication rule does not apply to bar infringement
under the doctrine of equivalents. SanDisk further
contends that because the claims define the controller as
having a read circuit and a write circuit, the accused
products—which include read and write circuitry—
necessarily infringe.
In response, Kingston challenges SanDisk’s framing
of the question, arguing that the correct inquiry is not
whether the claimed controller must reside on one chip,
as SanDisk contends, but rather whether the writing and
reading circuits in the accused products are a part of the
controller. Kingston maintains that, contrary to San-
Disk’s position, the presence of read and write circuits
somewhere in the accused system does not mean that
3 The ’316 patent expressly incorporates U.S.
Patent Application No. 07/337,579 (“’579 application”) by
reference. See ’316 patent col.6 ll.3-9, col.11 ll.4-11. The
’338 patent is a continuation-in-part of the ’579 applica-
tion. On appeal, the parties do not dispute that the ’338
patent is incorporated by reference into the ’316 patent.
31 SANDISK CORP v. KINGSTON TECH
those circuits necessarily are part of the controller as
required by the claim. Kingston also disputes SanDisk’s
position that the court’s doctrine of equivalents analysis is
incongruous with the literal infringement analysis.
According to Kingston, the specification discloses two
embodiments, and only one of those embodiments is
claimed. In the first embodiment, the read and write
circuits are part of the controller; in the second unclaimed
embodiment, disclosed in Figure 5 of the incorporated
’338 patent, the read and write circuits are separate from
the controller.
With respect to literal infringement, we agree with
Kingston that the district court correctly found that
SanDisk failed to present evidence that the read and
write circuitry in the accused devices were part of the
controller such that claim 79 of the ’316 patent was liter-
ally infringed. Although the district court concluded that
the controller circuitry need not be located on the same
chip, that construction does not resolve the infringement
issue. The read and write circuits are not only part of the
claimed system; the claims explicitly require that these
circuits be part of the claimed controller. Thus, the
presence of a read circuit and a write circuit somewhere
in the system does not establish that those circuits are
part of the controller for purposes of establishing in-
fringement.
The district court correctly treated this infringement
issue as a question of fact and found that SanDisk failed
to present any evidence on summary judgment that “the
data writing and reading circuit on the flash memory
chips of the accused products are otherwise part of the
‘controller.’” J.A. 60. On appeal, SanDisk has not identi-
fied any evidence that the district court overlooked in
reaching this conclusion. Consequently, we affirm the
SANDISK CORP v. KINGSTON TECH 32
district court’s judgment in favor of Kingston as to literal
infringement of claim 79.
We reach a different conclusion, however, with re-
spect to the district court’s application of the disclosure-
dedication rule in its doctrine of equivalents analysis.
The district court found that Kingston’s accused products
did not infringe under the doctrine of equivalents because
the ’316 patent disclosed the use of read and write cir-
cuitry located on the flash memory chip rather than the
controller chip. The disclosure relied upon by the district
court does not appear within the four corners of the ’316
patent but instead is in Figure 5 of the incorporated ’338
patent.
We have yet to address the circumstances in which
the disclosure of subject matter in a document incorpo-
rated by reference amounts to a dedication of that subject
matter under Johnson & Johnston. Because a document
incorporated by reference “becomes effectively part of the
host document as if it were explicitly contained therein,”
Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d
1316, 1329 (Fed. Cir. 2001), the disclosure of subject
matter in an incorporated document can dedicate that
subject matter to the public for purposes of the host
patent. Incorporation by reference, however, “does not
convert the invention of the incorporated patent into the
invention of the host patent.” Modine Mfg. Co. v. Int’l
Trade Comm’n, 75 F.3d 1545, 1552 (Fed. Cir. 1996).
Thus, in determining whether incorporated subject mat-
ter satisfies the disclosure-dedication rule standards set
forth in Johnson & Johnston and its progeny, we must
look first to the teachings of the host patent. Consistent
with Pfizer, the host patent must sufficiently inform one
of ordinary skill that the incorporated document contains
subject matter that is an alternative to a claim limitation.
33 SANDISK CORP v. KINGSTON TECH
429 F.3d at 1379. If it does, the inquiry then shifts to the
incorporated document to assess whether the disclosure of
that subject matter is “of such specificity that one of
ordinary skill in the art could identify the subject matter
that had been disclosed and not claimed.” PSC Computer
Prods., 355 F.3d at 1360.
Here, the ’316 patent’s discussion of the incorporated
’338 patent does not sufficiently identify to one of ordi-
nary skill that the incorporated patent contains subject
matter that is an alternative to the claimed controller. To
the contrary, in discussing the parent ’579 application,
the ’316 patent speaks only in general terms: “Optimized
erase implementations have been disclosed in two copend-
ing U.S. patent applications,” ’316 patent col.6 ll.3-4; and
“Optimized implementations of write operation for Flash
EEprom device have been disclosed in two previously
cited co-pending U.S. applications . . . ,” id. at col.11 ll.4-6.
Such cursory discussion does not sufficiently provide
notice to one of ordinary skill that the incorporated ’338
patent contains subject matter that is an alternative to
the claimed controller, as required by Pfizer. Conse-
quently, we conclude that the district court erred as a
matter of law in finding that the ’316 patent dedicated
SanDisk’s proposed equivalent to the public.
III. CONCLUSION
We lack jurisdiction to address SanDisk’s claim con-
struction arguments that are solely related to the ’893
and ’808 patents and claims 1 and 10 of the ’842 patent.
As to the claim construction issues that are properly
before us on appeal, we conclude that the district court
erred in its constructions of the “recording a relative time
of programming . . .” limitation in claims 1 and 3 of the
’424 patent, and the “at least a user data portion and an
SANDISK CORP v. KINGSTON TECH 34
overhead portion” limitation in claim 61 of the ’842 patent
and claim 67 of the ’316 patent. Those constructions
accordingly are reversed and the judgment of non-
infringement in favor of Kingston as to those claims is
vacated. Lastly, the district court’s judgment of no literal
infringement of claim 79 of the ’316 patent is affirmed,
but the court’s judgment that Kingston did not infringe
claim 20 of the ’424 patent and claim 79 of the ’316 patent
under the doctrine of equivalents is vacated. The case is
remanded to the district court for further proceedings
consistent with this opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
United States Court of Appeals
for the Federal Circuit
__________________________
SANDISK CORPORATION,
Plaintiff-Appellant,
v.
KINGSTON TECHNOLOGY CO., INC.
AND KINGSTON TECHNOLOGY CORP.,
Defendants-Appellees.
__________________________
2011-1346
__________________________
Appeal from the United States District Court for the
Western District of Wisconsin in consolidated case nos.
07-CV-0605 and 07-CV-0607, Senior Judge Barbara B.
Crabb.
__________________________
REYNA, Circuit Judge, concurring-in-part and dissenting-
in-part.
I concur with the majority opinion except for its con-
struction of the term “recording a relative time of pro-
gramming” in claims 1 and 3 of the ’424 patent. The
majority construes this term to include an embodiment in
which no indication, temporal or otherwise, is recorded.
From this conclusion I respectfully dissent.
Claim 1 is representative of claims 1 and 3 of the ’424
patent:
SANDISK CORP v. KINGSTON TECH 2
1. In a non-volatile memory system having a plu-
rality of blocks of memory storage elements that
are individually erasable as a unit and which are
individually organized into a plurality of pages of
memory storage elements that are individually
programmable together, a method of substituting
new data for superceded data within at least one
page of one of the plurality of blocks while data in
at least another page of said one block is not re-
placed, comprising:
programming the new data into at least one
page of said one or another of the plural-
ity of blocks,
identifying the at least one page of superceded
data and the at least one page of new data
by a common logical address,
recording a relative time of programming the
at least one page of new data and the at
least one page of superceded data; and
wherein the at least one page of superceded
data is less than all the data contained in
said one block.
’424 patent col.12 l.60-col.13 l.10 (emphasis added).
The specification describes two embodiments. The
first is faithful to the claim language, recording a time
stamp in each individual page. The second, called the
“Block Recording Method,” is not. According to the speci-
fication, in the block recording method, “the time stamp
. . . does not need to be stored as part of each page” and “is
used only to determine the relative age of the data stored
in blocks.” Id. at col.9 ll.41-47. The block time stamp is
3 SANDISK CORP v. KINGSTON TECH
“recorded for each block, either as part of the block or
elsewhere within the non-volatile memory, and is updated
each time a page of data is written into the block.” 1 Id. at
col.9 ll.42-50. In the block recording method, pages are
written in order within the block, and the most current
data for a logical page within a block will always be the
last physical page in the block containing data for that
logical page. However, since the physical pages do not
contain any timestamp data, relative or otherwise, all
that can be said is that the pages were written at the
same time or after the time stamp in the physical block.
In other words, although the relative order can be in-
ferred from the physical number of the page, nothing is
known about the relative times.
The majority avoids the distinction between “order”
and “relative time” by focusing on the “relative” limitation
in the claim and ignoring the limitations that the time
must be recorded and that it must be a time. Thus, the
majority states that “‘recording a relative time of pro-
gramming’ merely requires recording some indication of
the order of programming for those pages sharing a
logical address.” Majority Op. at 14. Because recording
1 Updating the timestamp for a block once it is
written appears to be impossible. A cell must be erased
before it can be re-written. See ’424 patent col.1 ll.23-24.
Cells can only be erased by erasing an entire block. See
id. Therefore, to update the timestamp in a block when a
page in that block is written, it would be necessary to
erase the entire block, including the newly written data.
It is possible, as the specification indicates, to store the
relative time elsewhere in non-volatile memory. That is
exactly what the first embodiment does, and it would
appear that storage of the timestamps in any location
other than the page being written would be much less
efficient and would result in additional wear on the flash
memory.
SANDISK CORP v. KINGSTON TECH 4
new updates in the next available page in the most recent
block implicitly encodes the order in which the updates
were received, the majority concludes that the claim was
met. This construction improperly ignores express limita-
tions of the claims and uses the specification to broaden
the patent. See, e.g., Maxwell v. J. Baker, Inc., 86 F.3d
1098, 1105 (Fed. Cir. 1996) (rejecting a claim interpreta-
tion that would ignore explicit limitations in the claim);
Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1562 (Fed.
Cir. 1991) (“All the limitations of a claim must be consid-
ered meaningful.”); see also United States v. Adams, 383
U.S. 39 (1966) (stating that claims limit the inventions
and “specifications cannot be used to expand the patent
monopoly”).
The majority then attempts to explain how, under this
reading, the block recording method satisfies the lan-
guage of the claim. In particular, the majority discusses
Figure 11, which depicts a second update to logical page 5
within the same physical block (PBN1) where the physical
location of the two pages within the block identifies the
most recently updated page:
5 SANDISK CORP v. KINGSTON TECH
Specifically, in Figure 11, the new physical block
(PBN1) contains two versions of original page 5 located at
PBN1 physical page 2 and PBN1 physical page 3. In this
example, page 5 on the left has been modified twice. The
first modification is stored at page 2 on the right. The
second is stored at page 3 on the right. Because the data
will be read backwards starting from the last page of the
new block, the user data on PBN1 physical page 3 will be
read, but the data on PBN1 physical page 2 will not.
If anything, the majority’s analysis of this embodi-
ment proves that the claim does not cover the block
recording method. In PBN1, pages 2 and 3 were written
at two different times. When page 2 was written, a
relative time was recorded for the new physical block.
However, when page 3 was written, no relative time was
recorded. The relative times of the updates of pages 2 and
3 are unknown and unknowable, because no relative time
SANDISK CORP v. KINGSTON TECH 6
information is recorded at the page level. Instead, the
system infers the order—as opposed to the relative
times—in which the data was written. This is undoubt-
edly more elegant than recording relative times, but it
does not satisfy the terms of the claim, which require that
a relative time be recorded.
Even if it is possible to update the time for the block,
this does not save the embodiment. If the block time is
not updated, time information is only available for the
first physical page in the block. If the block time is up-
dated, time information is only available for the last page
that has been written in the block. In either case, all that
can be determined is the order of the pages, not their
relative times. Indeed, in describing the block recording
method, the specification notes that “[o]nly . . . the rela-
tive times that the physical blocks were programmed need
to be known.” ’424 Patent col.10 ll.3-7 (emphasis added).
Thus, in the block recording method, relative times are
recorded for physical blocks, not for pages. If a page
update does not require a new block, no relative time is
recorded, and the terms of the claim are not met.
The majority focuses only on the term “relative” and
ignores that the claims explicitly require a time to be
recorded. In doing so, it improperly expands SanDisk’s
patent monopoly beyond what was claimed. I respect-
fully dissent.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00289-CR
Patrick Wayne Womble, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF LLANO COUNTY, 424TH JUDICIAL DISTRICT
NO. CR6268, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Patrick Wayne Womble of the offense of burglary of a
habitation with the commission or attempted commission of the felony offense of sexual assault.
See Tex. Penal Code § 30.02(a)(3). The jury assessed punishment at 75 years’ imprisonment. In
two issues on appeal, Womble asserts that the district court abused its discretion in admitting
evidence of an extraneous offense during punishment and in making a comment to the jury following
the prosecutor’s objection to defense counsel’s closing argument. We will affirm the judgment.
BACKGROUND
The jury heard evidence that on the night of December 18, 2009, following a party
that Womble had attended, Womble accompanied a woman whom he had met at the party to
her residence, and that, after trying to kiss the woman, he was asked to leave. Later that night, the
woman testified, Womble broke into her residence and attempted to sexually assault her, but she
was able to fight him off and eventually force him out of her residence. After hearing the victim’s
testimony and other evidence, the jury found Womble guilty as charged and assessed punishment
as noted above. This appeal followed.
ANALYSIS
Extraneous-offense evidence admitted during punishment
In his first issue, Womble asserts that the district court abused its discretion in
admitting evidence of an extraneous offense during punishment. The extraneous offense was an
alleged encounter that Womble had with a neighbor, Peggy Hinson, prior to the charged offense.
Hinson briefly testified that during an encounter with Womble on the street in their neighborhood,
Womble had exposed his genitals to Hinson while he was driving past her in a golf cart. Womble
objected to the admission of this evidence on multiple grounds, including that it was more prejudicial
than probative, see Tex. R. Evid. 403, and that is the only ground he carries forward on appeal.
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The test for abuse of
discretion is whether the trial court acted arbitrarily or unreasonably, without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
A trial court abuses its discretion only when its decision “is so clearly wrong as to lie outside that
zone within which reasonable persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576
(Tex. Crim. App. 2005).
Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
2
or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative
evidence.” Tex. R. Evid. 403. “The term ‘probative value’ refers to the inherent probative force of
an item of evidence—that is, how strongly it serves to make more or less probable the existence of
a fact of consequence to the litigation—coupled with the proponent’s need for that item of evidence.”
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “‘Unfair prejudice’ refers to a
tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.” Id. “Rule 403 favors the admission of relevant evidence and carries a presumption that
relevant evidence will be more probative than prejudicial.” Williams v. State, 958 S.W.2d 186, 196
(Tex. Crim. App. 1997). Evidence should be excluded under rule 403 only when there exists “a
clear disparity between the degree of prejudice of the offered evidence and its probative value.”
Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996).
Here, the district court would not have abused its discretion in finding that the
probative value of the evidence was high—it had a tendency to show that Womble’s attempted
sexual assault of the victim in this case was not a single, isolated event, but was instead part of a
pattern of offensive sexual conduct toward women. The district court also would not have abused
its discretion in finding that there was not a “clear disparity” between the degree of prejudice of
the offered evidence and its probative value. The district court could have reasonably found that
Hinson’s testimony was not excessively graphic in its description of the offense; that the testimony,
by focusing only on an offense related to the sexual conduct of the defendant, did not have
a tendency to confuse the issues or mislead the jury; and that the testimony did not consume
3
an inordinate amount of time during sentencing. On this record, we cannot conclude that the
district court abused its discretion in admitting the evidence. We overrule Womble’s first issue.
District court’s instruction to the jury during closing argument
In his second issue, Womble asserts that the district court made an improper
comment to the jury during closing argument. The comment was made following an objection by
the prosecutor to defense counsel’s characterization of the evidence relating to the victim’s reporting
of the offense to the police:
[Defense counsel]: It’s a fact that after the allegation came out, after she accused
Patrick of this, it’s a fact that she did not call 911, that she did
not call a police officer. It’s a fact that she continued her
routine. Now, that gives you cause to pause. It’s a fact that
she got up the next morning and made her bed up. It’s a fact
that she talked to no one, cried out to no one when this
traumatic event occurred until—
[Prosecutor]: Your Honor, I’m just going to object to that being a
mischaracterization of the evidence, that she cried out to no
one.
[The Court]: I can’t—
[Defense counsel]: Judge, I’m just asking you to ask the jury to recall the
evidence.
[The Court]: And that’s all I can say is you recall the evidence the way you
recall it. And if you think somebody is misstating the
evidence, then you can infer whatever you want from that
fact, so . . . .
Defense counsel then continued with his closing argument.
4
On appeal, Womble asserts, without citing to authority, that the district court’s
comment that the jury could “infer whatever [it] want[s]” from the fact that “somebody is misstating
the evidence” was improper. However, Womble never objected to this comment during trial.
Consequently, any alleged error in the comment has been waived. See Tex. R. App. P. 33.1; Sharpe
v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983).
Womble acknowledges his failure to object, but he characterizes the district court’s
comment as a “ruling” on the prosecutor’s objection and asserts that he was therefore not required
to object in order to preserve error. See Tex. R. App. P. 33.1(c) (“Neither a formal exception to a
trial court ruling or order nor a signed, separate order is required to preserve a complaint for
appeal.”).1 However, we do not construe the specific comment of which Womble complains as
either an express or implicit ruling on the prosecutor’s objection. See Tex. R. App. P. 33.1(a)(2).
Instead, we construe it as an instruction to the jury on what it could infer from a misstatement of the
evidence—if the jury found that such a misstatement had been made. The district court did not
indicate whether it agreed with the prosecutor that defense counsel had misstated the evidence.
However, even assuming that Womble was not required to object to the comment,
and further assuming, without deciding, that the district court’s comment was improper, the record
does not reflect that Womble was harmed by the comment. Womble asserts that the district court’s
1
As authority for his contention that no objection was necessary to preserve error, Womble
cites to a dissenting opinion in a civil case out of the Fort Worth Court of Appeals, which construed
Rule 33.1(c) to mean that no objection is necessary when a trial court makes a ruling adverse
to the party appealing. See Smith v. Henson, 270 S.W.3d 673, 676 (Tex. App.—Fort Worth 2008,
pet. denied) (Walker, J., dissenting). A dissenting opinion has no precedential value, see United
States v. Goodrich, 871 F.2d 1011, 1013 (11th Cir. 1989), and Womble cites to no other opinion
construing Rule 33.1(c) in such a manner.
5
comment was tantamount to calling defense counsel “a liar.” However, the district court did not
refer to defense counsel in its comment, and there is nothing in the record to indicate that the jury
construed the district court’s comment in such a manner. Nor did the district court state or otherwise
imply that what defense counsel had just argued was a misstatement of the evidence. On this record,
we cannot conclude that any alleged error in the district court’s comment had a substantial and
injurious effect or influence in determining the jury’s verdict. See Tex. R. App. P. 44.2(b) (“Any
other error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded.”); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (“A substantial right is
affected when the error had a substantial and injurious effect or influence in determining the jury’s
verdict.”); see also Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (finding that
comments of trial court did not rise to level of fundamental error requiring reversal absent objection).
We overrule Womble’s second issue.
CONCLUSION
We affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Field
Affirmed
Filed: July 31, 2013
Do Not Publish
6
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1405-09
JOE SOLIS RAMIREZ, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROMTHE THIRTEENTH COURT OF APPEALS
HIDALGO COUNTY
Per curiam. Keasler and Hervey, JJ., dissent.
ORDER
The petition for discretionary review violates Rules of Appellate Procedure 9.3 and
68.4(i), because the original petition is not accompanied by 11 copies and the petition
does not contain a copy of the opinion of the court of appeals..
The petition is struck. See Rule of Appellate Procedure 68.6.
The petitioner may redraw the petition. The redrawn petition and copies must be
filed in the COURT OF CRIMINAL APPEALS within thirty days after the date of this
order.
Delivered: December 9, 2009
Do Not Publish
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809 P.2d 442 (1991)
STATE of Hawaii, Plaintiff-Appellee,
v.
Aukusitino L. LEMALU, Defendant-Appellant.
No. 14296.
Supreme Court of Hawaii.
April 11, 1991.
*443 Arthur E. Ross (Paul J. Cunney, on the brief), Honolulu, for defendant-appellant.
Charlotte Jean Duarte and Wallace W. Weatherwax, Deputy Pros. Attys. (Alexa D.M. Fujise, on the brief), Honolulu, for plaintiff-appellee.
Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ.
MOON, Justice.
Defendant-appellant Aukusitino L. Lemalu (Lemalu) appeals his conviction for Driving Under the Influence of Intoxicating Liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985). Lemalu was arrested in 1987 and charged, in two separate counts, with violating HRS § 291-4(a)(1) (driving under the influence) (count I) and § 291-4(a)(2) (driving with a blood alcohol level of 0.10 percent or more) (count II). Following a jury trial, Lemalu was acquitted of count I but convicted of count II. On appeal, Lemalu asserts that the trial court erred in denying his motion to dismiss the complaint based on his contention that the use of two counts to charge a single offense of DUI rendered the complaint defective and violated his due process rights. Alternatively, Lemalu asserts that he was twice placed in jeopardy when both counts were submitted to the jury. Lemalu contends that the trial court should have required that the State elect only one count under which to proceed. We do not agree with these assertions. However, we conclude that there was substantial prejudice created by the use of particular jury instructions combined with multiple verdict forms, which may have led the jury to believe that Lemalu was charged with two separate offenses rather than one. We find such prejudice to be plain error, and therefore vacate Lemalu's conviction and remand for retrial.
*444 I.
On December 4, 1989, before jury selection, the trial court heard Lemalu's "Motion to Dismiss Counts I and II of the Complaint" (motion to dismiss), which was based on a decision by this court issued in July 1989, State v. Grindles, 70 Haw. 528, 777 P.2d 1187 (1989), pronouncing that the DUI statute provided two alternative means of proving a single offense.[1] At the hearing on the motion to dismiss, Lemalu argued that under Grindles he had been mischarged, since the complaint contained two counts alleging the single offense of DUI, which he submitted would lead the jury to believe that two offenses had allegedly been committed. The trial court disagreed, noting that Grindles was distinguishable from Lemalu's case because Grindles involved the bifurcation of the two methods of proving DUI into separate trials. The trial court, not convinced that Lemalu had been illegally charged, denied the motion to dismiss. After a three-day trial, both counts were submitted to the jury, which found Lemalu guilty under count II but not guilty under count I. The trial court entered a judgment of conviction as to count II, the subsection (a)(2) violation, and a judgment of acquittal as to count I, the (a)(1) violation. Lemalu timely appealed his DUI conviction under HRS § 291-4(a)(2).
II.
A.
The DUI statute, HRS § 291-4(a), provides as follows:
A person commits the offense of driving under the influence of intoxicating liquor if:
(1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor; or
(2) The person operates or assumes actual physical control of the operation of any vehicle with 0.10 per cent or more, by weight of alcohol in the person's blood.
Lemalu argues that since the complaint, which set forth the DUI violation in two counts, failed to clearly show that only one offense was charged, the complaint was prejudicially defective by virtue of the suggestion to the jury that he had committed not one but two crimes.
We do not believe, however, that the two-count DUI charge in this case was fatally flawed. There is no prohibition, constitutional or otherwise, to charging the DUI offense in two counts. The defense itself acknowledges that at common law one offense could be charged in more than one count to meet the contingencies of proof at trial. "It has long been the approved practice to charge, by several counts, the same offense as committed in different ways or by different means, to such extent as will be necessary to provide for every possible contingency in the evidence." 41 Am.Jur.2d Indictments and Informations § 223, at 1016 (1968). See also Wharton's Criminal Procedure § 296 (12th ed. 1975). DUI, by statute, is precisely such an offense. Thus, charging the two methods of proving DUI in separate counts is in keeping with approved practice. However, when the type of conduct proscribed under one subsection of a statute is not factually synonymous with that proscribed by another subsection, we have previously noted that the charge "may be laid in the conjunctive but not in the disjunctive." State v. Jendrusch, 58 Haw. 279, 283 n. 4, 567 P.2d 1242, 1245 n. 4 (1977). A defendant must be put on sufficient notice of the "`nature and cause of the accusation'" with which he is charged. Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 (citation omitted). Phrasing a complaint in the disjunctive would not provide such notice as it would leave the defendant "uncertain as to which of the acts charged was being relied upon as the basis for the accusation against him." Jendrusch, 58 Haw. at 283 n. 4, 567 P.2d at 1245 n. 4.
*445 In this case, there is neither the conjunctive "and" nor the disjunctive "or" joining the two counts alleging DUI in the complaint. Nonetheless, we find that the complaint is impliedly set forth in the conjunctive and that it sufficiently apprised Lemalu that he was charged with committing the offense of DUI provable by two different means. We therefore decline to reverse the trial court's denial of Lemalu's motion to dismiss the complaint on the basis of its two separate counts.
B.
Lemalu argues alternatively that the trial court erred by not requiring the State to make an election to proceed under either the (a)(1) or the (a)(2) subsection of HRS § 291-4. We have not been presented with any authority which convinces us that the State should be forced to elect between the two methods of proof provided by HRS § 291-4(a) at any stage of the proceeding.
Lemalu further argues that the submission of the two DUI counts to the jury placed him twice in jeopardy for the same offense.[2] However, we discern no double jeopardy where, as here, the two DUI counts are submitted to the jury (or the judge, in a jury-waived case) at the same time. State v. Grindles, 70 Haw. 528, 777 P.2d 1187 (1989). The Double Jeopardy Clause was "directed at the threat of multiple prosecutions," and "guards against Government oppression." United States v. Scott, 437 U.S. 82, 86, 99, 98 S.Ct. 2187, 2191, 2198, 57 L.Ed.2d 65 (1978) (citations omitted). In addition, jeopardy does not come to an end in a particular case until the jury is discharged. State v. Manipon, 70 Haw. 175, 765 P.2d 1091 (1989). Therefore, since there was only one prosecution, and jeopardy for Lemalu's DUI offense did not end until after the jury reached a verdict on both counts, this case simply does not raise double jeopardy concerns.
Based on the arguments presented by Lemalu in this appeal, we discern no reversible error with respect to the trial court's denial of the motion to dismiss or the submission of both DUI counts to the jury.
III.
We now discuss our conclusion that the jury instructions combined with the use of multiple verdict forms addressing each DUI count created substantial prejudice to Lemalu by impressing upon the jury that he was charged with two separate DUI offenses. Although Lemalu has not raised this issue on appeal, we view the giving of certain instructions coupled with the use of multiple verdict forms as plain error.
Our review of the jury instructions in this case reveals two instructions which are particularly troublesome, especially when combined with the use of multiple verdict forms. The instructions, designated as Court's Instruction No. 16 and No. 17, respectively provide as follows:
The defendant is charged with more than one offense under separate counts in the complaint. Each offense with the evidence applicable thereto is to be considered separately. The fact that you may find the defendant not guilty of one of the offenses charged does not mean that you must necessarily reach the same verdict with respect to any other offense charged.
In this case there are 2 counts, each charging a separate crime. You may at any time during your deliberations return a verdict or verdicts with respect to one or more counts to which you can agree even though you may not be able to reach agreement as to all 2 counts.
(Emphasis added.)[3]
The record indicates that Lemalu did not raise any objections to either Instruction No. 16 or No. 17. However,
*446 [a]lthough an error in the instructions to which no objection is made at trial may not be assigned as error on appeal ... and an error in the instructions which is not properly cited in the points on appeal ... will not be considered on appeal, ... appellate courts may notice plain errors or defects affecting substantial rights which were not brought to the attention of the court.
State v. Halemanu, 3 Haw. App. 300, 306, 650 P.2d 587, 592 (1982) (citations omitted, emphasis in original). When considering the issue of jury instructions, "the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent or misleading." Id.
The jury's deliberation in Lemalu's case involved only the DUI charge.[4] Therefore, it is clear that both Instruction Nos. 16 and 17, either alone or together, erroneously gave the jury the impression that the two-count DUI charge constituted two separate crimes. The problem created by the giving of both instructions was compounded by the use of multiple verdict forms. The jury was provided two verdict forms for each of the two counts of DUI one guilty and one not guilty form for "CT. I: Driving Under the Influence of Intoxicating Liquor, 291-4(a)(1), HRS;" and the same two forms for "CT. II: Driving Under the Influence of Intoxicating Liquor, 291-4(a)(2), HRS." The problem with the instructions and the multiple verdict forms was then further compounded by the giving of Court's Instruction No. 19. Instruction No. 19, a standard court's instruction, which was not modified in this case, reads:
You may bring in either one of the following verdicts:
1. Not guilty; or
2. Guilty as charged.
Your verdict must be unanimous.
After a verdict has been reached and your foreperson has signed and dated the verdict form, you will notify the bailiff, and Court will be reconvened to receive the verdict.
Considering that the jury was instructed to return either a "not guilty" or "guilty as charged" on separate verdict forms for each count and was given Instruction Nos. 16 and 17, we find it highly probable that it was led to believe that the DUI counts against Lemalu constituted separate crimes.
While we recognize the substantial prejudice created by the use of Instruction Nos. 16 and 17 (or any other similar instruction that may characterize a single offense as separate crimes), coupled with the use of multiple verdict forms, we emphasize that such prejudice arises here because DUI was the only offense presented to the jury. In cases where a defendant is prosecuted for other crimes in addition to DUI, instructions such as Nos. 16 and 17 may be appropriate. However, caution must be exercised in wording the instructions so as not to mislead the jury into believing that the two methods of proving DUI constitute two separate offenses.
We further emphasize that the use of multiple verdict forms addressing both DUI counts does not, in and of itself, constitute reversible error. Whether DUI is the only offense prosecuted or is in addition to other offenses, the use of multiple verdict forms is appropriate as long as the jury is properly instructed that DUI is one offense. However, trial courts must be mindful that a jury's verdict of not guilty under only one method of proof is merely a factual finding and not the basis for a judgment of acquittal. Dow, 72 Haw. at *447 63, 806 P.2d at 407. Only one judgment of acquittal or of conviction should be entered.
IV.
In light of our decision to remand this case for retrial and the fact that a "judgment of acquittal" has been entered on the (a)(1) count, it is necessary that we discuss the double jeopardy implications which now arise due to such remand. Based upon our recent ruling in State v. Dow, 72 Haw. 56, 806 P.2d 402 (1991), there is no question that the State may retry its case against Lemalu on the (a)(2) count. Dow, like Lemalu, was charged with DUI under HRS § 291-4(a)(1) and (a)(2), in two counts. After the State rested, the trial court granted Dow's motion for judgment of acquittal as to the (a)(1) count and submitted the (a)(2) count to the jury. The jury was unable to reach a verdict and a mistrial was declared, but the court entered a judgment of acquittal on the (a)(1) count. The State retried Dow on the (a)(2) count, resulting in a conviction. On appeal, this court found that "Dow's acquittal was in form only; therefore the second trial, which led to his conviction, was constitutionally permissible." Dow, 72 Haw. at 59, 806 P.2d at 404. However, in Dow, unlike the present case, the State had retried only the DUI count of which the defendant had not been acquitted. Thus, we were not faced with the question that we now address: whether the State, on remand, would be allowed to present evidence of DUI under both methods of proof. We find the judgment of acquittal in this case to be in form only and not in substance, based on the rationale in Dow. It is thus constitutionally permissible for the State to retry Lemalu on the DUI offense, which includes count I as well as count II of the complaint.
V.
Based on the foregoing, we vacate Lemalu's conviction and remand this case for retrial consistent with this opinion.
NOTES
[1] It is important to note that until the ruling in Grindles, both the Intermediate Court of Appeals and this court were erroneously treating two counts under the DUI statute as two separate offenses. See State v. Dow, 72 Haw. 56, 62 n. 5, 806 P.2d 402, 405 n. 5 (1991).
[2] The Double Jeopardy Clause of the fifth amendment to the United States Constitution provides, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Article I, section 10 of the Hawaii Constitution contains a similar double jeopardy provision.
[3] It is important to note here that although Lemalu was originally charged with DUI (counts I and II), driving without a license (count III), and non-compliance with speed limit (count IV), the jury was presented with only the DUI offense. The record indicates that by the time the instructions were settled in chambers, either count III or count IV had been dismissed since Instruction No. 17 referred to "3" counts in the case. Further, it appears that at some point subsequent to the settling of instructions, but before jury deliberations, another count was dismissed, leaving only the two counts alleging the DUI offense. During deliberations, the jury requested and was provided a clean copy of the instructions. The copy given to the jury, which included Instruction No. 17, reflects "2" counts in the case, not "3." However, Instruction No. 16 was also included in the copy given to the jury.
[4] See supra note 3.
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838 F.2d 1205
Fink (Harold B.), People for Justicev.Supreme Court of Pennsylvania, Nix (Robert N.C., Jr.),Judicial Inquiry and Review Board of Supreme Courtof Pa., Rowley (James E., Hon.), Ptter (Robert L.)
NO. 87-5528
United States Court of Appeals,Third Circuit.
JAN 28, 1988
Appeal From: M.D.Pa.,
Muir, J.,
654 F.Supp. 437
1
AFFIRMED.
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 11, 2004
Charles R. Fulbruge III
Clerk
No. 03-10858
USDC No. 2:03-CV-186
GERMAN RODRIGUEZ,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
--------------------
Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
German Rodriguez, Texas prisoner # 748574, seeks a
certificate of appealability (“COA”) to appeal the district
court’s dismissal of his 28 U.S.C. § 2254 petition for failure
to pay the required filing fee. To obtain a COA, Rodriguez must
make a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). When the district court has
denied relief on procedural grounds without reaching the
underlying constitutional issue, a COA should be granted if the
petitioner shows that jurists of reason would find it debatable
*
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.
No. 03-10858
-2-
whether the petition stated a valid claim of the denial of a
constitutional right and whether the district court was correct
in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Rodriguez contends that COA should be granted and his case
reinstated because he complied with the magistrate judge’s report
requiring him to provide proof that he timely requested the
disbursement of funds for the filing fee. He urges that the
failure to pay the required fee was not attributable to him but
was caused by prison officials’ unexplained delay in processing
his request.
The record supports Rodriguez’s assertion that he timely
requested payment of the filing fee and that he submitted
documentation evidencing such request to the district court
during the time prescribed by the magistrate judge.** Rodriguez
has made a colorable showing that reasonable jurists would find
it debatable whether the district court erred in dismissing his
petition for failure to pay the required filing fee. Rodriguez
also has at least facially stated a claim under the Due Process
Clause. Accordingly, COA is GRANTED, the district court’s
judgment is VACATED, and the case is REMANDED for further
proceedings. See Slack, 529 U.S. at 484.
**
In any event, it is clear that Rodriguez qualifies for
pauper status now, and he is proceeding IFP in this appeal.
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[Cite as State v. Smith, 2020-Ohio-649.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180227
TRIAL NO. B-1701479
Plaintiff-Appellee, :
O P I N I O N.
vs. :
EDWARD SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 26, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein & Gallagher and Hal R. Arenstein, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C ROUSE , Judge.
{¶1} Defendant-appellant Edward Smith appeals his convictions for
aggravated murder and having a weapon while under a disability. In his appeal,
Smith raises five assignments of error for our review. For the reasons set forth
below, we affirm the judgment of the trial court.
Facts and Procedure
{¶2} In a convoluted chain of events, Smith shot and killed Trevor Tiemann.
The primary evidence of the incident came from several surveillance videos located in
the area. The videos depict a series of inconspicuous movements and covert intentions
that culminated into a chaotic situation.
{¶3} On February 19, 2017, Tiemann rode his motorcycle to a gas station in the
Over-the-Rhine neighborhood of Cincinnati with the intention of selling his fiancée’s
handgun for drugs. Tiemann parked at a gas pump and met with several individuals.
Among these individuals was Ronnel “Irv” Clay, an acquaintance of Smith.
{¶4} After Irv saw Tiemann’s handgun, he met with Smith. They talked for
approximately 40 seconds before Irv rejoined Tiemann at the gas pump. Following
shortly behind, Smith met Irv at the gas pump to look at the handgun.
{¶5} Thereafter, Irv, Smith, and a man known only as “Q” briefly interacted in
the street bordering the gas station. Irv and Q walked away while Smith stayed behind
on the adjoining sidewalk. Tiemann then drove over to Smith. Irv rejoined Smith and
began conversing with Tiemann. Moments later, Smith leaned in toward Tiemann, and
Irv, taking advantage of Smith’s distraction, grabbed Tiemann’s gun and ran. Tiemann
put his motorcycle in gear and gave chase while Smith intently watched.
{¶6} Early in the chase, Irv eluded Tiemann behind a parked car. With
Tiemann out of sight, Irv fled from the area. Rather than fleeing with Irv, Smith casually
2
OHIO FIRST DISTRICT COURT OF APPEALS
sat down on a set of stairs to observe the surrounding chaos. Tiemann eventually
returned, driving in the direction that Irv had fled. At that point, Smith inexplicably
jumped in front of Tiemann’s motorcycle. With no time to stop or change direction,
Tiemann collided with Smith.
{¶7} Still in a frenzy, Tiemann continued winding up and down the streets on
his motorcycle, searching for Irv. Tiemann eventually returned, saw Smith, and raised
his arm in Smith’s direction. Believing Tiemann was pointing a gun in his direction,
Smith immediately crouched behind a nearby car. He then made his way to the front of
the car, stood up, and shot and killed Tiemann with the stolen handgun. At trial, Smith
testified that he found the stolen handgun on the ground in front of the car and shot
Tiemann in self-defense. A second gun was never recovered on Tiemann or at the scene.
{¶8} Smith was subsequently indicted on one count of aggravated murder in
the course of an aggravated robbery, one count of murder, two counts of felony murder,
two counts of aggravated robbery, two counts of felonious assault, and one count of
having a weapon while under a disability. Despite his claims of self-defense, a jury
found Smith guilty of all counts. After the merger of counts and specifications, Smith
was convicted of aggravated murder and having a weapon while under a disability. The
trial court sentenced him to 33 years to life for aggravated murder with a gun
specification and 36 months for having a weapon while under a disability, to be served
consecutively to each other for an aggregate sentence of 36 years to life.
{¶9} Smith filed this timely appeal and raised the following assignments of
error:
1. The trial court erred in granting the state’s Motion in Limine.
2. The trial court erred to the prejudice of the Defendant in the manner
in which peremptory challenges were exercised.
3
OHIO FIRST DISTRICT COURT OF APPEALS
3. Mr. Smith is entitled to a new trial because his conviction was against
the manifest weight of the evidence.
4. Mr. Smith’s conviction for aggravated murder was not supported by
sufficient evidence.
5. The trial court erred in sentencing Mr. Smith.
Law and Analysis
I. Motion in Limine
{¶10} In his first assignment of error, Smith argues that the trial court erred
in excluding evidence of Tiemann’s tattoos and t-shirt. The tattoos included an
image of two revolvers, the phrase “White Pride,” the statement “You don’t know
what you are alive for unless you know what you would die for,” and an “oriental
character that says, ‘Boy.’ ” The t-shirt displayed a chapter of the Aryan
Brotherhood. The state contends that defense counsel did not properly raise the
issue at trial, and therefore, did not preserve the error for appeal.
{¶11} On the morning of trial, just prior to voir dire, the state presented an
oral motion in limine. The state first moved the court to exclude any evidence of
Tiemann’s tattoos, either through photographs, witness testimony, or the coroner’s
report. The state argued that such evidence was irrelevant and highly prejudicial
where it was not apparent to Smith at the time of the shooting. After further
argument, the state also moved the court to exclude any discussion of Tiemann’s t-
shirt for similar reasons. In response, defense counsel argued that such evidence was
“relevant to the state of mind of both [Tiemann] * * * and possibly Mr. Smith in
terms of who is the aggressor and who is not.”
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} After holding its ruling on the motion in abeyance overnight, the court
granted the motion in limine. Upon defense counsel’s request for reconsideration,
the court informed the parties,
I am going to again grant the motion in limine. I am sticking with my
original ruling. * * * If there is something that comes up in those
videos as I see them that shows he said or did something to indicate –
“he” not being your client, being the victim – then we will readdress
whether or not this line of questioning can go on or the information
can be brought in.
{¶13} It is well-established that “a motion in limine, if granted, is a tentative,
interlocutory, precautionary ruling by the trial court.” State v. Grubb, 28 Ohio St.3d
199, 201-202, 503 N.E.2d 142 (1986). It reflects the court’s anticipatory treatment of
the evidentiary issue, and in virtually all circumstances, finality does not attach when
the motion is granted. Id. at 202. Therefore, the granting of a motion in limine does
not preserve any error for appellate review, and an appellate court need not decide
the propriety of such an order unless a proper objection or proffer is raised at trial.
Id.
{¶14} Contrary to the state’s assertion, defense counsel did raise the issue at
trial. During direct-examination of the coroner, the state moved to admit select
photographs of the autopsy taken of Tiemann. Defense counsel objected to
“incompleteness of photographs of the total autopsy report.” However, despite
having received in discovery all of the autopsy photographs and the unredacted
autopsy report, defense counsel failed to make a proffer of the evidence.
{¶15} As noted by the Tenth District:
5
OHIO FIRST DISTRICT COURT OF APPEALS
[A] practical problem arises when a trial court excludes documentary
evidence and the complaining party fails to proffer that evidence.
Absent a proffer, the appellate court lacks access to the excluded
document and, thus, the appellate court cannot evaluate it to
determine whether the trial court’s decision to exclude it prejudiced
the complaining party.
Ellinger v. Ho, 10th Dist. Franklin No. 08AP-1079, 2010-Ohio-553, ¶ 35.
{¶16} Because defense counsel failed to proffer the photographs, full autopsy
report, and t-shirt, we do not have access to them. Instead, we have access only to
the brief descriptions given at the hearing on the oral motion in limine.
{¶17} A failure to proffer excluded exhibits does not always preclude
appellate review if the substance of the evidence is otherwise apparent from the
record. See Evid.R. 103(A); Ho at ¶ 34. Compare State v. Lovelace, 137 Ohio App.3d
206, 223, 738 N.E.2d 418 (1st Dist.1999) (“We cannot pass on the admissibility of
proffered exhibits not before us based solely on the representations of counsel as to
what those exhibits contain.”). But even if we were to find that the descriptions given
at the hearing sufficiently preserved the issue, the trial court did not err in excluding
the evidence.
{¶18} Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Evid.R. 401. Evidence is relevant if it
would support a defendant’s explanation of the events at issue or would tend to prove a
necessary element of an affirmative defense. State v. Nemeth, 82 Ohio St.3d 202, 207,
694 N.E.2d 1332 (1998).
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} At trial, the state argued that the perpetrators of the aggravated
robbery, one of whom was Smith, created the situation that gave rise to the shooting.
Smith did not dispute that the robbery acted as a catalyst for the shooting. He also
did not contend that Tiemann pursued him because of his race. He instead argued
that he was an innocent bystander to the robbery, as opposed to a perpetrator, and
that he acted in self-defense. Therefore, the crux of the case centered on whether
Smith was involved in the robbery. Under these circumstances, the initial-aggressor
element was not a material fact in issue at trial such that Tiemann’s tattoos and
clothing were relevant to its determination.
{¶20} Smith’s first assignment of error is overruled.
II. Exercise of Peremptory Challenges
{¶21} In his second assignment of error, Smith argues that peremptory
challenges were improperly exercised simultaneously and that defense counsel’s
questioning of jurors was unreasonably limited. It is undisputed that Smith failed to
object to the trial court’s manner of conducting jury selection.1 Therefore, Smith may
challenge only the court’s limitation of voir dire based on an alleged denial of his final
peremptory challenge.
{¶22} Under Crim.R. 24(D), each party may peremptorily challenge four
prospective jurors in a felony case. Crim.R. 24(E) provides the manner for exercising
peremptory challenges:
Peremptory challenges shall be exercised alternately, with the first
challenge exercised by the state. The failure of a party to exercise a
1 However, even if the issue were properly preserved for appeal, the transcript of the proceedings
shows that the court complied with the dictates of Crim.R. 24. For each round of peremptory
challenges, the court would allow the state to exercise a peremptory challenge first and then allow
defense counsel to exercise a peremptory challenge second. Thus, contrary to Smith’s assertion,
the court did not require simultaneous peremptory challenges.
7
OHIO FIRST DISTRICT COURT OF APPEALS
peremptory challenge constitutes a waiver of that challenge, but does not
constitute a waiver of any subsequent challenge. However, if all parties,
alternately and in sequence, fail to exercise a peremptory challenge, the
joint failure constitutes a waiver of all peremptory challenges.
{¶23} In State v. Jones, 2018-Ohio-4754, 124 N.E.3d 439, ¶ 17 (1st Dist.),
appeal accepted on other grounds, 155 Ohio St.3d 1418, 2019-Ohio-1315, 120 N.E.3d
865, this court interpreted Crim.R. 24(E) to mean that “[a] party’s failure to exercise a
challenge in turn waives that party’s right to that challenge.” In effect, Crim.R. 24(E)
forces a party to exercise each challenge in turn or lose it. Id.; see State v. Holloway, 129
Ohio App.3d 790, 798, 719 N.E.2d 70 (10th Dist.1998) (holding that the trial court erred
when it permitted the state to exercise a peremptory challenge after it had previously
waived its final peremptory challenge).
{¶24} At the beginning of jury selection, 12 potential jurors were seated in the
jury box. The prosecutor and defense counsel both questioned the 12 jurors and passed
for cause. The trial court then called counsel for both parties to sidebar for the first
round of peremptory challenges. The prosecutor and defense counsel each exercised his
first peremptory challenge in turn. This process continued until counsel for both parties
had each exercised three of their four peremptory challenges. During the fourth round
of peremptory challenges, the following exchange occurred:
State: We are going to excuse Number 14.
Court: Number 14 is excused. Number 24 will be brought up.
Defense counsel: So that was 14?
Defense counsel: Going to pass.
Court: You are going to pass. Now for alternates – we still have to do
cause on the new one.
8
OHIO FIRST DISTRICT COURT OF APPEALS
The prosecutor and defense counsel then questioned prospective juror 24 for cause.
{¶25} As set forth under Crim.R. 24(E), Smith waived his opportunity to
exercise his fourth peremptory challenge as to the selection of the prospective jurors.
Although Smith lost only his right to that particular challenge, it was his final
peremptory challenge. To allow Smith to later exercise his final peremptory challenge
would have allowed him to exercise an “extra” peremptory challenge in excess of that
allowed by Crim.R. 24. Therefore, the trial court did not err in limiting defense counsel’s
questioning of prospective juror 24.
{¶26} Smith’s second assignment of error is overruled.
III. Weight and Sufficiency of the Evidence
{¶27} In his third and fourth assignments of error, Smith challenges the
weight and sufficiency of the evidence supporting his conviction for aggravated
murder. Specifically, Smith contends that the state presented insufficient evidence
of his complicity in the commission of the aggravated robbery of Tiemann. He
argues that it then follows that the state presented insufficient evidence to convict
him of aggravated murder predicated upon that offense.
{¶28} To determine whether a conviction is supported by sufficient evidence,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259, 274, 574 N.E.2d 492 (1991). In reviewing a challenge to the weight of the
evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). We must review the entire record, weigh the evidence,
consider the credibility of the witnesses, and determine whether the trier of fact
clearly lost its way and created a manifest miscarriage of justice. Id.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} Smith was convicted of aggravated murder under R.C. 2903.01(B),
which states: “No person shall purposely cause the death of another * * * while
committing or attempting to commit, or while fleeing immediately after committing
or attempting to commit * * * aggravated robbery[.]” At trial, Smith presented a
theory of self-defense. To establish self-defense, the defendant must prove that he
was not at fault in creating the situation giving rise to the affray. State v. Barnes, 94
Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002). The state contends that, by aiding and
abetting Irv in committing the aggravated robbery that gave rise to the shooting,
Smith cannot show that he acted in self-defense.
{¶30} “ ‘[T]he mere presence of an accused at the scene of a crime is not
sufficient to prove, in and of itself, that the accused was an aider and abettor.’ ” State
v. Johnson, 93 Ohio St.3d 240, 243, 754 N.E.2d 796 (2001), quoting State v. Widner,
69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). Instead, “the evidence must show
that the defendant supported, assisted, encouraged, cooperated with, advised, or
incited the principal in the commission of the crime, and that the defendant shared
the criminal intent of the principal.” Johnson at syllabus. A defendant’s criminal
intent may be inferred from the circumstances surrounding the crime, including his
“presence, companionship, and conduct before and after the offense is committed.”
(Internal quotations omitted.) Id. at 245.
{¶31} Surveillance videos documented Smith and Irv talking several times
before the robbery took place. Smith and Irv talked immediately after Irv saw
Tiemann’s gun; Smith met Irv at Tiemann’s motorcycle to observe the gun; Smith,
Irv, and Q briefly gathered on Walnut Street; and Irv joined Smith and Tiemann at
the robbery location.
10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} Surveillance videos and eyewitness testimony further demonstrated
Smith’s presence, companionship, and assistance during and after the robbery. The
videos depicted Smith moving toward Tiemann as Irv grabbed the gun. During Irv’s
subsequent flight, the video showed Smith inexplicably jump in front of Tiemann’s
motorcycle as Tiemann drove in the same direction that Irv had fled. Furthermore,
the state’s witness, Danielle Bullock, observed the robbery’s aftermath and described
what she saw from her vehicle. She testified to her belief that Smith and Irv were
acting together, and in her 911 call, she referred to the perpetrators of the crime as
“they”—i.e., Smith and Irv conjointly. Finally, Smith admitted to possessing the fruit
of the robbery—Tiemann’s gun.
{¶33} Viewing this evidence in a light most favorable to the state, the jury
could reasonably have concluded that Smith was complicit in the planning,
execution, and flight from the aggravated robbery of Tiemann. Therefore, the state
presented sufficient evidence to convict Smith of aggravated murder predicated upon
the aggravated robbery.
{¶34} As to the weight-of-the-evidence challenge, Smith asserts that the
video provided no substance of the discussions between Irv and Smith, and
therefore, no evidence of a plan. “[A]lthough explicit communication can form the
foundation for complicity, it can also be established through surrounding
circumstances.” State v. Phillips, 9th Dist. Summit No. 27552, 2017-Ohio-1186, ¶ 19.
As described above, the state presented sufficient circumstantial evidence to find that
Smith was complicit in the planning of the aggravated robbery of Tiemann.
Therefore, the jury was free to interpret the video and conclude that Smith was not
an innocent bystander, but an active participant throughout.
11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} “[W]hen evidence is susceptible to more than one construction, a
reviewing court must give it the interpretation that is consistent with the judgment.”
(Internal citations omitted.) In re J.C., 1st Dist. Hamilton No. C-180493, 2019-Ohio-
4027, ¶ 20. Based upon the evidence, and in light of the entire record and credibility
of the witnesses, this is not a case where the jury clearly lost its way and created such
a manifest miscarriage of justice that Smith’s conviction must be reversed.
{¶36} Smith’s third and fourth assignments of error are overruled.
IV. Sentencing
{¶37} In his fifth assignment of error, Smith contends that the sentencing court
misinterpreted and improperly considered his allocution statements when imposing a
maximum sentence.
{¶38} We lack statutory authority to review the evidentiary basis supporting
Smith’s sentence for aggravated murder. Pursuant to R.C. 2953.08(D)(3), “[a] sentence
imposed for aggravated murder * * * is not subject to review under this section.” As
interpreted by the Ohio Supreme Court, R.C. 2953.08(D) is “unambiguous” and “clearly
means what it says: such a sentence cannot be reviewed.” State v. Porterfield, 106 Ohio
St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 17. But in Porterfield, the defendant was
sentenced under a prior version of R.C. 2929.03, which provided a mandatory 20-
years-to-life sentence for aggravated murder without death specifications. Thus,
because the sentencing judge had no choice but to impose only one mandatory
sentence, it was rational for the General Assembly to deny appellate review of the
sentence.
{¶39} In 2005, the General Assembly enacted new legislation which granted
the sentencing judge the discretion to impose one of four sentences: 20-years-to-life,
25-years-to-life, 30-years-to-life, and life without parole. However, the General
12
OHIO FIRST DISTRICT COURT OF APPEALS
Assembly never amended R.C. 2953.08(D), which still prohibits appellate review of
aggravated-murder sentences.
{¶40} One justice of the United States Supreme Court has found R.C.
2953.08(D)(3)’s prohibition on appellate review to be “deeply concerning,” but Smith
has not challenged its constitutionality. Campbell v. United States, ___ U.S. ___, 138
S.Ct. 1059, 1059, 200 L.Ed.2d 502 (2018) (Sotomayor, J., respecting denial of certiorari)
(“I believe the Ohio courts will be vigilant in considering [the constitutionality of R.C.
2953.08(D)(3)] in the appropriate case.”). Therefore, we are bound by the dictates of
the statute and review of Smith’s 33-years-to-life sentence is precluded.
{¶41} However, “nothing in R.C. 2953.08(D) precludes review of an order that
sentences imposed to punish general felonies be made consecutive to an aggravated-
murder sentence.” State v. Broe, 1st Dist. Hamilton No. C-020521, 2003-Ohio-3054, ¶
84. In order to impose consecutive terms of imprisonment, a trial court must make the
statutorily enumerated findings required by R.C. 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry. State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. No “talismanic incantation” is given to
the words of R.C. 2929.14(C)(4). Id. As long as the reviewing court can discern that the
trial court engaged in the correct analysis and that the record contains evidence to
support the findings, consecutive sentences should be upheld. Id. at ¶ 29.
{¶42} At the sentencing hearing, the trial court made all of the mandatory
findings pursuant to R.C. 2929.14(C)(4). Specifically, the court stated:
It is this Court’s belief that serving these sentences on Count 1 and Count
9 consecutively is in the best interest of the public, because it’s necessary
to protect the public, as well as not being disproportionate to the
seriousness of [Smith’s] conduct and the danger that [Smith] pose[s] to
13
OHIO FIRST DISTRICT COURT OF APPEALS
the public, as well as the fact that [Smith] [was] on community control to
me when this crime occurred.
{¶43} The court also included all of the R.C. 2929.14(C)(4) findings in its
sentencing entry. The evidence supporting these findings included victim-impact
statements, probation’s presentence-investigation report, Smith’s criminal history, and
the facts presented at trial. Because the record contains sufficient evidence to support
the mandatory consecutive sentence findings, Smith’s fifth assignment of error is
overruled.
Summary
{¶44} For the foregoing reasons, Smith’s assignments of error are overruled and
the judgment of the trial court is affirmed.
Judgment affirmed.
Z AYAS , P.J., and B ERGERON , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
14
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30 Ill. App.2d 114 (1961)
173 N.E.2d 850
Joe Evans, Doing Business as Joe Evans and Sons, Plaintiff-Appellee,
v.
Frank S. Owens, Defendant-Appellant.
Gen. No. 10,331.
Illinois Appellate Court Third District.
April 17, 1961.
Rehearing denied May 2, 1961.
Costigan, Wollrab & Yoder, of Bloomington, for appellant.
Chester Thomson and John W. Biggers, of Bloomington, Substitute Attorneys for plaintiff-appellee.
(Abstract of Decision.)
Opinion by JUDGE REYNOLDS.
Reversed and remanded with directions.
Not to be published in full.
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 40461-2012
STATE OF IDAHO, )
) Boise, August 2013 Term
Plaintiff-Respondent, )
) 2013 Opinion No. 101
v. )
) Filed: October 2, 2013
JOSEPH RICHARD CLINTON, )
) Stephen W. Kenyon, Clerk
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, in and for Ada County. The Hon. Deborah A. Bail, District Judge.
The judgment of the district court is affirmed.
Shawn F. Wilkerson, Deputy State Appellate Public Defender, Boise, for appellant.
Jason M. Gray, Deputy Attorney General, Boise, for respondent.
EISMANN, Justice.
This is an appeal out of Ada County contending that the district court erred in failing to
order a mental health evaluation for a child molester prior to sentencing and abused its discretion
in sentencing the defendant to prison. We affirm the judgment of the district court.
I.
Factual Background.
Joseph Richard Clinton was indicted for the felony crime of lewd conduct with a minor
under sixteen years of age. Although he was initially found incompetent to stand trial, he was
determined to be competent after a reassessment. He pleaded guilty to the charge, and he
underwent a psychosexual evaluation prior to sentencing. He did not request an evaluation of his
mental condition pursuant to Idaho Code section 19-2522, nor did the district court sua sponte
order one. The court sentenced him to serve twenty years in the custody of the Idaho Board of
Correction, with three years of the sentence fixed and the remainder indeterminate. Clinton filed
a motion for reduction of his sentence pursuant to Idaho Criminal Rule 35, which the court
denied. Clinton then timely appealed.
His appeal was first heard by the Idaho Court of Appeals. He contended that the district
court erred in failing to sua sponte order a mental health evaluation and that it abused its
discretion in imposing the sentence. The Court of Appeals affirmed the sentence. In doing so, it
held that a trial court’s unobjected to failure to order a mental examination prior to sentencing
would be reviewed under a manifest disregard standard rather than the fundamental error
standard announced by this Court in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010). The
State filed a petition for review regarding that issue, and we granted the State’s petition. In cases
that come before this Court on a petition for review of a Court of Appeals decision, we directly
review the decision of the lower court as if the appeal initially had come directly to this Court.
State v. Suriner, 154 Idaho 81, 83, 294 P.3d 1093, 1095 (2013). 1
II.
Did the District Court Err in Failing to Sua Sponte Order a Mental Evaluation?
Idaho Code section 19-2522(1) provides that “[i]f there is reason to believe the mental
condition of the defendant will be a significant factor at sentencing and for good cause shown,
the court shall appoint at least one (1) psychiatrist or licensed psychologist to examine and report
upon the mental condition of the defendant.” Clinton did not request a mental health evaluation
prior to his sentencing, and did not object to the failure to have that evaluation. Because the
district court’s failure to sua sponte order the evaluation did not violate a constitutional right, it
1
In deciding that the manifest disregard standard survived our Perry decision, the Court of Appeals stated:
Initially, we note that, despite the language and apparent scope of Perry, the Perry Court neither
addressed nor expressly overruled the manifest disregard standard this Court has consistently
applied for many years. In other words, there was no effort by our Supreme Court to explicitly
invalidate the manifest disregard standard, despite the opportunity to do so in Perry and in
subsequent cases where Perry was applied to post-trial issues.
This statement reflects a misunderstanding of our standard of review. When we issue an opinion that announces a
rule of law, we do not search opinions of the Court of Appeals to see if our decision conflicts with a rule of law
previously announced by that court. Rather, we simply expect lower courts, including the Court of Appeals, to
follow decisions of this Court when there is a conflict between our decisions on an issue of law and those of the
Court of Appeals. If, in an appeal to this Court, a party relies upon the reasoning in an opinion of the Court of
Appeals, we may agree with or reject that reasoning, but even if we reject the reasoning we will not expressly
overrule the decision of the Court of Appeals because it was not our opinion. Even when we grant review in a case
that was initially decided by the Court of Appeals, we do not reverse its decision when we disagree with it, because
we hear the case anew and do not review the decision of the Court of Appeals.
2
does not constitute a fundamental error that is reviewable on appeal. State v. Carter, No. 39927,
2013 WL 4398863 (Idaho Aug. 16, 2013).
III.
Did the District Court Abuse Its Discretion In Imposing the Sentence?
Clinton contends that the district court abused its discretion in imposing the sentence of
twenty years in the custody of the Idaho Board of Correction with three years fixed. “We review
the length of a sentence under an abuse of discretion standard.” State v. Al–Kotrani, 141 Idaho
66, 70, 106 P.3d 392, 396 (2005). “When a sentence is challenged as being excessively harsh,
we independently review the record on appeal, having due regard for the nature of the offense,
the character of the offender, and the protection of the public interest.” State v. Jeppesen, 138
Idaho 71, 76, 57 P.3d 782, 787 (2002). “[W]hen doing so we consider the defendant's entire
sentence.” State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). However, “[w]e
presume that the fixed portion of the sentence will be the defendant’s probable term of
confinement. That is because whether or not a defendant serves longer than the fixed portion of
the sentence is a matter left to the sole discretion of the parole board . . . .” Id. (citation omitted).
“When determining whether the sentence is excessive, we must consider: (1) the protection of
society; (2) deterrence of the defendant and others; (3) the possibility of the defendant’s
rehabilitation; and (4) punishment or retribution for the defendant.” State v. Strand, 137 Idaho
457, 460–61, 50 P.3d 472, 475–76 (2002). “In order to show that the sentence imposed was
unreasonable, the defendant must show that the sentence, in light of the governing criteria, is
excessive under any reasonable view of the facts.” State v. Cannady, 137 Idaho 67, 73, 44 P.3d
1122, 1128 (2002).
When imposing sentence, the district court considered that in this case Clinton had lured
a seven-year-old girl into his mobile home, where he sexually assaulted her; that Clinton had a
prior conviction for lewd conduct with a minor stemming from an incident in which Clinton
sexually abused three young boys who were seven, nine, and eleven years of age; that in the
earlier criminal case, Clinton admitted to having molested fifty children; and that in the opinion
of the psychologist who performed the psychosexual evaluation in this case, Clinton is a
pedophile who does not have the capacity to contain his desires to sexually abuse children and is
a high risk to reoffend.
3
Clinton argues that the district court abused its discretion for several reasons. He asserts
that “the district court concluded, without any evidence to support its conclusion, that Mr.
Clinton’s dementia should be a [sic] aggravating factor because his sexual desires will continue
while his dementia will reduce his ability to understand his actions.” During the sentencing
hearing, the district court stated that “the defendant is suffering from dementia, which will
probably worsen his ability to understand and internalize additional counseling” and that
“[u]nfortunately, sexual impulses tend to survive dementia.”
Dementia is the progressive deterioration of cognitive function. The psychologist who
conducted the psychosexual evaluation of Clinton stated that he had low intellectual functioning
and that “individuals who have low intellectual functioning could sometimes act on their
inappropriate sexual impulses purely based on incapacity to contain sexual desires.” The
psychologist stated that Clinton’s “insight into his sexual issues appeared quite poor, and he did
not present with having the tools necessary to manage them.” With respect to Clinton’s potential
to benefit from treatment, the psychologist stated that considering that Clinton “had previously
participated in ten years of sexual offender treatment and still re-offended, in addition to taking
into account his limited intellect, there [are] concerns regarding how much more he could learn
from sexual offender treatment.” The district court did not err in its evaluation that Clinton’s
dementia increased the risk of him reoffending.
Clinton also points out that he stated he wanted to reinitiate sexual offender treatment and
that the psychologist concluded that Clinton “would be considered amenable for sexual offender
treatment.” However, the psychologist added, “Based on risk level, it was recommended
treatment took place in a structured environment.” In its judgment, the district court
recommended that Clinton “participate in Sex Offender treatment while incarcerated.” The
sentence is certainly consistent with that recommendation.
Finally, Clinton argues that he receives support from his friends, has a place to live, and
has a positive employment background. The existence of these factors does not show that the
district court abused its discretion in imposing the sentence. Just before announcing the
sentence, the court stated that “the risk in this case is quite high, and the practical solutions are
non-existent.” There is no indication that the district court abused its discretion in imposing the
sentence in this case.
4
IV.
Conclusion.
We affirm the judgment of the district court.
Chief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON CONCUR.
5
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...rT”sRNliW nTNIY,.c j
December 8, 1949 !
Hon. noyne L. Kelly opinion RO. v-956.
Rxecntlve Direotor
Board for Texas State Re: The agency veated with
Hoapitala~and Special Schools authority to appoint
Austlp, ,Texaa: the Superlptendent of
the,Confde‘$ate Worn&n's
DearSlr:z : Home.
:We hu0te from your InqUlry ai3folJ&s:
"Rticentlywe have had On8 of our Sypei-ln-
t8nd8nts.Q~f9 State Instltutlon-to paaa @way;
namQ+,'Kti.:Sus$e ha18 Butler of the COn$8d-.
~eratb Woman's Horn& here in Austin.
"There haa‘been some dlacusalon backwarda
and foruard~between the Oo.vernor'aOffice, Mr.
Claud Qllmbr, ChalFman of this Board,.myaelf
and i$plicaats':forthis position +a.to who waa
to make the appolntment'to this vacanoy. The
~C+ove~or~;a.OffloeHaag aCO8pt8d the status of
Xoltse Blll,1,.5lst Leglalature, ~vhioh,aeems
to glVe the power of appol@imen$ of,thla poai-
~tlon'to this Board.
9ar. Claud Gilm8r and I are not S.&e of
this atatua ao we would like an opinion ~from
your *partmentat, an early aat? concerning
the.~law.
governing the.appointment of the Su-
perintedcletit
of~the Te%aa Confederate Women's
Home.at Juatln, Texas.
Seotlon l'of Art&l;, 3&74b, Vernon's Civil
Statutes (H.B.l,,slat Leg.) prOvid8a for the creation ,of
the Bdard for Texas Stat8 Hoapltala and Special Schools.
Sbotlon 3 reads In part:
"The term 'Texas State Hospltala and
Special Schools' . . i shall mean The Austin
State Hospital, Austin Stat8 School, Austin
State Sohdol Fati Colony, The confederate
Hoioef0$ women, Th8 T8Xaa cOnfed8rat8 Hom8
'parMen, The Texas Blind, Deaf and Orphan
.
Hon. Moyue L. Kelly, page 2 (V-956)
School, The Texas Sohool for th8 Blind, the
T8XaS School for the Deaf, and the State
Dairy and Hog Fang, all located In or ad a-
cent to the City of Austin, Texas . . . iEm-
phasls added)
Section 2 of Article 3175b provIdea in part:
I . . Effective September 1, 1949, the aon-
tiol and management of, and all rlghts, pri-
vileges, pow8rs, ana duties incident thereto
. . . which are now Vested In and 8X8YFCiS8d
by the State Board of Control shall be tpsns-
ferred to, vested in, and exeraiaed by the
& rd for Texas State Hospitals and Speola'l
s;~ools. Provid a h tht'h B rd
-control ahallec&t~~e~~ hard &rizas8S
for such Institutions . . .n (Bmphasis added)
At the time House Bill.1 was enacted, the Con-
federate Home for Women was ag eleemosynary lnatltutlon
subject to the powers of the Stat8 Board of Control un-
der Article 3219 V.C.S. This statute prOVid8S In part:
" . . . The Board shall eppolnt a super-
intendent for the Confederate Woman's Home,
with the approval of the GOV8rnOr.'
By virtue of the unaeraoorfjaprovisions of Sec-
tion 2 of Article 3174b, oonalaered In connection with
~rtlole 3219, the authority to appoint the superintendent
of the Confederate Home for Women la vested In the Board
for Texas State Hospitals and Special Schools, subject
to the approval of the Governor.
In its opln$on ao- v-929, this OffIC8 held that
the State Board of Control Is the appointing authority as
to the superintendents of th8 Texas Sohobl for th8 Blind
and the Texas School for the Deaf. But that holding was
requitid by the provisions of House Bill 370, 51st Leg-
islature, which was enacted later than House Blll.1.
House Bill 370 has no relevancy with respect to the ap-
polntment of the superintendent for the Confederate Home
for Women.
SUMMARY
The Board for Texas State Hospitals and
Special Sahools.1~ Vested with the authority
..
Hon. Moyne L. Kelly, page 3, (V-956)
to eppolnt the auperlntendent of the confed-
erate Home for Women, subjeat to ;$h8approv-
al of the Governor. Art.3174b, 3ec.2 and
Art.3219, V.C.S.
Poura very truly,
AlTORlWZYGENRRALOFTEXAS
CEO :mw
Chester E. 0111s0u
Assistant
APPROVED
ATTORNEY GZRRRAL
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137 Ind. App. 135 (1965)
205 N.E.2d 833
HAMILTON ET AL.
v.
KORBLY ET AL.
No. 20,178.
Court of Appeals of Indiana.
Filed April 14, 1965.
*136 Edward L. Hamilton, of Terre Haute, for appellant.
John G. McNutt and Bernard Korbly, of Indianapolis, for appellees.
FAULCONER, C.J.
This is an appeal from a judgment rendered by the court, without the intervention of a jury, adverse to the appellants who were the defendants below.
Appellees herein filed a "Motion to Dismiss or Affirm" for failure of appellants to comply with Rule 2-17 of the Supreme Court, 1964 Edition. Appellants' brief certainly leaves much to be desired. However, since appellants raise only one issue for our consideration, and it being our desire to decide appeals on their merits wherever possible and we can understand from appellants' brief the issue he desires to present, we are of the opinion that appellants have sufficiently complied with the rules of the Supreme Court. Therefore, the motion of appellees to dismiss or affirm is overruled.
Appellees, in the prayer of their motion to dismiss or affirm, requested an extension of time within which to file their answer brief in the event such motion should be overruled. However, such request for extension of time does not comply with Rule 2-16 of the Supreme Court and is, therefore, denied.
Appellees having failed to properly file a request for extension of time to file answer brief herein, no brief having been filed within the time allowed, and their time for filing such brief having expired, we have considered this appeal on appellants' brief alone. The general rule is that where no brief has been filed by the appellee the judgment may be reversed if the appellant's brief presents a prima facie case *137 of error. Stone v. Stone (1963), 134 Ind. App. 396, 399, 188 N.E.2d 833.
Appellants state two specifications in their assignment of errors:
"1. The Court erred in overruling Appellants' Motion for a New Trial.
"2. That the Honorable Addison M. Dowling, regular judge of said Court, was without jurisdiction to enter Nunc Pro Tunc entry, the said Judge having divested himself of jurisdiction prior to said entry, by the valid appointment of the Honorable Joseph G. Wood, Special Judge in said cause."
Appellants' failure to in any manner argue or refer to their first assignment of error in the argument section of their brief waives any error on that specification. Rule 2-17(e), (f), supra, Rules of the Supreme Court, 1964 Edition; Gernhart v. State (1954), 233 Ind. 470, 472, 120 N.E.2d 265; McCracken v. Hunter, et al. (1962), 134 Ind. App. 157, 161, 186 N.E.2d 884; Dragoo v. Dragoo (1962), 133 Ind. App. 394, 401, 182 N.E.2d 434; Thanos v. Fox (1958), 128 Ind. App. 416, 423, 149 N.E.2d 315.
Appellants confine their argument to Specification No. 2 which we feel a brief statement of the record will aid in a clearer understanding of the problem.
Judgment was entered by the Special Judge on September 24, 1963, and the motion for new trial, timely filed, was overruled on January 22, 1964. On March 18, 1964, prior to the filing of the transcript and assignment of errors in this court, appellees (plaintiffs below) filed in the trial court a motion for a nunc pro tunc entry, which motion was heard and granted on April 3, 1964.
The substance of the motion and entry made was that the defendant, Roger Hamilton, came to this (trial) *138 court in person on March 12, 1963, and requested that the cause be set for trial; that on the same date said cause was set for trial on April 2, 1963, at 9:00 A.M. and defendant was so informed, and the bailiff mailed to defendants a notice thereof; that on April 2, 1963, plaintiffs appeared but neither the defendants nor their attorney appeared; that in a conversation with the bailiff on said day over the telephone, defendant, Roger Hamilton, requested a continuance to employ new counsel which was granted and the cause set for trial on May 2, 1963, at 1:30 P.M., of which the defendant, Roger Hamilton, was informed orally, and a notice was also mailed to the defendants of such trial date. That these above facts were entered on the court calendar of causes to be tried, but that "through the inadventure [inadvertence] and misprison of the clerk, no order book entry was made showing the setting of this cause for trial."
The point of contention here is the fact that the hearing on the petition for nunc pro tunc entry was conducted by the regular judge of the court and the order of nunc pro tunc entry was made by the regular judge.
It is significant, we believe, that the subject matter of the nunc pro tunc entries concerned a time in the pendency of this action prior to the selection and qualification of the special judge, and that the actual hearing on the motion for nunc pro tunc entry took place after the motion for new trial was overruled.
In all cases appealed to this court there is a presumption that the trial court correctly decided the question presented. It is incumbent upon the appellant to rebut this presumption in his brief by clearly showing that the trial court committed serious error which denied the relief to which he was entitled under the law. Kalbac v. Kalbac (1961), 132 Ind. App. 593, 594-595, 177 N.E.2d 279 (Transfer denied).
*139 Our courts have stated that it is incumbent upon the appellant on appeal to affirmatively show harmful error by argument and citation of authorities. Wills v. Motorists Mutual Insurance Co. (1962), 133 Ind. App. 634, 638, 184 N.E.2d 161.
Appellants urge error in the regular judge acting in this matter. The two cases they cite as authority are not applicable to the facts herein. In our opinion appellants have failed, by cogent argument and citation of authority, to show that the entries made by the regular judge are harmful error or in any way would affect the judgment or trial of the cause. They have further failed to show in what harmful way their cause would be affected if said entries were "void" as they contend, or how the existence or non-existence of the facts could affect the judgment or prejudice their cause.
Appellants, in our opinion, have not shown such prima facie error necessary for a reversal.
Judgment affirmed.
Carson, Prime and Martin, JJ., concur.
NOTE. Reported in 205 N.E.2d 833.
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632 A.2d 143 (1993)
George GILLISON, et al.
v.
Afton FARRIN, Jr., et al.
Supreme Judicial Court of Maine.
Argued September 10, 1993.
Decided October 21, 1993.
Gordon E. Stein (orally), Damariscotta, for plaintiffs.
Marshall J. Tinkle (orally), Portland, for defendants.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.
ROBERTS, Justice.
Plaintiffs George and Judith Gillison appeal from a judgment entered against them in the Superior Court (Lincoln County, Brennan, J.) for damages and injunctive relief on a nuisance counterclaim brought by defendants Afton Farrin, Jr., and Michael Farrin. We affirm the judgment.
In 1987 the Gillisons built a new wharf between their existing wharf and the Farrin Wharf in South Bristol. Due to the manner in which the Gillisons used the new wharf, the Farrins experienced difficulty and delay getting to and from their wharf, and on occasion Afton Farrin was unable to exit his wharf at all. As a result, for five years the Farrins lost profits from commercial fishing, as well as wharfage fees, and suffered inconvenience and annoyance.
At trial the Farrins alleged that the use of the Gillison wharf constituted a private nuisance. The trial court allowed the Gillisons to respond by introducing in evidence the fact that state and federal agencies had issued permits to build the wharf. The permits themselves, as well as agency officials' *144 testimony relating to them, were excluded on the ground of relevance.
The Gillisons contend that the trial court's ruling was in error. We disagree. Evidence is relevant only if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M.R.Evid. 401. The court allowed the Gillisons to present evidence that permits existed, but correctly noted that the mere fact of a permit generally does not bar a claim for private nuisance. "A thing may be lawful in itself, and yet become a nuisance through negligence in the maintenance or use of it." Foley v. H.F. Farnham Co., 135 Me. 29, 30, 188 A. 708 (1936); see also 38 M.R.S.A. § 372 (1989) (state agency permit is not a defense to "any action at law for damages"). Given that neither these particular permits nor the testimony relating to them addressed the central issue in the case whether the Gillisons' use of their wharf was unreasonable the proffered evidence was not only irrelevant but also likely to confuse the jury and therefore was properly excluded. See M.R.Evid. 403.
The Gillisons further contend that the trial court erred in refusing their request for a new trial or remittitur. They argue that because the Farrins obtained permanent injunctive relief following trial, that portion of the jury award representing future damages must be returned. The function of a remittitur, however, is to remove the "unlawful excess" from an award, and therefore damages may be reduced only to the maximum amount a jury rationally could have awarded. Nyzio v. Vaillancourt, 382 A.2d 856, 861 (Me.1978). The trial court's denial of a motion for new trial based on excessive damages is reviewed only for abuse of discretion. C.N. Brown Co. v. Gillen, 569 A.2d 1206, 1209 (Me.1990).
At trial the Farrins offered evidence of lost profits, as well as of the inconvenience and annoyance they suffered for five years. The court properly instructed the jury that damages in a nuisance case may include all of those elements. See Pettingill v. Turo, 159 Me. 350, 357, 193 A.2d 367 (1963) (measure of damages); Brown v. Watson, 47 Me. 161, 163 (1859) (recovery for "trouble and loss of time"); Restatement (Second) of Torts § 929(1)(c) (1979). Although the Farrins presented evidence of both past and future damages, the verdict form did not distinguish between the two, simply reflecting a total award of $115,000. Considering both lost profits and inconvenience and annoyance, the entire amount was supported by competent evidence and therefore may not be disturbed. Bourette v. Dresser Indus., 481 A.2d 170, 174 (Me.1984). The trial court acted within its discretion in denying the request for remittitur.
We have examined the Gillisons' remaining claims of error and find them to be without merit.
The entry is:
Judgment affirmed.
All concurring.
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Case: 15-30732 Document: 00513438432 Page: 1 Date Filed: 03/24/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30732 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
March 24, 2016
CHANSE CEASAR, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
CITY OF EUNICE,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:14-CV-2392
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
On July 15, 2013, the Eunice Police Department received a report of a
domestic disturbance involving Appellant Chanse Ceasar and his girlfriend.
While en route to the disturbance, officers were advised that Ceasar was
attempting to fight with his girlfriend and had struck one of her family
members. Several officers made contact with Ceasar near the apartment that
he shared with his girlfriend, but he ignored their commands and ran away.
The officers searched for Ceasar and eventually located him back at his
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-30732 Document: 00513438432 Page: 2 Date Filed: 03/24/2016
No. 15-30732
apartment. When Ceasar refused to open the door, they broke it down and
arrested him. Ceaser was then booked at the Eunice Police Department.
In July 2014, Ceasar filed suit against the City of Eunice in Louisiana
state court. He alleged several violations of state and federal law arising out
of his July 15, 2013 arrest. Appellee removed to federal court and filed a
motion for summary judgment. The district court granted this motion
following a short hearing. Ceasar now appeals the district court’s judgment.
Though we construe Ceasar’s pro se brief liberally, he has abandoned many of
the claims that he pressed before the district court by failing to brief them. 1 At
best, his opening brief discusses only four claims: (1) a Fourth Amendment
claim; (2) a false arrest claim; (3) an excessive force claim; and (4) a Brady
claim. Having independently reviewed the record, we agree with the district
court that all four are meritless.
Ceasar’s first claim is that the police violated his rights under the Fourth
Amendment by entering his apartment without a warrant. Though Ceasar is
correct that the police typically need a warrant to enter a dwelling, the
Supreme Court has established several exceptions to this general rule. One of
these exceptions allows “law enforcement officers [to] enter a home without a
warrant to render emergency assistance to an injured occupant or to protect
an occupant from imminent injury.” 2 In this case, the officers had received a
credible report of domestic violence and were entitled to enter Ceasar’s
apartment to protect his girlfriend—who was eight months pregnant—from
1 See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We also note that many
of his remaining claims are properly alleged against the individual officers involved in his
arrest, not the City of Eunice—which is the only defendant in this suit. Because any pleading
error is immaterial to the result, we assume that Ceasar’s claims are properly alleged.
2 Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
2
Case: 15-30732 Document: 00513438432 Page: 3 Date Filed: 03/24/2016
No. 15-30732
potential harm. 3 Once inside the apartment, the officers had probable cause
to arrest Ceasar based upon this same credible report of domestic violence.
Whether alleged under federal or Louisiana state law, probable cause defeats
a claim of false arrest. 4
Ceasar next argues that the police used excessive force both during his
arrest and his booking at the police station. In particular, he contends that the
police unnecessarily tased him a number of times. Ceasar, however, does not
dispute the officers’ allegations that he actively resisted throughout the course
of his arrest and booking. We agree with Appellee that the officers’ actions
were an appropriate response to Ceasar’s “escalating verbal and physical
resistance.” 5 At the very least, Ceasar has not shown that the officers’ actions
violated clearly established law.
Ceasar’s final claim is that Appellee violated Brady v. Maryland 6 by
withholding his girlfriend’s deposition testimony. Putting aside that Brady
does not apply in civil proceedings, the record reflects that the district court
was presented with, and considered, this deposition testimony prior to entering
final judgment.
The judgment of the district court is AFFIRMED.
3 See, e.g., United States v. Martinez, 406 F.3d 1160, 1164-65 (9th Cir. 2005); Tierney
v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998) (“Courts have recognized the combustible
nature of domestic disputes, and have accorded great latitude to an officer’s belief that
warrantless entry was justified by exigent circumstances when the officer had substantial
reason to believe that one of the parties to the dispute was in danger.”).
4 See Deville v. Marcantel, 567 F.3d 156, 164, 172 (5th Cir. 2009) (per curiam).
5 See Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012).
6 373 U.S. 83 (1963).
3
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